2023

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

CRIMINAL CODE AMENDMENT (PROHIBITION OF NAZI SYMBOLS)

BILL 2023

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of Senator Cash)

 

Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023

 

OUTLINE

The Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 ( the Bill ) is a Bill for an Act to prohibit a person from knowingly, and without reasonable excuse, displaying a Nazi symbol.

 

A person may be found guilty of such an offence if they display a symbol that they know is a Nazi symbol.

 

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.

 

The measures introduced in the Bill have been developed following consideration of similar legislation that exists in New South Wales and Victoria.

 

The Bill includes several exceptions, to ensure that the legislation does not unintentionally criminalise actions that are unrelated to the promotion of Nazi ideology. First, the prohibition will not apply to anyone who is displaying a swastika in connection with Buddhism, Hinduism, or Jainism. Second, the prohibition will not apply if the display of a Nazi symbol is reasonable, in good faith, and for a legitimate scientific, educational, artistic, journalistic, or public interest purpose.

 

The prohibition is not intended or expected to apply to the extent, if any, that it would infringe a constitutional doctrine of implied freedom of political communication. The prohibition will also have effect if the display of a Nazi symbol is expressly confined to a display that occurs in the Commonwealth places and the seat of Government, land used for Defence purposes, and the Territories. The prohibition does not apply to extra-territorially.

 

Additionally, the prohibition will not exclude any state or territory law to the extent that state or territory law is capable of operating concurrently with the Division.

 

 

BACKGROUND 

Since the rise of the Nazi Party in Germany in the 20 ^th Century, Nazi symbols have been synonymous with antisemitic thoughts and actions, including the devastation of the Holocaust. That association remains to this day.

 

Australia is a tolerant and multicultural country. The International Covenant on Civil and Political Rights (ICCPR) and the Racial Discrimination Act 1975 both confirm that every Australian has the right to live free from discrimination based on their race and religion, among other factors.

 

Recent public 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. 

 

Notes on Clauses

Clause 1: Short title

1.         Clause 1 sets out how the Act is to be cited, that is, as the Criminal Code Amendment (Prohibition of Nazi Symbols) Act 2023 .

Clause 2: Commencement

2.          Clause 2 provides a table that makes clear the whole Act will commence on the day after the Act receives the Royal Assent.

Clause 3 - Schedules

3.          Provides that legislation set out in the schedule to the Act has effect according to its terms.

Schedule 1—Amendments

4.         Item 1 of Schedule 1 inserts a new Division 81 into Part 5.1 of Chapter 5 of the Criminal Code Act 1995 . Chapter 5 of the Criminal Code is concerned with the security of the Commonwealth, and Part 5.1 of the Criminal Code Act 1995 is concerned with treason and related offences.

Item 1 - Section 81.1

5.          Section 81.1 establishes an offence related to the public display of Nazi symbols. Subsection 81.1(1) makes clear that a person commits an offence if the person:

(a)    publicly displays a Nazi symbol; and

(b)    the person knows that the symbol is a Nazi symbol.

 

6.         The provision makes clear that the relevant fault element is knowledge, under section 5.3 of the Criminal Code Act 1995 .

 

7.         Public display is intended to capture any form of communication of symbols to the public or in a public place. It is not intended to capture the presence of Nazi memorabilia or symbols in a private dwelling, where the symbol is not on public display.

 

8.         The term ‘Nazi symbol’ is not a defined term in the Bill, and is instead given its ordinary meaning. 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 section 81.1, and would include, for example, symbols routinely identified in publications like the annual reports on Antisemitism in Australia published by the Executive Council of Australian Jewry. Examples of symbols included in the scope of term in the Bill include:

·          the Hakenkreuz - the Nazi swastika or hooked cross;

·          the Double Sig rune (SS lightning bolt) that were used by the SchutzStaffel (SS), who primarily perpetrated the mass killings of Jews;

·          the Totenkopf (Death’s head) used by the Nazi SS from 1934 to 1945;

·          the Sonnenrad (Black sun/wheel);

·          the Broken Sun Cross, or Sun Cross Swastika;

·          the unstylised Celtic Cross;

·          the Algiz rune;

·          the Tyr rune; and

·          the Othala/Odal rune.

 

9.         The penalty for an offence under section 81.1 of the Criminal Code Act 1995 is imprisonment for 12 months or 100 penalty units ($27,500 as at March 2023). These penalties are broadly consistent with penalties imposed under similar legislation in New South Wales.

 

10.       New subsection 81.1(2) makes clear that the public display of a Nazi symbol includes, but is not limited to, the giving of a Nazi salute. The Nazi salute is a symbol clearly associated with the Nazi ideology, and has no place in Australian public life.

 

11.       Subsection 81.1(3) sets out exceptions to the offence in subsection 81.1(1). The provision makes clear that subsection 81.1(1) does not apply in a number of circumstances.

 

12.       First, the offence will not apply if a person has a reasonable excuse. This broad exception covers circumstances where, for example, a Nazi symbol is displayed to the public in good faith.

