1. Introduction

Conduct of the inquiry

1.1On 14 June 2023 the Attorney-General, the Hon Mark Dreyfus KC MP, wrote to the Committee referring the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (the Bill) for inquiry and report.

1.2In his letter the Attorney-General stated:

The Bill would amend the Criminal Code Act 1995 to:

• create offences for publicly displaying prohibited Nazi or Islamic State symbols, and trading in items bearing these symbols
• create offences for using a carriage service to deal with violent extremist material
• strengthen the offence of advocating terrorism in section 80.2C, and
• remove the three-year sunsetting of terrorist organisation listings, so that listings would operate until a decision is made to proactively de-list an organisation.
  3. The Committee commenced its inquiry on 21 June 2023 and invited public submissions.
  4. The Committee received 151 submissions and 10 supplementary submissions. Appendix A sets out a list of submissions.
  5. The Committee held a public hearing on 1 September 2023. Appendix B sets out a list of witnesses appearing at the public hearings.

Report structure

1.6This report contains three chapters:

• this introduction, which includes an outline of the Bill;
• a chapter setting out issues arising in the Committee’s consideration of the Bill; and
• a third chapter providing the Committee’s comments and recommendations.

The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023

The need for the Bill

1.7The Explanatory Memorandum (EM) states that:

The threat of terrorism in Australia is enduring and becoming increasingly diverse and complex. Ideologically and religiously motivated violent extremists within the community are seeking to publicly display and trade symbols of hate with the intent of promoting hatred, instilling fear and harassing others. Violent extremists also use symbols to signal their ideology to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish in-group belonging. The harm caused by hateful conduct and vilification can be profound, affecting the physical and psychological wellbeing of the whole community.[1]

1.8As set out above the Bill proposes four main legislative changes, each set out in a Schedule to the Bill. The following sections will go through those proposed changes in more detail.

Schedule 1: Offences for publicly displaying prohibited Nazi or Islamic State symbols, and trading in items bearing these symbols

1.9Before turning to the specific offences proposed to be created by Schedule 1, it is important to set out some definitions that will be used in the prosecution of the proposed offences.

Defining the symbols

Islamic State flag

1.10Proposed paragraph 80.2E(a) would prescribe the Islamic State flag as a prohibited symbol.[2] It is not further defined in the Bill but is defined in the EM as follows:

The Islamic State flag is a rectangular, black emblem with white Arabic writing, and below the white Arabic writing is a white circle containing black Arabic writing. The white writing is an Islamic creed declaring ‘There is no God but Allah, and Muhammad is his messenger’. The black writing translates to three words: ‘God, messenger, Muhammad’.[3]

1.11The EM sets out that it is not intended that the symbol must be displayed on a flag in order to be captured by paragraph 80.2E(a). The word ‘flag’ has simply been used as part of the name of the symbol.[4]

1.12The EM states that:

The Islamic State flag represents Islamic State, which is a Sunni jihadist group with a particularly violent ideology that calls itself a caliphate and claims religious authority over all Muslims. Islamic State follows an extreme interpretation of Islam, which promotes violence and targets those who do not agree with its views. Islamic State, and its affiliate organisations, use the flag to promote terrorist attacks and praise terrorist incidents. Islamic State’s coordinated and effective propaganda campaign, which has included displaying the flag publicly, has exposed Australians to extremist ideologies and radicalisation.[5]

1.13The EM draws a distinction between Islamic State and the Islamic faith.

Islamic State is a terrorist organisation with violent ideologies that are incompatible with Australia’s values, whereas the Islamic faith contributes to and strengthens Australia’s multicultural society. Islamic State promotes an extremist and distorted interpretation of the Islamic faith to promote their cause.[6]

Nazi hakenkreuz

1.14Proposed paragraph 80.2E(b) would prescribe the Nazi hakenkreuz (meaning twisted or hooked cross in German) as a prohibited symbol. According to the EM the Nazi hakenkreuz is ‘a cross with the arms bent at right angles in a clockwise direction’.[7]

1.15The EM states that:

The Nazi hakenkreuz has been listed as a prohibited symbol in recognition of its continued use by violent extremist groups to harm members of the Australian community, and by those seeking to radicalise others and exploit opportunities to mobilise impressionable Australians to violence.[8]

1.16The EM states that the symbol is referred to as the Nazi hakenkreuz and not the Swastika:

to acknowledge the immense significance of the sacred Swastika as an ancient and auspicious symbol of purity, love, peace and good fortune in Buddhist, Hindu, Jain and other religions. These religions used the Swastika as a symbol of their faith for hundreds of years before it was misappropriated by the Third Reich, and the choice in language is deliberate to ensure the use of the symbol in the context of these religions is protected. The symbol continues to be embraced by members of these religions and can be found in places of worship, architecture, books, and in public and private spaces.[9]

1.17The EM states that:

The Nazi hakenkreuz was adopted by the Third Reich, and became the primary symbol of the Nazi party who committed heinous crimes against humanity. The Nazi hakenkreuz is symbolic of Nazi ideology which promoted the persecution and systematic murder of millions of Jews, people living with disability, people of colour, LGBTIQA+4 people and other groups. The Nazi hakenkreuz is representative of ideas that are fundamentally incompatible with Australia’s multicultural, democratic and inclusive society.[10]

Nazi double sig rune

1.18Proposed paragraph 80.2E(c) would prescribe the Nazi double sig rune as a prohibited symbol. The EM states that the Nazi double sig rune is a stylised depiction of two lightning-bolt-like symbols with flat ends positioned side-by-side.[11]

1.19The EM states that:

The Nazi double sig rune is derived from the ‘Schutzstaffel’, a Nazi paramilitary organisation that was responsible for atrocities leading up to and during World War II. While Nazi symbols have been continuously used by right-wing groups since World War II, there has been a resurgence in the prevalence and use of Nazi symbols to vilify and harass minority groups in recent years, including the Nazi double sig rune. The Nazi double sig rune has been co-opted by white supremacists and neo-Nazis to offend, harass and vilify members of the Australian community, and recruit and radicalise people to follow and adhere to abhorrent Nazi ideologies.[12]

Things that are likely to be confused with, or mistaken for, a prohibited symbol

1.20Proposed paragraph 80.2E(d) would have the effect that any symbol that so nearly resembles the Islamic State flag, the Nazi hakenkreuz or the Nazi double sig rune, that it is likely to be confused with, or mistaken for one of these symbols, is taken to be a prohibited symbol.[13]

1.21The EM states that:

This could include any figure, drawing, symbol, pattern or design substantially similar to the Islamic State flag, the Nazi hakenkreuz or the Nazi double sig rune and capable of being reasonably recognised as derived from, or a modified version of, one of those symbols. For example, an image that is substantially similar to the Nazi hakenkreuz but with the lines skewed at slightly different angles is likely to be mistaken for a Nazi hakenkreuz.[14]

1.22The EM explains that paragraph 80.2E(d)

is intended to recognise that there may be some variations in the ways in which the Islamic State flag, the Nazi hakenkreuz or the Nazi double sig rune are depicted. The legislation is not intended to be so prescriptive in defining these symbols as to exclude these variations from being captured by the provisions, where they would be recognised by the public as being the Islamic State flag, the Nazi hakenkreuz or the Nazi double sig rune, and engender public harm accordingly. This includes circumstances in which an individual could seek to avoid criminal liability under new Subdivision CA by slightly altering an Islamic State flag, Nazi hakenkreuz or Nazi double sig rune before engaging in otherwise prohibited conduct.[15]

Other definitions

1.23Two other definitions: ‘displayed in a public place’ and ‘trades’ are of importance in relation to the proposed offences created by Schedule 1 of the Bill.

Meaning of displayed in a public place

1.24Proposed subsection 80.2F(1) provides that a thing is considered to be displayed in a public place if it is capable of being seen by a member of the public who is in a public place.[16]

1.25The EM states that:

The term ‘capable of being seen’, as used in subsection 80.2F(1), is not intended to be interpreted by reference to the physical capacity of any particular individual to see the thing, or the intention of the individual causing the thing to be publicly displayed. It is an objective concept that conveys that there is a possibility of the thing being seen by any person at any time. Subsection 80.2F(1) also provides that a thing is capable of being seen regardless of whether or not it is actually seen by a person.[17]

Meaning of trades

1.26Proposed section 80.2G would define ‘trades’ for the purpose of new Subdivision CA. Trade is a key concept for the purposes of the offence in new section 80.2J, which criminalises trading in goods bearing prohibited symbols.[18]

1.27Proposed subsection 80.2G(1) provides that the following activities constitute trade in goods:

• selling goods (proposed paragraph 80.2G(1)(a))
• preparing goods for supply with the intention of selling them or believing that another person intends to sell them (proposed paragraph 80.2G(1)(b))
• transporting goods with the intention of selling them or believing that another person intends to sell them (proposed paragraph 80.2G(1)(c))
• guarding or concealing goods with the intention of selling them or assisting another person to sell them (proposed paragraph 80.2G(1)(d))
• possessing the goods with the intention of selling them (proposed paragraph 80.2G(1)(e)).[19]
  28. Proposed subsection 80.2G(2) would clarify that preparing goods for supply includes packaging the goods or separating the goods into discrete units.[20]
  29. The EM states that this is

intended to convey that the person must have had proactive and specific involvement in the process of preparing goods for supply in order to have engaged in the activity which, under paragraph 80.2G(1)(b), would constitute trading for the purpose of the offence in new section 80.2J.[21]

1.30Proposed subsection 80.2G(3) would clarify that, for the purposes of section 80.2G and the offence in section 80.2J, leasing or renting out goods, or agreeing to do so, constitutes trade, in the same way that the sections apply to selling goods.[22]

