- Consideration of the Bill
- The following chapter reviews the evidence received in consideration of the Bill.
The need for the Bill
2.2The Attorney-General’s Department (the Department) set out the need for the Bill as follows:
The threat of terrorism and violent extremism remains an enduring challenge for Australia, and the threat is becoming increasingly diverse and complex. Violent extremists are finding new ways to promote hatred, instil fear and vilify people within the community. Symbology is an effective tool that extremists are using to signal their ideology to a wide-reaching audience, and to recruit and radicalise others. It is critical that law enforcement is equipped to intervene at an early stage to protect the community by preventing radicalisation, violence and activities that incite hatred.
Consultation
2.3The Attorney-General’s Department (AGD) stated that it had undertaken ‘extensive consultation across the Australian Government, and engaged with states and territories, and community stakeholders in developing these measures’. The Department stated the Attorney-General had consulted
the Executive Council of Australian Jewry, the Australian Catholic Bishops Conference, the Australian Muslim Advocacy Network (AMAN), the Hindu Council of Australia, and Buddhist Council of New South Wales. These consultations informed the development of the Bill.
2.4Representatives of traders were not consulted in relation to the Bill.
Prohibited Symbols offences
2.5The following sections set out the evidence received by the Committee in relation to the offences proposed by Schedule 1 of the Bill, in 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).
Definitions of a prohibited hate symbol
Islamic State flag
2.6Proposed paragraph 80.2E(a) would prescribe the Islamic State (IS) flag as a prohibited symbol.
2.7Submissions from Muslim groups explained that the Islamic State flag displays Arabic words that represent the central tenet of the Islamic faith: La illaha illaLlah, Muhammad Rasul Allah which means There is no God but Allah, Muhammad is the Messenger of God. They explained that these words are of the utmost importance to Muslims, and that these words pre-date the formation of Islamic State and its use is not in any way exclusive to Islamic State and its ideology. They also pointed out that the Islamic State flag depicts the Seal of the Prophet Muhammad.
2.8The Canberra Islamic Centre ‘wholeheartedly rejected’ the claim made by the EM
that the Islamic State flag "is widely recognised as representing and conveying ideologies of hatred, violence, and racism that are incompatible with Australia's multicultural and democratic society.
2.9After setting out a number of ways in which legitimate Islamic symbols have been ‘hijacked’ by Islamic State the Australian National Imams Council submitted that banning these symbols
would be analogous to banning the use of the cross (otherwise used by Christians) because it has been misappropriated and used by the Klu Klux Clan. Such a broad or general prohibition would be in error and unjust.
2.10At the public hearing Ms Rita Jabri Markwell, Adviser, AMAN stated:
The harm that we are describing cannot be mitigated by a public education campaign. If you were to do a public education campaign, saying, 'These elements belong to Islam; this is the ISIS flag,' you will end up again conflating Islam and terrorism . . .It's a devastating impact on our community that we are trying to end, not continue. So we cannot suggest any amendment to this provision. All we can do is appeal and beg the Australian government to not introduce it.
2.11The Law Council noted that applying criminal sanctions to the display of the Islamic State flag ‘remains a novel development within Australia’ and suggested that
a narrow and precisely limited definition should be preferred. Accordingly, the Law Council suggests that the extended definition of prohibited symbol contained in proposed paragraph 80.2E(d) be removed.
2.12The Australian Jewish Democratic Society (ADJS) found it odd that the Bill proposed to ban the Islamic State flag whilst the flags of other listed terrorist organisations such as Hamas and Hizballah were not, stating that
Hamas and Hizbullah are proscribed, yet their flags are not and feature at demonstations (sic).
Nazi Hakenkreuz and double sig rune
2.13Proposed paragraph 80.2E(b) would prescribe the Nazi hakenkreuz (meaning twisted or hooked cross in German) as a prohibited symbol and proposed paragraph 80.2E(c) would prescribe the Nazi double sig rune as a prohibited symbol.
