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Free speech, anti-terrorism laws and racial vilification

By David Knoll - posted Thursday, 11 August 2005

The recent terrorist attacks in London have prompted many to consider how the Australian Government should respond. Would banning the publication and dissemination of material that promotes suicide bombings and participation in extremist terrorist activity offend against the right of free speech? Why should such material be treated differently to other publications that dramatise violent conduct? Is there some analogy to racial vilification law?

In playing a constructive role in Australia political discourse, we need to be clear that promotion of terrorism is beyond the scope of free speech protections. Liberty and freedom in a democratic society are not absolute terms. In his famous Essay on Liberty the English philosopher John Stuart Mill recognised that liberty does not mean the licence of individuals to do just as they please, because such liberty would mean the absence of law and of order, and ultimately the destruction of liberty.

It is essential for the maintenance of liberty for the state to restrain conduct which is inimical to the maintenance of civil government or prejudicial to the continued existence of the community. That is why it is key to distinguish between the promotion of terrorism and other forms of behaviour that might be seen to romanticise or condone violence.


For example, we must also be careful to acknowledge the important distinction between books which romanticise violence generally, and books which incite terrorism. Anthony Burgess’ A Clockwork Orange (and the powerful movie by the same name produced by Stanley Kubrick) would qualify as media which arguably promoted violence; especially to those who did not understand the underlying messages of the author and filmmaker. Instead of people being freaked out by Alex's behaviour, they loved it, even egging him on. Copycat crimes based on those in the film sprang up around the United Kingdom, and Kubrick eventually decided to withdraw the film from the UK (only recently, after his death, has it been re-released). Yet there was no ban by the British Government.

Similarly, criticism of the behaviour of individual members of ethnic groups does not always amount to vilification or intimidation. The law therefore must carefully draw a line between comments which display a lack of respect for a racial or ethnic group and vilification of that group.

By way of example only, conduct which attacks Jews, such as holocaust denial, is accepted to be illegal. Vilification - hate speech - tears at the social fabric of society and intimidates the victims against exercising the right of free speech. It operates against free speech, and therefore is not protected by any right of free speech. Laws which protect the full participation in society of those who are time-honoured victims of racial hatred actually serve to enhance freedom of speech rather than to detract from it.

Fostering acts of terror is different in both character and degree of harm. It targets not just the right of free speech but the right to life. Western nations take security measures that prioritise the rights to life of their citizens, and like the United Kingdom, Australia has passed laws that prioritise the safety and security of Australians over the right to promote participation in terrorist activity.

There truly can be no exceptions or excuses for encouraging terrorism. It is different to most other forms of violence in the media. Encouraging terrorism is a form of sedition. It is an ultimate betrayal of trust or confidence in the Australian way of life.

This is not a new idea. Printing or publishing seditious works has been a crime in Australia since at least 1914. Moreover, in the last three years the Commonwealth Government has amended the Criminal Code Act 1995 to prohibit various forms of support for terrorism. It is now illegal to collect or make a document that is connected with preparation for the engagement of a terrorist act or to collect funds that will be used to facilitate or engage in a terrorist act. The law also prohibits two or more acts of association with a terrorist organisation, although there is an exception where the association is in a place being used for public religious worship and takes place in the course of practicing religion (Criminal Code Act 1995 Section 102.8(4)).


Laws which protect society against participation in terrorist acts are there to protect the entirety of our society without any distinction between a person’s race, ethnicity, religion or other social characteristics. The conduct is bad because it promotes terrorism against Australian society. It is not bad because it happens to be an Islamic bookshop which is selling the books.

We need to be clear in our support of governmental efforts to combat terrorism and the incitement of it while maintaining our cherished and open democracy.

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This article is based on a longer piece that appeared in the Australian Jewish News.

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About the Author

David Knoll is a Barrister and Immediate Past President, NSW Jewish Board of Deputies.

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