Treason, Terrorism and Imprecision: Locating s 80.2C of the Criminal Code (Cth) in the Taxonomy of Crimes against the State

Abstract

This comment critically analyses the justification and operation of the ‘advocating terrorism’ offence quietly introduced into s 80.2C of the Criminal Code (Cth) by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). It argues that the offence is a misguided intrusion on established conceptions of permissible speech, measured by reference to the standards and logic of criminalisation embedded in existing law. Via a close reading of the content, drafting and placement of the new provision, this comment further argues that the offence has been inaccurately characterised as an offence of subversion and disloyalty. It is an improper conflation of distinct criminal behaviours to which are attached distinct forms of opprobrium. That line of criticism has not featured in academic or popular commentary about the new provision, although the conflation between disloyalty and disobedience has become a troubling fixture in Australian national security legislation. A preferable approach to the criminalisation of advocacy is one grounded in concepts of material or imminent harm, and one divorced from implications of subversive or disloyal conduct.