Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

AFP Australian Federal Police

ASIO Australian Security Intelligence Organisation

Bill, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023

Crimes Act Crimes Act 1914

Criminal Code Schedule to the Criminal Code Act 1995

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

Guide, the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 ed.

LGBTIQA+ Lesbian, gay, bisexual, transgender, intersex, queer, asexual and other sexually or gender diverse people

NRVE Nationalist and Racist Violent Extremist

PJCIS Parliamentary Joint Committee on Intelligence and Security

RMVE Religiously Motivated Violent Extremist

UNHRC United Nations Human Rights Committee

GENERAL OUTLINE

1. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (the Bill) would further strengthen Australia's counter-terrorism legislative framework to respond to new and evolving national security threats, including the complex motivations, strategies and tactics of violent extremists.

2. The threat of terrorism in Australia is enduring and becoming increasingly diverse and complex. Ideologically and religiously motivated violent extremists within the community are seeking to publicly display and trade symbols of hate with the intent of promoting hatred, instilling fear and harassing others. Violent extremists also use symbols to signal their ideology to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish in-group belonging. The harm caused by hateful conduct and vilification can be profound, affecting the physical and psychological wellbeing of the whole community.

3. The Bill would make critical changes to current legal settings to ensure law enforcement can appropriately manage this risk and protect the community from those planning, preparing and inspiring others to do harm by amending the Criminal Code Act 1995 (Criminal Code) to:

•

Establish new criminal offences for the public display of prohibited Nazi symbols and the performance of an act that is the Nazi salute in a public place; and trading in goods that bear a prohibited Nazi symbol (Schedule 1).

•

Establish new criminal offences for the public display and trade of symbols that a terrorist organisation, or members of a terrorist organisation, use to identify the organisation (Schedule 1).

•

Establish new criminal offences for using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service (Schedule 2).

•

Expand the offence of advocating terrorism in section 80.2C of the Criminal Code to include instructing on the doing of a terrorist act and praising the doing of a terrorist act in specified circumstances; and increase the maximum penalty for the advocating terrorism offence from 5 to 7 years imprisonment (Schedule 3).

•

Remove the sunsetting requirement for instruments which list terrorist organisations and bolster safeguards (Schedule 4).

Criminalising the public display of, and trading in goods bearing, prohibited Nazi symbols and the public performance of the Nazi salute

4. The Bill would establish new offences in the Criminal Code for publicly displaying (new section 80.2H), and trading in goods that bear (new section 80.2J), prohibited Nazi symbols.

5. Publicly displaying and trading in goods that bear prohibited Nazi symbols causes significant harm to many Australians. These prohibited symbols - the Nazi hakenkreuz (or hooked cross) and the Nazi double sig rune (the Schutzstaffel insignia or 'SS bolts') - are widely recognised as representing and conveying ideologies of hatred, violence and racism which are incompatible with Australia's multicultural and democratic society. Extremists also use these symbols to recruit and radicalise vulnerable Australians to violence.

6. There has been a dramatic and recent rise in anti-Semitism and the use of the Nazi salute as a means to advocate hate, incite violence and vilify members of the Australian community. This gesture is also used to recruit supporters to spread messages of hatred and violence. These offences are intended to protect individuals from harm and the wider community from distress caused by the performance of the widely recognised Nazi gesture.

7. Criminalising the performance of the Nazi salute in a public place in the same circumstances as the public display of Nazi symbols offence would strengthen protections against hatred and prejudice.

8. The new criminal offence at section 80.2H will prevent prohibited Nazi symbols and the Nazi salute from being used to advocate or disseminate ideas of hate, and preventing the vilification of members of the community. The new offence at section 80.2J will further support these objectives by restricting the trading, and profiting from goods depicting or containing a prohibited Nazi symbol. The offences would not apply in circumstances where the public display of, or trading in goods that bear, a prohibited Nazi symbol was done for a legitimate purpose, not contrary to the public interest. This would ensure, for example, that the use of the sacred Swastika for religious purposes is permitted. Appropriate defences will also be available for both offences.

9. The offences would also give further effect to Australia's international human rights obligations. They represent positive action to eradicate the incitement of racial discrimination (Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination (ICERD)), outlaw the vilification of persons on national, racial or religious grounds (Article 20 of the International Covenant on Civil and Political Rights (ICCPR)), and prohibit discrimination (Article 26 of the ICCPR).

10. The offences would demonstrate that there is no tolerance for the extremist ideologies that these symbols and gestures communicate, and support law enforcement efforts to address radicalisation and vilification.

New offence to criminalise public display and trade of symbols associated with a terrorist organisation

11. The Bill would establish new offences in the Criminal Code for publicly displaying, and trading in goods bearing symbols that a terrorist organisation, or members of a terrorist organisation, use to identify the organisation. Violent extremists and terrorist organisations use symbols to signal their ideology to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish group belonging. These symbols are also used to propagate violent extremist views and hateful ideologies and vilify and incited violence against targeted groups, threatening social cohesion and the safety of the Australian community.

12. The offences would also give further effect to Australia's international human rights obligations. They represent positive action to eradicate the incitement of racial discrimination (Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination (ICERD)), outlaw the vilification of persons on national, racial or religious grounds (Article 20 of the International Covenant on Civil and Political Rights (ICCPR)), and prohibit discrimination (Article 26 of the ICCPR).

13. The offences would demonstrate that there is no tolerance for terrorist organisation symbols in the community. The offences would also support law enforcement efforts to address radicalisation and vilification.

Criminalising the use of a carriage service for violent extremist material

14. Extremists are using the internet to recruit, spread propaganda and incite violence, particularly by targeting young people. Law enforcement, however, is limited in its ability to prosecute people for dealing with violent extremist material. While it is a crime to possess material that is connected with a terrorist act (for example, sections 101.4 to 101.6 of the Criminal Code) it is not currently a crime to deal with violent extremist material where, for example, planning or preparation for a terrorist act has not yet begun. This Bill would fill that gap by creating new offences for using a carriage service for violent extremist material (new section 474.45B), and possessing or controlling such material that has been accessed or obtained using a carriage service (new section 474.45C). These offences focus on the nature of the material, rather than the intentions of the person dealing with it.

15. Examples of the types of violent extremist material intended to be captured by the offence include instructional terrorist material and terrorist organisations' recruitment materials, which are aimed at disseminating extremist views and promoting violence.

16. These offences would facilitate law enforcement intervention at an earlier stage in individuals' progress to violent radicalisation, and provide greater opportunities for rehabilitation and disruption of violent extremist networks. They would also complement the existing framework for regulating online service providers, including the offences for hosting abhorrent violent material, and the eSafety Commissioner's powers to require providers remove or cease to host harmful content.

Expanding and increasing the penalty for the offence of advocating terrorism

17. The promotion and idolisation of extremist views is of increasing concern, particularly with respect to young people becoming radicalised online. Glorifying terrorists or terrorist acts can incite others to imitate or seek to engage in similar behaviour, and further their radicalisation.

18. To address this, the Bill would expand the meaning of advocates for the purpose of the offence of advocating terrorism in section 80.2C of the Criminal Code to include instructing on the doing of a terrorist act, or praising the doing of a terrorist act in circumstances where there is a substantial risk that such praise might lead someone to engage in a terrorist act (Item 2 to Schedule 3).

19. Recognising that advocating terrorism is a serious, intentional act that can incite violence against innocent Australians, the Bill would also increase the maximum penalty for this offence from 5 to 7 years imprisonment (Item 1 to Schedule 3). The new penalty would more appropriately account for the potential severity of offending.

Removing the sunsetting requirement for instruments which list terrorist organisations

20. The Bill would amend the Criminal Code to provide that regulations which prescribe terrorist organisations do not lapse after three years, but continue unless ceased through a proactive decision of the AFP Minister (Items 3 and 5 to Schedule 4). This is due to the fact that most organisations have been relisted repeatedly, and reflects the seriousness of terrorist organisation offences.

21. The Bill would also enhance the existing safeguards that ensure any listing of a terrorist organisation is appropriate and ceases should the organisation no longer meet the requisite threshold.

FINANCIAL IMPACT

22. The amendments of this Bill would have no financial impact on Government expenditure or revenue.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Bill would ensure Australia's counter-terrorism laws continue to be appropriate in light of the evolving threat environment, particularly the threat of violent extremism.

3. The Bill would amend the Criminal Code Act 1995 (Criminal Code) to:

•

establish new criminal offences for the public display of prohibited symbols or performance of the Nazi salute in a public place

•

establish a new offence of trading goods that bear a prohibited symbol

•

establish new criminal offences for using a carriage service for violent extremist material and for possessing or controlling violent extremist material obtained or accessed using a carriage service

•

expand the advocating terrorism offence in section 80.2C of the Criminal Code to include instructing on the doing of a terrorist act or the commission of a terrorism offence; and the praising of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence

•

increase the maximum penalty for the advocating terrorism offence from 5 to 7 years imprisonment, and

•

remove the sunsetting requirement for instruments which list terrorist organisations and bolster safeguards around the listing process.

Human rights implications

4. The Bill engages the following human rights:

•

right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

•

right to security of the person in Article 9 of the ICCPR

•

right to the presumption of innocence in Article 14(2) of the ICCPR

•

right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

•

right to freedom of thought, conscience and religion in Article 18 of the ICCPR

•

right to freedom of expression in Article 19 of the ICCPR

•

right to protection from exploitation, violence and abuse in Article 20 of the ICCPR

•

right to freedom of association in Article 22 of the ICCPR

•

right to be equal before the law and without discrimination to the equal protection of the law in Article 26 of the ICCPR

•

right for minorities to enjoy culture in Article 27 of the ICCPR

•

right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

•

right to take part in cultural life in Article 15 of the ICESCR

•

condemnation of propaganda and organisations that attempt to justify discrimination or are based on racial supremacism in Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and

•

Commitment to promote the establishment of measures for dealing with such children without resorting to judicial proceedings in Article 40(3)(b) of the CRC.

Right to life and security of the person in Articles 6 and 9 of the ICCPR

5. The right to life in Article 6 of the ICCPR requires States to take preventative measures to protect individuals from unwarranted actions by private persons, such as acts of terrorism. The right to security of the person in Article 9 of the ICCPR places a positive obligation on States to provide reasonable and appropriate measures to protect a person's physical security. This includes where the Government knows or ought to know of the existence of a real or imminent risk to the physical security of an identified individual or group of individuals from the criminal acts of another party.

6. The Bill promotes the right to life and right to security by establishing new criminal offences, and broadening the scope of an existing criminal offence, to deter and prevent conduct, including the public display and dissemination of symbols and the performance of the Nazi salute in a public place, and materials that advance terrorism and violent extremism, which intelligence and operational agencies advise may radicalise individuals and incite them to commit offences that would risk a person's life or physical security.

7. The Bill also enhances the capabilities of law enforcement agencies to manage the risk posed by those seeking to radicalise others and mobilise vulnerable Australians to violence, and prevent the commission of such offences.

New offences - public display of prohibited Nazi symbols; and trading in goods that bear a prohibited Nazi symbol

8. Articles 6 and 9 of the ICCPR are engaged by the prohibited symbols offences as these offences would criminalise conduct which seeks to promote and disseminate ideologies and regimes that have led to genocide and mass violence. Nazi symbols are widely recognised as symbols of hate, violence and intolerance. These symbols have been used to recruit and radicalise individuals into violent extremism.

Accordingly, by criminalising the public display of, and trading in goods bearing, prohibited Nazi symbols, the new offences advance the rights protected by Articles 6 and 9.

New offence - makes a gesture that is the Nazi salute in a public place

9. Articles 6 and 9 of the ICCPR are engaged by the new offence prohibiting making a gesture that is the Nazi salute in a public place, as conduct would be criminalised which seeks to promote and disseminate an ideology and regime that has led to genocide and mass violence. The Nazi salute is widely recognised as a gesture of hate, violence and intolerance.

10. Accordingly, by criminalising making a gesture that is the Nazi salute in a public place, the new offence further promotes the rights protected by Articles 6 and 9.

New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol

11. Articles 6 and 9 of the ICCPR are engaged by the new offences as they would criminalise conduct which seeks to promote and disseminate ideologies and regimes that have led to mass violence. Symbols that represent terrorist organisations are widely recognised as symbols of hate, violence and intolerance. These symbols have been used to recruit and radicalise individuals into terrorism and violent extremism.

12. Accordingly, by criminalising the public display of, and trading in goods that depict or contain, a prohibited terrorist organisation symbol, the new offences promote the rights protected by Articles 6 and 9.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

13. The right to life and right to security of the person, in accordance with Articles 6 and 9 of the ICCPR, would be protected by the new offences criminalising the use of a carriage service for violent extremist material which may depict actions and advocate beliefs that undermine these rights - such as beheading videos and written guides on how to cause physical harm to a person. Violent extremist material plays a role in radicalising individuals to violent extremism and terrorism, who may then carry out acts which risk lives and physical security.

14. The offences would send a message that Australians have a right to physical security, and to live their lives in safety, by subjecting those who use carriage services to access material that describes, depicts, instructs on, supports or facilitates serious violence for extremist purposes to serious criminal consequences.

Expanded offence - advocating terrorism

15. The amendments to the offence of advocating terrorism in section 80.2C of the Criminal Code would criminalise the provision of instruction on a terrorist act and the praising of terrorist acts where there is a substantial risk that such praise might have the effect of leading a person to engage in a terrorist act or commit a terrorism offence.

16. Section 100.1 of the Criminal Code defines 'terrorist act' to include an action or threat of action that causes a person's death or endangers a person's life, other than the life of the person taking the action. A 'terrorism offence' as defined in subsection 3(1) of the Crimes Act 1914 (Crimes Act), includes offences which are unequivocally intended to harm or endanger life and security. For example, the offence of engaging in a terrorist act in section 101.1 of the Criminal Code.

17. The amendments would support the rights in Articles 6 and 9 of the ICCPR by criminalising conduct that instructs on, or engenders a substantial risk that a person might be led to engage in, an action which could cause a person's death or endanger a person's life, and therefore serves to protect the lives and security of individuals.

Removing the sunsetting requirement for instruments which list terrorist organisations

18. States have a duty to protect the right to life of people within their jurisdictions, and to investigate arbitrary or unlawful killings. States are required to criminalise unlawful killings and to ensure law enforcement has the ability to prevent, investigate and punish breaches of the criminal law. The amendment removing the sunsetting requirement for regulations that prescribe terrorist organisations supports this duty by continuing to ensure that conduct involving terrorist organisations can be effectively investigated and prosecuted under the Criminal Code.

19. Under Division 102 of the Criminal Code, the Governor-General can make a regulation specifying that an organisation is a terrorist organisation, if the Australian Federal Police (AFP) Minister is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. There any multiple offences in Subdivision B of Division 102 associated with engaging with terrorist organisations.

20. Currently, regulations that prescribe terrorist organisations sunset every three years. The Bill would remove this sunsetting requirement, meaning that a terrorist organisation is proscribed until a decision is made by the AFP Minister to de-list the organisation. As terrorist organisation listings facilitate prosecution of serious offences, which pose a risk to the safety and security of Australians, this measure positively engages Article 6 of the ICCPR by promoting the right to life, both in Australia and overseas.

Right to the presumption of innocence in Article 14(2) of the ICCPR

21. Article 14(2) of the ICCPR provides that those charged with criminal offences have the right to be presumed innocent until proven guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proven beyond reasonable doubt.

New offences - public display of prohibited Nazi symbols; and trading in goods that bear a prohibited Nazi symbol

22. The provisions establishing the offences for publicly displaying prohibited Nazi symbols, and trading in goods that bear a prohibited Nazi symbol, positively engage Article 14(2) by requiring the prosecution to bear the burden of proof in relation to all of the elements of the offences.

23. New section 80.2H would require the prosecution to prove that the person caused a thing to be displayed in a public place (paragraph 80.2H(1)(a)); that the thing is a prohibited symbol (paragraph 80.2H(1)(b)); that either subsection 80.2H(3), (4) or (7) applies (paragraph 80.2H(1)(c)); and that subsection 80.2H(9) does not apply (paragraph 80.2H(1)(d)).

24. New section 80.2J would require the prosecution to prove that the person traded in goods (paragraph 80.2J(1)(a)); that the goods depict or contain a prohibited symbol (paragraph 80.2J(1)(b)); that the person knows that, or is reckless as to whether, the prohibited symbol is associated with Nazi ideology (paragraph 80.2J(1)(c)); that the jurisdictional requirements are met (paragraph 80.2J(1)(d)); and subsections 80.2J(4) and (5) do not apply (paragraph 80.2J(1)(e)).

25. New paragraphs 80.2H(1)(d) and 80.2J(1)(e) would provide that the offences would not apply in circumstances where a reasonable person would consider that the public display of, or trading in goods bearing, a prohibited symbol respectively is done for one of the specified legitimate purposes.

26. As these offences would not contain a 'reverse burden' requiring the defendant to disprove the elements of the offences, they would not infringe the right to the presumption of innocence.

27. The Bill also contains offence-specific defences (see new subsection 80.2H(10) and subsections 80.2J(6), (7) and (8)), and the defendant would bear the evidential burden in relation to these defences. In accordance with paragraph 4.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and/or it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate.

New offence - makes a gesture that is the Nazi salute in a public place

28. The express prohibition of making a gesture that is the Nazi salute in a public place positively engages Article 14(2) by requiring the prosecution to bear the burden of proof in relation to all of the elements of the offence.

29. The expanded offence would require the prosecution to prove that the person made a gesture in a public place (paragraph 80.2H(1)(a)); that the gesture is the Nazi salute (paragraph 80.2H(1)(b)); that either subsection 80.2H(3), (4) or (7) applies (paragraph 80.2H(1)(c)); and that subsection 80.2H(9) does not apply (paragraph 80.2H(1)(d)).

30. Paragraph 80.2H(1)(d) would provide that the offence would not apply in circumstances where a reasonable person would consider that the making of the Nazi salute in a public place is done for one of the specified legitimate purposes.

31. As this offence would not contain a 'reverse burden' requiring the defendant to disprove the elements of the offence, it would not infringe the right to the presumption of innocence.

32. The Bill also contains offence-specific defences (see subsection 80.2H(10)), and the defendant would bear the evidential burden in relation to these defences. In accordance with paragraph 4.3 of the Guide, this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate.

New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol

33. The provisions establishing the offences for publicly displaying prohibited terrorist organisation symbols, and trading in goods that depict or contain a prohibited terrorist organisation symbol, positively engage Article 14(2) by requiring the prosecution to bear the burden of proof in relation to all elements of the offences.

34. New section 80.2HA would require the prosecution to prove that the person caused a thing to be displayed in a public place (paragraph 80.2HA(1)(a)); that the person knows the thing is a prohibited terrorist organisation symbol (paragraph 80.2HA(1)(b)); that either subsection 80.2HA(3), (4) or (7) applies (paragraph 80.2HA(1)(c)); and that subsection 80.2HA(9) does not apply (paragraph 80.2HA(1)(d)).

35. New section 80.2JA would require the prosecution to prove that the person traded in goods (paragraph 80.2JA(1)(a)); that the goods depict or contain a symbol (paragraph 80.2JA(1)(b)); that the person knows that the symbol is a prohibited terrorist organisation symbol (paragraph 80.2JA(1)(c)); that the jurisdictional requirements are met (paragraph 80.2JA(1)(d)); and that subsections 80.2JA(4) and (5) do not apply (paragraph 80.2JA(1)(e)).

36. New paragraphs 80.2HA(1)(d) and 80.2JA(1)(e) would provide that the offences would not apply in circumstances where a reasonable person would consider that the public display of, or trading in goods that depict or contain, a symbol that is a prohibited terrorist organisation symbol is done for one of the specified legitimate purposes.

37. As these offences would not contain a 'reverse burden' requiring the defendant to disprove the elements of the offences, they would not limit the right to the presumption of innocence protected by Article 14(2).

38. The Bill also contains offence-specific defences (see new subsection 80.2HA(10) and subsections 80.2JA(6), (7) and (8)), and the defendant would bear the evidential burden in relation to these defences. In accordance with paragraph 4.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and/or it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate.

New offences - possessing or controlling violent extremist material obtained or accessed using a carriage service

39. The new offence for possessing or controlling violent extremist material obtained or accessed using a carriage service would engage Article 14(2) as it would provide that if the prosecution proves three of the four elements of the offence beyond reasonable doubt, it is presumed that the final element of the offence is made out unless the defendant proves otherwise. Specifically, subsection 474.45C(5) would provide that it is presumed - unless the person (the defendant) proves to the contrary - that the person obtained or accessed the material and used a carriage service to do so. This presumption only applies where the prosecution has proven beyond reasonable doubt that the person has possession or control of material, the material is in the form of data held in a computer or contained in a data storage device, and the material is violent extremist material.

40. The purpose of this presumption would be to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. This evidence may be very technical. It can also be circumstantial, including for example that the defendant's computer had material saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard drive. Accordingly, to the extent that this measure limits the right to the presumption of innocence, this is a permissible limitation.

41. Further, the offence in new subsection 474.45C(5) would rely on the Commonwealth's telecommunications power under the Constitution at paragraph 51(v). Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service would be a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

42. There would be a number of circumstances in which the offences in new sections 474.45B and 474.45C would not apply as the use of violent extremist material would be legitimate and not contrary to the public interest. The Bill would provide these exceptions in the form of defences (see new section 474.45D) and the defendant would bear the evidential burden in relation to these defences. In accordance with section 4.3 of the Guide, this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to prove the matters listed in the defence provisions limits the presumption of innocence, it is reasonable and proportionate.

Right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

43. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's privacy, family, home and correspondence, and prohibits unlawful attacks on a person's reputation. The United Nations Human Rights Committee (UNHRC) has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

44. The Bill would limit this right by creating new offences for using a carriage service for violent extremist material, and for possessing or controlling violent extremist material that has been obtained or accessed using a carriage service. This would interfere with a person's personal property, including what may be contained within a person's home.

45. The right to privacy may be limited where the limitation is lawful and not arbitrary. In order for any interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The UNHRC has interpreted reasonableness in this context to imply that any interference with privacy must be proportionate to the end sought and be necessary in the circumstances of any given case.

46. This measure would be lawful (as it would be prescribed by law) and would not be arbitrary, as it is reasonable, necessary and proportionate to achieve the legitimate objectives of protecting national security, public order and the rights and freedoms of others. Violent extremist material as defined in new section 474.45A encourages and instructs individuals in the commission of violent acts; and radicalises individuals to violent extremist ideologies. Prohibiting the use of a carriage service for such material would prevent exposing Australians to these harmful impacts, and disrupting the radicalisation process before individuals are incited to commit violence in the community.

47. The offences would include express defences (see new section 474.45D) to allow for the possession and use of violent extremist material for legitimate purposes. This would limit the offence's impact on the right to privacy and ensure that the restrictions which the offences place on this privacy are proportionate.

New offences - trading in goods that bear a prohibited Nazi symbol or prohibited terrorist organisation symbol

48. The trading offence engages the right to freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. This is because the new offence criminalises conduct that could be undertaken in a private home (such as the private sale of goods bearing prohibited symbols), and could therefore interfere with a person's private life and property. The trading offence is however reasonable, necessary and proportionate to achieve the legitimate objectives of protecting national security, public order, and the rights and freedoms of others. Prohibited symbols represent hateful and violent ideologies. Trading in goods which bear those symbols supports the further dissemination of these ideologies as well as the continuation of an economy which allows for profiting from extremist and hateful ideologies. Accordingly, banning the trade in goods bearing prohibited symbols supports other rights including the right to life and security.

49. The scope of the trading offence is also limited through defences and exemptions, which would provide legitimate avenues to trade such items, including for religious, academic, educational, artistic, scientific or literary purpose or public interest journalism. The trading offence would also not apply if the goods that are traded contain commentary on public affairs; the prohibited symbol appears in the commentary and making the commentary is in the public interest; the trading is necessary for, or of assistance in, enforcing, monitoring compliance with or investigating a contravention of the law, or for the administration of justice; and the trading is done by a public official or a person assisting a public official, in connection with the performance of the official's duties or functions, and the trading is reasonable in the circumstances for that purpose.

50. Accordingly, the limitation on the right to privacy would be permissible as it is a reasonable, necessary and proportionate means of achieving a legitimate objective to protect national security, public order and the rights and freedoms of others.

51. Accordingly, the limitation on the right to privacy would be permissible as it is a reasonable, necessary and proportionate means of achieving a legitimate objective to protect national security, public order and the rights and freedoms of others.

Right to freedom of thought, conscience and religion in Article 18 of the ICCPR

52. The right to freedom of thought, conscience and religion under Article 18 of the ICCPR includes the right to adopt a religion or belief, and freedom either individually or with others and in public or private, to manifest religion or belief, including to worship, observe, practice and teach that religion in public or private. This right may be limited where such limitations are prescribed by law, and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

New offences - public display of prohibited Nazi symbols; and trading in goods that bear a prohibited Nazi symbol

53. The prohibited symbols offences in new subdivision CA would promote Article 18 of the ICCPR by supporting faith communities to be able to practice their religions without fear of harm or vilification. Nazi symbols are associated with atrocities committed against various faith communities, most notably, Jewish people, during World War II and have continued to be wielded in, and around, Jewish community spaces to advance hatred, and threaten violence against this community in the years since.

54. In criminalising the public display and trade of prohibited Nazi symbols, the offences would protect the rights afforded by Article 18 by preventing these symbols from being disseminated in circumstances that would infringe upon the rights of Australians to worship, observe, practice and teach religion free from harassment, vilification and risks to personal safety.

55. The combined effect of new paragraphs 80.2H(1)(d) and 80.2H(9)(a) would be that, in order for the public display offence to be established, the prosecution must prove that a reasonable person would consider that the person did not publicly display a prohibited symbol for a religious purpose and in the public interest. The combined effect of new paragraph 80.2J(1)(e) and new subsection 80.2J(4) would be that, in order for the trading offence to be established, the prosecution must prove that a reasonable person would not consider that goods traded that bear a prohibited symbol are intended to serve a religious purpose and the trading is not contrary to the public interest. These requirements are intended to send a strong message to religious groups, courts and the public that the genuine use of an otherwise prohibited symbol by a religious group for religious reasons is not intended to be captured by the offences. A religious purpose would include, for example, the public display of the sacred Swastika in connection with the Buddhist, Hindu and Jain religions. The sacred Swastika is an ancient symbol of peace and good fortune that holds special significance in these faith communities. The symbol was misappropriated by the Nazi regime, and the distinction between the sacred Swastika and the Nazi hakenkreuz is one which the Bill seeks to make explicit. It is not intended that the ban on the public display or trading of the Nazi hakenkreuz is to limit the use of the sacred Swastika in connection with religious observance. Accordingly, these measures promote the rights in Article 18 of the ICCPR.

