The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Senate Standing Committee on Legal and Constitutional Affairs in regard to The Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (the Bill).

Freedom of expression does not give licence to individuals to engage in expression which engenders hate and incites violence. To that end, we support the principles underpinning the bill. However, the council believes it is the promotion of Nazi ideology which should be criminalised. To the extent that this Bill falls short of that objective, it is inadequate.  It seeks to criminalise only one aspect of the promotion of Nazi ideology – the display of Nazi symbols.  That does not go to the heart of the problem.  Careful consideration of how to prevent the promotion of Nazi ideology is required – the criminal law is only one of the required tools; other tools are required – education, engagement, diversion – and the criminalised conduct should be the core of the offensive conduct, not a superficial aspect.  

In addressing just one aspect of the problem, it is arguable that the Bill creates more difficulties and problems than it cures.  It takes a simplistic approach, such that its enforcement is likely to be inconsistent – some people will get prosecuted; others in comparable situations may not.  Without an assurance that it will be enforced consistently and appropriately, it could be counterproductive. 

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). We consider this to be a problem and one which could open the state up to unnecessary critique from far-right extremists for acting oppressively in a non-transparent way.

We urge this committee to recommend the government to take concrete steps, ensuring that there is an appropriately resourced, whole-government reponse to the deradicalisation of extremists. NSWCCL is firmly of the belief that these harmful idealologies cannot be prosecuted out of existence. 

For more information, read our full submission.