Hansard debates

Michael O’BRIEN (Malvern) (11:14): I rise to speak on the Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023. This is an important bill. Its purpose is to amend the Summary Offences Act 1966 to ‘make the public display or performance of Nazi gestures an offence’ and also ‘extend the application of the offence of public display of Nazi symbols’. In our state, which has always been a proudly tolerant, multicultural state, we have seen some recent quite disturbing instances of public antisemitic behaviour – I think an increasing amount and level of public antisemitic behaviour. Just recently the Federal Court of Australia made a finding in favour of a number of former students at Brighton Secondary College, who were Jewish students who had been subjected to horrific antisemitic behaviour in school. I think we all know, either from our own experiences of going through the school system or that of our children, that school can be a difficult time for people, but there is absolutely no excuse for students having to face the horror of antisemitic behaviour when they go to their place of learning. The fact is that this judgement of Justice Mortimer, who I should say is now Chief Justice of the Federal Court, was in favour of those students and against not just the leadership of Brighton Secondary College but against the state of Victoria. The state of Victoria was found liable for the actions against those students.

Can I just say, as a side note, the fact that the state government threw millions and millions of dollars at defending what the Federal Court found was indefensible was appalling. It should not have happened. The state government should have listened to those students. The state government should have sat down with those students and found out the truth without forcing them to go through the courts for years and at great personal and financial cost. Now we know the court has found that those allegations were warranted and were upheld. Damages have been payable, costs have been payable. So, yes, in regard to the state government’s intransigence in fighting these Jewish former students from Brighton Secondary College, the financial cost is significant, but the emotional cost, the emotional trauma they have had to go through, not just from what they experienced at school but then having to relive that for the purposes of the litigation, is really an indictment on this Labor government.

They talk a big game – and I am sure that their hearts are well placed when they say that they are completely opposed to antisemitism – but we need to see more in terms of actions as well. I think the actions of the state government and the way in which they dealt with that litigation in Federal Court against those Brighton Secondary College students was appalling. I think the state government needs to take a very hard look at itself and how it dealt with that matter, and the next time the government is faced with allegations of antisemitism and its own liability in relation to that, it should take a very different approach. That appalling way in which the government handled that litigation is a discredit to this government because it not only increased, massively, the financial cost to Victorian taxpayers and more importantly to the plaintiffs, but also increased the emotional trauma that those students had to endure.

Sadly, that is not the only recent incidence of antisemitism we have seen in the state. We have seen a number of protests and demonstrations where black-clad neo-Nazis or neo-Nazi wannabes – it really does not make much difference whether they are or want to be – turning up and performing Nazi salutes on the steps of our Parliament.

Tim Bull: Disgraceful.

Michael O’BRIEN: Absolutely disgraceful. There have even been reports that neo-Nazis or neo-Nazi wannabes are gathering together in their costumes at restaurants.

A member: Losers.

Michael O’BRIEN: Losers, absolutely. Let me just say at the outset that the opposition is supporting this bill. Now, ‘Why legislate?’ is a question I have had in my consultation, and I will come to that in a minute. Some people say, ‘Look, we need to focus on education.’ I do not think you need to make a choice. I think you can educate and you can legislate. You can do both, and we need to do both. My message to the government is: do not think that by passing this bill – which you will, with our support – that that fixes the problem. It does not fix the problem. It may contribute towards a fix, but it is not enough in itself.

I was recently in the United States of America on a parliamentary visit – and I know that any time any of us travel beyond the confines of our own electorates, we have our great friends in the press gallery waiting to write up stories about what a lark it all is and what a junket it all is. When I was in Chicago, I spent half a day at the Illinois Holocaust Museum and Education Center. Can I say, I do not think I have had a more impactful and emotionally harrowing half a day in my life compared to the time I spent there. It was absolutely extraordinary. We have a wonderful Holocaust museum here in Melbourne, but I do have to say that the one in Illinois is something else again, incredibly impressive and a great testament to the founders and the supporters of it. I think this deserves to be in the record; as you enter the exhibition there is a plaque on the wall, and it says this:

The Holocaust was the systematic, state-sponsored murder of six million Jews by the Germans and their collaborators. Jews were the primary, but not the only Nazi victims, and all are remembered and honoured in this Museum.

