Wednesday, 30 August 2023

Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:39): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023.

In my opinion, the Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023 (the Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Summary Offences Act 1966 (the Principal Act) by making it an offence to publicly perform a Nazi salute or other gesture used by the Nazi Party including its paramilitary arms and to extend the current offence for publicly displaying a Hakenkreuz or other symbol that is likely to be confused or mistaken for that symbol under section 41K, to include any symbol or gesture used by the Nazi Party including its paramilitary arms.

The Bill’s purpose is to prevent the harm caused by the Nazi salute and other Nazi gestures or symbols to reduce racism and vilification in the community, maintain public order, and to send a clear message that Nazi ideology and the hatred it represents is not tolerated in Victoria. This Bill follows the creation of a criminal offence prohibiting the public display of the Nazi symbol (the Hakenkreuz) in June 2022, and the government’s commitment to monitor the display of other hateful symbols, as recommended by the Parliamentary Inquiry into Victoria’s Anti-Vilification Protections (AV Inquiry).

The Bill will:

• prohibit the intentional public performance of a Nazi gesture, including the Nazi salute or any other gesture that is used by the Nazi Party (including its paramilitary arms) or a gesture that is likely to be confused with or mistaken for that gesture;

• expand the application of the offence of publicly displaying a Hakenkreuz or other symbol that is likely to be confused or mistake for that symbol to include a Nazi salute and any other symbol or gesture used by the Nazi party (including its paramilitary arms);

• clarify the application of existing exceptions under section 41K to the new offence of publicly performing or displaying a Nazi gesture; and

• expand the application of enforcement powers available under section 41K to the display of a Nazi gesture, including the Nazi salute.

Human Rights Issues

The Bill promotes the following rights under the Charter:

• right to recognition and equality before the law (section 8);

• right to freedom of thought, conscience, religion and belief (section 14); and

• right to culture (section 19).

The Bill limits the following rights under the Charter:

• right to privacy and reputation (section 13);

• right to freedom of thought, conscience, religion and belief (section 14)

• right to freedom of expression (section 15);

• right to peaceful assembly and freedom of association (section 16);

• right to take part in public life (section 18);

• right to property (section 20); and

• rights in criminal proceedings (section 25).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited in order to protect other rights.

As discussed below, these limitations are reasonable and justified in accordance with section 7(2) of the Charter.

Right to recognition and equality before the law (section 8)

Section 8(3) of the Charter provides that every person has the right to enjoy their human rights without discrimination and has the right to equal and effective protection against discrimination. Justice Bell in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, 277 noted the equality rights in section 8 are ‘the keystone in the protective arch of the Charter’, and the fundamental value underlying the right to equality is the ‘equal dignity of every person’. To treat somebody differently because of an attribute rather than on the basis of individual worth and merit can undermine personal autonomy and self-realisation.

The public display or performance of Nazi gestures, particularly the Nazi salute, and other Nazi symbols impinges this right by undermining the dignity and self-worth of groups that have been historically persecuted by the Nazi Party and targeted by neo-Nazi groups, including the Jewish Community, LGBTIQ+ people, people with disability, Aboriginal and Torres Strait Islander people, and other racial and religious groups. For these communities, the public expression of Nazi symbols and Nazi gestures are an assault against human dignity and represent a form of hatred and prejudice that has no place in Victoria.

Expanding the offence under section 41K to prohibit the public display or performance of a Nazi gesture and other Nazi symbols therefore promotes the right to recognition and equality before the law by further protecting these communities, and the wider Victorian public against the harm and distress caused by these gestures and symbols.

Right to privacy and reputation (section 13)

Nature of the right

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with.

According to Justice Bell in Kracke v Mental Health Review Board (General) (2009) 29 VAR 1, the right to privacy ‘protects people from unjustified interference with their personal and social individuality and identity.’ This includes protection from interference with a person's individual identity and physical integrity.

An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed. It will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The Bill limits the right to privacy by broadening current restrictions on a person’s ability to privately display Nazi symbols and extending these restrictions to Nazi gestures, if the symbol or gesture can be seen by people in a public place, or on their person (such as on clothing) in public.

The importance and purpose of the limitation

The limitation supports the Bill’s purpose to reduce racism and vilification in the community, and to maintain public order, by minimising the harm caused by the display of any Nazi symbol or Nazi gesture and by allowing such symbols or gestures to be removed from public display.

Nature and extent of the limitation

Clause 7 of the Bill limits the right to privacy by prohibiting a broader range of symbols and gestures that can be displayed under section 41K of the Principal Act. This expansion is intended to prevent the harm caused by the public display of Nazi gestures and other Nazi symbols, regardless of whether they are physically located on public or private property. The expanded offence will still be confined to acts that occur in public, or occurs in sight of a person in a public place, and will not prevent a person from owning or displaying a Nazi gesture or Nazi symbol in private where it cannot be viewed from a public place (for example, inside a private home).

Additionally, the expanded offence will continue to ensure that tattoos and other like processes (such as branding) that display a Nazi symbol or gesture will not be prohibited. This ensures the Bill is not more restrictive than necessary to fulfill its purpose and preserves rights to bodily integrity. Since the expanded offence does not apply to hate symbols generally and given the harm the amended offence seeks to prevent, this limitation is lawful and does not arbitrarily or unreasonably limit the right to privacy.