New offence - makes a gesture that is the Nazi salute in a public place

56. This would promote Article 18 of the ICCPR by supporting faith communities to be able to practice their religions without fear of harm or vilification.

57. The Nazi salute represents hate, violence and intolerance towards communities, including religious groups, within Australia. In criminalising the making of the Nazi salute in a public place, the new offence would promote the rights afforded by Article 18 by preventing the Nazi salute from being performed in circumstances that would infringe upon the rights of Australians to worship, observe, practice and teach religion free from harassment, vilification and risks to personal safety.

New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol

58. These new offences would promote Article 18 of the ICCPR by supporting faith communities to be able to practice their religions without fear of harm or vilification.

59. Prohibited terrorist organisation symbols represent dangerous ideologies that may be framed around extremist and offensive interpretations of religious doctrines and have been used to justify the commission of terrorist acts and other atrocities. Such ideologies often promote persecution of other faith communities.

60. In criminalising the public display and trade of prohibited terrorist organisation symbols, the offences would protect the rights afforded by Article 18 by preventing these symbols from being disseminated in circumstances that would infringe upon the rights of Australians to worship, observe, practice and teach religion free from harassment, vilification and risks to personal safety.

61. The combined effect of new paragraphs 80.2HA(1)(d) and 80.2HA(9)(a) would be that, in order to establish the offence of publicly displaying a prohibited terrorist organisation symbol, the prosecution must prove that a reasonable person would consider that the public display was not for a religious purpose, and must prove that the display was not in the public interest.

62. The combined effect of new paragraph 80.2JA(1)(e) and new subsection 80.2JA(4) would be that, in order to establish the offence of trading goods that depict or contain a prohibited terrorist organisation symbol, the prosecution must prove that a reasonable person would not consider that the goods are intended to serve a religious purpose, and must prove that the trading is not contrary to the public interest.

63. These requirements make clear that the use of a symbol for a religious purpose would not be captured by the offences. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance. Accordingly, these measures promote the rights in Article 18 of the ICCPR.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

64. Violent extremist material - the handling and possession of which would be criminalised by the Bill - could include material, that according to a reasonable person, in all the circumstances is intended to advance a religious cause. The new offences for using a carriage service for violent extremist material, and possessing or controlling violent extremist material obtained or accessed using a carriage service, may therefore place a limitation on the right to freedom of thought, conscience and religion.

65. To be caught by the offences however, the material must also describe, depict, instruct on, support or facilitate serious violence, and a reasonable person must also consider that, in all the circumstances, the material is intended to assist, encourage or induce a person to coerce or influence by intimidation, the Government or the public, through a violent action or threat of violent action. Such material causes harm to the community by inciting violence and radicalisation. To the extent that the offences restrict the right to freedom of religion, the restriction is necessary and appropriately limited.

Right to freedom of expression in Article 19 of the ICCPR; Right to enjoy and benefit from culture in Article 27 of the ICCPR; Right to take part in cultural life in Article 15 of the ICESCR

66. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to limitation for specified purposes, including the respect for the rights or reputations of others where such limitation is provided by law and are reasonable, necessary and proportionate to a legitimate objective. The requirement of necessity implies that any restriction must be proportionate in severity and intensity to the purpose sought to be achieved.

67. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practice their own religion and use their own language.

68. Article 15 of the ICESCR protects the right of all persons to take part in cultural life and enjoy the benefits of scientific process and its applications. Article 15(1)(c) protects the moral and material interests of the author of scientific, literary or artistic productions.

New offences - public display of prohibited Nazi symbols; and trading in goods that bear a prohibited Nazi symbol

69. The public display and trading offences would limit the right to freedom of expression by limiting a person's ability to communicate or impart certain information and ideas publicly through prohibited Nazi symbols. This limitation is appropriate because these symbols represent racist and hateful ideologies which cause significant harm to members of targeted groups in the Australian community, and are used as tools of vilification and radicalisation. Criminalising the public display of Nazi symbols is therefore necessary to protect the right of members of the Australian community not to be intimidated or harassed and to prevent the incitement of others - who are susceptible to radicalisation - to hatred, discrimination and violence.

70. The exceptions and defences in the Bill play a critical role in safeguarding against undue restrictions on the right to freedom of expression. They were specifically designed to protect the right to freedom of expression in recognition of circumstances in which the public display or trade of prohibited symbols are legitimate.

71. The Government will work with the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Federal Police (AFP) to ensure that prosecutors and law enforcement are equipped with appropriate guidance on matters, including the directions powers, protections and defences that will play a critical role in ensuring these new offences are fit for purpose and do not unduly encroach upon citizens' personal rights and freedoms.

72. The offences would not apply in circumstances where the prohibited Nazi symbols are displayed or traded for a legitimate purpose that is not contrary to the public interest. This would include circumstances, for example, where a reasonable person would consider that the display or trade was done for a legitimate religious, academic, educational, artistic, literary or scientific purpose. This would ensure that the limitations on the right to freedom of expression are reasonable and proportionate.

73. The offences promote the rights of communities in Australia to engage in, and celebrate, their cultures without fear that hateful symbols will be used to disrupt the benefits and enjoyment they derive from cultural practices. The specific requirement for the prosecution to establish that a reasonable person would consider that the public display or trade was not done for a religious purpose in the public interest, also promotes Article 27 of the ICCPR and Article 15 of the ICESCR by ensuring that the sacred Swastika, which is used as a symbol of peace and prosperity in connection with Hindu, Buddhist and Jain culture, is not captured by the offences.

Makes a gesture that is the Nazi salute in a public place

74. The offence for a person to make a gesture that is the Nazi salute in a public place would limit the right to freedom of expression by limiting a person's ability to communicate or impart certain information and ideas publicly through the public performance of the Nazi salute. This limitation is appropriate because the Nazi salute represents a racist, violent and hateful ideology which causes significant harm to members of targeted groups in the Australian community, and is used as a tool of vilification and radicalisation. Criminalising the making of the Nazi salute in public is therefore necessary to protect the rights of members of the Australian community not to be intimidated or harassed and to prevent the incitement of others - who are susceptible to radicalisation - to hatred, discrimination and violence.

New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol

75. These new offences would limit the right to freedom of expression by limiting a person's ability to communicate or impart certain information and ideas publicly through prohibited terrorist organisation symbols. This limitation is appropriate because these symbols represent racist, violent and hateful ideologies which cause significant harm to members of targeted groups in the Australian community, and are used as tools of vilification and radicalisation. Criminalising the public display of prohibited terrorist organisation symbols is therefore necessary to protect the rights of members of the Australian community not to be intimidated or harassed and to prevent the incitement of others - who are susceptible to radicalisation - to hatred, discrimination and violence.

76. The offences would not apply in circumstances where a prohibited terrorist organisation symbol is displayed or traded for a legitimate purpose that is not contrary to the public interest. This would include circumstances, for example, where a reasonable person would consider that the display or trade was done for a legitimate religious, academic, educational, artistic, literary or scientific purpose. This would ensure that the limitations on the right to freedom of expression are reasonable and proportionate.

The offences promote the rights of communities in Australia to engage in, and celebrate, their cultures without fear that hateful symbols will be used to disrupt the benefits and enjoyment they derive from cultural practices. The specific requirement for the prosecution to establish that a reasonable person would consider that the public display or trade was not done for a religious purpose in the public interest, also promotes Article 27 of the ICCPR and Article 15 of the ICESCR by ensuring that the use of sacred symbols in connection with religious culture, are not captured by the offences.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

77. The offences for using a carriage service for violent extremist material, and possessing or controlling violent extremist material obtained or accessed using a carriage service, would engage the right to freedom of expression (Article 19 of the ICCPR) as they would restrict a person's ability to use a carriage service to seek, receive and impart violent extremist material. The measures, however, are necessary and reasonable to achieve the legitimate objective of preventing the use of extremist material to encourage and instruct individuals in the commission of violent acts, and radicalise vulnerable individuals to violent extremist ideologies.

78. The offences would include express defences at section 474.45D, to ensure the offences do not apply in certain circumstances, including where the conduct is necessary to enforce or investigate compliance with a law; the material relates to a news or current affairs report that is in the public interest and is made by a professional journalist; the conduct advocates changes to laws and is reasonable in the circumstances; and where the conduct relates to an artistic work developed in good faith. These defences would ensure that the limitations which the offences place on the right to freedom of expression are proportionate.

79. The defendant would bear the evidential burden in relation to these defences. In accordance with section 4.3 of the Guide, this is reasonable and appropriate as the information required to prove the existence of one of the prescribed defences would be peculiarly within the knowledge of the defendant, and not necessarily available to the prosecution.

80. The offences would also support the right to enjoy and benefit from culture (Article 19 of the ICCPR), and the right to take part in cultural life (Article 15 of the ICESCR) including the rights of ethnic, religious and linguistic minorities to enjoy their own culture, practice their religion and use their language. This is because the offences would address discrimination on the basis of race, religion or national or ethnic origin. Violent extremist material often advocates hatred and incites discrimination, including on national, racial or religious grounds, such as that a particular race is superior. Such material may cause minorities to be afraid or uncomfortable engaging freely in cultural practices. Restricting people's ability to access and share material of this nature supports the rights of individuals to enjoy and celebrate their culture without fear.

Expanded offence - advocating terrorism

81. The amendments to subsection 80.2C(3) of the Criminal Code would introduce two new limbs to the definition of 'advocates' for the purposes of the advocating terrorism offence in section 80.2C. These amendments would make it an offence for a person to provide instruction on the doing of a terrorist act or commission of a terrorism offence; or praise the doing of a terrorist act or commission of a terrorism offence where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence.

82. The inclusion of praising the doing of a terrorist act or commission of a terrorism offence engages Article 19(2) of the ICCPR by restricting a person's freedom to express support or admiration for certain types of conduct. Criminalising the praising of the doing of a terrorist act or the commission of a terrorism offence in the circumstances set out in new paragraph 80.2C(3)(c), however, serves the legitimate objective of preventing the commission of terrorist acts or offences, which can have extremely grave consequences including causing deaths, and promotes other rights (in accordance with Article 19(3)). Law enforcement and intelligence agencies have also advised that it is necessary to address increasing concerns about the glorification of terrorism online and its impacts on radicalising Australians, particularly youth, to violence.

83. Importantly, the right to freedom of expression is limited proportionately as the Bill would only criminalise praising the doing of a terrorist act or commission of a terrorism offence where the praising has occurred in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence. Where there is no such substantial risk, the praising of terrorist acts and offences would not be caught by the offence.

Removing the sunsetting period for terrorist organisation regulations

84. To be listed as a terrorist organisation, the AFP Minister must be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or advocates the doing of a terrorist act. The advocacy limb of this test engages the right to freedom of expression by allowing the AFP Minister to list groups on the basis of their expression of praise or encouragement in relation to a terrorist act.

85. The removal of sunsetting requirements from listings regulations has the effect of making terrorist organisation listings operate until proactively de-listed by the AFP Minister. The objective of this measure is for the terrorist organisations listings framework to accurately reflect the current threat landscape and enduring nature of terrorist organisations. Importantly, the measure also signals to communities the severity of the conduct of terrorist organisations, including engaging in and advocating violence.

86. Terrorist organisations display violent ideologies that often seek to constrain the freedom of expression of other groups. By restricting the ability of terrorist organisations to operate and advocate for violence, this measure positively engages the right to freedom of expression in specific circumstances.

87. Where this measure restricts the right to freedom of expression, that restriction is justified on the basis that advocating for terrorism and violence, or inciting others to commit a terrorist act, could jeopardise the security of Australia and the personal safety of Australians, as well as people overseas. The limitation is reasonable and appropriate, given the robust safeguards in place for listing an organisation, including review by Parliamentary Committee, and the ability for anyone to make an application to the AFP Minister for de-listing, with a duty on the AFP Minister to consider that application and de-list the organisation if no longer satisfied they meet the legislative threshold. The potential for harm likely to result from advocacy of a terrorist act is significant, and restrictions on the ability of an organisation to undertake such conduct are necessary to preserve human life and promote the safety of Australians.

88. The proportionality of this measure is supported by the Minister's obligation to de-list a terrorist organisation by declaration if they cease to be satisfied that the organisation meets the thresholds for listing. The Bill introduces a new requirement for these declarations to specify the date on which the Minister ceased to be satisfied, with the effect that the de-listing takes effect from this date. Consequently, this mechanism reduces the risk that a person is convicted of a terrorism offence in relation to their association with a listed organisation, in circumstances where the conditions justifying proscription no longer exist at the time of the offences.

Right to freedom of association in Article 22 of the ICCPR

89. Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right is not absolute and may be limited for certain purposes, including national security, public safety, and the protection of the rights and freedoms of others.

Removing the sunsetting period for terrorist organisation regulations

90. Membership of a terrorist organisation is a criminal offence. Consequently, listing an organisation as a terrorist organisation limits the right to freedom of association in order to prevent people engaging with and participating in terrorist organisations.

91. This Bill removes sunsetting requirements from listings regulations in order to make terrorist organisation listings operate until proactively de-listed by the AFP Minister. The objective of these amendments is to ensure the terrorist listings provisions are aligned with the serious and ongoing nature of the conduct of terrorist organisations in the current threat environment.

92. Terrorist organisations commit serious and violent offences, with considerable potential to cause harm, loss of life, and damage Australian interests. Restricting the freedom to associate with these groups is an important and effective element in deterring terrorist organisation membership, and enabling the prosecution of those who seek to support terrorism. The measure does not impinge on the freedom to associate with any person or group other than terrorist organisations.

93. The proportionality of this measure is supported by the retention and bolstering of safeguards. The offence does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practising a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian, legal advice or legal representation.

94. The measure also introduces a requirement for de-listing declarations to specify the date on which the Minister ceased to be satisfied that the organisation was a terrorist organisation, with the effect that the de-listing takes effect from this date. This safeguard mitigates the risk that a person is convicted of a terrorism offence in relation to their association with a listed organisation, in circumstances where the conditions justifying proscription no longer exist at the time of the offences.

Protection against exploitation, violence and abuse in Article 20 of the ICCPR; Right to equality before the law in Article 26 of the ICCPR; Condemnation of propaganda and organisations that attempt to justify discrimination or are based on racial supremacism in Article 4 of the ICERD.

95. Article 20 of the ICCPR requires States Parties to outlaw any propaganda for war, as well as advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. At the time of ratification Australia entered a reservation to Article 20, stating that the Commonwealth and the States had legislated with respect to the subject matter of Article 20, in matters of practical concern in the interest of public order, and that it therefore wished to reserve the right not to introduce further legislation on these matters. The proposed legislation would further support compliance with Article 20 of the ICCPR by prohibiting in law particular forms of advocacy of national, racial or religious hatred. The Human Rights Committee has affirmed (and Australia has agreed) that the prohibitions required by Article 20 of the ICCPR are compatible with the right of freedom of expression, enshrined in Article 19 of the ICCPR.

96. The right to equality before the law in Article 26 of the ICCPR provides that the law should prohibit any discrimination, and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

97. Article 4 of the ICERD requires States to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, racial discrimination. Article 4(a) provides for the criminalisation of all dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups. Australia's reservation to Article 4(a) was made on the basis that it was not in a position to specifically treat as offences all the matters covered by the article at the time of ratification. These measures in the Bill promote the intent of the ICERD, as set out in the preamble, to eliminate all forms of racial discrimination and incitement to discrimination, and elucidated in Article 4.

New offences - public display of prohibited Nazi symbols or prohibited terrorist organisation symbols; makes a gesture that is the Nazi salute in a public place; and trading in goods that bear a prohibited Nazi symbol or prohibited terrorist organisation symbol

98. The Bill would promote the rights in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by preventing members of the community from experiencing discrimination, hatred, violence and racism through the public display or trade of Nazi and terrorist organisation symbols which inherently represent discriminatory and hateful ideologies.

99. The offences in new 80.2H and 80.2HA positively engage Articles 20 and 26 of the ICCPR, and Article 4 of the ICERD by providing that, for the offence to be made out, one of subsections 80.2H(3), (4) or (7) or 80.2HA(3), (4) or (7) must apply.

•

Subsections 80.2H(3) and 80.2HA(3) would apply if a reasonable person considers the public display or the making of the Nazi salute in a public place involves the dissemination of ideas based on racial superiority or racial hatred; or could incite another person or a group of persons to offence, insult or humiliate a person or members of a group of persons because of race. This subsection directly promotes Article 4 of the ICERD by establishing an element of the offence based on protecting the rights articulated in this Article.

•

Subsections 80.2H(4) and 80.2HA(4) would apply if a reasonable person considers the public display or the making of the Nazi salute in a public place involves advocacy that is advocacy of hatred of a group of persons distinguished by race, religion or nationality or a member of the targeted group and constitutes incitement of another person or groups of persons to offend, insult, humiliate, intimidate or use force or violence against the group or a member of the targeted group. This subsection directly promotes Article 20 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in this Article.

•

Subsections 80.2H(7) and 80.2HA(7) would apply if the public display or the making of the Nazi salute in a public place is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. This subsection directly promotes Article 26 of the ICCPR by establishing an element of the offence based on protecting the rights articulated in the Article. While the ICCPR does not specifically refer to sexual orientation, the UNHRC has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.^[1] The UNHRC has also placed emphasis on the need to protect transgender communities from violence, torture and harassment.^[2] Therefore it is intended that paragraph 80.2H(7)(b) and 80.2HA(7)(b) would also protect persons distinguished by sexual orientation or gender identity.

100. The Bill would further promote the rights articulated in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by empowering law enforcement to disrupt the use of prohibited symbols to perpetuate extremist ideologies. The Bill would empower law enforcement agencies to issue a direction to a person to remove a prohibited symbol from public display, and establish an offence for failing to comply with such a direction.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

101. The offences promote the rights in Articles 20 and 26 of the ICCPR and Article 4 of the ICERD by preventing members of the community from experiencing discrimination, hatred, violence and racism, through exposure to violent extremist material.

102. Violent extremist material often encourages or incites a person to coerce or influence others through violence or threats of violence, and this is often based on national, racial or religious grounds. Criminalising the use of a carriage service to deal with such material would support these rights by making it more difficult for such ideas to be developed, circulated and gain additional support. It would also send a message that such material is unacceptable, and that all Australians have a right to live free from discrimination, fear and hatred.

Right to education in Article 13 of the ICESCR

103. Article 13 of the ICESCR recognises the right of everyone to education. It recognises education's importance in promoting understanding, tolerance and friendship among all racial, ethnic or religious groups.

New offences - public display of prohibited Nazi symbols; and trading in goods that bear a prohibited Nazi symbol

104. These measures support the right to education by requiring the prosecution to prove that a reasonable person would consider that the public display of a prohibited Nazi symbol was not done for an educational or academic purpose in the public interest, and that the trading of goods bearing such a symbol was not done in circumstances in which a reasonable person would consider that goods traded are intended to serve an educational or academic purpose and the trading is not contrary to the public interest.

105. These requirements acknowledge that Nazi symbols are associated with significant societal and historical events, the study of which is important for social advancement. It is important, for example, that Nazi symbology can be displayed in museums or in textbooks so World War II and Holocaust histories are not forgotten or repeated.

New offence - Makes a gesture that is the Nazi salute in a public place

106. These measures support the right to education by requiring the prosecution to prove that a reasonable person would consider that making of the Nazi salute in a public place was not done for an educational or academic purpose in the public interest.

107. This requirement acknowledges that the Nazi salute is associated with significant societal and historical events, the study of which is important for social advancement. It is important, for example, that the gesture could be made publicly for the legitimate purpose of educating students about World War II and Holocaust histories, so they are not forgotten or repeated.

New offences - public display of a prohibited terrorist organisation symbol; and trading in goods that depict or contain a prohibited terrorist organisation symbol

108. These measures engage the right to education by requiring the prosecution to prove that a reasonable person would consider that the public display of a prohibited terrorist organisation symbol was not done for an educational or academic purpose in the public interest, and that the trading of goods bearing such a symbol was not done in circumstances in which a reasonable person would consider that goods traded are intended to serve an educational or academic purpose and the trading is not contrary to the public interest.

109. These requirements acknowledge that prohibited terrorist organisation symbols can be associated with significant societal and historical events, the study of which is important for social advancement. It is important, for example, that certain symbology can be displayed in museums or in textbooks so traumatic histories are not forgotten or repeated. Therefore, the right to education is promoted.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

110. These measures support the right to education by providing, by way of defences, that the use of a carriage service for violent extremist material is not an offence where it is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and the conduct is reasonable in the circumstances.

111. Research plays a critical role in increasing our collective understanding of the complex motivations and impacts of individuals creating and disseminating violent extremist material which is key to disrupting, and protecting the community from, their harmful activities.

Commitment to promote the establishment of measures for dealing with such children without resorting to judicial proceedings in Article 40(3)(b) of the CRC

112. The Convention on the Rights of the Child provides that where appropriate and desirable, and in a manner that respects human rights, States should deal with children accused of a crime without resorting to judicial proceedings, such as by way of diversionary programs. It is an unfortunate reality that children have been involved in terrorism incidents and convicted of terrorism offences in Australia. This Bill engages this right by subjecting children, above the age of criminal responsibility, to judicial proceedings. Any limitation of this right is however reasonable and proportionate to achieve the legitimate purpose of protecting Australia's national security interests.

New offences - public display of prohibited symbols; and trading in goods that bear a prohibited symbol

113. Publicly displaying and trading in goods that bear prohibited symbols causes significant harm to many Australians. These prohibited symbols - the Nazi hakenkreuz (or hooked cross) and the Nazi double sig rune (the Schutzstaffel insignia or 'SS bolts') and terrorist organisation symbols - are widely recognised as representing and conveying ideologies of hatred, violence and racism which are incompatible with Australia's multicultural and democratic society. Extremists also use these symbols to recruit and radicalise vulnerable Australians to violence.

114. Given the significant harm engendered by the public display or trade of these symbols, it is appropriate that criminal liability apply if the prosecution establishes that any person has engaged in the relevant conduct set out at section 80.2H.

115. The AFP (including its partner agencies within the Joint Counter Terrorism Teams) and the CDPP have discretion about whether to progress a matter for investigation and prosecution respectively. The AFP works collaboratively with state, territory and Commonwealth partners in considering the most appropriate support services available for children. Investigative decisions may also involve engagement with children and their parents or guardians to deter them from committing further offences or prevent further radicalisation, rather than progressing charges. This has the potential to curb further offending and issuing a caution may induce a more positive outcome for the young person than treating them as an alleged criminal. These safeguards will minimise the risk of inappropriate charging and prosecution of minors in relation to the new offences.

116. The Attorney-General's consent is not required prior to commencing proceedings against a child defendant for the public display and trading offences because these are lower level offences. Where young people are involved in offending, the AFP with their partners will consider diversionary approaches where appropriate. The AFP works collaboratively with state, territory and Commonwealth partners in considering the most appropriate wrap-around support services available for young people.

New offences - using a carriage service for violent extremist material; and possessing or controlling violent extremist material obtained or accessed using a carriage service

117. The violent extremist material offences limit the rights of the child by subjecting children to judicial proceedings. This limitation is necessary and reasonable to achieve the legitimate objective of preventing the use of extremist material to encourage and instruct individuals in the commission of violent acts, and radicalise vulnerable individuals (including children) to violent extremist ideologies.

118. By attaching criminality to the nature of material possessed, the offences reflect the harm that is inherent in violent extremist material. Violent extremist material is harmful because it facilitates radicalisation, and may encourage and assist in planning violent acts. Without these offences, law enforcement is limited in its ability to prosecute people for dealing with violent extremist material. These offences would facilitate law enforcement intervention at an earlier stage in an individuals' progress to violent radicalisation - including where the individual involved is a minor - and provide greater opportunities for rehabilitation and disruption of violent extremist networks.

119. The Bill includes a safeguard that the Attorney-General must consent to the prosecution of a person under the age of 18 for a violent extremist material offence. This provides an opportunity for the Attorney-General to consider the appropriateness of the proposed prosecution in all the circumstances of the case, including the context of the conduct, the particular circumstances of the child, and the need to protect the broader community from the impacts of violent extremist material.

120. Where children are involved in offending, the AFP with their partners will consider diversionary approaches where appropriate. The AFP works collaboratively with state, territory and Commonwealth partners in considering the most appropriate wrap-around support services available for children. Investigative decisions may also involve engagement with children and their parents or guardians to deter them from committing further offences or prevent further radicalisation, rather than progressing charges. This has the potential to curb further offending, and issuing a caution may induce a more positive outcome for the young person rather than treating them as an alleged criminal.

121. These safeguards will minimise the risk of inappropriate charging and prosecution of minors in relation to the new offences

Conclusion

122. The Bill promotes a number of human rights. To the extent that it limits other rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate aim.

Notes on Clauses

Preliminary

Item 1 - Short title

1. This clause provides that the short title for the Act, if enacted, would be the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023.

Item 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, if enacted, as set out in the table at subclause 2(1). Subclause 2(2) provides that information in column 3 of the table is not part of the Act.

3. Item 1 in the table provides that sections 1 to 3 of the Bill (the short title, commencement and schedules provisions), as well as anything in the Bill not elsewhere covered by the table, would commence on the day on which the Bill receives Royal Assent.

4. Item 2 in the table provides that Schedule 1 of the Bill, which concerns establishing new criminal offences for publicly displaying prohibited symbols and trading in goods that bear prohibited symbols, and Schedule 2 of the Bill, which concerns establishing new criminal offences for using a carriage service for violent extremist material and possessing or controlling violent extremist material obtained or accessed using a carriage service, would commence on the 28th day after the Bill receives Royal Assent.

