Prohibited Symbols

In November 2023, the federal government introduced a Bill into the House of Representatives to ban hate symbols such as the Swastika and the Islamic State flag. The legislation is being passed in response to a surge in hate crimes and the increasing visibility of neo-Nazis and other extremists across Australia. This page outlines the prohibited symbols legislation and the various community responses to it.

What will be prohibited?

Under the legislation, it will be an offence to publicly display a prohibited symbol or to trade in prohibited symbols. This means that a person will be committing an offence if they display a prohibited symbol somewhere it can be seen by the public, or if they include it in a document, film, video or television program that is available to the public or to a section of the public. A person will also be committing an offence if they sell, supply, transport or store such symbols.

Prohibited symbols

Under section 80.2E of the Bill, the following are prohibited symbols:

• The Islamic State flag
• The Nazi Hakenkreuz (Swastika)
• The Nazi double-sig rune
• Something that is so similar to any of the above that it is likely to be confused with it.

Offences

The following are offences under the legislation.

Public display of prohibited symbols

Under section 80.2H, a person who displays a prohibited symbol in a public place commits an offence. This offence is punishable by a maximum penalty of 12 months imprisonment.

However, the Bill also provides for some defences. A person is not guilty of an offence if they display a prohibited symbol in the following circumstances:

• Law enforcement
• Court proceedings
• Opposing Nazi or Jihadist ideology or a related ideology

Trading in prohibited symbols

Under section 80.2J, a person commits an offence punishable by a maximum penalty of 12 months imprisonment if they trade in goods that depict or contain a prohibited symbol knowing or being reckless as to whether that symbol is associated with Nazi ideology or global Jihadist ideology.

The offence of trading in prohibited symbols is committed when a person trades in such material in an Australian territory, across state borders, outside Australia, at a Commonwealth place, or by a non-citizen. Trading that takes place under other circumstances is covered by the criminal laws of the state where it occurs.  

State legislation

Legislation has been passed in Queensland, Victoria, New South Wales and Tasmania to outlaw extremist hate symbols. Some of these laws prohibit specific symbols associated with Nazism, while others prohibit hate symbols generally.

In Tasmania, Nazi gestures such as the Seig Heil salute are also prohibited.

Responses to the laws

The passage of these laws has been met with concern as well as approval. While some voices have welcomed the prohibition of these symbols and gestures, the laws have also been criticized for a range of reasons.

Supporters of the laws say that symbols associated with racism and violence are repugnant and have no place in a society such as Australia. They argue that the rise in antisemitic incidents in Australia shows a need for the ban of these symbols, which are used by extremists to identify one another and to recruit followers.  

Critics of the laws have pointed out that they could have unintended consequences. For instance, the ban could reinforce the idea held by some extremists that they are persecuted and targeted by governments. It could, in this way, lead to the symbols being displayed and distributed more frequently. Extremists could also circumvent the laws by simply adopting new symbols.

Doubts have also been expressed about the appropriateness of banning specific symbols, given that many other symbols are also used by different extremist groups. Some sceptics have questioned how effective the new laws will be and raised doubts about the utility of banning symbols and gestures that are associated with an ideology, while the underlying sentiment remains present.

The Bill has yet to pass the Australian Senate.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.