Key points

• The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 introduces amendments to Commonwealth criminal laws to introduce new offences relating to extremist or terrorist behaviour, and to amend some existing laws relating to extremist or terrorist offences.
• The Bill will introduce offences related to displaying or trading in hate symbols such as the Nazi hakenkreuz, the double-sig rune and the Islamic State flag, following the introduction or discussion of similar offences in some states and territories.
• The Bill will introduce offences related to the use of a carriage service for violent extremist material and will broaden the scope of the offence of advocating terrorism.
• The Bill will also change the way that organisations that have been listed as terrorist organisations for the purposes of the Criminal Code Act 1995 are de-listed.
• Many stakeholders, while generally supportive of the aims of the proposed bans on hate symbols, have criticised the proposed Commonwealth offences for poorly targeting the intended behaviour and running the risk of creating unintended consequences such as prohibiting some legitimate forms of expression and commerce.
• Many stakeholders have argued that many of the offences in the Bill should be amended or reconsidered.
• Multiple issues with the Bill have also been raised by Parliamentary committees.
• The Bill is being reviewed by the Parliamentary Joint Committee on Intelligence and Security.

Introductory Info

Date introduced: 14 June 2023
House: House of Representatives
Portfolio: Attorney-General
Commencement: Schedules 1 and 2, and item 2 of Schedule 3, will commence the 28th day after Royal Assent. Schedule 3 item 1, and Schedules 4 and 5, will commence the day after Royal Assent

Purpose of the Bill

The purpose of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (the Bill) is to amend Commonwealth criminal laws to introduce new offences relating to extremist or terrorist behaviour, and to amend some existing laws relating to extremist or terrorist offences.

In particular, the Bill will introduce offences related to displaying or trading in hate symbols such as the Nazi hakenkreuz, the Nazi double-sig rune and the Islamic State flag, following the introduction or discussion of similar offences in the states and territories.

The Bill also includes several further amendments to introduce offences related to the use of a carriage service for violent extremist material and to broaden the scope of the offence of advocating terrorism. The Bill will also change the way that organisations that have been listed as terrorist organisations for the purposes of the Criminal Code Act 1995 (Criminal Code) are de‑listed.

Structure of the Bill

The Bill has 5 Schedules.

Schedule 1 amends the Crimes Act 1914 and the Criminal Code to introduce offences relating to public display or trade in offensive symbols.

Schedule 2 also amends the Crimes Act and the Criminal Code to introduce offences related to the use of a carriage service to possess or disseminate violent extremist material.

Schedule 3 amends the Criminal Code to expand the scope of the offence of advocating terrorism to include instructing on or praising a terrorist act, and to increase the maximum penalty from 5 to 7 years imprisonment.

Schedule 4 amends the Criminal Code to remove the automatic sunsetting of regulations specifying an organisation as a terrorist organisation. The delisting of such organisations will only occur following a Ministerial declaration.

Schedule 5 contains minor unrelated clarifying amendments to the Criminal Code.

Background

Schedule 1 – Prohibited symbols

Following recent public incidents in Australia and overseas there has been increased awareness of the need for protections against extremist displays of hate symbols.[1] As a result, several states and territories have introduced related legislation and private Bills have been introduced at the Commonwealth level. These are discussed below.

The Attorney-General, Mark Dreyfus, stated that the aspects of the Bill that criminalise the public display and trading of the prohibited Nazi and Islamic State symbols were intended to complement the state and territory laws, and that the Bill ‘extends to matters where the Commonwealth has particular responsibilities, including those with respect to trade and the online environment.’[2]

Previous Non-Government Bills

The Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (Nazi Symbols Bill) was introduced by Senator Michaelia Cash in March this year, and the substantially identical Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 [No. 2] (Nazi Symbols Bill No. 2) was then introduced by Julian Leeser in May. These Bills proposed to amend the Criminal Code to prohibit the public display of Nazi symbols, including the making of the Nazi salute, with a penalty of up to 12 months imprisonment, or 100 penalty units.[3] The offences would have included exemptions for display with a reasonable excuse or for other legitimate purposes, and would not have applied to the display of a swastika in connection with Buddhism, Hinduism or Jainism.

The Senate Legal and Constitutional Affairs Legislation Committee held an inquiry into the Nazi Symbols Bill and published its Report in May 2023. While the Committee ‘wholeheartedly’ supported the intent of that Bill,[4] it had concerns with some aspects such as definition and scope, fault elements and constitutional support.[5] The Committee therefore recommended that the Nazi Symbols Bill not be passed and that ‘the government [consider] introducing its own bill as a matter of urgency, taking into consideration the issues raised above.’[6]

State and territory bans of Nazi symbols

Since 2022, New South Wales, Victoria, Tasmania and the ACT have legislated offences for publicly displaying Nazi symbols,[7] while Queensland and South Australia have similar Bills before their parliaments.[8] Western Australia has announced an intention to introduce similar legislation.[9]

New South Wales

The Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 was assented to in August 2022. The Act amended the Crimes Act 1900 to create an offence for knowingly displaying a ‘Nazi symbol’ by public act without reasonable excuse.[10]

The display of a swastika in connection with Buddhism, Hinduism or Jainism does not constitute a display of a Nazi symbol.[11] The reasonable excuse exemptions include reasonable and good faith display for an academic, artistic or educational purpose, or for another purpose in the public interest.[12]

Victoria

The Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022, passed in June 2022, came into force in December 2022 and amended the Summary Offences Act 1966 to insert an offence for intentionally displaying a Nazi symbol (a hakenkreuz or a symbol resembling it) in public if the person knows, or ought reasonably to know, that the symbol is associated with Nazi ideology.[13]

There are exemptions for a display that is made reasonably and in good faith for a genuine academic, artistic, religious or scientific purpose; or for a genuine cultural or educational purpose; or 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. Tattoos and the like are also exempt.

