Dissenting Report from Senator Paul Scarr

Introduction

1.1I strongly believe that the proposed Bill should be passed as soon as possible. Whilst some technical issues have been raised in the Majority Report (in good faith), there is no reason why these cannot be quickly resolved through amendments developed in a bipartisan manner and drafted with the assistance of the Attorney-General’s Department. In addition, the technical concerns could also be addressed through the introduction of a review into the operation of the proposed Bill after an appropriate period.

1.2There has been an increase in recent years in vile acts of antisemitism. The Executive Council of Australian Jewry prepares an annual report on antisemitism in Australia. I have quoted from it in the Senate and at Committee hearings. It is invaluable research. In the Executive Summary of the report for 2022, it is stated:

Accordingly, there was an increase of 6.9% in the overall number of reported antisemitic incidents compared to the previous year (2021), which had a 35% increase over the number of recorded incidents in 2020.[1]

1.3This is unacceptable. State jurisdictions have, or are taking action, to prohibit the display of Nazi symbols. The Federal Parliament needs to act. The time to act is now.

Reasons for the Bill

1.4I fully agree with the view expressed in the Majority Report in paragraphs 2.55 to 2.57. In this section of the Dissenting Report, I provide further comments with respect to the need for the Bill.

1.5In their submission, the Executive Council of Australian Jewry Inc. provided the context for the consideration of this Bill:

Nazism is not merely an abstract or theoretical ideology. It has a concrete history – the history of the Third Reich in Germany – that is drenched in human blood and misery…The laws on race and citizenship which the Nazi regime began to impose on taking power in Germany in 1933, and which were codified by the Nuremberg Laws of 1935, invoked the twisted pseudo-science of eugenics to make anti-semitism and false doctrines of racial superiority the law. These falsehoods were the evil rationale for the Nazis war of aggression in Europe and for the systematic, industrial scale genocide of so-called inferior races…

Given this history, the public display of Nazi symbols and gestures goes well beyond the realm of ideas and freedom of expression. Such displays are, and are usually intended to be, acts of menace and intimidation. They convey hatred for individuals and groups and for the values of personal freedom, justice and democracy of our entire society. Placing Nazi signs or performing Nazi salutes on or in the vicinity of a synagogue, mosque or temple or a Holocaust museum is not an expression of an idea, but a naked threat and a promotion of hatred or violence [emphasis added].[2]

1.6It is the horrors perpetrated by the Third Reich—fuelled by an evil antisemitism and racist ideology—which infuses the display of Nazi symbols with an evil menace and threat. The display of Nazi symbols necessarily promotes hatred and violence. Given the ideology and the history, it cannot be otherwise.

1.7The symbols of the National Socialist German Workers Party ('Nazi Party') are inextricably entwined with the antisemitism and racist ideology of the Nazi Party and with the horrors perpetrated by the Nazis. The leader of the Nazi Party was personally involved in the design of many of the symbols. These symbols became the trademarks of death.

1.8The importance of symbols in the Nazi Party (including to its leader) is evidenced by the passage of the so-called Nuremberg Laws on 15 September 1935. On the same day that it passed vile antisemitic and racist laws, the Reichstag (under the control of the Nazi Party) passed laws relating to Nazi symbols.[3] This was no coincidence. The process of adoption of the laws is described by Saul Friedlander in his book: Nazi Germany and the Jews: The Years of Persecution 1933–1939. I quote:

The first law, the Reich Flag Law, proclaimed that henceforth black, red and white were the national colours and that the [Hakenkreuz] flag was the national flag. The second, the Citizenship Law, established the fundamental distinction between “citizens of the Reich”, who were entitled to full political and civic rights, and “subjects”, who were now deprived of those rights. Only those of German or related blood could be citizens. Thus, from that moment on, in terms of their civic rights, the Jews had in fact a status similar to that of foreigners. The third, the Law for the Defence of German Blood and Honour, forbade marriages and extramarital relations between Jews and citizens of German or kindred blood. Marriages contracted in disregard of the law, even marriages contracted outside Germany, were considered invalid. Jews were not allowed to employ in their households female German citizens under forty-five years of age. Finally, Jews were forbidden to hoist the German flag (an offence against German honour).[4]

1.9The display of Nazi symbols is not a legitimate exercise of freedom of speech in a liberal democracy. It is a threat. It is heavy with menace. It is an act of vilification. It should be unlawful.

