Thursday, 9 June 2022

Bills

Summary Offences Amendment (Nazi Symbol Prohibition) Bill 2022

Mr LEANE, Mr ONDARCHIE

Summary Offences Amendment (Nazi Symbol Prohibition) Bill 2022

Introduction and first reading

The PRESIDENT (18:12): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Summary Offences Act 1966 to make the public display of Nazi symbols an offence and for other purposes’.

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (18:12): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Mr LEANE: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (18:13): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

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 Symbol Prohibition) Bill 2022.

In my opinion, the Summary Offences Amendment (Nazi Symbol Prohibition) Bill 2022 (the Bill), as introduced to the Legislative Council, 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 by creating a criminal offence which prohibits a person from intentionally displaying a Nazi symbol in a public place or in public view. The new offence will apply to the public display of specified Nazi symbols—initially, limited to the Hakenkreuz—in circumstances where the person knows, or ought to know, that the symbol is a symbol associated with Nazi ideology.

The Bill’s purpose is to reduce racism and vilification in the community by preventing Nazi symbols from being displayed publicly and by allowing them to be removed from public display. It will deliver on the Government’s commitment to implement a key recommendation of the Legislative Assembly Legal and Social Issues Committee’s Inquiry into Anti-vilification Protections in Victoria (Inquiry).

The Bill will:

• prohibit the intentional public display of a Nazi symbol (a Hakenkreuz), or a symbol that so nearly resembles a Nazi symbol that it is likely to be confused with or mistaken for that symbol;

• provide exceptions to the offence where the display is engaged in reasonably and in good faith:

• for a genuine academic, artistic, religious, scientific, cultural or educational purpose;

• in making or publishing a fair and accurate report of any event or matter of public interest; and

• in opposition to fascism, Nazism, neo-Nazism or other related ideologies;

• provide exceptions to the offence where:

• a Nazi symbol is displayed on a person’s body by means of tattooing or other like process; and

• the display occurs in the performance of a law enforcement officer or member of an intelligence agency’s duties and is done in good faith; and

• the display occurs in the course of official duties connected with the administration of the justice system, including the investigation or prosecution of offences, and is done in good faith;

• create powers for a police officer to direct a person to remove a Nazi symbol from public display, and to apply to a magistrate for a warrant to enter a premises to search and seize a Nazi symbol.

The Bill will also provide that the written consent of the Director of Public Prosecutions is required before a child can be prosecuted for the offence.

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 culture (section 19);

• right to property (section 20); and

• right to be presumed innocent until proved guilty according to law (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 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’.

The public display of symbols associated with Nazi ideology impinges this right by causing significant harm to the Jewish community and a wide range of other groups, including Aboriginal and Torres Strait Islander people, LGBTIQ+ people, people with disability and other racial and religious groups. For these communities, the Nazi symbol represents hate, genocide, and trauma.

Victoria has seen an unwelcome number of recent instances where the public display of Nazi symbols has been used by various individuals and groups to intimidate and convey a message of hate and intolerance. The extent of harm caused by the display of a Nazi symbol was evidenced by a high-profile incident in January 2020 where a Nazi flag was flown on a private property in Beulah, in north-west Victoria. This display of Nazi ideology caused extreme distress to observers and the wider community. Both the Yarriambiack Shire and Victoria Police were unable to compel the residents to take the flag down.

The Inquiry highlighted the rise in the public display of vilifying materials, such as the Hakenkreuz, and the importance of sending a clear message to the community that the public display of Nazi symbolism is not acceptable and has wide-ranging, negative societal impacts.

The creation of an offence to prohibit the intentional public display of Nazi symbols therefore promotes the right to recognition and equality before the law by protecting against the harm and distress caused by these symbols to individuals, the Jewish community and other groups, and the wider Victorian public.

The Bill will also promote this right by empowering a police officer to direct a person to remove a Nazi symbol from public display, and to apply to the Magistrates’ Court for a warrant to enter a premises to search and seize a Nazi symbol. These powers can be used in situations where there has previously been no power to remove the display of a Nazi symbol, such as the Nazi flag being flown on private property in Beulah. This will better enable police to act quickly to remove Nazi symbols from public display, thereby reducing the potential harm and distress caused to others.