5. Item 3 in the tables provides that Item 1 to Schedule 3 of the Bill, which concerns increasing the maximum penalty for the offence of advocating terrorism in section 80.2C of the Criminal Code Act 1995 (Criminal Code) from 5 to 7 years imprisonment, would commence on the day after the Bill receives Royal Assent.

6. Item 4 in the table provides that Item 2 to Schedule 3 of the Bill, which concerns expanding the offence of advocating terrorism in section 80.2C of the Criminal Code to include instructing on the doing of a terrorist act and praising the doing of a terrorist act in specified circumstances, would commence on the 28th day after the Bill receives Royal Assent.

7. Item 5 in the table provides that Schedule 4 of the Bill, which concerns removing the sunsetting of instruments which list terrorist organisations, will commence by Proclamation to allow sufficient time for the Commonwealth to consult the states and territories on the amendments that item 18 in Schedule 4 would make to Part 5.3 of the Criminal Code. If no Proclamation is made for the commencement of the Schedule within the period of 6 months beginning on the day this Act received the Royal Assent, the Schedule would not commence at all.

8. Item 6 in the table provides that Schedule 5 of the Bill, which concerns consequential definitional amendments, would commence on the day after the Bill receives Royal Assent.

Item 3 - Schedules

9. This clause provides that legislation specified in a Schedule to the Bill would be amended as set out in the applicable items in the relevant Schedule. Any other item in a Schedule to the Bill would have effect according to its terms.

10. The note accompanying this item would clarify that the provision of the Legislation (Exemptions and Other Matters) Regulation 2015 amended by this Bill (Item 5 to Schedule 4) may be later amended or repealed.

Schedule 1 - Prohibited symbols and Nazi salute

Crimes Act 1914

Item 1 - paragraph 4J(7)(b)

11. The effect of this item would be that offences against new Subdivision CA of Division 80 of the Criminal Code can be tried summarily, rather than on indictment. This would be achieved by amending paragraph 4J(7)(b) of the Crimes Act 1914 (Crimes Act) to distinguish offences against new Subdivision CA from other offences in Division 80, which cannot be dealt with summarily. This amendment would recognise that the offences in new sections 80.2H and 80.2J would be lower level offences than the other offences in Division 80 and therefore, in appropriate circumstances, should be able to be dealt with summarily.

Item 2 - paragraphs 15AA(2)(c) and (d)

12. This item would amend paragraphs 15AA(2)(c) and (d) of the Crimes Act, with the effect that a person who commits an offence under new sections 80.2H (public display of prohibited symbols), 80.2J (trading in goods bearing prohibited symbols) or 80.2M (failing to comply with a direction to cease the display of prohibited symbols in public) would not be subject to the presumption against bail. This presumption would otherwise apply to a person who is alleged to have committed an offence against Division 80 of the Criminal Code, if the circumstances in subparagraphs 15AA(2)(c)(i) or (ii) exist.

13. The amendments to paragraphs 15AA(2)(c) and (d) would recognise that conduct that would constitute a physical element of the offences against sections 80.2H, 80.2J and 80.2M would not, or would be unlikely to, cause the death or have a substantial risk of causing the death of a person.

Item 3 - paragraph 19AG(1)(c)

14. Under subsection 19AG(1) of the Crimes Act, when a person is convicted of an offence against Division 80 of the Criminal Code, the court must fix a single non-parole period of at least three-quarters of the sentence for the minimum non-parole offence; or if two or more sentences have been imposed on the person for minimum non-parole offences, the aggregate of those sentences. This item would amend paragraph 19AG(1)(c) to provide that these minimum non-parole periods do not apply to the offences in new Subdivision CA of Division 80 of the Criminal Code. The purpose of this amendment would be to ensure the court has discretion with regard to whether, and for how long, a non-parole period is to be imposed on a person alleged to have offended against new Subdivision CA, noting the offences in this new Subdivision CA would be lower level offences than the other offences in Division 80.

Criminal Code Act 1995

Item 4 - Division 80 of the Criminal Code (heading)

15. This item would amend the heading of Division 80 by removing the words 'and advocating terrorism and genocide' and substituting them with 'advocating terrorism or genocide and prohibited symbols and Nazi salute'. The inclusion of prohibited symbols and Nazi salute in the heading of Division 80 would signal that this Division contains the new measures set out in this Schedule regarding prohibited symbols and the making of a gesture that is a Nazi salute.

Item 5 - After Subdivision C of Division 80 of the Criminal Code

16. This item would insert new Subdivision CA (Publicly displaying, and trading in, prohibited symbols and giving Nazi salute) into Division 80 of the Criminal Code. This subdivision would contain: new offences for the public display of, and trading in, prohibited symbols and new measures regarding the making of a gesture that is the Nazi salute; provisions that would empower police to direct a person to remove a prohibited symbol from public display; and a new offence for failing to comply with such a direction.

17. The purpose of the measures in new Subdivision CA would be to address the significant harm that is caused to the Australian community by the public display and trade of the Nazi hakenkreuz, the Nazi double sig rune and terrorist organisation symbols, and the making of a gesture that is the Nazi salute in a public place. These symbols and gesture represent ideologies of hate, intimidation and racism that are incompatible with Australia's multicultural and democratic society, and are used as tools of vilification and radicalisation. The measures in this subdivision are intended to reduce the prevalence of these symbols and the Nazi salute in public spaces and commercial profiting from goods that bear these symbols.

18. The Australian Security Intelligence Organisation (ASIO) has advised that Nationalist and Racist Violent Extremists (NRVE), including neo-Nazis and other members of terrorist organisations, adopt specific imagery and terminology to indicate and perpetuate their ideology. Symbology is also a powerful tool to build in-group belonging which is critical to NRVE movements, and to intimidate or threaten ideological opponents. NRVE and Religiously Motivated Violent Extremist (RMVE) individuals and groups have utilised these respective symbols and gesture, to convey complex ideologies that transcend language, cultural and ethnic divides. The Nazi hakenkreuz, Nazi double sig rune, terrorist organisation symbols and Nazi salute have been effective tools to recruit and radicalise due to the significance of their associations with these violent ideologies.

19. The new offences contained in this Subdivision are not intended to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently, as per the operation of section 80.6 of the Criminal Code. This approach would be consistent with the approach taken in other areas of criminal law, such as terrorism, fraud, computer crime, money laundering, drug offences and sexual servitude. It is intended that the offences would be investigated in accordance with the established division of responsibility between Commonwealth, State and Territory law enforcement agencies.

Section 80.2E Meaning of prohibited symbol

20. New subsection 80.2E(1) would provide that a prohibited symbol is:

•

a prohibited Nazi symbol (paragraph 80.2E(1)(a)), or

•

a prohibited terrorist organisation symbol (paragraph 80.2E(1)(b)).

21. A prohibited Nazi symbol and a prohibited terrorist organisation symbol are defined in new subsections 80.2E(2) and 80.2E(3).

22. New subsection 80.2E(2) would provide that a prohibited Nazi symbol is:

•

the Nazi hakenkreuz (paragraph 80.2E(2)(a)), or

•

the Nazi double-sig rune (paragraph 80.2E(2)(b)), or

•

something that so nearly resembles a Nazi hakenkreuz or the Nazi double-sig rune that it is likely to be confused with, or mistaken for, that thing (paragraph 80.2E(2)(c)).

23. As a purpose of the offences in this subdivision is to prevent the advocacy of hatred and incitement of violence, it is important that the prohibited symbols can be readily identified by ordinary members of the Australian public as being associated with abhorrent ideologies. The Nazi hakenkreuz and the Nazi double sig rune have been selected as they are the most widely recognised Nazi symbols, and therefore are the most impactful in their ability to disseminate hateful views and vilify.

Nazi hakenkreuz

24. The Nazi hakenkreuz has been listed as a prohibited symbol in recognition of its continued use by violent extremist groups to harm members of the Australian community, and by those seeking to radicalise others and exploit opportunities to mobilise impressionable Australians to violence.

25. Paragraph 80.2E(a) would refer to the symbol as the Nazi hakenkreuz and not the Swastika to acknowledge the immense significance of the sacred Swastika as an ancient and auspicious symbol of purity, love, peace and good fortune in Buddhist, Hindu, Jain and other religions. These religions used the Swastika as a symbol of their faith for hundreds of years before it was misappropriated by the Third Reich, and the choice in language is deliberate to ensure the use of the symbol in the context of these religions is protected. The symbol continues to be embraced by members of these religions and can be found in places of worship, architecture, books, and in public and private spaces.

26. The Nazi hakenkreuz was adopted by the Third Reich, and became the primary symbol of the Nazi party who committed heinous crimes against humanity. The Nazi hakenkreuz is symbolic of Nazi ideology which promoted the persecution and systematic murder of millions of Jews, people living with disability, people of colour, LGBTIQA+^[3] people and other groups. The Nazi hakenkreuz is representative of ideas that are fundamentally incompatible with Australia's multicultural, democratic and inclusive society.

Nazi double-sig rune

27. The Nazi double-sig rune is a stylised depiction of two lightning-bolt-like symbols with flat ends positioned side-by-side. The Nazi double-sig rune is derived from the 'Schutzstaffel', a Nazi paramilitary organisation that was responsible for atrocities leading up to and during World War II.

28. While Nazi symbols have been continuously used by right-wing groups since World War II, there has been a resurgence in the prevalence and use of these symbols. The Nazi double-sig rune has been co-opted by white supremacists and neo-Nazis to offend, harass and vilify members of the Australian community, as well as to recruit and radicalise people to follow and adhere to abhorrent Nazi ideologies.

Things that are likely to be confused with, or mistaken for, a prohibited Nazi symbol

29. New paragraph 80.2E(c) would have the effect that any symbol that so nearly resembles the Nazi hakenkreuz or the Nazi double-sig rune, that it is likely to be confused with, or mistaken for one of these symbols, is taken to be a prohibited Nazi symbol. This could include any figure, drawing, symbol, pattern or design substantially similar to the Nazi hakenkreuz or the Nazi double-sig rune and capable of being reasonably recognised as derived from, or a modified version of, one of those symbols. For example, an image that is substantially similar to the Nazi hakenkreuz but with the lines skewed at slightly different angles is likely to be mistaken for a Nazi hakenkreuz.

30. Paragraph 80.2E(c) is intended to recognise that there may be some variations in the ways in which the Nazi hakenkreuz or the Nazi double-sig rune are depicted. The legislation is not intended to be so prescriptive in defining these symbols as to exclude these variations from being captured by the provisions, where they would be recognised by the public as being the Nazi hakenkreuz or the Nazi double-sig rune, and engender public harm accordingly. This includes circumstances in which an individual could seek to avoid criminal liability under new Subdivision CA by slightly altering a Nazi hakenkreuz or Nazi double-sig rune before engaging in otherwise prohibited conduct.

Prohibited terrorist organisation symbol

31. New subsection 80.2E(3) would provide that a prohibited terrorist organisation symbol is:

•

a symbol that a terrorist organisation (within the meaning of Division 102 of the Criminal Code) uses, or members of a terrorist organisation use, to identify the organisation (paragraph 80.2E(3)(a)), or

•

something that so nearly resembles a symbol that a terrorist organisation uses, or members of a terrorist organisation use, to identify the organisation, that it is likely to be confused with, or mistaken for, that symbol (paragraph 80.2E(3)(b)).

32. Paragraph 80.2E(3)(a)) provides that for the purpose of the definition of prohibited terrorist organisation symbol, 'terrorist organisation' has the meaning given to that term in Division 102 of the Criminal Code. This includes listed terrorist organisations and organisations which are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act. This definition ensures that only symbols of organisations that are engaged in serious criminal conduct would be captured by the offences.

33. It is intended that the term 'symbol' be interpreted as a visual representation, for example, an image, emblem or icon.

34. Paragraph 80.2E(3)(a)) is intended to capture symbols that a terrorist organisation, or its members, use to identify the organisation. It is intended to capture symbols that are inextricably linked with a terrorist organisation and are harmful because of their association with a terrorist organisation and the violent, hateful and discriminatory ideologies and activities that the organisation represents, espouses and engages in. The symbol may be used to identify a terrorist organisation by the organisation itself or by its members, in a range of media, contexts and formats including but not limited to promotional or recruitment material, telecommunication exchanges between members, public statements or propaganda.

35. The legislation does not specify particular terrorist organisation symbols, or particular terrorist organisations, for the purpose of the definition in subsection 80.2E(3). This is to ensure that the measures can respond to Australia's complex, challenging and changing threat environment by targeting terrorist organisation symbols, and the organisations they represent, as they arise and change over time. Safeguarding against terrorist organisations adopting new symbols in an attempt to avoid criminality is a key objective, as is ensuring that the symbols used by any new terrorist organisation that emerges in the future will be covered by these measures.

36. Paragraph 80.2E(3)(b) is intended to recognise that there may be some variations in the ways in which prohibited terrorist organisation symbols are depicted. The legislation is not intended to be so prescriptive in defining these symbols as to exclude variations from being captured by the provisions, where they would be recognised by the public as being prohibited terrorist organisation symbols, and engender public harm accordingly. This could include any figure, drawing, symbol, pattern or design substantially similar to a prohibited terrorist organisation symbol and capable of being reasonably recognised as a modified version of one of those symbols. This includes circumstances in which an individual could seek to avoid criminal liability under new Subdivision CA by slightly altering a prohibited terrorist organisation symbol before engaging in otherwise prohibited conduct.

Section 80.2F - Meaning of displayed in a public place

37. New subsection 80.2F(1) would define the term 'displayed in a public place', a term used in the new offence of public display of prohibited symbols (section 80.2H).

38. Public display is intended to capture display capable of being seen by a member of the public, including online. The intention of the offence would be to criminalise the display of prohibited symbols in circumstances where their display could cause harm to the Australian community or be used to recruit or radicalise vulnerable Australians. The risk of these harms exists where prohibited symbols are displayed in public places.

39. Subsection 80.2F(1) provides that a thing is considered to be displayed in a public place if it is capable of being seen by a member of the public who is in a public place. The term 'capable of being seen', as used in subsection 80.2F(1), is not intended to be interpreted by reference to the physical capacity of any particular individual to see the thing, or the intention of the individual causing the thing to be publicly displayed. It is an objective concept that conveys that there is a possibility of the thing being seen by any person at any time. Subsection 80.2F(1) also provides that a thing is capable of being seen regardless of whether or not it is actually seen by a person.

40. The definition of 'public place' would be inserted into the Criminal Code Dictionary by Item 7. The term public place would include any place to which the public, or a section of the public, have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

41. New subsection 80.2F(2) would provide that a thing is also publicly displayed if the thing is included in a document, film, video or television program that is available, or distributed, to the public or the section of the public. This provision is intended to provide an alternative definition of 'publicly displayed' to that in subsection 80.2F(1), in recognition that public display can take a variety of different forms, and occur in a variety of different ways.

42. A non-exhaustive list of examples of public display that are intended to be captured by subsection 80.2F(2) follows:

•

a sticker showing a Nazi hakenkreuz on a motor vehicle that is being driven on a public road

•

a terrorist organisation symbol depicted on a flag hung in the window of a house that is visible from the street

•

a newsletter on right-wing extremist ideology that contains prohibited symbols and is circulated to subscribers by post

•

a poster featuring a Nazi hakenkreuz that is displayed outside a university library

•

a Nazi double sig rune symbol on a hat worn as part of a party costume in a public place, or

•

a video containing a terrorist organisation symbol that is available for download from the internet.

43. New subsection 80.2F(3) would provide that a thing is also considered to be publicly displayed if the thing is included in a document that is available, or distributed, to the public or a section of the public by means of connection with 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. Subsection 80.2F(3) includes an example to clarify that if a thing is included in a document that is publicly available on a website, then the thing is displayed in a public place under this subsection. The inclusion of 'document' here is intended to operate broadly, consistent with the definition in section 2B of the Acts Interpretation Act 1901.

44. Subsection 80.2F(3) is not intended to cover circumstances in which a thing is included in a document that is not available, or distributed, to the public or a section of the public by means of connection with a telegraphic, telephonic or other like service.

45. New subsection 80.2F(4) provides further definitional clarity for the purposes of section 80.2F by providing that the terms 'available' and 'distributed', as used in the section, include 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.

Section 80.2FA - Meaning of makes a gesture in a public place

46. New section 80.2FA would define 'makes a gesture in a public place' for the purpose of this new subdivision.

47. New section 80.2FA would provide that a person makes a gesture in a public place if:

•

the person makes a gesture (paragraph 80.2FA(a)), and

•

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) (paragraph 80.2FA(b)).

48. The phrase 'makes a gesture' is intended to take its ordinary meaning. It includes a movement of a part of the body to express an idea or meaning.

49. 'Public place' includes any place to which the public, or a section of the public, have access as of right or by invitation, whether express or implied, and whether or not a charge is made for admission to the place. This definition would be included in the Criminal Code dictionary (see item 7 of the Bill, as originally introduced).

50. The term 'capable of being seen', as used in paragraph 80.2FA(b), is not intended to be interpreted by reference to the physical capacity of any particular individual to see the gesture, or the intention of the individual making the gesture. It is an objective concept that conveys that there is a possibility of the gesture being seen by any person at any time.

Section 80.2G - Meaning of trades

51. New section 80.2G would define 'trades' for the purpose of new Subdivision CA. Trade is a key concept for the purposes of the offence in new section 80.2J, which criminalises trading in goods bearing prohibited symbols.

52. New subsection 80.2G(1) provides that the following activities constitute trade in goods:

•

selling goods (paragraph 80.2G(1)(a))

•

preparing goods for supply with the intention of selling them or believing that another person intends to sell them (paragraph 80.2G(1)(b))

•

transporting goods with the intention of selling them or believing that another person intends to sell them (paragraph 80.2G(1)(c))

•

guarding or concealing goods with the intention of selling them or assisting another person to sell them (paragraph 80.2G(1)(d))

•

possessing the goods with the intention of selling them (paragraph 80.2G(1)(e)).

53. New subsection 80.2G(2) would clarify that preparing goods for supply includes packaging the goods or separating the goods into discrete units for both for the purpose of the new offence for trading in goods depicting or containing a prohibited Nazi symbol (section 80.2J), and also for the purpose of the new offence for trading in goods depicting or containing a prohibited terrorist organisation symbol (section 80.2JA). It is intended to convey that the person must have had proactive and specific involvement in the process of preparing goods for supply in order to have engaged in the activity which, under paragraph 80.2G(1)(b), would constitute trading for the purpose of the offences in new sections 80.2J and 80.2JA.

54. New subsection 80.2G(3) would clarify that the new offence for trading in goods depicting or containing a prohibited Nazi symbol (section 80.2J) and the new offence for trading in goods depicting or containing a prohibited terrorist organisation symbol (section 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.

55. The definition of 'trades' would provide comprehensive coverage not only of selling goods, or leasing or renting them out (noting subsection 80.2G(3)), but preparatory and ancillary conduct that could lead to commercial profiting from the sale, leasing or renting out of goods depicting or containing a prohibited symbol. The definition recognises that commercial profiting is the result of a series of activities, and the offences in new sections 80.2J and 80.2JA are intended to capture a range of conduct relating to selling, leasing or renting goods bearing prohibited symbols.

56. The definition of trades intentionally excludes purchasing or paying to rent or loan goods. These activities are not intended to be captured by the offences in section 80.2J and 80.2JA.

57. The term 'goods' is not defined and should take its ordinary meaning. The term 'goods' is intended to capture tangible models of prohibited symbols themselves, and also items depicting or containing a prohibited symbol which is capable of being traded. For example, a flag depicting the hakenkreuz would be a 'good', as would a piece of clothing depicting the hakenkreuz .

58. New subsection 80.2G(4) would define other key terms for the purposes of section 80.2G and the offences in sections 80.2J and 80.2JA.

59. Subsection 80.2G(4) would provide that concealing goods includes concealing or disguising the nature, source or location of the goods, any movement of the goods, the rights of any person with respect to the goods, or the identity of any owner of the goods.

60. New subsection 80.2G(4) would provide that possessing goods includes receiving or obtaining possession of the goods, having control over the disposition of the goods (whether or not the goods are in the custody of the person), or having joint possession of the goods. This clarifies that for the purposes of Subdivision CA, a person can possess goods without having ownership of them, having goods in their physical custody or possessing them solely. Being given the goods, having the ability to dispose of the goods, or sharing possession of the goods with another person would be sufficient to possess the goods under this provision.

61. Subsection 80.2G(4) would have the effect that selling goods includes bartering or exchanging, or agreeing to sell goods. The inclusion of bartering or exchanging reflects that if someone agrees to sell goods, they intend to profit or benefit from the sale of those goods whether through monetary or other gains.

62. Subsection 80.2G(4) would have the effect that supplying goods includes supplying goods, whether or not by the way of sale, or agreeing to supply goods. This clarifies that for the purpose of Subdivision CA, goods can be supplied other than in exchange for a commercial benefit, and goods can be taken to have been supplied before the goods have exchanged hands, provided that the parties have agreed that this will occur.

63. Subsection 80.2G(4) would have the effect that transporting goods includes delivering goods. This would include delivery of goods by any means, including by hand.

64. Defining these terms is intended to provide clarity on the type of conduct to be captured by the offence, whilst still ensuring the offence can apply in a variety of different circumstances. The definitions recognise that commercial profiting is the result of a series of activities, and the intention of the offence is to criminalise a range of conduct involving selling, leasing or renting goods bearing prohibited symbols.

Section 80.2H - Public display of prohibited Nazi symbols or giving Nazi salute

65. New section 80.2H would create a new offence for the public display of prohibited Nazi symbols and the giving of a gesture that is a Nazi salute in a public place. The offences are not intended to capture the public display of content containing prohibited Nazi symbols that has been classified under the Classification (Publications, Films and Computer Games) Act 1995, or in accordance with relevant provisions in the Broadcasting Services Act 1992, where the public display of that content satisfies the criteria in new subsection 80.2H(9) or where one of the defences in new subsection 80.2H(10) applies.

66. To make out the offence, the prosecution must prove:

•

the person causes a thing to be displayed in a public place (paragraph 80.2H(1)(a)(i)) or makes a gesture in a public place (paragraph 80.2H(1)(a)(ii)), and

•

the thing is a prohibited Nazi symbol, or the gesture is a Nazi salute (paragraph 80.2H(1)(b)), and

•

subsection 80.2H(3), (4) or (7) (all detailed below) applies (paragraph 80.2H(1)(c)), and

•

subsection 80.2H(9) does not apply (paragraph 80.2H(1)(d)).

67. The maximum penalty for the offence in section 80.2H would be 12 months imprisonment. This penalty is appropriate noting the public display of prohibited Nazi symbols and the making of a gesture that is a Nazi salute in a public place are serious, intentional acts that causes significant harm to Australians and are used to recruit and radicalise vulnerable Australians to violence. This penalty would also account for the scale of the severity of offending, noting the deterrent and early intervention objectives of the offence. The penalty aligns with the maximum penalties available for similar offences which have been enacted in Victoria and New South Wales.

68. New paragraph 80.2H(1)(a) would establish the conduct element of the offence, namely causing a thing to be displayed in a public place or making a gesture in a public place. Sections 80.2F and 80.2FA respectively define 'displayed in a public place' and 'makes a gesture in a public place' for the purposes of this offence.

69. The fault element of intention would apply to the conduct in paragraph 80.2H(1)(a) by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code. By operation of this fault element, a person would need to mean to cause the thing to be displayed in a public place. A person who, for example, had a poster of a prohibited Nazi symbol in their bag that accidentally fell out into public display would not be captured by the offence because, while they would have caused the symbol to be publicly displayed, they would not have meant to do so. Similarly, if a commercial content provider (such as a television broadcaster, streaming service, publisher or distributer) broadcasted a live sporting match and in doing so, inadvertently caused a prohibited Nazi symbol that was being displayed by a member of the stadium audience to appear in the broadcast, it is possible that the broadcaster would not commit the offence in subsection 80.2H(1) because the broadcaster did not intend to cause the prohibited Nazi symbol to be displayed publicly, as required by paragraph 80.2H(1)(a).

70. New paragraph 80.2H(1)(b) would establish a circumstance element of the offence, namely that the thing (that is displayed in a public place) is a prohibited Nazi symbol, or the gesture is a Nazi salute. A prohibited Nazi symbol means the Nazi hakenkreuz, the Nazi double-sig rune or something that so nearly resembles those symbols that it is likely to be confused with, or mistaken for, them (see new section 80.2E).

71. The term 'Nazi salute' is intended to take its ordinary meaning. It refers to gestures which were used by the National Socialist German Workers' Party from 1920 to its dissolution in 1945. The Nazi salute generally involves raising a straight , right arm at an angle from the body however there were slight variations in how members of the National Socialist German Workers' Party performed the salute. It is a distinctive gesture associated with Nazi Germany, a regime which persecuted and systematically murdered millions of Jews, people living with a disability, people of colour, LGBTIQA+ people and other groups. The gesture is abhorrent and has no place in Australian society. It is intended that the court would have discretion to determine whether a gesture made was the Nazi salute, taking into account all of the circumstances of the case, including both the appearance of the gesture and the context in which it has been made. The legislation does not provide a prescriptive definition of the Nazi salute in recognition that there may be variations in the way it may be performed.

72. The fault element of recklessness would apply to the circumstances in paragraph 80.2H(1)(b) by application of section 5.6 of the Criminal Code. Recklessness is defined in section 5.4 of the Criminal Code. By operation of this fault element, a person is reckless if they are aware of a substantial risk with respect to a particular circumstance, and having regard to the circumstances known to them, it is unjustifiable to take that risk.

73. New paragraph 80.2H(1)(c) would establish a second circumstance element of the offence. It would provide that the set of circumstances in one of subsections 80.2H(3), (4) or (7) would need to be made out.

74. New paragraph 80.2H(1)(d) would establish a third circumstance element of the offence. It would provide that the offence is not made out if the set of circumstances listed in subsection 80.2H(9) apply to the conduct in paragraph 80.2H(1)(a).

75. New subsection 80.2H(2) would provide that absolute liability applies to the circumstances in paragraphs 80.2H(1)(c) and (d). The effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances.

76. Consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement (the Guide), and principles in the Scrutiny of Bills Committee's Report 6/200 the application of absolute liability to the physical element in paragraphs 80.2H(1)(c) and (d) is acceptable as the elements in paragraph 80.2H(1)(c) and (d) are essentially preconditions of the offence, and relate to what a reasonable person would consider, and not the state of mind of the defendant.