Tasmania

Tasmania passed the Police Offences Amendment (Nazi Symbol and Gesture Prohibition) Act 2023 (Tas) on 31 August 2023, amending the Police Offences Act 1935 to insert offences of the intentional public display of Nazi symbols or performance of gestures. The new offences apply to symbols associated with the Nazis or with Nazi ideology or a symbol that resembles one, or to a depiction, or recording, of a Nazi gesture, or to the performance of a Nazi gesture. A Nazi gesture includes the Nazi salute or another prescribed gesture.

There are exemptions for a display that is for legitimate public purpose such as genuine academic, artistic, religious, scientific, cultural, educational, legal or law enforcement purposes; for the purpose of opposing, or demonstrating against relevant ideologies; making or publishing of a fair and accurate report in the public interest; or another purpose that is in the public interest. It is also a defence if the symbol has been permanently tattooed, marked on or affixed to the person's body.

In the case of the gesture offence, it is a defence if the performance of the Nazi gesture was reasonable, and performed in good faith, for a genuine academic, artistic, religious, scientific, cultural, educational, legal or law enforcement purpose.

Australian Capital Territory

The ACT passed the Crimes Legislation Amendment Act 2023 (ACT) on 29 August 2023, which included amendments to the ACT Criminal Code 2002 to create a new offence of intentional public display of Nazi symbols. The offence applies to a hakenkreuz or a symbol resembling it.

There are exemptions for tattoos or similar markings; reasonable and good faith display for genuine academic, artistic, religious or scientific purposes; for genuine cultural or educational purposes; in making or publishing a fair and accurate report of an event in the public interest; or in opposition to relevant ideologies.

International bans

Several other countries have banned the use of Nazi and other hate symbols, and have included exemptions for legitimate uses that do not aim to promote hatred.[14] Some examples are briefly discussed below.[15]

Germany

Section 86a of the German Criminal Code (Strafgesetzbuch/StGB) prohibits the use of symbols connected to ‘unconstitutional and terrorist organisations’. The Code criminalises the ‘dissemination of symbols’ as well as their ‘use’ in public. Symbols include flags, insignia, uniforms and their parts, slogans and forms of greeting. Section 86a applies to the symbols of one of the political parties or organisations designated in section 86. Section 86 provides that the organisations may be declared unconstitutional by the Federal Constitutional Court, banned by final decision, or may be outside the territorial scope of the statute but is actively pursuing the objectives of one of the political parties or organisations referred to, or is intended to further the activities of a former National Socialist organisation.

There are exemptions for displaying of symbols for the purposes of civic education, countering anti-constitutional activities, art and science, research and education, the coverage of historic and current events, or similar purposes.

The prohibition in section 86a also covers the production, stocking or trade in ‘content’ related to prohibited symbols.[16]

France

Article R645-1 of the French Criminal Code prohibits the wearing or displaying of uniforms, insignia or emblems related to organisations responsible for crimes against humanity. The offence focuses on wearing or exhibiting those items in public. The punishment is a fine and additional penalties including a ban on owning weapons for up to 3 years, confiscation of weapons and offensive material, and community service. There are exceptions for conduct which includes the ‘purposes of a film, a show or an exhibition containing a historical evocation.’

Austria

The Abzeichengesetz 1960 prohibits the public display, depiction or dissemination of insignia which includes emblems, symbols and signs. Punishment is a fine of up to 4,000 Euros or imprisonment of up to 1 month. There are exceptions for printed works, pictorial representations, performances of stage and film works, or exhibitions which do not seek to endorse or propagate Nazi ideologies.

The National Socialism Prohibition Act 1947 also provides for several offences relating to the furthering of Nazi ideology objectives. These include offences relating to maintaining or re‑establishing a National Socialist organisation or one in its spirit, promoting the further development of any such organisations or inducing others through publications, documents distributed or illustrations in public to perform forbidden acts associated with such organisations.[17]

Other Schedules

Schedule 2 - Use of a carriage service to possess or disseminate violent extremist material

Section 51(v) of the Constitution provides the Commonwealth with power to make laws with respect to ‘postal, telegraphic, telephonic, and other like services’. This ‘telecommunications power’ gives the Commonwealth the power to make laws with respect to the internet, or ‘carriage services’ and so the Commonwealth may introduce laws that complement other criminal offences introduced by states and territories.