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 interfering with a person’s ability to display a Nazi symbol in private, if the symbol 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 limitations support the Bill’s purpose to reduce racism and vilification in the community by minimising the harm caused by the display of Nazi symbols and by allowing such symbols to be removed from public display.

Nature and extent of the limitation

New section 41K in clause 3 limits the right to privacy by prohibiting the intentional public display of Nazi symbols and is intended to prevent the harm caused by the public display of these symbols, regardless of whether the symbols are physically located on public or private property. The offence is only aimed at public display and will not prevent a person from owning or displaying these symbols in private where they cannot be viewed from a public place (for example, inside a private home). Additionally, the offence will not prohibit Nazi symbol 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 is not more restrictive than necessary to fulfill its purpose and preserves rights to bodily integrity. Given the limited scope of the offence and the harm the offence is seeking to prevent, this limitation is lawful and does not arbitrarily or unreasonably limit the right to privacy.

New section 41L in clause 3 limits the right to privacy by allowing a police officer to direct a person to remove a Nazi symbol from public display (whether on public or private property). The purpose of new section 41L is to support enforcement of the offence and to prevent any further harm caused by the continued display of a Nazi symbol. It requires the police officer to reasonably believe the person is committing an offence, or an offence has been committed. A person who does not comply with a direction to remove the symbol is liable for a fine of 10 penalty units, which is commensurate with the severity of the conduct. The defence of reasonable excuse will ensure a person who does not receive the notice would not be liable for a penalty. Given the limited circumstances in which a direction can be given and that a Nazi symbol can still be displayed in private, interference with the right is lawful and does not arbitrarily or unreasonably limit the right to privacy.

New section 41M in clause 3 limits the right to privacy by empowering a police officer to exercise search and seizure powers in relation to property containing a Nazi symbol that contravenes the offence. New section 41M, which provides that an existing warrant power under section 465 of the Crimes Act 1958 (Crimes Act) applies to this offence, requires a police officer to apply to the Magistrate’s 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 of the offence. This is the same as an existing power under section 28 of the Racial and Religious Tolerance Act 2001 (RRTA). Police can only seize property if a warrant is obtained from the Magistrates’ Court, which requires the magistrate to 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. Given the narrow scope of the power, the requirement for police to seek a warrant and the oversight provided by a court, 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 intended to support the effectiveness and practical enforcement of the offence and to prevent or minimise any harm caused by the public display of a Nazi symbol.

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

To achieve the aim of preventing a Nazi symbol from being publicly displayed, the Bill could exclude the power to direct a person to remove a Nazi symbol from public display and instead rely on general deterrence arising from criminal penalties under the offence. This option however does not adequately prevent a person who has committed an offence from continuing to display the symbol. It also does not address circumstances where a Nazi symbol has been displayed on property by a third party (for example, by means of graffiti), as it may be necessary to direct the owner or occupier to remove the symbol, even though they have not been involved in the commission of the offence.

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) 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 Bill promotes both rights by allowing people of Jewish faith to practice religion, hold beliefs and engage in cultural celebrations, without fear of harm or vilification.

The Bill limits these rights by placing an evidential burden on people using the symbol for a religious or cultural purpose, such as people of Hindu, Buddhist, and Jain faith. The exception for religious use is intended to ensure any limitation of religious or cultural rights is the least restrictive possible. However, a person seeking to rely on an exception may need to adduce or point to evidence that the display symbol was for a genuine religious or cultural purpose.

Importance of the purpose of the limitation

The purpose of the limitation is to minimise the harm that display of a Nazi symbol in public causes to the Jewish community and other affected groups, by restricting display to a list of prescribed circumstances.

The Inquiry found that the Jewish community in Victoria is experiencing vilification on the basis of their religion in increasing frequency and severity. In November 2020, the Executive Council of Australian Jewry reported a marked increase in the number of the most serious categories of antisemitic incidents, including physical assault, direct verbal abuse, harassment and intimidation. Prohibiting the public display of Nazi symbols minimises the harm caused to the Jewish community and others by such displays and sends a clear message to the entire Victorian community that the public display symbols of this nature is extremely harmful and not acceptable.