Clause 8 of the Bill limits the right to privacy by expanding a police officer’s power under section 41L of the Principal Act to be exercised in relation to the public display of symbols and gestures of the Nazi Party including its paramilitary arms. This amendment is necessary to support practical enforcement of the expanded offence and to prevent any further harm from being caused by the continued display of Nazi gestures or other Nazi symbols. The Bill makes no further changes to section 41L. Accordingly, a person who does not comply with a direction to remove the Nazi gesture or other Nazi symbol from display will be liable for a fine of 10 penalty units, unless the defence of reasonable excuse applies. A direction can only be exercised in relation to the display of a Nazi gesture or Nazi symbol, which can still be displayed in private, and cannot be used for expressions of hate generally. Interference with the right is therefore lawful and does not arbitrarily or unreasonably limit the right to privacy.

Clause 9 of the Bill limits the right to privacy by expanding a police officer’s power under section 41M of the Principal Act to be exercised in relation to the public display of Nazi gestures and any other Nazi symbols.

The Bill makes no other amendments to section 41M or the operation of s 465 of the Crimes Act 1958 (Crimes Act), which sets out the conditions for such powers being exercised. Accordingly, a police officer will still be required to apply to the Magistrates’ Court for a warrant to search premises and seize property that displays a Nazi gesture or other Nazi symbol and is in connection to, or as evidence of commissioning of the offence. Before a warrant can be granted, the magistrate must be satisfied by evidence that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in a building, place or in a vehicle something that is connected with the offence that has been committed or might be committed in the next 72 hours, or anything that will afford evidence for the offence. The power can only be exercised in relation to symbols or gestures that were used by the Nazi Party and not expressions of hate generally. Given the fact that the obtaining of a warrant by police will also continue to be subject to court oversight, any interference with the right to privacy as a result of a warrant would be lawful and not arbitrary or unreasonable.

The relationship between the limitation and purpose

These limitations are necessary to support the effectiveness and practical enforcement of the expanded offence and to prevent or minimise any harm caused by the public display of any Nazi gesture or other Nazi symbol.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

Any further limitations on the power to direct a person to remove a Nazi gesture or any other Nazi symbol from display would undermine the objectives of the Bill since it would fail to adequately prevent a person who has committed an offence from continuing to display the gesture or symbol. It would also fail to address circumstances where a Nazi gesture or other Nazi symbol has been displayed on property by a third party (for example, by means of graffiti), since it may be necessary to direct the owner or occupier to remove the symbol or gesture, even though they have not been involved in the commission of the offence.

The current general search and seizure powers are necessary to ensure sufficient evidence can be obtained to prosecute persons that publicly display Nazi gestures or other Nazi symbols. It is also possible for secondary evidence of a Nazi gesture or other Nazi symbol (e.g. a photograph of the display) to be used instead of the property item. Under the Victorian Police Manual, police officers are required to apply the test of essentiality before seizing any property. This includes an assessment of whether the property is lawful, whether it is necessary to seize it and whether secondary evidence can be used in its place.

Right to freedom of thought, conscience, religion and belief (section 14) and the right to culture (section 19)

Nature of the right

Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including to adopt the religion or belief of their choice and to demonstrate their religious belief in public or private. A person must not be coerced or restrained in a way that limits their freedom of religion or belief in worship, observance, practice or teaching.

The right to culture in section 19 is based on Article 27 of the International Convention on Civil and Political Rights (ICCPR). This right ensures individuals, in community with others that share their background, can enjoy their culture, declare and practise their religion and use their language. It protects all people with a particular cultural, religious, racial or linguistic background.

The public display of Nazi gestures and other Nazi symbols undermines this right by promoting harmful ideologies that are aimed at suppressing the objectives of multiculturalism (to ensure that all Victorians can participate fully in society and remain connected to their culture and religion) by making groups targeted by these gestures and symbols feel intimidated or apprehensive about demonstrating their beliefs in public.

This was demonstrated on 26 January 2023, when a far-right group linked to neo-Nazi ideology disrupted a local Aboriginal community’s mourning ceremony in Merri-bek City Council and performed the Nazi salute.

The expanded offence therefore promotes both rights by allowing multicultural and religious communities to practice religion, hold beliefs and engage in cultural celebrations, without fear of harm or vilification.

The Bill could also limit these rights by placing an evidential burden on people displaying a symbol or gesture for a religious or cultural purpose that may be mistaken for a symbol or gesture used by the Nazi Party.

The importance of the purpose of the limitation

The purpose of the limitation is to protect the public from the harm caused by the display of a symbol or gesture used by the Nazi Party by restricting display to a list of prescribed circumstances.

A report by the Jewish Community Council of Victoria (JCCV) and the Community Security Group Victoria (CSG) into Antisemitism in Victoria found there has been a steady increase in antisemitic incidents between 2019-2022, especially with the use of symbols and paraphernalia. Prohibiting the public display of symbols and gestures used by the Nazi Party minimises the harm caused to the Jewish community and other impacted groups and sends a clear message to Victorians that the display of such symbols is extremely harmful and unacceptable in our multicultural society.

