Until recent events, many Australians would not have realised that it could be a criminal offence to display the symbol of a terrorist organisation in public.
The display of the Hezbollah flag at rallies, by a minority of protestors, has now become a political football, with politicians across the spectrum calling for prosecution. The Opposition Leader has even urged for Federal Parliament to be reconvened so that these laws can be toughened if required. In New South Wales, a 19 year-old protester has been charged.
Like most people, I do not want to see flags of proscribed terrorist organisations displaying assault rifles on our streets. However, that does not mean that laws intended to prohibit these symbols (with the threat of imprisonment) are necessary, reasonable or proportionate, nor that we should be using the criminal law to fight our ideological battles for us.
At this time, when the temperature in our civic discourse is nearing boiling point, it is worth taking a step back and reflecting how we got here. It should also be emphasised that it is fundamental to the rule of law that the law is accessible and, so far as possible, intelligible, clear, and predictable. Our current laws on prohibited symbols sadly fail that basic test. Recent history also demonstrates that these laws were drafted, amended and enacted in a rushed and ramshackle way.
In recent years many Australian states have banned Nazi symbols and gestures. In Victoria, the Nazi swastika (the Hakenkreuz) was banned in 2022, with the Nazi salute (amongst other gestures) banned in 2023 after confronting scenes outside Parliament. Similar bans have been enacted in New South Wales, Tasmania and Queensland, but each State has a somewhat different regime, including the breadth of what has been prohibited.
One important concern for those enacting these statutory regimes has been to ensure that the display of symbols, such as the swastika, was not made illegal for minority groups such as the Hindu, Buddhist and Jain religious communities (where the symbol has a deep spiritual significance), and to ensure that there are robust defences for legitimate religious, educational and artistic use.
Whilst deeply conscious of the trauma and offence caused by Nazi symbols and gestures, especially to the Jewish community and other communities targeted by the Third Reich, some organisations such as Liberty Victoria warned that the new laws were deeply flawed.
The warnings about the legislative approach included that:
- The laws are unlikely to be effective: recent experiences with far-right organisations in Australia and abroad demonstrate that symbols (such as the Hakenkreuz) can easily be adapted and modified to closely resemble the prohibited symbol whilst technically not violating prohibition. As demonstrated by far-right “meme” culture online, such icons constantly evolve and often involve initially benign icons (such a “Pepe the Frog” or even the “okay” symbol). Lydia Khalil, author of Rise of the Extreme Right, has warned that the laws open a “Pandora’s Box” which will result in a never-ending game of “whack-a-mole” as ever more symbols and gestures would have to be banned;
- There is no evidence from comparable jurisdictions that prohibition works: the long-standing prohibition of Nazi symbols and gestures in Germany has failed to prevent the re-emergence of far-right extremism. Instead, it has demonstrated that there can be fairly straightforward avenues for far-right actors to evade offences and “game the system”; and
- The laws could be actively counter-productive: paradoxically, such measures are likely to be used by extremists to portray themselves as being “silenced”, gain attention in the public arena, and be leveraged in an attempt to recruit new members. Indeed, this appears to have happened recently in Victoria with regard to some people alleged to have used the Nazi salute.
Perhaps most fundamentally, prohibition is a band-aid solution to a much deeper societal problem. It does nothing to address the causes of the problem. As Liberty Victoria has said when giving evidence to the recent State and Federal inquiries on Right Wing Extremism, “[o]ur response to extremism needs to focus on improving social cohesion and trust in institutions, including trust in government and the media, rather than focussing on expanding censorship and surveillance”.
Notwithstanding these concerns, in 2023 the Federal Government introduced the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) (the Bill). This followed the Opposition introducing its own private member’s bill intended to ban Nazi symbols.
For reasons that have never been properly explained, in addition to the Hakenkreuz and the Nazi double-sig rune which had been used as an insignia by the Schutzstaffel (SS), the Government’s Bill originally also sought to ban the Islamic State (ISIS) flag. This step was not regarded as necessary by state legislatures, and appears to have been a solution in search of a problem.
The ISIS flag has the Arabic text of the Shahada on a black background, with a white circle below containing additional Arabic text. The text has deep significance to the Muslim community, a vast majority of whom rejected, and continue to reject, the hateful ideology of ISIS. The Shahada is the first of the five pillars of Islam – it is a profession of faith and translated into English says “I testify that there is no other God but Allah, and I testify that Muhammad is Allah’s messenger”. That profession of faith is foundational to all Muslims. The Shahada also appears, for example on the flag of Saudi Arabia.
Whilst in Victoria there had been consultation with minority religious communities before the prohibition of the Hakenkreuz, there appeared to have been no substantive consultation with Muslim Communities at the Federal level before the introduction of the Bill. This understandably led to an outcry from Muslim community organisations such as the Canberra Islamic Centre who made submissions to the Commonwealth Parliamentary Inquiry.