Nature and extent of limitation

By creating reasonable and in good faith exceptions, the offence places an evidential burden on the accused, requiring them to raise evidence that the display of the symbol was for a genuine religious or cultural purpose. However, in doing so, this 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 preamble or opening statement in the Bill acknowledges the importance of the swastika as a benevolent symbol for Buddhist, Hindu, Jain and other religions, which signals to the public, police and courts, that the ongoing use of the religious and cultural swastika by faith communities is not intended to be inhibited by the Bill or prosecuted under the offence.

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 by denouncing and prohibiting the display of hateful symbols and ideology, while also ensuring appropriate uses of the Nazi symbol are permitted.

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

It is possible the burden for demonstrating a religious or cultural purpose for a public display of a symbol could instead rest with the prosecution as an element of the offence. However, this would require the prosecution to prove beyond reasonable doubt that a symbol 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. It would also create inconsistencies with the approach to all other exceptions, such as artistic use or opposition to Nazism and neo-Nazism. In addition, whether a person is displaying a symbol for a religious or cultural purpose is a matter peculiarly within the knowledge of that person. Such persons are best placed to provide evidence as to whether the display was for a religious or cultural purpose.

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

Section 15(2) of the Charter provides the right to freedom of expression includes the freedom ‘to seek, receive and impart information and ideas of all kinds’. 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) [1992] 14 EHRR 123).

The right 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 of specified Nazi symbols.

The importance of the purpose of the limitation

The creation of an offence to prohibit the intentional public display of Nazi symbols is therefore intended to protect against the individual harm and wider community distress caused by these symbols.

Nature and extent of the limitation

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 depicts a Nazi symbol in public.

Given how deeply upsetting and harmful the display of Nazi symbolism can be to community members that view these symbols, especially for Jewish communities and other groups, this limitation is 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.

Additionally, the offence will only apply to the Hakenkreuz, the most widely recognised symbol historically associated with Nazi and neo-Nazi ideology.

In line with the purpose of the Bill, the application of the offence is further confined so it does not apply to situations where the Nazi symbol is being displayed for another appropriate purpose, rather than as a symbol of hate. The Bill also contains a list of exceptions which exempt situations where a symbol is publicly displayed for reasons such as:

• for a genuine academic, artistic, religious, cultural or educational purpose; and

• making or publishing a fair and accurate report of any event or matter of public interest; and

• expressing opposition to fascism, Nazism, neo-Nazism or other related ideologies.

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 by denouncing and prohibiting the display of hateful ideology, while also ensuring that appropriate uses of the Nazi symbol are permitted.

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

The Bill does not include a requirement that a person intended to harm or vilify a particular person or group as a result of displaying a Nazi symbol. This reflects the fact any display of a Nazi symbol to which an exception does not apply can cause harm to members of communities impacted by the Nazi regime, by making them feel excluded or at risk of harm.

The Bill is also limited in scope to only displays of the Hakenkreuz, rather than a large number of other symbols associated with Nazi ideology. This recognises the Hakenkreuz’s position as the most well-known symbol of Nazi ideology and is the symbol which has most frequently been used in Victoria to intimidate, cause offence and promote hateful ideologies.

Further, the offence will not prohibit Nazi symbol 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.

The offence limits the right to freedom of association and right to public life by preventing people who wish to use a Nazi symbol to display their political ideology from doing so 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 display of Nazi symbols.

The importance of the purpose of the limitation

The creation of an offence to prohibit the intentional public display of Nazi symbols is intended to prevent the harm caused by the display of these symbols. The Inquiry’s findings showed that far-right extremist cohorts are rising in number and have led to an increase in public gatherings displaying symbols of hate.

Nature and extent of the limitation

The narrow scope of the offence means that groups who hold beliefs associated with Nazi ideology may still assemble in public or participate in the conduct of public affairs without a Nazi symbol being displayed 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 or display Nazi symbols in private. They will also be able to publicly display their association with or support for such ideologies or groups through other means, including the use of symbols to which the offence does not apply.

The limitations on both rights are reasonable and justified given the significant harm caused by the public display of these symbols 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 symbols to display their ideology.

Relationship between the limitation and its purpose

The inclusion of ‘public place’ in new section 41K(1) of clause 3 (the offence) is essential to the purpose of the Bill. The significant harm caused can only be addressed by prohibiting public display as this is where the harm is caused.