1.31The EM sets out that the definition of ‘trades’ is intended to provide comprehensive coverage not only of selling goods, or leasing or renting them out but preparatory and ancillary conduct that could lead to commercial profiting from the sale, leasing or renting out of goods depicting or containing a prohibited symbol. The definition recognises that commercial profiting is the result of a series of activities, and the offence in new section 80.2J is intended to capture a range of conduct relating to selling, leasing or renting goods bearing prohibited symbols.[23]Proposed subsection 80.2G(4) would define other key terms for the purposes of section 80.2G and the offence in section 80.2J. This includes:

• concealing goods includes concealing or disguising the nature, source or location of the goods, any movement of the goods, the rights of any person with respect to the goods, or the identity of any owner of the goods
• possessing goods includes receiving or obtaining possession of the goods, having control over the disposition of the goods (whether or not the goods are in the custody of the person), or having joint possession of the goods. This clarifies that for the purposes of Subdivision CA, a person can possess goods without having ownership of them, having goods in their physical custody or possessing them solely. Being given the goods, having the ability to dispose of the goods, or sharing possession of the goods with another person would be sufficient to possess the goods under this provision
• selling goods includes bartering or exchanging, or agreeing to sell goods. The inclusion of bartering or exchanging reflects that if someone agrees to sell goods, they intend to profit or benefit from the sale of those goods whether through monetary or other gains
• supplying goods includes supplying goods, whether or not by the way of sale, or agreeing to supply goods. This clarifies that for the purpose of Subdivision CA, goods can be supplied other than in exchange for a commercial benefit, and goods can be taken to have been supplied before the goods have exchanged hands, provided that the parties have agreed that this will occur[24]
• transporting goods includes delivering goods. This would include delivery of goods by any means, including by hand.
  32. The EM states that:

Defining these terms is intended to provide clarity on the type of conduct to be captured by the offence, whilst still ensuring the offence can apply in a variety of different circumstances. The definitions recognise that commercial profiting is the result of a series of activities, and the intention of the offence is to criminalise a range of conduct involving selling, leasing or renting goods bearing prohibited symbols.[25]

Prohibited Symbols offences

1.33The following sections set out the details of offences under new sections 80.2H (public display of prohibited symbols), 80.2J (trading in goods bearing prohibited symbols) or 80.2M (failing to comply with a direction to cease the display of prohibited symbols in public).

Offence of the public display of prohibited symbols

1.34Proposed section 80.2H would create a new offence for the public display of prohibited symbols. The offence is not intended to capture the public display of content containing prohibited symbols that has been classified under the Classification (Publications, Films and Computer Games) Act 1995, or in accordance with relevant provisions in the Broadcasting Services Act 1992. The offence is also subject to certain exemptions, set out in new subsection 80.2H(9) and defences in new subsection 80.2H(10).[26]

1.35To make out the offence, the prosecution must prove:

• the person causes a thing to be displayed in a public place (proposed paragraph 80.2H(1)(a)), and
• the thing is a prohibited symbol (proposed paragraph 80.2H(1)(b)), and
• proposed subsection 80.2H(3), (4) or (7) applies (proposed paragraph 80.2H(1)(c)). Those subsections, discussed further below, relate to:

• (3) display that a ‘reasonable person’ would consider involves disseminating ideas based on racial hatred or superiority, or inciting conduct that would offend, insult, humiliate or intimidate a person or group based on race;
• (4) display that a reasonable person would consider to be advocating hatred or inciting violence against a person or group distinguished by race, religion or nationality;
• (7) display likely to offend, humiliate or intimidate a reasonable person based on their race, colour, sex, language, religion, political or other opinion or national or social origin; and

• proposed subsection 80.2H(9) [setting out exemptions] does not apply (proposed paragraph 80.2H(1)(d)).[27]
  36. The maximum penalty for the offence in section 80.2H would be 12 months imprisonment.[28]
  37. The Explanatory Memorandum states that:

This penalty is appropriate noting the public display of prohibited symbols is a serious, intentional act that causes significant harm to Australians and is used to recruit and radicalise vulnerable Australians to violence. This penalty would also account for the scale of the severity of offending, noting the deterrent and early intervention objectives of the offence. The penalty aligns with the maximum penalties available for similar offences which have been enacted in Victoria and New South Wales.[29]

Reasonable person test

1.38The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited symbol actually involved the dissemination of ideas based on racial superiority or racial hatred and actually could incite another person or a group of persons to offend, insult, humiliate or intimidate others on the basis of race. The fact that it would be reasonable to conclude that the public display of the prohibited symbol has this effect would be sufficient. According to the EM, this recognises that one of the purposes of the offence is to prevent harms of this kind; and it also signals that these harms are likely outcomes of the public display of prohibited symbols due to the ideologies they are widely recognised as representing.[30]

Where offence does not apply

1.39Importantly, proposed subsection 80.2H(9) would set out circumstances in which the offence in subsection 80.2H(1) would not apply. The EM states that these ‘provisions have been included to ensure that a person who publicly displays a prohibited symbol in legitimate circumstances would not be captured by the offence.’[31]

1.40The circumstances in which the offence would not apply are:

• if a reasonable person would consider that a person caused a prohibited symbol to be displayed in a public place for a religious, academic, educational, artistic, literary or scientific purpose that is not contrary to the public interest (paragraph 80.2H(9)(a)); and
• if a reasonable person would consider that a person caused a prohibited symbol to be displayed in a public place for making a news report, or a current affairs report that is in the public interest, and is made by a person working in a professional capacity as a journalist (paragraph 80.2H(9)(b)).
  41. The EM states that:

Given that the purpose of the public display offence is to prevent the public harm engendered by the display of these prohibited symbols, the circumstances set out in paragraph 80.2H(9)(a), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the display of prohibited symbols as much as possible without inappropriately impacting on legitimate activities. This recognises that there are a range of circumstances for which a prohibited symbol may be publicly displayed. The onus would be on the prosecution to prove that a reasonable person would not consider that the display of a prohibited symbol was done for any of the purposes specified in this provision beyond a reasonable doubt.[32]

Defences

1.42Proposed section 80.2H(10) of the Bill sets out a number of defences to the offence of public display of prohibited symbols. These are:

• if publicly displaying a prohibited symbol is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country
• if the public display of a prohibited symbol is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country
• if a person publicly displays a prohibited symbol for the purposes of proceedings in a court or tribunal
• if a person publicly displays a prohibited symbol in connection with the performance by a public official of the official’s duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function
• if the person publicly displays a prohibited symbol in connection with an individual assisting a public official in relation to the performance of the public official’s duties or functions
• does not apply if the conduct involves the public display of the Islamic State flag, or something that so nearly resembles the Islamic State flag that it is likely to be confused with or mistaken for the Islamic State flag, and the person genuinely engages in the conduct for the purpose of opposing global jihadist ideology or a related ideology
• does not apply if the conduct involves the public display of a Nazi hakenkreuz or a Nazi double sig rune or something that so nearly resembles one of those symbols that is likely to be confused or mistaken for that thing, and the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology.[33]

Offence that prohibits the trading of goods that depict or contain a prohibited symbol

1.43Proposed section 80.2J would establish an offence that prohibits the trading of goods that depict or contain a prohibited symbol where the person knows that, or is reckless as to whether, the symbol is associated with Nazi ideology or global jihadist ideology.[34]

1.44In explaining this offence the EM states:

Noting the hateful and violent ideologies that the prohibited symbols represent, trading in goods which bear those symbols supports the further dissemination of these ideologies as well as the continuation of an economy which allows for profiting from extremist and hateful ideologies.[35]

1.45To make out the offence, the prosecution would be required to prove that:

• the person intentionally trades in goods (‘trades’ is defined in section 80.2G, as discussed above); and
• the person is reckless as to the fact that the goods depict or contain a prohibited symbol; and
• the person knows, or is reckless as to whether, the prohibited symbol is associated with global jihadist ideology or Nazi ideology; and
• the trading of the symbol meets one or more of the jurisdictional requirements set out in subsection 80.2J(3) which are described below; and
• subsections 80.2J(4) and (5) [exemptions, discussed further below] do not apply.[36]
  46. The offence would carry a maximum penalty of 12 months imprisonment.[37]
  47. Referring to the Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 ed (the Guide) the EM states:

This maximum penalty reflects the principle in the Guide that an offence should have a ‘maximum penalty that is adequate to deter and punish a worst-case offence.’ The penalty is proportionate to the deterrent objectives of the offence, and the harm that is caused by commercial profiting from paraphernalia depicting or containing Nazi and Islamic State symbols.[38]

Where offence does not apply

1.48Read together with proposed paragraph 80.2J(1)(e), proposed subsection 80.2J(4) would have the effect that the offence in proposed subsection 80.2J(1) does not apply if a reasonable person would consider that the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose, and that the person’s trading in the goods is not contrary to the public interest.[39]

1.49In relation to this the EM’s explanation reflects that for the same exemption provided to the public display offence:

Given that the purpose of the trading offence is to prevent the public harm engendered by commercial profiting from the sale of these goods, the circumstances set out in subsection 80.2J(4), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the trading of symbols as much as possible without inappropriately impacting on legitimate activities. The onus would be on the prosecution to prove that a reasonable person would not consider that the trading in the goods was for one of the purposes set out in this provision. The reasonable person test would ensure that a defendant could not simply rely on their own assertions that the trade was done for a religious, academic, educational, artistic, literary or scientific purpose to avoid criminal liability.[40]

1.50Read together with proposed paragraph 80.2J(1)(e), proposed subsection 80.2J(5) would have the effect that the offence in proposed subsection 80.2J(1) does not apply if the goods being traded contain one or more news reports or current affairs reports (proposed paragraph 80.2J(5)(a)); each prohibited symbol that the goods depict or contain appears in such a report and only appears in such a report proposed (paragraph 80.2J(5)(b)); and in relation to each such report in which a prohibited symbol appears, a reasonable person would consider that the report was made by a person working in a professional capacity as a journalist (subparagraph 80.2J(5)(c)(i)) and disseminating the report is in the public interest (subparagraph 80.2J(5)(c)(ii)).[41]

1.51The EM states:

The public interest requirement and the requirement that the journalist is working in a professional capacity are intended to operate to exclude goods that have been traded by organisations for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. The offence would not apply where a reasonable person would consider that the dissemination of the report as a whole is in the public interest, rather than a particular aspect of the report being in the public interest. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular dissemination.[42]

Defences

1.52Proposed subsections 80.2J(6) to (8) would create offence specific defences in relation to which the defendant bears the evidential burden of proof by application of subsection 13(3) of the Criminal Code,[43] as confirmed in notes at the end of each subsection. The EM states that this is consistent with Commonwealth guidelines, and appropriate because ‘it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter’, and because the offence carries a relatively low penalty.[44]

1.53Proposed subsection 80.2J(6) would provide that the offence in proposed subsection 80.2J(1) does not apply if the goods being traded contain commentary on public affairs (proposed paragraph 80.2J(6)(a)) and each prohibited symbol that the goods depict or contain appear in the commentary and only appear in the commentary (proposed paragraph 80.2J(6)(b)). In relation to the commentary in which the prohibited symbol appears, the making of the commentary must be in the public interest (proposed paragraph 80.2J(6)(c)). [45]

1.54The EM states:

This is an important safeguard to ensure robust political communication can continue in Australia, however appropriate limitations are imposed to prevent against this provision being inappropriately used to excuse illegitimate trade.[46]

and

The defence would cover circumstances in which a good only contains commentary that is in the public interest, and the prohibited symbol is contained in that commentary. For example, this provision may cover trading of a publication which seeks to raise awareness of, and opposition to, anti-Semitism by depicting prohibited symbols for the purposes of increasing understanding of harmful activities.[47]

1.55Proposed paragraphs 80.2J(7)(a) and (b) would provide that the offence in proposed subsection 80.2J(1) does not apply if trading in goods containing a prohibited symbol is necessary for, or of assistance in, enforcing, monitoring compliance with, or investigating a contravention of, the law of the Commonwealth, a State or Territory, or a foreign country.[48]

1.56Proposed paragraph 80.2J(7)(c) would provide that offence in proposed subsection 80.2J(1) does not apply if trading in goods containing a prohibited symbol is necessary for, or of assistance in, the administration of justice (whether within or outside Australia).[49]

1.57Proposed paragraph 80.2J(8)(a) would provide that the offence in new subsection 80.2J(1) would not apply if a person trades a good depicting or containing a prohibited symbol in connection with the performance by a public official of the official’s duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function.[50]

1.58Proposed paragraph 80.2J(8)(b) would provide that the offence in new subsection 80.2J(1) would not apply if the person trades a good depicting or containing a prohibited symbol in connection with an individual assisting a public official in relation to the performance of the public official’s duties or functions. The person’s conduct would also have to be reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official’s duties or functions.[51]

Directions to cease display of prohibited symbols in public

1.59Proposed subsection 80.2K(1) would provide police officers with a new power to direct a person to cause a prohibited symbol to cease being displayed in a public place.[52]

1.60The EM states that this provision

would address a gap in the application of existing police powers in relation to the new offence in section 80.2H. Section 80.2K is specifically targeted at providing a new power for a police officer to direct a person to remove a prohibited symbol from public display. However, the power does not empower police officers to remove the prohibited symbol themselves. Providing police officers with this power is necessary to ensure that the central purpose of the public display offence is not frustrated. It is consistent with the purpose of the offence that police officers have an appropriate tool to minimise the harm occasioned to the public by the display of a prohibited symbol.[53]

1.61Proposed subsections 80.2K(2), (3) and (6) outline circumstances in which a direction may be given for the purposes of paragraph 80.2K(1)(b). These are where a police officer reasonably suspects that the public display:

• involves dissemination of ideas based on racial superiority or racial hatred, or could incite others to offend, insult, humiliate or intimidate a person or group because of their race (subsection 80.2K(2);
• involves advocating hatred of a group or member of a group distinguished by race, religion or nationality, or constitutes incitement of others to offend, insult, humiliate, intimidate or use force or violence against such a group or member (subsection 80.2K(3);
• is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin.
  62. The EM sets out that:

These paragraphs require a police officer to suspect, on reasonable grounds, that the conduct involves dissemination of ideas based on racial superiority or racial hatred; or that the conduct could incite another person or a group of persons to offend, insult, humiliate or intimidate a person or a group of persons because of their race. Paragraph 802K(2)(b) uses the word ‘could’ indicating that it is not necessary for the police officer to reasonably suspect that a person or group has been or is being offended, insulted, humiliated or intimidated because of their race. This highlights the importance of taking action prior to harm occurring.[54]

Directions to cease display of prohibited symbols in public – offence

1.63Proposed subsection 80.2M(1) would establish an offence in circumstances when a person does not comply with a direction given under subsection 80.2K(1) to remove a prohibited symbol from public display in the time specified in the direction.[55]

1.64The EM states that:

The offence would incentivise compliance with directions given by police officers in recognition of the harm that public display of prohibited symbols causes to the community.[56]

