Chapter 2Views on the bill
2.1This chapter outlines key issues raised in evidence to the committee related to the bill, including:
the scope of the bill and its definitions;
the anticipated impact of the proposed bill on targeted communities and the spread of hatred;
some of the unintended consequences that may arise from the passage of the bill;
the constitutionality of the proposed bill; and
alternative approaches that could be considered.
2.2This chapter also provides the committee's views and makes one recommendation in relation to the bill.
Scope and definitions
2.3Evidence received by the committee raised a number of questions and concerns related to the scope and enforceability of the bill, particularly with regard to the bill's lack of definition around what would constitute a Nazi symbol.
2.4The Sydney Jewish Museum (SJM), for example, contended that the proposed legislation could be broadened to include 'a wider range of prohibited forms'. The SJM noted that Section 86a of the German Criminal Code (Strafgezetzbuch, see Chapter 1) 'does not specifically identity [sic] symbols but rather outlaws symbols of unconstitutional organizations including "flags, insignia, uniforms, slogans, and forms of greeting"'.
2.5The SJM explained that language and gestures are used in addition to symbols to promote antisemitism and discrimination. It contended that neo-Nazi groups have adopted some phrases and gestures used by the Nazi regime that are not expressly prohibited in the proposed legislation but are included in the Strafgezetzbuch.
2.6Similarly, the Australian Jewish Democratic Society (AJDS) questioned whether 'neo-Nazi skinhead music and events, where there is a mix of symbols, signalling, and lyrics, by both bands and audiences' should also be prohibited.
2.7The SJM suggested that a broader definition of prohibited forms, perhaps one based on that outlined in the Strafgezetzbuch, 'would be ultimately more expansive in its prohibition for it goes beyond symbology to include spoken word and gesture'.
2.8The AJDS highlighted a potential difficulty associated with this approach, as new signals could be adopted to replace those that have been prohibited:
The Nazi Salute (Hitlergruß) is only one form of support for Nazism. There is also the Italian or Roman fascist salute, the "ok" signal, the Serbian 3-finger salute and others. Banning one hand signal will result in the use of another, or the invention of a new signal.
2.9Liberty Victoria supported that view, indicating:
…extremist actors will simply move to using icons and/or gestures that are not yet unlawful, or that are at the borderline of legality, and use the inevitable controversy that follows to garner attention and boost their profile.
2.10The Executive Council of Australian Jewry (ECAJ) posited that the bill needs to remain 'flexible enough to accommodate the constant evolution of new hate symbols by neo-Nazi groups'.
2.11Dr Andre Oboler agreed that the definition of Nazi symbol needs to be kept flexible and spoke against the adoption of a list of prohibited symbols:
We need to have a way of allowing the courts to determine what is or is not a Nazi or Neo-Nazi symbol or allowing police to make some sort of determination. The minute we lock it down to a fixed list, the Nazis will move faster than we can.
2.12In contrast, the Australian Muslim Advocacy Network (AMAN) supported the listing mechanism, prescribed by regulation, as proposed in Queensland's bill.
2.13The ECAJ, however, supported the open-ended definition of Nazi symbols that is provided in a bill currently before the Tasmanian Parliament as:
…it provides both a reasonable certainty of meaning, and the flexibility to allow the courts to determine the relevant facts in any given case, and to apply the offences to symbols associated with Nazi ideology and any new symbols that neo-Nazi groups might develop.
2.14The ECAJ also argued that the courts would be well-placed to determine whether a symbol or gesture was used in association with Nazism:
It's certainly not beyond the scope of any court in Australia to determine in any particular case whether a symbol has been displayed as a Nazi symbol or whether a gesture has been performed as a Nazi gesture.
2.15The AJDS raised concerns about the definitions of exemptions to the display of Nazi symbols outlined in subsection 81.1(3) of the proposed bill. It noted that the legislation allows for Nazi symbols to be displayed for artistic or journalistic purposes and suggested that 'neo-Nazis could make the claim that they too are engaged in satirical or legitimate political expression'.
2.16While it opposed the legislation, Liberty Victoria noted that if the bill is passed 'there must be specificity and precision in the Act itself as to what symbols are included…[as the potential penalty is too great] to leave to the discretion of the police and prosecutors'.
