Australia’s peak body for lawyers has joined civil liberty groups, journalists and advocacy groups to sound the alarm on proposed laws to criminalise the accessing of violent extremist material, saying the new powers are unnecessary and may inadvertently interfere with “legitimate matters of political dissent or struggle”.
The federal government is seeking to expand counter-terror powers by introducing new offences for possessing or controlling violent extremist material using a carriage service.
The purpose is to address what the government says is a gap in current law, which it says only criminalises the accessing of such material if it is done in connection with a planned terrorist act.
The government’s examples of the type of material that would be covered include images and videos depicting terrorist incidents, manifestos and propaganda, instructional material on how to build a bomb, launch attacks, or manufacture harmful chemicals.
But the Law Council of Australia has warned the new offences are unnecessary and should be scrapped or changed significantly.
It said the commonwealth already has laws covering extremist material that “are sufficient to capture the type of conduct against which the bill seeks to introduce new offences”.
The council warned the government of the “need to proceed with caution” in creating offences for simply accessing or possessing material, pointing to changing trends on social media, where “scrolling” through digital platforms made unwitting consumption more common.
The bill’s explanatory memorandum says only individuals who were reckless to the nature of such material will have committed an offence, something it says will protect anyone who “accidentally comes across violent extremist material on the internet without any warning from the context”.
The council said that, despite this, the laws should have greater regard to “the intent of the person to access or possess violent extremist material”.
“Such offences, without requiring proof that a person viewed or accessed content for nefarious purposes, are highly extraordinary measures, normally reserved for material that has a very low likelihood of being accessed unwittingly, and involves the infliction of significant harm upon vulnerable persons,” the council said in a submission to the parliamentary joint committee on intelligence and security.
The council also warned the broad definition of “violent extremism material” also risked criminalising the access of material related to “legitimate matters of political dissent or struggle”.
“The Law Council expresses concern that the broad definition of violent extremist material may inadvertently capture persons who access or view so-called ‘manifestos’ which are directed to legitimate matters of political dissent or struggle,” it said. “This might include, for example, writings which call for the overthrow of oppressive governmental regimes in foreign countries; or the efforts of particular groups or regions in foreign countries to achieve independence as sovereign nations.”
Liberty Victoria also said new offences were unnecessary while the Australian Muslim Advocacy Network said the bill went further than similar laws in the UK. Those laws require authorities to show material was accessed to “intentionally or recklessly encourage or assist in the commission, preparation or instigation of acts of terrorism”.
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A spokesperson told the Guardian the current laws risk interfering with the work of community organisations that monitor violent extremist activity to record harm and make reports to police.
“The principle of legality is that law with severe consequences should be clear and certain enough to ordinary people about what behaviour crosses the line,” the spokesperson said.
“The proposed definition for violent extremist material is more than a page long and has no proper intention requirement. That is not clear and certain.”
Australia’s Right to Know coalition, a collection of media organisations, said it was concerned the laws could have unintended consequences.
“Journalists and their editorial and support staff may receive violent extremist material as part of their work, for example in the form of footage of an extremist rally sent by a source, and this should not give rise to liability,” the coalition said.
“It is apparent that the intention of the changes proposed under Schedule 2 is to prevent the promotion of violent extremism, but, as drafted, the provisions go beyond this, so that even use that attempts to counteract extremism may be affected.”
A spokesperson for the attorney general, Mark Dreyfus, said the proposal was still being scrutinised by the parliamentary joint committee. The spokesperson said the government would “closely consider any recommendations made by the inquiry to improve the legislation”.
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