Hansard debates

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:39): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

I am proud to deliver this Bill which fulfils a Victorian Government commitment to legislate a ban of the Nazi salute by prohibiting the public display or performance of any symbol or gesture used by the Nazi Party and its paramilitary arms.

The Government acknowledges that Nazi symbols and gestures, such as the Nazi salute, are being used to intimidate and cause harm to a wide range of groups, including the Jewish community, Aboriginal and Torres Strait Islander people, LGBTIQ+ people, people with disability and other racial and religious groups.

The intent of this Bill is to send a clear message denouncing Nazi ideology and the use of its gestures and symbols to intimidate and incite hate. All Victorians deserve to feel accepted, safe and included. These displays are intended to cause fear in our community and that is why this Bill is focused on the harm caused by such hateful conduct, which can be profound.

Government is deeply concerned and distressed by the use of the Nazi salute occurring in Victoria following last year’s ban of the display of the Nazi symbol, the Hakenkreuz. When that legislation was passed, the government committed to working with Victoria Police and relevant agencies to monitor the public display of other hateful symbols to determine whether further symbols should be prohibited. There have been several abhorrent incidents that have occurred since that law commenced on 29 December 2022 including:

• In mid-January 2023, a group of 25 males gathered at Elwood’s Ormond Point lookout and performed the Nazi salute.

• On 26 January 2023, a group of people performed the Nazi salute at a Merri-bek First Nations mourning ceremony.

• On 18 March 2023, a group of about 30 people marched along Spring Street, repeatedly performing the Nazi salute after an event held by a controversial UK gender and anti-trans activist.

• On 10 April 2023, a group of six men performed the salute outside the Melbourne Knights soccer club.

• On 20 April 2023, a group of people performed the Nazi salute and posed for photographs at a Bavarian restaurant in the Knox City Shopping Centre to commemorate Adolf Hitler’s birthday.

• On 13 May 2023, a group of about 25 people gathered outside parliament to stage an anti-immigration rally, repeatedly performing the Nazi salute.

• On 4 June 2023, two people performed the Nazi salute in front of police outside the State Library during a protest.

• On 15 July 2023, eight men stood at the steps of Geelong’s City Hall holding up a white supremist banner and performed the Nazi salute; and

• On 29 July 2023, a group of people held a ‘‘white powerlifting competition’’ at a boxing gym in Sunshine West and performed the Nazi salute in response to anti-fascist protestors.

Unfortunately, these events have highlighted the limitations of current laws in combatting this hateful conduct and the need for action. The use of the Nazi salute is unacceptable and has no place in Victoria. It is clear that Nazi symbols and gestures, particularly the Nazi salute, are being used to convey messages of antisemitism, hatred and intimidation.

I would like to read from the Jewish Community Council of Victoria’s submission, to highlight the harm caused by such hate conduct:

The recent rise in public expressions of Nazism in Victoria has had a significant impact on the local Jewish community. The highly visible nature of these expressions, including significant and sustained media attention, has left Jewish Victorians feeling vilified, vulnerable and anxious about their safety. These emotions are heightened for Holocaust survivors and their descendants.

In developing this Bill, we spoke with a number of Holocaust survivors who told us that the rise of neo-Nazism impacts the whole community, and that antisemitism is often a microcosm of broader hatred toward other targeted groups. This Bill is one measure to help promote tolerance and inclusion across the community and prevent the dissemination of these hateful symbols and gestures.

Purpose of the offence

The Bill amends the Summary Offences Act 1966 and extends the existing prohibition on the public display of the Nazi symbol, known as the Hakenkreuz. The expanded offence will prohibit the public display or performance of any symbol or gesture used by the Nazi Party and its paramilitary arms. The purpose of expanding the offence is to ensure that the expression of harmful symbols and gestures associated with an atrocious ideology that resulted in genocide is prohibited.

The offence is accompanied by powers for Victoria Police to direct a person to remove a Nazi symbol or gesture from public display, and to apply to the Magistrates’ Court for a warrant to enter a premises to search and seize a Nazi symbol.

Opening statement

The Bill will not alter the parts of the preamble or opening statement which were co-designed with leaders from the Jewish, Hindu, Buddhist and Jain communities to ensure it appropriately reflects their views. In particular, the current opening statement which recognises the historic and ongoing use of the swastika in the Buddhist, Hindu and Jain communities as an ancient and auspicious symbol of purity, love, peace and good fortune remains unchanged.

The preamble has been expanded to provide additional essential context on how gestures and other symbols have adopted, including the Nazi salute, to incite antisemitism and hatred.

