Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's advisory report incorporating additional comments on the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I note that the bill will amend the Criminal Code Act 1985 to create offences for publicly displaying prohibited Nazi or Islamic State symbols and trading in items bearing these symbols, to create offences for using a carriage service to deal with violent extremist material, to strengthen the offence of advocating terrorism and to remove the three-year sunsetting of terrorist organisation listings so that listings will operate until a decision is made to proactively delist an organisation. Amongst other things, this bill will implement prohibitions on the public display and trade of hate symbols. The committee agrees that the public display and trade of symbols that represent ideologies of hatred, violence and racism cause significant harm to many Australians. These ideologies are incompatible with Australia's multicultural and democratic society.

The committee notes evidence from the AFP that the Nazi hakenkreuz and the double sig rune are the most prevalent symbols that it observes in its investigations. Further, the AFP emphasised the importance of clearly defining which symbols are prohibited to ensure its officers can enforce criminal laws. In light of this evidence the committee is comfortable with the bill's prohibition of two Nazi symbols—the hakenkreuz, which is also known as the swastika, and the SS sig rune.

The committee had concerns with prohibiting the Islamic State flag, which is generally identified by its reference to the shahada and the seal of the Prophet Mohammed. These are central tenets of the Islamic faith which have been misappropriated by Islamic State. The committee, therefore, recommends that the bill be amended to remove the Islamic State flag from the definition of a prohibited hate symbol. The committee proposes an alternative approach for the government to consider to achieve its policy intent. The committee is of the view that the intent of the bill—prohibiting the public display and trade of symbols that promote extremist ideologies—may be better achieved by an approach that prohibits symbols associated with all proscribed terrorist organisations rather than targeting the Islamic State flag in isolation.

The committee considered much evidence from the militaria and collectables community in relation to the offence of trading of items bearing a prohibited symbol. The committee recommends that these offence provisions do not come into force for a period of six to 12 months so that collectors have a window in which to dispose of part or all of their collections if they so wish.

The committee supports the other measures in the bill to create offences for using a carriage service to deal with violent extremists material, to strengthen the offence of advocating terrorism and to remove the three-year sunsetting of terrorist organisation listings. The committee notes evidence in relation to the carriage service offence that the proposed journalistic purpose defence may not extend to editors, producers and others involved in the news and current affairs reporting process. The committee has, therefore, recommended that the bill be amended to address this issue.

The committee notes that the submission from the joint clerks on the issue that the bill seeks to enable the committee to report its comments and recommendations directly to a minister. The committee considers that this is not appropriate and recommends that the committee only report to the parliament on its activities as per its existing practice. Subject to these amendments, the committee recommends that the bill be passed by parliament.

On behalf of the committee, I extend my thanks to those who participated in the inquiry—all the witnesses who gave evidence at the public hearings and those who provided submissions. I also thank the secretariat for all their hard work on this particular inquiry—and many others of course. In such a short time frame the work they did was exemplary. I extend my thanks to them and to all members of the committee—the deputy chair and members of the committee. It was a difficult bill to work through and a difficult report to work through, but we worked in good faith to try to find very good recommendations that we think will improve this bill and will be in the national interest. I thank opposition members and government members of the committee. I move:

That the House take note of the report.

Andrew Wallace (Fisher, Liberal National Party) Share this | Link to this | Hansard source

Coalition members of the committee support the policy intent of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 and the recommendations of this report. More than six 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 in his ideological quest that the German people would become the master race remains a stain on the history of humanity, and it 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.

Antisemitism, both within Australia and abroad, has been on the ascendancy in recent years. To counteract this reprehensible conduct, the coalition introduced a private member's bill on 23 March 2023 in the Senate. Titled the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023, 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's private member's bill also expressly prohibited the giving of the Nazi salute. Unfortunately, the government rejected this bill.

The illegal and unprovoked attacks on Israel by Hamas terrorists on 7 October 2023 led to the murder of 1,200 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. We've seen the most recent event, just this morning, where a Jewish school was prevented from having a jumping castle by a private company in Western Sydney.

The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 and its explanatory memorandum expressly states that the display and trading of prohibited Nazi symbols gives effect to Australia's international human rights obligations. It does that in the explanatory memorandum, and talks about article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination; the outlawing of the vilification of persons on national, racial or religious grounds, under article 20 of the International Covenant on Civil and Political Rights; and the prohibition of discrimination under article 26 of the same convention.

Coalition 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, under section 51(xxix) of the Australian Constitution.

Since at least the Tasmanian dam case it has been clear that the Commonwealth has constitutional power to legislate in order to give effect to Australia's international obligations. This includes legislating to implement obligations under treaties and other international instruments.

Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination sets out mandatory obligations to undertake positive measures designed to eradicate incitement to, or acts of, racial discrimination. There are also relevant provisions in the International Covenant on Civil and Political Rights, in articles 20 and 26. The bill and its explanatory memorandum expressly refer 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. The 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 section 80.2H(3) of the bill. Similarly, legislative notes make clear that section 80.2H(4) is intended to give effect to article 20 of the ICCPR and that section 80.2H(7) gives effect to article 26 of the same convention.

Article 4 of the ICERD does not distinguish between physical behaviours, like the Nazi salute, and the display of physical objects. 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. The UN committee makes clear that conduct which is dealt with under article 4 and other parts 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 range of behaviours that promote racial hatred or race based discrimination.

In 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. In turn, this means that, to the extent the Commonwealth has 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. A similar rationale applies to article 20 of the ICCPR; likewise in relation to article 26. There are other heads of power to which the Commonwealth has the ability to ban Nazi salutes; I won't go into any great detail on those.

The 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. On 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 but cannot prohibit the Nazi salute. Otherwise, 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.

The coalition members of the committee support the bill, but we feel that the government has not gone far enough in addressing the issue—the scourge—of antisemitism, which is furthered by some members of our community when they conduct themselves with gestures such as the Nazi salute. The coalition members on the committee feel very strongly that that should also be prohibited under the bill. I thank members of the secretariat, all those people who provided submissions and my parliamentary colleagues on the committee.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Does the member for Wills wish to move a motion in connection with the report to enable it to be debated on a future occasion?

Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.