77. Without subsection 80.2H(2) the fault element for paragraphs 80.2H(1)(c) and (d) would have been recklessness by application of section 5.6 of the Criminal Code. The effect of this would have been that the prosecution would have to prove that the defendant was aware of a substantial risk that the circumstances in the relevant subsection 80.2H(3), (4) or (7), and subsection (9) existed, and having regard to the circumstances known to the defendant, it was unjustifiable for them to take that risk.

78. It would not be appropriate for recklessness to apply to paragraphs 80.2H(1)(c) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2H(3), (4) and (7), which relate to whether a reasonable person would consider that the public display of the prohibited Nazi symbol may have specified impacts. It would also not be appropriate for recklessness to apply to paragraph 80.2H(1)(d) as the state of mind of the defendant is irrelevant to the matters in subsection 80.2H(9), which relate to whether a reasonable person would consider that a prohibited Nazi symbol was publicly displayed for a specified legitimate purpose.

79. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2H(1)(c) or (d). Given that the matters in paragraph 80.2H(1)(c) and (d) relate to what a reasonable person would consider, the state of mind of the defendant with regard to these matters is irrelevant.

80. New subsection 80.2H(3) would set out one possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2H(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place involves dissemination of ideas based on racial superiority or racial hatred (paragraph 80.2H(3)(a)), or could incite another person or a group of persons to offend, insult, humiliate or intimidate targeted individuals or groups, because of the targeted individuals' or group members' race (paragraph 80.2H(3)(b)).

81. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place actually involved the dissemination of ideas based on racial superiority or racial hatred and actually could incite another person or a group of persons to offend, insult, humiliate or intimidate others on the basis of race. The fact that it would be reasonable to conclude that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place has this effect would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited Nazi symbols or the making of a gesture that is a Nazi salute in a public place is due to the ideologies they are widely recognised as representing.

82. The note to subsection 80.2H(3) provides clarity that the object of the subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.

83. New subsection 80.2H(4) would set out another possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2H(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place involves advocacy of hatred of a group of persons distinguished by race, religion or nationality (a targeted group), or a member of a targeted group (paragraph 80.2H(4)(a)); and involves advocacy that constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force against the targeted group or a member thereof (paragraph 80.2H(4)(b)).

84. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place actually involved the advocacy of hatred of a group distinguished by race, religion or nationality, and advocacy that constituted incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. The fact that it would be reasonable to conclude that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place has this effect would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited Nazi symbols and the making of a gesture that is a Nazi salute in a public place due to the ideologies they are widely recognised as representing.

85. In order to satisfy subsection 80.2H(4) the prosecution would be required to prove that a reasonable person would consider both that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place involves the advocacy of hatred of a group distinguished by race, religion or nationality, and that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place involves advocacy that constitutes incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. It would not be sufficient for the prosecution to establish one of these matters, and not the other.

86. The reason for this is articulated in the statutory note which clarifies that subsection 80.2H(4) is designed to give further effect to Australia's obligations under Article 20 of the ICCPR. Article 20 requires countries to outlaw the vilification of persons on national, racial or religious grounds amounting to incitement to discrimination, hostility or violence.

87. New subsection 80.2H(5) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place actually resulted in the hatred of a group distinguished by race, religion or nationality in order to satisfy paragraph 80.2H(4)(a). This recognises that one of the purposes of the offence is to prevent harms of this kind.

88. New subsection 80.2H(6) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place actually incited a person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group distinguished by race, religion or nationality or member thereof in order to satisfy paragraph 80.2H(4)(b). This recognises that one of the purposes of the offence is to prevent harms of this kind.

89. Subsection 80.2H(7) would set out a possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2H(1)(c). These circumstances are that the public display of the prohibited Nazi symbol or the making of a Nazi salute in public is likely to offend, insult, humiliate or intimidate a reasonable person (paragraph 80.2H(7)(a)), who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin (paragraph 80.2H(7)(b)), because of the reasonable person's membership of that group.

90. It would not be necessary for the prosecution to prove that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place actually offended, insulted, humiliated or intimidated a person based in their membership of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. Establishing that it is likely that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place would have this effect on a reasonable person would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited Nazi symbols and the making of a gesture that is a Nazi salute in a public place due to the ideologies they are widely recognised as representing.

91. In order to satisfy subsection 80.2H(7) the prosecution would be required to prove both that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place was likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin, and that the public display of the prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place is likely to likely to offend, insult, humiliate or intimidate them because of the person's membership of that group. It would not be sufficient for the prosecution to establish one of these matters, and not the other.

92. The reason for this is articulated in the statutory note which clarifies that subsection 80.2H(7) is designed to give further effect to Australia's obligations under Article 26 of the ICCPR. Article 26 provides that the law should prohibit any discrimination, and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While the ICCPR does not specifically refer to sexual orientation, the United Nations Human Rights Committee (UNHRC) has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.^[4] The UNHRC has also placed emphasis on the need to protect transgender communities from violence, torture and harassment.^[5] It is intended that paragraph 80.2H(7)(b) would also protect persons distinguished by sexual orientation or gender identity.

93. New subsection 80.2H(8) would clarify that it would not be necessary for the prosecution to prove that a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin actually saw the prohibited Nazi symbol or the Nazi salute while it was displayed or being made in public in order to satisfy subsection 80.2H(7). This recognises that one of the purposes of the offence is to prevent such persons from being exposed to prohibited Nazi symbols or the Nazi salute in light of the harm this may cause them.

94. New subsection 80.2H(9) would set out circumstances in which the offence in subsection 80.2H(1) would not apply. These provisions have been included to ensure that a person who publicly displays a prohibited Nazi symbol or makes a gesture that is a Nazi salute in a public place in legitimate circumstances would not be captured by the offence.

95. Read together with new paragraph 80.2H(1)(d), new paragraph 80.2H(9)(a) would have the effect that the offence in new subsection 80.2H(1) does not apply if a reasonable person would consider that a person caused a prohibited Nazi symbol to be displayed in a public place or made a gesture that is a Nazi salute in a public place for a religious, academic, educational, artistic, literary or scientific purpose that is not contrary to the public interest.

96. Given that the purpose of the public display offence is to prevent the public harm engendered by the display of these prohibited Nazi symbols and the making of a gesture that is a Nazi salute, the circumstances set out in paragraph 80.2H(9)(a), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the display of prohibited Nazi symbols and the making of a gesture that is a Nazi salute as much as possible without inappropriately impacting on legitimate activities. This recognises that there are a range of circumstances for which a prohibited Nazi symbol may be publicly displayed or a gesture of a Nazi salute may be made in public. The onus would be on the prosecution to prove that a reasonable person would not consider that the display of a prohibited Nazi symbol or the making of a gesture that is a Nazi salute was done for any of the purposes specified in this provision beyond a reasonable doubt.

97. The public interest requirement safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for a person who has publicly displayed the Nazi double sig rune for the purposes of 'educating' young people about the merits of reinvigorating the Nazi regime, to avoid criminality. This is because their purpose would be contrary to the public interest.

98. It is intended that a religious purpose would include, for example, the use of the sacred Swastika in connection with the practice of Buddhism, Hinduism or Jainism. The sacred Swastika is an ancient symbol of peace and good fortune that holds immense significance to these faith communities. The Bill seeks to explicitly distinguish between the sacred Swastika and the Nazi hakenkreuz. It is not intended that the ban on the public display of the Nazi hakenkreuz limit the use of the sacred Swastika in connection with religious observance.

99. Read together with the definition of 'journalistic capacity', and paragraph 80.2H(1)(d), new paragraph 80.2H(9)(b) would have the effect that the offence in subsection 80.2H(1) does not apply if a reasonable person would consider that the public display of a prohibited Nazi symbol, or the making of the Nazi salute in a public place is engaged in for the purposes of making a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This exemption recognises the critical role that the dissemination of news plays in democratic society and the importance of protecting the work of range of professionals involved in the news and current affairs process.

100. The public interest requirement and the requirement that the journalist or broadcaster is working in a professional capacity are intended to operate to exclude the displaying of prohibited Nazi symbols for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular case.

Defences

101. New subsection 80.2H(10) would provide defences to the offence of public display of prohibited Nazi symbols or the making of a gesture that is a Nazi salute in a public place. Each of the paragraphs in subsection 80.2H(10) contains an individual defence, providing a circumstance in which the offence would not apply. These defences have been included to address legitimate usages of the prohibited Nazi symbols or the Nazi salute that are not covered in subsection 80.2H(9) because they are matters that fall within the peculiar knowledge of the defendant.

102. New paragraph 80.2H(10)(a) would provide that the offence in new subsection 80.2H(1) does not apply if publicly displaying a prohibited Nazi symbol or making a gesture that is a Nazi salute in a public place is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. The purpose of this defence would be to avoid situations where a conflict of laws requires a prohibited Nazi symbol or a Nazi salute to be publicly displayed or made in a public place in order to assist law enforcement, and kept out of public display to avoid liability under subsection 80.2H(1). Paragraph 80.2H(10)(a) would resolve this conflict in favour of displaying the symbol or give the Nazi salute so that it would not compromise legitimate law enforcement procedures and operations. For example, a police officer may need to publicly display a knife inscribed with the Nazi double sig rune for a short period of time after confiscating it from a dangerous individual to allow other law enforcement personnel or witnesses to examine it, before they are able to cover or remove it from public display.

103. New paragraph 80.2H(10)(b) would provide that the offence in new subsection 80.2H(1) does not apply if the public display of a prohibited Nazi symbol or the making of a gesture that is a Nazi salute in a public place is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. This defence will provide protection for officers of government agencies involved in monitoring and investigative activity related to schemes that they administer. This defence is intended to ensure that the offence does not compromise legitimate law enforcement procedures or operations. For example, it may be necessary for a police officer to publish a forensic sketch in order to help identify a criminal suspect in which the criminal suspect is wearing a t-shirt with the Nazi hakenkreuz on it.

104. New paragraph 80.2H(10)(c) would provide that the offence in new subsection 80.2H(1) would not apply if a person publicly displays a prohibited Nazi symbol or makes a gesture that is a Nazi salute in a public place for the purposes of proceedings in a court or tribunal. This paragraph serves as a safeguard to ensure a court's or tribunal's access to material is not restricted by the operation of the offence under new subsection 80.2H(1). This defence would be important to ensure that a court can have access to anything that meets evidential requirements, and that the offence in subsection 80.2H(1) does not restrict this access.

105. New paragraph 80.2H(10)(d) would provide that the offence in new subsection 80.2H(1) does not apply if a person publicly displays a prohibited Nazi symbol or makes a gesture that is a Nazi salute in a public place in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function.

106. New paragraph 80.2H(10)(e) would provide that the offence in new subsection 80.2H(1) does not apply if the person publicly displays a prohibited Nazi symbol or makes a gesture that is a Nazi salute in a public place in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be 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. This is intended to ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function. This could include, for example, where the conduct is in connection with a person assisting a security or intelligence officer with the performance of the security or intelligence officer's official duties or functions.

107. New paragraph 80.2H(10)(f) would provide a defence where the conduct involves the public display of a prohibited Nazi symbol, or the making of a Nazi salute, in circumstances where the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology. This defence is intended to ensure that prohibited Nazi symbols and gestures can continue to be used for the purpose of opposing the harmful ideologies that these symbols and gestures represent, consistent with the implied constitutional freedom of political communication.

108. The note at the end of subsection 80.2H(10) would clarify that the defendant bears an evidential burden in relation to the defences in that subsection in accordance with existing subsection 13.3(3). Subsection 13.3(3) provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

109. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where there are matters which are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty.

110. The offence in new subsection 80.2H(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment).

111. It would not be reasonable to require the prosecution to prove the matters set out in various paragraphs of subsection 80.2H(10). Notably, most of these defences rely on the purpose for which the person engaged in the conduct. This is likely to be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to prove. For example, paragraph 80.2H(10)(g) requires the person to discharge the evidentiary burden by pointing to evidence that suggests a reasonable possibility that their conduct was for the purpose of opposing Nazi ideology, fascism or a related ideology. It will be relatively straightforward for the person to meet this threshold compared to the prosecution.

112. The offence-specific defences in subsection 80.2H(10) recognise that the defendant's purpose in publicly displaying a prohibited Nazi symbol or making a gesture that is a Nazi salute in a public place is uniquely within the knowledge of the defendant. The defendant is best placed to adduce evidence demonstrating their purpose, including for example evidence of their anti-Nazi political beliefs. Information of this nature is unlikely to be readily available to the prosecution.

113. New subsection 80.2H(11) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new sections 80.2H, would be affected by the references to 'function' or 'functions' in subsection 80.2H(10). The references to 'function' or 'functions' in subsection 80.2H(10) - in particular, paragraphs 80.2H(10)(d) and (e) - are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2H only.

Section 80.2HA - Public display of terrorist organisation symbols

114. New section 80.2HA would insert a new offence to criminalise the public display of terrorist organisation symbols. To make out the offence, the prosecution must prove:

•

the person causes a thing to be displayed in a public place (paragraph 80.2HA(1)(a)), and

•

the person knows that the thing is a prohibited terrorist organisation symbol (paragraph 80.2HA(1)(b)), and

•

subsection 80.2HA(3), (4) or (7) applies (paragraph 80.2HA(1)(c)), and

•

subsection 80.2HA(9) does not apply (paragraph 80.2HA(1)(d)).

115. The maximum penalty for the new offence in section 80.2HA would be 12 months imprisonment. This penalty is appropriate noting the public display of prohibited terrorist organisation symbols is a serious, intentional act that causes significant harm to Australians and is used to recruit and radicalise vulnerable Australians to violence. This penalty would align with other offences in Subdivision CA of Division 80 of the Criminal Code.

116. Terrorist organisations use symbols to intimidate and threaten the Australian community by promoting violence, fear, discrimination and hatred. Terrorist organisations also use symbols to advance their extreme ideologies to a wide-reaching audience, to recruit and inspire behaviours from like-minded individuals and to establish belonging. The harm caused by terrorist organisations and their activities, which can be conveyed powerfully through the use of symbology, can affect the whole community.

117. The offence in new subsection 80.2HA(1) is designed to protect the community from these harms by prohibiting the public display of prohibited terrorist organisation symbols, as defined in new section 80.2E. The offence would only apply where the person intentionally displayed a symbol publicly, knowing that the symbol is a prohibited terrorist organisation symbol, in circumstances in which a reasonable person would likely consider that the display would engender the kinds of harms from which Australia is committed to protecting its citizens under international human rights conventions, and where no legitimate purpose exists. Accordingly, the offence appropriately targets deliberate acts that place community members at risk of serious victimisation.

118. The offence would not capture legitimate uses of terrorist organisation symbols that are not contrary to the public interest, and would not interfere with the display of these symbols in private.

119. New paragraph 80.2HA(1)(a) would establish the conduct element of the offence, namely causing a prohibited terrorist organisation symbol to be displayed in a public place. The definition of 'displayed in a public place' in section 80.2F of Subdivision CA of Division 80 would apply.

120. The fault element of intention would apply to the conduct in paragraph 80.2HA(1)(a) by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code. By operation of this fault element, a person would need to mean to cause the thing to be displayed in a public place. If a commercial content provider (such as a television broadcaster, streaming service, publisher or distributer) broadcasted a live sporting match and in doing so, inadvertently caused a prohibited terrorist organisation symbol that was being displayed by a member of a stadium audience to appear in the broadcast, the broadcaster would not commit the offence in subsection 80.2HA(1) because the broadcaster did not intend to cause the prohibited terrorist organisation symbol to be displayed publicly, as required by paragraph 80.2HA(1)(a).

121. New paragraph 80.2HA(1)(b) would establish a circumstance element of the offence, namely that the thing (that is displayed in a public place) is a prohibited terrorist organisation symbol. 'Prohibited terrorist organisation symbol' is defined in subsection 80.2E(3).

122. The fault element of knowledge would apply to the circumstance in paragraph 80.2HA(1)(b). Knowledge is defined in section 5.3 of the Criminal Code. By operation of this fault element, a person has knowledge of a circumstance if they are aware that it exists or will exist in the ordinary course of events. It is appropriate that the fault element of knowledge in paragraph 80.2HA(1)(b) is higher than the fault element of recklessness in paragraph 80.2H(1)(b), as the offence in section 80.2HA does not prescribe on the face of the legislation the specific symbols prohibited by the offence.

123. The requirement of proving the person knew the symbol was a prohibited terrorist organisation symbol provides a safeguard against prosecution where an offence has been committed innocently or unintentionally. As terrorist organisations have co-opted symbols that are also utilised for legitimate purposes in other contexts, it is conceivable that an individual may cause such a symbol to be displayed in a public place, wholly unaware that the symbol is used by a terrorist organisation to identify itself or that the organisation that uses the symbol is a terrorist organisation. In combination with the exception at 80.2HA(9)(a), it is not intended that public display of sacred symbols that have been co-opted by terrorist organisations would be covered by the offence when done so for a religious practice. It is not intended that the person would need to have a comprehensive or academic understanding of the specific details of the prohibited terrorist organisation symbol, only that they knew that the symbol is a prohibited terrorist organisation symbol.

124. New paragraph 80.2HA(1)(c) would establish a second circumstance element of the offence. It would provide that the circumstances in one of subsections 80.2HA(3), (4), or (7) would need to be made out.

125. New paragraph 80.2HA(1)(d) would establish a third circumstance element of the offence. It would provide that the offence is not made out if the set of circumstances listed in subsection 80.2HA(9) apply to the conduct in paragraph 80.2HA(1)(a).

126. New subsection 80.2HA(2) would provide that absolute liability applies to the circumstances in paragraphs 80.2HA(1)(c) and (d). The effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances.

127. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2HA(1)(c) or (d). Given that the matters in paragraphs 80.2HA(1)(c) and (d) relate to what a reasonable person would consider, the state of mind of the defendant with regard to these matters is irrelevant.

128. Consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement (the Guide), and principles in the Scrutiny of Bills Committee's Report 6/200 the application of absolute liability to the physical element in paragraphs 80.2HA(1)(c) and (d) is acceptable as the elements in paragraphs 80.2HA(1)(c) and (d) are essentially preconditions of the offence, and relate to what a reasonable person would consider, and not the state of mind of the defendant.

129. Without subsection 80.2HA(2) the fault element for paragraphs 80.2HA(1)(c) and (d) would have been recklessness by application of section 5.6 of the Criminal Code. It would not be appropriate for recklessness to apply to paragraphs 80.2HA(1)(c) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2HA(3), (4) and (7), which relate to whether a reasonable person would consider that the public display of the prohibited terrorist organisation symbol may have specified impacts. It would also not be appropriate for recklessness to apply to paragraph 80.2HA(1)(d) as the state of mind of the defendant is irrelevant to the matters in subsection 80.2HA(9), which relate to whether a reasonable person would consider that a prohibited terrorist organisation symbol was publicly displayed for a specified legitimate purpose.

130. New subsection 80.2HA(3) would set out one possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited terrorist organisation symbol involves dissemination of ideas based on racial superiority or racial hatred (paragraph 80.2HA(3)(a)), or could incite another person or a group of persons to offend, insult, humiliate or intimidate targeted individuals or groups, because of the targeted individuals' or group members' race (paragraph 80.2HA(3)(b)).

131. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually involved the dissemination of ideas based on racial superiority or racial hatred and actually could incite another person or a group of persons to offend, insult, humiliate or intimidate others on the basis of race. The fact that it would be reasonable to conclude that the public display of the prohibited terrorist organisation symbol has this effect would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing.

132. The note to subsection 80.2HA(3) provides clarity that the object of the subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.

133. New subsection 80.2HA(4) would set out another possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that a reasonable person would consider that the public display of the prohibited terrorist organisation symbol involves advocacy of hatred of a group of persons distinguished by race, religion or nationality (a targeted group), or a member of a targeted group (paragraph 80.2HA(4)(a)); and involves advocacy that constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force against the targeted group or a member thereof (paragraph 80.2HA(4)(b)).

134. The reasonable person test means that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually involved the advocacy of hatred of a group distinguished by race, religion or nationality, and advocacy that constituted incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. The fact that it would be reasonable to conclude that the public display of the prohibited terrorist organisation symbol has this effect would be sufficient. This recognises that one of the purposes of the offence is to prevent harms of this kind. It also signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing.

135. In order to satisfy subsection 80.2HA(4) the prosecution would be required to prove that a reasonable person would consider both that the public display of the prohibited terrorist organisation symbol involves the advocacy of hatred of a group distinguished by race, religion or nationality, and that the public display of the prohibited terrorist organisation symbol involves advocacy that constitutes incitement of another person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group or member thereof. It would not be sufficient for the prosecution to establish one of these matters, and not the other.

136. The reason for this is articulated in the statutory note which clarifies that subsection 80.2HA(4) is designed to give further effect to Australia's obligations under Article 20 of the ICCPR. Article 20 requires countries to outlaw the vilification of persons on national, racial or religious grounds amounting to incitement to discrimination, hostility or violence.

137. New subsection 80.2HA(5) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually resulted in the hatred of a group distinguished by race, religion or nationality in order to satisfy paragraph 80.2HA(4)(a). This recognises that one of the purposes of the offence is to prevent harms of this kind.

138. New subsection 80.2HA(6) would clarify that it would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually incited a person or group to offend, insult, humiliate, intimidate or use force or violence against a targeted group distinguished by race, religion or nationality or member thereof in order to satisfy paragraph 80.2HA(4)(b). This recognises that one of the purposes of the offence is to prevent harms of this kind.

139. New subsection 80.2HA(7) would set out another possible set of circumstances that the prosecution could rely on to satisfy the element of the offence in paragraph 80.2HA(1)(c). These circumstances are that the public display of the prohibited terrorist organisation symbol is likely to offend, insult, humiliate or intimidate a reasonable person (paragraph 80.2HA(7)(a)), who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin (paragraph 80.2HA(7)(b)), because of the reasonable person's membership of that group.

140. It would not be necessary for the prosecution to prove that the public display of the prohibited terrorist organisation symbol actually offended, insulted, humiliated or intimidated a person based in their membership of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin. Establishing that it is likely that the public display of the prohibited terrorist organisation symbol would have this effect on a reasonable person would be sufficient. This signals that these harms are likely outcomes of the public display of prohibited terrorist organisation symbols due to the ideologies they are widely recognised as representing.

141. In order to satisfy subsection 80.2HA(7) the prosecution would be required to prove both that the public display of the prohibited terrorist organisation symbol was likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin, and that the public display of the prohibited terrorist organisation symbol is likely to likely to offend, insult, humiliate or intimidate them because of the person's membership of that group. It would not be sufficient for the prosecution to establish one of these matters, and not the other.

142. The reason for this is articulated in the statutory note which clarifies that subsection 80.2HA(7) is designed to give further effect to Australia's obligations under Article 26 of the ICCPR. Article 26 provides that the law should prohibit any discrimination, and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While the ICCPR does not specifically refer to sexual orientation, the United Nations Human Rights Committee (UNHRC) has found that the treaty includes an obligation to prevent discrimination on the basis of sexual orientation.^[6] The UNHRC has also placed emphasis on the need to protect transgender communities from violence, torture and harassment.^[7] It is intended that paragraph 80.2HA(7)(b) would also protect persons distinguished by sexual orientation or gender identity.

143. New subsection 80.2HA(8) would clarify that it would not be necessary for the prosecution to prove that a member of a group distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin actually saw the prohibited terrorist organisation symbol while it was displayed in public in order to satisfy subsection 80.2HA(7). This recognises that one of the purposes of the offence is to prevent such persons from being exposed to prohibited terrorist organisation symbols in light of the harm this may cause them.

144. New subsection 80.2HA(9) would set out circumstances in which the offence in subsection 80.2HA(1) would not apply. These provisions have been included to ensure that a person who publicly displays a prohibited terrorist organisation symbol in legitimate circumstances would not be captured by the offence.

145. Read together with new paragraph 80.2HA(1)(d), new paragraph 80.2HA(9)(a) would have the effect that the offence in new subsection 80.2HA(1) does not apply if a reasonable person would consider that a person caused a prohibited terrorist organisation symbol to be displayed in a public place for a religious, academic, educational, artistic, literary or scientific purpose that is not contrary to the public interest.

146. It is not intended that the use of a symbol for a religious purpose would be captured by the offence. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance.

147. Given that the purpose of the public display offence is to prevent the public harm engendered by the display of prohibited terrorist organisation symbols, the circumstances set out in paragraph 80.2HA(9)(a), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the display of prohibited terrorist organisation symbols as much as possible without inappropriately impacting on legitimate activities. This recognises that there are a range of circumstances for which a prohibited terrorist organisation symbol may be publicly displayed. The onus would be on the prosecution to prove beyond a reasonable doubt that a reasonable person would not consider that the display of a prohibited symbol was done for any of the purposes specified in this provision.

148. The public interest requirement safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for a member of a terrorist who has publicly displayed a symbol of that terrorist organisation for the purposes of 'educating' young people about the merits of committing terrorist attacks in the service of an extremist ideology, to avoid criminality. This is because their purpose would be contrary to the public interest.

149. Read together with the new definition of 'journalistic capacity' and new paragraph 80.2HA(1)(d), new paragraph 80.2HA(9)(b) would have the effect that the offence in new subsection 80.2HA(1) does not apply if a reasonable person would consider that the public display of a prohibited terrorist organisation symbol is engaged in for the purposes of making a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This exemption recognises the critical role that the dissemination of news plays in our democratic society, and the importance of protecting the work of range of professionals involved in the news and current affairs process. For example, if a news program was live broadcasting at a protest at which people held signs publicly displaying a prohibited terrorist organisation symbol, it would be inappropriate for journalists and broadcasters reporting fairly and accurately on this event to have to censor their report in order to avoid criminal liability under section 80.2HA.

150. The public interest requirement, and the requirement that the journalist, editor, producer or other person involved in the news or current affairs process is working in a professional journalistic capacity, is intended to operate to exclude the displaying of prohibited terrorist organisation symbols for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular case.