2.17Mr Luke Muffett told the committee that when drafting legislation—and noting that the bill is a private senator's bill—the Attorney-General's Department considered it important to ensure clarity around what would be made illegal and what would be exempted, and drew the committee's attention to the Guide
2.18to Framing Commonwealth Offences (the Guide). He also noted that the Guide discourages the use of the term, 'reasonable excuse'.
2.19The Australian Federal Police also emphasised the importance of clearly defining what is meant by 'symbols' within the legislation to help focus its investigations.
The anticipated impact of the proposed bill on religious communities and the spread of hatred
2.20Evidence presented to the committee highlighted the significance of certain symbols to particular religious communities and commented on the anticipated effectiveness of the bill in addressing the spread of hatred and extremism.
2.21Mr Rod Pitcher submitted that the regulation of Nazi symbols may introduce 'ethical, ethnic, and political problems'. He cautioned that a ban on the use of the swastika should take into account the views of 'people from many cultures who now live in Australia, and who consider the swastika a good, or benign, symbol rather than as most older Australians see it, representing evil'.
2.22The Hindu Council of Australia VIC Chapter drew a distinction between the swastika as a religious symbol and 'the distorted version of the symbol', known as the Hakenkreuz, which was appropriated by the Nazi Party during the Third Reich (see also Chapter 1). It also submitted that the 'association of the religious and ancient term swastika with Nazi[s] must and should always be avoided at all times'.
2.23AMAN suggested that referring to the Nazi Hakenkreuz as a swastika 'will distort and hijack public knowledge about the religious symbol, creating a hostile environment for Hindu, Buddhist, and Jain communities'.
2.24Dr Oboler, however, maintained that the term 'Nazi swastika' is not incorrect. He noted:
"Nazi swastika" as a phrase is used, including by people from those [religious] communities and scholars who have written about this topic. It's also the language that is used in all the educational material and all the research material. It is the accepted English translation of the Nazi material that was in German. I think that if we try to distance ourselves too far, we end up undermining ourselves, because people looking at the law won't understand what it means.
2.25Liberty Victoria suggested that using the term Hakenkreuz may have an educative role.
2.26Mr Harold Zwier voiced his concern about the effectiveness of the legislation in preventing the potential for violence and the spread of hate symbols:
…the legislation is essentially performative, symbolic and somewhat off target in dealing with current hatreds and the potential for violence which extends far beyond Holocaust symbolism…banning the swastika or salute does nothing to prevent the display of other hate symbols. Trying to legislate and enforce every variation is impossible.
2.27While suggesting that the purpose of the proposed bill is to reduce extremism, Mr Michael Stanton noted that the prohibition of Nazi symbols and gestures has not prevented 'the re-emergence of the far right' in Germany and that, for this reason, the bill 'is largely reactive and performative'.
2.28Dr Colin Rubenstein AM acknowledged that 'giving oxygen to extremists, Nazis and Neo-Nazis is undesirable', but stated that criminal penalties would have an impact on these groups, arguing that 'legislation is one of several strategies' to combat racism and antisemitism.
2.29Mr Robert O'Farrell from the Department of Home Affairs emphasised that in addition to the imposition of criminal penalties, the value of the proposed bill and similar legislation was also 'the signal it sends to the whole community about what are and are not acceptable behaviours'.
2.30AMAN argued that hate crime laws do not stop the spread of hatred, but acknowledged; '[p]romoting hate symbols has an important role in strengthening inclusiveness and psychological safety in the community'.
Unintended consequences
2.31Some submitters raised concerns about the possible unintended consequences that could arise from the bill. For example, AMAN explained that while the prohibition of hate symbols would strengthen 'inclusiveness and psychological safety', that outcome needs to be weighed against 'the potential counterproductive side effects'.
2.32Liberty Victoria contended that persons displaying extremist symbols in public could be of interest to the investigations of police and intelligence services. It argued that the prohibition of the public display of Nazi symbols could hinder 'police and intelligence services investigating more serious crimes that can arise from extremist ideology'.
2.33The Australian Security Intelligence Organisation (ASIO) did not share Liberty Victoria's view that the bill could hinder its investigations, however, and stated that the bill 'would assist law enforcement in early intervention'.
2.34Assistant Commissioner Krissy Barrett confirmed that the public display of Nazi symbols may enable law enforcement agencies to intervene early and prevent radicalisation.
2.35Dr Bill Swannie submitted that 'criminal proceedings are likely to make martyrs of Nazi extremists, and media coverage of such proceedings is likely to publicise their views and cause further harm to marginalised communities'.