2.14A number of submitters recommended expanding the prohibition of Nazi symbols to other Nazi and neo-Nazi symbols. For example, Professor Katharine Gelber recommended that ‘it be extended to include recognised symbols and insignia of the Nazi regime’.
2.15The Executive Council of Australian Jewry (ECAJ) similarly argued that confining the prohibited Nazi symbols to just two symbols was not ideal. They pointed out that other symbols such as the ‘Nazi totenkopf (death’s head) symbol is at least as well recognised and has been used at least as frequently as the double-sig rune’ and that, at times, ‘the Nazi Sonnenrad (sun wheel) has appeared more frequently than either the double-sig runes or the Totenkopf’.
2.16The ECAJ’s submission noted similar legislation in New South Wales and Tasmania where those jurisdictions do not define a prohibited Nazi symbol and the ‘question of whether a symbol is a Nazi symbol in the circumstances of any particular case, is a matter of fact left to a judge or jury to decide on the evidence’. ECAJ advocated for a similar approach to be taken to the Commonwealth legislation.
2.17The Australian Federal Police provided evidence to the Committee that the Hakenkreuz and the double sig rune are the most prevalent symbols in its investigations. The AFP further advised that it would be ‘problematic’ for its officers to enforce the proposed offences were the laws to be unclear as to what was prohibited.
Offence of the public display of prohibited symbols
2.18Proposed 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, where the public display of that content satisfies the criteria in new subsection 80.2H(9) or where one of the defences in new subsection 80.2H(10) applies. There are circumstances where the offence does not apply and a number of defences to the display of the symbols.
2.19The Department submitted that the public display offence is designed to prevent the harassment and vilification of innocent Australians whose communities are targeted by Nazi, including neo-Nazi, and Islamic State supporters in person and online. The intention of this is to criminalise the display of prohibited symbols in circumstances where their display could cause harm to the Australian community or be used to recruit or radicalise vulnerable Australians. The risk of these harms exists where prohibited symbols are displayed in public places. The offence would not apply to the display of prohibited symbols in private, or to the private ownership of goods that bear such symbols.
2.20The Interactive Games and Entertainment Association (IGEA) set out that it wasn’t explicit that video games would be covered by the ‘artistic’ exemption in the Bill and explained that they were concerned that ‘video games displaying prohibited hate symbols in context appropriate scenarios, such as in a World War II setting in video games, will not be protected’. The IGEA recommended that
- the artistic defences under 80.2H, 474.45D and 80.2J(4) be retained, and that an additional section be added specifically providing that the use of the symbol is explicitly permitted in artistic circumstances.
- the interpretation of ‘artistic’ should be strengthened to expressly include interactive entertainment such as video games to remove any doubt and uncertainty that they are covered by the exemption. We recommend that this be implemented through making specific references, either in the text of the Bill, supporting notes in the text, or in the explanatory memorandum, that the artistic exemption element of the offence includes depictions in media for entertainment purposes such as video games.
- the Bill clarify where liability falls amongst parties responsible for the public availability of video games and consider that video game platforms are not held wholly responsible for third party displays of prohibited hate symbols through ingame communication.
- the Committee consider an explicit general exemption for content classifiable under the Classification Act, which is currently only referred to in the Explanatory Memorandum.
- While there are specific exemptions in the Bill for journalists, media organisations who submitted felt that these did not go far enough. Australia’s Right to Know Coalition drew attention to exemptions:
for the purposes of making a news report, or a current affairs report; and a person working in a professional capacity as a journalist. The scope of both elements is insufficient for contemporaneous reporting and requires amendment. Specifically:
- The conduct covered should extend to making other commentary associated with news reporting (including opinion pieces, editorials, cartoons and satire). These other forms of commentary play an important role in assisting media and journalists to educate the public about supremacist and terrorist organisations and the risks they pose. Such commentary should be protected.
… and
- The protection should extend to other individuals involved in making the report or commentary, not only professional journalists. The existing drafting does not provide protection for support staff, editors, commentators, cartoonists and other contributors (whether on staff or freelance), including experts.