In light of the growing use of the internet to disseminate all forms of information and communication, the Explanatory Memorandum notes that the range of online offences in the Criminal Code has not kept up with the occurrence of violent extremist material being disseminated online:

Extremists are using the internet to recruit, spread propaganda and incite violence, particularly by targeting young people. Law enforcement, however, is limited in its ability to prosecute people for dealing with violent extremist material. While it is a crime to possess material that is connected with a terrorist act (for example, sections 101.4 to 101.6 of the Criminal Code) it is not currently a crime to deal with violent extremist material where, for example, planning or preparation for a terrorist act has not yet begun. This Bill would fill that gap by creating new offences for using a carriage service for violent extremist material … and possessing or controlling such material that has been accessed or obtained using a carriage service …[18]

Schedule 3 – Advocating terrorism

As discussed below, the amendments of Schedule 3 will increase the penalty for, and expand the definition of, the offence of advocating terrorism. Regarding the reason for this, the Explanatory Memorandum notes that the ‘promotion and idolisation of extremist views is of increasing concern, particularly with respect to young people becoming radicalised online’ (p. 5).

Schedule 4 – Regulations listing terrorist organisations

The ability to ‘list’ terrorist organisations in regulations, and a range of related terrorist organisation offences, was inserted into the Criminal Code in 2002. The names of the 29 currently listed terrorist organisations are published on the Australian National Security website. The website also provides the dates of the listing (and relisting) of each of these organisations.

The amendments in Schedule 4 would provide that regulations which prescribe terrorist organisations do not sunset, or lapse, after three years, but will instead continue unless the Minister decides otherwise. The Explanatory Memorandum notes that this change is being introduced ‘due to the fact that most organisations have been relisted repeatedly’ (p. 5).

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Submissions closed on 21 July 2023 and 150 have been published on the Committee webpage.

Parliamentary Joint Committee on Human Rights

The Committee has considered the Bill and, after raising ‘significant human

rights concerns’ also made a number of recommendations for amendments to the Bill in relation to the measures introduced in Schedules 1, 2 and 3.[19]

In particular, the Committee recommended that Schedule 1 be amended to, among other things:

• define each of the prohibited symbols that are to be prohibited, including, at a minimum, a written description of the symbols
• introduce flexibility about the criminalisation of tattooed symbols
• include ‘a specific exception with respect to displaying the sacred Swastika in connection with Buddhist, Hindu and Jain religions as well as the Shahada in connection with the Muslim religion’
• broaden the exception for journalists to also exempt citizen journalists.[20]

The Committee recommended that if Schedule 2 ‘were to proceed notwithstanding the significant human rights concerns raised’, it should be amended in various ways, including to narrow the definition of 'violent extremist material' and to broaden the exception for journalists to also exempt citizen journalists.[21]

The Committee also recommended that if Schedule 3 ‘were to proceed notwithstanding the significant human rights concerns raised’, it should be amended to provide guidance as to the interpretation of key terms in the measure, including 'instruction’, 'praises' and whether there is a 'substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence'.[22]

Senate Standing Committee for the Scrutiny of Bills

The Committee considered the Bill in its Scrutiny Digest 9 of 2023, and made substantial comment on the Bill. The Committee asked the Attorney-General to amend some provisions and to further justify certain measures in Schedules 1, 2 and 3 of the Bill, and to provide justification for the exemption from sunsetting for regulations in Schedule 4.[23] At the time of writing this Digest, a response from the Attorney-General has not been published.

Position of major interest groups

The PJCIS Inquiry into the Bill received a large number of submissions, and while most were broadly supportive of the aims of the Bill, many raised concerns with specific aspects of the proposed offences. In particular, many concerns related to the potential for unintended prohibitions and consequences resulting from the relatively complex interaction of the specifically defined offences and exemptions or defences in the proposed new provisions relating to hate symbols in Schedule 1.

The Law Council of Australia (LCA) provided a lengthy submission to the Inquiry, containing numerous recommendations. The LCA was concerned that ‘a number of measures contained in the current Bill have not been demonstrated to be effective, necessary or proportionate, and, therefore, the Bill should not proceed in its current form, at least without further justification.’[24]

Additionally, if the Bill were to proceed, the LCA made 16 specific recommendations for the amendment of provisions or associated considerations.[25]

Numerous submissions were received from the military collecting and reenactment communities, both organisations and individuals, expressing concern that the amendments in Schedule 1 would affect their hobby by banning the use, display or trade of memorabilia or historic items bearing Nazi symbols.[26]

The Australian National Imams Council expressed concern that the proposed ban of the Islamic State flag would ‘unjustifiably restrict and marginalise Australian Muslims’ due to the possible unintended consequences of banning the Islamic State flag which has ‘misappropriated’ an important religious image and a phrase ‘used and referred to by all Muslims worldwide’ (pp. 2, 3).

The Islamic Council of Victoria also noted that the limitations on the display of the symbols may be in breach of the protection of section 116 of the Constitution which prevents the Commonwealth from ‘prohibiting the free exercise of any religion’.

The Executive Council of Australian Jewry (ECAJ) provided detailed discussion of the issues raised and made 10 recommendations relating to Schedule 1. These are discussed under the relevant provisions below.[27]

Australia’s Right to Know coalition of media organisations (ARTK) submitted that while some offences in the Bill (proposed sections 80.2H and 80.2J) include a journalism exception, which the group welcomed, other offences only provide for journalism as a defence. The group submitted that this could ‘prevent reporting on issues including keeping the public aware and informed of activities of supremacist and terrorist organisations’, and the exception for journalism should be expanded to cover all offences.[28]

Regarding the offences of Schedule 2 relating to the use of a carriage service for violent extremist material, ARTK also submitted that ‘(a)n exception should be included for the possession and internal transmission of violent extremist [material] used for journalistic purposes.’[29]

Professor Katharine Gelber, of the University of Queensland, an expert in the field of freedom of speech and the regulation of harmful speech, submitted numerous specific recommendations relating to the proposed amendments in Schedule 1 to better clarify and more appropriately target the offences.

