Public display of prohibited Nazi symbols or giving Nazi salute
80.2H Public display of prohibited Nazi symbols or giving Nazi salute
A person commits an offence if:
the person:
causes a thing to be displayed in a public place; or
makes a gesture in a public place; and
the thing is a prohibited Nazi symbol, or the gesture is a Nazi salute; and
subsection (3), (4) or (7) applies.
For defences, see subsections (9) and (10).
Penalty: Imprisonment for 5 years.
Absolute liability applies to paragraph (1)(c).
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person who is a member of a group of persons distinguished by race, colour or national or ethnic origin (a targeted group) would consider that the conduct mentioned in paragraph (1)(a):
involves dissemination of ideas of superiority over or hatred of a person who is a member of the targeted group, or the members of the targeted group, because of the race, colour or national or ethnic origin of the targeted group; or
could incite another person or a group of persons to offend, insult, humiliate or intimidate:
a person who is a member of the targeted group; or
the members of the targeted group.
The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2026 be viewed in the Australian Treaties Library on the AustLII website (https://www.austlii.edu.au).
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person who is a member of a group of persons distinguished by race, religion or nationality (a targeted group) would consider that the conduct mentioned in paragraph (1)(a) involves advocacy that:
is advocacy of hatred of:
the targeted group; or
a member of the targeted group; and
constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:
the targeted group; or
a member of the targeted group.
The object of this subsection is to give further effect to Article 20 of the Covenant.
For the purposes of paragraph (4)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.
For the purposes of paragraph (4)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.
For the purposes of paragraph (1)(c), this subsection applies if the conduct mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is:
a reasonable person; and
a member of a group of persons distinguished by race, colour, sex, sexual orientation, gender identity, intersex status, disability, language, religion, political or other opinion or national, ethnic or social origin;
because of the reasonable person’s membership of that group.
The object of this subsection is to give further effect to article 26 of the Covenant.
For the purposes of subsection (7), it does not matter whether a member of the group sees:
the thing while it is displayed in a public place; or
the gesture while it is made in a public place.
Defences—religious, academic, educational, artistic, literary, scientific or journalistic purpose
Subsection (1) does not apply to a person if a reasonable person would consider that:
the conduct mentioned in paragraph (1)(a) is engaged in for a purpose that is:
a religious, academic, educational, artistic, literary or scientific purpose; and
not contrary to the public interest; or
the conduct mentioned in paragraph (1)(a) is engaged in for the purposes of making a news report, or a current affairs report, that:
is in the public interest; and
is made by a person working in a professional journalistic capacity.
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Defences—public duties etc. or opposing ideology
Subsection (1) does not apply to a person engaging in conduct mentioned in paragraph (1)(a) if:
engaging in the conduct is necessary for enforcing a law of:
the Commonwealth; or
a State; or
a Territory; or
a foreign country; or
a part of a foreign country; or
engaging in the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of:
the Commonwealth; or
a State; or
a Territory; or
a foreign country; or
a part of a foreign country; or
the person engages in the conduct for the purposes of proceedings in a court or tribunal; or
both:
the person engages in the conduct in connection with the performance by a public official of the official’s duties or functions; and
engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
both:
the person engages in the conduct in connection with an individual assisting a public official in relation to the performance of the public official’s duties or functions; and
engaging in the conduct is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official’s duties or functions; or
the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology.
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Functions
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
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