Additional Comments of the Coalition Members of the Committee

Background

1.1Coalition Members of the Committee support the policy intent of the Bill and the recommendations of this Report, subject to the following.

1.2More than 6 million Jews were murdered by the Nazis as part of what is known as Hitler’s “Final Solution”, namely the extermination of all Jews in Europe during World War II, along with people living with disabilities, homosexuals, people of the Catholic faith and Roma People among other minorities.The rise of Hitler’s Third Reich and his ideological quest that the German people would become the “Master Race” remains a stain on the history of humanity and will remain ever thus.It is a period of history in the 20th Century that until very recently, was almost universally recognised as an era that must never be repeated.

1.3Antisemitism, both within Australia and abroad has been on the ascendency in recent years. To counteract this reprehensible conduct, the Coalition introduced a Private Members Bill on 23 March 2023 in the Senate.Titled the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (“the Coalition’s Private Member’s Bill”), it sought to prohibit the public display of Nazi symbols, without reasonable excuse, in circumstances where the person knew that the symbol was a Nazi symbol.Relevantly, the Coalition Private Member’s Bill also expressly prohibited the giving of the Nazi salute.

1.4The Coalition’s Private Member’s Bill was referred to the Legal and Constitutional Affairs Legislation Committee for Inquiry on 27 March 2023.In its report dated May 2023, the Government majority recommended that the Bill not be passed in its current form, citing concerns that the Bill:

a.Did not prohibit specific symbols;

b.Was not sufficiently clear in respect to the fault element of the offence of displaying a Nazi symbol, ie of knowingly doing so;

c.Lacked clarity around the Commonwealth’s constitutional head of power.

1.5Senator Paul Scarr (LNP, Qld) opposed the views of the majority and provided reasons in his dissenting report for the passage of the Coalition’s Private Member’s Bill.

1.6The illegal and unprovoked attacks on Israel by Hamas terrorists on 7 October 2023 led to the murder of 1400 Jews, men, women and children, along with the rape and kidnapping of others.These attacks resulted in the greatest loss of life of Jews in one single day since the Holocaust.These barbaric attacks have seen a further resurgence of antisemitism across many countries.

1.7Coalition members of the Committee believe that there is no more important time for the Parliament of Australia, and the Australian Government to stand with the people of Israel and ensure that to the greatest extent possible, all forms of Nazi symbology, including that of the Nazi salute be prohibited under the Bill.

Banning of the Nazi Salute

1.8Government Members of the Committee consider that the prohibition of the Nazi salute “would not be appropriate as a federal offence, but rather is an appropriate matter for state and territory law.”[1]

1.9Coalition Members of the Committee strongly disagree.

Under the external affairs power, the Commonwealth can legislate to implement treaty obligations

1.10The Bill[2] and its Explanatory Memorandum[3] expressly states that the display and trading of prohibited Nazi symbols give effect to Australia’s international human rights obligations:

It represents positive action to eradicate the incitement of racial discrimination (Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination (ICERD)), outlaw the vilification of persons on national, racial or religious grounds (Article 20 of the International Covenant on Civil and Political Rights (ICCPR)), and prohibit discrimination (Article 26 of the ICCPR).

1.11Coalition Members of the Committee agree. These treaties allow Australia to ban the display of symbols where the display incites hatred or discrimination. It follows that, under the Constitution, the Commonwealth has the constitutional power to pass laws implementing those obligations under its external affairs power – s.51(xxix) of the Australian Constitution.

1.12Since at least the Tasmanian Dam Case, it is clear the Commonwealth has constitutional power to legislate in order to give effect to Australia’s international obligations: Commonwealth v Tasmania (1983) 158 CLR 1. This includes legislating to implement obligations under treaties and other international instruments.

1.13This power is not at large. The Commonwealth does not gain plenary power to legislate on a subject matter, simply because that subject matter is dealt with in a treaty. Rather, the proposed law must be reasonably capable of being considered appropriate and adapted to fulfilling obligations and benefits of the international instrument.

1.14The international obligation must be ‘sufficiently specific’ to enliven the external affairs power. However, once the power is enlivened, the Commonwealth has a ‘margin of appreciation’ that allows it to determine how best to implement Australia’s international obligations. The proposed law does not need to mirror the language of the treaty, but must give effect to the treaty obligation and be consistent with it if it is to be supported by the external affairs power: see generally Victoria v Commonwealth (1996) 187 CLR 416, at 486 (the Industrial Relations Act Case).

Australia has international obligations that require the prohibition of racist symbols

1.15Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) sets out mandatory obligations to undertake ‘positive measures’ designed to eradicate incitement to and acts of racial discrimination. The terms of the obligation are set out in full below:

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a)Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b)Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

1.16There are also relevant provisions in the International Covenant on Civil and Political Rights. Articles 20 and 26 provide as follows:

Article 20

1.Any propaganda for war shall be prohibited by law.

2.Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

…

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Bill expressly acknowledges the prohibition of the display and trade of Nazi symbols based on Australia’s obligations under International law:

1.17The Bill and its Explanatory Memorandum expressly refers to these international law obligations, and in so doing, implies that the offences in its Bill rely on the treaty implementation aspect of the external affairs power.

