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EXPLAINED: Anti-Nazi legislation and 'reasonable' racial vilification

Parliament intends to create an objective standard to determine whether a person is a victim of vilification by Nazis or the Islamic State.

Attorney-General Mark Dreyfus has introduced legislation to Parliament that would ban the use of the Nazi swastika and the symbol of the SS (Schutzstaffel), a Nazi paramilitary organisation that ran many of the concentration camps.

The flag of the Islamic State would also be listed as a ‘prohibited symbol,’ alongside the Nazi symbols.

Under the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, displaying prohibited symbols in a public place or trading in them commercially would become a criminal offence, with a maximum punishment of 12 months’ imprisonment.

The proposed amendment adopts a broad definition of ‘public place,’ which includes physically displaying the symbols, such as a flag or graffiti, as well as publicly-available videos and documents, such as leaflets and YouTube videos.

The proposed Section 80.2H(9) of the Crimes Act 1914 (Qld) recognises that there are some instances where the appearance of these symbols may be justified. The primary exceptions are where it is displayed for educational or artistic purposes, or in the news by a journalist. In all instances, the incorporation of these symbols must be in the ‘public interest.’

The amendment also criminalises the use of a ‘carriage service,’ which includes social media, emails, and text messages, to promote or share ‘violent extremist material.’ It carries a maximum sentence of 5 years’ imprisonment.

A big question that lawyers and judges face when it comes to issues like this is that, although they may not have sold their souls to the Devil, they are different from ordinary people, because they have highly specialised legal knowledge. They cannot accurately represent ordinary members of society.

Acknowledging this, when resolving legal issues, judges will look at the issues from the objective standard of a reasonable person. Or, in the words of Justice Dixon, the ‘man on the Bondi tram.’

This ‘reasonable person’ standard has two effects. Firstly, it removes personal biases and characteristics. This is one of the reasons why a trial by jury is important, because having a jury made up of a number of ordinary citizens should balance out these personal differences.

Of course, juries don’t normally appear in appeal cases, and in some cases there reasons why a jury shouldn’t be used, so judges are expected to view the case from the perspective of a reasonable person, walking a mile in the reasonable person’s shoes.

The second effect of this test is that, in some circumstances, there will be a particular standard or duty of care that a group of persons has, and that has to be factored in. For example, a parent or teacher has a greater duty of care to a child than a random stranger on the sidewalk.

The reasonable person test is often hard to define. Defining it too much will place too many limitations on it, so it will not accurately reflect a reasonable person. In addition, ‘reasonable’ doesn’t mean ‘ordinary.’ A reasonable person would reasonably be expected to meet the duty of care expected of them, even if an ordinary or average Australian might not.

In the case of this legislation, the reasonable person test is adopted to determine whether something is offensive. This is primarily based on the need to consider these matters without having to worry about the subjective political and cultural beliefs of ordinary Australians skewing the result.

There are several instances where the reasonable person test is essential to the success of this legislation.

Section 80.2H is the section concerned with defining the offence of publicly displaying prohibited symbols. There are three components to this. It must be displayed in a public place, it must be a prohibited symbol, and it must be one of three criteria involving a reasonable person.

Under subsection (3), a reasonable person must consider it to be displayed as part of conduct that promotes “racial superiority or racial hatred” or offends or insults a person because of their race.

Alternatively, subsection (4) says that it must advocate hatred towards either a particular race or religion as a whole, or particular people because of membership in a race or religion, and it must encourage others to verbally or physically attack them.

In both cases, the race or religion of the reasonable person isn’t relevant. The standard applied is that any reasonable person must consider the conduct to violate those two provisions.

In contrast, the third option that, found in subsection (7), takes the perspective of a reasonable person who is a member of the race, religion, ethnic group, language group, sex, or political ideology being insulted or offended. This standard takes into account the status of the reasonable person as a victim of that conduct, and so may be a lower standard than the bystander approach taken in subsections (3) and (4).

When it comes to the use of a carriage service for violent extremist material, a reasonable person must consider that the material advances a “political, religious or ideological cause” and encourages, assists, or induces another person to plan or actually do anything related to conduct that is violent or would intimidate someone.

In this instance, it doesn’t matter whether a reasonable person would conclude that it is targeted at a particular race or other group, as this conduct can threaten the public at large. Although the race of the reasonable person isn’t important here, neither is the race of the target.

Ultimately, the reasonable person test helps to create an objective standard that the courts can use to determine whether an offence has been committed. However, it is not necessarily a one-size-fits-all approach, because Parliament can tell the courts to take into account certain characteristics when using this test, as Section 80.2H(7) demonstrates.

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