Labor’s ban of the Islamic State flag could spell trouble for Australian Muslims - ABC Religion & Ethics (2024)

The federal government this week introduced into the Parliament new legislation to outlaw the public display of “prohibited symbols”. The legislation says that there are three kinds of prohibited symbols: two Nazi symbols, and the flag of the so-called “Islamic State” terrorist group.

The legislation raises serious questions about the desirability of using the criminal law to suppress speech and expression. The legislation takes 16 pages, replete with definitions and exceptions, to achieve a supposedly straightforward objective. That alone begs the question whether legislating against speech and expression in this way is even feasible.

One surprising aspect of the legislation is its inclusion of the Islamic State flag in the list of prohibited symbols. Attorney-General Mark Dreyfus issued a media release last week to foreshadow the bill, presenting it as a measure directed at Nazi symbols while saying nothing about the Islamic State. The rival Coalition bill, already before the Parliament, is limited to Nazi symbols.

On the whole, the Coalition’s alternative is shorter and better targeted than that of the government. For example, the Coalition bill targets simply the “public display” of a Nazi symbol, with clear exceptions. The government’s bill forces courts to consider subjective questions such as whether the display of a prohibited symbol is “likely to offend”.

The symbolism of the Islamic State flag

In seeking to ban the Islamic State flag, the government has unwittingly landed on a good example of the dangers of outlawing symbols based on religion, culture or history. The Islamic State terrorist group deliberately designed its flag to co-opt long-existing Islamic symbology. The script on the flag reads: “There is no God but Allah; Muhammad is Allah’s Messenger”. This statement is the fundamental tenet of Islam. Muslims recite it on a daily basis and place it on any number of flags and symbols within homes and in public places. It is no more controversial a set of words than the Lord’s Prayer.

The Islamic State chose black as the colour of its flag because the Abbasid caliphate preferred black for its standards. For many Muslims, especially Sunnis, the Abbasid caliphate was the high point of Islamic history. The Islamic State falsely represents itself as the modern manifestation of that caliphate and uses the colour black to bolster that representation.

Similarly, the calligraphy on the flag is believed to bear similarities to writings used in the early Qur’anic manuscripts and a letter claimed to have been written by the Prophet Muhammad. Historians contest the validity of these claims, but that is not the point: the Islamic State uses the calligraphy as another way of purporting to represent religious authenticity.

The Islamic State’s strategy of using historical symbols to pursue their propaganda objectives is nothing new. The Nazis similarly adopted an ancient symbol — the Hakenkreuz, or swastika — as their own. Groups with appalling and ahistorical doctrinal beliefs adopt historical symbols to co-opt their connotations and to derive legitimacy from them.

The legislation and the likelihood of confusion

This is where the government’s legislation trespasses into gravely dangerous territory. The legislation does not stop at the Islamic State flag itself. It also seeks to ban the display of “something that so nearly resembles” the Islamic State flag “that it is likely to be confused with, or mistaken for” the flag. What this means is that the legislation risks outlawing the very Islamic symbols that the Islamic State has co-opted. That co-optation has been to the dismay of the overwhelming majority of Muslims in Australia and beyond.

It is one thing to ban anything “likely to be confused with” a Nazi symbol. The problem with extending the legislation beyond Nazi symbols to the Islamic State flag is that the flag, unlike the Nazi symbol, contains text in a foreign script that sets out the core tenet of one of the world’s largest religions. Yet many Australians would understandably confuse a dark flag containing that script, or indeed any Arabic script, with the Islamic State flag. The legislation risks outlawing entirely innocent professions of religious belief.

Prosecutors and courts might iron out these problems should anyone ever be charged with an offence under the legislation. But the government’s bill, unlike that of the Coalition, also gives a police officer the extraordinary power to “give a direction to cause a prohibited symbol to cease to be displayed in a public place” where the officer thinks that the symbol is “likely to offend”. Would a police officer, with no training in Islamic studies, understand the difference between the Islamic State flag and any other black flag bearing Arabic script?

The legislation thus opens the door for over-zealous police to monitor Islamic gatherings and sites of worship and tear down flags and other symbols that have nothing to do with the Islamic state. At the very least, law-abiding Muslims will be right to fear this to avoid any public display of their own religious symbols.

The result is that the legislation, in a perverse way, gives credence to the Islamic State’s efforts to appropriate Islamic symbols. It could result in black flags, and flags with doctrinal script, being treated as outlawed flags of the Islamic State. The better approach would be for the government to recognise and understand the illegitimacy of the Islamic State’s claim to Islamic symbols and leave as much space as possible for Muslims to reclaim them.

Raihan Ismail is a Senior Lecturer in the Coral Bell School of Asia Pacific Affairs at Australian National University. She is the author of Rethinking Salafism: The Transnational Networks of Salafi ‘Ulama in Egypt, Kuwait, and Saudi Arabia and Saudi Clerics and Shī‘a Islam.