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2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES COUNTER-TERRORISM LEGISLATION AMENDMENT (PROHIBITED HATE SYMBOLS AND OTHER MEASURES) BILL 2023 SUPPLEMENTARY EXPLANATORY MEMORANDUM Amendments to be Moved on Behalf of the Government (Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)Index] [Search] [Download] [Bill] [Help]AMENDMENTS TO THE COUNTER-TERRORISM LEGISLATION AMENDMENT (PROHIBITED HATE SYMBOLS AND OTHER MEASURES) BILL 2023 (Government) GENERAL OUTLINE 1. The purpose of these amendments to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 ('the Bill') is to implement recommendations made in the Parliamentary Joint Committee on Intelligence and Security's Advisory Report on the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (PJCIS Advisory Report) by: • removing the Islamic State flag from the definition of prohibited symbol in section 80.2E of the Bill (Recommendation 1), • creating a new offence to criminalise the public display and trade of symbols that a terrorist organisation, or members of a terrorist organisation, use to identify the organisation (Recommendation 1), • extending the journalistic purpose exemptions in paragraph 80.2H(9)(b), subsection 80.2J(5), paragraph 80.2M(3)(b) and paragraph 474.45D(1)(e) of the Bill to include editors, producers and others involved in the news and current affairs reporting process (Recommendations 3 and 4), • amending the Bill to clarify that any report made by the PJCIS in respect of terrorist organisation listings under the Criminal Code be solely presented to the Parliament (Recommendation 5), and • creating a new offence to criminalise the performance of an act that is the Nazi salute in a public place (a recommendation in Additional Comments by the Coalition). New offence to criminalise public display and trade of symbols associated with a terrorist organisation 2. The Bill would establish new offences in the Criminal Code Act 1995 (Criminal Code) for publicly displaying, and trading in goods bearing, symbols that a terrorist organisation, or members of a terrorist organisation, use to identify the organisation. Violent extremists and terrorist organisations use symbols to signal their ideology to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish group belonging. These symbols are also used to propagate violent extremist views and hateful ideologies, as well as vilify and incite violence against targeted groups, threatening social cohesion and the safety of the Australian community. 3. The offences would also give further effect to Australia's international human rights obligations. It represents positive action to eradicate the incitement of racial discrimination (Article 4 of the International Convention on Elimination of All Forms of Racial 2
Discrimination (ICERD)), outlaw the vilification of persons on national, racial or religious grounds (Article 20 of the International Covenant on Civil and Political Rights (ICCPR)), and prohibit discrimination (Article 26 of the ICCPR). 4. The offences would demonstrate that there is no tolerance for terrorist organisation symbols in the community. The offences would also support law enforcement efforts to address radicalisation and vilification. Expanding the public display offence to include performance of the Nazi salute 5. There has been a dramatic and recent rise in anti-Semitism and the use of the Nazi salute as a means to advocate hate, incite violence and vilify members of the Australian community. This gesture is also used to recruit supporters to spread messages of hatred and violence. These offences are intended to protect individuals from harm and the wider community from distress caused by the performance of the widely recognised Nazi gesture. 6. Criminalising the performance of the Nazi salute in a public place in the same circumstances as the public display of Nazi symbols offence would strengthen protections against hatred and prejudice. FINANCIAL IMPACT 7. The amendments to this Bill would have no financial impact on Government expenditure and revenue. 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 1. The amendments to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 ('the Bill') are 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. 2. The Bill would ensure Australia's counter-terrorism laws continue to be appropriate in light of the evolving threat environment, particularly the threat of violent extremism. 3. The Bill as amended would amend the Criminal Code Act 1995 (Criminal Code) to: • establish new criminal offences for the public display of prohibited symbols or performance of the Nazi salute in a public place • establish a new offence of trading goods that bear a prohibited symbol • establish new criminal offences for using a carriage service for violent extremist material and for possessing or controlling violent extremist material obtained or accessed using a carriage service • expand the advocating terrorism offence in section 80.2C of the Criminal Code to include instructing on the doing of a terrorist act or the commission of a terrorism offence; and the praising of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence • increase the maximum penalty for the advocating terrorism offence from 5 to 7 years imprisonment, and • remove the sunsetting requirement for instruments which list terrorist organisations and bolster safeguards around the listing process. Overview of the Amendments 4. The purpose of the amendments to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 ('the Bill') is to implement the majority of the recommendations of the Parliamentary Joint Committee on Intelligence and Security's (PJCIS) Advisory Report on Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (PJCIS Advisory Report), and in so doing, improve the fitness-for-purpose of the Bill and enhance its impacts through the addition of new measures. 5. The amendments to the Bill would: 4
• remove the Islamic State flag from the definition of prohibited symbol in section 80.2E of the Bill (Recommendation 1) • create new offences for the public display and trade of symbols that a terrorist organisation, or members of a terrorist organisation, use to identify the organisation (Recommendation 1) • extend the journalistic purpose exemption in subsection 80.2J(5) to ensure that news reports containing prohibited symbols made by not only professional journalists, but also other professionals involved in the news and current affairs process, can be lawfully traded (Recommendation 3) • expand the journalistic purpose exemptions in paragraph 80.2H(9)(b), paragraph 80.2M(3)(b), and paragraph 474.45D(1)(e) to include editors, producers and others involved in the news and current affairs reporting process (Recommendations 3 and 4) • amend the Bill to clarify that any report made by the PJCIS in respect of terrorist organisation listings under the Criminal Code must be solely presented to the Parliament (Recommendation 5), and • create a new offence to criminalise making a gesture that is the Nazi salute in a public place (a recommendation in Additional Comments by the Coalition). Human rights implications 6. The amendments to the Bill engage the following human rights: • right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) • right to security of the person in Article 9 of the ICCPR • right to the presumption of innocence in Article 14(2) of the ICCPR • right to freedom of thought, conscience and religion in Article 18 of the ICCPR • right to freedom of expression in Article 19 of the ICCPR • right to protection from exploitation, violence and abuse in Article 20 of the ICCPR • right to be equal before the law and without discrimination to the equal protection of the law in Article 26 of the ICCPR • right for minorities to enjoy culture in Article 27 of the ICCPR • right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) • right to take part in cultural life in Article 15 of the ICESCR, and 5
• condemnation of propaganda and organisations that attempt to justify discrimination or are based on racial supremacism in Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Right to life and security of the person in Articles 6 and 9 of the ICCPR 7. The right to life in Article 6 of the ICCPR requires States to take preventative measures to protect individuals from unwarranted actions by private persons, such as acts of terrorism. The right to security of the person in Article 9 of the ICCPR places a positive obligation on States to provide reasonable and appropriate measures to protect a person's physical security. This includes where the Government knows or ought to know the existence of a real or imminent risk to the physical security of an identified individual or group of individuals from the criminal acts of another party. 8. The amendments promote the right to life and right to security by establishing new criminal offences to deter and prevent conduct, including the public display and trade of terrorist organisation symbols and the performance of the Nazi salute in a public place. Intelligence and operational agencies advise this conduct may radicalise individuals and incite them to commit offences that would risk a person's life or physical security. 9. The Bill also enhances the capabilities of law enforcement agencies to manage the risk posed by those seeking to radicalise others and mobilise vulnerable Australians to violence, and prevent the commission of such offences. New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 10. Articles 6 and 9 of the ICCPR are engaged by the new offences as they would criminalise conduct which seeks to promote and disseminate ideologies and regimes that have led to mass violence. Symbols that represent terrorist organisation are widely recognised as symbols of hate, violence and intolerance. These symbols have been used to recruit and radicalise individuals into terrorism and violent extremism. 11. Accordingly, by criminalising the public display of, and trading in goods that depict or contain, a prohibited terrorist organisation symbol, the new offences promote the rights protected by Articles 6 and 9. New offence - makes a gesture that is the Nazi salute in a public place 12. Articles 6 and 9 of the ICCPR are engaged by the new offence prohibiting making a gesture that is the Nazi salute in a public place, as conduct would be criminalised which seeks to promote and disseminate an ideology and regime that has led to genocide and mass violence. The Nazi salute is widely recognised as a gesture of hate, violence and intolerance. 13. Accordingly, by criminalising making a gesture that is the Nazi salute in a public place, the new offence further promotes the rights protected by Articles 6 and 9. 6
Right to the presumption of innocence in Article 14(2) of the ICCPR 14. Article 14(2) of the ICCPR provides that those charged with criminal offences have the right to be presumed innocent until proven guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proven beyond reasonable doubt. New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 15. The provisions establishing the offences for publicly displaying prohibited terrorist organisation symbols, and trading in goods that depict or contain a prohibited terrorist organisation symbol, positively engage Article 14(2) by requiring the prosecution to bear the burden of proof in relation to all elements of the offences. 16. New section 80.2HA would require the prosecution to prove that the person caused a thing to be displayed in a public place (paragraph 80.2HA(1)(a)); that the person knows the thing is a prohibited terrorist organisation symbol (paragraph 80.2HA(1)(b)); that either subsection 80.2HA(3), (4) or (7) applies (paragraph 80.2HA(1)(c)); and that subsection 80.2HA(9) does not apply (paragraph 80.2HA(1)(d)). 17. New section 80.2JA would require the prosecution to prove that the person traded in goods (paragraph 80.2JA(1)(a)); that the goods depict or contain a symbol (paragraph 80.2JA(1)(b)); that the person knows that the symbol is a prohibited terrorist organisation symbol (paragraph 80.2JA(1)(c)); that the jurisdictional requirements are met (paragraph 80.2JA(1)(d)); and that subsections 80.2JA(4) and (5) do not apply (paragraph 80.2JA(1)(e)). 18. New paragraphs 80.2HA(1)(d) and 80.2JA(1)(e) would provide that the offences would not apply in circumstances where a reasonable person would consider that the public display of, or trading in goods that depict or contain, a symbol that is a prohibited terrorist organisation symbol is done for one of the specified legitimate purposes. 19. As these offences would not contain a 'reverse burden' requiring the defendant to disprove the elements of the offences, they would not limit the right to the presumption of innocence protected by Article 14(2). 20. The Bill also contains offence-specific defences (see new subsection 80.2HA(10) and subsections 80.2JA(6), (7) and (8)), and the defendant would bear the evidential burden in relation to these defences. In accordance with paragraph 4.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, or it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate. 7
