Displaying prohibited symbols offences

Sections 80.2H and 80.2HA of the Criminal Code make it a criminal offence to display prohibited symbols. To be an offence:

• A person must display a symbol, which they know to be a prohibited symbol, in a public place, and
• The display must occur in circumstances which a reasonable person would consider does one of the following things:
  • Involves spreading ideas based on racial superiority or hatred
  • Could incite others to offend, insult, humiliate or intimidate a person or group because of their race
  • 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, language, religion, political or other opinion or national or social origin, and
• The display must not have been for a legitimate purpose.

What is a prohibited symbol?

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. It also includes something that so nearly resembles one of these symbols that it is likely to be confused with, or mistaken for, that symbol. This offence applies to symbols used by any terrorist organisation, whether listed or not. You can visit the National Security website for further information about listed terrorist organisations in Australia.

When is something 'displayed in a public place'?

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).

What are the legitimate purposes for displaying a prohibited symbol?

It is not an offence if a person displays a symbol for specified legitimate purposes. This includes where the display 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 defences are available?

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.