 

Second, subsection 81.1(1) will not apply to a display is for a genuine scientific, educational or artistic purpose. This would include display of a Nazi symbol at, for example, a museum, or as part of a costume or set shown in a movie.

 

Third, subsection 81.1(1) will not apply to a display is part of a communication made for the purposes of, or in the course of, a person’s work in a professional capacity as a journalist. This carve-out is intended to ensure that journalism is not affected by the prohibition. For example, the work of a journalist covering the conduct of a Nazi demonstration outside a State Parliament would not be captured by the prohibition.

 

The requirement that a journalist is working in a professional capacity is intended to operate to exclude material that has been published by persons for the purpose of, for example, inciting violence or promoting terror, but which purports to be journalism.

 

Fourth, there is a general exclusion for displays that are for a purpose that is in the public interest. This general carve-out is intended to ensure that the scope of the prohibition in section 81(1) is not unduly wide.

 

13.       The defendant in any proceeding would bear the evidential burden of raising any of the matters in subsection 81(3), consistent with ordinary practice in criminal proceedings.

 

14.       Subsection 81.1(4) makes clear that religious symbols that are sometimes confused with Nazi symbols are not captured by the prohibition. In particular, the display of a swastika in connection with Buddhism, Hinduism or Jainism does not constitute the display of a Nazi symbol.

 

15.       Subsection 81.1(5) makes clear that section 81.1 does not apply to the extent (if any) that the provision would impermissibly burden the implied constitutional freedom of political communication. This provision makes clear that the measure has no effect to the extent it would otherwise be constitutionally impermissible on those bases.

 

16.       Subsection 81.1(6) sets out the additional operation of section 81.1. It makes clear that, in addition to its effect apart from the subsection, it would have effect where a reference to the public display of a Nazi symbol were confined to a display that occurs:

(a)    at a place referred to in paragraph 52(i) of the Constitution—such as the seat of Government or a place acquired by the Commonwealth for public purposes (such as an airport);

(b)    on land used by the Commonwealth for purposes related to the defence of the Commonwealth, such as a military base; and

(c)    in a Territory (such as the Northern Territory or the Australian Capital Territory).

17.       Section 81.2 sets out the geographic application of the Act. The provision makes clear that the Act applies only to acts done in Australia. The offence is concerned with the public display of Nazi symbols in Australia, and is not intended to apply to conduct outside Australia.

 

18.       Section 81.3 makes clear that the Act does not apply to the exclusion of State or Territory laws to the extent that such laws are capable of operating concurrently with new Division 81 of the Criminal Code Act 1995 . In particular, the Act is not intended to limit or exclude the operation of similar State and Territory laws which ban the display of the Nazi symbol.

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

The Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (the Bill) will prohibit a person from knowingly, in a public setting and without reasonable excuse, displaying a Nazi symbol.

 

The Bill makes clear that the public display of Nazi symbols is abhorrent to the Australian way of life and has no part in our political discourse.

 

The Bill will include exceptions for anyone displaying a swastika in connection with Buddhism, Hinduism, or Jainism. It will also include exceptions where:

·          a person has a reasonable excuse;

·          the display is for a legitimate scientific, educational, , or artistic purpose;

·          the display is in the course of, or in connection with, a person’s work in a professional capacity as a journalist; or

·          the display is for a purpose that is in the public interest.

 

Human rights implications

The measures in the Bill would engage the following human rights:

·          The rights of freedom of expression contained in article 19 of the International Covenant on Civil and Political Rights ( ICCPR ).

 

Freedom of expression

Article 19 of the ICCPR states that ‘everyone shall have the right to hold opinions without interference’ and that ‘everyone shall have the right to freedom of expression’.

 

Article 19 of the ICCPR protects freedom of expression in a range of media, including expression that occurs in the course of public protest, broadcasting, artistic works and commercial advertising. The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock. However, it is subject to limitations. Freedom of expression carries with it special responsibilities, and may be restricted on several grounds.

 

In particular, Article 19(3) provides that freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and must be proportionate to the need on which the limitation is predicated.

 

The display of Nazi symbols is closely associated with extremist groups that may pose a national security risk to Australia, and with protest action that presents a highly visible threat to public order. The public display of Nazi symbols is often associated with incitement to violence that can impede the ordinary, civil discourse that is the lifeblood of our democracy.

 

The Bill is a modest, proportionate measure intended to ensure that all Australians are able to participate freely in the free exchange of ideas, by promoting public order and reducing national security threat that comes with the glorification of a dangerous and hateful ideology. In particular, the measures in the Bill support the participation of Jewish Australians in public life—particularly those who suffered, or whose families and loved ones suffered, through the Holocaust that was a direct result of the Nazi ideology.

 

This Bill is a reasonable and proportionate measure, taking into account the requirements of Article 19 of the ICCPR.

 

Conclusion

This Bill is compatible with human rights because it advances the protection of human rights, and particularly the right to freedom of expression, characterised by engagement in civil discourse without compromising national security or public order.