Defences

1.65Proposed subsection 80.2M(3) would set out defences to the offence in new subsection 80.2M(1). It would provide that the offence in subsection 80.2M(1) would not apply in relation to the display of a prohibited symbol in a public place if:

• the conduct that caused the prohibited symbol to be displayed in a public place was genuinely engaged in for a religious, academic, educational, artistic, literary or scientific purpose not contrary to the public interest (paragraph 80.2M(3)(a)), or
• 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 in the public interest and made by a person working in a professional capacity as a journalist (paragraph 80.2M(3)(b)), or
• any of paragraphs 80.2H(10)(a) to (g) [the defences to the public display offence, discussed above] applies to the conduct that caused the symbol to be displayed in a public place (paragraph 80.2M(3)(c)).[57]

Schedule 2: Offences for using a carriage service to deal with violent extremist material

1.66Item 3 of Schedule 2 to the Bill would insert new Subdivision HA ‘Offences relating to use of carriage service for violent extremist material’ into Division 474 of the Criminal Code. This Subdivision would be located after Subdivision H (Offences relating to use of carriage service for sharing of abhorrent violent material) and would contain new sections 474.45A to 474.45E.[58]

1.67In summary, the new provisions would make it an offence to:

• access, transmit or solicit violent extremist material using a carriage service (section 474.5B) or
• possess or control violent extremist material obtained or accessed using a carriage service (section 474.5C).
  68. The offences would incur penalties of 5 years’ imprisonment.
  69. The EM states that:

The offences in new Subdivision HA would address a gap in the offence regime in the Criminal Code. Existing offences criminalise the possession of things connected with terrorist acts (section 101.4), and collecting or making documents likely to facilitate terrorist acts (section 101.5). These provisions attach criminality to the circumstances in which material is possessed, however there is currently no Commonwealth offence that attaches criminality to the nature of material possessed or dealt with. These existing offences also require a connection to a terrorist act, which means law enforcement may be unable to intervene at an earlier stage.[59]

1.70Violent extremist material is defined in section 474.5A as material that describes or depicts serious violence, provides instruction on engaging in serious violence or supports or facilitates serious violence; that a reasonable person would consider is intended to directly or indirectly advance a political, religious or ideological cause; and that a reasonable person would consider is intended to assist, encourage or induce intimidatory acts (in direct or related ways).

1.71Item 1 of Schedule 2 to the Bill proposes to amend subsection 3(1) of the Crimes Act to expand the definition of ‘terrorism offence’ to include an offence against new Subdivision HA of Division 474 of the Criminal Code. This means that the new offences for using a carriage service for violent extremist material and for possessing or controlling violent extremist material obtained or accessed using a carriage service, would be terrorism offences.[60]

1.72The EM states that:

This would have a number of implications, including that the AFP would have access to control orders under Division 104 of the Criminal Code to prevent or respond to the commission of these offences, and advocating the commission of either of these offences would constitute an offence under section 80.2C (advocating terrorism) of the Criminal Code.[61]

Defences

1.73Proposed section 474.45D set out range of defences that are available to ensure that legitimate uses of violent extremist material that are not contrary to the public interest would not be captured.[62] These are:

• if engaging in conduct in relation to violent extremist material is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country.[63]
• if the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country, or part of a foreign country.[64]
• if the conduct is engaged in for the purposes of proceedings in a court or tribunal.[65]
• if the conduct is necessary for, or of assistance in, conducting scientific, medical, academic or historical research and the conduct is reasonable in the circumstances for the purpose of conducting that research.[66]
• engaging in conduct in relation to violent extremist material if the material relates to a news report, or a current affairs report, that is in the public interest and is made by a person working in a professional capacity as a journalist.[67]
• engaging in conduct in relation to violent extremist material if the conduct is in connection with the performance by a public official of that official’s duties or functions and the conduct is reasonable in the circumstances for the purpose of performing those duties or functions.[68]
• engaging in conduct in relation to violent extremist material if the conduct is in connection with an individual assisting a public official in relation to the performance of public official’s duties or functions and the conduct is reasonable in the circumstances for the purpose of assisting the public official in relation to the performance of the public official’s duties or functions.[69]
• engaging in conduct in relation to violent extremist material if the conduct is for the purpose of advocating a lawful procurement of a change to any matter established by law, policy or practice in any Australian jurisdiction or in a foreign country (or part thereof), and the conduct is reasonable in the circumstances for that purpose.[70]
• engaging in conduct in relation to violent extremist material if the conduct relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.[71]

Schedule 3: Amendments to the offence of advocating terrorism

1.74Item 1 of Schedule 3 to the Bill proposes to repeal the penalty in subsection 80.2C(1) and replace it with a new penalty. The effect would be that where a person is found guilty of advocating the doing of a terrorist act, the maximum penalty would increase from the current five years, to 7 years’ imprisonment.[72]

1.75The EM states that:

The increase in penalty would more appropriately account for the potential severity of offending under section 80.2C, which would be broadened further by the addition of instructing on, and praising, terrorism at new paragraphs 80.2C(3)(b) and (c) to the list of conduct that may constitute the offence. Increasing the maximum penalty would also allow courts greater discretion to impose longer sentences where the circumstances of the offending fall short of imposing the maximum penalty, but are nonetheless very serious.[73]

