Chapter 1Introduction

1.1On 27 March 2023, the Senate referred the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (bill) to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 4May2023.[1]

1.2On 30 March 2023, the Senate granted the committee an extension of time to report to 18 May 2023.[2]

Conduct of the inquiry

1.3The committee advertised the inquiry on its website and invited organisations and individuals to submit by 7 April 2023.[3] The committee received and published 27 submissions, which are listed at Appendix 1.

1.4The committee held a public hearing in Canberra on 2 May 2023. A list of witnesses who appeared at the hearing is at Appendix 2.

Structure of the report

1.5This report comprises two chapters:

Chapter 1 provides a background to the current laws applicable to the display of Nazi symbols, details the purpose and key provisions of the bill, discusses the origin and significance of symbols associated with Nazism, and provides an overview of the consideration of this bill by other parliamentary committees; and

Chapter 2 examines the key issues raised by submitters and witnesses, and sets out the committee's views and recommendations in relation to the bill.

Purpose of the bill

1.6The bill would prohibit a person from knowingly, and without reasonable excuse, displaying a Nazi symbol.

1.7The bill's Explanatory Memorandum explains the impetus behind the bill, as follows:

The public display of Nazi symbols is abhorrent to the Australian way of life and has no part in our political discourse. All Australians are diminished by the sharing and glorification of an ideology which is characterised by genocide, mass murder and other forms of persecution. Australians are entitled to feel proud that, together with allies around the globe, we as a nation fought against the Nazi threat over the course of the Second World War. Prohibiting the display of Nazi symbols is a mechanism that aligns with our values and our heritage as Australians. Noting the national security risks connected with far-right extremist groups that are often associated with the display of Nazi symbols, and the related risks to public order, the Bill is a modest and proportionate measure that protects civil discourse in our country.[4]

1.8The Australian Security Intelligence Organisation (ASIO) explained that Nazi symbols play a significant role among nationalist and racist violent extremist groups, both by signalling ideology and in-group belonging, as well as provoking or intimidating ideological opponents.[5] ASIO further explained that symbols are:

…an effective propaganda tool because they are easy to remember and understand. They can transcend language, cultural, and ethnic divides; creating, distributing, and understanding them is not limited to a select few or one cultural or language group.[6]

1.9The Australian Human Rights Commission noted the 'ongoing prevalence and harm caused by racism in Australia'.[7] Several submitters also noted the spike in recent years of incidents involving the public display of symbols associated with Nazism by far-right political groups in Australia.[8]

Outline of the bill

1.10The bill comprises one schedule that sets out proposed amendments to the Criminal Code Act 1995 (Criminal Code).

1.11Proposed subsection 81.1(1) of the bill would prohibit the public display of a Nazi symbol if a person knows that the symbol is a Nazi symbol (see Chapter 2 for a discussion of the evidentiary burden related to this subsection). The bill's Explanatory Memorandum makes clear that the bill's intention is to prohibit the display of a Nazi symbol to the public or in a public place, but not to capture privately-displayed Nazi memorabilia.[9]

1.12The bill does not define what constitutes a 'Nazi symbol' and instead uses the term's ordinary meaning. The Explanatory Memorandum states that this is 'intended to ensure that the full range of symbols associated with Nazi ideology and the Nazi party are captured by the prohibition [in the bill]' (see Chapter 2 for a discussion of the merits and limitations of this approach).[10] Proposed subsection 81.1(2) does make clear, however, that giving the Nazi salute would be considered a Nazi symbol for the purposes of this bill. The Explanatory Memorandum also provides a list of symbols that would be considered 'in scope'.[11] The bill would provide that the display of a swastika in connection with Buddhism, Hinduism, or Jainism does not constitute the display of a Nazi symbol (see paragraphs 1.20 to 1.32 for a discussion of the origins and significance of the swastika).[12]

