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.