Nature and extent of the limitation

Clause 7 of the Bill relies on existing reasonable and good faith exceptions under section 41K of the Principal Act and provides that a person does not commit the offence if display was engaged in reasonably and in good faith for a religious or cultural purpose. This imposes an evidentiary burden on the accused to raise evidence that the display of a Nazi symbol or gesture was done for a genuine religious or cultural purpose. However, consistent with the offence under section 41K, the expanded offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of an exception, the burden shifts back to the prosecution to prove the essential elements of the offence beyond reasonable doubt.

The relationship between the limitation and its purpose

The limitation is consistent with the Bill’s purpose to reduce racism and vilification in the community, and to maintain public order by denouncing and prohibiting the public display of a Nazi gesture or other Nazi symbols, while also ensuring that appropriate uses of these gestures and symbols are permitted.

Less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could place the burden for demonstrating that the public display of a symbol or gesture was done for a religious or cultural purpose on the prosecution as an element of the offence. However, this would require the prosecution to prove beyond reasonable doubt that a symbol or gesture was not displayed for a good faith and reasonable religious or cultural purpose in every case, even where there is no evidence suggesting such a use. This would reduce enforceability of the offence and undermine the objectives of the Bill since the evidence to be adduced would often be within the specific knowledge of an accused person. Accordingly, the burden should remain with the accused person since they are best placed to provide evidence as to whether the display was done for a religious or cultural purpose.

Shifting the burden approach would also create inconsistencies with the approach to all other exceptions, such as artistic use or opposition to Nazism and neo-Nazism.

For these reasons, any limitation on these rights is reasonable and justified in the circumstances.

Right to freedom of expression (section 15)

Nature of the right

Under section 15(2) of the Charter, the right to freedom of expression includes the freedom ‘to seek, receive and impart information and ideas of all kinds’. The forms of expression protected are broad, and include sign language, print, art or any other medium. The right protects criticism and protest as well as offensive, disturbing or shocking information or ideas, rather than merely favourable or popular expressions (Sunday Times v United Kingdom (No 2). 14 EHRR 123). However, the European Court of Human Rights has held that limitations on free expression under article 10 of the European Convention of Human Rights, which protects this right in a similar manner to section 15(2), can be justified in situations concerning the expression of Nazism on the basis that such expression ‘is a totalitarian doctrine incompatible with democracy and human rights’ (Schimanek v Austria, Application no. 32307/96 (1 February 2000)).

Accordingly, the right is not absolute and may be lawfully subject to permissible limitations. This is reflected in section 15(3), which contains an internal limitation that allows freedom of expression to be limited where it is reasonably necessary to respect the rights and reputation of others, or for the protection of national security, public order, public health or public morality.

The Bill limits the right by restricting a person’s ability to impart certain information and ideas through the public display or performance of Nazi gestures or other Nazi symbols.

The importance of the purpose of the limitation

The purpose of the limitation is to protect members of the community from the mental and physical harm caused by the messages of hate and intimidation conveyed by the display or performance of symbols and gestures used by the Nazi Party. The Nazi regime evokes imagines of horror including the enforcement of policies on racial purification, the establishment of concentration camps and the genocide of Jewish people in the Holocaust.

The Nazi salute’s historical association with Nazism and the harm it causes to the community underpins the importance of prohibiting this gesture and any other Nazi gestures and Nazi symbols that may be co-opted in its place. This equally applies to other symbols used by the regime’s paramilitary arms such as the SS bolts and Totenkopf (Nazi death head) which were displayed on uniforms of the Gestapo and guards at concentration camps.

Despite the harm caused by these Nazi gestures and symbols, there are insufficient means to address it. The current Nazi symbol ban does not capture the Nazi salute or symbols beyond the Hakenkreuz. The AV Inquiry also found that the existing anti-vilification provisions do not adequately protect against this behaviour.

There has been a recent rise in public expressions of Nazi gestures, such as the Nazi salute, which was evidenced on 18 March 2023 where a far-right group linked to neo-Nazi ideology repeatedly performed the Nazi salute at an anti-transgender protest outside of Parliament. On 14 May 2023, the same group rallied at an anti-immigration protest where the Nazi salute was performed again in public and again in Geelong in July 2023.

The Bill is therefore intended to protect against the individual harm and wider community distress caused by these gestures and symbols, including injury to a person’s dignity that results from overt expressions of hatred. The Bill sends a clear message to the community that such gestures and symbols are not acceptable and have wide-ranging, negative societal impacts. The connection between these symbols and gestures and the mass atrocities committed in Europe in the 20th century mean that the display of these symbols sits outside the boundary of what might be expected from reasonable political debate and discourse. Importantly, the limitation does not target the civility of public discourse as people are still able to hold opinions in support of Nazi ideology, and express them, but are prevented from doing so through hateful symbols and gestures.