1.13Exemptions would apply for a 'reasonable excuse', or for genuine scientific, educational, or artistic purposes. A person would also not commit an offence under the proposed bill if they were to display a Nazi symbol in the course of their work (for example as a journalist) or if the display of the symbol was in the public interest.[13] The bill's Explanatory Memorandum notes that the defendant in any criminal proceeding would bear the evidentiary burden if they intended to rely on one or more of these exemptions.[14]

1.14The provisions of the bill would also not apply if they were to infringe any constitutional doctrine of implied freedom of political communication.[15]

1.15Proposed subsection 81.1(1) imposes a penalty of imprisonment for 12 months or 100 penalty units upon a person who has publicly displayed a symbol that they know is associated with Nazism.[16]

1.16The Explanatory Memorandum notes that the bill has been developed following consideration of similar legislation in New South Wales and Victoria (seeparagraphs 1.39 to 1.53 for an overview of similar legislation in other jurisdictions).[17]

Consideration by other parliamentary committees

1.17When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutinyof Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).

1.18The Scrutiny of Bills Committee noted that the bill may raise concerns under Senate Standing order 24 and would request further information from the bill proponent if it were to proceed to further stages of debate.[18]

1.19At the time of writing, the Human Rights Committee had not commented on the bill.

The origins of symbols associated with Nazism

1.20The most recognisable symbol associated with Nazism is alternately described as the swastika or the Hakenkreuz ('hooked cross')—an ancient symbol consisting of four bent limbs of equal length emanating from a central point to form a type of cross. However, as discussed further below, much of the evidence received by the committee distinguished between the swastika as a religious symbol and the Hakenkreuz as a symbol of hate.

1.21The origin of the word 'swastika' has been traced to the ancient Sanskrit word svastika, meaning well-being, fortune, and good luck.[19] The swastika holds 'immense significance' for adherents to most dharmic religions (specifically, Hinduism, Jainism, and Buddhism) as a symbol of good luck, auspiciousness, and protection from evil.[20] The Hindu Council of Australia VIC Chapter emphasised the importance of the swastika as 'an ancient and auspicious symbol of purity, love, peace and good fortune…[that] has had immense significance to [Dharmic] faiths for millennia'.[21]

1.22In Hinduism, the four 'limbs' of the swastika may have a number of meanings, including representing the four Vedas (a body of religious texts), the stages of life, the goals of life, the seasons, and the points of a compass.[22] In Buddhism, the four limbs may represent the four Noble Truths taught by Buddha.[23] In Jainism, the swastika is the primary holy symbol, with each limb representing the four destinies of living beings.[24]

1.23Dharmic religions also use a range of symbols that derive from, or resemble, the swastika.[25]

1.24Representations of the swastika are used in the Falun Gong or Falun Dafa religious movement,[26] as well as at the centre of a six-pointed star that is used as the official symbol of the Raelian religious movement.[27]

1.25The symbol can also be found in ancient western cultures, with the Buddhist Council of Western Australia submitting that the oldest example of its use is believed to be a 12000-year-old etching on mammoth ivory in modern day Ukraine.[28] The Buddhist Council of Western Australia told the committee that a swastika-shaped symbol also exists within Chinese language, predating Buddhism, with a similar meaning to that used in Sanskrit.[29]

1.26Whilst the swastika and Hakenkreuz may at times appear similar—or may even be visually indistinguishable from one another—one Hindu commentator, Nikunj Trivedi, argued that the origin of the symbol used by the architects of Nazism was in fact the Hakenkreuz, as found in medieval Christian iconography and not the swastika, as used by close to 1.5 billion people.[30]

1.27Trivedi claimed that Adolf Hitler (the former Nazi Party leader and dictator of Germany from 1933 to 1945 under Germany's Third Reich) drew on Christian iconography when adopting the Hakenkreuz as a symbol of Nazism. Trivedi traced the origins of the Hakenkreuz to a representation of Jesus's victory over death, carved onto Byzantine churches and ancient churches in Ethiopia, Mexico, and Macedonia.[31]

1.28A resolution adopted at the Second Hindu-Jewish Leadership Summit in 2008 also sought to differentiate the two symbols, stating:

Swastika is an ancient and greatly auspicious symbol of the Hindu tradition. It is inscribed on Hindu temples, ritual alters, entrances, and even account books. A distorted version of this sacred symbol was misappropriated by the Third Reich in Germany, and abused as an emblem under which heinous crimes were perpetrated against humanity, particularly the Jewish people. The participants recognize that this symbol is, and has been sacred to Hindus for millennia, long before its misappropriation.[32]

1.29The Hindu Council of Australia and the Srimad Rajchandra Mission Dharampur Australia also argued that, whilst the Hakenkreuz 'resembles' the swastika, it had been misappropriated by the Nazi regime.[33]

1.30One historical account traces European interest in the swastika to examples of the symbol's use found on artefacts excavated from the ancient city of Troy in the 1870s by archaeologist Heinrich Schliemann. According to this account, the symbol subsequently became linked to an emerging narrative of Aryan racial identity.[34]

1.31Other symbols were used by the Nazis and the preceding German nationalist movement. Neo-Nazi, antisemitic, and white supremacist groups have subsequently adopted some of these symbols, whilst also taking on new symbols and iconography[35]—some of which may reference Nazi symbols, but can differ sufficiently to avoid their prohibition in certain jurisdictions (see Chapter 2 for a discussion of the definition of Nazi symbols and the enforceability of the prohibition of their use).[36]

1.32The Australian Christian Lobby 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.[37]

The significance of symbols associated with Nazism

1.33With regard to the significance of symbols associated with Nazis, the bill's Explanatory Memorandum notes:

Since the rise of the Nazi Party in Germany in the 20th Century, Nazi symbols have been synonymous with antisemetic thoughts and actions, including the devastation of the Holocaust. That association remains to this day…Recent displays of Nazi symbols, including on the steps of a State Parliament, reinforces the importance of introducing Commonwealth legislation to prohibit such behaviour and make clear it has no part in our public life.[38]

1.34Given the history of the Nazi Party and the 'systematic, industrial-scale genocide' perpetrated by the Third Reich in Germany from the early 1930s, iconography and symbols associated with Nazism have particular significance for many Jews.[39] The Executive Council of Australian Jewry submitted:

…the public display of Nazi symbols and gestures goes well beyond the realm of ideas and freedom of expression. Such displays are, and are usually intended to be, acts of menace and intimidation. They convey hatred for individuals and groups and for the values of personal freedom, justice and democracy of our entire society…The public display of Nazi symbols and gestures with impunity is therefore an objective threat to our way of life and to the freedom, safety and security of all Australians, especially those who are members of groups and communities who have historically been the targets of Nazi policies of genocide, mass murder and other forms of persecution.[40]

1.35The Sydney Jewish Museum's Dr Breann Fallon similarly told the committee, 'these symbols are not mere representations; they carry with them weight and they carry with them action'.[41]

1.36The Australian Human Rights Commission argued that there is a public interest in stopping the display of symbols associated with Nazism, arguing that their display 'may do significant damage to personal security, social belonging, inclusion, participation, and cohesion' for individuals and communities—particularly Jewish communities.[42]

1.37ASIO contended that symbols serve to promote cohesion among some nationalist and racist extremist groups, and provoke their opponents:

Nationalist and Racist Violent Extremists [NRVEs] adopt specific imagery and terminology to signal their ideology, build in-group belonging between adherents, and provoke or intimidate ideological opponents…NRVEs adopt specific imagery and terminology to signal their ideology, build in-group belonging between adherents, and provoke or intimidate ideological opponents.[43]

1.38ASIO noted that the impact of symbols is magnified by their ability to 'transcend language, cultural and ethnic divides'.[44]

Jurisdictional comparisons

1.39Bills that seek to prohibit the public display of Nazi symbols have been passed or are under consideration in a number of state and territory jurisdictions, and have been passed in other jurisdictions around the world,[45] as discussed below.

Victoria

1.40On 28 June 2022, the Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 (VIC) (Victorian Act) received Royal Assent, commencing on 29December2022. The Victorian Act created a new summary offence for intentionally displaying a Nazi symbol in public if the person knows (or ought reasonably to know) that the symbols are associated with Nazi ideology.