Further issues raised by submissions are discussed under the ‘Key issues and provisions’ heading below.

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents have not commented publicly on the Bill.

Financial implications

The Explanatory Memorandum states that the amendments of the Bill will have no financial impact on the Government (p. 5).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[30] The Explanatory Memorandum notes that the Bill promotes a number of human rights and that while it also limits some other rights, ‘those limitations are reasonable, necessary and proportionate in achieving a legitimate aim.’[31]

Key issues and provisions

Schedule 1

Schedule 1 will introduce a new subdivision into the Criminal Code to provide offences for publicly displaying and trading in prohibited symbols.

Item 5 will insert proposed Subdivision CA into Division 80 of the Criminal Code (which deals with treason, urging violence and advocating terrorism or genocide) to provide offences for publicly displaying and trading in prohibited hate symbols.

Prohibited Symbols

Proposed section 80.2E defines a ‘prohibited symbol’ as:

• the Islamic State flag
• the Nazi hakenkreuz
• the Nazi double-sig rune
• something that so nearly resembles one of the above that it is likely to be confused or mistaken for it.

The Australian National Imam’s Council expressed concern that the proposed ban of the Islamic State flag would ‘unjustifiably restrict and marginalise Australian Muslims’ due to the possible unintended consequences of banning the Islamic State flag which has ‘misappropriated’ an important religious image and phrase ‘used and referred to by all Muslims worldwide’. Similar concerns were expressed in other submissions, pointing out that the extension in proposed paragraph 80.2E(d), to something so nearly resembling the flag that it could be confused with or mistaken for it, set too low a threshold and could result in unintended prohibitions on genuine religious expression.[32]

The ECAJ provided a discussion of various Nazi symbols currently in use in Australia, and considered that many of these would not be affected by the Bill. The ECAJ recommended that the definition of prohibited symbol should be extended ‘to include any Nazi symbol, and not merely the Nazi hakenkreuz and double-sig rune.’[33]

The LCA raised several concerns relating to the definition of prohibited symbol as used in the Bill. In particular, the LCA noted the difficulty in prohibiting specific symbols when extremist groups are able to adapt such symbols to avoid laws.[34] The LCA also expressed concern regarding the proposed prohibition of the Islamic State flag:

the Islamic State flag, which consists of the Arabic text of the Shahada—a central declaration of faith significant to the religious life of Muslims—may unnecessarily stigmatise Islam and the Arabic language. There is a risk that ‘Non-Arabic speakers will not be able to meaningfully distinguish the writing on the ISIS flag from any other example of Arabic text’.[35]

Display offences

Proposed section 80.2H provides a new offence for the public display of prohibited symbols. A person will commit an offence if they cause a prohibited symbol to be displayed in a public place and certain other requirements set out in proposed subsections 80.2H(3), (4) or (7) are met. Those requirements are:

• a reasonable person would consider that the public display either:
  • involves dissemination of ideas based on racial superiority or racial hatred or
  • could incite someone to offend, insult, humiliate or intimidate a person or group because of their race (proposed subsection 80.2H(3)) or
• a reasonable person would consider that the public display of a prohibited symbol involves advocacy that:
  • is advocacy of hatred of a group or member of a group of persons distinguished by race, religion or nationality and
  • constitutes incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against the targeted person or group (proposed subsection 80.2H(4)) or
• the public display of the prohibited symbol is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin; because of that person’s membership of that group (proposed subsection 80.2H(7)).

The above circumstances will apply regardless of whether the conduct actually results in the hatred for the purposes of proposed paragraph 80.2H(4)(a), actually incites another person for the purposes of proposed paragraph 80.2H(4)(b), or whether a member of the group sees the prohibited symbol while it is displayed in a public place for the purposes of proposed subsection 80.2H(7) (proposed subsections 80.2H(5), (6) and (8) respectively).

Proposed section 80.2F defines a thing as being ‘displayed in a public place’ if it is able to be seen by a member of the public when they are in a public place, or if it is included in a document (for example, a newspaper, magazine, program, leaflet or ticket) or film, video or television program that is available, or distributed, to the public or a section of the public. Proposed section 80.2F also defines a thing as being displayed in a public place if it is included in a document, film, video or television program available or distributed to the public or a section of the public by means of a telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution) including, for example, the internet.

Proposed subsection 80.2H(9) contains exemptions to the offence of public display of prohibited symbols. It is intended to ensure that the offence does not apply to certain instances of legitimate conduct, in particular where:

• a reasonable person would consider that the conduct (public display of the symbol) is engaged in for a religious, academic, educational, artistic, literary or scientific purpose and is not contrary to the public interest or
• the public display of the symbol is engaged in for the purposes of making a news or current affairs report that is in the public interest and is made by a person working in a professional capacity as a journalist.

The phrase the ‘public interest’ is not further defined in the Bill, but is used in other provisions in the Criminal Code relating to defences in respect of abhorrent violent material (for example, paragraphs 474.37(1)(e), 474.37(2)(e)) and using a carriage service for inciting trespass on agricultural land (paragraphs 474.46(2)(a) and 474.47(2)(a)).