- SBS echoed these sentiments and submitted that the Bill should be amended to ensure it ‘accommodates the full range of media content broadcast and transmitted by media organisations such as SBS.’
- Proposed 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. A number of circumstances in which the offence does not apply and defences to the offence also exist.
- The Department explained that the policy objective of the trading offence is to prevent the profiting from prohibited hate symbols:
Noting the hateful and violent ideologies that the prohibited symbols represent, trading in goods which bear those symbols results in the further dissemination of these ideologies as well as the continuation of an economy which allows for profiting from extremism and hate. The ideologies that these symbols represent are fundamentally incompatible with Australia’s democratic and multicultural society. As a result, there are few instances in which the trade of goods depicting prohibited symbols would not be contrary to the public interest.
2.25The ECAJ welcomed the introduction of the offence stating that no trade in Nazi memorabilia could be considered ‘innocuous’ but argued that the offence did not go far enough as the only items caught would be those traded bearing the two Nazi symbols defined in the Bill. The ECAJ noted that
some of the more odious examples of Nazi memorabilia which have been marketed and sold by businesses in Australia do not bear either of these symbols, but nonetheless graphically represent Nazi themes of hate, intimidation and racism, and are used to promote Nazi ideology and to recruit and mentally condition members of Nazi groups.
2.26However, a number of militaria/antique dealers and collectors made submissions raising concerns with the Bill’s prohibition on trading of material with the Nazi Hakenkreuz or double-sig rune. These submitters were concerned that these offence provisions would affect their businesses and/or their ability to collect German World War 2 militaria/antiques. Some militaria/antique dealers and collectors suggested that the sale of prohibited material should be allowed with stickers covering up the offending symbol.
2.27Ms Clare McDonald submitted that the term ‘historical collecting’ could be inserted into proposed 80.H(9)(a)(i), 80.2J(4)(a), 80.2M(3)(a)(i) and 474.45D(1)(d)(i) and (ii). Essentially such an amendment would make ‘historical collecting’ a defence to any of the offences in the Bill.
2.28Others suggested that there be a scheme to authorise or license dealers in order to regulate trade as required. In addition, some submitters suggested that there should be some form of compensation scheme for the items that they hold; while some believed such compensation would be able to be obtained through the courts.
2.29Collectors focused on the historical aspect of their collecting and the fact that the items collected could have links to Australian veterans. As one example, Dr Lachlan Stewart argued that veterans ‘are arguably among the best-informed advocates against war and terrorism.’
2.30Echoing this, at the public hearing, Mr Andrew Harvey, Secretary, Arms Collectors Guild of Tasmania Inc drew a connection between trading in goods that may have the prohibited symbol and Australian veterans, stating that:
Some of these items were recovered by Australian veterans in World War II. They got their trophies of war, brought them back and have possessed those items that they spilt blood on getting, and now those items are coming up for sale, and our collectors are buying them from veterans or their families. And, okay, the items might have come from a country that was horrendous, but these items were collected by veterans, and we're going to deny those veterans being able to sell those items.
2.31The Australian War Memorial noted the relevance of Fascist, Second World War and Islamic State histories to Australia’s war history, saying ‘[i]t is important that the Memorial is able to tell these stories and their impact on Australian society in the Memorial’s galleries’. While not anticipating that the offences would apply to the Memorial, due to the exemptions included in the Bill, the Memorial submitted that the prohibition on trading in goods bearing prohibited Nazi and Islamic State symbols ‘will quickly make them unavailable… there is likely to be a rapid decline in availability of these artefacts to collecting institutions’.
2.32The ECAJ acknowledged that while many collectors do not intend to promote or glorify Nazism, collectors’ intentions are ‘not the end of the matter’ and that the objective effect of this trade in the wider community’ needed to be looked at. ECAJ’s main concern was about
Neo-Nazi groups who might pose as genuine collectors and who then use these items for recruiting purposes or for group-bonding purposes or other activities that are designed to promote Nazism.