Defences

151. New subsection 80.2HA(10) would provide defences to the new offence in subsection 80.2H(1). Each of the paragraphs in subsection 80.2HA(10) contains an individual defence, providing a circumstance in which the offence would not apply. These defences have been included to address legitimate usages of prohibited terrorist organisation symbols that are not covered in subsection 80.2HA(9) because they are matters that fall within the peculiar knowledge of the defendant.

152. New paragraph 80.2HA(10)(a) would provide that the offence in new subsection 80.2HA(1) does not apply if publicly displaying a prohibited terrorist organisation symbol is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. The purpose of this defence would be to avoid situations where a conflict of laws requires a prohibited terrorist organisation symbol to both be publicly displayed in order to assist law enforcement, and kept out of public display to avoid liability under subsection 80.2HA(1). Paragraph 80.2HA(10)(a) would resolve this conflict in favour of displaying the symbol so that it would not compromise legitimate law enforcement procedures and operations. For example, a police officer may need to publicly display a flag containing or depicting a prohibited terrorist organisation symbol for a short period of time after confiscating it from a dangerous individual to allow other law enforcement personnel or witnesses to examine it, before they are able to cover or remove it from public display.

153. New paragraph 80.2HA(10)(b) would provide that the offence in new subsection 80.2HA(1) does not apply if the public display of a prohibited terrorist organisation symbol is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. This defence will provide protection for officers of government agencies involved in monitoring and investigative activity related to schemes that they administer. This defence is intended to ensure that the offence does not compromise legitimate law enforcement procedures or operations. For example, it may be necessary for a police officer to publish a forensic sketch in order to help identify a criminal suspect in which the criminal suspect is wearing a t-shirt with a prohibited terrorist organisation symbol on it.

154. New paragraph 80.2HA(10)(c) would provide that the offence in new subsection 80.2HA(1) would not apply if a person publicly displays a prohibited terrorist organisation symbol for the purposes of proceedings in a court or tribunal. This paragraph serves as a safeguard to ensure a court's or tribunal's access to material is not restricted by the operation of the offence under new subsection 80.2HA(1). This defence would be important to ensure that a court can have access to anything that meets evidential requirements, and that the offence in subsection 80.2HA(1) does not restrict this access.

155. New paragraph 80.2HA(10)(d) would provide that the offence in new subsection 80.2HA(1) does not apply if a person publicly displays a prohibited terrorist organisation symbol in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function.

156. New paragraph 80.2HA(10)(e) would provide that the offence in new subsection 80.2HA(1) does not apply if the person publicly displays a prohibited terrorist organisation symbol in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be 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. This is intended to ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function. This could include, for example, where the conduct is in connection with a person assisting a security or intelligence officer with the performance of the security or intelligence officer's official duties or functions.

157. New paragraph 80.2HA(10)(f) would provide that the offence in subsection 80.2HA(1) does not apply if the conduct involves the public display of a prohibited terrorist organisation symbol and 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). This defence is intended to ensure that prohibited terrorist organisation symbols can continue to be used and displayed for the purpose of opposing the harmful ideologies that terrorist organisations represent, consistent with the implied constitutional freedom of political communication.

158. The note at the end of subsection 80.2HA(10) would clarify that the defendant bears an evidential burden in relation to the defences in that subsection in accordance with existing subsection 13.3(3). Subsection 13.3(3) provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

159. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where there are matters which are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty.

160. The offence in new subsection 80.2HA(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment).

161. It would not be reasonable to require the prosecution to prove the matters set out in various paragraphs of subsection 80.2HA(10). Notably, most of these defences rely on the purpose for which the person engaged in the conduct. This is likely to be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to prove. For example, paragraph 80.2HA(10)(f) requires the person to discharge the evidentiary burden by pointing to evidence that suggests a reasonable possibility that their conduct was for the purpose of opposing the ideology or purposes of a terrorist organisation. It will be relatively straightforward for the person to meet this threshold compared to the prosecution.

162. New subsection 80.2HA(11) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new sections 80.2HA, would be affected by the references to 'function' or 'functions' in subsection 80.2HA(10). The references to 'function' or 'functions' in subsection 80.2HA(10) - in particular, paragraphs 80.2HA(10)(d) and (e) - are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2HA only.

Section 80.2J - Trading in prohibited symbols

163. New section 80.2J would establish an offence that prohibits the trading of goods that depict or contain a prohibited symbol where the person knows that, or is reckless as to whether, the symbol is associated with Nazi ideology. Noting the hateful and violent ideologies that the prohibited symbols represent, trading in goods which bear those symbols supports the further dissemination of these ideologies as well as the continuation of an economy which allows for profiting from extremist and hateful ideologies.

164. New subsection 80.2J(1) would set out the new offence for trading in prohibited symbols. To make out the offence, the prosecution would be required to prove that:

•

the person intentionally trades in goods ('trades' is defined in section 80.2G)

•

the person is reckless as to the fact that the goods depict or contain a prohibited symbol

•

the person knows, or is reckless as to whether, the prohibited symbol is associated with Nazi ideology

•

the trading of the symbol meets one or more of the jurisdictional requirements set out in subsection 80.2J(3) which are described below, and

•

subsections 80.2J(4) and (5), which are described below, do not apply.

165. The offence would carry a maximum penalty of 12 months imprisonment. This maximum penalty reflects the principle in the Guide that an offence should have a 'maximum penalty that is adequate to deter and punish a worst-case offence.' The penalty is proportionate to the deterrent objectives of the offence, and the harm that is caused by commercial profiting from paraphernalia depicting or containing Nazi symbols.

166. The fault element for the conduct in new paragraph 80.2J(1)(a) would be intention by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code, which provides that a person has intention with respect to conduct if he or she means to engage in conduct (subsection 5.2(1)).

167. The fault element attached to paragraph new 80.2J(1)(b) would be recklessness by application of section 5.6 of the Criminal Code. 'Recklessness' is defined in section 5.4 of the Criminal Code, which provides relevantly that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstance, it is unjustifiable to take that risk.

168. The fault element for the conduct in new paragraph 80.2J(1)(c) is knowledge or recklessness depending on the circumstances.

169. 'Knowledge' and 'recklessness' are defined in section 5.3 and section 5.4 respectively of the Criminal Code. The knowledge element in paragraph 80.2J(1)(c) would require the prosecution to prove that the person knows the prohibited symbol is associated with Nazi ideology. This requirement provides a safeguard against prosecution where an offence has been committed innocently or unintentionally.

170. As above, recklessness is defined in section 5.4 of the Criminal Code. If the knowledge element was not made out, the prosecution would have to prove that the defendant was aware of a substantial risk that the symbol is associated with Nazi ideology and, having regard to the circumstances known to them, it is unjustifiable to take that risk.

171. It is not intended that the person would need to have a comprehensive or academic understanding of the specific details of Nazi ideology, only that they know that the prohibited symbol is associated with the views of Nazi, fascist or related ideologies. For example, a person may know that the Nazi hakenkreuz is associated with anti-Semitism which, as a key component of Nazi ideology, would be sufficient to demonstrate the person knew the symbol was associated with Nazi ideology.

172. New subsection 80.2J(2) provides that absolute liability, as outlined in section 6.2 of the Criminal Code, would apply to the matter in paragraphs 80.2J(1)(d) and (e). With regard to new paragraph 80.2J(1)(d), this approach is consistent with the Guide which provides that absolute liability should apply to jurisdictional elements of a criminal offence. A jurisdictional element is a physical element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

173. With regard to the circumstances in new paragraph 80.2J(1)(e), the effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances.

174. Without subsection 80.2J(2) the fault element for paragraph 80.2J(1)(e) would have been recklessness by application of section 5.6 of the Criminal Code. The effect of this would have been that the prosecution would have to prove that the defendant was aware of a substantial risk that the circumstances in subsections 80.2J(4) or (5) existed, and having regard to the circumstances known to the defendant, it was unjustifiable for them to take that risk. It would not be appropriate for recklessness to apply to paragraph 80.2J(1)(e) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2J(4) and (5), which relate to:

•

whether a reasonable person would consider that the trading was done for a specified purpose (subsection (4)), or

•

whether:

o

the goods traded contain specified content (paragraphs 80.2J(5)(a)-(b)) and

o

a reasonable person would consider that the news or current affairs report contained in those goods was made by a person working in a professional capacity as a journalist, and disseminating the report is in the public interest (paragraph 80.2J(5)(c)).

175. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2J(1)(d) and (e). The matters in subsection 80.2J(1)(d) are jurisdictional elements to which the defendant's state of mind is not relevant. Subsection 80.2J(1)(e) provides that the offence is not established if the matters in subsections 80.2J(4) or (5) apply. Determining whether one of the circumstances in subsections 80.2J(4) or (5) are present does not involve an assessment of what the defendant turned their mind to. Therefore, a reasonable mistake of fact defence would not be appropriate in relation to either of these paragraphs.

176. The Commonwealth's power to legislate in relation to the trading of prohibited symbols is restricted by the Constitution. Accordingly, trading in prohibited symbols would only constitute an offence where certain jurisdictional requirements were made out (subsection 80.2J(3)). The offence would only apply where:

•

the trading occurs to any extent outside Australia (noting that Category B geographical jurisdiction, as outlined in section 15.2 of the Criminal Code, would apply to the offence - see Item 6 to Schedule 1)

•

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

•

the trading occurs within a Territory, or involves transportation to or from a Territory

•

the trading is engaged in by, or on behalf of, a constitutional corporation

•

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 (for example the goods are transported in the post or the sale is conducted online)

•

the trading occurs to any extent at a Commonwealth place or involves transportation to or from a Commonwealth place

•

the person engaging in the conduct is an alien (an alien is defined in the Criminal Code Dictionary as a person who is an alien for the purposes of paragraph 51(xix) of the Constitution)

•

the trading involves the person:

o

selling the goods to an alien

o

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

o

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 an alien intends to sell them

o

guarding or concealing the goods with the intention of selling them to an alien, with the intention of assisting another person to sell them to an alien or assisting an alien to sell them, or

o

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

177. New subsections 80.2J(4) and (5) would set out circumstances in which the offence in new subsection 80.2J would not apply by operation of new paragraph 80.2J(1)(e). These provisions have been included to ensure that circumstances in which trading of prohibited symbols is legitimate and not contrary to the public interest would not be captured by the offence. The prosecution would bear the burden to prove that the subsections (4) and (5) do not apply to the trading of goods bearing a prohibited symbol beyond a reasonable doubt.

178. Read together with new paragraph 80.2J(1)(e), new subsection 80.2J(4) would have the effect that the offence in new subsection 80.2J(1) does not apply if a reasonable person would consider that the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose, and that the person's trading in the goods is not contrary to the public interest.

179. Given that the purpose of the trading offence is to prevent the public harm engendered by commercial profiting from the sale of these goods, the circumstances set out in subsection 80.2J(4), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the trading of symbols as much as possible without inappropriately impacting on legitimate activities. The onus would be on the prosecution to prove that a reasonable person would not consider that the trading in the goods was for one of the purposes set out in this provision. The reasonable person test would ensure that a defendant could not simply rely on their own assertions that the trade was done for a religious, academic, educational, artistic, literary or scientific purpose to avoid criminal liability.

180. Examples of circumstances that are intended to be captured by new subsection 80.2J(4) are as follows: The Nazis misappropriated the Swastika which continues to be a sacred symbol in the Buddhist, Hindu and Jain religions. Therefore, it is necessary that the offence does not apply in circumstances where the goods being traded contain the prohibited symbol but are being used as objects for religious observance. Further, a museum trading in Nazi artefacts which bear prohibited symbols in order to educate people about the atrocities of the Nazi party should not be criminalised. Similarly, trading in history textbooks which serve an educational or literary purpose should not be criminalised as these are important activities for our society.

181. The requirement in new paragraph 80.2J(4)(b) safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for a person who has traded in goods bearing the Nazi hakenkreuz for the purposes of 'educating' young people about the merits of engaging in atrocities against Jewish people in service of an extremist ideology, to be able to rely on the educational purpose limb in new paragraph 80.2J(4)(a) to avoid criminality because their purpose would be contrary to the public interest.

182. Read together with new paragraph 80.2J(1)(e), new subsection 80.2J(5) would have the effect that the offence in new subsection 80.2J(1) does not apply if the goods being traded contain one or more news reports or current affairs reports (paragraph 80.2J(5)(a)); each prohibited Nazi symbol that the goods depict or contain appears in such a report and only appears in such a report (paragraph 80.2J(5)(b)); and in relation to each such report in which a prohibited Nazi symbol appears, a reasonable person would consider that the report was made by a person working in a journalistic capacity (subparagraph 80.2J(5)(c)(i)) and disseminating the report is in the public interest (subparagraph 80.2J(5)(c)(ii)). This subsection is intended to exempt bona fide journalism from the offence. The public interest requirement and the requirement that the journalist is working in a professional capacity are intended to operate to exclude goods that have been traded by organisations for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. The offence would not apply where a reasonable person would consider that the dissemination of the report as a whole is in the public interest, rather than a particular aspect of the report being in the public interest. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular dissemination.

Defences

183. New subsections 80.2J(6) to (8) would create offence specific defences in relation to which the defendant bears the evidential burden of proof by application of subsection 13(3) of the Criminal Code. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty.

184. The offence in new subsection 80.2J(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment).

185. The offence-specific defences in subsections 80.2J(6) to (8) recognise that the defendant would be better placed than the prosecution to adduce evidence about the nature of the goods in which they have traded (subsection 80.2J(6)), the necessity of the trading for the purposes of law enforcement, the administration of justice or a public official's duties or functions (subsections 80.2J(7) and (8)).

186. The defendant's involvement in the business of trading the goods may include activities such as compiling the goods or marketing, advertising or explaining the goods to potential trading partners. These activities would equip the person conducting the trading with information that would be more difficult and costly for the prosecution to access, and that would be necessary to prove the matters in subsections 80.2J(6)-(8). For example, in relation to subsection 80.2J(6), the defendant would be better placed than the prosecution to adduce evidence that the commentary contained in goods, and in which a prohibited symbol appears, is in the public interest, given the defendant's likely exposure to the community and context in which the commentary is circulated.

187. New subsection 80.2J(6) would provide that the offence in new subsection 80.2J(1) does not apply if the goods being traded contain commentary on public affairs (paragraph 80.2J(6)(a)) and each prohibited Nazi symbol that the goods depict or contain appear in the commentary and only appear in the commentary (paragraph 80.2J(6)(b)). In relation to the commentary in which the prohibited Nazi symbol appears, the making of the commentary must be in the public interest (paragraph 80.2J(6)(c)). This is an important safeguard to ensure robust political communication can continue in Australia, however appropriate limitations are imposed to prevent against this provision being inappropriately used to excuse illegitimate trade.

188. The defence would cover circumstances in which a good only contains commentary that is in the public interest, and the prohibited symbol is contained in that commentary. For example, this provision may cover trading of a publication which seeks to raise awareness of, and opposition to, anti-Semitism by depicting prohibited symbols for the purposes of increasing understanding of harmful activities.

189. New paragraphs 80.2J(7)(a) and (b) would provide that the offence in new subsection 80.2J(1) does not apply if trading in goods containing a prohibited symbol is necessary for, or of assistance in, enforcing, monitoring compliance with, or investigating a contravention of, the law of the Commonwealth, a State or Territory, or a foreign country. New paragraph 80.2J(7)(c) would provide that offence in new subsection 80.2J(1) does not apply if trading in goods containing a prohibited symbol is necessary for, or of assistance in, the administration of justice (whether within or outside Australia). The purpose of these defences is to ensure that the offence does not compromise law enforcement or court proceedings. For example, it may be necessary for a police officer to engage in the trade of goods in situations where the trading would assist in enforcing, monitoring or investigating an offence to prevent more harmful conduct from occurring.

190. New paragraph 80.2J(8)(a) would provide that the offence in new subsection 80.2J(1) would not apply if a person trades a good depicting or containing a prohibited symbol in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for reasonably performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function.

191. New paragraph 80.2J(8)(b) would provide that the offence in new subsection 80.2J(1) would not apply if the person trades a good depicting or containing a prohibited symbol in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be 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. This will ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function.

192. The notes at the end of subsections 80.2J(6)-(8) would clarify that the defendant bears an evidential burden in relation to the defences in accordance with existing subsection 13.3(3) of the Criminal Code. It is appropriate that the onus rests with the defendant because these matters will be peculiarly within the defendant's knowledge and will not necessarily be available to the prosecution.

193. New subsection 80.2J(9) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new section 80.2J, would be affected by the references to 'function' or 'functions' in paragraphs 80.2J(8)(a) and (b). The references to 'function' or 'functions' in subsection 80.2J(8) are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2J only.

194. New subsection 80.2J(10) would clarify that the term 'Commonwealth place', as used in section 80.2J, has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

Section 80.2JA - Trading in prohibited terrorist organisation symbols

195. Item 25 would create a new offence for trading in prohibited terrorist organisation symbols in Subdivision CA of Division 80 of the Criminal Code. 'Prohibited terrorist organisation symbol' is defined in subsection 80.2E(3).

196. To make out the offence, the prosecution must prove:

•

the person intentionally trades in goods (paragraph 80.2JA(1)(a)), and

•

the person is reckless as to the fact the goods depict or contain a symbol (paragraph 80.2JA(1)(b)), and

•

the person knows that the symbol is a prohibited terrorist organisation symbol (paragraph 80.2JA(1)(c)), and

•

the trading of the symbol meets one or more of the jurisdictional requirements set out in subsection 80.2JA(3) which are described below (paragraph 80.2JA(1)(d)), and

•

subsections 80.2JA(4) and (5), which are described below, do not apply (paragraph 80.2JA(1)(e)).

197. The maximum penalty for the offence in section 80.2JA is imprisonment for 12 months. This penalty is appropriate noting the trade in goods which depict or contain a prohibited terrorist organisation symbol is a serious, intentional act that causes harm through commercial profiting from paraphernalia depicting or containing symbols used by terrorist organisations to identify themselves. This penalty would align with other offences in Subdivision CA of Division 80 of the Criminal Code.

198. The fault element for the conduct in new paragraph 80.2JA(1)(a) would be intention by application of section 5.6 of the Criminal Code. 'Intention' is defined in section 5.2 of the Criminal Code, which provides that a person has intention with respect to conduct if he or she means to engage in conduct (subsection 5.2(1)).

199. The fault element attached to new paragraph 80.2JA(1)(b) would be recklessness by application of section 5.6 of the Criminal Code. 'Recklessness' is defined in section 5.4 of the Criminal Code, which provides relevantly that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstance, it is unjustifiable to take that risk.

200. The fault element for the conduct in new paragraph 80.2JA(1)(c) would be knowledge. Knowledge is defined in section 5.3 of the Criminal Code. By operation of this fault element, a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. This means the prosecution must prove that the person knew the symbol was a prohibited terrorist organisation symbol. This acts as an important safeguard to ensure the offence does not improperly capture individuals whose conduct in trading goods bearing certain symbols is innocent. As terrorist organisations have co-opted symbols that are also utilised for legitimate purposes in other contexts, it is conceivable that an individual may trade in goods containing or depicting such a symbol, wholly unaware that the symbol is used by a terrorist organisation to identify itself.

201. It is not intended that the use of a symbol for a religious purpose would be captured by the offence. This could include, for example, the public display of a symbol in connection with a faith-based community where that symbol is an ancient symbol that holds special significance for that faith-based community; however, the symbol has been misappropriated by a terrorist organisation. It is not intended that the ban on the public display or trading of a prohibited terrorist organisation symbol would limit the use of that symbol in connection with religious observance.

202. It is also not intended that the person would need to have a comprehensive or academic understanding of the specific details of the prohibited terrorist organisation symbol, only that they knew that the symbol is a prohibited terrorist organisation symbol.

203. New subsection 80.2JA(2) provides that absolute liability, as outlined at section 6.2 of the Criminal Code, would apply to the matters in paragraphs 80.2JA(1)(d) and (e). With regard to new paragraph 80.2JA(1)(d), this approach is consistent with the Guide which provides that absolute liability should apply to jurisdictional elements of a criminal offence. A jurisdictional element is a physical element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

204. With regard to the circumstances in new paragraph 80.2JA(1)(e), the effect of absolute liability is that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault elements in relation to these circumstances.

205. Without subsection 80.2JA(2), the fault element of paragraph 80.2JA(1)(e) would have been recklessness by application of section 5.6 of the Criminal Code. The effect of this would have been that the prosecution would have to prove that the defendant was aware of a substantial risk that the circumstances in subsections 80.2JA(4) or (5) existed, and having regard to the circumstances known to the defendant, it was unjustifiable for them to take that risk. It would not be appropriate for recklessness to apply to subsection 80.2JA(1)(e) because the state of mind of the defendant is irrelevant to the matters in subsections 80.2JA(4) or (5), which relate to:

•

whether a reasonable person would consider that the trading was done for a specified purpose (subparagraph (4)), or

•

whether:

o

the goods traded contain or depict specified content (paragraphs 80.2JA(5)(a)-(b)), and

o

a reasonable person would consider that the news or current affairs report contained in those goods was made by a person working in a professional journalistic capacity, and disseminating the report is in the public interest.

206. Absolute liability means that the defence of reasonable mistake of fact in section 9.2 of the Criminal Code would not be available to the defendant in relation to paragraphs 80.2JA(1)(d) and (e). The matters in paragraph 80.2JA(1)(d) are jurisdictional elements to which the defendant's state of mind is not relevant. Paragraph 80.2JA(1)(e) provides that the offence is not established if the matters in subsections 80.2JA(4) or (5) apply. Determining whether one of the circumstances in subsections 80.2JA(4) or (5) are present does not involve an assessment of what the defendant turned their mind to. Therefore, a reasonable mistake of fact defence would not be appropriate in relation to either of these subsections.

207. The Commonwealth's power to legislate in relation to the trading in goods that depict or contain a prohibited terrorist organisation symbol is restricted by the Constitution. Accordingly, the trading in goods that depict or contain a prohibited terrorist organisation symbol would only constitute an offence where certain jurisdictional requirements were made out (subsection 80.2JA(3)). The offence would only apply where:

•

the trading occurs to any extent outside Australia (noting that Category B geographical jurisdiction, as outlined in section 15.2 of the Criminal Code, would apply to the offence - see item 29, explained below)

•

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

•

the trading occurs within a Territory, or involves transportation to or from a Territory

•

the trading is engaged in by, or on behalf of, a constitutional corporation

•

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 (for example, the goods are transported in the post or the sale is conducted online)

•

the trading occurs to any extent at a Commonwealth place or involves transportation to or from a Commonwealth place

•

the person engaging in the conduct is an alien (an alien is defined in the Criminal Code Dictionary as a person who is an alien for the purposes of paragraph 51(xix) of the Constitution)

•

the trading involves the person:

o

selling the goods to an alien

o

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

o

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 an alien intends to sell them

o

guarding or concealing the goods with the intention of selling them to an alien, with the intention of assisting another person to sell them to an alien or assisting an alien to sell them, or

o

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

208. New subsections 80.2JA(4) and (5) would set out circumstances in which the offence in new subsection 80.2JA would not apply by operation of new paragraph 80.2JA(1)(e). These provisions have been included to ensure that circumstances in which trading of a prohibited terrorist organisation symbol is legitimate and not contrary to the public interest would not be captured by the offence. The prosecution would bear the burden of proving that the subsections (4) and (5) do not apply to the trading of goods bearing a prohibited terrorist organisation symbol beyond a reasonable doubt.

209. Read together with new paragraph 80.2JA(1)(e), new subsection 80.2JA(4) would have the effect that the offence in new subsection 80.2JA(1) does not apply if a reasonable person would consider that the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose, and that the person's trading in the goods is not contrary to the public interest.

210. Given that the purpose of the new trading offence is to prevent the public harm engendered by profiting from the sale of goods depicting or containing a prohibited terrorist organisation symbol, the circumstances set out in subsection 80.2JA(4), in which the offence would not apply, are intentionally prescriptive, seeking to curtail the trade of these goods as much as possible without inappropriately impacting on legitimate activities. The onus would be on the prosecution to prove that a reasonable person would not consider that the trading in the goods was for one of the purposes set out in this provision. The reasonable person test would ensure that a defendant could not simply rely on their own assertions that the trade was done for a religious, academic, educational, artistic, literary or scientific purpose to avoid criminal liability.

211. Examples of circumstances that are intended to be captured by new subsection 80.2AJ(4) are as follows: Terrorist organisations have misappropriated symbols which are considered ancient symbols that continue to hold special significance in various faith-based communities. Therefore, it is necessary that the offence does not apply in circumstances where the goods being traded contain or depict prohibited terrorist organisation symbols, but are being used as objects for religious observance. Further, a museum trading in artefacts that depict or contain a prohibited terrorist organisation symbol in order to educate people about the atrocities committed by terrorist organisations should not be criminalised. Similarly, trading in history textbooks which serve an educational or literary purpose should not be criminalised as these are important activities for our society.

212. The requirement in new paragraph 80.2JA(4)(b) safeguards against individuals using a legitimate purpose as a front for, or in conjunction with, a harmful one. For example, it would not be appropriate for someone who has traded in goods that depict or contain a prohibited terrorist organisation symbol for the purposes of 'educating' young people about the merits of committing terrorist attacks in service of an extremist ideology, to be able to rely on the educational purpose limb in new paragraph 80.2J(4)(a) to avoid criminality because their purpose would be contrary to the public interest.

213. Read together with new paragraph 80.2JA(1)(e), new subsection 80.2JA(5) would have the effect that the offence in new subsection 80.2JA(1) does not apply if the goods being traded contain one or more news reports or current affairs reports (paragraph 80.2JA(5)(a)); each prohibited symbol that the goods depict or contain appears in such a report and only appears in such a report (paragraph 80.2JA(5)(b)); and in relation to each such report in which a terrorist organisation symbol appears, a reasonable person would consider that the report was made by a person working in a professional journalistic capacity (subparagraph 80.2JA(5)(c)(i)) and disseminating the report is in the public interest (subparagraph 80.2JA(5)(c)(ii)).

214. This would ensure that news reports made by not only professional journalists, but other professionals involved in the news and current affairs process that contain prohibited terrorist organisation symbols can be lawfully traded. This recognises the critical role that the dissemination of news plays in our democratic society.