New offence - makes a gesture that is the Nazi salute in a public place 21. The express prohibition of making a gesture that is the Nazi salute in a public place positively engages Article 14(2) by requiring the prosecution to bear the burden of proof in relation to all of the elements of the offence. 22. The expanded offence would require the prosecution to prove that the person made a gesture in a public place (paragraph 80.2H(1)(a)); that the gesture is the Nazi salute (paragraph 80.2H(1)(b)); that either subsection 80.2H(3), (4) or (7) applies (paragraph 80.2H(1)(c)); and that subsection 80.2H(9) does not apply (paragraph 80.2H(1)(d)). 23. Paragraph 80.2H(1)(d) would provide that the offence would not apply in circumstances where a reasonable person would consider that the making of the Nazi salute in a public place is done for one of the specified legitimate purposes. 24. As this offence would not contain a 'reverse burden' requiring the defendant to disprove the elements of the offence, it would not infringe the right to the presumption of innocence. 25. The Bill also contains offence-specific defences (see subsection 80.2H(10)), and the defendant would bear the evidential burden in relation to these defences. In accordance with paragraph 4.3 of the Guide, this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate. Right to freedom of thought, conscience and religion in Article 18 of the ICCPR 26. The right to freedom of thought, conscience and religion under Article 18 of the ICCPR includes the right to adopt a religion or belief, and freedom either individually or with others and in public or private, to manifest religion or belief, including to worship, observe, practice and teach that religion in public or private. This right may be limited where such limitations are prescribed by law, and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 27. These new offences would promote Article 18 of the ICCPR by supporting faith communities to be able to practice their religions without fear of harm or vilification. 28. Prohibited terrorist organisation symbols represent dangerous ideologies that may be framed around extremist and offensive interpretations of religious doctrines and have been used to justify the commission of terrorist acts and other atrocities. Such ideologies often promote persecution of other faith communities. 29. In criminalising the public display and trade of prohibited terrorist organisation symbols, the offences would protect the rights afforded by Article 18 by preventing these 8
symbols from being disseminated in circumstances that would infringe upon the rights of Australians to worship, observe, practice and teach religion free from harassment, vilification and risks to personal safety. 30. The combined effect of new paragraphs 80.2HA(1)(d) and 80.2HA(9)(a) would be that, in order to establish the offence of publicly displaying a prohibited terrorist organisation symbol, the prosecution must prove that a reasonable person would consider that the public display was not for a religious purpose, and must prove that the display was not in the public interest. 31. The combined effect of new paragraph 80.2JA(1)(e) and new subsection 80.2JA(4) would be that, in order to establish the offence of trading goods that depict or contain a prohibited terrorist organisation symbol, the prosecution must prove that a reasonable person would not consider that the goods are intended to serve a religious purpose, and must prove that the trading is not contrary to the public interest. 32. These requirements make clear that the use of a symbol for a religious purpose would not be captured by the offences. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance. Accordingly, these measures promote the rights in Article 18 of the ICCPR. New offence - makes a gesture that is the Nazi salute in a public place 33. This new offence would promote Article 18 of the ICCPR by supporting faith communities to be able to practice their religions without fear of harm or vilification. 34. The Nazi salute represents hate, violence and intolerance towards communities, including religious groups, within Australia. In criminalising the making of the Nazi salute in a public place, the new offence would promote the rights afforded by Article 18 by preventing the Nazi salute from being performed in circumstances that would infringe upon the rights of Australians to worship, observe, practice and teach religion free from harassment, vilification and risks to personal safety. Right to freedom of expression in Article 19 of the ICCPR; Right to enjoy and benefit from culture in Article 27 of the ICCPR; Right to take part in cultural life in Article 15 of the ICESCR 35. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to limitation for specified purposes, including the respect for the rights or reputations of others where such limitation is provided by law and is reasonable, necessary and proportionate to a legitimate objective. The requirement of necessity implies that any restriction must be proportionate in severity and intensity to the purpose sought to be achieved. 9
36. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practice their own religion and use their own language. 37. Article 15 of the ICESCR protects the right of all persons to take part in cultural life and enjoy the benefits of scientific process and its applications. Article 15(1)(c) protects the moral and material interests of the author of scientific, literary or artistic productions. New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 38. These new offences would limit the right to freedom of expression by limiting a person's ability to communicate or impart certain information and ideas publicly through prohibited terrorist organisation symbols. This limitation is appropriate because these symbols represent racist, violent and hateful ideologies which cause significant harm to members of targeted groups in the Australian community, and are used as tools of vilification and radicalisation. Criminalising the public display of prohibited terrorist organisation symbols is therefore necessary to protect the rights of members of the Australian community not to be intimidated or harassed and to prevent the incitement of others - who are susceptible to radicalisation - to hatred, discrimination and violence. 39. The offences would not apply in circumstances where a prohibited terrorist organisation symbol is displayed or traded for a legitimate purpose that is not contrary to the public interest. This would include circumstances, for example, where a reasonable person would consider that the display or trade was done for a legitimate religious, academic, educational, artistic, literary or scientific purpose. This would ensure that the limitations on the right to freedom of expression are reasonable and proportionate. 40. The offences promote the rights of communities in Australia to engage in, and celebrate, their cultures without fear that hateful symbols will be used to disrupt the benefits and enjoyment they derive from cultural practices. The specific requirement for the prosecution to establish that a reasonable person would consider that the public display or trade was not done for a religious purpose in the public interest, also promotes Article 27 of the ICCPR and Article 15 of the ICESCR by ensuring that the use of sacred symbols in connection with religious culture, are not captured by the offences. New offence - makes a gesture that is the Nazi salute in a public place 41. The amendments to proposed subsection 80.2H, which would make it an offence for a person to make a gesture that is the Nazi salute in a public place, would limit the right to freedom of expression by limiting a person's ability to communicate or impart certain information and ideas publicly through the public performance of the Nazi salute. This limitation is appropriate because the Nazi salute represents a racist, violent and hateful ideology which causes significant harm to members of targeted groups in the Australian community, and is used as a tool of vilification and radicalisation. Criminalising the making of the Nazi salute in public is therefore necessary to protect the rights of members of the Australian community not to be intimidated or harassed and to prevent the incitement of others - who are susceptible to radicalisation - to hatred, discrimination and violence. Extension of journalistic purpose exemptions and defences - inclusion of editors, producers and others involved in the news and current affairs reporting process 10
42. The amendments which extend the journalistic purpose exemptions in paragraph 80.2H(9)(b), paragraph 80.2M(3)(b) and paragraph 474.45D(1)(e) to include editors, producers and others involved in the news and current affairs reporting process promote the right to freedom of expression in Article 19 of the ICCPR by ensuring that all those involved in the making of news or current affairs reports are able to continue informing the public about violent extremists, terrorist organisations and the risks they pose to the community. The extended exemptions recognise the critical role that the dissemination of news plays in our democratic society. 43. The amendment to subsection 80.2J(5) would ensure that news reports containing prohibited symbols, made not only by professional journalists, but also by other professionals involved in the news and current affairs process, can be lawfully traded. This promotes the right to freedom of expression in Article 19 of the ICCPR by ensuring that the offence in section 80.2J does not interfere with the trading of bona fide, professional news reports regardless of whether those reports were made by a professional journalist, or another relevant professional. This recognises the critical role that the dissemination of news plays in our democratic society. Protection against exploitation, violence and abuse in Article 20 of the ICCPR; Right to equality before the law in Article 26 of the ICCPR; Condemnation of propaganda and organisations that attempt to justify discrimination or are based on racial supremacism in Article 4 of the ICERD. 44. Article 20 of the ICCPR requires States Parties to outlaw any propaganda for war, as well as advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. At the time of ratification Australia entered a reservation to Article 20, stating that the Commonwealth and the States had legislated with respect to the subject matter of Article 20, in matters of practical concern in the interest of public order, and that it therefore wished to reserve the right not to introduce further legislation on these matters. The proposed legislation would further support compliance with Article 20 of the ICCPR by prohibiting in law particular forms of advocacy of national, racial or religious hatred. The Human Rights Committee has affirmed (and Australia has agreed) that the prohibitions required by Article 20 of the ICCPR are compatible with the right of freedom of expression, enshrined in Article 19 of the ICCPR. 45. The right to equality before the law in Article 26 of the ICCPR provides that the law should prohibit any discrimination, and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 46. Article 4 of the ICERD requires States to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, racial discrimination. Article 4(a) provides for the criminalisation of all dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups. Australia's reservation to Article 4(a) was made on the basis that it was not in a position to specifically treat as offences all the matters covered by the article at the time of ratification. These measures in the Bill promote the intent of the ICERD, as set out in the preamble, to eliminate all forms of racial discrimination and incitement to discrimination, and elucidated in Article 4. 11