The Shoah was unprecedented. Never before had a government, motivated by racial ideology, undertaken to murder an entire people. Spanning some 20 countries over 12 years (1933–1945), it is a defining event of the 20th century – with significant implications for our future.

Murder did not just happen. People perpetrated it. And real people endured it.

Through the words, voices, photographs, and artifacts of Chicagoland survivors and eyewitnesses, this Exhibition portrays the human dimension of the Holocaust, particularly the struggle of Jews to comprehend, cope, and resist. It empowers survivors to fulfill the promise they made to those whose lives and vibrant communities were destroyed: “Remember, and Do Not Let the World Forget.”

This is why legislation like this is important, because we say as a Parliament, ‘Never again’. And we are not about to stand by and watch while Nazi sympathisers or neo-Nazis spread their hate in our state. It is just not on.

I was aware this bill was going to be brought in when I visited the Illinois Holocaust museum, but I would recommend to any members, or any members of the public, who happen to visit it in Chicago to take the time. I had allocated a couple of hours and I stayed for four, because it was compelling. To stand in one of the actual transportation carts people were herded into and sent on railways to industrialised murder was unbelievably emotional. It is a reminder that there is evil out there and we cannot stand by and wash our hands of it, and we cannot fail to act. That is why we support this bill.

I did mention before that some people have questioned: is legislation the right approach in matters such as this? As part of my consultation on this bill I wrote to a number of legal, civic and community organisations, as you would expect, and one of those was Liberty Victoria, formerly the Victorian Council for Civil Liberties. I acknowledge that Michael Stanton, the president, is very clear. He says:

… we understand the important motivation for the Bill …

He says:

We understand that the display of Nazi symbols is highly confronting and offensive, particularly to the Jewish community and other minority groups that have been targeted by Nazi ideology.

Liberty Victoria is not for one second seeking to defend those who are out there trying to perpetrate Nazi ideology. However, he says that they do oppose the bill, and he gives give some reasons. There are some issues in relation to drafting. I will come to that, and I will be moving some amendments to, I think, improve and strengthen the bill in relation to drafting. But Mr Stanton says this:

… the focus of addressing the emergence of extremism should not be on expansion of executive power and censorship; it should be on education and addressing the root causes of why some people are attracted to such ideologies in the first place, including social isolation, growing economic insecurity and mistrust in government and the media. The proposed prohibition of symbols and gestures is a band-aid solution to a much deeper societal problem resulting the re-emergence of extremism.

I do not disagree with what Liberty Victoria says in terms of the need to also tackle root causes, but I do not think that is a sufficient reason to oppose legislation of this nature, because I think there is absolutely a demonstrated need by what we have seen on the streets of our cities and in fact what we have seen on the front steps of this very Parliament in recent weeks and recent months. There is a need for the law to take action, and this is why we are debating this bill today.

Turning to the bill itself, as I outlined, it has two primary purposes. The first is to amend the Summary Offences Act 1966 to make the public display or performance of Nazi gestures an offence. Secondarily, it is to extend the application of the offence of public displays of Nazi symbols. Let me refer to the first aspect, making the public display or performance of Nazi gestures an offence. Of course that leads to the question: what is a Nazi gesture? The bill seeks to deal with that question as follows. It defines ‘Nazi gesture’ as the Nazi salute, any other gesture used by the Nazi party, including gestures that so resemble Nazi gestures that they are likely to be confused with or mistaken for those gestures. I think we all know – I would be very confident we all know – what the Nazi salute is. Then it goes on to say:

any other gesture used by the Nazi Party …

I think that our police, who will be tasked with enforcing this law when it passes, will need to understand what ‘any other gesture used by the Nazi Party’ would mean. When we are creating laws in this place, we need certainty, and that is particularly so when we talk about criminal offences. People do have a right to understand what the law is. I understand that the government is not trying to be too prescriptive in its definition of what is a Nazi gesture. The Nazi salute – everyone knows what that is. And then it says ‘any other gesture used by the Nazi Party’ or a gesture sufficiently similar that it could be mistaken for it. I am not quite sure what that is. It would be helpful I think at some stage, whether it is in the second-reading debate or in the other place or whether it is through educational material, for the government to perhaps explain what it means by ‘any other gesture used by the Nazi Party’, just for the purposes of police, to assist them in enforcing this new law, but also for the public.

