Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (113 of 2023)

Schedule 1 Prohibited symbols and Nazi salute

Criminal Code Act 1995

5 After Subdivision C of Division 80 of the Criminal Code

Insert:

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

80.2E Prohibited symbols

(1) Each of the following is a prohibited symbol :

(a) a prohibited Nazi symbol;

(b) a prohibited terrorist organisation symbol.

(2) Each of the following is a prohibited Nazi symbol :

(a) the Nazi hakenkreuz;

(b) the Nazi double-sig rune;

(c) something that so nearly resembles a thing to which paragraph (a) or (b) applies that it is likely to be confused with, or mistaken for, that thing.

(3) Each of the following is a prohibited terrorist organisation symbol :

(a) a symbol that a terrorist organisation (within the meaning of Division 102) uses, or members of a terrorist organisation use, to identify the organisation;

(b) something that so nearly resembles a symbol to which paragraph (a) applies that it is likely to be confused with, or mistaken for, that symbol.

80.2F Meaning of displayed in a public place

(1) A thing is displayed in a public place if it is capable of being seen by a member of the public who is in a public place (whether or not the thing is actually so seen by a member of the public).

(2) A thing is also displayed in a public place if it is included in:

(a) a document (including, for example, a newspaper, magazine, program, leaflet or ticket); or

(b) a film, video or television program;

that is available, or distributed, to the public or a section of the public.

(3) A thing is also displayed in a public place if it is included in a document, film, video or television program that is available, or distributed to, the public or a section of the public by means of a telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution including, for example, by means of the internet.

Example: If a thing is included in a document that is available to the public or a section of the public on a website, then the thing is displayed in a public place under this subsection.

(4) In this section, available or distributed includes available or distributed as of right or by invitation, whether express or implied, and whether or not a charge is made for availability or distribution.

80.2FA Meaning of makes a gesture in a public place

A person makes a gesture in a public place if:

(a) the person makes a gesture; and

(b) the gesture is capable of being seen by a member of the public who is in a public place (whether or not the gesture is actually so seen by a member of the public).

80.2G Meaning of trades

(1) For the purposes of this Subdivision, a person trades in goods if:

(a) the person sells the goods; or

(b) the person prepares the goods for supply with the intention of selling the goods or believing that another person intends to sell the goods; or

(c) the person transports the goods with the intention of selling the goods or believing that another person intends to sell the goods; or

(d) the person guards or conceals the goods with the intention of selling the goods or assisting another person to sell the goods; or

(e) the person possesses the goods with the intention of selling the goods.

(2) For the purposes of paragraph (1)(b) and sections 80.2J and 80.2JA, preparing goods for supply includes packaging the goods or separating the goods into discrete units.

(3) This section and sections 80.2J and 80.2JA apply in relation to leasing out or renting out (or agreeing to lease out or rent out) in the same way as they apply in relation to selling.

(4) In this section and sections 80.2J and 80.2JA:

conceal goods includes conceal or disguise:

(a) the nature, source or location of the goods; or

(b) any movement of the goods; or

(d) the identity of any owner of the goods.

possession of goods includes the following:

(a) receiving or obtaining possession of the goods;

(b) having control over the disposition of the goods (whether or not the goods are in the custody of the person);

sell includes the following:

(a) barter or exchange;

(b) agree to sell.

supply includes the following:

(a) supply, whether or not by way of sale;

(b) agree to supply.

transport includes deliver.

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

(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

(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.

80.2HA Public display of prohibited terrorist organisation symbols

(1) A person commits an offence if:

(a) the person causes a thing to be displayed in a public place; and

(b) the person knows that the thing is a prohibited terrorist organisation symbol; 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.

(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 the thing while it is displayed 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

(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

(f) the person genuinely engages in the conduct for the purpose of opposing the ideology or purposes of a terrorist organisation (within the meaning of Division 102).

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.