Nature and extent of the limitation

Clause 7 of the Bill limits the right to freedom of expression by restricting the ability of any person from freely expressing information or ideas through any medium that involves the display or performance of a Nazi gesture or other Nazi symbol in public. However, the Bill does not ban other methods of communicating Nazi ideology but rather the expression of particularly offensive and harmful symbols and gestures associated with the historical application of that ideology.

There is strong evidence from stakeholders indicating how deeply upsetting and harmful the display of Nazi gestures and other Nazi symbols can be to people that view these gestures and symbols, and that their use can undermine social cohesion across Victorian communities, especially for groups that are often targeted through their use, such as the Jewish community. This limitation is therefore considered lawful and reasonably necessary to protect people’s rights not to be intimidated, vilified or harassed, to feel safe, and to maintain public order.

In line with the purpose of the Bill, the exceptions which currently exempt situations where a Hakenkreuz is publicly displayed for an appropriate purpose will apply to the display of other Nazi symbols used by the Nazi Party. A person that displays or performs a Nazi gesture however will not have the same access to these exceptions to illustrate:

• If a person performs a Nazi gesture, then all exceptions under section 41K, other than the exceptions for a genuine cultural or religious purpose and the exception for in opposition to fascism, Nazim, neo-Nazim or other related ideologies, may apply

• If a person displays a Nazi gesture, then all exceptions under section 41K, other than the exceptions for a genuine cultural or religious purpose, may apply.

The relationship between the limitation and its purpose

The limitation is consistent with the Bill’s purpose to reduce racism and vilification in the community, and to maintain public order by denouncing and prohibiting the public performance or display of a Nazi gesture or other Nazi symbols, while also ensuring that appropriate uses of these gestures and symbols are permitted.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could include a requirement that the expanded offence only be committed if a public display or performance of a Nazi gesture or other Nazi symbol occurs in circumstances where a member of the public who sees the display is reasonably likely to feel threatened or intimidated or subjected to hatred, or to perceive the symbol as a symbol of intimidation or hatred towards any person or group. This type of element however has been deliberately omitted on the basis that any display of a Nazi gesture or other Nazi symbol, given their historical significance and recognised messaging of hate and genocide, would invariably cause a member of the public to feel intimidated or threatened, especially for community members that have been historically impacted by the Nazi regime. Additionally, the AV Inquiry found that existing anti-vilification offences (which contain a requirement to cause harm) are difficult to prosecute and there are evidential issues which impact the effectiveness of their protections. These offences are subject to future reform.

The Bill is also limited in scope to gestures and symbols that were used by the Nazi Party including its paramilitary arms and will not apply to expressions of hate more generally. This scope recognises the abhorrent and universally understood meanings attached to such symbols and gestures, and acknowledges their use in Victoria to intimidate, cause offence and promote hateful ideologies.

Additionally, the new offence for the display or performance of a Nazi gesture or other Nazi symbol will be subject to the exception under section 41K for tattoos or other like processes (such as branding), even where the tattoo is visible on a person’s body while in public. This ensures the Bill does not provide further restrictions than what is necessary to fulfill its purpose.

The approach taken by the Bill is therefore the most appropriate option to achieve the purpose of the Bill, and the limitation of the right to freedom of expression is justified.

Right to peaceful assembly and freedom of association (section 16) and right to public life (section 18)

Nature of the right

Section 16(1) of the Charter protects every person’s right to peaceful assembly. Under the ICCPR, the right to peaceful assembly entitles persons to gather intentionally and temporarily for a specific purpose.

Section 18(1) of the Charter provides that every person in Victoria has the right to participate in the conduct of public affairs. The UN Human Rights Committee, when commenting on article 25(a) of the ICCPR, considered the right to participate in public life to lie at the core of democratic government.

Clause 7 of the Bill both limits and promotes the right to freedom of association and right to public life. Critically the Bill does not prevent people from meeting in public or associating together. However, it prevents people who wish to perform or display a Nazi gesture or other Nazi symbol to demonstrate their political ideology while in public, such as in gatherings or while attending a council meeting. The offence also limits the right to freedom of association by disincentivising membership to groups with Nazi or neo-Nazi ideologies, for fear of criminal sanctions if this association is conveyed through the performance or display of a Nazi gesture or other Nazi symbol.

Conversely the Bill also promotes the right to public life for those who are targeted by the display and performance of Nazi gestures and symbols. This is because people are more likely to take part in public life, including attending protests, if they do not fear being intimated or threatened by the display and performance of overt messages of hatred.

The importance of the purpose of the limitation

Expanding the offence under section 41K to capture Nazi gestures and other Nazi symbols is intended to improve protections against the harmful messaging these gestures and other symbols express and to acknowledge the rise of other forms of expression relating to Nazism that have been, and may become, co-opted by neo-Nazi groups.

Nature and extent of the limitation

The application of the expanded offence will still be limited to display or performance that occurs in public. This means that groups who hold beliefs associated with Nazi ideology may still assemble in public or participate in the conduct of public affairs without any Nazi gesture or other Nazi symbol being displayed or performed in public. Persons who support such ideology will therefore remain free to express their opinions in gatherings or at council meetings, subject to existing laws, and may continue to own, display, or perform such symbols and gestures in private. They will also be able to publicly demonstrate their association with or support for such ideologies or groups through other means, including the use of slogans or other gestures or symbols to which this offence does not apply.