And

The increase in penalty would reflect that advocating terrorism is an offence of equivalent seriousness with other offences in Division 80 which also carry maximum penalties of 7 years imprisonment. These offences include urging violence against the Constitution, urging violence against groups, urging violence against members of groups and advocating genocide.[74]

1.76Item 2 of Schedule 3 to the Bill would repeal the definition of ‘advocates’ in subsection 80.2C(3) of the Criminal Code, and replace it with a new definition that would add two new activities to the list of conduct that may constitute advocating the doing of a terrorist act or the commission of a terrorism offence for the purpose of the offence at subsection 80.2C(1).[75]

1.77Proposed paragraph 80.2C(3)(a) would have the effect of retaining the existing list of conduct that constitutes advocating the doing of a terrorist act or the commission of a terrorism offence, that is, where a person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.[76]

1.78Proposed paragraph 80.2C(3)(b) would add, to the definition of advocates, that a person also advocates the doing of a terrorist act or the commission of a terrorism offence where the person provides instruction on the doing of a terrorist act or the commission of a terrorism offence. The term ‘instruction’ is not defined, and the EM states that it should take its ordinary meaning.[77]

1.79Proposed paragraph 80.2C(3)(b) is intended to capture a range of conduct by which a person could provide instruction on the doing of a terrorist act or commission of a terrorism offence. For example, providing or distributing a guide or manual on how to carry out a terrorist act; filming a video stepping out how to perform a beheading; or guiding someone on how to obtain material in order to engage in a terrorist act.[78]

1.80Proposed paragraph 80.2C(3)(c) would add, to the definition of advocates, that a person also advocates the doing of a terrorist act or the commission of a terrorism offence where the person praises the doing of a terrorist act or 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 commit a terrorism offence. The term ‘praises’ is not defined, and the EM states that it should take its ordinary meaning.[79]

1.81Proposed 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.[80]

1.82The EM states that 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. Its effect is that praising the doing of a terrorist act or commission of a terrorism offence would not constitute advocating terrorism for the purposes of the offence in section 80.2C, where this praise has not occurred 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.[81]

and

Whether the praise has occurred 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, is a matter to be considered on a case-by-case basis. The legislation is intentionally silent on how this is to be determined to give the court maximum discretion to take into account any matters it considers relevant in making this assessment.[82]

Schedule 4: Amendments to the terrorist listing regime

1.83Schedule 4 of the Bill proposes to remove the sunsetting of instruments that list terrorist organisations, and amend arrangements for oversight of the listing process by the PJCIS.

1.84Item 3 proposes to repeal subsection 102.1(3) of the Criminal Code. Subsection 102.1(3) provides that regulations proscribing terrorist organisations cease to have effect on the third anniversary of the day on which they take effect. Repealing this subsection would remove this 3-year sunsetting period for the terrorist organisation regulations.

1.85Item 5 would insert a new Item 18C into section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015. The effect of this item would be to exempt regulations made under subsection 102.1(1) of the Criminal Code from the default sunsetting period established in the Legislation Act 2003.[83]

1.86This provision would have the effect of exempting the default 10-year sunsetting period for regulations contained in subsection 50(1) of the Legislation Act 2003. Under subsection 54(2) of the Legislation Act 2003, sunsetting does not apply to legislative instruments that are prescribed by regulation for the purpose of paragraph 54(2)(b). Section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015 is made for this purpose.[84]

1.87These amendments would have the effect that proscribed terrorist organisations will remain proscribed unless otherwise removed from the list by the AFP Minister.[85]

1.88The EM states that:

The purpose of this amendment is to align the terrorist organisation listing framework with the current context of largely enduring terrorist organisations that pose ongoing threats to Australia’s security.[86]

1.89Item 1 of Schedule 4 proposes to amend paragraph (b) of the definition of ‘terrorist organisation’ in section 102.1 of the Criminal Code to remove reference to subsection 102.1(3).[87]

1.90Item 2 proposes to amend paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) to insert reference to section 102.1AA for consistency with the other subsections referenced in the definition. The cross-reference to section 102.1AA refers to the power of the AFP Minister to make regulations amending listing instruments to add or remove aliases of terrorist organisations as required.[88]

Parliamentary Joint Committee on Intelligence and Security’s ability to review terrorist listings

1.91Current paragraph 102.1A(2) of the Criminal Code provides that the PJCIS may review regulations made for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in section 102.1 and instruments made under section 102.1AA (including or removing names of proscribed terrorist organisations). The PJCIS’ review may occur as soon as possible after the making of the instrument 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. The PJCIS’ views are an important contribution to the Parliament’s consideration of the instruments during the disallowance period.