1.41Exceptions to the offence within the Victorian Act include the display of symbols associated with Nazism for genuine cultural, religious, educational, scientific, or artistic purposes. Under the Victorian Act, it would also not be an offence to display Nazi symbols in opposition to Nazism or a related ideology, or for making or publishing a fair and accurate report of an event or matter of public interest. Tattoos are also exempt under the Victorian Act.[46]

1.42Offences under the Victorian Act would carry a fine of approximately $1800 for individuals that fail to comply with a direction to remove a Nazi symbol from public view and up to 12 months in prison, or both.[47]

1.43On 20 March 2023, the Attorney-General of Victoria announced that she would advance legislation to strengthen the state's anti-vilification laws to outlaw the Nazi salute.[48]

New South Wales

1.44On 11 August 2022, the New South Wales (NSW) Crimes Amendment (Prohibitionon Display of Nazi Symbols) Act 2022 (NSW Act) was assented to. The NSW Act made it an offence to knowingly display a Nazi symbol in public without reasonable excuse.

1.45Exceptions to the offence within the NSW Act include the public display of a Nazi symbol where there is a reasonable excuse, including for academic, artistic, educational purposes, or for another purpose in the public interest.[49] The display of a swastika in connection with Buddhism, Hinduism, or Jainism does not constitute an offence under the NSW Act.[50]

1.46Offences under the NSW Act carry a maximum penalty of $11000 or 12months' imprisonment for an individual.[51] A corporation displaying a Nazi symbol could face a fine of $55000.[52]

1.47The NSW Act provides for a review to be conducted within 3 years and 6 months of its operation.[53]

Other states and territories

1.48At the time of writing, similar bills were before the parliaments of the Australian Capital Territory,[54] South Australia,[55] Tasmania,[56] and Queensland.[57]

1.49The government of Western Australia has indicated that it intends to propose legislation to prohibit the display and possession of Nazi symbols in certain circumstances.[58]

International comparisons

1.50In Germany, the use of symbols associated with unconstitutional or terrorist organisation is prohibited.[59] According to the law, swastikas and SS sig runes (or Siegrune, symbolising victory) are defined as 'symbols of anti-constitutional organisations'.[60] Penalties range from imprisonment for a term less than three years or a fine,[61] and apply abroad under certain circumstances.[62] The prohibition extends to the production and trade in content.[63] Exemptions apply for the purposes of countering anti-constitutional activities, public education, research, the documentation of historic or current events, and/or similar purposes.[64]

1.51In France, it is considered a crime under the Penal Code to wear in public symbols, uniforms, emblems, or anything reminiscent of symbols, uniforms, or emblems of those found guilty of one or more crimes against humanity.[65] Penalties consist of a fine, and exemptions apply for the purposes of film or historical recreations.[66]

1.52In Austria, any insignia, uniforms, or parts of a uniform originating from a banned organisation must not be displayed, redistributed, or worn in public.[67] The Nazi Party is listed as a banned organisation and certain symbols associated with it, including the Nazi salute, are prohibited.[68] Penalties of up to €4000 ($6500) or imprisonment for up to one month apply.[69] Exemptions apply if the symbol is used in a performance or historical context, or if the there is a clear indication that the purpose of the display is against any ideas of the banned organisation.[70]

1.53Switzerland bans the use of Nazi symbols and gestures when used for propaganda purposes or for promoting violence. However, the public display of Nazi symbols or the making of Nazi gestures is not always a crime in Switzerland, and may be considered to be expressing one's own convictions or an exercise of freedom of expression.[71] Efforts are underway to introduce new legislation that would more comprehensively ban the public display of Nazi symbols and gestures.[72]

References

1.54References in this report to Committee Hansard are to the proof (uncorrected) transcript. Page numbers may vary between the proof and the official transcript.

Acknowledgements

1.55The committee thanks those individuals and organisations who made submissions and gave evidence at the public hearing.

