The illegal and unprovoked attacks on Israel by Hamas terrorists on 7 October 2023 led to the murder of 1,200 Jews—men, women and children—along with the rape and kidnapping of others. These attacks resulted in the greatest loss of life of Jews in one single day since the Holocaust. These barbaric attacks have seen a further resurgence of antisemitism across many countries. We’ve seen the most recent event, just this morning, where a Jewish school was prevented from having a jumping castle by a private company in Western Sydney.
Mr WALLACE (Fisher) (09:49): Coalition members of the committee support the policy intent of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 and the recommendations of this report. More than six million Jews were murdered by the Nazis as part of what is known as Hitler’s final solution—namely, the extermination of all Jews in Europe during World War II, along with people living with disabilities, homosexuals, people of the Catholic faith and Roma people, among other minorities. The rise of Hitler’s Third Reich in his ideological quest that the German people would become the master race remains a stain on the history of humanity, and it will remain ever thus. It is a period of history in the 20th century that, until very recently, was almost universally recognised as an era that must never be repeated.
Antisemitism, both within Australia and abroad, has been on the ascendancy in recent years. To counteract this reprehensible conduct, the coalition introduced a private member’s bill on 23 March 2023 in the Senate. Titled the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023, it sought to prohibit the public display of Nazi symbols, without reasonable excuse, in circumstances where the person knew that the symbol was a Nazi symbol. Relevantly, the coalition’s private member’s bill also expressly prohibited the giving of the Nazi salute. Unfortunately, the government rejected this bill.
The illegal and unprovoked attacks on Israel by Hamas terrorists on 7 October 2023 led to the murder of 1,200 Jews—men, women and children—along with the rape and kidnapping of others. These attacks resulted in the greatest loss of life of Jews in one single day since the Holocaust. These barbaric attacks have seen a further resurgence of antisemitism across many countries. We’ve seen the most recent event, just this morning, where a Jewish school was prevented from having a jumping castle by a private company in Western Sydney.
The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 and its explanatory memorandum expressly states that the display and trading of prohibited Nazi symbols gives effect to Australia’s international human rights obligations. It does that in the explanatory memorandum, and talks about article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination; the outlawing of the vilification of persons on national, racial or religious grounds, under article 20 of the International Covenant on Civil and Political Rights; and the prohibition of discrimination under article 26 of the same convention.
Coalition members of the committee agree these treaties allow Australia to ban the display of symbols where the display incites hatred or discrimination. It follows that, under the Constitution, the Commonwealth has the constitutional power to pass laws implementing those obligations under its external affairs power, under section 51(xxix) of the Australian Constitution.
Since at least the Tasmanian dam case it has been clear that the Commonwealth has constitutional power to legislate in order to give effect to Australia’s international obligations. This includes legislating to implement obligations under treaties and other international instruments.
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination sets out mandatory obligations to undertake positive measures designed to eradicate incitement to, or acts of, racial discrimination. There are also relevant provisions in the International Covenant on Civil and Political Rights, in articles 20 and 26. The bill and its explanatory memorandum expressly refer to these international law obligations and, in so doing, implies that the offences in its bill rely on the treaty implementation aspect of the external affairs power. The bill expressly provides that the Commonwealth has the power to ban the display of Nazi symbols under article 4 of the ICERD. This is made clear in the legislative note incorporated in section 80.2H(3) of the bill. Similarly, legislative notes make clear that section 80.2H(4) is intended to give effect to article 20 of the ICCPR and that section 80.2H(7) gives effect to article 26 of the same convention.
Article 4 of the ICERD does not distinguish between physical behaviours, like the Nazi salute, and the display of physical objects. The UN committee on the elimination of racial discrimination has expressly given guidance to the contrary. Specifically, from time to time the UN committee issues guidance in the form of general recommendations on how the obligations under the ICERD should be interpreted. The UN committee makes clear that conduct which is dealt with under article 4 and other parts of the ICERD does not distinguish between words, whether spoken or written, the display of symbols, like the Nazi hakenkreuz, and public behaviour, like the performance of the Nazi salute. Rather, it covers a range of behaviours that promote racial hatred or race based discrimination.
In short, both the wording of article 4 of the ICERD and the general recommendations from the UN committee support the view that, to the extent the article supports a ban on the display of symbols like flags and banners, it also supports a ban on behaviours like the Nazi salute. In turn, this means that, to the extent the Commonwealth has constitutional power to ban Nazi symbols, relying on article 4 of the ICERD in the way that the bill proposes, it also has power to ban the Nazi salute. A similar rationale applies to article 20 of the ICCPR; likewise in relation to article 26. There are other heads of power to which the Commonwealth has the ability to ban Nazi salutes; I won’t go into any great detail on those.
The bill simply does not address gestures like the Nazi salute. The explanatory notes to the bill do not articulate any basis in international or constitutional law to explain why such a gesture could not be prohibited if it were subject to the same limitations that apply to the prohibition on the display or trade of Nazi symbols. On the available information, it is simply not persuasive to argue that the Commonwealth can legislate under the treaty implementation aspect of the external affairs power to prohibit the display and trade of Nazi symbols but cannot prohibit the Nazi salute. Otherwise, to suggest that state and territory police are best placed to enforce a prohibition on the Nazi salute but that federal police can enforce the display and trade of Nazi symbols is nonsensical and without foundation in law or in common sense.
The coalition members of the committee support the bill, but we feel that the government has not gone far enough in addressing the issue—the scourge—of antisemitism, which is furthered by some members of our community when they conduct themselves with gestures such as the Nazi salute. The coalition members on the committee feel very strongly that that should also be prohibited under the bill. I thank members of the secretariat, all those people who provided submissions and my parliamentary colleagues on the committee.