‘No place for those symbols’: Parliamentary committee calls for swastika ban

Displaying the Nazi swastika would be a criminal offence in Victoria if the Andrews government implements a recommendation of a cross-party parliamentary inquiry into anti-vilification laws.

After a year-long investigation the final report from the legal and social issues committee was tabled on Wednesday morning. It urges the government to legislate tougher laws against hate speech and racist insignia.

A Nazi flag flying over a home in the Victorian town of Beulah last year.

Premier Daniel Andrews said on Wednesday that the government – which said said last year it would not act until the final report was released – was open to criminalising Nazi symbols. It would be the first jurisdiction in Australia to impose such a ban.

The state Liberal opposition, along with Jewish and anti-racism groups, called for a ban on the use of the swastika early last year after the government was powerless to stop a Nazi flag flying above a home in regional Victoria. Mr Andrews also said state laws were deficient when the government realised it did not have the powers to cancel a planned neo-Nazi music festival in 2019.

Speaking on Tuesday, Mr Andrews signalled the government was ready to take action against the use of the swastika and associated hate-filled symbols.

“There’s no place for those views, there’s no place for those symbols, there’s no place for those attitudes and conduct in a modern Victoria,” he said.

Stills from a video of an alleged attack on a Channel Nine security guard.

The committee – consisting of three Labor MPs, two Liberals and two independents – recommended a prohibition on symbols of Nazi ideology except in situations in which the use was acceptable, such as in education settings.

It also encouraged the government to “monitor the public display of other hateful symbols to determine whether a broad-based offence should be established”.

Anti-Defamation Commission chairman Dvir Abramovich, who has been campaigning for a ban on the swastika, said the report’s recommendation was a “triumph” for Holocaust victims.

“This is a thunderous day for the history books that will not be denied, and a resounding defeat of those agents of evil who seek to keep Hitler’s legacy alive,” Dr Abramovich said.

“Over the din of hatred, through this report, we can hear the ideals of equality and freedom ring loud.”

Alex Ryvchin, co-chief executive of the Executive Council of Australian Jewry, said new legislation would be an effective “tool in countering the rise of neo-Nazism ... and provide welcome recourse against those who brandish the swastika in public to harass, intimidate and denigrate others”.

“Any banning legislation would need to acknowledge that hate symbols used by extremist groups are constantly evolving,” he said. “While the specific wording of the legislation will require considerable care and attention to ensure its efficacy, we certainly support the spirit of what is being done here.”

Progressive lawyer Greg Barns, SC, said that while the swastika was “thoroughly objectionable”, an outright ban could be problematic because someone might want to use the symbol artistically or ironically without meaning to offend.

“One has to always be careful in banning symbols. Once you start banning one, which other ones will you ban?” he said.

The committee has recommended the government mandate Victoria Police to record prejudice-motivated crime.

“During the time of the inquiry, several local and international events occurred that reaffirmed the committee’s need to examine Victoria’s anti-vilification laws,” the report states.

“Some events were directly related, including an increase in the public display of Nazi symbolism and a rise in racially motivated incidents resulting from the coronavirus pandemic.”

The Australian Security Intelligence Organisation last year revealed it was directing up to 40 per cent of its surveillance efforts at far-right extremist activities.

The committee said it believed limitations on freedom of speech were justified when it impinged on the human rights of others, citing recent events, including the storming of the US Capitol by far-right groups and social media giants banning former US president Donald Trump’s accounts.

“Other events, such as the one-year anniversary of the Christchurch terror attacks and the global Black Lives Matter demonstrations, highlighted that the impacts of vilification, prejudice and hate conduct are wide-ranging, and, if left unchecked, can lead to devastating crimes,” the committee said.

Incidents involving neo-Nazis have been in the news this year. Over the Australia Day weekend, dozens of members of the far-right National Socialist Network burnt a cross – a ritual usually associated with the Ku Klux Klan – next to Lake Bellfield at the foot of the Grampians in western Victoria.

Thomas Sewell, a former Australian Defence Force member who is part of the network, allegedly attacked a security guard outside the offices of The Age and Channel Nine’s A Current Affair hours before the TV program aired a segment on Mr Sewell’s right-wing group. The man has since been arrested by police.

The committee inquiry was prompted by Reason Party MP Fiona Patten’s attempt to widen the Racial and Religious Tolerance Act to outlaw hate speech targeting people for their gender, disability, sexual orientation or gender identity. The law currently covers racial and religious vilification. The committee’s scope eventually expanded to examine Nazi symbolism.

The final report of an inquiry into anti-vilification protections also recommended:

• Victorian Legal Aid and the Aboriginal Legal Service engage in “strategic litigation” in the field of vilification to build up expertise.
• Reforming the current criminal offence of “serious vilification” to simplify and lower the thresholds.
• Reviewing maximum penalties for serious vilification and the requirement for the Director of Public Prosecutions to provide written consent before commencing prosecution for serious vilification.
• Reducing the threshold for the civil incitement test from “conduct that incites” to “conduct that is likely to incite”.
• Establishing a new civil harm test to “assess harm from the perspective of the target group” and making unlawful conduct a reasonable person would consider “hateful, seriously contemptuous, reviling or seriously ridiculing”.
• Considering, in consultation with LGBTI and religious groups, narrowing the religious exception in state anti-vilification legislation and adding the word “genuine” to any public interest defence.
• Working with Commonwealth and other jurisdictions to create referral mechanisms for human rights agencies and bodies such as the eSafety Commissioner, encouraging social media platforms to adopt “jurisdiction verification tools” and creating a legal framework for enforcement agencies to handle online vilification.
• Reinstating the powers stripped from the Victorian Equal Opportunity and Human Rights Commission in 2011 and extending its powers to vilification.

Ms Patten said in January that an outright ban of the swastika could be unworkable because some people collect military memorabilia without sinister intent.

“It’s how you use it,” she said in relation to controversial anti-Israel academic Tim Anderson’s superimposing of a swastika on the flag of Israel in teaching material.

Anti-vilification provisions, the committee says, should also be expanded to cover race and religion, gender and sex, sexual orientation, gender identity and expression, sex characteristics, disability, HIV/AIDS status and personal association.

Equality Australia chief executive Anna Brown said the Victorian Equal Opportunity and Human Rights Commission must be given adequate powers to deal with vilification.

”We need laws that ensure everyone can participate fully in their community, school, workplace, without fear or attack, no matter who they are or whom they love.”

Liberal MP James Newbury, who sat on the committee, said the Victorian government should immediately outlaw Nazi symbolism.

“Daniel Andrews’ words are hollow. We need action now,” he said.

Federal Macnamara MP Josh Burns, who is Jewish, commended the commitee’s report and urged the federal parliamentary inquiry into extremism to develop a national strategy to combat Nazi and other right-wing extremism symbols.

“There is no room for this extreme hate in Victoria or anywhere in Australia,” Mr Burns said.

”The rise of neo-Nazism and right-wing extremism across our country should alarm all Australians and we need a national approach to this problem.“

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