Footnotes

[1]Journals of the Senate, No. 42, 27 March 2023, p. 1204.

[2]Journals of the Senate, No. 45, 30 March 2023, p. 1293.

[3]Senate Standing Committees on Legal and Constitutional Affairs, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs (accessed 28 March 2023).

[4]Explanatory Memorandum, p. 2.

[5]Australian Security Intelligence Organisation, Submission 11, p. 2.

[6]Australian Security Intelligence Organisation, Submission 11, p. 3.

[7]Australian Human Rights Commission, Submission 12, p. 3.

[8]See for example, Australian Muslim Advocacy Network, Submission 10, p. 3; Executive Council of Australian Jewry Inc., Submission 15, pp. 2–7; and Australian Human Rights Commission, Submission 12,pp.3–4.

[9]Explanatory Memorandum, p. 3.

[10]Explanatory Memorandum, p. 3. Senator the Hon. Michaelia Cash stated that Nazi symbols are 'symbol[s] or action[s] commonly associated with the Nazi party. It includes the Nazi swastika, the Nazi salute, Nazi uniforms, and other types of symbols identified in the Executive Council of Australian Jewry's antisemitism reports', Senator the Hon. Michaelia Cash, Senate Hansard, 23March 2023, p. 29.

[11]Explanatory Memorandum, p. 4. These include the Hakenkreuz (see paragraph 1.20), the Double Sig rune; the Totenkopf, the Sonnenrad, the Broken Sun Cross or Sun Cross Swastika, the unstylised Celtic Cross, the Algiz rune, the Tyr rune, and the Othala or Odal rune.

[12]Proposed subsection 81.4 of the bill.

[13]Proposed subsection 81.1(3) of the bill.

[14]Explanatory Memorandum, p. 3.

[15]Proposed subsection 81.1(5) of the bill.

[16]Proposed subsection 81.1(1) of the bill.

[17]Explanatory Memorandum, p. 2.

[18]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p. 13.

[19]"swastika, n." Oxford English Dictionary Online, Oxford University Press, March 2023 (accessed 4April2023).

[20]Hindu Council of Australia and the Srimad Rajchandra Mission Dharampur Australia, Submission 17, p. 1.

[21]Hindu Council of Australia VIC Chapter, Submission 16, p. 1.

[22]Mat McDermott, '6 Things You Need to Know About the Symbolism of the Swastika', Hindu Council of Australia, 10 September 2021.

[23]Hindu American Foundation, American Jewish Committee, and Interfaith Conference of Metropolitan Washington, The Swastika: Use and Abuse of a Sacred Symbol, 2021, p. 2.

[24]Hindu American Foundation, American Jewish Committee, and Interfaith Conference of Metropolitan Washington, The Swastika: Use and Abuse of a Sacred Symbol, 2021, p. 3.

[25]See for example, Hindu American Foundation, American Jewish Committee, and Interfaith Conference of Metropolitan Washington, The Swastika: Use and Abuse of a Sacred Symbol, 2021, pp.2–3.

[26]Wikipedia, 'Falun Gong Logo' (accessed 24 April 2023).

[27]Raelianews, 'The Official Raelian Symbol gets its swastika back', 18 January 2007.

[28]Buddhist Council of Western Australia Inc., Submission 3, p. 1.

[29]Buddhist Council of Western Australia Inc., Submission 3, p. 1.

[30]See generally, Nikunj Trivedi, 'Should the Swastika be banned?', Medium, 12 November 2020.

[31]Nikunj Trivedi, 'Should the Swastika be banned?', Medium, 12 November 2020. For a discussion of the role of Hitler and others in the use of antisemitic symbols, see Dr Briann Fallon, Manager of Student Learning and Research, Sydney Jewish Museum, Committee Hansard, 2 May 2023, p. 4.

[32]World Council of Religious Leaders, Declaration of the Second Hindu-Jewish Leadership Summit, p. 2.

[33]Hindu Council of Australia and the Srimad Rajchandra Mission Dharampur Australia, Submission 17, p. 2. See also, Hindu Council of Australia VIC Chapter, Submission 16, p. 1.