As Liberty Victoria observed at the time, there were many problems with this aspect of the Bill:
- There was no demonstrated need: to our knowledge, there has been no recent examples of the public display of the ISIS flag that could be argued to make the measure necessary. Even if there were such examples, they were not widely publicised. While almost a decade ago there was an example of the display of a Jihadist flag (which is just the Shahada on a black background) during the Lindt Café siege, it was unclear whether the display of that flag was also sought to be banned. During the Parliamentary Inquiry the Australian Federal Police made a submission that the Jihadist flag would be covered by the ban because it could be mistaken for the ISIS flag;
- It would be incredibly hard to enforce: how are most police, or other members of the community, to know whether a particular form of stylised Arabic text is a version of the same text that appears on the ISIS flag? Most people in Australia would have no idea of what the text says and its religious significance to the Muslim community. Non-Arabic speakers will not be able to meaningfully distinguish the writing on the ISIS flag from many other examples of Arabic text;
- It would be likely to extend to other Arabic text: under the proposed definition of “prohibited symbol”, the prohibition would extend to something that “so nearly resembles” the ISIS flag that it is likely to be confused or mistaken with it. This raised the vital question – according to whom? A fluent Arabic speaker who could easily distinguish between different examples of Arabic text? Or a non-Arabic speaker to whom it all looks very similar? This raises obvious problems with the standard of the test to be applied and law enforcement, particularly by non-Arabic speakers;
- It would be stigmatising: the Bill raised the significant danger of the further stigmatisation and over-policing of the Muslim community. The idea that Arabic text (of a key passage of faith) could be criminalised would cast a shadow of criminality against the Muslim faith as a whole, no matter how many comments are made by those endorsing the Bill of having the contrary intent;
- There had been a lack of consultation: as noted above, when it was proposed to ban the Hakenkreuz in Victoria, there was significant consultation with the Hindu, Buddhist and Jain communities. This resulted in great care being taken with language (including the use of the term ‘Hakenkreuz’ itself rather than the term ‘swastika’ which has religious significance) and the inclusion of important defences such as legitimate religious use; and
- There is a qualitative difference between the Nazi regime and ISIS: whilst we opposed the ban of Nazi icons for the above reasons, it must be recognised that the atrocities perpetrated by the Third Reich are unique. That is not to suggest that the actions of ISIS were not horrific. However, the question has to be asked – what is the analytical basis for extending the prohibition of Nazi symbols to the ISIS flag and what kind of precedent does that set? The same logic could result in a never-ending list of bans of symbols linked to terrible actions by terrorist organisations (or even by state actors).
Unfortunately, the Government responded to these criticisms by making the Bill worse.
Whilst reference to the ISIS flag was removed from the Bill, the ultimately enacted Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth) instead prohibits the public display of a “prohibited terrorist organisation symbol”, which extends to:
(a) a symbol that a terrorist organisation uses, or members of a terrorist organisation use, to identify the organisation; and
(b) something that so nearly resembles such a symbol that it is likely to be confused with, or mistaken for, that symbol.
The fault element for the offence requires that the person know that the thing is a prohibited terrorist organisation symbol.
There is an additional element; an objective “reasonable person” test as to whether a person would consider that the particular conduct involves dissemination of ideas based on racial superiority or racial hatred; or (b) could incite another person or a group of persons to offend, insult, humiliate or intimidate a person or members of a group of people because of their race.
It does not matter whether the conduct results in the actual causing of hatred or incitement, or whether a member of the given group sees the thing while it is displayed in a public place.
There are defences (or more correctly elements of the offence that must be disproven if they arise on the evidence) for religious, academic, educational, artistic, literary or scientific purposes.
So what does all this mean? As a starting point, there are 30 organisations listed as terrorist organisations pursuant to the Criminal Code Act 1995 (Cth). We have now arrived at a point where, under this Federal law, the public display of their symbols (or something that so nearly resembles such symbols that it is likely to be confused with, or mistaken for, those symbols) is potentially unlawful and punishable by up to 12 months’ imprisonment.
Plainly enough, and as the recent controversy demonstrates, this would appear to extend to the Hezbollah flag. It would appear to include the ISIS flag. It also would appear to extend, for example, to all other symbols used by proscribed terrorist organisations, such as the Red Star used by the Kurdistan Workers’ Party (PKK). The law extends to the symbols used by many terrorist organisations that most of us would not be aware of, nor have ever seen.
In short, we now have a regime that fails to meet that basic threshold of the rule of law; that it be accessible and, so far as possible, intelligible, clear, and predictable. These laws can, and will, be applied arbitrarily. These laws are also, of course, prone to politicised decision-making, as the recent calls by politicians for the prosecution of the protestors demonstrates. While it is currently a necessary element for the prosecution to prove that the accused person knew that the thing is a prohibited terrorist organisation symbol, that is unlikely to prevent more people being charged, even more so in circumstances where there is direct political pressure.
These laws plainly engage the human right of freedom of expression, which the UN Human Rights Committee has said, together with freedom of opinion, is the foundation stone for every free and democratic society. The laws may well engage the implied freedom of political communication under our Constitution. They will have to be tested. And the irony, of course, is that with each case ever-more attention will be given to the very symbols and ideologies that the proponents of the laws want removed from public view. In that way the laws are self-defeating.
As predicted, the ban of some symbols has led to an ever-wider call for other things to be banned, now extending to expressions such as “from the river to the sea”, the Palestinian flag, the keffiyeh, and symbols including red triangles and even watermelons.
None of this improves our democracy. Seeking to ban symbols with the threat of imprisonment is a sign of weakness and not strength. We have not needed these laws in the past, and they are doing nothing to address the real causes as to why some people are being drawn to extremist movements. Now that we have opened the Pandora’s Box of censoring symbols and gestures, where does it end?
For more on this topic, P&I recommends:
Equality under the law: the differing treatment of Hezbollah and Israel in Australia
Michael Stanton
Michael Stanton is Senior Counsel for the State of Victoria and the Immediate Past President of Liberty Victoria (the Victorian Council for Civil Liberties). Barrister at Brian Bourke Chambers. He has written widely on human rights and civil liberties, and given evidence to both State and Federal Parliamentary Inquiries on a range of law reform issues including the re-emergence of far-right extremism.