In terms of Nazi symbols, the bill expands the definition of ‘Nazi symbol’. Previously, when we passed legislation to outlaw the public display of the Nazi swastika, otherwise known as the Hakenkreuz, that was what was defined as the Nazi symbol. This bill expands it, so it goes beyond the Hakenkreuz to include any other symbol used by the Nazi party. I think that there is an issue with this definition, because it says:

any other symbol used by the Nazi Party …

I think that is extremely broad and it actually undermines the purpose of the bill. What the bill is trying to do, correctly, is outlaw the public display of symbols that are associated with the Nazi party, that are emblematic of the Nazi party. The fact the Nazi party may have used a symbol does not necessarily mean that that symbol is associated with the Nazi party. This is probably as useful as any time to advise the house under standing orders of amendments to this bill, and I request that they be circulated.

Amendments circulated under standing orders.

Michael O’BRIEN: The amendment that I seek to make in relation to this definition is to add in words so that, rather than reading ‘any other symbol used by the Nazi Party’, it reads, ‘any other symbol used by and associated with the Nazi Party’. I hope that members opposite understand the intention behind this. It is to actually make sure that the definition is in line with what we are seeking to do as a Parliament. The fact that the Nazi party may have used a symbol does not matter unless it is associated with the Nazi party, because that is what we are seeking to limit, that is what we are seeking to regulate and that is what we are seeking to proscribe.

It is the public display of symbols that are associated with the Nazi party. That is why the first amendment that I have circulated is there, and I do hope that the government takes it up. This should not be a question of partisan bickering. We want this to be a good law and we want it to be a workable law, and we think that this amendment will make it a better law, because it goes to the heart of what the intention is, and it is to proscribe the public display of symbols associated with the Nazi party. Unless you have those words ‘associated with’ in there, we do not believe the law will be as strong as it could or should be.

In relation to Nazi gestures the bill prescribes that:

A person must not intentionally perform a Nazi gesture if –

(a) the person knows, or ought reasonably to know, that the gesture is a Nazi gesture; and

(b) the performance –

(i) occurs in a public place, a non-Government school or a post-secondary education institution; or

(ii) occurs in sight of a person who is in …

one of those places.

The maximum penalty prescribed is 120 penalty units or imprisonment for 12 months or both. We are supportive of this. There are exemptions, and of course we do have to be careful because, for example, the very Holocaust museum that I visited, which had pictures and videos without an exemption – that sort of public display would actually be contrary to this bill. Clearly, there is no intention to try and stop Holocaust museums from doing the magnificent work they do in educating people about the horrors of the Shoah. So it is important that there are appropriate exemptions. The bill provides this where:

… the display or performance was engaged in reasonably and in good faith –

so there are two qualifiers there –

for a genuine academic, artistic, educational or scientific purpose; or

…

in making or publishing a fair and accurate report of any event or matter of public interest.

Those matters are covered in terms of the display or performance of a Nazi gesture. In relation to a Nazi symbol, it is where:

… the display of the Nazi symbol was engaged in reasonably and in good faith for a genuine cultural or religious purpose.

On that point let me just again note that there can be some confusion between the Hakenkreuz, the Nazi swastika, and the swastika that is used by other cultural communities absolutely legitimately. In fact, arguably it was the Nazis who tried to take and pervert what had been a genuine cultural and religious symbol of other communities – Hindu communities, Jain communities et cetera. So it is absolutely appropriate that there be an exemption in relation to reasonable and good-faith displays for a genuine cultural or religious purpose. There is also an exemption where:

… the display of the Nazi symbol … was engaged in reasonably and in good faith in opposition to fascism, Nazism, neo-Nazism or other related ideologies.

For example, if somebody was to have a picture of a swastika with a circle and a red line through it to indicate their opposition to Nazism, that would be covered by the exemption, and clearly that is appropriate. We look at these exemptions and they do appear to be reasonably drafted and appropriately drafted, and I have not had any correspondence from the various groups with whom I have consulted to indicate otherwise.