Prohibited symbols and gestures

The Government previously only prohibited the Hakenkreuz as the most widely recognised symbol historically associated with Nazi ideology and the Nazi party. Its display, in any form, causes immense harm and offence. At that time, the Hakenkreuz was sadly adopted in many high-profile displays, such as the Nazi flag which was flown on private property in Beulah. Given the recent rise in the performance of the Nazi salute, at protests and in very public places, the Government has expanded the prohibited symbols and gestures to include the public performance and display of the Nazi salute and any other symbol or gesture used by the Nazi Party and its paramilitary arms. This will ensure that, in Victoria, people can no longer use these symbols and gestures to cause harm or incite hatred in the community.

Definition of Nazi symbol

The Bill expands on the previous definition of Nazi symbol, which still explicitly includes the Hakenkreuz, and now also includes any symbol used by the Nazi Party. The term "Nazi Party” is intended to capture symbols used by the National Socialist German Workers’ Party and its paramilitary groups from 1920 to its dissolution in 1945. These symbols, which include the SS Bolts (Schutzstaffel), the SS Death’s Head (Totenkopf), flags, insignia or medals used by the Nazi Party and its paramilitary organisations, represent a particularly atrocious expression of hate and debasement of human dignity. The expansion of prohibited symbols is necessary to ensure all Victorians are protected from harm to human dignity and against discord and threats to tolerance and multiculturalism.

Definition of Nazi gesture

The Bill also prohibits the display and performance of Nazi gestures. Nazi gesture is defined as the Nazi salute and any other gesture used by the Nazi Party, including any other gesture that is likely to be mistaken or confused with those gestures. The offence captures symbols or gestures that closely resemble those that are prohibited to ensure a person cannot avoid prosecution by making minor changes to the design or performance.

The expansion of prohibited symbols and gestures offers a clear response to the recent rise in the performance of the Nazi salute by addressing existing gaps in the law. The expansion will mitigate the risk of the use of alternative symbols or gestures used by the Nazi Party to incite hatred. The Nazi salute is a gesture inextricably linked with the genocide of the Holocaust and atrocious crimes against humanity. This Bill sends a clear and strong message that these symbols and gestures are not acceptable in Victoria.

Definition of ‘public place’

The expanded offence will prohibit the intentional public display or performance of any Nazi symbol or gesture in a public place. The term ‘public place’ still relies on the existing definition within the Summary Offences Act 1966 and includes the expanded definition beyond only government schools to also include non-government schools and other post-secondary education institutions. This will include a TAFE institute or university. It is appropriate that the offence applies to some places that would otherwise be private under the Summary Offences Act 1966 due to the possibility of a Nazi symbol or gesture being displayed or performed at these places.

The offence also applies where a display or performance is in public view (i.e. occurs in sight of people who are in a public place). This encompasses displays of a Nazi symbol or gesture on a private premises if it is visible to the public.

Fault elements of the offence

Like the Nazi symbol offence, the expanded offence has two fault elements. First, the offence has an intention element which requires that the person intentionally displayed or performed a Nazi symbol or gesture in a public place or in public view. Second, the offence has a knowledge element, requiring the person knows, or ought to know, that the symbol or gesture is a Nazi symbol or gesture.

The knowledge element requires either that:

1. the person knows the symbol or gesture is a Nazi symbol or gesture (subjective knowledge), or

2. a reasonable person in the position of the person who displayed the symbol or gesture would have known that is a Nazi symbol or gesture (objective knowledge).

The knowledge element safeguards against an offence being committed innocently or unintentionally. For example, by a child who does not understand the connotations of the Nazi salute, and where a reasonable person (of the same age) in the child’s position ought not to have known the Nazi salute is a Nazi gesture, taking into account any other relevant circumstances. Similarly, it will safeguard against a person with cognitive impairment, who does not understand the implications of the Nazi salute and the harm it can cause, from committing an offence.

The intention and knowledge elements ensure the offence clearly targets the conduct intended to be prohibited and is not unfair in its application.

Penalty

The offence for the intentional public display or performance of a Nazi symbol or gesture has a maximum penalty of one year imprisonment or a fine of 120 penalty units or both. This penalty remains unchanged from the previous Nazi symbol offence and is consistent with vilification offences under the Racial and Religious Tolerance Act 2001 and across Australia. It reflects the breadth of the offence, and that no injury or harm needs to be proved as a result of the display or performance.

Exceptions

Narrower exceptions for display or performance of the Nazi gestures

While important exceptions that apply to the display of the Hakenkreuz and Nazi symbols remain, the exceptions have been amended in relation to the display or performance of Nazi gestures.

Display or performance of Nazi gestures exceptions

Exceptions will also apply where the display or performance of a Nazi gesture was engaged reasonably and in good faith for genuine academic, artistic, educational, or scientific purpose, or in making or publishing a fair and accurate report of any event or matter that is in the public interest. These exceptions are intended to apply broadly to protect freedom of expression and to ensure that Nazi gestures can continue to be used and displayed for appropriate purposes.

