The Proposed Ban of the Swastika in Victoria

Liberty Victoria is deeply worried by the emergence of far-right extremism, but opposes the ban of the ‘hakenkreuz’ for the reasons set out in our joint submission to the Commonwealth Parliamentary Joint Committee on Intelligence and Security (PJCIS).[1]

We understand that the display of Nazi symbols is highly confronting and offensive, particularly to the Jewish community and other minority groups that have been targeted by Nazi ideology.

We also recognise that the introduction of this new criminal offence is intended to convey the Victorian community’s strong condemnation of racism, and to express solidarity and support for communities that have been targeted by racial vilification. These are laudable aims.

Our concern, however, is that the expansion of the criminal law is not an appropriate or effective way to achieve these objectives. There is a risk that the law will have unintended consequences which undermine its objectives.

Critically, several features of the offence as drafted erode fundamental protections for people accused of criminal offences, and risk exposing legitimate religious, educational or artistic uses of the swastika to scrutiny by police. If enacted the bill: (1) will allow a person to be convicted and exposed to a risk of imprisonment on the standard of what they ‘ought’ to have known (rather than what they did know), and (2) will place a reverse onus (likely to be on the balance of probabilities[2]) on an accused person to make out a defence (such as religious belief, academic work or artistic expression).

This unravels the ‘golden thread’ of the criminal law of the presumption of innocence and means that an accused person could raise a reasonable doubt about whether they had intended to use the symbol for a legitimate reason but still be convicted and exposed to the risk of imprisonment because they did not establish the defence on the balance of probabilities. Concerningly, it appears that these aspects of the proposed offence have been chosen to make prosecution easier, notwithstanding that in other contexts reverse onus provisions have been found to be unjustifiable and contrary to the Charter of Human Rights and Responsibilities Act 2006 (Vic).[3]

Given the very serious consequences of being convicted of such an offence (including potential imprisonment and the shame of being found to support Nazi ideology), if it is to be enacted the offence should require that: (1) the intentional display of the Hakenkreuz as a symbol of hate must proven beyond reasonable doubt rather than on a standard of what a person ‘ought’ to have known’; and (2) only require potential defences to be raised on an evidentiary basis (and once raised it should be for the prosecution to disprove the defence beyond reasonable doubt).

It must be noted that, even in cases in which an accused has strong prospects of establishing a defence in court, the risk of police action and charges remain.[4] Contrary to the objectives of the law this will most likely fall – even in error given the available defences – on members of the Hindu and other religious communities and on artists and satirists.

Such a risk should not be taken in circumstances where the proposed law is highly unlikely to reduce racial vilification in Victoria. The experience of far-right organisations shows the use of far-right icons (such as the swastika) can easily be adapted and modified to be highly suggestive of the prohibited icon but not violate prohibition (consider, for example the use of other Fascist and Norse icons by far-right groups).[5] This offence also has an exception for tattoos, and does not appear to apply to online content (such as social media posts). These fairly straightforward avenues for evading the offence create perverse incentives to ‘game the system’.

Further, 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) or religious iconography (such as of crusaders and saints). Simply put, prohibition is a blunt instrument that will not prevent signals and ‘dog-whistling’ being given to extremist groups. The long-standing prohibition of the swastika in Germany has done nothing to prevent the re-emergence of far-right extremism over recent times. These laws are likely to be tested by potential extremists who may seek to portray themselves as ‘martyrs’ committed to free expression, and prohibition and censorship might well have the perverse outcome of generating more attention towards such persons (and indeed the icons themselves) through lengthy litigation.

If persons are willing to display extremist icons in public (be it the swastika or an ISIS flag), this may also be a relevant matter for police and intelligence services investigating more serious crimes that can arise from extremist ideology. Pushing such icons underground does not assist when seeking to recognise the public face of extremist ideologies. If such icons are displayed as part of advocating for the doing of a terrorist act, that is already a criminal offence contrary to s 80.2C of the Criminal Code Act 1995 (Cth)

If the criminal law is to have any role in this area, this can be achieved through vilification offences similar to those which exist under the Racial and Religious Tolerance Act 2001 (Vic), considered by Chief Judge Kidd in Blair Cottrell v Erin Ross [2019] VCC 2142.

As we have recently submitted to the Victorian Government’s Inquiry into Extremism, the focus of addressing the emergence of far-right extremism should not be on expansion of executive power and censorship; it should be on education and addressing the root causes of why some people are attracted to such ideologies in the first place, including social isolation, growing economic insecurity and mistrust in government and the media. The proposed prohibition of the hakenkreuz is a band-aid solution to a much deeper societal problem resulting the re-emergence of right-wing extremism.

Michael Stanton

President, Liberty Victoria

For media enquiries please contact info@libertyvictoria.org.au or phone 03 9670 6422

[1] Available here: <https://libertyvictoria.org.au/sites/default/files/210201%20Extremism%20Movements.pdf>.

[2] Evidence Act 2008 (Vic) s 141(2).

[3] R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 477 [152]-[153] (Maxwell P, Ashley and Neave JJA), although the proposed declaration of inconsistent interpretation was set aside by the High Court in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, where Crennan and Kiefel JJ also observed “[i]t may be that, in the context of a criminal trial proceeding, a declaration of inconsistency will rarely be appropriate”: at 229 [605].

[4] Consider, eg, police seizing the works of the artist Bill Henson and the (ultimately unsuccessful) prosecution of the artist Paul Yore: Rowena Orr SC and Georgie Coleman “Collage as child pornography and the limits to the right to freedom of expression – Case note” Arts + Law (Web Page, 23 February 2015).

[5] See, eg, Washington Post, “Identifying far-right symbols that appeared at the U.S. Capitol riot” (Web Page, 15 January 2021) <https://www.washingtonpost.com/nation/interactive/2021/far-right-symbols-capitol-riot>.