- Committee comment
Schedule 1: Prohibited Hate Symbols
3.1The Committee supports the intent of the proposed prohibitions on the public display and trade of hate symbols. The Committee agrees that public display and trade of symbols that represent ideologies of hatred, violence and racism cause significant harm to many Australians. These ideologies are incompatible with Australia’s multicultural and democratic society.
3.2The Committee notes evidence from the ECAJ and others that, in respect of Nazi symbols, the definition of prohibited hate symbols should be amended to refer to ‘Nazi symbols’ generally, rather than the Bill’s proposed definition of the Nazi Hakenkreuz and the double sig rune.
3.3On the other hand, the Committee notes evidence from the AFP that the Nazi Hakenkreuz and the double sig rune are the most prevalent symbols that it observes in its investigations. Further, the AFP emphasised the importance of clearly defining prohibited symbols to ensure its officers can enforce clear criminal laws. The AFP provided similar evidence to the Senate Legal and Constitutional Affairs Committee into the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 in May 2023. In light of this evidence, the Committee is of the view that the Bill should not be amended to extend to other Nazi symbols.
3.4The Committee also notes evidence from the ECAJ and others that the Bill be amended to include the Nazi salute. The Committee strongly condemns the actions of those who would seek to intimidate the parts of the Australian community with physical gestures such as the Nazi salute.
3.5However, the Committee is of the view that such an offence would not be appropriate as a federal offence, but rather is an appropriate matter for state and territory law. This acknowledges that it is state and territory police that have a presence in communities to respond to such conduct. The AFP, as a federal policing agency, has different and complementary responsibilities. The Committee is therefore of the view that the Bill should not be amended to extend to the Nazi salute.
3.6The Committee acknowledges the evidence from Muslim groups that the words displayed on the Islamic State flag constitute fundamental principles of the Islamic faith. It further acknowledges the concerns expressed that the prohibition of the Islamic State flag could demonise or otherwise allow for the targeting of Muslims in Australia.
3.7The Committee notes evidence by other stakeholders that queried why such a prohibition would not extend to other terrorist organisations.
3.8The Committee notes that, as currently drafted, the test in proposed paragraph 80.2E(d) that prohibits any symbol that so nearly resembles the prohibited symbols, that it is ‘likely to be confused with, or mistaken for’ the prohibited symbol; is an objective rather than subjective one. The Committee suggests that the term ‘reasonably’ should be inserted into this provision for the avoidance of any doubt about the nature of that test; so that it reads ‘is reasonably likely to be confused with or mistaken for, that thing’.
3.9While the Committee supports the policy intent underlying the Bill, the Committee has concerns with defining the Islamic State flag by reference to the Shahada and the Seal of the Prophet Mohammed. These are central tenets to the Islamic faith and, as the Explanatory Memorandum itself recognises, have been misappropriated by Islamic State.
3.10The Committee therefore recommends that the Bill be amended to remove the Islamic State flag from the definition of a prohibited hate symbol. The Committee proposes an alternative approach for the Government to consider in order to achieve the policy intent, taking account of the weight of evidence to the inquiry and the legitimate concerns of the Australian Muslim community. In this respect, the Committee is of the view that the intent of the Bill, prohibiting the public display and trade of symbols that promote extremist ideologies, may be better achieved by an approach that applies to terrorist organisations generally, rather than targeting Islamic State in isolation.
3.11The Committee therefore recommends the Government give consideration to establishing a new offence that would prohibit the public display and trade of symbols associated with terrorist organisations. Subject to development and adoption of this alternative proposal the Government may also consider targeting the new offence at the display of prohibited symbols intended to promote terrorism or terrorist groups, in order to reduce the risk of confusion by State and Territory Police forces in relation to the legitimate display of the Shahada and the Seal of the Prophet Mohammed.
3.12In making this recommendation the Committee stresses that if the Government adopts this approach, consistent with Recommendation 1, the Attorney-General’s Department should undertake further consultation with interested parties including on the text of proposed draft amendments in order to ensure there are no unintended consequences in the alternative approach.
3.13The Committee recommends that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to remove the Islamic State flag from the definition of a prohibited hate symbol. The Committee further recommends that the Government give consideration to establishing a new offence that would prohibit the public display and trade of symbols associated with terrorist organisations.
3.14The Committee notes the concerns by some in the community that trade in items bearing hate symbols. The Committee notes that the Bill does not prevent the private ownership of items bearing hate symbols, but does prevent a person from trading in such items.
