The piece has been published in ABC Religion & Ethics and J‑Wire by ECAJ Co-CEO Peter Wertheim AM.

Last week, the federal Attorney-General Mark Dreyfus announced that the Aus­trali­an gov­ern­ment intends to enact The Counter-Terrorism Legis­la­tion Amendment (Pro­hib­ited Hate Symbols and Other Measures) Bill in order to crim­in­al­ise public displays of the Nazi Haken­kreuz (hooked cross) and the Schutz­staffel (or “SS”) hate symbols, and ban the trade in these items.

The new law comes in response to a marked increase in the display of Nazi symbols on public struc­tures, private homes, motor vehicles, personal clothing and online content in Australia over the last seven years. (A detailed list of these incidents was provided by the Executive Council of Aus­trali­an Jewry in its written sub­mis­sion to the recent Senate Inquiry into the Criminal Code Amendment (Pro­hib­i­tion of Nazi Symbols) Bill 2023 — which had been intro­duced by the federal oppos­i­tion.)

The public display of Nazi symbols goes well beyond the realm of freedom of speech, and such displays are not merely “offensive”. They are acts of menace and intim­id­a­tion. Placing a Nazi sign or carrying a Nazi flag in a prominent public place is not an expres­sion of an idea; it is a way of promoting hatred and violence against par­tic­u­lar indi­vidu­als and groups, and against the prin­ciples of personal freedom, justice, and demo­crat­ic equality that undergird Aus­trali­an society.

A welcome feature of the new law is that it will empower police to issue and enforce on-the-spot dir­ec­tions to remove Nazi symbols from public display, whether or not charges are laid or a pro­sec­u­tion results.

The new legis­la­tion will also be the first in Australia which will contain an explicit pro­hib­i­tion against the trade in items featuring Nazi symbols. These items are quite different from most military col­lect­ibles and war mem­or­ab­il­ia. Nazi mem­or­ab­il­ia often relate directly to the Nazis’ barbaric crimes against Jews and a host of other groups. These items have been used by neo-Nazis to promote and glorify Nazi crimes and ideology, and as icons for recruit­ment and ritual purposes by neo-Nazi groups.

The display, promotion and sale of Nazi and Holocaust mem­or­ab­il­ia desens­it­ises people to the grisly realities of the Nazi regime by reducing racism, irra­tion­al hatred, and mass murder to a prosaic everyday occur­rence, like an ordinary com­mer­cial trans­ac­tion. This is a slap in the face to members of groups and com­munit­ies who have his­tor­ic­ally been the targets of Nazi policies of genocide, mass murder and other forms of per­se­cu­tion — such as Jews, Roma people, and LGBTIQ+ people, and to Aus­trali­an ex-service people who sac­ri­ficed so much to rid the world of the evils of Nazism.

Many busi­nesses have already decided vol­un­tar­ily not to engage in this dis­rep­ut­able trade, under­stand­ing how it under­mines the sense of safety and security of all Aus­trali­ans.

All of these measures were expressly advocated by the Executive Council of Aus­trali­an Jewry (ECAJ) and supported by other Jewish community organ­isa­tions at the recent Senate Inquiry. The federal government’s ini­ti­at­ive has therefore been broadly and warmly welcomed by the Aus­trali­an Jewish community. Driving Nazi symbols and mem­or­ab­il­ia off our streets and computer screens, and back into the murky fringes of our society, will deprive neo-Nazis of some of their most prized tools for promoting their hatreds and recruit­ing new members.

Where does the legis­la­tion fall short?

There are, however, some lim­it­a­tions in the measures proposed by the gov­ern­ment. The first and most obvious is that the ban will only apply to two Nazi symbols, the Haken­kreuz and the “SS” symbol. The ban will not apply to other well-known Nazi symbols — such as the Totenkopf (death’s head) and Sonnenrad (sun wheel), as well as a plethora of neo-Nazi symbols that are con­tinu­ally evolving.