Proposed subsection 80.2H(10) sets out defences to the offence of public display that apply where the conduct is:

• necessary for enforcing a law, monitoring compliance with or investigating a contravention of a law
• for the purposes of court or tribunal proceedings or
• reasonable in circumstances in connection with the performance by a public official of the official’s duties or functions, or someone assisting them.

Additionally, in the case of the display of the Islamic State flag, the Nazi hakenkreuz, the Nazi double-sig rune (or something that so nearly resembles any of those symbols that it is likely to be confused with, or mistaken for them) it is a defence if the person genuinely engages in the conduct for the purpose of opposing the relevant ideology or a related ideology (proposed paragraphs 80.2H(10)(f) and (g)).

ARTK called for the exceptions in proposed subsection 80.2H(9) to be expanded to cover other commentary beyond news reporting (for example, opinion pieces, editorials, cartoons and satire), and pointed out that limiting the protection to professional journalists provided no protection for other people who may be involved in the conduct, such as ‘support staff, editors, commentators, cartoonists and other contributors (whether on staff or freelance), including experts.’[36] ARTK also made similar comments in relation to the trading offence in proposed section 80.2J.[37]

Trading offences

Proposed section 80.2J provides a new offence in the Criminal Code for trading in prohibited symbols. A person will commit an offence if they trade in goods that depict or contain a prohibited symbol and they know or are reckless as to whether the prohibited symbol is associated with Nazi ideology or global jihadist ideology.

Proposed subsection 80.2G(1) defines ‘trades’ as selling goods or preparing for supply, transporting, guarding or concealing, or possessing, with the intention of selling the goods. Terms such as conceal, possession, sell, supply and transport are further defined proposed subsection 80.2G(4).

Proposed subsections 80.2J(4) and (5) contain various exceptions to the offence, intended to ensure that the offence does not apply to certain instances of legitimate conduct, including where:

• a reasonable person would consider that the traded goods are intended to serve a religious, academic, educational, artistic, literary or scientific purpose and the trading is not contrary to the public interest or
• where the traded goods contain news reports or current affairs reports and each prohibited symbol only appears in such a report, and a reasonable person would consider that the report was made by a person working in a professional capacity as a journalist, and disseminating the report is in the public interest.

Proposed subsections 80.2J(6),(7) and (8) further contain defences that may be raised, stating that the offence does not apply to trading in goods that contain commentary that is in the public interest; enforcing, monitoring or administering a law; or the reasonable performance of official functions.

The Explanatory Memorandum notes that proposed subsection 80.2J(3) indicates an extensive list of jurisdictional requirements under which the trading offence would apply, corresponding to various constitutional heads of power, due to the fact that the Commonwealth’s power to legislate in this area is restricted by the Constitution (pp. 38, 39).

As noted above, many submissions to the PJCIS Inquiry into the Bill were received from the military and historical collecting and reenactment communities, from organisations as well as individuals, expressing concern that the offences attached to the prohibited symbols in Schedule 1 would affect their hobby by banning the public display or trade of memorabilia or historic items bearing Nazi symbols.[38] These submissions generally called for better exceptions to recognise their interests as legitimate conduct. While the Explanatory Memorandum does not address these circumstances directly, it notes that an example of the things intended to be captured by the public display offence was ‘a Nazi double sig rune symbol on a hat worn as part of a party costume in a public place.’[39] The Explanatory Memorandum further explained that:

[t]he public display and trading offences would limit the right to freedom of expression by limiting a person’s ability to communicate or impart certain information and ideas publicly through prohibited Nazi and Islamic State symbols. This limitation is appropriate because these symbols represent racist and hateful ideologies which cause significant harm to members of targeted groups in the Australian community, and are used as tools of vilification and radicalisation … The offences would not apply in circumstances where the prohibited Nazi and Islamic State symbols are displayed or traded for a legitimate purpose that is not contrary to the public interest. This would include circumstances, for example, where a reasonable person would consider that the display or trade was done for a legitimate religious, academic, educational, artistic, literary or scientific purpose. This would ensure that the limitations on the right to freedom of expression are reasonable and proportionate.[40]

It is unclear how the exceptions are intended to be applied, or may be applied in practice, to the otherwise legitimate trading and display of various classes of historic items bearing prohibited symbols.

Directions powers

Proposed section 80.2K provides the power for a police officer (a member or special member of the Australian Federal Police or a member of a state or territory police force) to issue a direction to a person to cease the display of a prohibited symbol in a public place in certain circumstances, if the prohibited symbol is displayed in a public place as mentioned in proposed subsection 80.2F(1) (other than by being made available on the internet).

The direction must specify a reasonable time by which the prohibited symbol must cease to be displayed in public (proposed subsection 80.2K(8)).

The circumstances in which such directions may be given include if the police officer reasonably suspects that the public display:

• involves dissemination of ideas based on racial superiority or racial hatred, or could incite someone to offend, insult, humiliate or intimidate a person or group because of their race (proposed subsection 80.2K(2))
• involves advocacy that is advocacy of hatred of a group or member of a group of persons distinguished by race, religion or nationality, and constitutes incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against the targeted person or group (proposed subsection 80.2K(3))
• is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin; because of that person’s membership of that group (proposed subsection 80.2K(6)).