[34]The term 'Aryan' was originally used to delineate the Indo-European language group and was not a racial classification. It became associated with a particular concept of the ‘master race’ in parts of Western Europe during the latter part of the 19th and early 20th centuries. See, Lorraine Boissoneault, 'The man who brought the Swastika to Germany, and how the Nazis stole it', Smithsonian Magazine, 6April2017.

[35]See for example, 'Anti-Defamation League, Hate on Display™ Hate Symbols Database', (filtered for 'Neo-Nazi Symbols', accessed 24 April 2023).

[36]Sydney Jewish Museum, Submission 6, p. 2.

[37]Australian Christian Lobby, Submission 18, p. 4.

[38]Explanatory Memorandum, p. 2.

[39]Executive Council of Australian Jewry Inc., Submission 15, p. 6.

[40]See for example, Executive Council of Australian Jewry Inc., Submission 15, p. 8.

[41]Dr Breann Fallon, Manager of Student Learning and Research, Sydney Jewish Museum, Committee Hansard, 2 May 2023, p. 4.

[42]Australian Human Rights Commission, Submission 12, p. 4.

[43]Australian Security Intelligence Organisation, Submission 11, pp. 2–3.

[44]Australian Security Intelligence Organisation, Submission 11, p. 3.

[45]The Buddhist Council of Western Australia Inc. submitted that the Hakenkreuz is currently banned in over thirty countries. See Submission 3, p. 1.

[46]Victoria State Government, Fact sheet: Nazi symbol prohibition, pp. 1–2.

[47]Victoria State Government, Fact sheet: Nazi symbol prohibition, p. 2.

[48]Ms Jaclyn Symes, Attorney-General of Victoria, Legislative Council Hansard (Victoria), 21 March 2023, p.827–828.

[49]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW), section 93ZA(3).

[50]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW), section 93ZA(2).

[51]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW), para. 93ZA(1)(a).

[52]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW), para. 93ZA(1)(b).

[53]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW), section 584.

[54]Crimes Legislation Amendment Bill 2022 (ACT).

[55]Summary Offences (Nazi Symbol Prohibition) Amendment Bill 2022 (SA).

[56]Police Offences Amendment (Nazi Symbol Prohibition) Bill 2023 (TAS).

[57]Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Bill 2023 (QLD).

[58]The Hon John Quigley, Attorney General, 'Government to ban display and possession of Nazi symbols', Media Release, 18 January 2023.

[59]German Criminal Code (Strafgesetzbuch – StGB), Section 86a.

[60]Mara Bierbach, 'The selective penalty for swastikas in Germany', Deutsche Welle, 14 August 2018.

[61]German Criminal Code (Strafgesetzbuch – StGB), Section 86.

[62]That is, if the content is available in Germany, the offender is a German citizen, or their livelihood is based in Germany. See German Criminal Code (Strafgesetzbuch – StGB), Section 5 3b.

[63]German Criminal Code (Strafgesetzbuch – StGB), Sections 86 and 11(2).

[64]German Criminal Code (Strafgesetzbuch – StGB), Section 86.

[65]French Penal Code (Code penal), Article R645-1 (FRA).

[66]French Penal Code (Code penal), Article R645-1 (FRA).

[67]Insignia Act 1960 (AUT).

[68]Francois Murphy, 'Austria plans to tighten law banning use of Nazi symbols', Reuters,15 November 2022.

[69]Insignia Act 1960 (AUT).

[70]Insignia Act 1960 (AUT).

[71]Clare O'Dea, 'Hitler salute ruled not always illegal', Swissinfo.ch, 21 May 2014; and Dr Andre Oboler, Chief Executive Officer, Online Hate Prevention Institute, Committee Hansard, 2May2023, p. 22.

[72]Dr Andre Oboler, Chief Executive Officer, Online Hate Prevention Institute, Committee Hansard, 2May2023, p. 22; and Susanne Wenger, 'Growing calls to ban Nazi symbols and salutes', SwissReview, 1 July 2022.