The limitations on both rights are reasonable and justified given the significant harm caused by the public display or performance of these symbols and gestures and the impact on the right to equality and non-discrimination of groups targeted by these symbols, outweighs the limitations placed on people that wish to use these gestures and symbols to display their ideology.

Relationship between the limitation and its purpose

Ensuring that the expanded offence applies to conduct that occurs in a public place is essential to the purpose of the Bill. The significant harm caused can only be addressed by prohibiting Nazi gestures and other Nazi symbols in public since this is where the harm is caused. This has been evidenced on several occasions, including on 17 July 2023 when a far-right group linked to neo-Nazi ideology performed the Nazi salute outside Geelong City Hall.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could include a requirement that the expanded offence only be committed if a public display or performance of a Nazi symbol or Nazi gesture occurs in circumstances where a member of the public who sees the display is reasonably likely to feel threatened or intimidated or subjected to hatred, or to perceive the symbol as a symbol of intimidation or hatred towards any person or group. This element however has been deliberately omitted on the basis that any display of a Nazi gesture or other Nazi symbol, given their historical significance and recognised messaging of hate and genocide, would invariably cause a member of the public to feel intimidated or threatened, especially for community members that have been historically impacted by the Nazi regime.

The Bill is also limited in scope to gestures and symbols that were used by the Nazi Party including its paramilitary arms, and will not apply to expressions of hate more generally. This scope recognises the abhorrent and universally understood meanings attached to such symbols and gestures, and acknowledges their use in Victoria to intimidate, cause offence and promote hateful ideologies.

Right to property (section 20)

Nature of the Right

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The right contains an internal limitation which provides that the right is not limited where property deprived is in ‘accordance with the law’. For deprivation of property to be in accordance with law, the law (whether legislation or the common law) authorising the deprivation of property must be clear and precise, accessible to the public, and not operate arbitrarily.

The right to property is limited by expanding a police officer’s power under section 41M of the Principal Act to apply for a warrant to search and seize property containing a Hakenkreuz, to be exercised in relation to the public display of Nazi gestures and any other Nazi symbols.

Importance and the purpose of the limitation

The limitation supports the Bill’s purpose to reduce racism and vilification in the community, and to maintain public order, by allowing police to prevent the imminent public display of a Nazi symbol and enabling Nazi gestures and other Nazi symbols to be removed from public display.

Nature and extent of the limitation

The Bill makes no amendments to the procedure for obtaining a warrant. Accordingly, a police officer can only seize property if a warrant is obtained from the Magistrate’s Court and the magistrate is satisfied that the conditions for obtaining a warrant have been met under section 465 of the Crimes Act. Given the narrow scope of the power and the requirement for police to seek a warrant from a court, any interference with property as a result of a warrant would be lawful and not arbitrary.

Relationship between the limitation and its purpose

The purpose of this limitation is to support the practical enforcement of the offence and to prevent any further harm caused by the continued display of a Nazi gesture or other Nazi symbol.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The general search and seizure powers are necessary to ensure sufficient evidence can be obtained to prosecute persons under the offence. It is also possible for secondary evidence of a Nazi symbol (e.g. a photograph of the display) to be used instead of the property item. Under the Victorian Police Manual, police officers are required to apply the test of essentiality before seizing any property. This includes an assessment of whether the property is lawful, whether it is necessary to seize it and whether secondary evidence can be used in its place.

Rights in criminal proceedings (section 25)

Nature of the Right

Section 25(1) of the Charter provides that a person has the right to be presumed innocent until proven guilty in accordance with the law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Bill imposes an evidential burden on the accused by relying on the existing exceptions set out in section 41K of the Principal Act. These exceptions may appear to limit the right to be presumed innocent until proven guilty according to law.

Importance of the purpose of the limitation

The purpose of the limitation is to protect the public from the harm caused by the display or performance of a symbol or gesture used by the Nazi Party by restricting their use to a list of prescribed circumstances.

Nature and extent of the limitation

Clause 7 of the Bill relies on existing reasonable and good faith exceptions under section 41K of the Principal Act, and provides that a person does not commit the offence if display or performance was engaged in reasonably and in good faith for a number of prescribed purposes. This imposes an evidentiary burden on the accused to show the display or performance of a Nazi symbol or gesture was for one of the prescribed purposes.

However, consistent with the offence under section 41K, the expanded offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of an exception, the burden shifts back to the prosecution to prove the essential elements of the offence beyond reasonable doubt.

The imposition of this evidential burden is necessary to support practical enforcement of the offence, acknowledging that Victoria Police will not always have clear evidence to demonstrate the accused’s intention for displaying or performing a Nazi gesture or symbol. By contrast, the manner and purpose for which a Nazi symbol or gesture is publicly performed or displayed will often be knowledge that is uniquely held by the accused since it concerns their own actions and intentions. The burden is also necessary to prevent a person from displaying or performing a Nazi gesture or symbol under an exception dishonestly for some inappropriate purpose. The limitation reflects the significant harm that display or performance of a Nazi symbol or gesture causes to the community and is proportionate with the maximum penalty imposed (maximum one year imprisonment or a fine of 120 penalty units or both).