2.33In a supplementary submission the AFP confirmed that it was
aware of at least one (1) person of [counter-terrorism] interest who was motivated by Ideologically Motivated Violent Extremism and possessed genuine historical Nazi memorabilia, however as at 1 September 2023, there are no instances where charges for Commonwealth terrorism (or related) offences have been linked to an individual’s collecting or trading in militaria.
2.34The AFP also confirmed that it was not aware of ‘arrests of historical artefact traders for Commonwealth terrorism offences.’
Directions to cease display of prohibited symbols in public
2.35Proposed 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. In addition proposed 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. Proposed subsection 80.2M(3) would set out defences to the offence in new subsection 80.2M(1).
2.36The AFP was supportive of this power, saying it was ‘essential any prohibition on public display be accompanied by an ability to direct removal’. The AFP stated that, if the Bill was passed, it would
provide necessary training and update relevant practices and procedures to ensure officers recognise the listed symbols and apply the direction reasonably and appropriately.
2.37The AFP advised it would work with states and territories to enforce the offence and would be providing guidance and training materials to officers. The AFP noted this is
not dissimilar to the work that we do in other crime types where there is Commonwealth legislation that we need to educate the state and territory police on in terms of how to utilise that legislation.
2.38The Prosecution Policy of the Commonwealth: Guidelines for the Making of Decision in the Prosecution Process has a list of non-exhaustive matters which may arise for consideration in determining whether the public interest requires a prosecution. Some of these matters are:
- the seriousness or, conversely, the relative triviality of the alleged offence or that it is of a 'technical' nature only
- mitigating or aggravating circumstances impacting on the appropriateness or otherwise of the prosecution
- the youth, age, intelligence, physical health, mental health or special vulnerability of the alleged offender, a witness or victim
- the alleged offender's antecedents and background
- the passage of time since the alleged offence when taken into account with the circumstances of the alleged offence and when the offence was discovered
- the degree of culpability of the alleged offender in connection with the offence
- the effect on community harmony and public confidence in the administration of justice
- whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute
- whether the consequences of any resulting conviction would be unduly harsh and oppressive
- whether the alleged offence is of considerable public concern.
Offences for using a carriage service to deal with violent extremist material
2.39Schedule 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.The new offences would be for accessing, transmitting or soliciting violent extremist material using a carriage service; or possessing or controlling such material obtained or accessed using a carriage service; and would incur penalties of five years’ imprisonment.
2.40The Bill would also amend subsection 3(1) of the Crimes Act to expand the definition of ‘terrorism offence’ to include an offence against new Subdivision HA, so that the new offences would be terrorism offences.
2.41The proposed amendments were supported by a number of submitters including the Executive Council of Australian Jewry and Charles Sturt. Mr Joel MacKay stated that it was a ‘vital measure to combat the dissemination of harmful content that incites violence and instils fear in our society.’
2.42The Law Council submitted that legislators should ‘proceed with caution’ in creating offences for ‘simply accessing or possessing material’, referred to the ‘noticeable shift towards diverse content being accessed through the ‘scrolling’ of digital platforms, rather than systemic searching for material’ and expressed 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.
2.43Australia’s Right to Know echoed the concerns it expressed in relation to Schedule 1, for the similar defences in Schedule 2 relating to news reporting, which are also ‘confined to journalists and news reports, not support staff and other commentary.’
Amendments to the offence of advocating terrorism
2.44Schedule 3 to the Bill proposes to expand the offence of advocating terrorism, and increase the penalty for the offence. Proposed paragraphs 80.2C(3)(b) and 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 provides instruction on the doing of a terrorist act or 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. Where a person is found guilty of advocating the doing of a terrorist act, the maximum penalty would be increased from 5 to 7 years’ imprisonment.
2.45In supporting these amendments the AFP stated that it had
Observed conduct online that blurs the line between ‘advocating terrorism’ and discussing or glorifying terrorism-related activities. The expansion of the advocating offence facilitates further opportunities for law enforcement to clearly demonstrate intent, in addition to further aligning with international jurisdictions’ comparable sentencing frameworks.
