Review of the Counter-terrorism Legislation Amendment (Prohibited Hate Symbols
13 August 2023
The Law Council considers that the justification for the measures contained in the Bill would be strengthened by the following: • The Attorney-General’s Department should provide a justice impact assessment, in terms of both the impact on services and principles underpinning the justice system, to determine whether the enactment of these offences at the Commonwealth level is reasonable, necessary. [...] • The Law Council is concerned that the prohibition of the Islamic State flag, which consists of the Arabic text of the Shahada—a central declaration of faith significant to the religious life of Muslims—may unnecessarily stigmatise Islam and the Arabic language. [...] The Law Council notes the observation of the Law Society of New South Wales that, in the context of European human rights jurisprudence, the display of hateful symbols does not attract the protections of Article 10 of the European Convention on Human Rights (ECHR)25 (freedom of expression). [...] A foundational issue with seeking to proscribe the ISIS flag49 arises from the fact that the ISIS flag is not a unique symbol and consists of the Arabic text of the Shahada, which is a profession of faith entailed by the first of the five pillars of Islam, upon a black background. [...] The Law Council is supportive of the inclusion of examples within the primary legislation to provide practical guidance on the operation of subsection 80.2H((9), as currently occurs in the Victorian context.109 Notably, in some cases the Criminal Code already includes references to examples in the note to an offence provision.110 The publication of law enforcement and prosecutorial guidance to coi.