Publicly displaying hate symbols — like Nazi flags and tattoos — will become illegal in Queensland, under new laws passed by state parliament.
Those who display, distribute or publish a banned symbol — and cause others to feel harassed or offended — could face up to six months’ jail.
The laws also increase punishment by creating a circumstance of aggravation for people who commit crimes motivated by hatred or contempt based on characteristics like race, gender, religion or sexuality.
That could capture performing a Nazi salute in public.
The government says there’s “no room for racism and hatred in society”, but it’s also aimed to strike a balance between the right to freedom of expression and the need to protect communities from hateful ideologies by including exemptions like genuine artistic, religious, educational and historical reasons.
About 20 groups came together in 2020 to push for Queensland politicians to do more to tackle hate crime amid a wave of racist incidents.
What symbols will be banned?
There’s no list of the hate symbols in the legislation.
Instead, the attorney-general will have the power to recommend which symbols are banned and this will be done via regulation.
They must be satisfied the symbol is widely known to the public, or to members of a specific identity, as “substantially representative of an ideology of extreme prejudice against” a racial, religious, sexuality or gender identity.
ISIS and Nazi motifs are some examples; Premier Annastacia Palaszczuk made specific mention of Nazism when announcing the laws, calling the ideology “evil”.
Before moving to ban any symbol, the attorney-general has to consult with the chair of the Crime and Corruption Commission, the human rights commissioner and the police commissioner.
But in a submission to a parliamentary committee, University of Queensland law professor Graeme Orr raised concerns about the method.
He said the power to prohibit something “is an unusual power” to give to a member of the government, and it wasn’t clear why the ordinary principle – that criminalising conduct is a matter for parliament – wasn’t followed here.
The government argues that it’s justified because it means the minister can quickly respond to new symbols that emerge.
What constitutes a ‘display’?
It’ll be illegal to display a banned symbol in a way that “might reasonably be expected” to cause a member of the public to feel menaced, harassed or offended.
That covers any form of communication – including social media posts.
It also applies to conduct that is seen by the public – like actions and gestures, as well as wearing or displaying clothing, signs, flags, emblems or insignia.
That includes the public display of tattoos and markings.
Back in March, then-attorney general Shannon Fentiman said there’d be no provision to order someone to remove such a tattoo, but if they continued to display it in public, causing offence, “they’d continue to fall foul of these laws”.
“It’s the display that is the criminal offence,” she said.
What are the exceptions?
There will also be key exceptions to the laws so that ancient symbols from religions are not inadvertently banned.
For example, the swastika had profound meaning in Hinduism, Buddhism and Jainism, before it was appropriated by the Nazis.
“The ‘religious’ excuse is intended to ensure that the display of symbols, such as the swastika, in these contexts is not captured by the offence,” a summary of the legislation states.
A person also won’t be committing an offence if it’s for genuine artistic, educational, historical, legal, a public interest purpose, or to “oppose the ideology” represented by the symbol.
An excuse “might be available where the public display is made in books, body art, plays, satire, film and documentaries, museums and universities, on historical models, during historical re-enactments and for religious or scientific and research purposes”, the summary notes.
Increased penalties
Community and religious leaders have previously called for stronger legal protections, saying the existing laws were failing to capture the majority of the harassment, with very few prosecutions.
Queensland Human Rights Commissioner Scott McDougall told the ABC in 2020 that “very often hate-related crimes are not being prosecuted as such, they’re being prosecuted as public nuisance”.
The new laws could see increased penalties for certain crimes where the offender is motivated by hatred or serious contempt for a person or group, by creating a new “circumstance of aggravation”.
That’ll apply to offences including threatening violence, common assault, threats and wilful damage.
It will also apply to public nuisance and trespass in certain circumstances – if, for example, a person was to perform a Nazi salute in public.
In addition, the maximum penalty for the offence of “serious racial, religious, sexuality or gender identity vilification” will also be increased from six months’ imprisonment to three years.
When will the laws come into force?
The new laws will take effect on a future date to be decided by the government.