3.15While the Committee notes the evidence from some stakeholders about this issue, the Committee did not receive evidence as to why people should be able to profit from the trade of such symbols. The Committee considers there is no place for the profiting from the trade of items that bear the symbols of ideologies of hate and extremism and therefore supports the offence in its current form. However, the Committee recommends the Bill be amended so that the offence provisions for the trading of items bearing a prohibited symbol do not come into force for a period of 6-12 months, so that collectors have a window in which to dispose of part or all of their collections if they so wish.
3.16The Committee recommends that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the offence provisions for the trading of items bearing a prohibited symbol do not come into force for a period of 6-12 months, so that collectors have a window in which to dispose of part or all of their collections if they so wish.
3.17The Committee notes evidence from Australia’s Right to Know that the news reporting exemption may not extend to editors, producers and others involved in the news and current affairs reporting process. The Committee therefore recommends that the Bill be amended to address this issue.
3.18The Committee recommends that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to extend the journalistic purpose exemptions in sections 80.2H(9)(b) and 80.2J(5) include editors, producers and others involved in the news and current affairs reporting process.
Schedule 2: Using a carriage service for violent extremist material
3.19The Committee notes evidence from the AFP that the increasing availability of violent extremist material online reflects the increasing diversity of violent ideologies falling within the extremist spectrum. The ease of access online has resulted in an increasing diverse cohort of persons of counter-terrorism interest. Further, access to such content may result in radicalisation being rapidly accelerated, and such material is often used to recruit young people.
3.20The Committee notes concerns from some stakeholders about the breadth of the proposed offences. However, the Committee also notes that the offences only include material that is so serious as to endanger public safety purely through its possession or distribution. As the Department commented, the purpose of the offence is to prevent violent extremist networks from using this material to radicalise others to, or assist others to engage in, violence. Such an approach maintains a person’s right to communicate and consume material freely without unreasonable restriction. The Committee considers that such an approach is appropriate balance.
3.21The Committee also notes evidence from Australia’s Right to Know that the proposed journalistic purpose defence may not extend to editors, producers and others involved in the news and current affairs reporting process. The Committee therefore considers that the Bill be amended to address this issue.
3.22The Committee recommends that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the journalistic purpose defence in section 474.45D(1)(e) include editors, producers and others involved in the news and current affairs reporting process.
Schedule 3: Advocating terrorism
3.23The promotion and idolisation of extremist views is of increasing concern, particularly with respect to young people becoming radicalised online. Glorifying terrorists or terrorist acts can incite others to imitate or seek to engage in similar behaviour, and further their radicalisation.
3.24To address this, the Bill proposes to expand the meaning of ‘advocates’ in the existing offence of advocating terrorism in section 80.2C of the Criminal Code. More specifically, the Bill proposes to include instructing on the doing of a terrorist act, or praising the doing of a terrorist act in circumstances where there is a substantial risk that such praise might lead someone to engage in a terrorist act.
3.25Recognising that advocating terrorism is a serious, intentional act that can incite violence against innocent Australians, the Bill would also increase the maximum penalty for this offence from 5 to 7 years imprisonment. The new penalty would more appropriately account for the potential severity of offending.
3.26The Committee supports both the proposed amendments to the definition of ‘advocates’ and increasing the penalties for such acts.
Schedule 4: Listing of terrorist organisations
3.27Since the introduction of the listings framework in 2002, the nature and threat posed by terrorist organisations has proved to be enduring. The Committee notes evidence that the majority of the 29 organisations currently listed under the Criminal Code display an enduring commitment to violence and advocacy of terrorist acts. Further demonstrating the enduring threat posed by terrorist organisations, some organisations have been re-listed as many as eight times.
3.28The Committee therefore supports the proposed amendments to remove the sunsetting requirements from the regulations that list terrorist organisations.
3.29The Committee notes that the Bill proposes important safeguards to ensure the list of terrorist organisations remains appropriate. This includes providing the Committee an expanded remit to enable it to review listings instruments at any time—providing an independent review process. The Bill strengthens existing safeguards by imposing a new obligation on the AFP Minister to consider the application as soon as practicable to further ensure that any listings are appropriate.
3.30The Committee notes submissions from the Joint Clerks that the Bill would enable the Committee to report its comments and recommendations directly to the AFP Minister. The Committee consider that this is not appropriate and that the Committee should only report to the Parliament on its activities as per its existing practices.
3.31The Committee recommends that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to clarify that any report by this Committee in respect of terrorist listings under the Criminal Code be presented to the Parliament.
3.32The Committee recommends that, subject to the amendments recommended in this report, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be passed by the Parliament.
Mr Peter Khalil MP
Chair
9 November 2023