Relationship between the limitation and its purpose

The limitation is consistent with the Bill’s purpose to reduce racism and vilification in the community, and to maintain public order by denouncing and prohibiting the public display or performance of a Nazi gesture or other Nazi symbols, while also ensuring that appropriate uses of these gestures and symbols are permitted.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could place the burden for demonstrating that the display or performance of a Nazi symbol or gesture was done for a prescribed purpose on the prosecution as an element of the offence. However, this would require the prosecution to prove beyond reasonable doubt that a symbol or gesture was not displayed for any prescribed purpose in every case, even where there is no evidence suggesting such a use. This would reduce enforceability of the offence and undermine the objectives of the Bill since the evidence to be adduced would often be within the peculiar knowledge of an accused person. Accordingly, the burden should remain with the accused person since they are best placed to provide evidence as to whether the display was for a prescribed purpose.

For these reasons, any limitation on these rights is reasonable and justified in the circumstances.

As discussed in this Statement of Compatibility, all of the limitations in the Bill are reasonable and justified.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:39): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

I am proud to deliver this Bill which fulfils a Victorian Government commitment to legislate a ban of the Nazi salute by prohibiting the public display or performance of any symbol or gesture used by the Nazi Party and its paramilitary arms.

The Government acknowledges that Nazi symbols and gestures, such as the Nazi salute, are being used to intimidate and cause harm to a wide range of groups, including the Jewish community, Aboriginal and Torres Strait Islander people, LGBTIQ+ people, people with disability and other racial and religious groups.

The intent of this Bill is to send a clear message denouncing Nazi ideology and the use of its gestures and symbols to intimidate and incite hate. All Victorians deserve to feel accepted, safe and included. These displays are intended to cause fear in our community and that is why this Bill is focused on the harm caused by such hateful conduct, which can be profound.

Government is deeply concerned and distressed by the use of the Nazi salute occurring in Victoria following last year’s ban of the display of the Nazi symbol, the Hakenkreuz. When that legislation was passed, the government committed to working with Victoria Police and relevant agencies to monitor the public display of other hateful symbols to determine whether further symbols should be prohibited. There have been several abhorrent incidents that have occurred since that law commenced on 29 December 2022 including:

• In mid-January 2023, a group of 25 males gathered at Elwood’s Ormond Point lookout and performed the Nazi salute.

• On 26 January 2023, a group of people performed the Nazi salute at a Merri-bek First Nations mourning ceremony.

• On 18 March 2023, a group of about 30 people marched along Spring Street, repeatedly performing the Nazi salute after an event held by a controversial UK gender and anti-trans activist.

• On 10 April 2023, a group of six men performed the salute outside the Melbourne Knights soccer club.

• On 20 April 2023, a group of people performed the Nazi salute and posed for photographs at a Bavarian restaurant in the Knox City Shopping Centre to commemorate Adolf Hitler’s birthday.

• On 13 May 2023, a group of about 25 people gathered outside parliament to stage an anti-immigration rally, repeatedly performing the Nazi salute.

• On 4 June 2023, two people performed the Nazi salute in front of police outside the State Library during a protest.

• On 15 July 2023, eight men stood at the steps of Geelong’s City Hall holding up a white supremist banner and performed the Nazi salute; and

• On 29 July 2023, a group of people held a ‘‘white powerlifting competition’’ at a boxing gym in Sunshine West and performed the Nazi salute in response to anti-fascist protestors.

Unfortunately, these events have highlighted the limitations of current laws in combatting this hateful conduct and the need for action. The use of the Nazi salute is unacceptable and has no place in Victoria. It is clear that Nazi symbols and gestures, particularly the Nazi salute, are being used to convey messages of antisemitism, hatred and intimidation.

I would like to read from the Jewish Community Council of Victoria’s submission, to highlight the harm caused by such hate conduct:

The recent rise in public expressions of Nazism in Victoria has had a significant impact on the local Jewish community. The highly visible nature of these expressions, including significant and sustained media attention, has left Jewish Victorians feeling vilified, vulnerable and anxious about their safety. These emotions are heightened for Holocaust survivors and their descendants.

In developing this Bill, we spoke with a number of Holocaust survivors who told us that the rise of neo-Nazism impacts the whole community, and that antisemitism is often a microcosm of broader hatred toward other targeted groups. This Bill is one measure to help promote tolerance and inclusion across the community and prevent the dissemination of these hateful symbols and gestures.

Purpose of the offence

The Bill amends the Summary Offences Act 1966 and extends the existing prohibition on the public display of the Nazi symbol, known as the Hakenkreuz. The expanded offence will prohibit the public display or performance of any symbol or gesture used by the Nazi Party and its paramilitary arms. The purpose of expanding the offence is to ensure that the expression of harmful symbols and gestures associated with an atrocious ideology that resulted in genocide is prohibited.