New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 47. The new offences would promote the rights in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by preventing members of the community from experiencing discrimination, hatred, violence and racism through the public display or trade of symbols that are used to identify terrorist organisations. 48. The offence in new section 80.2HA positively engages Articles 20 and 26 of the ICCPR, and Article 4 of the ICERD by providing that, for the offence to be made out, one of subsections 80.2HA(3), (4) or (7) must apply. • Subsection 80.2HA(3) would apply if a reasonable person considers the public display involves the dissemination of ideas based on racial superiority or racial hatred; or could incite another person or a group of persons to offend, insult or humiliate a person or members of a group of persons because of race. This subsection directly promotes Article 4 of the ICERD by establishing an element of the offence based on protecting the rights articulated in this Article. • Subsection 80.2HA(4) would apply if a reasonable person considers the public display involves advocacy that is advocacy of hatred of a group of persons distinguished by race, religion or nationality or a member of the targeted group and constitutes incitement of another person or groups of persons to offend, insult, humiliate, intimidate or use force or violence against the group or a member of the targeted group. This subsection directly promotes Article 20 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in this Article. • Subsection 80.2HA(7) would apply if the public display is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. This subsection directly promotes Article 26 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in the Article. While the ICCPR does not specifically refer to sexual orientation, the United Nations Human Rights Committee (UNHRC) has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.1 The UNHRC has also placed emphasis on the need to protect transgender communities from violence, torture and harassment.2 Therefore it is intended that paragraph 80.2HA(7)(b) would also protect persons distinguished by sexual orientation or gender identity. 1 For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92. 2 For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24 November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Colombia, 4 August 2010, UN Doc CCPR/C/CO/6. 12
49. The Bill would further promote the rights articulated in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by empowering law enforcement to disrupt the use of prohibited terrorist organisation symbols to perpetuate extremist ideologies. The Bill would empower law enforcement agencies to issue a direction for a person to remove a prohibited terrorist organisation symbol from public display, and establish an offence for failing to comply with such a direction. New offence - makes a gesture that is the Nazi salute in a public place 50. Expanding the offence in section 80.2H to cover the making of the Nazi salute in public would promote the rights in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by preventing members of the community from experiencing discrimination, hatred, violence and racism through exposure to a person performing this gesture, which inherently represents a discriminatory and hateful ideology, in public. 51. The measures positively engage Articles 20 and 26 of the ICCPR, and Article 4 of the ICERD by providing that, for the offence to be made out, one of subsections 80.2H(3), (4) or (7) must apply. • Subsection 80.2H(3) would apply if a reasonable person considers that the making of the Nazi salute in a public place involves the dissemination of ideas based on racial superiority or racial hatred; or could incite another person or a group of persons to offend, insult or humiliate a person or members of a group of persons because of race. This subsection directly promotes Article 4 of the ICERD by establishing an element of the offence based on protecting the rights articulated in this Article. • Subsection 80.2H(4) would apply if a reasonable person considers that the making of the Nazi salute in a public place involves advocacy that is advocacy of hatred of a group of persons distinguished by race, religion or nationality or a member of the targeted group and constitutes incitement of another person or groups of persons to offend, insult, humiliate, intimidate or use force or violence against the group or a member of the targeted group. This subsection directly promotes Article 20 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in this Article. • Subsection 80.2H(7) would apply if the making of the Nazi salute in a public place is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. This subsection directly promotes Article 26 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in the Article. While the ICCPR does not specifically refer to sexual orientation, the UNHRC has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.3 The UNHRC has also placed emphasis on the need to protect 3 For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92. 13
transgender communities from violence, torture and harassment.4 Therefore it is intended that paragraph 80.2H(7)(b) would also protect persons distinguished by sexual orientation or gender identity. Right to education in Article 13 of the ICESCR 52. Article 13 of the ICESCR recognises the right of everyone to education. It recognises the importance of education in promoting understanding, tolerance and friendship among all racial, ethnic or religious groups. New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol 53. These measures engage the right to education by requiring the prosecution to prove that a reasonable person would consider that the public display of a prohibited terrorist organisation symbol was not done for an educational or academic purpose in the public interest, and that the trading of goods bearing such a symbol was not done in circumstances in which a reasonable person would consider that goods traded are intended to serve an educational or academic purpose and the trading is not contrary to the public interest. 54. These requirements acknowledge that prohibited terrorist organisation symbols can be associated with significant societal and historical events, the study of which is important for social advancement. It is important, for example, that certain symbology can be displayed in museums or in textbooks so traumatic histories are not forgotten or repeated. Therefore, the right to education is promoted. New offence - makes a gesture that is the Nazi salute in a public place 55. These measures support the right to education by requiring the prosecution to prove that a reasonable person would consider that making of the Nazi salute in a public place was not done for an educational or academic purpose in the public interest. 56. This requirement acknowledges that the Nazi salute is associated with significant societal and historical events, the study of which is important for social advancement. It is important, for example, that the gesture could be made publicly for the legitimate purpose of educating students about World War II and Holocaust histories, so they are not forgotten or repeated. Conclusion 57. The Bill is compatible with human rights because it promotes the protection of a number of human rights and to the extent that it limits other rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate aim. 4 For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24 November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Colombia, 4 August 2010, UN Doc CCPR/C/CO/6. 14
NOTES ON AMENDMENTS Item 1: Clause 2, page 2 (table item 5) 1. Item 1 would omit the table item, and substitute: 5. Schedule 4 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they do not commence at all. 6. Schedule 5 The day after this Act receives the Royal Assent. 2. Item 1 would amend the day on which Schedule 4 of the Bill would come into force. 3. Commencing Schedule 4 by Proclamation will allow sufficient time for the Commonwealth to consult the states and territories on the amendments that item 34 (explained below) would make to Part 5.3 of the Criminal Code. If no Proclamation is made for the commencement of the Schedule within the period of 6 months beginning on the day this Act received the Royal Assent, the Schedule would not commence at all. Item 2: Schedule 1, heading, page 3 (line 1) 4. Item 2 would amend the heading of Schedule 1 so that it reads 'Schedule 1 - Prohibited symbols and Nazi salute'. 5. The inclusion of Nazi salute in the heading of Schedule 1 would signal that this Schedule contains new measures regarding the making of a gesture that is a Nazi salute (see new subsection 80.2H as amended by item 11 below). Item 3: Schedule 1, item 4, page 3 (line 13) 6. Item 3 would amend the heading of Division 80 by inserting 'and Nazi salute' after the word 'symbols'. 7. The inclusion of Nazi salute in the heading of Division 80 would signal that this Division contains new measures regarding the making of a gesture that is a Nazi salute (see new subsection 80.2H as amended by item 11 below). Item 4: Schedule 1, item 5, page 3 (line 17) 8. Item 4 would amend the title of new Subdivision CA of Division 80 by inserting 'and giving Nazi salute' after the word 'symbols'. 9. The inclusion of 'and giving Nazi salute' in the title of Subdivision CA would signal that this subdivision contains new measures regarding the making of a gesture that is the Nazi salute (see new subsection 80.2H as amended by item 11 below). 15
Item 5: Schedule 1, item 5, page 3 (lines 18 to 25) 10. Item 5 would omit and substitute section 80.2E to establish an amended definition of 'prohibited symbol', a new definition of 'prohibited Nazi symbol' and a new definition of 'prohibited terrorist organisation symbol'. 11. New subsection 80.2E(1) would provide that a prohibited symbol is: • a prohibited Nazi symbol (paragraph 80.2E(1)(a)), or • a prohibited terrorist organisation symbol (paragraph 80.2E(1)(b)). 12. A prohibited Nazi symbol and a prohibited terrorist organisation symbol are defined in new subsections 80.2E(2) and 80.2E(3) respectively. 13. New subsection 80.2E(2) would provide that a prohibited Nazi symbol is: • the Nazi hakenkreuz (paragraph 80.2E(2)(a)), or • the Nazi double-sig rune (paragraph 80.2E(2)(b)), or • something that so nearly resembles a Nazi hakenkreuz or the Nazi double-sig rune that it is likely to be confused with, or mistaken for, that thing (paragraph 80.2E(2)(c)). Nazi hakenkreuz 14. The Nazi hakenkreuz has been listed as a prohibited symbol in recognition of its continued use by violent extremist groups to harm members of the Australian community, and by those seeking to radicalise others and exploit opportunities to mobilise impressionable Australians to violence. 15. Paragraph 80.2E(a) would refer to the symbol as the Nazi hakenkreuz and not the Swastika to acknowledge the immense significance of the sacred Swastika as an ancient and auspicious symbol of purity, love, peace and good fortune in Buddhist, Hindu, Jain and other religions. These religions used the Swastika as a symbol of their faith for hundreds of years before it was misappropriated by the Third Reich, and the choice in language is deliberate to ensure the use of the symbol in the context of these religions is protected. The symbol continues to be embraced by members of these religions and can be found in places of worship, architecture, books, and in public and private spaces. 16. The Nazi hakenkreuz was adopted by the Third Reich, and became the primary symbol of the Nazi party who committed heinous crimes against humanity. The Nazi hakenkreuz is symbolic of Nazi ideology which promoted the persecution and systematic murder of millions of Jews, people living with disability, people of colour, LGBTIQA+5 people and other groups. The Nazi hakenkreuz is representative of ideas that are fundamentally incompatible with Australia's multicultural, democratic and inclusive society. 5 An inclusive acronym for lesbian, gay, bisexual, transgender, intersex, queer, asexual and other sexually or gender diverse people: Australian Government Australian Institute of Family Studies, LGBTIQA+ glossary of common terms. The '+' represents minority gender identities and sexualities not explicitly included in the substantive acronym: University of Technology Sydney, LGBTIQA+ terminology. 16