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

The Bill is also limited in scope to only displays of the Hakenkreuz, rather than a large number of other symbols associated with Nazi ideology. This recognises the Hakenkreuz’s position as the most well-known symbol of Nazi ideology and is the symbol most frequently used in Victoria to 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 the power to seek a warrant to search and seize property that may be publicly displayed within the next 72 hours or that has already been publicly displayed. This power under new section 41M in clause 3 permits Victoria Police to enter any place to seize property which displays Nazi symbols.

Importance and the purpose of the limitation

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

Nature and extent of the limitation

Police 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

This limitation is intended to support the practical enforcement of the offence and to prevent any further harm caused by the continued display of a Nazi symbol.

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

Right to be presumed innocent until proven guilty according to law (section 25)

Nature of the right

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right 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 or point to evidence to suggest, that they are not guilty of an offence.

The Bill limits the right by creating an offence for the public display of Nazi symbols which contains a list of exceptions under new section 41K in clause 3 that place an evidential burden on the accused to raise evidence to suggest that display was ‘engaged in reasonably’ and ‘in good faith’ for one of the prescribed exceptions.

Importance of the purpose of the limitation

The limitation minimises the harm caused by the display of Nazi symbols in public by limiting display to a list of defined circumstances.

Nature and extent of the limitation

By creating reasonable and in good faith exceptions, the offence places an evidential burden on the accused since it requires the accused to raise evidence that the display of the symbol was for a prescribed purpose. However, in doing so, this 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 a Nazi symbol. By contrast, the manner and purpose for which a Nazi symbol is publicly displayed will be knowledge held by the accused in all cases, as it concerns their own actions and intentions. The burden is also necessary to prevent a person from displaying a Nazi symbol under an exception dishonestly for some inappropriate purpose. The limitation reflects the significant harm that display of a Nazi symbols cause to the community and is proportionate with the maximum penalty imposed (maximum one year imprisonment or a fine of 120 penalty units or both). This limitation is therefore reasonable and justified in the circumstances.

Relationship between the limitation and its purpose

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

It is possible that the burden for demonstrating an exception applies for a public display of a symbol could instead rest with the prosecution as an element of the offence. However, this would require the prosecution to prove beyond reasonable doubt that a symbol was not displayed in good faith and reasonably for all prescribed purposes in every case, even where there is no evidence suggesting any such purpose applies. In addition, whether a person is displaying a symbol for a prescribed purpose is a matter peculiarly within the knowledge of that person. Such persons are best placed to provide evidence as to whether the display was for a prescribed purpose.

For these reasons, any limitation on the right to be presumed innocent 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.

Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (18:13): I move:

That the second-reading speech be incorporated into Hansard.

Can I note with the chamber that upon further consultation the government moved an amendment in the Legislative Assembly to bring forward the commencement of the bill by six months. A default commencement period of six months means that public displays of Nazi hate symbols and subsequent harm this causes can be dealt with sooner, while still allowing time for the offence to properly be implemented.

Motion agreed to.

Mr LEANE: I move:

That the bill be now read a second time.

Incorporated speech as follows:

I am proud to deliver this Bill which fulfils a Victorian Government commitment to implement recommendation 24 of the 2021 report of the Legal and Social Issues Committee’s (Committee) Inquiry into Anti-Vilification Protections in Victoria (Report) to ban the public display of Nazi symbols. It also forms part of the Government’s broader commitment to introduce a suite of reforms to strengthen anti-vilification protections in Victoria.

The Government is committed to protecting the rights of all Victorians to be free from racism, vilification and hatred, and to ensure all Victorians feel welcome and accepted. The harm caused by hate conduct and vilification can be profound, affecting the physical and psychological wellbeing of individuals and often preventing them from feeling comfortable participating in their community.

The Government is deeply concerned by the recent increase in the public display of Nazi symbols in our community. In particular, recent displays have used the Hakenkreuz (often commonly known as the Nazi swastika) to convey messages of hate and intimidation, given the broad recognition of this symbol and its association with Nazism. Recent examples include:

• in January 2020, a Nazi flag depicting the Hakenkreuz was flown on private property in Beulah, easily visible by members of the community,

• in May 2020, a Hakenkreuz was graffitied onto Cranbourne Golf Club, which was founded by members of the Jewish community,

• in March 2021, a person was photographed wearing a hat with a Hakenkreuz at Richmond train station, and

• in April 2022, Federal Treasurer Josh Frydenberg’s campaign signs bearing his image were defaced with antisemitic imagery, including a Hakenkreuz drawn on his forehead, in the electorate of Kooyong.

