Whilst we understand the important motivation for the Bill, we oppose it. This is consistent with our position on the previous Victorian legislation, which you can read here, and our position on the Commonwealth Bill, which you can read here.
We have been influenced by the scholarship of Lydia Khalil, which you can read here.
We understand that the display of Nazi symbols is highly confronting and offensive, particularly to the Jewish community and other minority groups that have been targeted by Nazi ideology.
However there are many problems with this Bill:
(1) There is no particularisation of the definitions of Nazi symbol and Nazi gestures. In relation to gestures this is surprising given that the Bill is plainly intended to cover the Nazi salute – what other gesture is intended to be covered? In relation to symbols, there are innumerable symbols used by the Nazi regime, including norse runes and the unadorned Celtic cross – are these intended to be included? The Bill’s definition includes “any other symbol used by the Nazi Party”, and extends to any symbol “that it is likely to be confused with or mistaken for that symbol”. This is deeply problematic – people are entitled to have specificity with regard to what is, and is not, illegal (even more so given the offence is punishable by imprisonment). The reality is this will confer incredibly wide discretion on police as to whether or not to charge someone;
(2) There are still obvious problems with enforcement given the endless adaptability of symbols and gestures (for example, consider the use of the ‘okay’ symbol by extremists). Extremists will use controversy and test-case litigation to raise their profile – which is the opposite of what the Bill is designed to achieve;
(3) The Bill places an evidentiary onus on an accused person to raise a defence. This is worse than the Commonwealth Bill, which requires the prosecution to disprove defences at the outset as part of the prosecution case (such as legitimate educational, religious or artistic use).
(4) In relation to mens rea for the offence, the Bill is also worse than the Commonwealth Bill in having an objective (rather than subjective) fault element extending to what an accused person “ought reasonably” to have known. Given the seriousness of the offence and the stigma of being associated with Nazi ideology, there should be a requirement that the person intends to display the symbol or make the gesture as a sign of support of Nazi ideology (or at least as a symbol of hate).
Read the submission to the Senate Legal and Constitutional Affairs Committee by Liberty Victoria.