A new law has recently come into force in NSW, making it a criminal offence punishable by up to 12 months in jail and/or a $11,000 fine to knowingly display a Nazi symbol in public without a reasonable excuse. If a corporation displays a Nazi symbol in public it could face a fine of $55,000.

New legislation against displays of Nazi symbol or Nazi flag

The NSWCrimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 was enacted in August, after reports of increasing incidents of anti-Semitic and far-right extremist activities in NSW and around Australia.

NSW Attorney-General Mark Speakman said the law showed that the hatred and bigotry Nazi symbols represent will not be tolerated. (Please see Public display of Nazi symbols now banned in NSW, NSW Government Communities and Justice, 19 August 2022.)

"This new criminal offence will provide important, additional safeguards against hate speech and vilification in our state," Mr Speakman said.

It joins other laws against vilifying conduct, including section 93Z of the Crimes Act 1900, which applies to threats of violence on the grounds of race, religion, sexual orientation or gender identity.

Bans on Nazi symbolism in other jurisdictions

The public display of Nazi symbols is banned in 12 nations, including Germany, Austria and France.

Victoria was the first Australian state to criminalise the public display of Nazi symbols, earlier in 2022.

Rise in right-wing extremism and displays of the Nazi flag

The Jewish Board of Deputies reported there were 490 anti-Semitic incidents in Australia in 2021, a 38 per cent increase on 2020. More than half of those incidents occurred in NSW.

Jewish groups said waving the Nazi flag in Australia was not only extremely upsetting to victims of the evil Nazi regime, but was also a gateway to something extremely sinister and dangerous: normalising the horror of Nazism and genocide.

The Association of Jewish Holocaust Survivors and Descendants said displaying Nazi symbols brings trauma to Holocaust survivors and contributes to disregard of the suffering caused by the Nazi regime.

Police told a parliamentary committee assessing the legislation that right-wing extremism was growing in NSW. (Please see Australia lists neo-Nazi organisation The Base, Lebanese Shia party Hezbollah as terrorist organisations, ABC News, 24 November 2021.)

In 2020 NSW police received 31 complaints about Nazi flags and armbands being displayed in public.

When does the ban on Nazi symbols apply?

Under the new NSW law, police can take action against those displaying a Nazi symbol in public. But while the law was enacted with good intentions, there could be legal difficulties in defining exactly when such actions are illegal.

The new law does not ban the swastika being used in connection with Buddhism, Hinduism, or Jainism, as it has been a historic religious symbol of peace and wellbeing for centuries, before it was appropriated and its meaning twisted by the Nazis in the 1930s.

The new law does not apply to those who have a "reasonable excuse" for displaying a Nazi symbol "reasonably and in good faith" for an "academic, artistic or educational purpose or for another purpose in the public interest".

But what about a swastika or SS symbol on the cover of a book or movie poster? Or graffiti on a wall? Could that be art or education? Does the law extend to use of a Nazi symbol on social media? What about a swastika tattoo?

These questions will have to be faced as the ban proceeds, but those who use a Nazi symbol in movies, on book covers or in other media would be wise to seek legal advice, to see whether they come under the protection of what the Act calls the "public interest" or have what it loosely calls a "reasonable excuse".

Those who are vilified, bullied or offended by others displaying Nazi symbols should seek legal advice about what they can do about it under this new law and other anti-vilification laws.

Michael McHugh
Criminal law
Stacks Law Firm

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