Nazi double-sig rune 17. The Nazi double-sig rune is a stylised depiction of two lightning-bolt-like symbols with flat ends positioned side-by-side. The Nazi double-sig rune is derived from the 'Schutzstaffel', a Nazi paramilitary organisation that was responsible for atrocities leading up to and during World War II. 18. While Nazi symbols have been continuously used by right-wing groups since World War II, there has been a resurgence in the prevalence and use of these symbols. The Nazi double-sig rune has been co-opted by white supremacists and neo-Nazis to offend, harass and vilify members of the Australian community, as well as to recruit and radicalise people to follow and adhere to abhorrent Nazi ideologies. Things that are likely to be confused with, or mistaken for, a prohibited Nazi symbol 19. New paragraph 80.2E(c) would have the effect that any symbol that so nearly resembles the Nazi hakenkreuz or the Nazi double-sig rune, that it is likely to be confused with, or mistaken for one of these symbols, is taken to be a prohibited Nazi symbol. This could include any figure, drawing, symbol, pattern or design substantially similar to the Nazi hakenkreuz or the Nazi double-sig rune and capable of being reasonably recognised as derived from, or a modified version of, one of those symbols. For example, an image that is substantially similar to the Nazi hakenkreuz but with the lines skewed at slightly different angles is likely to be mistaken for a Nazi hakenkreuz. 20. Paragraph 80.2E(c) is intended to recognise that there may be some variations in the ways in which the Nazi hakenkreuz or the Nazi double-sig rune are depicted. The legislation is not intended to be so prescriptive in defining these symbols as to exclude these variations from being captured by the provisions, where they would be recognised by the public as being the Nazi hakenkreuz or the Nazi double-sig rune, and engender public harm accordingly. This includes circumstances in which an individual could seek to avoid criminal liability under new Subdivision CA by slightly altering a Nazi hakenkreuz or Nazi double-sig rune before engaging in otherwise prohibited conduct. Prohibited terrorist organisation symbol 21. New subsection 80.2E(3) would provide that a prohibited terrorist organisation symbol is: • a symbol that a terrorist organisation (within the meaning of Division 102 of the Criminal Code) uses, or members of a terrorist organisation use, to identify the organisation (paragraph 80.2E(3)(a)), or • something that so nearly resembles a symbol that a terrorist organisation uses, or members of a terrorist organisation use, to identify the organisation, that it is likely to be confused with, or mistaken for, that symbol (paragraph 80.2E(3)(b)). 22. Paragraph 80.2E(3)(a)) provides that for the purpose of the definition of prohibited terrorist organisation symbol, 'terrorist organisation' has the meaning given to that term in Division 102 of the Criminal Code. This includes listed terrorist organisations and organisations which are directly or indirectly engaged in, preparing, planning, assisting in or 17
fostering the doing of a terrorist act. This definition ensures that only symbols of organisations that are engaged in serious criminal conduct would be captured by the offences. 23. It is intended that the term 'symbol' be interpreted as a visual representation, for example, an image, emblem or icon. 24. Paragraph 80.2E(3)(a)) is intended to capture symbols that a terrorist organisation, or its members, use to identify the organisation. It is intended to capture symbols that are inextricably linked with a terrorist organisation and are harmful because of their association with a terrorist organisation and the violent, hateful and discriminatory ideologies and activities that the organisation represents, espouses and engages in. The symbol may be used to identify a terrorist organisation by the organisation itself or by its members, in a range of media, contexts and formats including but not limited to promotional or recruitment material, telecommunication exchanges between members, public statements or propaganda. 25. The legislation does not specify particular terrorist organisation symbols, or particular terrorist organisations, for the purpose of the definition in subsection 80.2E(3). This is to ensure that the measures can respond to Australia's complex, challenging and changing threat environment by targeting terrorist organisation symbols, and the organisations they represent, as they arise and change over time. Safeguarding against terrorist organisations adopting new symbols in an attempt to avoid criminality is a key objective, as is ensuring that the symbols used by any new terrorist organisation that emerges in the future will be covered by these measures. 26. Paragraph 80.2E(3)(b) is intended to recognise that there may be some variations in the ways in which prohibited terrorist organisation symbols are depicted. The legislation is not intended to be so prescriptive in defining these symbols as to exclude variations from being captured by the provisions, where they would be recognised by the public as being prohibited terrorist organisation symbols, and engender public harm accordingly. This could include any figure, drawing, symbol, pattern or design substantially similar to a prohibited terrorist organisation symbol and capable of being reasonably recognised as a modified version of one of those symbols. This includes circumstances in which an individual could seek to avoid criminal liability under new Subdivision CA by slightly altering a prohibited terrorist organisation symbol before engaging in otherwise prohibited conduct. 27. Subsection 80.2E(3), together with the amendments in items 14, 19-29 and 31-32, would implement Recommendation 1 of the PJCIS Advisory Report. Item 6: Schedule 1, item 5, page 4 (after line 22) 28. This item would insert new section 80.2FA into new Subdivision CA. New section 80.2FA would define 'makes a gesture in a public place' for the purpose of this new subdivision. 29. New section 80.2FA would provide that a person makes a gesture in a public place if: • the person makes a gesture (paragraph 80.2FA(a)), and • the gesture is capable of being seen by a member of the public who is in a public place (whether or not the gesture is actually so seen by a member of the public) (paragraph 80.2FA(b)). 18
30. The phrase 'makes a gesture' is intended to take its ordinary meaning. It includes a movement of a part of the body to express an idea or meaning. 31. 'Public place' includes any place to which the public, or a section of the public, have access as of right or by invitation, whether express or implied, and whether or not a charge is made for admission to the place. This definition would be included in the Criminal Code dictionary (see item 7 of the Bill, as originally introduced). 32. The term 'capable of being seen', as used in paragraph 80.2FA(b), is not intended to be interpreted by reference to the physical capacity of any particular individual to see the gesture, or the intention of the individual making the gesture. It is an objective concept that conveys that there is a possibility of the gesture being seen by any person at any time. Items 7: Schedule 1, item 5, page 5 (line 3) 33. Item 7 would omit 'section 80.2J' and substitute 'sections 80.2J and 80.2JA' in subsection 80.2G(2). This would clarify that preparing goods for supply includes packaging the goods or separating the goods into discrete units both for the purpose of the new offence for trading in goods depicting or containing a prohibited Nazi symbol (section 80.2J), and also for the purpose of the new offence for trading in goods depicting or containing a prohibited terrorist organisation symbol (section 80.2JA). Item 8: Schedule 1, item 5, page 5 (line 6) 34. Item 8 would omit 'section 80.2J' and substitute 'sections 80.2J and 80.2JA' in subsection 80.2G(3). This would clarify that both the new offence for trading in goods depicting or containing a prohibited Nazi symbol (section 80.2J) and the new offence for trading in goods depicting or containing a prohibited terrorist organisation symbol (section 80.2JA) apply in relation to leasing out or renting out (or agreeing to lease out or rent out) in the same way as they apply in relation to selling. Item 9: Schedule 1, item 5, page 5 (line 9) 35. Item 9 would omit 'section 80.2J' and substitute 'sections 80.2J and 80.2JA' in subsection 80.2G(4). This would clarify that the definitions in this subsection of 'conceal', 'possession', 'sell', 'supply' and 'transport', apply both for the purpose of the new offence for trading in goods depicting or containing a prohibited Nazi symbol (section 80.2J), and also for the purpose of the new offence for trading in goods depicting or containing a prohibited terrorist organisation symbol (section 80.2JA). Item 10: Schedule 1, item 5, page 5 (line 27) 36. Item 10 would omit 'symbols' and insert 'Nazi symbols or giving Nazi salute' after the words 'Public display of prohibited symbols' in the title of section 80.2H. 37. This amendment would signpost that the offence in section 80.2H covers both the public display of prohibited Nazi symbols and the giving of the Nazi salute. Item 11: Schedule 1, item 5, page 5 (lines 29 to 31) 38. Item 11 would omit paragraphs 80.2H(1)(a) and (b) and substitute: 19
(a) the person: (i) causes a thing to be displayed in a public place; or (ii) makes a gesture in a public place; and (b) the thing is a prohibited Nazi symbol, or the gesture is a Nazi salute; and 39. The purpose of this amendment to the new offence in section 80.2H is to address the significant harm that is caused to the Australian community by the making of a gesture that is a Nazi salute in a public place. The Nazi salute represents an ideology of hatred, intimidation and racism that is incompatible with Australia's multicultural and democratic society, and is used as a tool of vilification and radicalisation. The new measure in this subdivision is intended to reduce the prevalence of the Nazi salute in public places. It would also implement the recommendation in Additional Comments of the Coalition Members in the PJCIS Advisory Report. 40. New paragraph 80.2H(1)(a) would establish the conduct element of the offence, namely causing a thing to be displayed in a public place or making a gesture in a public place. Sections 80.2F and 80.2FA respectively define 'displayed in a public place' and 'makes a gesture in a public place' for the purposes of this offence. 41. The fault element of intention would apply to the conduct in paragraph 80.2H(1)(a) by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code. By operation of this fault element, a person would need to mean to display the thing or make the gesture in a public place. 42. New paragraph 80.2H(1)(b) would establish a circumstance element of the offence, namely that the thing (that is displayed in a public place) is a prohibited Nazi symbol, or the gesture is a Nazi salute. A prohibited Nazi symbol means the Nazi hakenkreuz, the Nazi double-sig rune or something that so nearly resembles those symbols that it is likely to be confused with, or mistaken for, them (see new section 80.2E). 43. The term 'Nazi salute' is intended to take its ordinary meaning. It refers to gestures which were used by the National Socialist German Workers' Party from 1920 to its dissolution in 1945. The Nazi salute generally involves raising a straight, right arm at an angle from the body however there were slight variations in how members of the National Socialist German Workers' Party performed the salute. It is a distinctive gesture associated with Nazi Germany, a regime which persecuted and systematically murdered millions of Jews, people living with a disability, people of colour, LGBTIQA+ people and other groups. The gesture is abhorrent and has no place in Australian society. It is intended that the court would have discretion to determine whether a gesture made was the Nazi salute, taking into account all of the circumstances of the case, including both the appearance of the gesture and the context in which it has been made. The legislation does not provide a prescriptive definition of the Nazi salute in recognition that there may be variations in the way it may be performed. 44. The fault element of recklessness would apply to the circumstances in paragraph 80.2H(1)(b) by application of section 5.6 of the Criminal Code. Recklessness is defined in section 5.4 of the Criminal Code. By operation of this fault element, a person is reckless if 20