2.46The Law Council and Liberty Victoria argued that the existing definition of “advocates” would sufficiently cover the praising of a terrorist act and, at the public hearing, Mr Richard Wilson SC, Co-Chair, National Criminal Law Committee, Law Council of Australia of the Law Council stated that
based on the evidence advanced publicly, we remain unconvinced that it is necessary to expand the current definition of 'advocating terrorism' to include instructing on and praising terrorism.
2.47Australia’s Right to Know expressed a concern that
some journalism could be seen as "providing instruction", even inadvertently, when reporting on how a terrorist act was undertaken. For example, an article discussing how a terrorist group managed to bypass security or avoid detection to commit their crimes may be viewed as instructing others on how to take these steps, rather than alerting the public and authorities as to the security risks.
Amendments to the terrorist listing regime
2.48The effect of the amendments in Schedule 4 will be that:
- terrorist listings will not expire unless de-listed by the AFP Minister
- the PJCIS will be able to review an instrument defining an organisation as a ‘terrorist organisation’ at any time
- the PJCIS will be allowed to report its comments and recommendations directly to the AFP Minister instead of, or in addition to, each House of Parliament.
- The Department stated that the sunsetting requirement ‘did not align with the longevity of terrorist organisations or the severity of terrorist offences.’ The Department of Home Affairs provided similar evidence.
- Professor Mark Nolan, as part of a joint submission from Charles Sturt University, supported the amendments arguing that the
ability to petition the AFP Minister to de-list an organisation under s 102.1(17), alongside an own-motion power for the PJCIS to commence a revocation consideration, in addition to the obligation placed upon the AFP Minister to take steps to remove any listed organisation that no longer meets the listing threshold, are three strong ways in which any negative implications of removing sunsetting requirements for listed terrorist organisations are countered. These amendments do not interfere with the sound processes for tabling relevant PJCIS reviews in Parliament.
2.51In contrast, some submitters argued that the reasoning that some organisations had been listed and re-listed many times was not sufficient to abolish sunsetting clauses. The Law Council submitted that the duration for which some organisations have been listed as terrorist organisations did not ‘establish the redundancy of the parliamentary oversight’; instead it illustrated that ‘where there is a compelling case for relisting, [sunsetting] is not an undue impediment to relisting.’
2.52The Department advised that it, along with partner agencies, would continue to monitor the appropriateness of organisations listed under the Criminal Code.
Seven listings have been allowed to lapse on the basis that, when reconsidered, the thresholds were no longer met, or a decision was made not to relist them. Four organisations have been succeeded by other organisations, meaning that they are now known by a different name or have been taken over by another group.
2.53The Department noted that the proposed amendments would provide the Committee with a standing ability to review the organisations listed under the Criminal Code, describing this as ‘an important check and balance in the terrorist organisation listings framework’. The Department explained that
In place of the Committee’s review of re-listings triggered by 3 year sunsetting requirements, the Bill would enable the Committee to review listings instruments at any time
2.54The Law Council noted the purpose of the listings framework:
It is important to recognise the extraordinary nature of ‘status offences’, which target the nature of the organisation with which the defendant engaged, rather than requiring proof of a defendant’s specific intention to further the terrorism-related objectives of the organisation. This is compounded by the fact that, when a person is prosecuted for a terrorist organisation offence in relation to their engagement with a listed terrorist organisation, the prosecution is relieved of the requirement to prove that the organisation was, in fact, engaged in terrorism-related activities.
2.55The Clerk of the House of Representatives and the Clerk of the Senate (Joint Clerks) commented on the Bill’s proposal that the PJCIS will be allowed to report its comments and recommendations directly to the AFP Minister instead of, or in addition to, each House of Parliament. The Clerks submitted that:
There are no current or recent circumstances in which a parliamentary committee has had the discretion to report directly to a Minister without reporting to the Parliament. On rare occasions a committee has been authorised or directed to disclose its report to Ministers before its presentation to the Parliament. However, on every occasion where this power was exercised, the committee was required to inform the Parliament that it had reported.