1.92Item 18 of Schedule 4 proposes to repeal paragraphs 102.1A(2)(a) and (b) of the Criminal Code and would replace them with new paragraphs 102.1A(2)(a) and (b).[89]

1.93Proposed paragraph 102.1A(2)(a) would allow for the PJCIS to review an instrument made for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in section 102.1 at any time. The EM states that this ‘would expand the PJCIS’ jurisdiction to conduct own-motion reviews into whether a listed terrorist organisation continues to meet the legislative thresholds.’[90]

1.94Proposed paragraph 102.1A(2)(b) would expand the jurisdiction of the PJCIS to allow it to report its comments and recommendations directly to the AFP Minister instead of, or in addition to, each House of Parliament. The EM states that this would support the ability of the PJCIS to directly refer its findings to the AFP Minister; and that such a report is important noting the AFP Minister’s obligations, under subsection 102.1(4), to make a declaration that would cease the effect of the regulations should the Minister cease to be satisfied the relevant legislative threshold continues to be met in relation to the listed organisation.[91]

Footnotes

[1]Explanatory Memorandum (EM), para 2, p. 3.

[2]EM, Schedule 1, para 20.

[3]EM, Schedule 1, para 21.

[4]EM, Schedule 1, para 22.

[5]EM, Schedule 1, para 23.

[6]EM, Schedule 1, para 24.

[7]EM, Schedule 1, para 25.

[8]EM, Schedule 1, para 26.

[9]EM, Schedule 1, para 27.

[10]EM, Schedule 1, para 28.

[11]EM, Schedule 1, para 29.

[12]EM, Schedule 1, para 30.

[13]EM, Schedule 1, para 31.

[14]EM, Schedule 1, para 31.

[15]EM, Schedule 1, para 32.

[16]EM, Schedule 1, para 35.

[17]EM, Schedule 1, para 35.

[18]EM, Schedule 1, para 42.

[19]EM, Schedule 1, para 43.

[20]EM, Schedule 1, para 44.

[21]EM, Schedule 1, para 44.

[22]EM, Schedule 1, para 45.

[23]EM, Schedule 1, para 46. The definition of trades intentionally excludes purchasing or paying to rent or loan goods. These activities are not intended to be captured by the offence in section 80.2J.

[24]EM, Schedule 1, para 49 - 54.

[25]EM, Schedule 1, para 55.

[26]EM, Schedule 1, para 56.

[27]EM, Schedule 1, para 57.

[28]EM, Schedule 1, para 58.

[29]EM, Schedule 1, para 58.

[30]EM, Schedule 1, para 70.

[31]EM, Schedule 1, para 83.

[32]EM, Schedule 1, para 85.

[33]EM, Schedule 1, para 91 - 97.

[34]EM, Schedule 1, para 104.

[35]EM, Schedule 1, para 104.

[36]EM, Schedule 1, para 105.

[37]EM, Schedule 1, para 106.

[38]EM, Schedule 1, para 106.

[39]EM, Schedule 1, para 119.

[40]EM, Schedule 1, para 120.

[41]EM, Schedule 1, para 123.

[42]EM, Schedule 1, para 123.

[43]EM, Schedule 1, para 124.

[44]EM, Schedule 1, para 124.

[45]EM, Schedule 1, para 128.

[46]EM, Schedule 1, para 128.

[47]EM, Schedule 1, para 129.

[48]EM, Schedule 1, para 130.

[49]EM, Schedule 1, para 130.

[50]EM, Schedule 1, para 131.

[51]EM, Schedule 1, para 132.

[52]EM, Schedule 1, para 136.

[53]EM, Schedule 1, para 137.

[54]EM, Schedule 1, para 138.

[55]EM, Schedule 1, para 158.

[56]EM, Schedule 1, para 158.

[57]EM, Schedule 1, para 161.

[58]EM, Schedule 2, para 177.

[59]EM, Schedule 2, para 178.

[60]EM, Schedule 2, para 175.

[61]EM, Schedule 2, para 175.

[62]EM, Schedule 2, para 234.

[63]EM, Schedule 2, para 235.

[64]EM, Schedule 2, para 236.

[65]EM, Schedule 2, para 237.

[66]EM, Schedule 2, para 238.

[67]EM, Schedule 2, para 239.

[68]EM, Schedule 2, para 240.

[69]EM, Schedule 2, para 241.

[70]EM, Schedule 2, para 242.

[71]EM, Schedule 2, para 243.

[72]EM, Schedule 3, para 254 - 255.

[73]EM, Schedule 3, para 256.

[74]EM, Schedule 3, para 257.

[75]EM, Schedule 3, para 260.

[76]EM, Schedule 3, para 261.

[77]EM, Schedule 3, para 262.

[78]EM, Schedule 3, para 263.

[79]EM, Schedule 3, para 264.

[80]EM, Schedule 3, para 265.

[81]EM, Schedule 3, para 265.

[82]EM, Schedule 3, para 266.

[83]EM, Schedule 4, para 274.

[84]EM, Schedule 4, para 275.

[85]EM, Schedule 4, para 271.

[86]EM, Schedule 4, para 272.

[87]EM, Schedule 4, para 269.

[88]EM, Schedule 4, para 270.

[89]EM, Schedule 4, para 296.

[90]EM, Schedule 4, para 297.

[91]EM, Schedule 4, para 299.