they are aware of a substantial risk with respect to a particular circumstance, and having regard to the circumstances known to them, it is unjustifiable to take that risk. Item 12: Schedule 1, item 5, page 7 (lines 18 to 20) 45. Item 12 would omit subsection 80.2H(8) and substitute it with: (8) For the purposes of subsection (7), it does not matter whether a member of the group sees: (a) the thing while it is displayed in a public place; or (b) the gesture while it is made in a public place. 46. This would clarify that it would not be necessary for the prosecution to prove that a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin actually saw the prohibited Nazi symbol or the Nazi salute while it was displayed or being made in public in order to satisfy subsection 80.2H(7). 47. Subsection 80.2H(7) would set out a possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2H(1)(c). These circumstances are that the public display of the prohibited Nazi symbol or the making of a Nazi salute in public is likely to offend, insult, humiliate or intimidate a reasonable person (paragraph 80.2H(7)(a)), who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin (paragraph 80.2H(7)(b)), because of the reasonable person's membership of that group. Item 13: Schedule 1, item 5, page 7 (line 33) 48. Item 13 would omit the term 'capacity as a journalist' in subparagraph 80.2H(9)(b)(ii) and substitute 'journalistic capacity'. 49. Read together with the definition of 'journalistic capacity' introduced by item 30 (explained below), and paragraph 80.2H(1)(d), this would have the effect that the offence in subsection 80.2H(1) does not apply if a reasonable person would consider that the public display of a prohibited Nazi symbol, or the making of the Nazi salute in a public place is engaged in for the purposes of making a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This exemption recognises the critical role that the dissemination of news plays in democratic society and the importance of protecting the work of range of professionals involved in the news and current affairs process. 50. This amendment would implement Recommendation 3 of the PJCIS Advisory Report as it relates to extension of the journalistic purpose exemption in section 80.2H(9)(b). This amendment, together with the amendments in items 22, 26, 30 and 33 would implement Recommendations 3 and 4 of the PJCIS Advisory Report. 21
Item 14: Schedule 1, item 5, page 8 (line 36) to page 9 (line 14) 51. Item 14 would omit paragraphs 80.2H(10)(f) and (g) from the Bill and substitute them with: '(f) the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology." 52. New paragraph 80.2H(10)(f) would provide a defence where the conduct involves the public display of a prohibited Nazi symbol, or the making of a Nazi salute, in circumstances where the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology. This defence is intended to ensure that prohibited Nazi symbols and gestures can continue to be used for the purpose of opposing the harmful ideologies that these symbols and gestures represent, consistent with the implied constitutional freedom of political communication. These amendments reflect the changes made to the offence in subparagraph 80.2H(1) in item 11 (explained above). Item 15: Schedule 1, item 5, page 9 (after line 20) 53. Item 15 would insert a new offence after section 80.2H in Subdivision CA of Division 80 of the Criminal Code to criminalise the public display of prohibited terrorist organisation symbols. To make out the offence, the prosecution must prove: • the person causes a thing to be displayed in a public place (paragraph 80.2HA(1)(a)), and • the person knows that the thing is a prohibited terrorist organisation symbol (paragraph 80.2HA(1)(b)), and • subsection 80.2HA(3), (4) or (7) applies (paragraph 80.2HA(1)(c)), and • subsection 80.2HA(9) does not apply (paragraph 80.2HA(1)(d)). 54. The maximum penalty for the new offence in section 80.2HA would be 12 months imprisonment. This penalty is appropriate noting the public display of prohibited terrorist organisation symbols is a serious, intentional act that causes significant harm to Australians and is used to recruit and radicalise vulnerable Australians to violence. This penalty would align with other offences in Subdivision CA of Division 80 of the Criminal Code. 55. Terrorist organisations use symbols to intimidate and threaten the Australian community by promoting violence, fear, discrimination and hatred. Terrorist organisations also use symbols to advance their extreme ideologies to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish belonging. The harm caused by terrorist organisations and their activities, which can be conveyed powerfully through the use of symbology, can affect the whole community. 56. The offence in new subsection 80.2HA(1) is designed to protect the community from these harms by prohibiting the public display of prohibited terrorist organisation symbols, as defined in new section 80.2E. The offence would only apply where the person intentionally displayed a symbol publicly, knowing that the symbol is a prohibited terrorist organisation symbol, in circumstances in which a reasonable person would likely consider that the display 22
would engender the kinds of harms from which Australia is committed to protecting its citizens under international human rights conventions, and where no legitimate purpose exists. Accordingly, the offence appropriately targets deliberate acts that place community members at risk of serious victimisation. 57. The offence would not capture legitimate uses of terrorist organisation symbols that are not contrary to the public interest, and would not interfere with the display of these symbols in private. 58. New paragraph 80.2HA(1)(a) would establish the conduct element of the offence, namely causing a prohibited terrorist organisation symbol to be displayed in a public place. The definition of 'displayed in a public place' in section 80.2F of Subdivision CA of Division 80 would apply. 59. The fault element of intention would apply to the conduct in paragraph 80.2HA(1)(a) by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code. By operation of this fault element, a person would need to mean to cause the thing to be displayed in a public place. If a commercial content provider (such as a television broadcaster, streaming service, publisher or distributer) broadcasted a live sporting match and in doing so, inadvertently caused a prohibited terrorist organisation symbol that was being displayed by a member of a stadium audience to appear in the broadcast, the broadcaster would not commit the offence in subsection 80.2HA(1) because the broadcaster did not intend to cause the prohibited terrorist organisation symbol to be displayed publicly, as required by paragraph 80.2HA(1)(a). 60. New paragraph 80.2HA(1)(b) would establish a circumstance element of the offence, namely that the thing (that is displayed in a public place) is a prohibited terrorist organisation symbol. 'Prohibited terrorist organisation symbol' is defined in subsection 80.2E(3). 61. The fault element of knowledge would apply to the circumstance in paragraph 80.2HA(1)(b). Knowledge is defined in section 5.3 of the Criminal Code. By operation of this fault element, a person has knowledge of a circumstance if they are aware that it exists or will exist in the ordinary course of events. It is appropriate that the fault element of knowledge in paragraph 80.2HA(1)(b) is higher than the fault element of recklessness in paragraph 80.2H(1)(b), as the offence in section 80.2HA does not prescribe on the face of the legislation the specific symbols prohibited by the offence. 62. The requirement of proving the person knew the symbol was a prohibited terrorist organisation symbol provides a safeguard against prosecution where an offence has been committed innocently or unintentionally. As terrorist organisations have co-opted symbols that are also utilised for legitimate purposes in other contexts, it is conceivable that an individual may cause such a symbol to be displayed in a public place, wholly unaware that the symbol is used by a terrorist organisation to identify itself or that the organisation that uses the symbol is a terrorist organisation. Combined with the exception at 80.2HA(9)(a), it is not intended that public display of sacred symbols that have been co-opted by terrorist organisations would be covered by the offence when done so for a religious practice. It is not intended that the person would need to have a comprehensive or academic understanding of the specific details of the prohibited terrorist organisation symbol, only that they knew that the symbol is a prohibited terrorist organisation symbol. 23
63. New paragraph 80.2HA(1)(c) would establish a second circumstance element of the offence. It would provide that the circumstances in one of subsections 80.2HA(3), (4), or (7) would need to be made out. 64. New paragraph 80.2HA(1)(d) would establish a third circumstance element of the offence. It would provide that the offence is not made out if the set of circumstances listed in subsection 80.2HA(9) apply to the conduct in paragraph 80.2HA(1)(a). 65. New subsection 80.2HA(2) would provide that absolute liability applies to the circumstances in paragraphs 80.2HA(1)(c) and (d). The effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances. 66. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2HA(1)(c) or (d). Given that the matters in paragraphs 80.2HA(1)(c) and (d) relate to what a reasonable person would consider, the state of mind of the defendant with regard to these matters is irrelevant. 67. Consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement (the Guide), and principles in the Scrutiny of Bills Committee's Report 6/200 the application of absolute liability to the physical element in paragraphs 80.2HA(1)(c) and (d) is acceptable as the elements in paragraphs 80.2HA(1)(c) and (d) are essentially preconditions of the offence, and relate to what a reasonable person would consider, and not the state of mind of the defendant. 68. Without subsection 80.2HA(2) the fault element for paragraphs 80.2HA(1)(c) and (d) would have been recklessness by application of section 5.6 of the Criminal Code. It would not be appropriate for recklessness to apply to paragraphs 80.2HA(1)(c) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2HA(3), (4) and (7), which relate to whether a reasonable person would consider that the public display of the prohibited terrorist organisation symbol may have specified impacts. It would also not be appropriate for recklessness to apply to paragraph 80.2HA(1)(d) as the state of mind of the defendant is irrelevant to the matters in subsection 80.2HA(9), which relate to whether a reasonable person would consider that a prohibited terrorist organisation symbol was publicly displayed for a specified legitimate purpose. 69. New subsection 80.2HA(3) would set out one possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited terrorist organisation symbol involves dissemination of ideas based on racial superiority or racial hatred (paragraph 80.2HA(3)(a)), or could incite another person or a group of persons to offend, insult, humiliate or intimidate targeted individuals or groups, because of the targeted individuals' or group members' race (paragraph 80.2HA(3)(b)). 70. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually involved the dissemination of ideas based on racial superiority or racial hatred and actually could incite another person or a group of persons to offend, insult, humiliate or intimidate others on the basis of race. The fact that it would be reasonable to conclude that the public display of the prohibited terrorist organisation symbol has this effect would be sufficient. This recognises 24
that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing. 71. The note to subsection 80.2HA(3) provides clarity that the object of the subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. 72. New subsection 80.2HA(4) would set out another possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited terrorist organisation symbol involves advocacy of hatred of a group of persons distinguished by race, religion or nationality (a targeted group), or a member of a targeted group (paragraph 80.2HA(4)(a)); and involves advocacy that constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force against the targeted group or a member thereof (paragraph 80.2HA(4)(b)). 73. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually involved the advocacy of hatred of a group distinguished by race, religion or nationality, and advocacy that constituted incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. The fact that it would be reasonable to conclude that the public display of the prohibited terrorist organisation symbol has this effect would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing. 74. In order to satisfy subsection 80.2HA(4) the prosecution would be required to prove that a reasonable person would consider both that the public display of the prohibited terrorist organisation symbol involves the advocacy of hatred of a group distinguished by race, religion or nationality, and that the public display of the prohibited terrorist organisation symbol involves advocacy that constitutes incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. It would not be sufficient for the prosecution to establish one of these matters, and not the other. 75. The reason for this is articulated in the statutory note which clarifies that subsection 80.2HA(4) is designed to give further effect to Australia's obligations under Article 20 of the ICCPR. Article 20 requires countries to outlaw the vilification of persons on national, racial or religious grounds amounting to incitement to discrimination, hostility or violence. 76. New subsection 80.2HA(5) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually resulted in the hatred of a group distinguished by race, religion or nationality in order to satisfy paragraph 80.2HA(4)(a). This recognises that one of the purposes of the offence is to prevent harms of this kind. 77. New subsection 80.2HA(6) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol 25
