The Australia Institute welcomes the opportunity to make a submission on the Counter Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023.

This submission incorporates and expands upon an earlier submission from the Australia Institute on the Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023. This submission laid out the authors’ position on state censorship of the public display of prohibited symbols:

• That no one in Australia – or indeed, anywhere – should have to live in fear because of who they are.
• That those who deny the status of other human beings as equal members of their political community are not entitled to having their speech or actions (regarding this matter) tolerated by the community.
• That any legislation directly impacting free speech must be clear enough in its wording and structure to ensure that restriction does not occur without good reason (preventing overreach).
• That educational and rehabilitative components should be considered as a replacement or complement to prison sentences in order to reduce the risk of further radicalisation and recruitment into extremist groups that can occur in prisons.

This submission relates that position to the current Bill under inquiry and makes five recommendations:

1. That the examples for legitimate excepting circumstances be detailed within the legislation itself, using the Victorian legislation as a guide. Some explanation is provided in the explanatory memorandum, but a comprehensive set of examples provided within the legislation itself would provide stronger instruction for the courts and prevent accidental overreach.
2. Broadening the protected circumstances for those who are not professional journalists reporting on prohibited symbols in the public interest. Defining things narrowly in this instance creates legal boundaries that are too limited and increases the chance for government overreach.
3. That the legislation be amended to reflect that any usage of prohibited hate symbols in protest action should be legitimate outside of its specific usage to promote ideologies of hate.
4. That the legislation be amended so that prohibited symbols include variations, derivatives and modifications to the prohibited symbols, but not other symbols that happen to resemble a prohibited symbol.
5. That educational and rehabilitative components be considered alongside or as a replacement for jailtime. If the purpose of these laws is to help foster a truly tolerant, multicultural society, their enforcement must not rely exclusively on punitive measures. Given that violent extremist groups use prisons to radicalise and recruit, in some circumstances jailing offenders could be counter-productive.