Can Australian authorities take action against protesters who wave the Hezbollah flag? Should they?

The Australian federal police (AFP) is investigating after prohibited symbols of Hezbollah – a designated terrorist organisation – were displayed at the weekend.

The opposition leader, Peter Dutton, wants parliament urgently recalled to debate new anti-terror laws.

Related: Burke accuses Dutton of trying to ‘throw kerosene’ on public debate over Middle East

“I find it completely unacceptable that the government wouldn’t be arresting people already or cancelling visas of people who are glorifying Hezbollah and Hamas and others,” he told Brisbane radio 4BC.

The home affairs minister, Tony Burke, accused him of wanting “to raise the temperature”, and said the visas of anyone who incited discord should be revoked (but no one is sure if anyone involved is here on a visa anyway).

What’s going on, and what might happen next?

What happened?

The crisis in the Middle East has been escalating rapidly.

The ongoing rallies in support of Gaza have expanded to include support for Lebanon, where Israeli retaliations for Hezbollah attacks have killed more than 1,000 people and wounded 6,000 more in the past two weeks, according to Lebanon’s health ministry.

On the weekend, a small group joined a Melbourne rally waving Hezbollah flags and carrying pictures of the Hezbollah leader, Hassan Nasrallah, who was killed in an Israeli attack last week.

AAP described the group as “gatecrashing” the existing protest.

Victoria police have identified six possible criminal incidents, and referred the incidents involved to the AFP for investigation. NSW police are also investigating incidents from the weekend.

What is Hezbollah?

Hezbollah is an Islamist movement, founded by Iran, that is part of Lebanon’s political system. Hezbollah and Hamas, the militant group that rules Gaza, have in common their enmity with Israel, and their positions as proxy forces for Iran.

Australia designated Hezbollah as a terrorist organisation in 2021, meaning the government at the time listed the militant group under Australia’s criminal code. That listing, determined by the attorney general and reviewed by the parliamentary joint committee on intelligence and security, brings into play a range of offences including being a member of, recruiting for, or providing support to the organisation.

About one in three Lebanese in Lebanon trust Hezbollah, according to an Arab Barometer survey this year.

What laws are protesters with Hezbollah symbols accused of breaking?

The states and territories have a “patchwork” of hate symbol laws, says Keiran Hardy, a counter-terrorism law expert at Griffith University, but most of them are not relevant here.

While most states have introduced laws against hate symbols, they are all about Nazi symbolism and gestures. Only Queensland has broader vilification laws that could be used against a wider range of symbols.

As Hardy explains, most of these laws “aren’t relevant in this case” – so the focus is on “the federal offence of displaying a terrorist symbol”.

But, he adds, it is not as simple as just arresting someone for waving a symbol in public. There are additional criteria including “whether the person is inciting hatred against a group or advocating violence against a group or likely to insult, intimidate or humiliate (someone) on the basis of race, religion or ethnicity”.

Krissy Barrett, the AFP’s deputy commissioner for national security, told ABC Radio National on Tuesday that “there are a number of elements in the legislation that need to be met for a successful prosecution”.

She said a successful prosecution needs to prove a symbol is a terrorist organisation’s, and that a “reasonable person would consider that the conduct … advocates inciting others to use violence or use force, [or] could incite others to humiliate, intimidate based on race or religion”.

What’s driving the conversation now?

A lot of Sturm und Drang, accompanied by calls for cooler heads to prevail.

Dutton said on Monday that the “glorification of a terrorist leader … surely must be against the Australian law”. But as discussed, it’s not that easy.

To be clear: the government itself cannot arrest people and Australia would be a very different nation if it could. Visa cancellations are another thing, because much can be done under ministerial discretion.

Asked on ABC Radio National on Tuesday if any visas had been cancelled since the weekend, Burke said: “We don’t know whether people there are actually on visas, or people who end up being of concern to the authorities are on visas.

“I was simply asked within my portfolio whether [these were] actions that I would take,” he added.

“We do have a higher standard in Australia if you’re on a visa as to what’s expected. If you’re on a visa in anyone’s country, you’re there as a guest … inciting discord is a reason for me to refuse visas and a reason for me to cancel visas.”

Pro-Palestine rally organisers in Sydney on Tuesday meanwhile urged protesters to avoid bringing “any flags or symbols which support groups which have been proscribed as illegal under Australian law” to this week’s protests.

Do we need new laws?

Dutton said parliament should be recalled to debate new laws if current laws did not apply.

“I believe that there are provisions within the existing law. If there’s not, the prime minister should recall parliament and deal with whatever deficiency there is in the law,” he said.

He reportedly wrote to the AFP demanding urgent action and said it was up to the government to direct police.

Hardy, however, says this raises a “separation of powers issue”.

“The legislature makes the laws and it’s up to police to enforce them. It’s not appropriate for a member of parliament to tell police how to do their job,” he says.

“They made these laws and they need to see how it plays out, but that doesn’t mean interfering with or influencing prosecutorial decisions to charge someone.”

He warns that even the perception of influence could damage the community’s trust in institutions.

Any changes made to the law could not apply retrospectively, he says – adding that “the best laws are never going to be made on an urgent timescale”.