The display of symbols associated with Nazi and neo-Nazi ideology is harmful and offensive to all members of our society, and particularly to the Jewish community. The display of such symbols in Victoria is particularly abhorrent given, outside of Israel, Melbourne has the largest per capita concentration of Holocaust survivors in the world. The Government also acknowledges that the public display of Nazi symbols is used to communicate hatred and cause harm to a wide range of other groups, including Aboriginal and Torres Strait Islander people, LGBTIQ+ people, people with disability and other racial and religious groups.

The dissemination of these ideas through the public display of Nazi symbols undermines social cohesion by provoking animosity between Victorians of different ethnic and religious backgrounds, and threatens the viability and success of our democratic, multicultural and multi-faith society.

The Government respects and acknowledges that the swastika has great cultural and religious significance for some faith communities—particularly the Hindu, Buddhist and Jain communities. The use and significance of the symbol by these communities long pre-dates its more recent associations with Nazism. The swastika has been used in these communities for millennia as an ancient and auspicious symbol of purity, love, peace and good fortune. It was only after the swastika was misappropriated by the Nazi party and the Third Reich in Germany that it became a symbol of racism and hate, especially in western society. Sadly, it is this more recent association that will be more familiar to many in our society, who may not appreciate the long history and deep significance of the symbol for our faith communities. The swastika continues to be embraced by members of these religions and can be found in places of worship, architecture and religious books, as well as in commercial and personal settings such as people’s homes. The Government makes clear that the use of the swastika by these religious communities should continue unimpeded and should never fall within the scope of this offence. Importantly, the Bill directly recognises the cultural and religious significance of the swastika, and clearly distinguishes this symbol from the Hakenkreuz used by the Nazi party and Third Reich.

Purpose of the offence

The Bill creates a criminal offence in the Summary Offences Act 1986 which prohibits a person from intentionally displaying a Nazi symbol in a public place or in public view if the person knows, or ought reasonably to know, that the Nazi symbol is a symbol associated with Nazi ideology.

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

The Bill sends a clear and strong message to the community that the public display of Nazi symbols is not acceptable and has wide-ranging impacts on affected groups and society.

The Bill offers a clear response to the recent rise in the public display of Nazi symbols by addressing existing gaps in the criminal law which enabled these displays to occur.

Opening statement

The Bill includes a preamble, or opening statement, which provides vital context to the application of the offence. The opening statement was co-designed with leaders from the Jewish, Hindu, Buddhist and Jain communities to ensure it appropriately reflects their views. The government thanks each community for their important contributions to the opening statement and their generosity in assisting with the development of this Bill.

In particular, the opening statement 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. The distorted version of the symbol is also known as the Hakenkreuz (twisted or hooked cross in German). The Hakenkreuz became a symbol of the Third Reich, under which heinous crimes were perpetrated against humanity, particularly the Jewish people.

It is important to acknowledge that a swastika and Hakenkreuz are visually very similar and in some cases may appear identical. However, the intention behind the use of a swastika and Hakenkreuz is fundamentally different. The opening statement is intended to acknowledge these similarities but make clear that the use of the swastika by Buddhist, Hindu and Jain faiths should never fall within the scope of the offence.

The government acknowledges there is a diversity of views within Victoria’s religious communities about the creation of this offence. Throughout consultation on this offence the government heard clearly that all faith communities strongly support the intention of the offence to reduce vilification of Victoria’s Jewish community. However, there are also concerns the offence may lead to increased vilification of the Hindu, Buddhist and Jain communities who continue to lawfully display the swastika. The offence has been carefully drafted to ensure the rights of these faith communities to display the swastika are not limited. However, for some faith communities this does not fully address their concerns and they do not support the Bill in its current form. The government recognises these concerns and the ongoing need to ensure the offence does not negatively impact these faith communities.

Prohibited symbols

The Bill only lists one symbol—the Hakenkreuz—as a prescribed Nazi symbol. The Government recognises there are a range of other Nazi symbols which are often used to promote Nazi and neo-Nazi ideology such as the SS (Schutzstaffel) symbol, the Nazi Iron Cross and the Nazi eagle. The public display of these symbols also causes harm and fear for the Jewish community and others targeted by the Third Reich.