215. The public interest requirement, and the requirement that the journalist, editor, producer and others involved in the making of the news or current affairs report is working in a professional journalistic capacity, are intended to operate to exclude goods that have been traded by organisations for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism or the news and current affairs reporting process. The offence would not apply where a reasonable person would consider that the dissemination of the report as a whole is in the public interest, rather than a particular aspect of the report being in the public interest. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular dissemination.

Defences

216. New subsections 80.2JA(6) to (8) would create offence-specific defences in relation to which the defendant bears the evidential burden of proof by application of subsection 13(3) of the Criminal Code. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty.

217. The offence in new subsection 80.2JA(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment).

218. The offence-specific defences in subsections 80.2JA(6) to (8) recognise that the defendant would be better placed than the prosecution to adduce evidence about the nature of the goods in which they have traded (subsection 80.2JA(6)), the necessity of the trading for the purposes of law enforcement, the administration of justice or a public official's duties or functions (subsections 80.2JA(7) and (8)).

219. The defendant's involvement in the business of trading the goods may include activities such as compiling the goods or marketing, advertising or explaining the goods to potential trading partners. These activities would equip the person conducting the trading with information that would be more difficult and costly for the prosecution to access, and that would be necessary to prove the matters in subsections 80.2JA(6)-(8). For example, in relation to subsection 80.2JA(6), the defendant would be better placed than the prosecution to adduce evidence that the commentary contained in goods, and in which a prohibited terrorist organisation symbol appears, is in the public interest, given the defendant's likely exposure to the community and context in which the commentary is circulated.

220. New subsection 80.2JA(6) would provide that the offence in new subsection 80.2JA(1) does not apply if the goods being traded contain commentary on public affairs (paragraph 80.2JA(6)(a)) and each terrorist organisation symbol that the goods depict or contain appear in the commentary and only appear in the commentary (paragraph 80.2JA(6)(b)). In relation to the commentary in which the prohibited terrorist organisation symbol appears, the making of the commentary must be in the public interest (paragraph 80.2JA(6)(c)). This is an important safeguard to ensure robust political communication can continue in Australia; however, appropriate limitations are imposed to prevent against this provision being inappropriately used to excuse illegitimate trade.

221. The defence would cover circumstances in which a good only contains commentary that is in the public interest, and the prohibited terrorist organisation symbol is contained in that commentary. For example, this provision may cover trading of a publication which seeks to raise awareness of, and opposition to, al-Qaeda by depicting its symbol for the purposes of increasing understanding of harmful activities undertaken by the organisation during the 9/11 attacks.

222. New paragraphs 80.2JA(7)(a) and (b) would provide that the offence in new subsection 80.2JA(1) does not apply if trading in goods depicting or containing a prohibited terrorist organisation symbol is necessary for, or of assistance in, enforcing, monitoring compliance with, or investigating a contravention of, the law of the Commonwealth, a State or Territory, or a foreign country. New paragraph 80.2JA(7)(c) would provide that offence in new subsection 80.2JA(1) does not apply if trading in goods depicting or containing a prohibited terrorist organisation symbol is necessary for, or of assistance in, the administration of justice (whether within or outside Australia). The purpose of these defences is to ensure that the offence does not compromise law enforcement or court proceedings. For example, it may be necessary for a police officer to engage in the trade of goods in situations where the trading would assist in enforcing, monitoring or investigating an offence to prevent more harmful conduct from occurring.

223. New paragraph 80.2JA(8)(a) would provide that the offence in new subsection 80.2JA(1) would not apply if a person trades a good depicting or containing a prohibited terrorist organisation symbol in connection with the performance by a public official of the official's duties or functions, where engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function. This would ensure that people are not at risk of being prosecuted for reasonably performing their duties or functions in line with their position. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable in order to perform the duty or function.

224. New paragraph 80.2JA(8)(b) would provide that the offence in new subsection 80.2JA(1) would not apply if the person trades a good depicting or containing a prohibited terrorist organisation symbol in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions. The person's conduct would also have to be 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. This will ensure that people are not convicted for assisting a public official in relation to the performance of the public official's duties or functions. The use of 'reasonable in the circumstances' would limit the defence to only cover conduct that is reasonable and necessary in order to assist the performance of the duty or function.

225. The notes at the end of subsections 80.2JA(6)-(8) would clarify that the defendant bears an evidential burden in relation to the defences in accordance with existing subsection 13.3(3) of the Criminal Code. It is appropriate that the onus rests with the defendant because these matters will be peculiarly within the defendant's knowledge and will not necessarily be available to the prosecution.

226. New subsection 80.2JA(9) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new section 80.2JA, would be affected by the references to 'function' or 'functions' in paragraphs 80.2JA(8)(a) and (b). The references to 'function' or 'functions' in subsection 80.2JA(8) are intended to inform the meaning of 'duty' or 'duties' for the purposes of section 80.2JA only.

227. New subsection 80.2JA(10) would clarify that the term 'Commonwealth place', as used in section 80.2JA, has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

Section 80.2K - Directions to cease display of prohibited symbols in public

228. New subsection 80.2K(1) would provide police officers with a new power to direct a person, in accordance with new section 80.2L, to cause a prohibited symbol to cease being displayed in a public place (as mentioned in subsection 80.2F(1), but other than on the internet) if subsection 80.2K(2), (3) or (6) applies.

229. This provision would address a gap in the application of existing police powers in relation to the new offence in section 80.2H. Section 80.2K is specifically targeted at providing a new power for a police officer to direct a person to remove a prohibited symbol from public display. However, the power does not empower police officers to remove the prohibited symbol themselves. Providing police officers with this power is necessary to ensure that the central purpose of the public display offence is not frustrated. It is consistent with the purpose of the offence that police officers have an appropriate tool to minimise the harm occasioned to the public by the display of a prohibited symbol.

230. New subsection 80.2K(2) would outline one of the circumstances in which a direction may be given for the purposes of paragraph 80.2K(1)(b). This would apply if a police officer reasonably suspects that the public display involves the types of conduct mentioned in paragraphs 80.2K(2)(a) or (b). These paragraphs require a police officer to suspect, on reasonable grounds, that the conduct involves dissemination of ideas based on racial superiority or racial hatred; or that the conduct could incite another person or a group of persons to offend, insult, humiliate or intimidate a person or a group of persons because of their race. Paragraph 802K(2)(b) uses the word 'could' indicating that it is not necessary for the police officer to reasonably suspect that a person or group has been or is being offended, insulted, humiliated or intimidated because of their race. This highlights the importance of taking action prior to harm occurring.

231. The requirement for a police officer to suspect on reasonable grounds requires the police officer to actually have a suspicion that is reasonable. Subsection 80.2K(2) is intentionally not prescriptive in what is reasonable, as what is reasonable would depend on the circumstances in which the prohibited symbol is displayed in a public place. The inclusion of a reasonable suspicion requirement ensures that the powers will not be erroneously exercised, and that a police officer undertakes an appropriate assessment before giving a direction.

232. New subsection 80.2K(3) would outline another of the circumstances in which a direction may be given for the purposes of paragraph 80.2K(1)(b). This would apply if a police officer reasonably suspects that the public display mentioned in paragraph 80.2K(1)(a) involves advocacy that is advocacy of hatred of a group of persons, or a member of a group, distinguished by race, religion or nationality (paragraph 80.2K(3)(a)). The term 'advocacy' is not defined, and is intended to take its ordinary meaning. It would also apply if a police officer reasonably suspects that the public display constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against a group or a member of the group distinguished by race, religion or nationality (paragraph 80.2K(3)(b)).

233. New subsection 80.2K(4) would clarify that it does not matter whether the conduct in paragraph 80.2K(3)(a) actually results in the hatred of a group. Accordingly, a police officer is not required to reasonably suspect that the hatred actually occurred, but rather must reasonably suspect that the hatred is being advocated. The purpose of subsection 80.2K(4) is to empower a police officer to give a direction without having to first confirm that there has been, or wait until there is, actual hatred of a group. The power has also been constructed so the police officer does not have to ascertain the state of mind of the person who is displaying the prohibited symbol - for example, whether the person intends, or is reckless as to whether, the display caused hatred to a group.

234. New subsection 80.2K(5) would clarify further that it does not matter whether the conduct in paragraph 80.2K(3)(b) actually incites another person. The effect of this is that a police officer is not required to ascertain whether the conduct had the effect of inciting another person to offend, insult, humiliate or intimidate a person, or group of persons, distinguished by race, religion or nationality. The purpose of subsection 80.2K(5) is similar to subsection 80.2K(4). It would empower a police officer to give a direction without having to first confirm that another person has been, or wait until another person is, offended, insulted, humiliated or intimated by another person or group of persons.

235. New subsection 80.2K(6) would outline another circumstance in which a direction may be given for the purposes of paragraph 80.2K(1)(b). This would apply if a police officer reasonably suspects that the public display is likely to offend, insult, humiliate or intimidate a person who is a reasonable person and 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. The use of the term 'sex' is intended to include reference to sexual orientation and gender identities, consistent with interpretations of Article 20 of the ICCPR to which this subsection gives further effect.

236. New subsection 80.2K(7) would provide that a police officer is not required to ascertain whether a member of the group of persons distinguished by the characteristics listed in paragraph 80.2K(6)(b) sees the prohibited symbol while it is displayed in a public place. The purpose of subsection 80.2K(7) is to ensure a police officer is empowered to give a direction, without having to first confirm that a person who is a member of a group of persons for the purposes of paragraph 80.2K(6)(b) has seen the prohibited symbol. The provision has also been constructed so the police officer does not have to ascertain the state of mind of the person who is displaying the prohibited symbol.

237. New subsection 80.2K(8) would provide that a direction issued under subsection 80.2K(1) must specify the time by which the prohibited symbol must cease to be displayed in a public place, and that the time must be reasonable. This would ensure the person to whom the direction is issued can clearly understand what is being required of them in order to comply with the direction. The requirement that the time be reasonable acknowledges that there are circumstances in which it may take time to comply with a direction to cease the display of a prohibited symbol in a public place. For example, if a direction is issued to an occupier of a property that has a prohibited symbol displayed on its front lawn and there is no one at the premises, the occupier would need to arrive at home before the direction could be complied with. Another example may be where the prohibited symbol is painted on a wall that is visible to the public and the directed person needs to obtain paint or some other means to cover the symbol. In other circumstances, it may be reasonable for the direction to stipulate that the prohibited symbol must be taken down immediately, for example, where someone is holding a poster. It is intended that the police officer has the discretion in selecting a time period that is reasonable in the circumstances, having considered the practicalities of complying with the direction as well as the harm being caused by the continued display of the prohibited symbol.

238. Some factors that a police officer may consider when specifying a time period include the nature of the public display and the time it may take to cease displaying the symbol; the location of the public display; the availability of the person who caused a prohibited symbol to be displayed in a public place to be provided with the direction (for example, where the person is overseas or uncontactable, it may not be reasonable to require them to remove the symbol from public display in a particularly short period of time); the harm being caused by the continued public display; and any other matter a police officer deems appropriate in the circumstances.

239. New subsection 80.2K(9) would define the term 'police officer' to mean a member of the Australian Federal Police (AFP) or a special member of the AFP (within the meaning of the Australian Federal Police Act 1979) or a member of a police force of a State or Territory. Section 4 of the Australian Federal Police Act 1979 defines a member of the AFP as the Commissioner of Police, Deputy Commissioner of Police, and an AFP employee in respect of whom a declaration under section 40B of that Act is in force. Section 40B empowers the Commissioner to declare an AFP employee to be a member of the AFP, if the Commissioner is satisfied that person means the competency and qualification requirements set out in section 40C of that Act. A special member of the AFP is a person appointed under section 40E of that Act, and has powers and duties expressly conferred or imposed by the Act or instrument of the special member's appointment.

240. New subsection 80.2K(9) would ensure State and Territory police officers may use the directions power. State and Territory police forces are more active in local communities and may be able to respond more quickly to incidents in which prohibited symbols are publicly displayed. The intention is that these powers would complement any similar State and Territory powers.

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

241. New subsection 80.2L(1) provides that a police officer may only give a direction in accordance with specified criteria outlined by subsections 80.2L(2), (3) and (4).

242. New subsection 80.2L(2) outlines certain factors that a police officer must suspect on reasonable grounds prior to giving a direction. The police officer must suspect on reasonable grounds:

•

that one or more of the following is satisfied:

o

the person caused the prohibited symbol to be displayed in a public place (subparagraph 80.2L(2)(a)(i)),

o

the person is an owner or occupier of the land or premises on, at or from which the prohibited symbol is displayed (subparagraph 80.2L(2)(a)(ii)), or

o

the person is an owner or an occupant of the aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place (subparagraph 80.2L(2)(a)(iii)), and

•

there are steps the person can take to cause the prohibited symbol to cease to be displayed in a public place (paragraph 80.2L(2)(b)).

243. The requirement in paragraph 80.2L(2)(a) for the police officer to reasonably suspect that a circumstance in subparagraphs 80.2L(2)(a)(i), (ii) or (iii) exists would ensure the appropriateness of a direction is assessed each time a direction is given.

244. New subparagraph 80.2L(2)(a)(i) provides that a direction may be given if a police officer suspects on reasonable grounds that the person caused the symbol to be displayed in a public place. It is intended that a police officer would first seek to identify the individual who carried out the public display. This would ensure that bystanders with no involvement are not given a direction. For example, a police officer might be satisfied there are reasonable grounds to suspect that a person standing in front of a depiction of a Nazi double sig rune raised on a flag pole in a public park, yelling about killing members of a group of persons, caused the prohibited symbol to be displayed.

245. In circumstances where a police officer is unable to identify that a specific person caused a prohibited symbol to be displayed in a public place, new subparagraph 80.2L(2)(a)(ii) would ensure that a direction could be issued to a person whom a police officer suspects on reasonable grounds is an owner or occupier of the land or premises. It is intended that a police officer would seek to identify the occupier, and if unable to identify the occupier, would then seek to identify the owner. It is appropriate to impose the onus of removing the symbol from public display upon an owner or occupier of the land or premises due to the community harm that can be engendered by the continued public display of a prohibited symbol. This provision would allow a police officer to issue a notice to an owner(s) or occupier(s) of the land or premises to remove the prohibited symbol from public display. For example, if police approached a four-person household, the police could direct one or all occupiers of the residence to remove the prohibited symbol from public display.

246. New subparagraph 80.2L(2)(a)(ii) would also allow a direction to be issued to owners or occupiers of public land. It is intended that the burden of removal would be placed upon any individual, organisation, government or entity that, for example, has specific rights or responsibilities to use or manage land for a specified purpose. These purposes could include, but are not limited to, agriculture, development, conservation, maintenance or public service purposes.

247. New subparagraph 80.2L(2)(a)(iii) would provide that a police officer can give a direction to an owner or occupier where a prohibited symbol is displayed on or from an aircraft, vehicle or vessel. Similar to paragraph 80.2L(2)(a)(ii), this provision would enable a police officer to issue a notice to one or all of the owner(s) or occupants(s) of the aircraft, vehicle or vessel to remove the prohibited symbol from public display. It is intended that a police officer would seek to identify the occupier, and if unable to identify the occupier, would then seek to identify the owner of the aircraft, vehicle or vessel. For example, if a person is driving a car with a Nazi hakenkreuz sticker on it, a police officer could give a direction to that person to cause the prohibited symbol to be removed, as the police officer would likely have reasonable grounds to suspect that the person is an occupier or is an owner, of the car.

248. New paragraph 80.2L(2)(b) would require a police officer to reasonably suspect that there are steps a person can take to remove the prohibited symbol from public display. This would ensure that a police officer cannot direct a person to take steps where it would not be possible, or where it would be dangerous, for a person to take those steps. This requirement will also ensure that the most appropriate person is directed by the officer, having considered the practicalities of removing the symbol from display. Police officers exercising these powers will be subject to existing accountability mechanisms and will be required to record the use of these powers in accordance with existing procedures and requirements.

249. New subsection 80.2L(2) also clarifies that a direction may be given orally or in writing.

250. New subsections 80.2L(3) and (4) would allow for the direction to be made in writing and left on or at the land, premises, aircraft, vessel or vehicle at, in or from which the prohibited symbol is displayed in a public place. This would ensure that the direction could still be made if an owner or occupier of the relevant place is unavailable for the direction to be given to them directly. In such circumstances, the officer would need to consider what a reasonable time for compliance would be.

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

251. New subsection 80.2M(1) would establish an offence in circumstances when a person does not comply with a direction given under subsection 80.2K(1) to remove a prohibited symbol from public display in the time specified in the direction. The offence would incentivise compliance with directions given by police officers in recognition of the harm that public display of prohibited symbols causes to the community. The offence would carry a penalty of 20 penalty units (new subsection 80.2M(1)). The value of a penalty unit is prescribed in section 4AA of the Crimes Act. This maximum penalty reflects the principle in the Guide that an offence should have a 'maximum penalty that is adequate to deter and punish a worst-case offence'.

252. The fault element of recklessness would apply to paragraph 80.2M(1)(a), by application of section 5.6 of the Criminal Code. This would be particularly relevant in circumstances where a direction has not been given to a person directly, but rather a direction has been affixed to land, a premise, an aircraft, a vehicle or a vessel.

253. New subsection 80.2M(2) would provide that strict liability, as outlined in section 6.1 of the Criminal Code, would apply to paragraph 80.2M(1)(b). Section 6.1 of the Criminal Code provides that the application of strict liability negates the requirement to prove fault. Strict liability is appropriate for the purposes of paragraph 80.2M(1)(b) because the state of mind of the person to whom the direction is made is irrelevant as to whether the person has failed to comply with a direction with the specified time period. It would still be open to the defendant to raise a defence of mistake of fact under section 9.2 of the Criminal Code.

254. New subsection 80.2M(3) would set out defences to the offence in new subsection 80.2M(1). It would provide that the offence in subsection 80.2M(1) would not apply in relation to the display of a prohibited symbol in a public place if:

•

the conduct that caused the prohibited symbol to be displayed in a public place was genuinely engaged in for a religious, academic, educational, artistic, literary or scientific purpose not contrary to the public interest (paragraph 80.2M(3)(a)), or

•

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 in the public interest and made by a person working in a professional capacity as a journalist (paragraph 80.2M(3)(b)), or

•

if the prohibited symbol is a prohibited Nazi symbol-any of paragraphs 80.2H(10)(a) to (g) applies to the conduct that applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place (paragraph 80.2M(3)(c)), or

•

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 (paragraph 80.2M(3)(d)).

255. Subsection 80.2M(3) recognises that if the conduct that caused a prohibited symbol or a prohibited terrorist organisation symbol to be displayed in a public place does not constitute the offence in subsection 80.2H(1) or 80.2HA(1), or meets the criteria for one of the defences to the offences, the symbol should not need to be removed from display. It clarifies that the defences available in relation to the public display of a prohibited Nazi symbol are set out in paragraphs 80.2H(10)(a)-(f) and the defences available in relation to the public display of a prohibited terrorist organisation symbol are set out in paragraphs 80.2HA(10)(a)-(f). For example, if a person displays a sacred Swastika for a genuine religious purpose at a Hindu festival occurring in a public place, and a police officer mistakes the symbol for a Nazi hakenkreuz and issues a direction, neither the person who displayed the symbol nor the owner or occupier of the premises on which it is displayed, should have to comply with a direction to remove it from display.

256. New subsection 80.2M(4) would recognise that it does not matter whether the public display was done by the person who is given the direction. This would clarify that the defences in subsection 80.2M(3) are focused on the conduct that caused the symbol to be publicly displayed, regardless of whether it is the person that caused the display, or another person, who receives the direction to remove it from display.

257. New paragraph 80.2M(5)(a) would recognise that responsibility for removing a prohibited symbol from public display does not rest with someone who has not caused the prohibited symbol to be displayed, and does not own or occupy the land, premises, aircraft, vehicle or vessel on, at, or from which the symbol is publicly displayed. For example, a bystander adjacent to a yard where a prohibited symbol is displayed should not be required to remove a symbol that another person displayed, when that bystander is not an owner or occupier of the yard. It is appropriate that the defendant bears an evidentiary burden in relation to the matters in paragraph 80.2M(5)(a) because it would be considerably more straightforward and cost effective for the defendant to adduce evidence in relation to these matters than the prosecution.

258. New paragraph 80.2M(5)(b) would recognise that there may be circumstances in which the removal of a prohibited symbol from public display is not possible in the timeframe stipulated in the direction, or not possible at all. An example of where it may not be possible for a person to comply with a direction from a police officer in the specified timeframe could be if a person is overseas and could not affect the direction. By way of further example, it may not be possible for a person to remove a prohibited symbol from public display if taking the necessary steps to achieve this would put the person in a dangerous situation. It is appropriate that the defendant bears an evidentiary burden in relation to the matters in paragraph 80.2M(5)(b) because it would be considerably more straightforward and cost effective for the defendant to adduce evidence in relation to matters such as their geographical location at the time the direction was issued, or their physical capacity to remove the symbol from public display, than the prosecution. Some of these matters are also likely to be within the unique knowledge of defendant.

259. What constitutes reasonable steps for the purpose of new paragraph 80.2M(5)(b) will depend on the circumstances and context in which the direction is issued to the recipient. When considering what is reasonable, it is intended that consideration be given to the actions that a person took to cause a prohibited symbol to cease to be displayed, and any constraints or potential risks. It is not intended that an individual is required to, for example, commit an unlawful act in order to take steps to remove the symbol.

260. Reasonable steps may include removing a poster that depicts a prohibited symbol from the recipient's street-facing window or removing stickers displaying prohibited symbols from the recipient's car. It would be unreasonable, for example, to require the person to trespass onto another person's property in order to remove a poster depicting a prohibited symbol.

261. The matters in new subsections 80.2M(3) and (5) are offence-specific defences in relation to which the defendant bears the evidential burden of proof, by application of subsection 13.3(3) of the Criminal Code. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where there are matters which are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Further, the Guide provides that creating an offence-specific defence is more readily justified if the offence carries a relatively low penalty. The offence in new subsection 80.2M(1) carries a low maximum penalty (20 penalty units) relative to those that apply to the other offences in Division 80 of the Criminal Code (12 months to 7 years imprisonment, including the offence in new section 80.2H(1)). It would not be reasonable for the prosecution to have to prove the elements set out in subsections 80.2M(3) and (5) for the reasons set out above. The defendant would be significantly better placed to put forward evidence about the reasonable steps they took to comply with the direction. By comparison, it would be significantly more costly and difficult for the prosecution to understand what steps were available to the defendant.

Item 6 - Extended geographical jurisdiction

262. Category B geographical jurisdiction, as outlined in section 15.2 of the Criminal Code, would apply to the offences in new Subdivision CA through the operation of subsection 80.4(2) as amended. Category B geographical jurisdiction enables an offence to operate:

•

when the conduct constituting the alleged offence occurs wholly or partly either in Australia; or wholly or partly on board an Australian aircraft or ship (paragraph 15.2(1)(a) of the Criminal Code), or

•

when the conduct constituting the alleged offence occurs wholly outside Australia and a result, of that conduct occurs either wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship (paragraph 15.2(1)(b) of the Criminal Code), or

•

when the conduct constituting the alleged offence occurs wholly outside Australia and at the time of the alleged offence, the defendant is an Australian citizen, an Australian resident or a body corporate incorporated under an Australian law (paragraph 15.2(1)(c) of the Criminal Code), or

•

the alleged offence is an ancillary offence; and the conduct constituting the alleged offence occurs wholly outside Australia; and the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or ship (paragraph 15.2(1)(d) of the Criminal Code).

263. Section 15.2 provides certain defences to extraterritorial application.

Item 7 - Dictionary

264. This item would also would insert a definition of the term 'displayed in a public place' into the Criminal Code Dictionary and provide that this term has the meaning given by new section 80.2F, explained above.

265. This item would also would insert a definition of the term 'prohibited symbols' into the Criminal Code Dictionary and provide that this term has the meaning given by new section 80.2E, explained above.

266. This item would also insert a definition of the term 'public place' into the Criminal Code Dictionary and define it to include any place to which the public, or a section of the public, has access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. The definition is intended to capture both physical and online places.

267. This item would insert a definition of the term 'journalistic capacity' into the Criminal Code Dictionary and provide that this term means a capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports.

268. This item also would insert a definition of the term 'makes a gesture in a public place' into the Criminal Code Dictionary, and provide that this term has the meaning given by new section 80.2FA.

269. This item would also insert a definition of 'prohibited Nazi symbol' into the Criminal Code Dictionary and provide that this term has the meaning given by new subsection 80.2E(2).

Item 8 - Transitional provisions

270. The effect of this item would be that, for the purposes of Subdivision CA of Division 80 of the Criminal Code, if a person caused a thing to be displayed in a public place before the commencement of this item, and on commencement, the thing had not ceased to be displayed in a public place, the person is taken to cause, from that point in time, the thing to be displayed in a public place.

271. This means, for example, that a person who displayed a prohibited symbol on their fence prior to when Item 8 commenced, and left it there after commencement, would be taken to have publicly displayed the prohibited symbol at the time of commencement, and could accordingly be captured by the offence in new section 80.2H.

272. The public display offence would not, however, apply retrospectively. Circumstances in which a prohibited symbol was displayed in a public place wholly before the commencement of these provisions and is no longer displayed, would not be captured by the offence.

Schedule 2 - Use of carriage service for violent extremist material

Crimes Act 1914

Item 1 - Subsection 3(1) (after paragraph (b) of the definition of terrorism offence )

273. This item would amend subsection 3(1) of the Crimes Act to expand the definition of 'terrorism offence' to include an offence against new Subdivision HA of Division 474 of the Criminal Code. This means that new offences for using a carriage service for violent extremist material and for possessing or controlling violent extremist material obtained or accessed using a carriage service, would be terrorism offences. This would have a number of implications, including that the AFP would have access to control orders under Division 104 of the Criminal Code to prevent or respond to the commission of these offences, and advocating the commission of either of these offences would constitute an offence under section 80.2C (advocating terrorism) of the Criminal Code.

Item 2 - At the end of subsection 15GE(3)

274. This item would amend subsection 15GE(3) of the Crimes Act to explicitly provide that an offence against new Subdivision HA of Division 474 of the Criminal Code is a 'serious Commonwealth offence' for the purposes of Part IAB (controlled operations) of the Crimes Act.