2.36Dr Larry Stillman argued that members of neo-Nazi networks have utilised the media to amplify their ideologies and that the bill could unintentionally assist them in further glorifying their cause. He stated that neo-Nazis:
…don't care if they get arrested. They don't care if they get a fine. They don't care if they go to jail. They see it as a stunt to amplify their cause. The less media these guys get, the better. That is a much more important strategy. Much as we think that banning them is good, the law is a blunt instrument that avoids many of the sneaky ways in which these organisations are operating.
2.37The AJDS similarly claimed that neo-Nazis could employ a 'deliberate strategy…to play the system and engage in offensive activity precisely to get publicity and present themselves as martyrs to the cause of free speech'.
2.38Mr Peter Wertheim AM discussed the outcome of the Tobin case in which aneo-Nazi attempted to use the publicity around the trial to promote his views. Mr Wertheim stated the case:
…showed me that the fears that had been expressed about the law being misused for grandstanding and amplification and so on—whilst a concern with the media; I accept that—have not been borne out by experience.
2.39The Hon Walter Secord conceded that the proposed bill may not stop Nazism and hatred, but stated, 'it will punish and marginalise their views'.
Constitutionality
2.40The Attorney-General's Department and Department of Home Affairs submitted:
The Constitution lists certain subject-matters with respect to which the Parliament may make laws. The majority of legislation enacted by the Parliament is required to be supported by a head of power under section 51 or 52 of the Constitution. The High Court has also recognised some implied restrictions on legislative power derived from the fundamental system of government established by the Constitution.
2.41The Online Hate Prevention Institute believed that the bill would be consistent with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and that it could be enacted by the external affairs power available to the Commonwealth.
2.42The ECAJ similarly presumed:
…the Bill relies on the external affairs power in section 51(xxix) of the Constitution and Australia's obligations as a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Under paragraph (a) of article 4 of the ICERD, States parties are obliged to "declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred".
2.43In its view, the ECAJ believed that article 4(a) of the ICERD 'would be sufficient to ground the proscription of the public display of Nazi symbols, because Nazism is the archetype of an ideology "based on racial superiority or hatred"'.
2.44Mr Muffett outlined the approach the Attorney-General's Department takes in considering the appropriateness of using external affairs as a head of power:
How we would generally approach this in considering external affairs as a head of power is around looking at whether the proposed legislative measure is appropriately targeted to achieving the objectives set out in that treaty [ICERD]. So it's a bit of an exercise of considering "Is it targeted? Is it proportionate? Is it limited to the scope of that obligation?" So there are a range of considerations we would need to work through if seeking to rely on external affairs as a head of power.
Potential alternative approaches
2.45The Australia/Israel & Jewish Affairs Council (AIJAC) argued that the criminalisation of the public display of Nazi symbols and gestures alone would not decrease extremism and that a broader suite of measures, including education, would be necessary to achieve that outcome.
2.46Mr Stephen Blanks called for a greater focus on the drivers of far-right extremism. He argued that measures that focus on 'education, engagement, [and] diversion' will also be required to prevent the promotion of Nazi ideology.
2.47Liberty Victoria expressed its preference:
…for a preventative rather than reactionary response to far-right extremism that addresses the drivers as to why some people are drawn to extremism in the first place; one that focuses on improving social cohesion and trust in institutions, including trust in government and the media, rather than focussing on expanding censorship and surveillance.
2.48The Online Hate Prevention Institute proposed that the committee consider amending the bill so as to make it an offence for a person to publicly display a symbol in a manner that glorifies or promotes a Nazi or Neo-Nazi group, movement, or ideology. AIJAC and the ECAJ both cautioned that such an approach within the legislation may create an additional evidentiary burden of proof that would require a prosecutor to prove the motive for the display. In the view of both, 'this would set the evidentiary bar too high'.
2.49Separately, the Hon Walter Secord proposed, in accordance with similar legislation in New South Wales, that the bill be reviewed after two years of operation.
Penalties
2.50Some of the evidence presented to the committee discussed the merits and drawbacks with the imposition of both civil and criminal penalties in the bill.
2.51AMAN expressed its preference for penalties 'that avoid incarceration…[and indicated that] de-amplification and fines through the Online Safety Act is our preferred lever'.
2.52Ms Neha Madhok voiced Democracy in Colour's preference for civil rather than criminal penalties in the context of this bill. She suggested that placing people who had publicly displayed a prohibited symbol in prison could expose them 'to other radical elements, people with far more extremist views, and it may have those unintended consequences of actually pushing people further and further into radicalisation'.