However, the Hakenkreuz is specifically targeted by this ban given it is the most widely recognised symbol historically associated with Nazi and neo-Nazi ideology and its display in any form can cause harm and offence. In addition, the Hakenkreuz sadly continues to be the symbol adopted in many high-profile displays, such as the Nazi flag which was flown on private property in Beulah. Limiting the list of prohibited symbols to only the Hakenkreuz also appropriately balances the breadth of the offence and the absence of a requirement to incite hatred or cause harm through the display of the Nazi symbol.

The Government acknowledges by limiting the offence to only cover the Hakenkreuz, it is possible other Nazi symbols may be publicly displayed to avoid penalties under the offence. As noted in response to recommendation 25 of the Committee Report, the Government will work with Victoria Police and other relevant agencies to monitor the public display of other hateful symbols to determine whether further symbols should be prohibited under the offence in the future.

Definition of ‘Hakenkreuz’

The Bill defines a Hakenkreuz as ‘a symbol of the cross with the arms bent at right angles in a clockwise direction’, or a symbol that so nearly resembles a Hakenkreuz that the symbol is likely to be confused or mistaken for it.

Although the Hakenkreuz is more widely known as a swastika or Nazi swastika, this term is adopted as it creates a distinction in language from the swastika of the Buddhist, Hindu, Jain and other faith communities, which has been used for millennia. The word swastika comes from the Sanskrit svastika, which means ‘good fortune’ or ‘well-being’.

For the avoidance of doubt, the distinction in the Bill between the words Hakenkreuz and swastika does not create a de facto intention element requiring that the display of the symbol must intend to promote, or relate to, Nazism or neo-Nazism. Any display of a Nazi symbol as defined under new section 41J in clause 3 is prohibited unless an exception applies.

The display of a Nazi symbol is not limited only to its display on a Nazi flag. The offence would apply to the display of the Nazi symbol in any format, whether on a flag, graffiti or clothing.

Definition of ‘public place’

The offence will prohibit the intentional display of a Nazi symbol in a public place. The term ‘public place’ relies on the existing definition within the Summary Offences Act 1986 with some modifications. In particular, the definition of public place has been expanded beyond only government schools to also include non-government schools and other post-secondary education institutions. This ensures equal application of the offence across all educational settings. It is appropriate the offence applies to some places that would otherwise be private due to the possibility of a Nazi symbol being displayed in these places and the potential for the display to cause considerable harm.

The offence also applies where a display is in public view (i.e. occurs in sight of people who are in a public place). This encompasses displays of a Nazi symbol on a private premises if it is visible to the public. For example, it would capture the January 2020 incident in Beulah where a flag was flown on private property but was visible from the street. This acknowledges the harm public display of Nazi symbols causes in the community, regardless of where the symbols are physically located.

The private possession of Nazi symbols will still be allowed, provided the symbols are not able to be seen from a public place. This recognises the broader harms caused when Nazi symbols are used to communicate hatred and racist ideologies to the public.

Fault elements of the offence

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

The offence adopts an intention element to ensure accidental public displays are not captured by the offence. For example, the offence would capture the March 2021 incident where a person wore a hat with a Hakenkreuz at Richmond train station as this display was clearly intentional. It would not capture a person who, while walking in a public place with posters in their bag which contain the Hakenkreuz, trips and the posters are inadvertently displayed to members of public.

The knowledge element requires either that:

1. the person knows the symbol is associated with Nazi ideology (subjective knowledge), or

2. a reasonable person in the position of the person who displayed the symbol would have known that it was associated with Nazi ideology (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 Hakenkreuz, and where a reasonable person (of the same age) in the child’s position ought not to have known the Hakenkreuz is a symbol associated with Nazi ideology, 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 Hakenkreuz 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 penalised and is not unfair in its application.

Penalty

The offence for the intentional public display of a Nazi symbol has a maximum penalty of one year imprisonment or a fine of 120 penalty units or both. This penalty 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.