In its sub­mis­sion to the Senate Inquiry, the ECAJ urged that any banning legis­la­tion be flexible enough to accom­mod­ate the constant evolution of new hate symbols by neo-Nazi groups, as well as tra­di­tion­al Nazi symbols and the symbols of political movements that were his­tor­ic­ally allied to the Nazi regime in Germany. (Some of the more common symbols that have been used in recent years by neo-Nazi groups can be found in the ECAJ’s Annual Report on Antisemitism in Australia in 2022; and the code words which they have developed to promote their ideology are sum­mar­ised in the ECAJ’s Annual Report on Antisemitism in Australia in 2020.)

It would be better for the federal Bill to adopt the approach taken in the New South Wales Crimes Act, where it is an offence to display, without a reas­on­able excuse, a “Nazi symbol”. “Nazi symbol” is not defined, and the behaviour pro­scribed by the state legis­la­tion is therefore not limited to the display of named Nazi symbols. The question of whether a symbol is a “Nazi symbol” in the cir­cum­stances of any par­tic­u­lar case is left to a judge or jury to decide on the evidence. Past exper­i­ence with other anti-hate legis­la­tion has demon­strated that they are perfectly capable of making such assess­ments accur­ately. A Bill has been intro­duced by the Tasmanian state gov­ern­ment that takes a similar approach to the New South Wales model.

Another short­com­ing in the federal government’s approach is the absence of any pro­hib­i­tion against the public per­form­ance of Nazi gestures, such as the Hitler salute. The public display of Nazi symbols has fre­quently been accom­pan­ied by the per­form­ance of Nazi salutes. This has occurred outside the Victorian par­lia­ment as a symbolic takeover of a key public space, and also outside a Holocaust museum as an act of undis­guised menace and intim­id­a­tion.

These shows of “strength” are also cal­cu­lated to attract media attention to promote Nazi hate-ideology and advertise for new members. The failure to include a pro­hib­i­tion against Nazi gestures in public is therefore a serious omission.

Counter-terrorism?

It is curious that the federal gov­ern­ment has pitched the new law as a “counter-terrorism” measure. It seems that the gov­ern­ment has come to the view that it will need to rely on the defence power as the con­sti­tu­tion­al basis for any ban on the public display of Nazi symbols, and that the defence power will only sustain a ban on Nazi symbols which are specified, rather than on Nazi symbols generally, and will not sustain any ban on Nazi gestures.

If this is indeed the basis of the government’s approach, I believe it reflects some ques­tion­able thinking. For while terrorism and the public promotion of racial hatred are not mutually exclusive, they are fun­da­ment­ally different species of crimin­al­ity, with very different defining elements.

As an altern­at­ive, the ECAJ’s sub­mis­sion to the Senate Inquiry urged reliance on the external affairs power and Australia’s treaty oblig­a­tions under the Inter­na­tion­al Con­ven­tion on the Elim­in­a­tion of All Forms of Racial Dis­crim­in­a­tion. This head of power, in our view, is the more appro­pri­ate one for this kind of legis­la­tion, and it would enable the par­lia­ment to enact legis­la­tion that is free of the lim­it­a­tions we’ve already iden­ti­fied.

Legis­la­tion is not enough

That said, coun­ter­act­ing any form of extremism, including neo-Nazism, through legis­lat­ive means alone will not, in our view, address the under­ly­ing problem — namely, the propaga­tion of the kinds of prejudice, con­spir­acy fantasies and other false­hoods which fuel extremism and extremist violence, and the grooming and recruit­ment of alienated young people by extremist groups to be used as foot-soldiers for these purposes. While legis­la­tion sets society’s standards, and in that sense serves an educative purpose, those standards need to be entrenched in the ethos, culture, and oper­a­tions of gov­ern­ment and civil society insti­tu­tions more broadly.

This is a large subject, but suffice to say that federal and state legis­la­tion against the promotion of hatred must be com­ple­men­ted by enhance­ments to the education system so as to inoculate students against prejudice and extremism beginning in early primary school, and rein­forced in both the core and non-core curricula through­out the school years.

For the foregoing reasons, the government’s ini­ti­at­ive, though a welcome step, does not go far enough.