The offence is accompanied by powers for Victoria Police to direct a person to remove a Nazi symbol or gesture from public display, and to apply to the Magistrates’ Court for a warrant to enter a premises to search and seize a Nazi symbol.

Opening statement

The Bill will not alter the parts of the preamble or opening statement which were co-designed with leaders from the Jewish, Hindu, Buddhist and Jain communities to ensure it appropriately reflects their views. In particular, the current opening statement which recognises the historic and ongoing use of the swastika in the Buddhist, Hindu and Jain communities as an ancient and auspicious symbol of purity, love, peace and good fortune remains unchanged.

The preamble has been expanded to provide additional essential context on how gestures and other symbols have adopted, including the Nazi salute, to incite antisemitism and hatred.

Prohibited symbols and gestures

The Government previously only prohibited the Hakenkreuz as the most widely recognised symbol historically associated with Nazi ideology and the Nazi party. Its display, in any form, causes immense harm and offence. At that time, the Hakenkreuz was sadly adopted in many high-profile displays, such as the Nazi flag which was flown on private property in Beulah. Given the recent rise in the performance of the Nazi salute, at protests and in very public places, the Government has expanded the prohibited symbols and gestures to include the public performance and display of the Nazi salute and any other symbol or gesture used by the Nazi Party and its paramilitary arms. This will ensure that, in Victoria, people can no longer use these symbols and gestures to cause harm or incite hatred in the community.

Definition of Nazi symbol

The Bill expands on the previous definition of Nazi symbol, which still explicitly includes the Hakenkreuz, and now also includes any symbol used by the Nazi Party. The term "Nazi Party” is intended to capture symbols used by the National Socialist German Workers’ Party and its paramilitary groups from 1920 to its dissolution in 1945. These symbols, which include the SS Bolts (Schutzstaffel), the SS Death’s Head (Totenkopf), flags, insignia or medals used by the Nazi Party and its paramilitary organisations, represent a particularly atrocious expression of hate and debasement of human dignity. The expansion of prohibited symbols is necessary to ensure all Victorians are protected from harm to human dignity and against discord and threats to tolerance and multiculturalism.

Definition of Nazi gesture

The Bill also prohibits the display and performance of Nazi gestures. Nazi gesture is defined as the Nazi salute and any other gesture used by the Nazi Party, including any other gesture that is likely to be mistaken or confused with those gestures. The offence captures symbols or gestures that closely resemble those that are prohibited to ensure a person cannot avoid prosecution by making minor changes to the design or performance.

The expansion of prohibited symbols and gestures offers a clear response to the recent rise in the performance of the Nazi salute by addressing existing gaps in the law. The expansion will mitigate the risk of the use of alternative symbols or gestures used by the Nazi Party to incite hatred. The Nazi salute is a gesture inextricably linked with the genocide of the Holocaust and atrocious crimes against humanity. This Bill sends a clear and strong message that these symbols and gestures are not acceptable in Victoria.

Definition of ‘public place’

The expanded offence will prohibit the intentional public display or performance of any Nazi symbol or gesture in a public place. The term ‘public place’ still relies on the existing definition within the Summary Offences Act 1966 and includes the expanded definition beyond only government schools to also include non-government schools and other post-secondary education institutions. This will include a TAFE institute or university. It is appropriate that the offence applies to some places that would otherwise be private under the Summary Offences Act 1966 due to the possibility of a Nazi symbol or gesture being displayed or performed at these places.

The offence also applies where a display or performance is in public view (i.e. occurs in sight of people who are in a public place). This encompasses displays of a Nazi symbol or gesture on a private premises if it is visible to the public.

Fault elements of the offence

Like the Nazi symbol offence, the expanded offence has two fault elements. First, the offence has an intention element which requires that the person intentionally displayed or performed a Nazi symbol or gesture in a public place or in public view. Second, the offence has a knowledge element, requiring the person knows, or ought to know, that the symbol or gesture is a Nazi symbol or gesture.

The knowledge element requires either that:

1. the person knows the symbol or gesture is a Nazi symbol or gesture (subjective knowledge), or

2. a reasonable person in the position of the person who displayed the symbol or gesture would have known that is a Nazi symbol or gesture (objective knowledge).

The knowledge element safeguards against an offence being committed innocently or unintentionally. For example, by a child who does not understand the connotations of the Nazi salute, and where a reasonable person (of the same age) in the child’s position ought not to have known the Nazi salute is a Nazi gesture, taking into account any other relevant circumstances. Similarly, it will safeguard against a person with cognitive impairment, who does not understand the implications of the Nazi salute and the harm it can cause, from committing an offence.

The intention and knowledge elements ensure the offence clearly targets the conduct intended to be prohibited and is not unfair in its application.

Penalty

The offence for the intentional public display or performance of a Nazi symbol or gesture has a maximum penalty of one year imprisonment or a fine of 120 penalty units or both. This penalty remains unchanged from the previous Nazi symbol offence and is consistent with vilification offences under the Racial and Religious Tolerance Act 2001 and across Australia. It reflects the breadth of the offence, and that no injury or harm needs to be proved as a result of the display or performance.