I do note that Liberty Victoria raised some concerns about the lack of particularisation of the definitions of Nazi symbols and Nazi gestures, and I referred to that earlier. I think it would be helpful if there was some guidance given to both police in terms of enforcement but also more broadly the public. I understand the government not wanting to necessarily have to explicitly define every single Nazi symbol and every single Nazi gesture, but it may be that the courts ultimately have to determine how those definitions are actually applied. In terms of how it is enforced, the bill provides a directions power to police:

A police officer may give a direction to a person to remove from display a Nazi symbol or Nazi gesture if the police officer reasonably believes the person is committing an offence against section 41K(1) …

And further:

A police officer may give a direction to a person to remove from display a Nazi symbol or Nazi gesture if –

(a) the person is the owner or occupier of a property on which the Nazi symbol or Nazi gesture is being displayed; and

(b) the police officer reasonably believes an offence is being committed against section 41K(1) …

There does seem to be a gap in these directions, because the directions power as drafted does not extend to giving the police the power to give a direction to a person to cease performing a Nazi gesture. If we think that one of the reasons why this bill is before the house – because of the morons in their black pyjamas out on the steps of Parliament House throwing up right-armed salutes – yes, under this bill that would be an offence. But police are being given a directions power in this bill for a reason. It is not enough for somebody to have committed an offence. We also want to give police a power to direct them to cease doing it, and while the directions power in this bill allows for police to direct somebody to stop displaying a Nazi symbol or stop displaying a Nazi gesture, there is no power for police to direct somebody to stop performing a Nazi gesture. There is a difference between displaying and performing. If we are talking about the wannabe neo-Nazis on the steps of Parliament throwing up their right-armed salutes, I believe, and the opposition believes, that the police should have a power to direct people to cease performing Nazi gestures, contravention of which would be a further offence. That is why I have moved amendments 2 and 3, which provide that:

A police officer may give a direction to a person to cease performing a Nazi gesture if the police officer reasonably believes the person is committing an offence against section 41K(1A) by performing the Nazi gesture.

Again, I hope that the government will look at these amendments in the spirit in which they are brought before the house. It is not about scoring any points, it is about saying we support the intent of this bill, and we think our amendments will make it better and stronger and more effective. I would be very disappointed if the government did not seriously take on board these amendments, because they are there to improve things. I think there is no difference between where the government or the opposition are in our opposition to Nazism and neo-Nazism and our absolute desire to protect vulnerable communities from that ideology of hate. So let us work together; let us make this bill better. I would urge the government to seriously look at the amendments that I have put forward, which are very reasonable and improve the drafting and will lead to a better outcome for Victorians.

It is a shame that we are in this situation – that we need as a Parliament to legislate on these sorts of matters. I think it is perhaps a bit of an indictment maybe on people’s understanding of history, a bit of an indictment on people’s understanding of the horrors of the Holocaust – what was perpetrated not just against Jewish people but against a whole lot of other vulnerable communities, many of whom are in this state today. They deserve to be protected, they deserve to be respected and they do not deserve to have their humanity called into question by morons parading around as wannabe neo-Nazis.

But that is where we are. We need to legislate for the world as it is, not as we would want it to be, because we have to be practical. We do have a problem in this state with neo-Nazism and antisemitism. While I understand the concerns of organisations such as Liberty Victoria, I do not think that education and addressing root causes is enough. It is important and it needs to be done, and as I said, the appalling occurrences at Brighton Secondary College and the appalling way in which the government dealt with that particular piece of litigation is evidence that a lot more needs to be done, not just at that school – I am not singling out Brighton – but right across the education system and right across the community, because this is too important an issue. As somebody who has got great respect for our Jewish community in the state as well as all the other communities who are targets of the Nazis, I think that this bill is important. It is important that we send a very clear message as a Parliament that we will not stand by silently while hateful ideologies seek to gain a foothold in our community. To again quote the words at the entrance to the Illinois Holocaust Museum, we will:

Remember and Do Not Let the World Forget.

With those words I commend the bill to the house.