Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.1 - Treason and related offences  

Division 80 - Treason, urging violence, advocating terrorism or genocide, and prohibited symbols and Nazi salute  

Subdivision CA - Publicly displaying, and trading in, prohibited symbols and giving Nazi salute  

SECTION 80.2H   Public display of prohibited Nazi symbols or giving Nazi salute  

(1)    
A person commits an offence if:

(a)    the person:

(i) causes a thing to be displayed in a public place; or

(ii) makes a gesture in a public place; and

(b)    the thing is a prohibited Nazi symbol, or the gesture is a Nazi salute; and

(c)    subsection (3) , (4) or (7) applies; and

(d)    subsection (9) does not apply.

Note:

For defences, see subsection (10) .

Penalty: Imprisonment for 12 months.

(2)    
Absolute liability applies to paragraphs (1)(c) and (d) .

(3)    
For the purposes of paragraph (1)(c) , this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a) :

(a)    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:

(i) a person (the targeted person ) because of the race of the targeted person; or

(ii) the members of a group of persons (the targeted group ) because of the race of some or all of the members of the targeted group.

Note:

The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(4)    
For the purposes of paragraph (1)(c) , this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a) involves advocacy that:

(a)    is advocacy of hatred of:

(i) a group of persons distinguished by race, religion or nationality (a targeted group ); or

(ii) a member of a targeted group; and

(b)    constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:

(i) the targeted group; or

(ii) a member of the targeted group.

Note:

The object of this subsection is to give further effect to article 20 of the Covenant.

(5)    
For the purposes of paragraph (4)(a) , it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.

(6)    
For the purposes of paragraph (4)(b) , it does not matter whether the conduct actually incites another person as mentioned in that paragraph.

(7)    
For the purposes of paragraph (1)(c) , this subsection applies if the conduct mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is:

(a)    a reasonable person; and

(b)    a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin;

because of the reasonable person ' s membership of that group.

Note:

The object of this subsection is to give further effect to article 26 of the Covenant.

(8)    
For the purposes of subsection (7) , it does not matter whether a member of the group sees:

(a)    the thing while it is displayed in a public place; or

(b)    the gesture while it is made in a public place.

(9)    
For the purposes of paragraph (1)(d) , this subsection applies if a reasonable person would consider that:

(a)    the conduct mentioned in paragraph (1)(a) is engaged in for a purpose that is:

(i) a religious, academic, educational, artistic, literary or scientific purpose; and

(ii) not contrary to the public interest; or

(b)    the conduct mentioned in paragraph (1)(a) is engaged in for the purposes of making a news report, or a current affairs report, that:

(i) is in the public interest; and

(ii) is made by a person working in a professional journalistic capacity.

Defences

(10)    
Subsection (1) does not apply to a person engaging in conduct mentioned in paragraph (1)(a) if:

(a)    engaging in the conduct is necessary for enforcing a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(b)    engaging in the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(c)    the person engages in the conduct for the purposes of proceedings in a court or tribunal; or

(d)    both:

(i) the person engages in the conduct in connection with the performance by a public official of the official ' s duties or functions; and

(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; or

(e)    both:

(i) the person engages in the conduct in connection with an individual assisting a public official in relation to the performance of the public official ' s duties or functions; and

(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official ' s duties or functions; or

(f)    the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Functions

(11)    
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.