2.53Professor Kevin Dunn noted that this kind of legislation is primarily designed to instruct 'society about what is considered civil and uncivil and what is considered criminal and not criminal'. He indicated a preference for non-custodial sentences, but noted that 'having custodial sentences does send a very strong message'.
2.54Dr Oboler saw merit in having criminal penalties for those who persistently display Nazi symbols but supported having civil penalties 'as an entry level penalty'.
2.55The Race Discrimination Commissioner, Mr Chin Tan, indicated that there are limits to the appropriateness of civil penalties. He suggested that the application of a civil penalty would require cooperative conciliation between the perpetrator and the individual targeted by the display of Nazi symbols. According to Commissioner Tan, there is:
…a limit where these civil measures will not provide the answers and where people are quite adamant about using this to in fact harm others, and the law, [in those instances] the criminal sanctions, ought to come into play.
Committee view
2.56The committee wholeheartedly supports the intent of this bill. The committee echoes the sentiments expressed in the bill's Explanatory Memorandum, that symbols and gestures associated with Nazism are abhorrent, are anathema to the Australian way of life, and have no place in our society.
2.57The committee is also convinced that the approach taken in the proposed bill is proportionate and appropriately balances the rights of Australians with the need to protect groups targeted by hate. The committee nevertheless recognises that legislation alone will not be sufficient to stem the growth of nationalist and racist violent extremism. To be effective, such legislation should be accompanied by a broader suite of measures, including education and awareness raising.
2.58The committee acknowledges the risk that any such legislation may provide a platform for hate groups and could create martyrs of those prosecuted under such laws. Yet, the committee believes that, on balance, well-designed legislative prohibitions will both curtail support for hate groups whilst also sending an important message of support to targeted groups and communities.
2.59However, the committee remains concerned by a number of the elements within the proposed bill.
2.60First, the committee is concerned that the offence does not prohibit specific symbols and acknowledges the difficulties that an open definition of Nazi symbols may present for law enforcement. The problem with this lack of clarity was highlighted by the Australian Christian Lobby, which warned that other symbols used by Nazis may overlap with Christian symbols that are used for legitimate religious purposes, such as some depictions of Celtic crosses and some variations of a Celtic wheel cross. Identifying specific symbols would provide much needed clarity to law enforcement agencies and provide assurances to communities of faith that their religious symbols are not captured by the offence.
2.61Second, the committee would welcome further consideration of the fault element contained in the bill. The committee notes that a person would commit an offence under the proposed bill only if they were to display a Nazi symbol in public whilst knowingthat the symbol is a Nazi symbol. Questions remain as to whether this test (of knowingly doing so)could reasonably be met to the satisfaction of a court. The committee therefore considers that further considerations of alternative approaches is warranted. These may include the approach taken within similar legislation in Victoria (in which the fault element is predicated on what a person ought reasonably to have known, see Chapter 1) or legislation under consideration in Queensland (in which the fault element relies on an act that could reasonably be expected to cause a member of the public to feel menaced, harassed, or offended).
2.62Third, the committee is concerned at the lack of clarity regarding the head or heads of power on which the proposed bill relies. In the committee's view, it is not clear that the bill is supported by any head of power other than in the very confined operation it would have under proposed s 81.1(6).
2.63Submitters noted that the bill may seek to rely on the external affairs power in section 51(xxix) of the Constitution and Australia's obligations as a party to the International Convention on the Elimination of All Forms of Racial Discrimination. However, as the Attorney-General's Department indicated, a law can only rely on the treaty implementation limb of the external affairs power if (among other things) it is appropriately tailored to the implementation of the relevant treaty obligation. It is not apparent to the committee that the bill has been drafted with that requirement in mind. As such, the committee is concerned that the bill would not be upheld in a constitutional challenge. An unconstitutional law with no legal effect would fail to achieve the laudable intent of the bill.
2.64In light of these concerns, the committee cannot endorse the bill in its current form. However, the committee understands that similar legislation is currently being considered by the government. The committee welcomes the government's commitment and anticipates that the above concerns will be considered during the drafting process.
2.65The committee recommends that the bill not be passed.
2.66The committee recommends that the government considers introducing its own bill as a matter of urgency, taking into consideration the issues raised above.
Senator Nita Green
Chair
Labor Senator for Queensland