Exceptions

Narrower exceptions for display or performance of the Nazi gestures

While important exceptions that apply to the display of the Hakenkreuz and Nazi symbols remain, the exceptions have been amended in relation to the display or performance of Nazi gestures.

Display or performance of Nazi gestures exceptions

Exceptions will also apply where the display or performance of a Nazi gesture was engaged reasonably and in good faith for genuine academic, artistic, educational, or scientific purpose, or in making or publishing a fair and accurate report of any event or matter that is in the public interest. These exceptions are intended to apply broadly to protect freedom of expression and to ensure that Nazi gestures can continue to be used and displayed for appropriate purposes.

The Bill does not provide for an exception for the performance of the Nazi salute in opposition to fascism, Nazism, neo-Nazism or other related ideologies. However, a person may display Nazi gestures or Nazi symbols in opposition to fascism, Nazism, neo-Nazism or other related ideologies (e.g. displaying a picture with a cross through someone performing the Nazi salute).

The religious and cultural exceptions will also not apply to the performance of Nazi gestures. This is because there is no evidence of any genuine religious or cultural purpose to perform Nazi gestures, like the Nazi salute. Likewise, performing the Nazi salute at a protest does not demonstrate a person’s opposition to Nazism or fascism and it is important that neo-Nazi groups cannot attempt to use exceptions to circumvent the ban.

Tattoos and other like processes

The expanded offence does not apply where the display of a Nazi symbol or gesture is done by means of tattooing or other like process (e.g. scarification, branding). The exclusion of tattoos or like processes takes account of human rights considerations and the practical enforcement issues of capturing such displays.

Law enforcement or intelligence officer exception

There will be a specific exception for a law enforcement officer and member of an intelligence agency, where the public display or performance of a Nazi symbol or gesture occurs in the performance of their duties and is done in good faith. This might apply where such an officer has an assumed identity and is displaying or performing Nazi symbols or gestures as part of their role.

Connected with the administration of the justice system

The expanded offence also includes an exception for a person that displays or performs a Nazi symbol or gesture in the course of official duties connected with the administration of the justice system, including the investigation or prosecution of offences, if the display or performance is done in good faith. This exception is intended to ensure that the proper administration of justice is not impeded by the offence, such as where a Nazi symbol or gesture is produced as evidence when considering an offence in court. It is modelled on section 51J of the Crimes Act 1958, which provides a similar exception to the child abuse offences under the Act.

Consent of the Director of Public Prosecutions before the prosecution of a child

The expanded offence requires the written consent of the Director of Public Prosecutions before the commencement of a prosecution of a child for the new offences. This will act as a safeguard (along with the knowledge element of the offence) to limit the circumstances in which children could be prosecuted. In many cases, a more appropriate response for children would be educating the child about the harm caused by the display or performance Nazi symbols or gestures.

Trade and sale of historical Nazi memorabilia – Commonwealth Bill

On 14 June 2023, the Commonwealth government introduced and moved to second reading, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (‘Commonwealth Bill’). This legislation which will prohibit the public display (including online) of two Nazi symbols, the Hakenkreuz and the SS Bolts. It will also prohibit the sale of memorabilia featuring the Hakenkreuz and the SS Bolts.

The Commonwealth Bill will not prohibit the public performance or display of the Nazi salute, as the Commonwealth Attorney-General has stated that such a ban is a matter for state and territory laws.

Secondary material for the Commonwealth Bill provides that their new offences are not intended to exclude or limit the operation of any law of a state or territory. Instead, the Commonwealth Bill (if passed) will supplement Victoria’s existing legislation which bans the public display of the Hakenkreuz, and now other symbols and gestures used by the Nazi Party, by prohibiting online displays of the Hakenkreuz and SS Bolts, as well as the sale of memorabilia displaying these two symbols.

Police powers

The expanded offence will replicate the same police powers as the Nazi symbol offence. A police officer will have the power to direct a person to remove from display a Nazi symbol or gesture (whether on public or private property) if the police officer reasonably believes an offence is being committed. For example, where a Nazi salute is displayed on a flag, a police officer can direct a person to remove the display.

A person who, without reasonable excuse, does not comply with a direction to remove material is liable for a penalty of 10 penalty units.

As with the previous Nazi symbol offence, the Bill also provides the warrant power under the Crimes Act 1958 applies to this offence, to ensure police can enforce the offence appropriately. This enables police to apply to the Magistrates’ Court for a warrant to search premises and seize property that displays a Nazi symbol and is in connection to, or as evidence of commissioning the offence. Police can also use existing powers of arrest under section 458 of the Crimes Act 1958 to arrest a person performing a Nazi salute.

Commencement

The Bill will commence the day after it receives Royal Assent. This will ensure that the expanded offence comes into force quickly to put an end to the steady increase in Nazi salutes that have been occurring since the beginning of the year.

I wish to thank all the stakeholders who engaged with the development of this Bill. I wish to extend a sincere thank you to the Jewish community and Holocaust survivors, who took the time to share their lived experiences and provide vital input on the Bill. Your contributions are greatly valued and have shaped and strengthened this legislation.

I commend the Bill to the house.

Michael O’BRIEN (Malvern) (10:39): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 13 September.