Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022 - 2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM LEGISLATION AMENDMENT (PROHIBITED HATE SYMBOLS
AND OTHER MEASURES) BILL 2023
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
COUNTER-TERRORISM LEGISLATION AMENDMENT
(PROHIBITED HATE SYMBOLS AND OTHER MEASURES) BILL
2023
This addendum addresses recommendations made by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest No. 13 dated 8 November 2023, and the Parliamentary
Joint Committee on Human Rights in Report 9 of 2023 dated 6 September 2023.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
To signpost that the Explanatory Memorandum will provide further clarification about
how the Bill is compatible with the rights of the child (as recommended by the
Parliamentary Joint Committee on Human Rights paragraph 2.88 of Report 9 of 2023),
insert the following bullet point immediately after the final bullet point in paragraph 4 of
the Statement of Compatibility:
• Commitment to promote the establishment of measures for dealing with children
without resorting to judicial proceedings in Article 40(3)(b) of the Convention on
the Rights of the Child (CRC).
To provide clarification that the ban on trading goods containing a prohibited symbol is a
proportionate limit on the right to a private life (as recommended by the Parliamentary
Joint Committee on Human Rights at paragraph 2.88 of Report 9 of 2023), insert the
following new heading and paragraphs immediately after paragraph 29 of the Statement
of Compatibility:
New offence - trading in goods that bear a Nazi symbol
33A. The trading offence engages the right to freedom from unwarranted and
unreasonable intrusions into activities that society recognises as falling within the
sphere of individual autonomy. This is because the new offence criminalises conduct
that could be undertaken in a private home (such as the private sale of goods bearing
prohibited symbols), and could therefore interfere with a person's private life and
property. The trading offence is however reasonable, necessary and proportionate to
achieve the legitimate objectives of protecting national security, public order, and the
rights and freedoms of others. Prohibited symbols represent hateful and violent
ideologies. Trading in goods which bear those symbols supports the further
dissemination of these ideologies as well as the continuation of an economy which
allows for profiting from extremist and hateful ideologies. Accordingly, banning the
trade in goods bearing prohibited symbols supports other rights including the right to
life and security.
33B. The scope of the trading offence is also limited through defences and
exemptions, which would provide legitimate avenues to trade such items, including
for religious, academic, educational, artistic, scientific or literary purpose or public
interest journalism. The trading offence would also not apply if the goods that are
traded contain commentary on public affairs; the prohibited symbol appears in the
commentary and making the commentary is in the public interest; the trading is
necessary for, or of assistance in, enforcing, monitoring compliance with or
investigating a contravention of the law, or for the administration of justice; and the
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trading is done by a public official or a person assisting a public official, in
connection with the performance of the official's duties or functions, and the trading
is reasonable in the circumstances for that purpose.
33C. Accordingly, the limitation on the right to privacy would be permissible as it is
a reasonable, necessary and proportionate means of achieving a legitimate objective to
protect national security, public order and the rights and freedoms of others.
To provide clarification about safeguards to ensure the prohibited symbols offences do
not unduly restrict a person's freedom of expression (as recommended by the
Parliamentary Joint Committee on Human Rights at paragraph 2.88 of Report 9 of 2023),
insert the following paragraphs immediately after paragraph 45 of the Statement of
Compatibility:
45A. The exceptions and defences in the Bill play a critical role in safeguarding
against undue restrictions on the right to freedom of expression. They were
specifically designed to protect the right to freedom of expression in recognition of
circumstances in which the public display or trade of prohibited symbols are
legitimate.
45B. The Government will work with the Commonwealth Director of Public
Prosecutions (CDPP) and the Australian Federal Police (AFP) to ensure that
prosecutors and law enforcement are equipped with appropriate guidance on matters,
including the directions powers, protections and defences that will play a critical role
in ensuring these new offences are fit for purpose and do not unduly encroach upon
citizens' personal rights and freedoms.
To provide further clarification about how the prohibited symbols offences are
compatible with the rights of the child (as recommended by the Parliamentary Joint
Committee on Human Rights at paragraph 2.88 of Report 9 of 2023), insert the following
new headings and paragraphs immediately after paragraph 78 of the Statement of
Compatibility:
Commitment to promote the establishment of measures for dealing with such
children without resorting to judicial proceedings in Article 40(3)(b) of the CRC
78A. The Convention on the Rights of the Child provides that where appropriate
and desirable, and in a manner that respects human rights, States should deal with
children accused of a crime without resorting to judicial proceedings, such as by way
of diversionary programs. It is an unfortunate reality that children have been involved
in terrorism incidents and convicted of terrorism offences in Australia. This Bill
engages this right by subjecting children, above the age of criminal responsibility, to
judicial proceedings. Any limitation of this right is however reasonable and
proportionate to achieve the legitimate purpose of protecting Australia's national
security interests.
New offences - public display of prohibited symbols; and trading in goods that bear a
prohibited symbol
78B. Publicly displaying and trading in goods that bear prohibited symbols causes
significant harm to many Australians. These prohibited symbols - the Nazi
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hakenkreuz (or hooked cross) and the Nazi double sig rune (the Schutzstaffel insignia
or 'SS bolts') - are widely recognised as representing and conveying ideologies of
hatred, violence and racism which are incompatible with Australia's multicultural and
democratic society. Extremists also use these symbols to recruit and radicalise
vulnerable Australians to violence.
78C. Given the significant harm engendered by the public display or trade of these
symbols, it is appropriate that criminal liability apply if the prosecution establishes
that any person has engaged in the relevant conduct set out at section 80.2H.
