Criminal Code Act 1899

This section applies to a person if—

the person publicly distributes, publishes or publicly displays a prohibited symbol in a way that might reasonably be expected to cause a member of the public to feel menaced, harassed or offended; and

for a relevant prohibited symbol—the person knew, or ought reasonably to have known, when the person distributed, published or displayed the symbol, that the symbol was used by a prescribed organisation, or a member of a prescribed organisation, to identify the organisation or any part of the organisation.

The person commits an offence, unless the person has a reasonable excuse.Maximum penalty—150 penalty units or 2 years imprisonment.

Without limiting what may be a reasonable excuse for subsection (2), a person has a reasonable excuse if—

any of the following apply—

the person engaged in the conduct that is alleged to constitute the offence for a genuine artistic, religious, educational, historical, legal or law enforcement purpose;

the person engaged in the conduct that is alleged to constitute the offence for a purpose that is in the public interest; Examples for subparagraph (ii)—

• publication of a fair and accurate report of an event or matter of public interest

• a genuine political or other genuine public dispute or issue carried on in the public interest

the person engaged in the conduct that is alleged to constitute the offence in opposition to the ideology represented by the prohibited symbol; and

the person’s conduct was, in the circumstances, reasonable for that purpose.

An evidential burden is placed on the defendant in relation to showing a reasonable excuse for subsection (2).

For subsection (1), a person publicly displays a prohibited symbol if the person—

displays the symbol—

in a place that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or

in a place the occupier of which allows, whether or not on payment of money, members of the public to enter; or

displays the symbol in a way that is visible from a place mentioned in paragraph (a).

To remove any doubt, it is declared that, for subsections (1) and (2)—

the offence is committed at the time when the person distributes, publishes or displays the prohibited symbol; and

it is irrelevant whether or not a member of the public has seen the prohibited symbol because of the distribution, publication or display.

In this section—prescribed organisation see section 52CA.relevant prohibited symbol means—

a prohibited symbol mentioned in section 52C(1)(b); or

a prohibited symbol mentioned in section 52C(1)(c) that so nearly resembles a symbol mentioned in paragraph (a) that it is likely to be confused with or mistaken for that symbol.

sch 1 pt 2 ch 7A s 52D ins 2023 No. 26 s 12