Criminal Code Act 1995

Item 3 - After Subdivision H of Division 474 of the Criminal Code

Offences relating to use of carriage service for violent extremist material

275. This item would insert new Subdivision HA 'Offences relating to use of carriage service for violent extremist material' into Division 474 of the Criminal Code. This Subdivision would be located after Subdivision H (Offences relating to use of carriage service for sharing of abhorrent violent material) and would contain new sections 474.45A to 474.45E.

276. The offences in new Subdivision HA would address a gap in the offence regime in the Criminal Code. Existing offences criminalise the possession of things connected with terrorist acts (section 101.4), and collecting or making documents likely to facilitate terrorist acts (section 101.5). These provisions attach criminality to the circumstances in which material is possessed, however there is currently no Commonwealth offence that attaches criminality to the nature of material possessed or dealt with. These existing offences also require a connection to a terrorist act, which means law enforcement may be unable to intervene at an earlier stage.

277. The current legislative regime dealing with abhorrent violent material in the Criminal Code (Subdivision H) targets persons or companies who provide content services or hosting services (as opposed to any person who uses such a service), who fail to expeditiously remove, or cease to host, that material. The new offences in Subdivision HA would target individuals who deal with violent extremist material.

278. The new offences in Subdivision HA would complement existing offences by facilitating law enforcement intervention at an earlier stage in an individual's progression to violent radicalisation. The offences would also provide greater opportunity for the disruption of violent extremist networks.

279. By attaching criminality to the nature of material possessed, the offences would reflect the harm that is inherent in violent extremist material. Violent extremist material is harmful because it facilitates radicalisation. Violent extremist material may encourage and assist in planning violent acts. These acts can threaten public safety, and Australia's core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion as it can vilify and portray or encourage violence against certain groups in society. Australians have the right to live free from discrimination, hatred and violence.

280. These new offences would not be intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory, as per the operation of section 475.1 of the Criminal Code. This would include similar State and Territory offences, such as South Australia's offence for the possession, production or distribution of extremist material (section 37 of the Summary Offences Act 1953 (SA)), which would continue to operate alongside the offences in Subdivision HA. This approach would be consistent with the approach taken in other areas of criminal law, such as terrorism, fraud, computer crime, money laundering, drug offences and sexual servitude. It is intended that the offences would be investigated in accordance with the established division of responsibility between Commonwealth, State and Territory law enforcement agencies.

281. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, would apply to the offences in Subdivision HA through the operation of section 475.2. Category A geographical jurisdiction means that irrespective of whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A geographical jurisdiction would also cover instances where an Australian citizen in another country engages in conduct that is an offence, even if that citizen's conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

Section 474.45A Meaning of violent extremist material

282. New section 474.45A would set out the definition of 'violent extremist material'. It would provide that in order to constitute violent extremist material, material must satisfy the matters in all of paragraphs 474.45A(1)(a)-(c).

283. The definition of 'material' in existing section 473.1 of the Criminal Code would apply to Subdivision HA. This provides that material includes material in any form, or combination of forms, capable of constituting a communication. The intention is for this term to capture a variety of formats including, but not limited to, text, audio, visual or audio-visual material, or a combination of these formats.

284. New paragraph 474.45A(1)(a) would set out the first of the requirements for violent extremist material. It would provide that the material must do one of the following:

•

describe or depict serious violence (subparagraph 474.45A(1)(a)(i)),

•

provide instruction on engaging in serious violence (subparagraph 474.45A(1)(a)(ii)). This is intended to capture material, regardless of whether or not it describes or depicts violence, that provides guidance or directions that a person could reasonably follow to engage in serious violence, or

•

support or facilitate serious violence (subparagraph 474.45A(1)(a)(iii)). This is intended to capture material, regardless of whether or not it describes or depicts violence, that provides encouragement or assistance to a person in committing or assisting in the commission of serious violence.

285. Serious violence would be defined for the purposes of this provision by reference to the matters in existing subsection 100.1(2) of the Criminal Code (see new subsection 474.45A(2), explained below).

286. New paragraph 474.45A(1)(b) would set out the second of the requirements for violent extremist material. It would require that, in addition to the material meeting the requirements in paragraphs 474.45A(1)(a) and (c), a reasonable person would consider that, in all the circumstances, the material is intended to, directly or indirectly, advance a political, religious or ideological cause. It would not require that a reasonable person would consider that this is the only purpose of the description, depiction, instruction, support or facilitation of serious violence (see subsection 474.45A(4)). New paragraph 474.45A(1)(b) is not intended to capture material that advances causes that are not political, religious or ideological in nature. For example, causes that are purely scientific, philosophical or philanthropic in nature would not be captured by the offence.

287. This requirement (together with the requirements in paragraph 474.45A(1)(c)) would ensure that material that is treated as violent extremist material for the purposes of Subdivision HA has an extremist character. Extremist material espouses or promotes extreme ideas, beliefs and attitudes and it may be used to radicalise others to a particular ideology. It may also support or inspire a person to take violent action. The notion of advancing a political, religious or ideological cause is intended to have a similar meaning to the term as it is used in the context of the definition of 'terrorist act' as set out in section 100.1 of the Criminal Code.

288. The reasonable person test in paragraph 474.45A(1)(b) has been included to ensure that this limb of the definition of violent extremist material is considered objectively. The actual intentions of the creator or distributor of the material, the views of its consumer(s) or the expected views of its intended audience are not intended to be determinative of what may be considered to be an intended purpose of the description, depiction, instruction, support or facilitation of serious violence in the material.

289. New paragraph 474.45A(1)(c) would set out the third of the requirements for violent extremist material. It would require that a reasonable person would consider that, in all the circumstances, the material is intended to assist, encourage or induce a person to:

•

engage in, plan or prepare for an intimidatory act (new subparagraph 474.45A(1)(c)(i)),

•

do a thing that relates to engaging in, planning or preparing for, an intimidatory act (new subparagraph 474.45A(1)(c)(ii)), or

•

join or associate with an organisation that is directly or indirectly engaged in the doing of any intimidatory act, or that is preparing, planning, assisting in or fostering the doing of any intimidatory act (new subparagraph 474.45A(1)(c)(iii)).

290. New paragraph 474.45A(1)(c) would not require that a reasonable person would consider that any of the purposes listed in that paragraph is the only intended purpose of the description, depiction, instruction, support or facilitation of serious violence (see subsection 474.45A(4)).

291. This requirement in paragraph 474.45A(1)(c) (together with the requirements in paragraph 474.45A(1)(b)) would ensure that material that is treated as violent extremist material for the purposes of Subdivision HA has an extremist character. The reasonable person test has been included to ensure that this limb of the definition of violent extremist material is considered objectively. The intentions of the creator or distributor of the material, the views of its consumer(s) or the expected views of its intended audience are not intended to be determinative of what may be considered to be an intended purpose of the description, depiction, instruction, support or facilitation of serious violence in the material.

292. New subsection 474.45A(2) would define 'serious violence', which is a key concept for the purposes of new paragraph 474.45A(1)(a), as action that falls within existing subsection 100.1(2). Existing subsection 100.1(2) is part of the Criminal Code's definition of 'terrorist act'. This includes action that causes physical harm to a person; serious damage to property; a person's death; endangerment to a person's life (other than the life of the person taking the action); serious risk to the health or safety of the public or a section of the public; or serious interference with, serious disruption or destruction of an electronic system.

293. Serious violence has been defined in this way to ensure that violent extremist material includes only material that deals with conduct so serious as to engender public harm purely through its possession or distribution. Recognising the importance of citizen's rights to communicate and consume material freely, limiting the application of the offences in Subdivision HA to conduct in relation to a narrowly defined category of material, the content of which is extremely serious, would ensure that these rights are not unreasonably restricted. Further, it would ensure that the offence is fit for its primary purpose which is to prevent violent extremist networks from using this material to radicalise others to, or assist others to engage in, violence.

294. New subsection 474.45A(3) would define intimidatory act, which is a key term in new paragraph 474.45A(1)(c). It would provide that an intimidatory act is a violent action or threat of violent action where the action is done, or the threat is made, with the intention of:

•

coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a state, territory or foreign country, or

•

intimidating the public or a section of the public.

295. 'Intimidatory acts' referred to in paragraph 474.45A(1)(c) are defined in subsection 474.45A(3). An intimidatory act does not need to be an act or threat of 'serious violence' as defined in new subparagraph 474.45A(2). The two concepts are used for different purposes in the definition of violent extremist material. Serious violence is used in paragraph 474.45A(1)(a) to ensure the violence that is described, depicted, instructed on, supported or facilitated is serious. This ensures the scope of material caught represents or supports serious harm. By comparison, paragraph 474.45A(1)(c) is focused on the result the material is intended to have. Paragraph 474.45A(1)(c) provides that the intended result is to involve a violent action or threat of violent action. Coercing, or influencing by intimidation, a government, or intimidating the public, or section of the public, through any form, or threat of, violence is not a legitimate means of advocacy and is appropriately criminalised.

296. New paragraph 474.45A(4)(a) would have the effect that even where material is reasonably considered to have multiple intended purposes, it can nonetheless meet the requirements in paragraphs 474.45A(1)(b) or (c), if the reasonable person considers that one of its intended purposes is a matter set out in those paragraphs. It would not need to be the sole or even primary intended purpose, so long as a reasonable person, in all the circumstances, would consider it to be an intention of the material.

297. New paragraph 474.45A(4)(b) would have the effect that, for the purpose of the definition of intimidatory act in subsection 474.45A(3), an action may be done, or a threat may be made, with an intention of coercing, or influencing by intimidation, a government; or intimidating the public, or a section of the public, even if that intention is one of a number of intentions, and even if it is not the main intention, with which the action is done or the threat is made. The definition will capture actions done or threats made with multiple intentions, provided that at least one of those intentions is a matter set out in subsection 474.45A(3).

298. New subsection 474.45A(5) would clarify that two or more items of material can constitute violent extremist material if it is reasonable to consider that the material together with other material, and were all the material to be taken to be a single item of material, it would constitute violent extremist material under subsection 474.45A(1). This means that the definition of violent extremist material at subsection 474.45A(1) could be satisfied by a collection of two or more items where it would be reasonable to consider the material together.

299. New subsection 474.45A(5) recognises that a collection of material may have a different character than an individual piece of material considered in isolation. In the case of persons dealing with violent extremist material, law enforcement has advised that it is more common for individuals to possess items of violent material and items of extremist material, neither of which would meet the requirements in subsection 474.45A(1) on their own, but when reasonably considered in aggregate, certainly would. Considering multiple pieces of material in aggregate, where it is reasonable to do so, provides the holistic, contextual picture necessary to make an accurate assessment about the nature of the material. Subsection 474.45A(5) is intended to ensure that a person would not be able to avoid criminal liability under new Subdivision HA by keeping different items of material separate in order to avoid the material meeting all of the requirements in subsection 474.45A(1).

300. The requirement in subsection 474.45A(5) that it is reasonable to consider two or more pieces of material together is intended to safeguard against arbitrariness in determining whether two or more pieces of material should be considered together in a given situation. Matters that may be relevant to determining whether it is reasonable to consider two or more items of material together may include that the items of material are stored on a single device, shared with others in a single email or text message chain, or uploaded as a single digital file. However, circumstances in which two or items of material are stored or shared separately are not intended to automatically exclude the possibility that it would be reasonable to consider the material together. The matters relevant to making such a determination would be case dependant.

301. If the prosecution is relying on subsection 474.45A(5) to consider two or more items of material together to satisfy the definition of violent extremist material at subsection 474.45A(1), they would need to prove that the person was reckless in relation to the matters in subsection 474.45A(5).

302. Examples of material that may constitute violent extremist material include, but would not be limited to, images and videos depicting terrorist incidents such as violent extremist manifestos and propaganda; and instructional material covering topics such as how to build a bomb, attack a person, or manufacture harmful chemicals.

Section 474.45B Using a carriage service for violent extremist material

303. New section 474.45B would set out the new offence for using a carriage service for violent extremist material.

304. To make out the offence, the prosecution would be required to prove that:

•

the person accesses the material, or causes the material to be transmitted to the person, transmits, makes available, publishes, distributes, advertises, promotes or solicits material, or does any of the prior conduct in relation to a link that can be used to access the material (paragraph 474.45B(1)(a)),

•

the person does so using a carriage service (paragraph 474.45B(1)(b)), and

•

the material is violent extremist material (paragraph 474.45B(1)(c)).

305. The offence would carry a maximum penalty of 5 years imprisonment. This maximum penalty reflects the principle in the Guide that an offence should have a 'maximum penalty that is adequate to deter and punish a worst-case offence'. It is also appropriate noting the deterrent and early intervention objectives of the offence, and would reflect the potential range of offending that may occur. The 5-year maximum penalty is lower than existing offences that require a connection to a terrorist act and therefore attract higher penalties such as possessing things connected with terrorist acts (section 101.4 of the Criminal Code), and collecting or making documents likely to facilitate terrorist acts (section 101.5 of the Criminal Code).

306. The terms in new paragraph 474.45B(1)(a) are intended to cover a broad range of activities that a person could undertake in relation to violent extremist material which amount to dealing with the material or a link to the material via a carriage service. This would include actions a person takes with violent extremist material or an electronic link in relation to themselves, and actions a person takes that enable others to engage with violent extremist material or an electronic link to that material. This would reflect the harmful impact that this material has on all who come into contact with it. 'Makes available' in new subparagraph 474.45B(1)(a)(iii) is defined in the Criminal Code Dictionary as including, but not limited to, describing how to obtain access, or describing methods that are likely to facilitate access, to material (for example: by setting out the name of a website, a password, or the name of a newsgroup). Other terms in paragraph 474.45B(1)(a) would take their ordinary meaning.

307. New subsection 474.45B(1)(a) provides that a person commits an offence if they 'access' violent extremist material. Section 473.1 of the Criminal Code defines 'access' for the purpose of Part 10.6 (in which the new violent extremist material provisions are located). The term includes the display of the material by a computer or any other output of the material from a computer, or the copying or moving of the material to any place in a computer or to a data storage device.

308. New paragraph 474.45B(1)(b) would require that the defendant used a carriage service in relation to the violent extremist material or an electronic link to the material. Using a carriage service (paragraph 474.45B(1)(b)) provides the relevant connection to the legislative power under paragraph 51(v) of the Constitution. The term 'carriage service' is defined in the Criminal Code Dictionary as having the same meaning as in the Telecommunications Act 1997. Use of a carriage service includes, but is not limited to, use of the internet, web pages, social media applications, email, chat forums, text messages and radio.

309. New paragraph 474.45B(1)(c) would require that the material is violent extremist material. New section 474.45A would define violent extremist material.

310. New paragraph 474.45B(2)(a) would provide that the fault element attached to paragraph 474.45B(1)(a) is intention. 'Intention' is defined in section 5.2 of the Criminal Code.

311. New paragraph 474.45B(2)(b) would provide that the fault element attached to paragraph 474.45B(1)(c), 'the material is violent extremist material', is recklessness. 'Recklessness' is defined at section 5.4 of the Criminal Code. By operation of this fault element, a person who accidentally comes across violent extremist material on the internet without any warning from the context would not be caught by the offence, because they would not have been reckless as to the nature of the material.

312. New subsection 474.45B(3) would provide that absolute liability, as outlined in section 6.2 of the Criminal Code, would apply to the matter in paragraph 474.45B(1)(b). Paragraph 474.45B(1)(b) sets out a jurisdictional element of the offence. A jurisdictional element is a physical element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The Guide provides that absolute liability should apply to jurisdictional elements.

313. The treatment of dealing with an electronic link to material in the same manner as the material itself in the offence recognises the mechanisms commonly used to deal with material through a carriage service. Dealing with an electronic link to the material, is simply a method of dealing with the material itself which gives the recipient ready access to the material and will bring about the same impact. The offence has been crafted in such a way to capture both forms of conduct.

Section 474.45C Possessing or controlling violent extremist material obtained or accessed using a carriage service

314. New section 474.45C would create a new offence for the possession or control of violent extremist material in the form of data held in a computer or contained in a data storage device, where the person used a carriage service to obtain or access the material. The scope of the offence would include control of violent extremist material in the form of data, including material stored in remote data storage (including cloud hosting) that may be physically located in Australia or overseas due to the operation of paragraph 473.2(c) of the Criminal Code. The proposed offence would facilitate law enforcement intervention at an earlier stage in an individual's progress to violent radicalisation, and provide greater opportunity for rehabilitation and the disruption of violent extremist networks.

315. To make out the offence, the prosecution must prove:

•

the person has possession or control of the material (new paragraph 474.45C(1)(a)), and

•

the material is in the form of data held in a computer, or contained in a data storage device (new paragraph 474.45C(1)(b)), and

•

the person used a carriage service to obtain or access the material (new paragraph 474.45C(1)(c)), and

•

the material is violent extremist material (new paragraph 474.45C(1)(d)).

316. The offence would carry a maximum penalty of 5 years imprisonment. This maximum penalty reflects the principle in the Guide that an offence should have a 'maximum penalty that is adequate to deter and punish a worst-case offence'. It is also appropriate noting the deterrent and early intervention objectives of the offence, and would reflect the potential range of offending that may occur. The 5-year maximum penalty is lower than existing offences that require a connection to a terrorist act and therefore attract higher penalties such as possessing things connected with terrorist acts (section 101.4 of the Criminal Code), and collecting or making documents likely to facilitate terrorist acts (section 101.5 of the Criminal Code).

317. The reference to 'possession' of material in paragraph 474.45C(1)(a) has the meaning given by section 473.2 of the Criminal Code. To determine whether the defendant had possession of the material, the trier of fact must prove:

•

the person had possession of the material, and

•

the person intended to possess the material.

318. There may be circumstances in which a person has possession of a computer or data storage device that contains violent extremist material, but the person does not have possession of that material. For example, material may be stored on a user profile on a computer but that profile is not that of the computer's owner and the computer's owner does not have access to that profile. In this circumstance, it would not necessarily follow that possession of the storage medium equates to 'possession' of the material.

319. Alternatively, a person may possess material saved to a user profile on a computer, where the computer is not in their possession. The possession of material is not necessarily equivalent with the possession of the computer or data storage device that holds or contains it.

320. The reference to 'control' of material in paragraph 474.45C(1)(a) has the meaning given by section 473.2 of the Criminal Code. This includes control of data that is located on a remote data storage device, which may be in the physical possession of another person. To determine whether the defendant had control of the material, the trier of fact must prove:

•

the person had control of the material, and

•

the person intended to have control of the material.

321. The Criminal Code does not define 'computer'. References to 'computer' are intended to be broad enough to enable the offence to achieve and maintain technological neutrality, and to take into account technological advancements that could occur in the future.

322. The Criminal Code Dictionary defines 'data held in a computer' as:

•

data held in any removable storage device that is at the time being held in a computer, or

•

data held in a data storage device on a computer network of which the computer forms a part.

323. The reference to 'data held in a computer' in paragraph 474.45C(1)(b) is intended to be broad enough to enable the offence to achieve and maintain technological neutrality, and to take into account technological advancements that could occur in the future.

324. The Criminal Code Dictionary defines a 'data storage device' as a thing (for example, a disk or file server) containing, or designed to contain, data for use by a computer. The reference to data contained in a data storage device includes where the storage device is physically located in or outside of Australia.

325. New paragraph 474.45C(1)(c) would require that the material was obtained or accessed by the defendant by the use of a carriage service. The use of a carriage service provides the relevant connection to the legislative power under paragraph 51(v) of the Constitution. The term 'carriage service' is defined in the Criminal Code Dictionary as having the same meaning as in the Telecommunications Act 1997. Use of a carriage service includes, but is not limited to, use of the internet, web pages, social media applications, email, chat forums, text messages and radio.

326. New subsection 474.45C(2) would provide that intention applies as the fault element for the conduct in paragraph 474.45C(1)(a), and recklessness is the fault element for the circumstance that the material is violent extremist material in paragraph 474.45C(1)(d). These are the default fault elements that would have applied if this subsection was not included, by application of section 5.6 of the Criminal Code. 'Intention' and 'recklessness' are defined in sections 5.2 and 5.4 of the Criminal Code, respectively.

327. New subsection 474.45C(3) would provide that strict liability, as outlined in section 6.1 of the Criminal Code, would apply to the matter in paragraph 474.45C(1)(b). The effect of applying strict liability to the matter in paragraph 474.45C(1)(b) would mean no fault element would need to be proven for that element of the offence, and the defence of mistake of fact under section 9.2 of the Criminal Code would be available in relation to that element. Requiring the prosecution to prove that the defendant knew or was reckless as to whether the material was in the form of data held in a computer or contained in a data storage device would undermine enforcement of the offence and deterrence against this conduct, as it would allow defendants to evade liability by remaining wilfully blind to the technical aspects of how the material, in the form of data, was stored.

328. New subsection 474.45C(4) would provide that absolute liability, as outlined in section 6.2 of the Criminal Code, would apply to the matter in paragraph 474.45C(1)(c). Paragraph 474.45C(1)(c) sets out a jurisdictional element of the offence. A jurisdictional element is a physical element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The Guide provides that absolute liability should apply to jurisdictional elements.

329. New subsection 474.45C(5) would establish a presumption that where a defendant possesses or controls violent extremist material in the form of data held in a computer or contained in a data storage device, that material was obtained or accessed by the defendant using a carriage service. It would have the effect that, if the prosecution proves beyond reasonable doubt that the person had possession or control of material, the material is in the form of data held in a computer or contained in a data storage device, and the material is violent extremist material, it is presumed that the person used a carriage service to obtain or access the material. This presumption would stand unless the defendant proves that they did not obtain or access the material using a carriage service.

330. The purpose of this presumption would be to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical. Such evidence can be circumstantial, including for example that the defendant's computer had chat logs saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard drive. A presumption in this instance is appropriate, given it is not an element that goes to the substance of the offence or to the person's criminal culpability. Rather, it is a jurisdictional element; that is, an element marking a boundary between matters that fall within the legislative power of the Commonwealth, and those that do not.

331. The onus would be on the defendant to prove that they used a method other than a carriage service to obtain or access the material. The prosecution would not need to prove that the person accessed or obtained the material using a carriage service beyond a reasonable doubt unless the defendant discharged their burden to prove otherwise.

332. The defendant would bear a legal burden of proof to rebut the presumption. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant would be required to discharge this burden on the balance of probabilities. The defendant would be able to rebut the presumption by producing evidence demonstrating on the balance of probabilities that they did not use a carriage service to obtain or access the material. For example, the defendant could produce evidence proving that they obtained or accessed the material from a portable data storage device that another person physically gave them.

Section 474.45D Defences in respect of violent extremist material

333. New section 474.45D would provide defences in respect of the offences for using a carriage service for violent extremist material, and possessing or controlling violent extremist material obtained or accessed using a carriage service. Each of the paragraphs in section 474.45D contain an individual defence, providing a circumstance in which the offence would not apply. These defences have been included to address legitimate usage of violent extremist material.

334. New paragraph 474.45D(1)(a) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply if engaging in conduct in relation to violent extremist material is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or a part of a foreign country. This is intended to avoid situations where a conflict of laws requires the material to be handled in a particular way, which would be criminal under the new offences, but is necessary to assist in the enforcing of a law. Paragraph 474.45D(1)(a) would resolve this conflict in favour of supporting the enforcement of the other law.

335. New paragraph 474.45D(1)(b) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply if the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, a foreign country, or part of a foreign country. This is intended to ensure that the offence does not compromise legitimate law enforcement procedures or operations. For example, it may be necessary for a person to maintain access to violent extremist material in a situation where access may assist in identifying the perpetrators of the conduct relating to violent extremist material.

336. New paragraph 474.45D(1)(c) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply if the conduct is engaged in for the purposes of proceedings in a court or tribunal. This paragraph serves as a safeguard to ensure a court's or tribunal's access to material is not restricted by the operation of the offences under new sections 474.45B and 474.45C.

337. New paragraph 474.45D(1)(d) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply if the conduct is necessary for, or of assistance in, conducting scientific, medical, academic or historical research and the conduct is reasonable in the circumstances for the purpose of conducting that research. For example, this may include where the material is included in academic papers, or where research is being conducted into the use and impact of violent extremist material.

338. New paragraph 474.45D(1)(e) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply to engaging in conduct in relation to violent extremist material if the material relates to a news report, or a current affairs report, that is in the public interest and is made by a person working in a professional capacity as a journalist.

339. Read together with the new definition of 'journalistic capacity', this would have the effect that the offences in Subdivision HA (using a carriage service for violent extremist material and possessing or controlling violent extremist material obtained or accessed using a carriage service) do not apply to engaging in conduct in relation to material if the material relates to a news report, or a current affairs report, that is in the public interest and is made by a person in their capacity as a journalist, editor, producer or other person involved in the process of making news reports or current affairs reports. This defence recognises the critical role that the dissemination of news plays in our democratic society, and the importance of protecting the work of range of professionals involved in the news and current affairs process.

340. New paragraph 474.45D(1)(f) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply to engaging in conduct in relation to violent extremist material if the conduct is in connection with the performance by a public official of that official's duties or functions and the conduct is reasonable in the circumstances for the purpose of performing those duties or functions. For example, it may be necessary for a public official to maintain access to violent extremist material as part of their role as a security or intelligence officer.

341. New paragraph 474.45D(1)(g) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply to engaging in conduct in relation to violent extremist material if the conduct is in connection with an individual assisting a public official in relation to the performance of public official's duties or functions and the conduct is reasonable in the circumstances for the purpose of assisting the public official in relation to the performance of the public official's duties or functions. This could include, for example, where the conduct is in connection with a person assisting a security intelligence officer with the performance of the security intelligence officer's official duties or functions.

342. New paragraph 474.45D(1)(h) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply to engaging in conduct in relation to violent extremist material if the conduct is for the purpose of advocating a lawful procurement of a change to any matter established by law, policy or practice in any Australian jurisdiction or in a foreign country (or part thereof), and the conduct is reasonable in the circumstances for that purpose. This could include, for example, material published by a civil society body for the purpose of denouncing the laws, policy or practice that enabled the conduct recorded or streamed in that material.