actually incited a person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group distinguished by race, religion or nationality or member thereof in order to satisfy paragraph 80.2HA(4)(b). This recognises that one of the purposes of the offence is to prevent harms of this kind. 78. New subsection 80.2HA(7) would set out another possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that the public display of the prohibited terrorist organisation symbol is likely to offend, insult, humiliate or intimidate a reasonable person (paragraph 80.2HA(7)(a)), who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin (paragraph 80.2HA(7)(b)), because of the reasonable person's membership of that group. 79. It would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually offended, insulted, humiliated or intimidated a person based in their membership of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. Establishing that it is likely that the public display of the prohibited terrorist organisation symbol would have this effect on a reasonable person would be sufficient. This signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing. 80. In order to satisfy subsection 80.2HA(7) the prosecution would be required to prove both that the public display of the prohibited terrorist organisation symbol was likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin, and that the public display of the prohibited terrorist organisation symbol is likely to likely to offend, insult, humiliate or intimidate them because of the person's membership of that group. It would not be sufficient for the prosecution to establish one of these matters, and not the other. 81. The reason for this is articulated in the statutory note which clarifies that subsection 80.2HA(7) is designed to give further effect to Australia's obligations under Article 26 of the ICCPR. Article 26 provides that the law should prohibit any discrimination, and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While the ICCPR does not specifically refer to sexual orientation, the United Nations Human Rights Committee (UNHRC) has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.6 The UNHRC has also placed emphasis on the need to protect transgender communities from violence, torture and harassment.7 It is intended that paragraph 80.2HA(7)(b) would also protect persons distinguished by sexual orientation or gender identity. 82. New subsection 80.2HA(8) would clarify that it would not be necessary for the prosecution to prove that a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin actually saw the prohibited 6 For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92. 7 For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation. 26
terrorist organisation symbol while it was displayed in public in order to satisfy subsection 80.2HA(7). This recognises that one of the purposes of the offence is to prevent such persons from being exposed to prohibited terrorist organisation symbols in light of the harm this may cause them. 83. New subsection 80.2HA(9) would set out circumstances in which the offence in subsection 80.2HA(1) would not apply. These provisions have been included to ensure that a person who publicly displays a prohibited terrorist organisation symbol in legitimate circumstances would not be captured by the offence. 84. Read together with new paragraph 80.2HA(1)(d), new paragraph 80.2HA(9)(a) would have the effect that the offence in new subsection 80.2HA(1) does not apply if a reasonable person would consider that a person caused a prohibited terrorist organisation symbol to be displayed in a public place for a religious, academic, educational, artistic, literary or scientific purpose that is not contrary to the public interest. 85. It is not intended that the use of a symbol for a religious purpose would be captured by the offence. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance. 86. Given that the purpose of the public display offence is to prevent the public harm engendered by the display of prohibited terrorist organisation symbols, the circumstances set out in paragraph 80.2HA(9)(a), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the display of prohibited terrorist organisation symbols as much as possible without inappropriately impacting on legitimate activities. This recognises that there are a range of circumstances for which a prohibited terrorist organisation symbol may be publicly displayed. The onus would be on the prosecution to prove beyond a reasonable doubt that a reasonable person would not consider that the display of a prohibited symbol was done for any of the purposes specified in this provision. 87. The public interest requirement safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for a member of a terrorist who has publicly displayed a symbol of that terrorist organisation for the purposes of 'educating' young people about the merits of committing terrorist attacks in the service of an extremist ideology, to avoid criminality. This is because their purpose would be contrary to the public interest. 88. Read together with the definition of 'journalistic capacity' introduced by item 30 (explained below) and new paragraph 80.2HA(1)(d), new paragraph 80.2HA(9)(b) would have the effect that the offence in new subsection 80.2HA(1) does not apply if a reasonable person would consider that the public display of a prohibited terrorist organisation symbol is engaged in for the purposes of making a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This exemption recognises the critical role that the dissemination of news plays in our democratic society, and the importance of protecting the work of range of professionals involved in the news and current affairs process. For example, if a news program was live broadcasting at a 27
protest at which people held signs publicly displaying a prohibited terrorist organisation symbol, it would be inappropriate for journalists and broadcasters reporting fairly and accurately on this event to have to censor their report in order to avoid criminal liability under section 80.2HA. 89. The public interest requirement, and the requirement that the journalist, editor, producer or other person involved in the news or current affairs process is working in a professional journalistic capacity, is intended to operate to exclude the displaying of prohibited terrorist organisation symbols for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular case. Defences 90. New subsection 80.2HA(10) would provide defences to the new offence in subsection 80.2H(1). Each of the paragraphs in subsection 80.2HA(10) contains an individual defence, providing a circumstance in which the offence would not apply. These defences have been included to address legitimate usages of prohibited terrorist organisation symbols that are not covered in subsection 80.2HA(9) because they are matters that fall within the peculiar knowledge of the defendant. 91. New paragraph 80.2HA(10)(a) would provide that the offence in new subsection 80.2HA(1) does not apply if publicly displaying a prohibited terrorist organisation symbol is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. The purpose of this defence would be to avoid situations where a conflict of laws requires a prohibited terrorist organisation symbol to both be publicly displayed in order to assist law enforcement, and kept out of public display to avoid liability under subsection 80.2HA(1). Paragraph 80.2HA(10)(a) would resolve this conflict in favour of displaying the symbol so that it would not compromise legitimate law enforcement procedures and operations. For example, a police officer may need to publicly display a flag containing or depicting a prohibited terrorist organisation symbol for a short period of time after confiscating it from a dangerous individual to allow other law enforcement personnel or witnesses to examine it, before they are able to cover or remove it from public display. 92. New paragraph 80.2HA(10)(b) would provide that the offence in new subsection 80.2HA(1) does not apply if the public display of a prohibited terrorist organisation symbol is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. This defence will provide protection for officers of government agencies involved in monitoring and investigative activity related to schemes that they administer. This defence is intended to ensure that the offence does not compromise legitimate law enforcement procedures or operations. For example, it may be necessary for a police officer to publish a forensic sketch in order to help identify a criminal suspect in which the criminal suspect is wearing a t-shirt with a prohibited terrorist organisation symbol on it. 93. New paragraph 80.2HA(10)(c) would provide that the offence in new subsection 80.2HA(1) would not apply if a person publicly displays a prohibited terrorist organisation symbol for the purposes of proceedings in a court or tribunal. This paragraph serves as a safeguard to ensure a court's or tribunal's access to material is not restricted by the operation of the offence under new subsection 80.2HA(1). This defence would be important to ensure 28
that a court can have access to anything that meets evidential requirements, and that the offence in subsection 80.2HA(1) does not restrict this access. 94. New paragraph 80.2HA(10)(d) would provide that the offence in new subsection 80.2HA(1) does not apply if a person publicly displays a prohibited terrorist organisation symbol in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function. 95. New paragraph 80.2HA(10)(e) would provide that the offence in new subsection 80.2HA(1) does not apply if the person publicly displays a prohibited terrorist organisation symbol in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions. This is intended to ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function. This could include, for example, where the conduct is in connection with a person assisting a security or intelligence officer with the performance of the security or intelligence officer's official duties or functions. 96. New paragraph 80.2HA(10)(f) would provide that the offence in subsection 80.2HA(1) does not apply if the conduct involves the public display of a prohibited terrorist organisation symbol and the person genuinely engages in the conduct for the purpose of opposing the ideology or purposes of a terrorist organisation (within the meaning of Division 102). This defence is intended to ensure that prohibited terrorist organisation symbols can continue to be used and displayed for the purpose of opposing the harmful ideologies that terrorist organisations represent, consistent with the implied constitutional freedom of political communication. 97. The note at the end of subsection 80.2HA(10) would clarify that the defendant bears an evidential burden in relation to the defences in that subsection in accordance with existing subsection 13.3(3). Subsection 13.3(3) provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 98. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where there are matters which are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty. 99. The offence in new subsection 80.2HA(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment). 29