80.2J Trading in prohibited Nazi symbols

(1) A person commits an offence if:

(a) the person trades in goods; and

(b) the goods depict or contain a prohibited Nazi symbol; and

(c) the person knows that, or is reckless as to whether, the prohibited Nazi symbol is associated with Nazi ideology; and

(d) subsection (3) applies; and

(e) subsections (4) and (5) do not apply.

Note: For defences, see subsections (6) to (8).

Penalty: Imprisonment for 12 months.

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

Jurisdictional requirements

(3) For the purposes of paragraph (1)(d), this subsection applies if:

(a) the trading occurs to any extent outside Australia; or

(b) the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement; or

(d) the trading is engaged in by, or on behalf of, a constitutional corporation; or

(e) some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or

(f) the trading:

(i) occurs to any extent at a Commonwealth place; or

(ii) involves transportation to or from a Commonwealth place; or

(g) the person is an alien; or

(h) the trading involves the person:

(i) selling the goods to an alien; or

(ii) preparing the goods for supply with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or

(iii) transporting the goods with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or

(iv) guarding or concealing the goods with the intention of selling them to an alien or with the intention of assisting another person to sell them to an alien or with the intention of assisting an alien to sell them; or

(v) possessing the goods with the intention of selling them to an alien.

Other matters

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

(a) the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose; and

(b) the person's trading in the goods is not contrary to the public interest.

(5) For the purposes of paragraph (1)(e), this subsection applies if:

(a) the goods that are traded contain one or more news reports or current affairs reports; and

(b) each prohibited Nazi symbol that the goods depict or contain appears in such a report and only appears in such a report; and

(i) the report was made by a person working in a professional journalistic capacity; and

(ii) disseminating the report is in the public interest.

Defences

(6) Subsection (1) does not apply to a person's trading in goods if:

(a) the goods that are traded contain commentary on public affairs; and

(b) each prohibited Nazi symbol that the goods depict or contain appears in the commentary and only appears in the commentary; and

(c) in relation to commentary in which a prohibited Nazi symbol appears - making the commentary is in the public interest.

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

(7) Subsection (1) does not apply to a person's trading in goods if the trading is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or

(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, or a foreign country; or

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

(8) Subsection (1) does not apply to a person's trading in goods if:

(a) both:

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

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

(b) both:

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

(ii) the trading 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.

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

Interpretation

(9) 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.

(10) In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

80.2JA Trading in prohibited terrorist organisation symbols

(1) A person commits an offence if:

(a) the person trades in goods; and

(b) the goods depict or contain a symbol; and

(d) subsection (3) applies; and

(e) subsections (4) and (5) do not apply.

Note: For defences, see subsections (6) to (8).

Penalty: Imprisonment for 12 months.

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

Jurisdictional requirements

(3) For the purposes of paragraph (1)(d), this subsection applies if:

(a) the trading occurs to any extent outside Australia; or

(b) the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement; or

(d) the trading is engaged in by, or on behalf of, a constitutional corporation; or

(e) some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or

(f) the trading:

(i) occurs to any extent at a Commonwealth place; or

(ii) involves transportation to or from a Commonwealth place; or

(g) the person is an alien; or

(h) the trading involves the person:

(i) selling the goods to an alien; or

(iii) transporting the goods with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or

(v) possessing the goods with the intention of selling them to an alien.

Other matters

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

(a) the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose; and

(b) the person's trading in the goods is not contrary to the public interest.

(5) For the purposes of paragraph (1)(e), this subsection applies if:

(a) the goods that are traded contain one or more news reports or current affairs reports; and

(b) each prohibited terrorist organisation symbol that the goods depict or contain appears in such a report and only appears in such a report; and

(c) in relation to each such report in which a prohibited terrorist organisation symbol appears - a reasonable person would consider that:

(i) the report was made by a person working in a professional journalistic capacity; and

(ii) disseminating the report is in the public interest.

Defences

(6) Subsection (1) does not apply to a person's trading in goods if:

(a) the goods that are traded contain commentary on public affairs; and

(b) each prohibited terrorist organisation symbol that the goods depict or contain appears in the commentary and only appears in the commentary; and

(c) in relation to commentary in which a prohibited terrorist organisation symbol appears - making the commentary is in the public interest.