1.18The Bill expressly provides that the Commonwealth has the power to ban the display of Nazi symbols under Article 4 of the ICERD. This is made clear in the legislative note incorporated in subsection 80.2H(3) of the Bill.

1.19Similarly, legislative notes make clear that subsection 80.2H(4) is intended to give effect to Article 20 of the ICCPR, and that subsection 80.2H(7) gives effect to Article 26 of the ICCPR.

Treaty obligations that require Australia to eliminate racist propaganda and incitement to racism do not distinguish between symbols and behaviours

1.20Article 4 of the ICERD does not distinguish between physical behaviours, like the Nazi salute, and the display of physical objects (like banners or flags).

1.21To the contrary, the UN Committee on the Elimination of Racial Discrimination has expressly given guidance to the contrary. Specifically, from time to time the UN Committee issues guidance in the form of ‘general recommendations’ on how the obligations under the ICERD should be interpreted. Relevantly, in paragraph 7 of its General Recommendation 35, it discusses the concept of ‘racist hate speech’, and expressly says the obligations in Article 4 extend to conduct:

…whether emanating from individuals or groups, in whatever forms it manifests itself, orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events.

(Emphasis added.)

1.22The UN Committee makes clear that conduct which is dealt with under Article 4 and other parts of the of the ICERD does not distinguish between words (whether spoken or written), the display of symbols (like the Nazi Hakenkreuz) and public behaviour (like the performance of the Nazi salute). Rather, it covers a large range of behaviours that promote racial hatred or race-based discrimination.

1.23Coalition members of the Committee note that, in Australian discrimination law, it is widely accepted that Jewish people are treated as a ‘race’ as well as a ‘religion’, and so can be subject to race-based discrimination.

1.24In short, both the wording of Article 4 of the ICERD and the general recommendations from the UN Committee support the view that to the extent the article supports a ban on the display of symbols like flags and banners, it also supports a ban on behaviours like the Nazi salute.

1.25In turn, this means that to the extent the Commonwealth has the constitutional power to ban Nazi symbols relying on Article 4 of the ICERD in the way that the Bill proposes, it also has power to ban the Nazi Salute.

1.26A similar rationale applies to Article 20 of the ICCPR. Article 20 does not draw any express distinction between the display of a symbol and the performance of a physical behaviour; nor do the general comments suggest otherwise.

1.27Likewise, Article 26 of the ICCPR does not suggest that race-based discrimination through the display of symbols should be prohibited, but race-based discrimination through the performance of physical gestures is protected. Rather, it applies to ‘any’ discrimination. To the extent that either symbols or gestures are racially discriminatory, they are both prohibited.

There are other heads of power which allow the Commonwealth to ban Nazi salutes in some cases

1.28In addition to the external affairs power, the Commonwealth also has a patchwork of powers which it can rely on to ban Nazi salutes in certain circumstances, including:

a.The territories power in s.122 of the Constitution, which allows it to ban Nazi salutes in places like the ACT and the Northern Territory; and

b.The Commonwealth places power in s.52 of the Constitution, which allows the Commonwealth to ban the Nazi salute in places like Defence bases and federal airports.

1.29Other heads of power may also allow the Commonwealth to ban the Nazi salute where certain thresholds are satisfied:

a.the ‘geographic externality’ aspect of the external affairs power in s.51(xxix) would arguably allow the Commonwealth to ban the salute in places beyond state waters (eg: on ships in Commonwealth waters, and in relation to conduct by Australians overseas);

b.the communications power would arguably support a ban on the salute, to the extent that the giving of a salute is incidental to the dissemination of Nazi material via television or the internet; and

c.the defence power in s.51(vi) could support a ban on the salute, to the extent that the giving of the salute is linked to threats against the public, or a section of the public.

Summary

1.30The Bill simply does not address gestures like the Nazi salute. The explanatory notes to the Bill do not articulate any basis in international or constitutional law to explain why such a gesture could not be prohibited (if it were subject to the same limitations that apply to the prohibition on the display or trade of Nazi symbols).

1.31On the available information, it is simply not persuasive to argue that the Commonwealth can legislate under the treaty implementation aspect of the external affairs power to prohibit the display and trade of Nazi symbols (subject to certain thresholds being satisfied), but cannot prohibit the Nazi salute.

1.32Otherwise, to suggest that State and Territory Police are best placed to enforce a prohibition on the Nazi salute, but that Federal Police can enforce the display and trade of Nazi symbols is nonsensical and without foundation in law or in common sense.

1.33That the Bill expressly prohibit the giving of the Nazi salute.

1.34The Coalition Members of the Committee recommend that, subject to the amendments recommended in this report and additional comments, the Counter-Terrorism Legislation Amendments (Prohibited Hate Symbols and Other Measures) Bill 2023 be passed by the Parliament.

Andrew Wallace MP Senator the Hon Simon Birmingham

Deputy Chair

The Hon Andrew Hastie MP Zoe McKenzie MP

Senator James Paterson

Footnotes

[1]See para 3.5 of the Government Member’s report.

[2]See paras 1.17 – 1.19 of this Dissenting Report.

[3]See para 7of the Explanatory Memorandum.