100. It would not be reasonable to require the prosecution to prove the matters set out in various paragraphs of subsection 80.2HA(10). Notably, most of these defences rely on the purpose for which the person engaged in the conduct. This is likely to be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to prove. For example, paragraph 80.2HA(10)(f) requires the person to discharge the evidentiary burden by pointing to evidence that suggests a reasonable possibility that their conduct was for the purpose of opposing the ideology or purposes of a terrorist organisation. It will be relatively straightforward for the person to meet this threshold compared to the prosecution. 101. New subsection 80.2HA(11) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new sections 80.2HA, would be affected by the references to 'function' or 'functions' in subsection 80.2HA(10). The references to 'function' or 'functions' in subsection 80.2HA(10) - in particular, paragraphs 80.2HA(10)(d) and (e) - are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2HA only. Item 16: Schedule 1, item 5, page 9 (line 21) 102. Item 16 inserts the word "Nazi" after the word "prohibited" to the title of section 80.2J so that the title reads "trading in prohibited Nazi symbols". 103. This item would clarify that the offence at section 80.2J applies to trading of prohibited Nazi symbols as defined in section 80.2E (see item 5, explained above). Items 17 and 18: Schedule 1, item 5, page 9 (lines 24 and 26) 104. Items 17 and 18 inserts "Nazi" after "prohibited" to paragraphs 80.2J(1)(b) and (c). 105. These items would amend two of the circumstance elements of the offence in section 80.2J, which prohibits trading in goods that depict or contain prohibited Nazi symbols. 106. Item 17 would clarify that the goods must depict or contain a prohibited Nazi symbol as defined in section 80.2E (see item 5, explained above), and item 18 would clarify that the person must know, or be reckless as to whether, the prohibited symbol is associated with Nazi ideology. Item 19: Schedule 1, item 5, page 9 (lines 26 and 27) 107. Item 19 omits 'or global jihadist ideology' from paragraph 80.2J(1)(c). This reflects that, as a result of the amendments to paragraphs 80.2J(1)(b) and (c) in items 17 and 18 respectively (explained above), the offence in subsection 80.2J(1) is now solely concerned with symbols that are associated with Nazi ideology. Items 20 and 21: Schedule 1, item 5, page 11 (lines 12 and 15) 108. Items 20 and 21 insert the word 'Nazi' after the word 'prohibited' into subsections 80.2J(5)(b) and (c). 109. These changes reflect that the exception contained in subsection 80.2J(5) specifically applies to the offence of trading in prohibited Nazi symbols. Item 22: Schedule 1, item 5, page 11 (line 18) 30
110. Item 22 would omit the words 'capacity as a journalist' and substitute them with 'journalistic capacity' in subparagraph 80.2J(5)(c)(i). 111. Read together with item 30, this item would extend the journalistic purpose exemption in subsection 80.2J(5) to ensure that news reports made by not only professional journalists, but other professionals involved in the news and current affairs process that contain prohibited Nazi symbols, can be lawfully traded. This recognises the critical role that the dissemination of news plays in our democratic society. Item 23: Schedule 1, item 5, page 11 (line 24) 112. Item 23 would insert the word 'Nazi' after the word 'prohibited' in paragraph 80.2J(6)(b). 113. This change reflects that the defence contained in subsection 80.2J(6) applies specifically to the offence of trading in prohibited Nazi symbols. Item 24: Schedule 1, item 5, page 11 (line 27) 114. Item 24 would insert the word 'Nazi' after the word 'prohibited' in paragraph 80.2J(6)(c). 115. This change reflects that the defence contained in subsection 80.2J(6) applies specifically to the offence of trading in prohibited Nazi symbols. Item 25: Schedule 1, item 5, page 12 (after line 30) 116. Item 25 would create a new offence for trading in prohibited terrorist organisation symbols in Subdivision CA of Division 80 of the Criminal Code. 'Prohibited terrorist organisation symbol' is defined in subsection 80.2E(3). 117. To make out the offence, the prosecution must prove: • the person intentionally trades in goods (paragraph 80.2JA(1)(a)), and • the person is reckless as to the fact the goods depict or contain a symbol (paragraph 80.2JA(1)(b)), and • the person knows that the symbol is a prohibited terrorist organisation symbol (paragraph 80.2JA(1)(c)), and • the trading of the symbol meets one or more of the jurisdictional requirements set out in subsection 80.2JA(3) which are described below (paragraph 80.2JA(1)(d)), and • subsections 80.2JA(4) and (5), which are described below, do not apply (paragraph 80.2JA(1)(e)). 118. The maximum penalty for the offence in section 80.2JA is imprisonment for 12 months. This penalty is appropriate noting the trade in goods which depict or contain a prohibited terrorist organisation symbol is a serious, intentional act that causes harm through commercial profiting from paraphernalia depicting or containing symbols used by terrorist 31
organisations to identify themselves. This penalty would align with other offences in Subdivision CA of Division 80 of the Criminal Code. 119. The fault element for the conduct in new paragraph 80.2JA(1)(a) would be intention by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code, which provides that a person has intention with respect to conduct if he or she means to engage in conduct (subsection 5.2(1)). 120. The fault element attached to new paragraph 80.2JA(1)(b) would be recklessness by application of section 5.6 of the Criminal Code. 'Recklessness' is defined in section 5.4 of the Criminal Code, which provides relevantly that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstance, it is unjustifiable to take that risk. 121. The fault element for the conduct in new paragraph 80.2JA(1)(c) would be knowledge. Knowledge is defined in section 5.3 of the Criminal Code. By operation of this fault element, a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. This means the prosecution must prove that the person knew the symbol was a prohibited terrorist organisation symbol. This acts as an important safeguard to ensure the offence does not improperly capture individuals whose conduct in trading goods bearing certain symbols is innocent. As terrorist organisations have co-opted symbols that are also utilised for legitimate purposes in other contexts, it is conceivable that an individual may trade in goods containing or depicting such a symbol, wholly unaware that the symbol is used by a terrorist organisation to identify itself. 122. It is not intended that the use of a symbol for a religious purpose would be captured by the offence. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance. 123. It is also not intended that the person would need to have a comprehensive or academic understanding of the specific details of the prohibited terrorist organisation symbol, only that they knew that the symbol is a prohibited terrorist organisation symbol. 124. New subsection 80.2JA(2) provides that absolute liability, as outlined at section 6.2 of the Criminal Code, would apply to the matters in paragraphs 80.2JA(1)(d) and (e). With regard to new paragraph 80.2JA(1)(d), this approach is consistent with the Guide which provides that absolute liability should apply to jurisdictional elements of a criminal offence. A jurisdictional element is a physical element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. 125. With regard to the circumstances in new paragraph 80.2JA(1)(e), the effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances. 32
126. Without subsection 80.2JA(2), the fault element of paragraph 80.2JA(1)(e) would have been recklessness by application of section 5.6 of the Criminal Code. The effect of this would have been that the prosecution would have to prove that the defendant was aware of a substantial risk that the circumstances in subsections 80.2JA(4) or (5) existed, and having regard to the circumstances known to the defendant, it was unjustifiable for them to take that risk. It would not be appropriate for recklessness to apply to subsection 80.2JA(1)(e) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2JA(4) or (5), which relate to: • whether a reasonable person would consider that the trading was done for a specified purpose (subparagraph (4)), or • whether: o the goods traded contain or depict specified content (paragraphs 80.2JA(5)(a)-(b)), and o a reasonable person would consider that the news or current affairs report contained in those goods was made by a person working in a professional journalistic capacity, and disseminating the report is in the public interest. 127. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2JA(1)(d) and (e). The matters in paragraph 80.2JA(1)(d) are jurisdictional elements to which the defendant's state of mind is not relevant. Paragraph 80.2JA(1)(e) provides that the offence is not established if the matters in subsections 80.2JA(4) or (5) apply. Determining whether one of the circumstances in subsections 80.2JA(4) or (5) are present does not involve an assessment of what the defendant turned their mind to. Therefore, a reasonable mistake of fact defence would not be appropriate in relation to either of these subsections. 128. The Commonwealth's power to legislate in relation to the trading in goods that depict or contain a prohibited terrorist organisation symbol is restricted by the Constitution. Accordingly, the trading in goods that depict or contain a prohibited terrorist organisation symbol would only constitute an offence where certain jurisdictional requirements were made out (subsection 80.2JA(3)). The offence would only apply where: • the trading occurs to any extent outside Australia (noting that Category B geographical jurisdiction, as outlined in section 15.2 of the Criminal Code, would apply to the offence - see item 29, explained below) • the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement • the trading occurs within a Territory, or involves transportation to or from a Territory • the trading is engaged in by, or on behalf of, a constitutional corporation • some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 33
51(v) of the Constitution (for example, the goods are transported in the post or the sale is conducted online) • the trading occurs to any extent at a Commonwealth place or involves transportation to or from a Commonwealth place • the person engaging in the conduct is an alien (an alien is defined in the Criminal Code Dictionary as a person who is an alien for the purposes of paragraph 51(xix) of the Constitution) • the trading involves the person: o selling the goods to an alien o preparing the goods for supply with the intention of selling them to, believing another person intends to sell them to, an alien or that an alien intends to sell them o transporting the goods with the intention of selling them to an alien, or believing that another person intends to sell them to an alien, or believing an alien intends to sell them o guarding or concealing the goods with the intention of selling them to an alien, with the intention of assisting another person to sell them to an alien or assisting an alien to sell them, or o possessing the goods with the intention of selling them to an alien. 129. New subsections 80.2JA(4) and (5) would set out circumstances in which the offence in new subsection 80.2JA would not apply by operation of new paragraph 80.2JA(1)(e). These provisions have been included to ensure that circumstances in which trading of a prohibited terrorist organisation symbol is legitimate and not contrary to the public interest would not be captured by the offence. The prosecution would bear the burden of proving that the subsections (4) and (5) do not apply to the trading of goods bearing a prohibited terrorist organisation symbol beyond a reasonable doubt. 130. Read together with new paragraph 80.2JA(1)(e), new subsection 80.2JA(4) would have the effect that the offence in new subsection 80.2JA(1) does not apply if a reasonable person would consider that the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose, and that the person's trading in the goods is not contrary to the public interest. 131. Given that the purpose of the new trading offence is to prevent the public harm engendered by profiting from the sale of goods depicting or containing a prohibited terrorist organisation symbol, the circumstances set out in subsection 80.2JA(4), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the trade of these goods as much as possible without inappropriately impacting on legitimate activities. The onus would be on the prosecution to prove that a reasonable person would not consider that the trading in the goods was for one of the purposes set out in this provision. The reasonable person test would ensure that a defendant could not simply rely on their own assertions that the trade was 34