The Bill does not provide for an exception for the performance of the Nazi salute in opposition to fascism, Nazism, neo-Nazism or other related ideologies. However, a person may display Nazi gestures or Nazi symbols in opposition to fascism, Nazism, neo-Nazism or other related ideologies (e.g. displaying a picture with a cross through someone performing the Nazi salute).

The religious and cultural exceptions will also not apply to the performance of Nazi gestures. This is because there is no evidence of any genuine religious or cultural purpose to perform Nazi gestures, like the Nazi salute. Likewise, performing the Nazi salute at a protest does not demonstrate a person’s opposition to Nazism or fascism and it is important that neo-Nazi groups cannot attempt to use exceptions to circumvent the ban.

Tattoos and other like processes

The expanded offence does not apply where the display of a Nazi symbol or gesture is done by means of tattooing or other like process (e.g. scarification, branding). The exclusion of tattoos or like processes takes account of human rights considerations and the practical enforcement issues of capturing such displays.

Law enforcement or intelligence officer exception

There will be a specific exception for a law enforcement officer and member of an intelligence agency, where the public display or performance of a Nazi symbol or gesture occurs in the performance of their duties and is done in good faith. This might apply where such an officer has an assumed identity and is displaying or performing Nazi symbols or gestures as part of their role.

Connected with the administration of the justice system

The expanded offence also includes an exception for a person that displays or performs a Nazi symbol or gesture in the course of official duties connected with the administration of the justice system, including the investigation or prosecution of offences, if the display or performance is done in good faith. This exception is intended to ensure that the proper administration of justice is not impeded by the offence, such as where a Nazi symbol or gesture is produced as evidence when considering an offence in court. It is modelled on section 51J of the Crimes Act 1958, which provides a similar exception to the child abuse offences under the Act.

Consent of the Director of Public Prosecutions before the prosecution of a child

The expanded offence requires the written consent of the Director of Public Prosecutions before the commencement of a prosecution of a child for the new offences. This will act as a safeguard (along with the knowledge element of the offence) to limit the circumstances in which children could be prosecuted. In many cases, a more appropriate response for children would be educating the child about the harm caused by the display or performance Nazi symbols or gestures.

Trade and sale of historical Nazi memorabilia – Commonwealth Bill

On 14 June 2023, the Commonwealth government introduced and moved to second reading, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (‘Commonwealth Bill’). This legislation which will prohibit the public display (including online) of two Nazi symbols, the Hakenkreuz and the SS Bolts. It will also prohibit the sale of memorabilia featuring the Hakenkreuz and the SS Bolts.

The Commonwealth Bill will not prohibit the public performance or display of the Nazi salute, as the Commonwealth Attorney-General has stated that such a ban is a matter for state and territory laws.

Secondary material for the Commonwealth Bill provides that their new offences are not intended to exclude or limit the operation of any law of a state or territory. Instead, the Commonwealth Bill (if passed) will supplement Victoria’s existing legislation which bans the public display of the Hakenkreuz, and now other symbols and gestures used by the Nazi Party, by prohibiting online displays of the Hakenkreuz and SS Bolts, as well as the sale of memorabilia displaying these two symbols.

Police powers

The expanded offence will replicate the same police powers as the Nazi symbol offence. A police officer will have the power to direct a person to remove from display a Nazi symbol or gesture (whether on public or private property) if the police officer reasonably believes an offence is being committed. For example, where a Nazi salute is displayed on a flag, a police officer can direct a person to remove the display.

A person who, without reasonable excuse, does not comply with a direction to remove material is liable for a penalty of 10 penalty units.

As with the previous Nazi symbol offence, the Bill also provides the warrant power under the Crimes Act 1958 applies to this offence, to ensure police can enforce the offence appropriately. This enables police to apply to the Magistrates’ Court for a warrant to search premises and seize property that displays a Nazi symbol and is in connection to, or as evidence of commissioning the offence. Police can also use existing powers of arrest under section 458 of the Crimes Act 1958 to arrest a person performing a Nazi salute.

Commencement

The Bill will commence the day after it receives Royal Assent. This will ensure that the expanded offence comes into force quickly to put an end to the steady increase in Nazi salutes that have been occurring since the beginning of the year.

I wish to thank all the stakeholders who engaged with the development of this Bill. I wish to extend a sincere thank you to the Jewish community and Holocaust survivors, who took the time to share their lived experiences and provide vital input on the Bill. Your contributions are greatly valued and have shaped and strengthened this legislation.

I commend the Bill to the house.