The above circumstances of reasonable suspicion will apply regardless of whether the conduct actually results in the hatred for the purposes of proposed paragraph 80.2K(3)(a), actually incites another person for the purposes of proposed paragraph 80.2K(3)(b), or whether a member of the group sees the prohibited symbol while it is displayed in a public place for the purposes of proposed subsection 80.2K(6) (proposed subsections 80.2K(4), (5) and (7) respectively).

Proposed section 80.2L provides that section 80.2K directions may be given to a person, either orally or in writing, if the police officer suspects on reasonable grounds that the person caused the prohibited symbol to be displayed or owns or occupies land, premises or a vehicle (aircraft, vehicle or vessel) from which the prohibited symbol is displayed in a public place, and there are steps the person can take to cause the prohibited symbol to cease to be displayed in a public place.

A written direction may also be left at a premises or placed on a vehicle. In such cases the direction is taken to have been given to each person who is an owner or occupier of the land or premises or owner of the vehicle (proposed subsections 80.2L(3) and (4)).

Proposed section 80.2M provides that failing to follow a direction under proposed section 80.2K, within the specified time, is an offence with a maximum penalty of 20 penalty units.[41]

The offence in proposed section 80.2M includes defences, similar to the exceptions provided in the primary offences in proposed sections 80.2H and 80.2J, for circumstances where the public display was for genuine reasons. Specifically, the offence does not apply if:

(a)   the conduct that caused the prohibited symbol to be displayed in a public place was genuinely engaged in for a purpose that is:

(i)    a religious, academic, educational, artistic, literary or scientific purpose; and

(ii)   not contrary to the public interest; or

(b)   the conduct that caused the prohibited symbol to be displayed in a public place was engaged in for the purposes of making a news report, or a current affairs report, that is:

(i)    in the public interest; and

(ii)   made by a person working in a professional capacity as a journalist; or

(c)   any of paragraphs 80.2H(10)(a) to (g) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place. (proposed subsection 80.2M(3))

Or where:

(a)   both:

(i)       the person (the recipient) who is given the direction did not cause the prohibited symbol to be displayed in a public place; and

(ii)      when the direction is given, the recipient is not an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place, or an owner of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; or

(b)   either the person (the recipient) who is given the direction takes all reasonable steps to cause the prohibited symbol to cease to be displayed in a public place, or there are no such steps that the recipient can take. (proposed subsection 80.2M(5))

The framing of the legitimate uses in this way as defences to the offence means that they may not be taken into consideration by the police officer when issuing a direction, but will be available at a later time if a matter related to the offence goes to court.

The Senate Standing Committee for the Scrutiny of Bills expressed concerns with the reversal of the evidential burden of proof in relation to the use of defences in proposed section 80.2M, rather than them being exclusions within the elements of the offence.[42]

ARTK expressed concerns with the police direction powers in proposed section 80.2K, noting that they delegate an important role to individual police officers and may ‘be used instead of the primary offence’ if they are not amended to have consistent requirements to the primary offences.[43] In particular, ARTK was also concerned that the journalistic (as for the other legitimate use) exemptions to the primary offences were only included as defences to the proposed section 80.2M offence, rather than as exemptions to exercise of the directions powers, noting:

[i]ndividual police offers are granted a broad remit to stop conduct, and there is very little recourse for any journalist until the matter proceeds to court and the journalist has an opportunity to prove the defence. In the meantime, important reporting will be delayed and potentially quashed.[44]

Schedule 2

Schedule 2 will introduce offences into the Criminal Code relating to the use of a carriage service for violent extremist material, notably for using a carriage service to access or distribute such material, or for possessing material accessed using a carriage service.

Item 3 will insert proposed Subdivision HA of Division 474.

Proposed subsection 474.45A(1) defines violent extremist material, for the purposes of the offences in the proposed subdivision, as material that:

• describes or depicts serious violence or
• provides instruction on engaging in serious violence or
• supports or facilitates serious violence,

and a reasonable person would consider that the material is intended to:

• directly or indirectly advance a political, religious or ideological cause and
• assist, encourage or induce a person to engage in, plan or prepare for an intimidatory act, or to do something or join a group related to the engaging in, planning or preparing of such an act.

Proposed subsection 474.45A(5) additionally defines violent extremist material as including material which can reasonably be taken together with other material and would then constitute violent extremist material under subsection (1).

The definition of violent extremist material, together with the related offences described below, is quite broad and has the potential to capture a wide range of material generally available on the internet. In its submission to the Committee, the LCA explained its concerns about the possibility of unintended consequences as follows:

the Law Council expresses concern that the broad definition of violent extremist material may inadvertently capture persons who access or view so-called ‘manifestos’ which are directed to legitimate matters of political dissent or struggle. This might include, for example, writings which call for the overthrow of oppressive governmental regimes in foreign countries; or the efforts of particular groups or regions in foreign countries to achieve independence as sovereign nations.[45]

Proposed section 474.45B will introduce an offence for using a carriage service to access, transmit, make available, publish, distribute, advertise or promote or link to, or solicit violent extremist material or an electronic link that can be used to access such material. The fault elements for the offence are that the person must intend to access etc. the material, and be reckless as to the nature of the material.

