Published: 1 September 2023
Last updated: 5 March 2024
With a new state ban on Nazi salutes and a federal inquiry into hate symbols, MICHAEL VISONTAY considers the risks and limitations of prohibitions.
What is the purpose in banning something? To stop its potential to cause offence or because its presence is deemed dangerous and capable of influencing others to engage in behaviour that poses a threat to the public?
How do you decide which things to ban? And how can you measure whether bans “work”?
These questions loomed into view this week through new developments on the legal front to prohibit Nazi and other alleged hate symbols. On Tuesday, the Victorian government introduced legislation to ban the Nazi salute and other gestures and symbols used by the Nazi Party. Anyone who intentionally displays or performs a Nazi symbol or gesture in public will face penalties of more than $23,000, 12 months’ imprisonment or both.
On a national canvas, a new federal inquiry into the Prohibited Hate Symbols and Other Measures Bill begins hearings today by the Parliamentary Joint Committee on Intelligence and Security. This review follows a series of recent legal changes, such as Victoria’s, in relation to Nazi-related and other extremist symbols, gestures and activities, which has led to the banning of swastikas and SS symbols.
The submissions from Jewish communal advocacy bodies have ventured into new territory, raising fresh questions about where to draw the line. The Executive Council of Australian Jewry (ECAJ) has not only called for a ban on the public display of any Nazi symbol or gesture (including adaptations from the original) but has also called for the banning of the Islamic State flag and logo of the Islamist group Hizb ut-Tahrir Australia.
ECAJ also calls for all trading in Nazi memorabilia to be banned and for police to be given powers “to take action to bring an end to the public display of a Nazi symbol or gesture”.
While the majority of the ECAJ proposals in its submission relate to Nazi themes, they are mostly about extending existing proscriptions to cover adaptations and related materials beyond the swastika. This is familiar territory.
Targeting the Islamic State flag raises thorny questions and has sparked opposition from within the Jewish community. The Australian Jewish Democratic Society (AJDS), in its submission to the inquiry, specified three problems with ECAJ’s proposed ban on the ISIS flag.
First, it says the text in the flag, the Shahadah or Credo, is akin to the Hebrew “Shema”, and Muslims would be “greatly offended that it is being banned, even if misappropriated for political purposes”.
Second, parts of the flag resemble, for example, what is known and revered as the seal of Muhammad.
The third objection is that the ban proposed by ECAJ does not include other flags of extremist organisations, such as the Tawheed flag, which has historical antecedents in Islam as a flag of battle but is also a decorative item. This flag is sometimes displayed as pure black standard, more rarely, as a white, green, or red standard.
ECAJ acknowledges in its submission that “many Muslims display the Islamic creed in its Arabic wording within their homes, as stickers on their cars, in mosques, or as artwork in various forms. It is argued that by banning any symbol which so nearly resembles the Islamic State flag that it is likely to be confused with, or mistaken for that flag, those Muslims risk criminal liability for an innocuous expression of their faith.
“With respect, we do not agree with this contention. If enacted, the bill would not ban any words from any sacred text, but it would ban the distinctive configuration of particular words as they appear on the Islamic State flag, which has a unique design.”
It is hard to know how to assess ECAJ’s response. Would a member of the Australian Muslim community make a distinction between the implied meaning of the text and the specific configuration of the text on the flag? Is the proposed ban inadvertently and unfairly causing offence to Muslims in Australia? At the time of printing, The Jewish Independent had not read the submissions made by Islamic community groups.
Flag banning is also a limited measure which does not address one of the key contemporary problems in the use of symbols: the appropriation and distortion of standard flags by extremists.
One obvious example is the distortion of the Israeli flag. The Jewish Independent Media has seen at least two cases: one when the Star of David was overlaid with other insignia similar to neo-Nazi symbols, and another when the flag was coloured with red ink to signify blood.
Both of these could be viewed as appropriation to use the flag to express hatred towards Jews.
The invocation of the Islamic State flag also raises the question of what other aspects of public debate could be encompassed by “hate symbol” legislation, given the ugly polarisation of discourse, and practices such as “cancellation”. What about the appropriation of the Aboriginal, gay pride or transgender flags – which could be interpreted as both offensive and inciting hatred?
Although this is not the specified focus of the inquiry, it raises the relevance of these questions in a wider socio-cultural context and provides a cautionary context to the banning enthusiasms being promoted by Jewish organisations and embraced by governments across Australia.
