Among a raft of recent anti-terror measures announced by the State Government is a proposal that would make it a criminal offence to possess, produce or distribute “extremist material”.
This could have serious implications for free speech.
Predominantly, the criminal law targets those who have committed a crime. This Bill intends to target individuals before they have committed a crime in the traditional sense.
The aim appears to stop potential terrorists well before they commit an act of terrorism.
The key to understanding the Bill is the potentially broad definition of “extremist material”.
It refers to whether a reasonable person would understand the material to, directly or indirectly, be encouraging, glorifying, promoting or condoning terrorist acts or seeking support for, or justifying, the carrying out of terrorist acts.
It also extends to material that a reasonable person would suspect has been produced or distributed by a terrorist organisation.
There are concerns about the wide scope of the definition impacting freedom of speech.
To some extent, this is recognised in the Bill itself which allows the possession of extremist material if there is a “reasonable excuse”.
This is in two main areas. Firstly, if there is a legitimate public purpose and, secondly, if the material came into possession unsolicited and reasonable steps were taken to get rid of the material as soon as possible.
A “legitimate public purpose” means educating or informing the public, the enforcement of public safety, a medical, legal or scientific purpose or a work of artistic merit. A court may consider other relevant factors.
The Bill does not specify, for example, where religious texts stand. A number of international crimes classified as terrorism involved perpetrators invoking religious doctrine to justify their acts.
Do we want government authorities to decide the artistic merits of provocative theatre productions, cartoons, magazine articles, internet blogs or other material?
If a terrorist act is committed overseas and you surf the web out of general interest at what point would you run the risk of contravening this law?
The difficulty with this Bill is that it does not target objects that would only be associated with a terrorist act such as bomb-making equipment.
It targets material for which many people could be accessing without criminal intent.