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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)
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
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