Swastika ban will be easily circumvented, government inquiry told

Some Jewish groups argued for widening the ban on Nazi symbols, other submissions said any restrictions will be easily avoided by extremists adept at adapting offensive symbols.

The federal Government’s proposed plan to criminalise the public display of Nazi symbols has generated concerns about the effectiveness of a ban. 

Community groups have expressed doubts over the enforceability of penalties for online use, the omission of expressions such as tattoos, gestures and greetings, and the potential for extreme-Right groups to subvert the ban through coded symbolism. 

The Government’s inquiry into the proposed bill this week made public a list of 26 submissions it received from a range of groups including the Jewish community, religious advocacy bodies, government and civil rights organisations. 

Australian Federal Police Assistant Commissioner with Counter Terrorism and Special Investigations Krissy Barrett told the inquiry police would support the bill, but enforcing it would be difficult, the ABC reported. 

"We anticipate violent extremist groups may adapt their behaviours and usage of symbols to avoid legislation sanction," she said. "We envisage their adopting [of] innocuous widely used symbols, which may be difficult to enforce in practice." 

Jewish advocacy groups also focused on the problems created by the diversity and fluidity of Nazi symbolism.  Sydney Jewish Museum said a “broader definition … that lists a wider range of prohibited forms (flags, insignia, uniforms, slogans and forms of greeting) would be ultimately more expansive in its prohibition. 

“In addition, we recommend that consideration be given to newly arising symbols that clearly reference Nazi symbols. Neo-Nazi groups often create new symbols that, although they may not represent them identically, bear clear reference to Nazi symbols in order to draw upon the ideology.  

“This tactic is often taken in order to avoid prosecution through legislation. As such, we recommend that this legislation be able to prosecute symbols that arise alongside historic Nazi symbols.” 

Language is also critical, it said, noting that actions such as the Sieg Heil and phrases such as blut und boden (blood and soil) and blut und ehre (blood and honour) have clear Nazi lineage. ”The Executive Council of Australian Jewry (ECAJ) called for the banning of Nazi tattoos. 

ECAJ also recommended that the bill remove any excuse from prosecution by invoking mental fitness. “The bill should be amended so as not to require a prosecutor to prove a mental element per se. Instead, a prosecutor should have to prove that the public display of a Nazi symbol was done ‘in a way that might reasonably be expected to cause a member of the public to feel menaced, harassed or offended'.”  

The Australian Jewish Democratic Society (AJDS) said it found problems “in defining when and where it is inappropriate to display a Nazi symbol. For example, even if the legislation exempts satire or humour as expressed in public, neo-Nazis could make the claim that they too are engaged in satirical or legitimate political expression. 

“Use of Nazi symbols in anti-Israel demonstrations, or in criticism of Israel is offensive. Indeed, many people in the Jewish community consider it to be an expression of antisemitism. But it is not an expression of support for Nazism or a neo-Nazi agenda. The bill may unintentionally act to criticise not only neo-Nazi activity, but critics of Israel itself.”  

The AJDS also saw flaws in the intention to ban hand signals and salutes. “The Nazi salute is only one form of support for Nazism. There is also the Italian or Roman fascist salute, the ‘ok’ signal, the Serbian 3-finger salute and others. Banning one hand signal will result in the use of another, or the invention of a new signal.” 

The Australian Muslim Advocacy Network echoed the concerns of Jewish groups around the evolution of old to new symbols. “There is potential for confusion in relation to what could be deemed a Nazi symbol,” it wrote. “Questions may arise as to whether what is deemed a Nazi symbol is agreed upon and confined to symbols known and acknowledged historically, or whether new symbols/logos may later be categorised. 

“If so, such a system would, in effect, create a ‘moving goalpost’ with respect to what would be outlawed and captured by the bill. For example, should new right-wing organisations continue to sprout, they may opt to retire from the use of historic Nazi symbols and begin using new symbols or logos to reflect their views and identify themselves. 

“Would those new symbols be deemed Nazi symbols? If so, how would that determination be made on an ongoing basis?” 

The NSW Council for Civil Liberties recommended a jurisdictional amendment to toughen the bill. “As it stands, the bill would allow for the decision to prosecute lie with police and not the independent Commonwealth Director of Public Prosecutions (CDPP).” It said all prosecutions should be authorised by the CDPP, which “would add transparency to the decision to prosecute and ensure that it is above political critique”.  

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Photo: A swastika as part of the flag of the National Socialist Movement.