Exceptions

In line with the Committee Report’s recommendation, the Bill includes a range of exceptions to the offence. The exceptions are based on current exceptions to unlawful conduct in the Racial and Religious Tolerance Act 2001 with some modifications to reflect the specifics of the offence. The exceptions to the offence apply where the display was engaged in reasonably and in good faith:

• for a genuine academic, artistic, religious or scientific purpose;

• for a genuine cultural or educational purpose;

• in making or publishing a fair and accurate report of any event or matter of public interest; or

• in opposition to fascism, Nazism, neo-Nazism or other related ideologies.

The offence also does not apply where the display is by means of tattooing or other body modification, or where displayed by a law enforcement or intelligence officer in the performance of the officer’s or member’s duties and is done in good faith.

Genuine academic, artistic, religious and scientific purpose

The exceptions for genuine academic, artistic, religious and scientific purpose specifically mirror the current exceptions to unlawful conduct in the Racial and Religious Tolerance Act 2001. The religious purpose exception is particularly important to those of the Hindu, Buddhist and Jain faiths, to ensure the swastika can continue to be displayed as symbol of purity, love, peace and good fortune. The use of the swastika by religious communities should never be the target of this offence. To this end, the Bill includes a number of examples which reflect some of the circumstances in which the swastika continues to be used by the Hindu, Buddhist and Jain faiths to aid with education, training and awareness about the religious exception.

Genuine cultural and educational purpose

The Bill includes two exceptions which are not currently contained in the Racial and Religious Tolerance Act 2001. These exceptions have been included to reflect stakeholder feedback about the breadth of circumstances where the Hakenkreuz or swastika should continue to be allowed to be lawfully displayed.

The cultural exception recognises while the swastika has its origins in the Hindu, Buddhist and Jain faiths, its use can often be a mixture of both religion and culture. Religion and culture are closely intertwined and often not readily able to be separated. To ensure faith and cultural communities can continue to use the swastika with confidence, the Bill includes a separate cultural exception to overcome concerns the religious exception alone may be too narrow.

An educational exception has been included to reflect the very broad range of circumstances in which the Hakenkreuz is displayed to educate and raise awareness. It overcomes concerns the academic exception alone may be too narrow to cover all such circumstances. For example, the Hakenkreuz is often displayed as part of Holocaust awareness training. Similarly, the Hakenkreuz may be displayed on educational items for sale, such as textbooks in a bookshop.

Making or publishing a fair and accurate report of any event or matter of public interest

The Bill includes an exception where material is displayed reasonably and in good faith in the making or publishing of a fair and accurate report on any event or matter of public interest. This exception reflects a current exception to unlawful conduct in the Racial and Religious Tolerance Act 2001 and is intended to ensure, for example, news coverage of a demonstration or political commentary on the harm caused by the display of Nazi symbols can continue.

Opposition to fascism, Nazism, neo-Nazism or other related ideologies

The Bill includes an exception where material is displayed reasonably and in good faith in opposition to fascism, Nazism, neo-Nazism or other related ideologies. This exception is based on an exception to a similar offence in Germany and is intended to balance the right to protest against the breadth of the offence. It would allow, for example, the display of a Nazi symbol at a public rally in denouncement of Nazism.

The exception is not limited to opposition to Nazism and neo-Nazism alone and includes ‘other related ideologies’. This acknowledges the fact the Hakenkreuz is often used to promote a range of hateful ideologies, such as racism. The inclusion of ‘other related ideologies’ ensures displays of a Hakenkreuz to clearly oppose such ideologies—such as displaying a flag of Nazi Germany with a marking through it—would not fall within the scope of the offence.

Tattoos and other like processes

The offence does not apply where the public display of a Nazi symbol 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.

In terms of human rights considerations, as noted in the accompanying Statement of Compatibility, a ban on public displays by means of tattooing or like process would be incompatible with the Charter at this time. If the offence applied to an individual with a Nazi symbol tattoo in a conspicuous position on their body (e.g. face), that person’s rights to freedom of movement and expression, as well as taking part in public life, would be strongly curtailed. The individual would be required to perpetually cover their tattoo or would otherwise commit a new offence each time they were in public. At present, there is insufficient evidence suggesting displays of Nazi symbol tattoos gives rise to a social pressing need to warrant such a strong limitation of human rights. However, should the display of Nazi symbol tattoos become a significant issue, there would be a greater case to expand the offence to capture tattoos in the future.