78D. The AFP (including its partner agencies within the Joint Counter Terrorism
Teams) and the CDPP have discretion about whether to progress a matter for
investigation and prosecution respectively. The AFP works collaboratively with state,
territory and Commonwealth partners in considering the most appropriate support
services available for children. Investigative decisions may also involve engagement
with children and their parents or guardians to deter them from committing further
offences or prevent further radicalisation, rather than progressing charges. This has
the potential to curb further offending and issuing a caution may induce a more
positive outcome for the young person than treating them as an alleged criminal.
These safeguards will minimise the risk of inappropriate charging and prosecution of
minors in relation to the new offences.
78G. The Attorney-General's consent is not required prior to commencing
proceedings against a child defendant for the public display and trading offences
because these are lower level offences. Where young people are involved in
offending, the AFP with their partners will consider diversionary approaches where
appropriate. The AFP works collaboratively with state, territory and Commonwealth
partners in considering the most appropriate wrap-around support services available
for young people.
New offences - using a carriage service for violent extremist material; and possessing or
controlling violent extremist material obtained or accessed using a carriage service
78H. The violent extremist material offences limit the rights of the child by
subjecting children to judicial proceedings. This limitation is necessary and
reasonable to achieve the legitimate objective of preventing the use of extremist
material to encourage and instruct individuals in the commission of violent acts, and
radicalise vulnerable individuals (including children) to violent extremist ideologies.
78I. By attaching criminality to the nature of material possessed, the offences
reflect the harm that is inherent in violent extremist material. Violent extremist
material is harmful because it facilitates radicalisation, and may encourage and assist
in planning violent acts. Without these offences, law enforcement is limited in its
ability to prosecute people for dealing with violent extremist material. These offences
would facilitate law enforcement intervention at an earlier stage in an individuals'
progress to violent radicalisation - including where the individual involved is a minor
- and provide greater opportunities for rehabilitation and disruption of violent
extremist networks.
78J. The Bill includes a safeguard that the Attorney-General must consent to the
prosecution of a person under the age of 18 for a violent extremist material offence.
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This provides an opportunity for the Attorney-General to consider the appropriateness
of the proposed prosecution in all the circumstances of the case, including the context
of the conduct, the particular circumstances of the child, and the need to protect the
broader community from the impacts of violent extremist material.
78K. Where children are involved in offending, the AFP with their partners will
consider diversionary approaches where appropriate. The AFP works collaboratively
with state, territory and Commonwealth partners in considering the most appropriate
wrap-around support services available for children. Investigative decisions may also
involve engagement with children and their parents or guardians to deter them from
committing further offences or prevent further radicalisation, rather than progressing
charges. This has the potential to curb further offending, and issuing a caution may
induce a more positive outcome for the young person rather than treating them as an
alleged criminal.
78L. These safeguards will minimise the risk of inappropriate charging and
prosecution of minors in relation to the new offences.
NOTES ON CLAUSES
Schedule 1 - Prohibited Symbols
Section 80.2K - Directions to cease display of prohibited symbols in public
To provide additional guidance as to the matters a police officer may take into
consideration when stipulating a time by which a direction issued under new section
80.2K must be complied with (as recommended by the Parliamentary Joint Committee on
Human Rights at paragraph 2.87 of Report 9 of 2023), insert the following paragraph
immediately after paragraph 145 of page 44 of the Explanatory Memorandum:
145A. Some factors that a police officer may consider when specifying a time period
include the nature of the public display and the time it may take to cease displaying
the symbol; the location of the public display; the availability of the person who
caused a prohibited symbol to be displayed in a public place to be provided with the
direction (for example, where the person is overseas or uncontactable, it may not be
reasonable to require them to remove the symbol from public display in a particularly
short period of time); the harm being caused by the continued public display; and any
other matter a police officer deems appropriate in the circumstances.
Section 80.2M - Directions to cease display of prohibited symbols in public - offence
To provide additional guidance as to what may constitute reasonable or unreasonable
steps for the purposes of new paragraph 80.2M(5)(b) (as recommended by the Scrutiny of
Bills Committee at paragraph 2.95 in Scrutiny Digest 13/23 and the Parliamentary Joint
Committee on Human Rights at paragraph 2.87(c) of Report 9 of 2023), insert the
following paragraphs immediately after paragraph 165 of page 46 of the Explanatory
Memorandum:
165A. What constitutes reasonable steps for the purpose of new paragraph
80.2M(5)(b) will depend on the circumstances and context in which the direction is
issued to the recipient. When considering what is reasonable, it is intended that
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consideration be given to the actions that a person took to cause a prohibited symbol
to cease to be displayed, and any constraints or potential risks. It is not intended that
an individual is required to, for example, commit an unlawful act in order to take
steps to remove the symbol.
165B. Reasonable steps may include removing a poster that depicts a prohibited
symbol from the recipient's street-facing window or removing stickers displaying
prohibited symbols from the recipient's car. It would be unreasonable, for example, to
require the person to trespass onto another person's property in order to remove a
poster depicting a prohibited symbol.
Schedule 2 - Use of carriage service for violent extremist material
Item 3 - After Subdivision H of Division 474 of the Criminal Code
Section 474.45B Using a carriage service for violent extremist material
To provide clarification about the definition of 'access' for the purpose of the new violent
extremist material provisions (as recommended by the Scrutiny of Bills Committee at
paragraph 2.127 of Scrutiny Digest 13/23), insert the following paragraph immediately
after paragraph 208 on page 56 of the Explanatory Memorandum:
208A. New subsection 474.45B(1)(a) provides that a person commits an offence if
they 'access' violent extremist material. Section 473.1 of the Criminal Code defines
'access' for the purpose of Part 10.6 (in which the new violent extremist material
provisions are located). The term includes the display of the material by a computer or
any other output of the material from a computer, or the copying or moving of the
material to any place in a computer or to a data storage device.
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