Prohibited hate symbols offences

What symbols are prohibited

A prohibited symbol is a Nazi hakenkreuz, a Nazi double-sig rune, or a symbol that a terrorist organisation or its members use to identify the organisation, for example the flag used by a terrorist organisation. These offences apply to symbols used by any terrorist organisation, whether listed as a terrorist organisation or not. 

Prohibited symbols also include something that so nearly resembles one of these symbols that it is likely to be confused with, or mistaken for, that symbol.

The offences also apply to the making of the Nazi salute.

Public display of a prohibited symbol

Sections 80.2H and 80.2HA of the Criminal Code make it a criminal offence to display prohibited symbols or make the Nazi salute.

A person may commit an offence if they display a prohibited symbol or make the Nazi salute in a public place and they display it in a way that a reasonable person would consider does any of the following:

• involves spreading ideas based on racial superiority or hatred
• advocates hatred of a person or group because of their race, religion or nationality
• constitutes incitement to offend, insult, humiliate, intimidate or use force or violence against a person or group because of their race, religion or nationality
• is likely to offend, insult or intimidate a person because of their race, colour, sex, sexual orientation, gender identity, intersex status, disability, language, religion, political or other opinion or national or social origin.

If the person displays a symbol used by a terrorist organisation or its members to identify the organisation, it is only an offence if the person knows that it is a prohibited terrorist organisation symbol. However, if the person displays a Nazi symbol or makes the Nazi salute, it is an offence if the person is reckless as to whether it is a Nazi symbol or Nazi salute.

It is not an offence if the person’s conduct was for a legitimate purpose. This includes where the conduct is for a religious, academic, educational, artistic, literary or scientific purpose, so long as the display is not contrary to the public interest.  For example, the display of the sacred swastika as part of religious observance is not an offence. It is also not an offence to display a symbol for a news and current affairs report that is made by a professional journalist and that is in the public interest.

What 'displayed in a public place' means

A symbol is 'displayed in a public place' if it could be seen by a person who is in public, including online (for example, in a document or video). Similarly, a person makes the Nazi salute ‘in a public place’ if the gesture could be seen by a person who is in public.

Defences

The offence does not apply if the symbol is used for the purpose of opposing Nazi ideology, fascism, or the ideology or purposes of a terrorist organisation. There are several other listed defences, including if the display of the symbol is necessary to enforce a law or investigate a contravention of a law.

Direction to remove

Federal, state or territory police officers have the power to direct a person to remove a prohibited symbol from public display in certain circumstances. Failure to comply with a direction is a criminal offence.

Trading in prohibited symbols

Sections 80.2J and 80.2JA of the Criminal Code make it a criminal offence to trade in items that contain prohibited symbols.

A person may commit an offence if they trade in goods that depict or contain a prohibited symbol, and either:

• if the symbol is a prohibited Nazi symbol, the person must know that it is, or be aware of a substantial risk that it could be associated with Nazi ideology
• if the symbol is a prohibited terrorist organisation symbol, the person must know that it is.

However, it is not an offence if the trading was for a legitimate purpose. This includes where the trading is for a religious, academic, educational, artistic, literary or scientific purpose, so long as the trading is not contrary to the public interest. For example, it is not an offence to sell a history textbook about World War II that contains images of Nazi symbols.

It is also not an offence if the goods traded contain news reports, were made by a journalist and are shared in the public interest.

What ‘trade’ covers

Trade covers selling, leasing or renting goods. This includes doing things with the intention of selling goods, such as concealing, possessing, transporting and preparing to supply goods for sale. 

Report a potential crime

If you feel threatened or unsafe in any way, you can contact police on:

• 000 for immediate threats
• 13 14 44 for police attendance at non-life-threatening incidents.

You can report a Commonwealth crime to the AFP online using the Report a Commonwealth Crime form.