343. New paragraph 474.45D(1)(i) would provide that neither subsection 474.45B(1) nor 474.45C(1) would apply to engaging in conduct in relation to violent extremist material if the conduct relates to the development, performance, exhibition or distribution, in good faith, of an artistic work. This could include, for example a still image recording of violent extremist material that is published as part of an online photography exhibition catalogue.

344. The note at the end of subsection 474.45D(1) would clarify that the defendant bears an evidential burden in relation to the defences in that subsection in accordance with existing subsection 13.3(3) of the Criminal Code. Subsection 13.3(3) provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

345. The Guide sets out the circumstances in which an offence-specific defence is appropriate. These include where there are matters which are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

346. The offence-specific defences in section 474.45D recognise that the defendant's purpose in dealing with violent extremist material is uniquely within the knowledge of the defendant. The defendant is best placed to adduce evidence demonstrating their purpose. For example, if the defendant is employed as a law enforcement officer and was investigating radicalised persons or terrorists who had dealt with violent extremist material, the defendant could readily adduce evidence that they used a carriage service for violent extremist material, or possessed or controlled such material in the course of their employment. Information of this nature is unlikely to be readily available or able to be obtained by the prosecution.

347. New subsection 474.45D(2) would clarify that it is not intended that the meaning of the terms 'duty' or 'duties', when used in any provision of the Criminal Code other than new section 474.45D, would be affected by the references to 'function' or 'functions' in subsection 474.45D(1). The references to 'function' or 'functions' in subsection 474.45D(1) - in particular, paragraphs 474.45D(1)(f) and (g) - are intended to inform the meaning of 'duty' of 'duties' for the purposes of subsection 474.45D(1) only.

Section 474.45E Consent to commencement of proceedings where defendant under 18

348. New section 474.45E would contain an important safeguard of requiring the Attorney-General's consent to a prosecution of a person under the age of 18 for an offence under new Subdivision HA. This provision would allow the Attorney-General to consider the appropriateness of a prosecution having considered the circumstances of the case, including the context of the conduct, the circumstances of the child, and the need to protect the broader community from the impacts of violent extremist material.

Item 4 Subsections 475.1A(1) and (2) of the Criminal Code

349. This item would amend subsections 475.1A(1) and (2) to provide that the defences in section 475.1A also apply to the offences in new Subdivision HA. These defences provide that National Relay Service employees and emergency call persons are not criminally responsible for specific conduct if they engage in that conduct in good faith in the course of that person's duties. The amendments are intended to make clear that such persons would not commit the offences in new sections 474.45B or 474.45C when simply performing their job.

350. The National Relay Service provides a service for persons who are deaf, or have a hearing and/or speech impairment. It facilitates calls with a voice and/or text component between the parties to the call.

Item 5 Dictionary in the Criminal Code

351. This item would insert new terms - 'intimidatory act' and 'violent extremist material' - into the Criminal Code Dictionary, and provide that new subsection 474.45A(3) and section 474.45A, respectively, define these terms.

Item 6 Transitional provision

352. The effect of this item would be that, for the purposes of the offence of possessing or controlling violent extremist material obtained or accessed using a carriage service (new section 474.45C), it does not matter whether a person's use of a carriage service to obtain or access material occurred before, on, or after the commencement of the offence provisions. In other words, if a person used a carriage service to obtain or access violent extremist material before the offence provisions commenced, but they continue to possess or control the material after the provisions commence, they could be prosecuted for the offence.

353. The offence would not however apply retrospectively. Circumstances in which the possession or control of violent extremist material occurred wholly before the commencement of the offence provisions and have ceased to exist, would not be captured by the offence.

Schedule 3 - Advocating terrorism

Criminal Code Act 1995

Item 1 - Subsection 80.2C(1) of the Criminal Code (penalty)

354. This item would repeal the penalty in subsection 80.2C(1) and replace it with a new penalty.

355. The effect of new paragraph (a) would be that where a person is found guilty of advocating the doing of a terrorist act, the maximum penalty is 7 years imprisonment.

356. The increase in penalty would more appropriately account for the potential severity of offending under section 80.2C, which would be broadened further by the addition of instructing on, and praising, terrorism at new paragraphs 80.2C(3)(b) and (c) to the list of conduct that may constitute the offence. Increasing the maximum penalty would also allow courts greater discretion to impose longer sentences where the circumstances of the offending fall short of imposing the maximum penalty, but are nonetheless very serious.

357. The increase in penalty would reflect that advocating terrorism is an offence of equivalent seriousness with other offences in Division 80 which also carry maximum penalties of 7 years imprisonment. These offences include urging violence against the Constitution, urging violence against groups, urging violence against members of groups and advocating genocide.

358. The effect of paragraph (b) would be that where a person is found guilty of advocating the commission of a terrorism offence referred to in subsection 80.2C(2), the maximum penalty is 7 years imprisonment or the maximum term of imprisonment for the terrorism offence for which the person advocated, whichever is lesser.

359. Paragraph (b) recognises that there are a number of terrorism offences captured by subsection 80.2C(2) for which the maximum penalty is lower than 7 years imprisonment. Paragraph 80.2C(2)(a) expressly provides that a terrorism offence is referred to in subsection (2) if the offence is punishable on conviction by imprisonment for 5 years or more. It would not be appropriate if a person could receive a higher penalty for advocating the commission of a terrorism offence than they could receive if they committed the terrorism offence which they advocated.

Item 2 - Subsection 80.2C(3) of the Criminal Code (definition of advocates)

360. This item would repeal the definition of 'advocates' in subsection 80.2C(3) of the Criminal Code, and replace it with a new definition that would add two new activities to the list of conduct that may constitute advocating the doing of a terrorist act or the commission of a terrorism offence for the purpose of the offence at subsection 80.2C(1).

361. New paragraph 80.2C(3)(a) would have the effect of retaining the existing list of conduct that constitutes advocating the doing of a terrorist act or the commission of a terrorism offence, that is, where a person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.

362. New paragraph 80.2C(3)(b) would add, to the definition of advocates, that a person also advocates the doing of a terrorist act or the commission of a terrorism offence where the person provides instruction on the doing of a terrorist act or the commission of a terrorism offence. The term 'instruction' is not defined, and should take its ordinary meaning.

363. New paragraph 80.2C(3)(b) is intended to capture a range of conduct by which a person could provide instruction on the doing of a terrorist act or commission of a terrorism offence. For example, providing or distributing a guide or manual on how to carry out a terrorist act; filming a video stepping out how to perform a beheading; or guiding someone on how to obtain material in order to engage in a terrorist act.

364. New paragraph 80.2C(3)(c) would add, to the definition of advocates, that a person also advocates the doing of a terrorist act or the commission of a terrorism offence where the person praises the doing of a terrorist act or commission of a terrorism offence in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence. The term 'praises' is not defined, and should take its ordinary meaning.

365. New paragraph 80.2C(3)(c) includes a qualifier that in order to constitute advocacy, 'praising' must occur in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence. The qualifier ensures that the limitation that this provision would place on an individual's freedom of expression is reasonable and proportionate for the legitimate purpose of preventing terrorist activity. Its effect is that praising the doing of a terrorist act or commission of a terrorism offence would not constitute advocating terrorism for the purposes of the offence in section 80.2C, where this praise has not occurred in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence.

366. Whether the praise has occurred in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence, is a matter to be considered on a case-by-case basis. The legislation is intentionally silent on how this is to be determined to give the court maximum discretion to take into account any matters it considers relevant in making this assessment.

367. The glorification of terrorism and violent extremism through praise has been of increasing concern to Commonwealth law enforcement and intelligence agencies in recent years, particularly in relation to young people online. For example, following the March 2019 Christchurch mosque shooting, numerous individuals used the internet to share video footage of the atrocity, and the perpetrator's manifesto - idealising the perpetrator and his actions and ideologies. New paragraph 80.2C(3)(c) recognises that conduct of this nature could lead a person to engage in terrorism, and where it occurs in circumstances where there is a substantial risk of this, it is justifiably criminal.

368. The addition of new paragraphs 80.2C(3)(b) and (c) would also have the effect of aligning, to the extent relevant, the definition of 'advocates' in Division 80 more closely with the definition of 'advocates' used in Division 102 for the purpose of assessing whether an organisation can be listed in regulations as a terrorist organisation (see subsection 102.1(1A)).

Schedule 4 - Terrorist organisation regulations

Part 1 - Sunsetting

Criminal Code Act 1995

Item 1 - Subsection 102.1(1) of the Criminal Code (paragraph (b) of the definition of terrorist organisation )

369. Item 1 would amend paragraph (b) of the definition of 'terrorist organisation' in section 102.1 of the Criminal Code to remove reference to subsection 102.1(3), which is repealed by Item 3 of this Part. Item 1 also inserts reference to subsection 102.1(2A) for consistency with the other subsections referenced in the definition. This removes the cross-reference to the repealed sunsetting provision in subsection 102.1(3), and adds a cross-reference to the provision requiring the AFP Minister to arrange a briefing for the Leader of the Opposition as referred to in subsection 102.1(2A).

Item 2 - Subsection 102.1(1) of the Criminal Code (paragraph (b) of the definition of terrorist organisation )

370. Item 2 would amend paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) to insert reference to section 102.1AA for consistency with the other subsections referenced in the definition. The cross-reference to section 102.1AA refers to the power of the AFP Minister to make regulations amending listing instruments to add or remove aliases of terrorist organisations as required.

Item 3 - Subsection 102.1(3) of the Criminal Code

371. Item 3 would repeal subsection 102.1(3) of the Criminal Code. Subsection 102.1(3) provides that regulations proscribing terrorist organisations cease to have effect on the third anniversary of the day on which they take effect. Repealing this subsection would remove this 3-year sunsetting period and have the effect that proscribed terrorist organisations will remain proscribed unless otherwise removed from the list by the AFP Minister.

372. The purpose of this amendment is to align the terrorist organisation listing framework with the current context of largely enduring terrorist organisations that pose ongoing threats to Australia's security. Many of the terrorist organisations currently listed have been re-listed multiple times. Instruments proscribing terrorist organisations would continue to be subject to disallowance in addition to the expanded scrutiny powers of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) inserted by Part 4 below.

Item 4 - Subsection 102.1AA(3) of the Criminal Code

373. Item 4 would repeal subsection 102.1AA(3) of the Criminal Code and replace it with a new subsection 102.1AA(3). The effect of this change would be to remove the reference to 'when amended regulations cease to have effect under section 102.1' in current paragraph 102.1(3)(b). This reference relates to the sunsetting of instruments under subsection 102.1(3), which is repealed by Item 3 above.

Legislation (Exemptions and Other Matters) Regulations 2015

Item 5 - Section 12 (after table item 18B)

374. Item 5 would insert a new Item 18C into section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015. The effect of this item would be to exempt regulations made under subsection 102.1(1) of the Criminal Code from the default sunsetting period established in the Legislation Act 2003.

375. This provision would have the effect of exempting the default 10-year sunsetting period for regulations contained in subsection 50(1) of the Legislation Act 2003. Under subsection 54(2) of the Legislation Act 2003, sunsetting does not apply to legislative instruments that are prescribed by regulation for the purpose of paragraph 54(2)(b). Section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015 is made for this purpose.

376. The effect of this item would be to support the repeal of the sunsetting provision (subsection 102.1(3)), in order that terrorist organisation listings would not expire unless de-listed by the AFP Minister.

Part 2 - De-listing Declarations

Criminal Code Act 1995

Item 6 - Subsection 102.1(1) of the Criminal Code (paragraph (b) of the definition of terrorist organisation )

377. Item 6 would remove reference to subsection 102.1(4) from paragraph (b) of the definition of 'terrorist organisation' in section 102.1, and insert reference to subsection 102.1(4B). This reflects the changes to the Criminal Code made by Item 8. The new cross-reference to subsection 102.1(4B) reflects the fact that regulations for the listing of terrorist organisations cease to have effect on the date nominated by the AFP Minister, which is relevant to paragraph (b) of the definition of 'terrorist organisation'.

Item 7 - Subsection 102.1(4) of the Criminal Code

378. Item 7 would amend subsection 102.1(4) of the Criminal Code to remove the requirement that instruments subject to declarations made under this subsection cease to have effect on the date the declaration is made. This change is necessary as new subsection 102.1(4B), that would be inserted by Item 8, specifies that regulations cease to have effect on the day specified in a de-listing declaration.

Item 8 - After subsection 102.1(4) of the Criminal Code

379. Item 8 would insert two new subsections, 102.1(4A) and 102.1(4B), into the Criminal Code.

380. Under subsection 102.1(4), if the AFP Minister ceases to be satisfied that a listed terrorist organisation meets the definition of a terrorist organisation, the AFP Minister must, by written notice published in the Gazette, make a declaration to the effect that the AFP Minister has ceased to be so satisfied. The listing ceases to have effect when the declaration is made. This obligation on the AFP Minister to de-list an organisation when no longer satisfied that it meets the definition of terrorist organisation is an important safeguard for listing. It has the effect of requiring continued satisfaction by the AFP Minister that a proscribed organisation is a terrorist organisation.

381. New subsection 102.1(4A) would create a requirement that declarations made under subsection 102.1(4) must specify the date on which the AFP Minister ceased to be satisfied that an organisation met the criteria outlined in paragraph 102.1(4)(b). This is to address a circumstance in which, however inadvertent, the AFP Minister ceases to be satisfied that a listed organisation is a terrorist organisation, but the actual date of the declaration (de-listing) is later than that date. This change would minimise the potential for a person to be convicted of an offence under Division 102 of the Criminal Code in relation to a listed organisation in circumstances where the conditions justifying the organisation's listing no longer exist at the time of the offence.

382. Similarly, new subsection 102.1(4B) would provide that regulations that are subject to a declaration made under subsection 102.1(4) are taken to cease to have effect on the date specified under subsection 102.1(4A), even if that day occurred before the day on which the declaration was made. This would be a further safeguard to mitigate the above described risk.

Item 9 - Subsection 102.1(5) of the Criminal Code

383. Item 9 would amend subsection 102.1(5) of the Criminal Code to insert reference to subsections 102.1(4A) and 102.1(4B), which would be introduced by Item 8. The operation of subsections 102.1(4) to (4B) does not prevent an organisation from being re-listed as a terrorist organisation if the AFP Minister becomes satisfied that the organisation meets the definition outlined in subsection 102.1(2).

Part 3 - De-listing Applications

Criminal Code Act 1995

Item 10 - Subsection 102.1(17) of the Criminal Code

384. Item 10 would re-number subsection 102.1(17) of the Criminal Code to become new subsection 102.1(16), and would insert the text '(16) Subsection (17) applies if'. This would make the exercise of the new subsection 102.1(17) inserted by Item 13 contingent on the existence of the circumstances outlined by subsection 102.1(16).

Item 11 - At the end of paragraph 102.1(17) of the Criminal Code

385. Item 11 would add the word 'and' at the end of paragraph 102.1(17)(c) of the Criminal Code. This change would facilitate the addition of paragraph 102.1(17)(d) by Item 12.

Item 12 - Subsection 102.1(17) of the Criminal Code

386. Item 12 would omit the words 'the AFP Minister must consider the de-listing application' from the new subsection 102.1(16) and would insert a new paragraph 102.1(16)(d) to the Criminal Code. Paragraph (d) would provide that the AFP Minister is only obligated to consider de-listing applications made in accordance with paragraphs 102.1(17)(a), (b) and (c) if the AFP Minister did not receive an application under paragraph (b) in relation to the listed organisation in the previous 12 months.

387. Circumstances may arise in which individuals or organisations may seek to exploit or overwhelm the ministerial requirement to consider applications by submitting a large volume of applications over a short period of time. There is limited value of the AFP Minister continuously reviewing the circumstances of an organisation in a short time period after the Minister has already confirmed that they remain satisfied the legislative thresholds are met in response to the first application. This change would mean that the AFP Minister only has to consider a de-listing application for a particular terrorist organisation once in a 12-month period, ensuring ministerial and departmental resources are not unduly diverted to responding to multiple submissions on the same organisation within a 12-month period. The AFP Minister could choose to consider an application at any time during the 12-month period. It is also worth noting that the AFP Minister retains the ongoing obligation to make a declaration to de-list an organisation if the Minister ceases to be satisfied the requisite legislative test is met.

Item 13 - After subsection 102.1(17) of the Criminal Code

388. Item 13 would insert new subsection 102.1(17) into the Criminal Code, in light of Item 10 changing the numbering of the existing subsection (17) to (16). This new subsection (17) would provide that on receipt of an application to de-list in accordance with subsection 102.1(16), the AFP Minister must consider, as soon as practicable, whether the listed organisation continues to meet the criteria outlined within the subsection.

389. The current provision did not provide any time during which the AFP Minister had to consider any applications under previous subsection (17). This change would place an obligation on the AFP Minister to consider applications as soon as practicable, ensuring that applications are given timely consideration. In practice, this obligation would mean that resources are effectively diverted to considering applications for de-listing and providing timely advice to the AFP Minister. The timeframe for consideration may vary in light of the circumstances of the organisation and the evidence that needs to be considered to satisfy the Minister that continued listing is justified. As a matter of practice, where possible, the Minister will also respond to the applicant, informing the applicant of the outcome of the Minister's consideration.

Item 14 - Subsection 102.1(18) of the Criminal Code

390. Item 14 would amend subsection 102.1(18) to provide that both subsections 102.1(16) and 102.1(17) do not limit the matters that may be considered by the AFP Minister for the purposes of subsection 102.1(4). This cross-reference would be updated to reflect the changes to subsections 102.1(16) and 102.1(17) made by Items 10 to 13 above.

Part 4 - Reviews

Criminal Code Act 1995

Item 15 - Subsection 102.1A(1) of the Criminal Code (heading)

391. Item 15 would repeal the heading 'Disallowable instruments' from subsection 102.1A(1) of the Criminal Code. This change would be made in support of Item 18, which gives the PJCIS the ability to review legislative instruments made under section 102.1 at any time, as opposed to only in the specified period after the instrument has been made.

Item 16 - Subsection 102.1A(1) of the Criminal Code

392. Item 16 would remove the word 'disallowable' and substitute it with 'legislative' within subsection 102.1A(1) of the Criminal Code. This change would be made in support of Item 18, which gives the PJCIS the ability to review legislative instruments made under section 102.1 at any time as opposed to only in the specified period after the instrument has been made.

Item 17 - Subsection 102.1A(2) of the Criminal Code (heading)

393. Item 17 would repeal the heading 'Review of disallowable instrument' from subsection 102.1A(2) of the Criminal Code. This change would be made in support of Item 18, which gives the PJCIS the ability to review legislative instruments made under section 102.1 at any time as opposed to only in the specified period after the instrument has been made.

Item 18 - Paragraphs 102.1A(2)(a) and (b) of the Criminal Code

394. Paragraph 102.1A(2) provides that the PJCIS may review regulations made for the purposes of paragraph (b) of the definition of 'terrorist organisation' in section 102.1 and instruments made under section 102.1AA (including or removing names of proscribed terrorist organisations). The PJCIS' review may occur as soon as possible after the making of the instrument and report the Committee's comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House. The PJCIS' views are an important contribution to the Parliament's consideration of the instruments during the disallowance period.

395. The operation of the 3-year sunsetting period for regulations made in this context has meant that the PJCIS was able to review the suitability of an organisation being listed as a terrorist organisation on each occasion of those regulations being made, or remade.

396. Item 18 would repeal paragraphs 102.1A(2)(a) and (b) of the Criminal Code and would replace them with new paragraphs 102.1A(2)(a) and (b).

397. New paragraph 102.1A(2)(a) would allow for the PJCIS to review an instrument made for the purposes of paragraph (b) of the definition of 'terrorist organisation' in section 102.1 at any time. This would expand the PJCIS' jurisdiction to conduct own-motion reviews into whether a listed terrorist organisation continues to meet the legislative thresholds at any time. This expanded jurisdiction is in addition to the PJCIS' ability to review the instruments in the specified period after the instrument has been made to support the Parliament's consideration of the instruments during the disallowance period.

398. This change would strengthen oversight of these regulations, ensuring the PJCIS is able to consider whether an instrument is appropriate at the time it was made, or remade, and at any later date the PJCIS considers appropriate.

399. New paragraph 102.1A(2)(b) would provide that the Committee may report its comments and recommendation to each House of the Parliament.

Item 19 - Subsection 102.1A(3) of the Criminal Code (heading)

400. Item 19 would insert the word 'legislative' after the word 'disallowable' into the heading of subsection 102.1A(3) of the Criminal Code. This change is to create reference to 'disallowable legislative instruments' which would have a specific definition inserted into the Criminal Code by Item 24.

Item 20 - Subsection 102.1A(3) of the Criminal Code

401. Item 20 would insert the word 'legislative' after the first occurrence of the word 'disallowable' in subsection 102.1A(3) of the Criminal Code. This change would be to create reference to 'disallowable legislative instruments' that would have a specific definition inserted into the Criminal Code by Item 24.

Item 21 - Subsection 102.1A(3) of the Criminal Code

402. Item 21 would insert the words 'under subsection (2)' after the word 'Parliament' into subsection 102.1A(3) of the Criminal Code. This change would remove any doubt that the PJCIS' report referred to in subsection 102.1A(3) is specifically of the kind referred to in subsection 102.1A(2).

Item 22 - Subsection 102.1A(3) of the Criminal Code

403. Item 22 would insert the word 'legislative' after the second occurrence of the word 'disallowable' in subsection 102.1A(3) of the Criminal Code. This change would be to create reference to 'disallowable legislative instruments' that would have a specific definition inserted into the Criminal Code by Item 24.

Item 23 - Subsection 102.1A(4) of the Criminal Code

404. Item 23 would insert the word 'legislative' after all occurrences of the word 'disallowable' in subsection 102.1A(4) of the Criminal Code. This change would be to create reference to 'disallowable legislative instruments' that would have a specific definition inserted into the Criminal Code by Item 24.

Item 24 - Dictionary in the Criminal Code

405. Item 24 would insert a definition of the term 'disallowable legislative instrument' into the Criminal Code Dictionary. The definition inserted would state that the term has the meaning given by the Legislation Act 2003. Section 4 of the Legislation Act 2003 provides that 'disallowable legislative instrument' means a legislative instrument to which section 42 of that Act applies. Section 42 of the Legislation Act 2003 outlines the process by which a disallowable legislative instrument may be disallowed by a House of Parliament.

406. This change would apply a definition of 'disallowable legislative instrument' that is consistent across Commonwealth legislation and legislative instruments.

Part 5 - Application provisions

Criminal Code Act 1995

Item 25 - In the appropriate position in Division 106 of the Criminal Code

407. Item 25 would insert application provisions into Division 106 of the Criminal Code.

408. New subsection 106.12(1) would apply the amendments made by Part 1 of Schedule 4 of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 to regulations in force when section 106.12 commences as well as regulations made after commencement. This would apply the removal of the 3-year sunsetting period to terrorist listing regulations already in force, which would mean that the benefits of this change will be realised immediately upon commencement and not in a gradual manner as existing regulations are remade.

409. New subsection 106.12(2) will apply the amendments made by Part 2 of Schedule 4 of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 to a declaration made on or after section 106.12 commences. This would require the AFP Minister to specify the date on which they ceased to be satisfied that an organisation continued to meet the definition of a terrorist organisation, in declarations made on or after the commencement of this section. Declarations made prior to the commencement of this section will not require amendment to specify the date on which the AFP Minister ceased to be satisfied.

410. New subsection 106.12(3) would apply the amendments made by Part 3 of Schedule 4 of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 to a de-listing application received on or after the commencement of section 106.12. This would apply the following new requirements to de-listing applications received on or after commencement:

•

the new provisions requiring a de-listing application to be considered as soon as practicable, and

•

the new provision providing that the AFP Minister is only required to consider a de-listing application if no other applications were made within a 12-month period concerning the same organisation.

411. This would prevent the AFP Minister from having to revisit applications made prior to commencement to ensure the new requirements were followed.

412. New subsection 106.12(4) would clarify that a reference in paragraph 102.1(16)(d) to an application made under paragraph (b) of subsection 102.1(16) is taken to include a reference to an application made under subsection 102.1(17)(b) during the 12 months ending immediately before the commencement of this section. New paragraph 102.1(16)(d) provides that the AFP Minister is only required to consider a de-listing application if the Minister has not received an application in relation to the listed organisation in the prior 12-month period. The insertion of subsection 106.12(4) would mean that this 12-month period extends to applications made in the 12 months preceding the commencement of section 106.12.

413. New subsection 106.12(5) would apply the amendments made by Part 4 of Schedule 4 of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 to both instruments made before commencement of the new subsection that have not been repealed, or ceased to have affect, and instruments made on or after commencement. This would mean that the ability for the PJCIS to review legislative instruments at any time, and report their findings directly to the AFP Minister or the Parliament, is extended to instruments in force prior to commencement of section 106.12 as well as to instruments made after commencement.

Schedule 5 - Other measures

Criminal Code Act 1995

Item 1 - Paragraph 271.11(f) of the Criminal Code

414. This item would amend paragraph 271.11(f) of the Criminal Code to omit the words 'for the purposes of paragraph 51(xix) of the Constitution' so that the provision reads 'the victim of the conduct constituting the offence is an alien'.

415. This amendment removes duplication that would be created through the addition of the definition of 'alien' into the Criminal Code Dictionary by Item 3 of this Schedule (described below).

Item 2 - Subparagraphs 474.37(1)(f)(ii) and (2)(f)(ii) of the Criminal Code

416. This item provides a clarification for ease of interpretation, by amending subparagraphs 474.37(1)(f)(ii) and 474.37(2)(f)(ii) of the Criminal Code to insert 'the public official' before 'performing'. This makes it clear that for the purposes of these two provisions, it is the public official who must be performing the relevant duty or function.

417. This would align the section 474.37 defences in respect of abhorrent violent material to the new section 474.45D defences in respect of violent extremist material, providing consistency on the face of the Criminal Code.

Item 3 - Dictionary

418. This item would insert the definition of 'alien' - being a person who is an alien for the purposes of paragraph 51(xix) of the Constitution - into the Criminal Code Dictionary.

419. Inserting this definition into the Criminal Code Dictionary would recognise that the addition of paragraphs 80.2J(3)(g) and (h) into the Criminal Code would result in the term 'alien' being used multiple times within the Criminal Code, hence the need to reduce complexity through the introduction of a defined term.