Concerns raised in the Majority Report

1.10I note that the Majority Report provides three reasons for recommending that the Bill not be passed. The first two are technical. The third relates to constitutionality. In my view, all three could be dealt with expeditiously if the Government chose to do so. I consider each in turn.

1.11In paragraph 2.59, the Majority Report raises concerns with respect to the prohibition not being definitive with respect to which symbols are the subject of the ban. There are legitimate arguments both in favour of a prescriptive approach (as reflected in the draft Queensland legislation) and a less prescriptive approach (as reflected in the bill which is based on the New South Wales legislation).[5]

1.12There is a category of Nazi symbols which are without doubt associated with the Nazi Party—they are irrefutably Nazi symbols. Law enforcement agencies and courts would be able to readily identify them. It is a matter of clear historical record. Many of these symbols are enumerated in the Explanatory Memorandum.[6]

1.13The intention underlining the flexibility in the definition is to address the issue of evolution of historical Nazi symbols by Neo-Nazi groups to evade the operation of the law. This follows the New South Wales approach. In my view, a court would be able to reasonably determine whether a particular symbol is a Nazi symbol for the purposes of the Bill. Evidence could be led with respect to the use of a particular symbol by a Neo-Nazi Group. Given its criminal nature, each element of the offence would need to be proven beyond reasonable doubt.

1.14Accordingly, I support the passage of a Bill which adopts the approach proposed (consistent with the New South Wales legislation). However, if required to achieve bi-partisan support to achieve passage of the Bill as quickly as possible, I would also support amendment of the current Bill so that it is more prescriptive. Guidance could be obtained from the Department of the Attorney General to inform the approach. This issue should not hold up passage of the Bill.

1.15In paragraph 2.60, there is a discussion of the fault element. Again, this issue has been canvassed in many State jurisdictions. There are arguments in favour and against the different approaches proposed. Again, with the guidance of the Attorney General’s Department applying the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the current Bill could be amended to address any concerns to secure support for passage of the Bill through the Parliament.

1.16In relation to both of the technical points raised in the Majority Report (certainty with respect to the meaning of 'Nazi symbol' and the fault (knowledge) element), there is a strong case for providing a review of the legislation after an appropriate period to assess whether or not the Bill is achieving its objectives. This was the approach adopted in New South Wales.

1.17Lastly, the Majority Report raises concerns with respect to constitutional power. Australia has obligations under the Intervention Convention on the Elimination of All Forms of Racial Discrimination. This matter is canvassed in some detail in the submission made by the Executive Council of Australian Jewry Inc. Given Australia’s treaty obligations, the external affairs power (section 51 (xxix)) provides a clear constitutional head of power for the Commonwealth Parliament to legislate.

Conclusion

1.18There are many useful suggestions and proposals in relation to the Bill made by a range of stakeholders, including through answers to questions on notice. These are canvassed in the Majority Report. If the Government determines to introduce its own Bill, then these suggestions and proposals warrant more detailed consideration. The work of this Committee (with the support of the secretariat and those who made submissions) could then be put to good use by the Government in drafting its own Bill.

Recommendation 1

1.19That the Bill be passed with an amendment providing that a review be undertaken following its operation for an appropriate period.

Recommendation 2

1.20If the Government wishes to propose its own Bill, then such a Bill should be prepared as a matter of urgency (as per recommendation 2 of the Majority Report), taking into account the submissions made as part of this enquiry process.

Senator Paul Scarr

Deputy Chair

Liberal Senator for Queensland

Footnotes

[1]Julie Nathan, Report on Antisemitism in Australia 2022, Executive Council of Australian Jewry, 12 December 2022, p. 6.

[2]Executive Council of Australian Jewry Inc., Submission 15, p. 8.

[3]United States Holocaust Memorial Museum, 'The History of the Swastika', Holocaust Encyclopedia, https://encyclopedia.ushmm.org/content/en/article/history-of-the-swastika (accessed 17 May 2023).

[4]Saul Friedlander, Nazi Germany and the Jews: The Years of Persecution 1933–1939, HarperCollins, 1997, pp. 141-142.

[5]Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW)

[6]I do note that the Sydney Jewish Museum recommends the inclusion in the list in the Explanatory Memorandum of the Parteiadler (the Party Eagle). See Submission 6, p. 3.