done for a religious, academic, educational, artistic, literary or scientific purpose to avoid criminal liability. 132. Examples of circumstances that are intended to be captured by new subsection 80.2AJ(4) are as follows: Terrorist organisations have misappropriated symbols which are considered ancient symbols that continue to hold special significance in various faith-based communities. Therefore, it is necessary that the offence does not apply in circumstances where the goods being traded contain or depict prohibited terrorist organisation symbols, but are being used as objects for religious observance. Further, a museum trading in artefacts that depict or contain a prohibited terrorist organisation symbol in order to educate people about the atrocities committed by terrorist organisations should not be criminalised. Similarly, trading in history textbooks which serve an educational or literary purpose should not be criminalised as these are important activities for our society. 133. The requirement in new paragraph 80.2JA(4)(b) safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for someone who has traded in goods that depict or contain a prohibited terrorist organisation symbol for the purposes of 'educating' young people about the merits of committing terrorist attacks in service of an extremist ideology, to be able to rely on the educational purpose limb in new paragraph 80.2J(4)(a) to avoid criminality because their purpose would be contrary to the public interest. 134. Read together with new paragraph 80.2JA(1)(e), new subsection 80.2JA(5) would have the effect that the offence in new subsection 80.2JA(1) does not apply if the goods being traded contain one or more news reports or current affairs reports (paragraph 80.2JA(5)(a)); each prohibited symbol that the goods depict or contain appears in such a report and only appears in such a report (paragraph 80.2JA(5)(b)); and in relation to each such report in which a terrorist organisation symbol appears, a reasonable person would consider that the report was made by a person working in a professional journalistic capacity (subparagraph 80.2JA(5)(c)(i)) and disseminating the report is in the public interest (subparagraph 80.2JA(5)(c)(ii)). 135. This would ensure that news reports made by not only professional journalists, but other professionals involved in the news and current affairs process that contain prohibited terrorist organisation symbols can be lawfully traded. This recognises the critical role that the dissemination of news plays in our democratic society. 136. The public interest requirement, and the requirement that the journalist, editor, producer and others involved in the making of the news or current affairs report is working in a professional journalistic capacity, are intended to operate to exclude goods that have been traded by organisations for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism or the news and current affairs reporting process. The offence would not apply where a reasonable person would consider that the dissemination of the report as a whole is in the public interest, rather than a particular aspect of the report being in the public interest. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular dissemination. Defences 137. New subsections 80.2JA(6) to (8) would create offence-specific defences in relation to which the defendant bears the evidential burden of proof by application of subsection 13(3) 35
of the Criminal Code. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty. 138. The offence in new subsection 80.2JA(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment). 139. The offence-specific defences in subsections 80.2JA(6) to (8) recognise that the defendant would be better placed than the prosecution to adduce evidence about the nature of the goods in which they have traded (subsection 80.2JA(6)), the necessity of the trading for the purposes of law enforcement, the administration of justice or a public official's duties or functions (subsections 80.2JA(7) and (8)). 140. The defendant's involvement in the business of trading the goods may include activities such as compiling the goods or marketing, advertising or explaining the goods to potential trading partners. These activities would equip the person conducting the trading with information that would be more difficult and costly for the prosecution to access, and that would be necessary to prove the matters in subsections 80.2JA(6)-(8). For example, in relation to subsection 80.2JA(6), the defendant would be better placed than the prosecution to adduce evidence that the commentary contained in goods, and in which a prohibited terrorist organisation symbol appears, is in the public interest, given the defendant's likely exposure to the community and context in which the commentary is circulated. 141. New subsection 80.2JA(6) would provide that the offence in new subsection 80.2JA(1) does not apply if the goods being traded contain commentary on public affairs (paragraph 80.2JA(6)(a)) and each terrorist organisation symbol that the goods depict or contain appear in the commentary and only appear in the commentary (paragraph 80.2JA(6)(b)). In relation to the commentary in which the prohibited terrorist organisation symbol appears, the making of the commentary must be in the public interest (paragraph 80.2JA(6)(c)). This is an important safeguard to ensure robust political communication can continue in Australia; however, appropriate limitations are imposed to prevent against this provision being inappropriately used to excuse illegitimate trade. 142. The defence would cover circumstances in which a good only contains commentary that is in the public interest, and the prohibited terrorist organisation symbol is contained in that commentary. For example, this provision may cover trading of a publication which seeks to raise awareness of, and opposition to, al-Qaeda by depicting its symbol for the purposes of increasing understanding of harmful activities undertaken by the organisation during the 9/11 attacks. 143. New paragraphs 80.2JA(7)(a) and (b) would provide that the offence in new subsection 80.2JA(1) does not apply if trading in goods depicting or containing a prohibited terrorist organisation symbol is necessary for, or of assistance in, enforcing, monitoring compliance with, or investigating a contravention of, the law of the Commonwealth, a State or Territory, or a foreign country. New paragraph 80.2JA(7)(c) would provide that offence in new subsection 80.2JA(1) does not apply if trading in goods depicting or containing a prohibited terrorist organisation symbol is necessary for, or of assistance in, the administration of justice (whether within or outside Australia). The purpose of these defences 36
is to ensure that the offence does not compromise law enforcement or court proceedings. For example, it may be necessary for a police officer to engage in the trade of goods in situations where the trading would assist in enforcing, monitoring or investigating an offence to prevent more harmful conduct from occurring. 144. New paragraph 80.2JA(8)(a) would provide that the offence in new subsection 80.2JA(1) would not apply if a person trades a good depicting or containing a prohibited terrorist organisation symbol in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for reasonably performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function. 145. New paragraph 80.2JA(8)(b) would provide that the offence in new subsection 80.2JA(1) would not apply if the person trades a good depicting or containing a prohibited terrorist organisation symbol in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions. This will ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function. 146. The notes at the end of subsections 80.2JA(6)-(8) would clarify that the defendant bears an evidential burden in relation to the defences in accordance with existing subsection 13.3(3) of the Criminal Code. It is appropriate that the onus rests with the defendant because these matters will be peculiarly within the defendant's knowledge and will not necessarily be available to the prosecution. 147. New subsection 80.2JA(9) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new section 80.2JA, would be affected by the references to 'function' or 'functions' in paragraphs 80.2JA(8)(a) and (b). The references to 'function' or 'functions' in subsection 80.2JA(8) are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2JA only. 148. New subsection 80.2JA(10) would clarify that the term 'Commonwealth place', as used in section 80.2JA, has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970. Item 26: Schedule 1, item 5, page 16 (lines 26 and 27) 149. Item 26 omits 'capacity as a journalist' and substitutes it with 'journalistic capacity' in subsection 80.2M(3)(ii). 150. Read together with the definition of 'journalistic capacity' introduced by item 30 (explained below), this would have the effect that the offence in subsection 80.2M(1) does not apply if a reasonable person would consider that the conduct that caused the prohibited 37
symbol to be displayed in a public place was engaged in for the purposes of making a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This exemption recognises the critical role that the dissemination of news plays in our democratic society, and the importance of protecting the work of a range of professionals involved in the news and current affairs process. Item 27: Schedule 1, item 5, page 16 (lines 28 to 30) 151. Item 27 would omit paragraph 80.2M(3)(c) and substitute it with: '(c) if the prohibited symbol is a prohibited Nazi symbol--any of paragraphs 80.2H(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place; or (d) if the prohibited symbol is a prohibited terrorist organisation symbol--any of paragraphs 80.2HA(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place.' 152. This item would have the effect that the offence in subsection 80.2M(1) (failing to comply with a direction given under subsection 80.2K(1) to remove a prohibited symbol from public display) does not apply in circumstances where any of the available defences applied to the person engaging in the conduct that caused the prohibited symbol to be publicly displayed. It clarifies that the defences available in relation to the public display of a prohibited Nazi symbol are set out in paragraphs 80.2H(10)(a)-(f) and the defences available in relation to the public display of a prohibited terrorist organisation symbol are set out in paragraphs 80.2HA(10)(a)-(f). Item 28: Schedule 1, item 6, page 17 (after line 30) 153. Item 28 would insert '(ea) subsection 80.2HA(1); or' after paragraph 80.4(2)(e). 154. This item would extend the application of geographical jurisdiction--category B to the new offence in subsection 80.2HA. Item 29 Schedule 1, item 6, page 17 (after line 31) 155. Item 29 would insert '(fa) subsection 80.2JA(1); or' after paragraph 80.4(2)(f). 156. This item would extend the application of geographical jurisdiction--category B to the new offence in subsection 80.2JA. Item 30: Schedule 1, item 7, page 18 (after line 2) 157. This item would insert a definition of the term 'journalistic capacity' into the Criminal Code Dictionary and provide that this term means a capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. 158. This item also would insert a definition of the term 'makes a gesture in a public place' into the Criminal Code Dictionary, and provide that this term has the meaning given by new section 80.2FA, explained above at item 6. 38
159. This item would also insert a definition of 'prohibited Nazi symbol' into the Criminal Code Dictionary and provide that this term has the meaning given by new subsection 80.2E(2), explained above at item 5. Item 31: Schedule 1, item 7, page 18 (line 3) 160. Item 31 would omit 'section 80.2E' and substitute it with 'subsection 80.2E(1)' in the definition of 'prohibited symbol'. 161. This item would clarify that the term 'prohibited symbol' has the meaning given by section 80.2E(1), explained above at item 5. Item 32: Schedule 1, item 7, page 18 (after line 3) 162. Item 32 would clarify that the term 'prohibited terrorist organisation symbol' has the meaning given by subsection 80.2E(3), explained above at item 5. This term would be inserted, after the definition of 'prohibited symbol', into the Criminal Code Dictionary. Item 33: Schedule 2, item 3, page 23 (lines 11 and 12) 163. Item 33 would omit 'capacity as a journalist' and substitute it with 'journalistic capacity' in subparagraph 474.45D(1)(e)(ii). 164. Read together with the definition of 'journalistic capacity' introduced by item 30 (explained above), this would have the effect that the offences in Subdivision HA (using a carriage service for violent extremist material and possessing or controlling violent extremist material obtained or accessed using a carriage service) do not apply to engaging in conduct in relation to material if the material relates to a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This defence recognises the critical role that the dissemination of news plays in our democratic society, and the importance of protecting the work of range of professionals involved in the news and current affairs process. Item 34: Schedule 4, item 18, page 29 (lines 12 to 14) 165. Item 34 would omit subsection 102.1A(2)(b) of the Bill and substitute it with "report the Committee's comments and recommendations to each House of the Parliament". 166. This item would reinforce the convention that parliamentary committees report their conclusions and recommendations to Parliament, and acknowledges that committees are extensions of the House themselves and derive their powers and authorisations from the Parliament, including the authority to present reports. 39