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

(7) Subsection (1) does not apply to a person's trading in goods if the trading is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or

(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, or a foreign country; or

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

(8) Subsection (1) does not apply to a person's trading in goods if:

(a) both:

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

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

(b) both:

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

(ii) the trading 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.

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

Interpretation

(9) 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.

(10) In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

80.2K Directions to cease display of prohibited symbols in public

Directions

(1) A police officer may, in accordance with section 80.2L, direct a person to cause a prohibited symbol to cease to be displayed in a public place if:

(a) the prohibited symbol is displayed in a public place as mentioned in subsection 80.2F(1) (other than by being made available on the internet); and

(b) subsection (2), (3) or (6) of this section applies.

Circumstances in which direction may be given

(2) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place 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.

(3) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place 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.

(4) For the purposes of paragraph (3)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.

(5) For the purposes of paragraph (3)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.

(6) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place 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.

(7) For the purposes of subsection (6), it does not matter whether a member of the group sees the prohibited symbol while it is displayed in a public place.

Time by which direction must be complied with

(8) A direction given under subsection (1) must specify the time by which the prohibited symbol must cease to be displayed in a public place. The time must be reasonable.

Definitions

(9) In this section:

police officer means:

(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

(b) a special member of the Australian Federal Police (within the meaning of that Act); or

80.2L Directions to cease display of prohibited symbols in public - person to whom, and form in which, direction may be given

(1) A police officer may give a direction to cause a prohibited symbol to cease to be displayed in a public place under subsection 80.2K(1) only in accordance with subsection (2), (3) or (4) of this section.

(2) The direction may be given to a person, either orally or in writing, if the police officer suspects on reasonable grounds that:

(a) one or more of the following is satisfied:

(i) the person caused the prohibited symbol to be displayed in a public place;

(ii) the person is an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place;

(iii) the person is an owner or an occupant of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; and

(b) there are steps the person can take to cause the prohibited symbol to cease to be displayed in a public place.

(3) The direction may also be given in writing by being left on or at land or premises on, at or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner or occupier of the land or premises at the time the direction is given.

(4) The direction may also be given in writing by being affixed or placed in a conspicuous manner on an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner of the aircraft, vehicle or vessel at the time the direction is given.

80.2M Directions to cease display of prohibited symbols in public - offence

Offence

(1) A person commits an offence if:

(a) the person is given a direction under subsection 80.2K(1); and

(b) the prohibited symbol specified in the direction does not cease to be displayed in a public place before the time specified in the direction under subsection 80.2K(8).

Penalty: 20 penalty units.

(2) Strict liability applies to paragraph (1)(b).

Defences

(3) Subsection (1) does not apply if:

(a) the conduct that caused the prohibited symbol to be displayed in a public place was genuinely 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 that caused the prohibited symbol to be displayed in a public place was engaged in for the purposes of making a news report, or a current affairs report, that is:

(i) in the public interest; and

(ii) made by a person working in a professional journalistic capacity; or

(c) if the prohibited symbol is a prohibited Nazi symbol - any of paragraphs 80.2H(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place; or

(d) if the prohibited symbol is a prohibited terrorist organisation symbol - any of paragraphs 80.2HA(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place.

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

(4) For the purposes of paragraphs (3)(a), (b) and (c), it does not matter whether the conduct referred to in those paragraphs was conduct of the person who is given the direction as mentioned in paragraph (1)(a).

(5) Subsection (1) does not apply if:

(a) both:

(i) the person (the recipient ) who is given the direction did not cause the prohibited symbol to be displayed in a public place; and

(ii) when the direction is given, the recipient is not an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place, or an owner of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; or

(b) either the person (the recipient )who is given the direction takes all reasonable steps to cause the prohibited symbol to cease to be displayed in a public place, or there are no such steps that the recipient can take.

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

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