Aside from human rights issues, tattoos create many practical enforcement issues. While it may be possible to ban prospective Nazi symbol tattoos (i.e. tattoos given after the commencement of the offence), this would be very difficult to enforce as police would not be able to easily determine when a tattoo was created. The Government is also not proposing a ban on new tattoos in Victoria. This would have only a small impact as individuals could still receive such tattoos outside Victoria.

The Government will monitor the public display of Nazi symbol tattoos. The display of tattoos and other like processes to incite hatred or violence will be considered when implementing the Committee Report’s recommendations to reform vilification offences. These included recommendations to lower the civil incitement test, implement a new civil harm-based provision and to simplify and lower other thresholds for criminal vilification offences.

Law enforcement or intelligence officer exception

There is a specific exception for a law enforcement officer and member of an intelligence agency, where the public display of a Nazi symbol 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 Nazi symbols as part of their role.

Connected with the administration of the justice system

The Bill includes an exception for a person that displays a Nazi symbol in the course of official duties connected with the administration of the justice system, including the investigation or prosecution of offences, if the display 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 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 Bill requires the written consent of the Director of Public Prosecutions before the commencement of a prosecution of a child for the offence. 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 of the Nazi symbol.

Trade and sale of historical Nazi memorabilia

The government acknowledges the harm which can be experienced through knowing Nazi memorabilia is being traded for profit, even where such items are not being publicly displayed. While the offence does not prohibit the public trade and sale of historical Nazi memorabilia, it will have some direct impact. In particular, for trade that does not fall within an exception—such as trade purely for commercial or personal reasons—traders will need to cover the Hakenkreuz or avoid trading altogether to avoid prosecution. This reflects the focus of the Bill on public display as the most significant harm.

Trade of Nazi memorabilia that is clearly educational or cultural in nature—such as the sale of an educational textbook on World War II which has a Hakenkreuz on the cover—will fall within the exceptions for display for a genuine educational or cultural purpose. The government will continue to consult with the Jewish community to monitor the impact of the offence on the trade of Nazi memorabilia, the impact of such trade more broadly and whether any further changes are required in the future, noting the difficulty posed in regulating online environments.

Police powers

The offence is accompanied by powers for Victoria Police to remove a Nazi symbol from public display as soon as possible, to support the enforcement of the offence and enable police to take immediate steps to prevent continuation of the harm caused by the display of these symbols to the community.

The Bill will empower a police officer to direct a person to remove from display a Nazi symbol (whether on public or private property) if the police officer reasonably believes an offence is being committed. A police officer may give a direction to the person who caused the display, or the owner or occupier of a property on which the Nazi symbol is being displayed. The direction can be provided orally or in writing and can be left at a property or on a vehicle if the direction is not able to be given in person.

This power could be used in situations where there has previously been no power to remove the display of a Nazi symbol. While existing police powers will apply to the offence, this new power enables the removal of a Nazi symbol where it cannot be seized as evidence.

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

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. This is the same as an existing power under section 28 of the Racial and Religious Tolerance Act 2001, which enables serious vilification offences to be treated as indictable offences for the purpose of applying for and executing search and seizure warrants.

Commencement

The Bill will commence one year after Royal Assent, unless proclaimed earlier. This allows time to provide guidance and training on the offence to Victoria Police, and to develop and implement a community education campaign on the origins of the religious and cultural swastika, its importance to Hindu, Buddhist, Jain and other faith communities and its distinction to the Hakenkreuz. There will also be guidance and education provided to police officers and support for police engagement with faith groups on a local level.

I wish to thank all the stakeholders who engaged with the development of this Bill. In particular, I wish to extend a sincere thank you to faith leaders in the Buddhist, Hindu, Jain and Jewish communities, who took the time to share their lived experiences and provide vital input on the Bill. While I acknowledge that members of these communities may not support all aspects of this Bill, your contributions are greatly valued and have shaped and strengthened this landmark legislation. Future engagement will be undertaken to inform implementation of this reform and I wish to thank everyone in advance who will contribute to the implementation process.

I commend the Bill to the house.

Mr ONDARCHIE (Northern Metropolitan) (18:14): I note the government’s amendment, following the coalition’s indicators. I move:

That the debate be adjourned for one week.

Motion agreed to and debate adjourned for one week.

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Thursday, 9 June 2022

Summary Offences Amendment (Nazi Symbol Prohibition) Bill 2022