The penalty is up to 5 years imprisonment.

Proposed section 474.45C will introduce an offence for possessing or controlling violent extremist material obtained or accessed using a carriage service. The offence applies where a person has possession or control of violent extremist material in the form of data in a computer or data storage device and the person used a carriage service to obtain or access the material.

The penalty is up to 5 years imprisonment.

Proposed section 474.45D provides defences for the violent extremist material offences of proposed sections 474.45B and 474.45C. The offences do not apply to:

• conduct necessary for enforcing a law of the Commonwealth, a state, territory, foreign country or part thereof (proposed paragraph 474.45D(1)(a))
• conduct necessary for monitoring or investigating contraventions of such laws (proposed paragraph 474.45D(1)(b))
• conduct for the purposes of proceedings in a court or tribunal (proposed paragraph 474.45D(1)(c))
• conduct necessary and reasonable for conducting scientific, medical, academic or historical research (proposed paragraph 474.45D(1)(d))
• material relating to a news or current affairs report that is in the public interest and made by a professional journalist (proposed paragraph 474.45D(1)(e))
• conduct in connection with a public official’s duties or functions and reasonable in the circumstances (proposed paragraph 474.45D(1)(f))
• conduct in connection with and reasonable in the circumstances of a person assisting a public official in their duties or functions (proposed paragraph 474.45D(1)(g))
• reasonable conduct for the purpose of advocating the lawful change of law, policy or practice (proposed paragraph 474.45D(1)(h))
• conduct related to the good faith development, performance, exhibition or distribution of an artistic work (proposed paragraph 474.45D(1)(i)).

The LCA, in its submission to the PJCIS Inquiry into the Bill, stated that the offences of Schedule 2 were unnecessary as the conduct was already sufficiently covered by existing offences in the Criminal Code. Specifically, the LCA referred to existing sections 101.4 and 101.5 of the Criminal Code which make it an offence to possess things connected with terrorist acts and to collect or make documents likely to facilitate terrorist acts, respectively (pp. 32 to 35).

The LCA recommended that, should Schedule 2 proceed the offences should be redrafted to avoid capturing unintended conduct:

greater regard should be had to ensuring the offences do not capture inadvertent possession or access, by:

• ensuring the definition of violent extremist material does not include legitimate matters of political dissent or struggle; and
• placing greater emphasis on the subjective knowledge of the person accessing or possessing the material.[46]

Schedule 3

Schedule 3 will amend the Criminal Code to expand the scope of the offence of advocating terrorism to include instructing on or praising a terrorist act, and to increase the maximum penalty for the offence.

Item 1 will amend section 80.2C to increase the maximum penalty for the offence of advocating terrorism from 5 to 7 years imprisonment.

Item 2 will repeal the definition of ‘advocates’ in subsection 80.2C(3) and replace it with a new, broader definition.

Currently the definition of ‘advocates’ a terrorist act or offence in subsection 80.2C(3) is ‘if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.’

Item 2 would replace that definition with the following expanded definition:

a person advocates the doing of a terrorist act or the commission of a terrorism offence if:

(a)      the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence; or

(b)      the person provides instruction on the doing of a terrorist act or the commission of a terrorism offence; or

(c)       the person praises the doing of a terrorist act or the commission of a terrorism offence in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or to commit a terrorism offence.

The definitions of ‘terrorist act’ and ‘terrorist offence’, in particular as they derive from the definition in section 100.1 of the Criminal Code, include violent, destructive or disruptive activity done with the intention of coercing, or influencing by intimidation, an Australian government or the government of a foreign country.

The Explanatory Memorandum states that ‘(t)he term ‘praises’ is not defined, and should take its ordinary meaning.’[47]

Regarding the broadening of the definition, and in particular the aspect of praising a terrorist act or offence in paragraph (c) of the proposed definition, the Explanatory Memorandum states:

New paragraph 80.2C(3)(c) includes a qualifier that in order to constitute advocacy, ‘praising’ must occur in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence. The qualifier ensures that the limitation that this provision would place on an individual’s freedom of expression is reasonable and proportionate for the legitimate purpose of preventing terrorist activity.[48]

The Senate Standing Committee for the Scrutiny of Bills considered ‘that there is some ambiguity as to the meaning of key terms, such as 'praises', 'substantial risk' and 'might'’ leading to a general ‘uncertainty as to the scope of conduct that would be covered by the amended definition of 'advocates'’.[49]

The ARTK expressed concerns that the proposed expansion of the definition of advocating terrorism in Schedule 3 was too broad, and recommended that the changes not be made as ‘some journalism could be seen as "providing instruction", even inadvertently, when reporting on how a terrorist act was undertaken.’[50]

The LCA also recommended that the expansion of the scope of subsection 80.2C(3) should not go ahead, stating that it was not necessary:

If the concern is that the praising of a terrorist act could lead a person to engage in terrorism, it would seem that the existing definition of ‘advocates’, which presently includes promoting, encouraging or urging a terrorist act or the commission of a terrorist offence, would sufficiently cover this activity.[51]

Schedule 4

Schedule 4 amends the Criminal Code to remove the current automatic sunsetting of regulations specifying terrorist organisations for the purposes of the Criminal Code, which is often followed by consequent relisting of the organisations, and replacing it with an enhanced mechanism for the Minister to remove or de-list organisations from the list of terrorist organisations.

At present organisations may be listed as terrorist organisations under section 102.1 of the Criminal Code. Regulations containing such listings currently sunset (automatically repeal) after 3 years and organisations must be relisted under new regulations.

Part 1 of Schedule 4 removes the current automatic sunsetting of the listing of a terrorist organisation.

Item 3 amends the Criminal Code to repeal subsection 102.1(3) which currently provides for the automatic sunsetting of regulations listing a terrorist organisation on the third anniversary of the day on which they take effect.

Item 5 amends the Legislation (Exemptions and Other Matters) Regulation 2015 to also exclude terrorist organisation listings from the automatic sunsetting after 10 years that is provided under the Legislation Act 2003.[52] This Regulation contains, in section 12, a list of legislative instruments that are not subject to automatic sunsetting under Part 4 of the Legislation Act. Item 5 inserts a new item to the list in section 12, to exclude regulations made ‘solely for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code’.

Items 1, 2 and 4 make consequent amendments to Division 102 of the Criminal Code to reflect the change to the sunsetting arrangements for listed terrorist organisations.

Part 2 would amend the Criminal Code to amend the existing power under subsection 102.1(4) for the Minister responsible for the Australian Federal Police (the AFP Minister) to de-list terrorist organisations by making a declaration to that effect.

At present, subsection 102.1(4) provides that, where the AFP Minister ceases to be satisfied that an organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or that the organisation advocates the doing of a terrorist act, the AFP Minister must make a declaration to that effect. At present, the listing of the organisation will cease to have effect when the declaration is made.

Item 7 would repeal the sentence in subsection 102.1(4) providing that the listing ceases to have effect when the declaration is made.

Item 8 would then insert proposed subsections 102.1(4A) and (4B) to provide that the declaration must specify the day on which the AFP Minister ceased to be satisfied of the conditions listed above, and the listing would cease to have effect on that day, even if it predates the date of the declaration.

Part 3 makes further amendments to the consideration of de-listing that applies when an individual or an organisation makes a de‑listing application to the AFP Minister for a declaration in relation to a listed organisation. The application must be on the grounds that there is no basis for the AFP Minister to be satisfied that the listed organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or advocates the doing of a terrorist act.

At present, subsection 102.1(17) requires the AFP Minister to consider such a de-listing application.

Item 10 would renumber subsection 102.1(17) as subsection 102.1(16) and item 12 would provide that the Minister would only be required to consider one de-listing application per year. Item 13 would then insert proposed subsection 102.1(17) to require the AFP Minister to consider the relevant grounds as soon as practicable after receiving the de‑listing application.

Part 4 amends the Criminal Code to permit the PJCIS to review an instrument relating to the listing of a terrorist organisation at any time, and report review findings to the AFP Minister as well as each House of Parliament.

At present subsection 102.1A(2) provides that the PJCIS may review a disallowable instrument relating to the listing of a terrorist organisation, and report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

Item 18 would repeal paragraphs 102.1A(2)(a) and (b) and insert proposed paragraphs 102.1A (2)(a) and (b) to remove the references to a disallowable instrument and the disallowance period and allow the PJCIS to review the instrument at any time. Proposed paragraph 102.1A(2)(b) would also permit the Committee to report its comments and recommendations to each House of the Parliament or to the AFP Minister.

The remaining items in Part 4 make changes that are consequential to the changes of item 18.

In a submission to the PJCIS Review of the Bill, the Joint Clerks of the Houses of Parliament submitted that it was unusual for a Committee to report directly to a Minister rather than through Parliament, noting that ‘(c)ommittees derive their powers and authorisations from the Parliament, including the authority to present reports.’[53]

The Clerks stated that committees had previously reported to a Minister, although not without also reporting to Parliament or, if the committee reported to the Minister before Parliament the Committee was required to inform Parliament of this.[54]

The Clerks stated that existing powers of the Committee permit it to refer findings the Minister noting:

the functions of the Committee prescribed by section 29 of the Intelligence Services Act 2001 include ‘to report the Committee’s comments and recommendations to each House of the Parliament, to the responsible Minister and to the Attorney-General’.[55]

The Clerks’ submission concluded:

should the Committee consider that an arrangement in which it is able to report directly to a Minister is desirable, the Committee may wish to consider the merits of a requirement that the Parliament be notified when a report is presented to the Minister and that the report be presented to the Parliament as soon as practicable thereafter.[56]

The LCA shared the concern that it was inappropriate for committees to bypass Parliament and report to a Minister, and further considered that the necessity of removing automatic sunsetting had not been established.[57] The LCA recommended that Schedule 4 should be severed from the Bill and subject to further review by the PJCIS to ‘seek detailed information from security agencies establishing the necessity of these changes.’[58]

Other provisions

Schedule 5 contains minor clarifying amendments to the people trafficking provisions of the Criminal Code.

Item 1 omits the phrase ‘for the purposes of paragraph 51(xix) of the Constitution’[59] from a reference to alien in paragraph 271.11(f) and item 3 replaces that reference by inserting the phrase as the definition of the term alien in the Dictionary of the Criminal Code.

Item 2 inserts the term ‘the public official’ into section 474.37 to clarify the application of existing defence provisions relating to the hosting of abhorrent violent material. This will not alter the operation of the relevant provisions.