Prohibited symbols offences

This webpage provides general information only. It does not contain, and should not be relied on, as legal advice.

What symbols are prohibited

The Criminal Code includes offences for publicly displaying certain symbols and for making the Nazi salute.

Prohibited Nazi symbols

Prohibited Nazi symbols are any of the following:

• the Nazi hakenkreuz (hooked cross)
• the Nazi double-sig rune (also known as ‘SS bolts’)
• any symbol that so nearly resembles a prohibited Nazi symbol that it is likely to be mistaken for the prohibited symbol (for example, a drawing, pattern or design that is substantially similar to the Nazi hakenkreuz but with the lines skewed at slightly different angles).

The offences also apply to making the Nazi salute.

Prohibited organisation symbols

Prohibited organisation symbols are any symbols used to identify:

• a terrorist organisation or any part of a terrorist organisation, whether listed or not (for example, the flag of a terrorist organisation)
• a prohibited hate group or any part of such a group (for example, the flag of a prohibited hate group). This is limited to symbols of organisations that are listed as a prohibited hate group
• a state sponsor of terrorism or any part of the state sponsor of terrorism (for example, the flag of a state sponsor of terrorism)
  • however, a state sponsor of terrorism symbol does not include the flag of a foreign country or the flag of part of a foreign country
  • this is limited to symbols of listed state sponsors of terrorism.

This offence also covers anything that so nearly resembles any of the above that it is likely to be confused with, or mistaken for, it.

These symbols may appear in many contexts, including recruitment materials, propaganda or messages between members of an organisation.

For more information, including a list of some prohibited symbols, visit Australia’s National Security website.

Nazi salute

The term ‘Nazi salute’ takes its ordinary meaning. This is a distinctive gesture associated with Nazi Germany that generally involves raising a straight, right arm at an angle from the body.

There are some variations in how the salute may be performed. For example, the specific angle at which the arm is raised or the arm that is used to perform the salute.

When it is an offence to display a prohibited symbol

Sections 80.2H and 80.2HA of the Criminal Code make it a criminal offence to:

• display prohibited symbols
• make the Nazi salute.

For an offence to occur, all of the following must apply.

The conduct occurs in a public place

A person must have displayed the symbol, or made the gesture, in a public place.

This includes:

• physical locations
• online content
• documents
• films and television programs.

It does not matter whether someone actually saw the symbol or gesture – only that it could have been seen.

The symbol or gesture is prohibited

The person displaying the symbol is reckless as to whether it is a prohibited symbol. This means:

• it does not need to be proven that the person knew the symbol was prohibited
• it is enough that the person was aware of a substantial risk that the symbol was prohibited, and in the circumstances, it was unjustifiable to take that risk.

The conduct meets the harm threshold

A reasonable person who is a member of a targeted group (a group of persons distinguished by race, colour or national or ethnic origin) would consider the conduct to:

• involve spreading ideas of superiority over, or hatred of, a member of the targeted group, because of their race, colour or national or ethnic origin 
• have the potential to incite another person or group to offend, insult humiliate or intimidate a member of the targeted group
• advocate hatred of a group or member of a group
• constitute incitement to offend, insult, humiliate, intimidate or use force or violence against a group or member of a group.

This also applies if the conduct is likely to offend, insult or intimidate a person because of their race, colour, sex, sexual orientation, gender identity, intersex status, disability, language, religion, political or other opinion or national, ethnic or social origin.

Defences

The offence does not apply in certain circumstances.

Opposing extremist ideology

It is not an offence to display a prohibited symbol for the purpose of opposing:

• Nazi ideology
• fascism
• the ideology or purposes of a terrorist organisation, a state sponsor of terrorism, or a prohibited hate group.

Legitimate purposes

The offence does not apply if the person’s conduct was for a legitimate purpose and a reasonable person would consider it appropriate and not contrary to the public interest.

This includes use for:

• religious purposes (such as the display of the sacred swastika as part of religious observance)
• academic or educational purposes
• artistic, literary or scientific purposes
• news or current affairs reporting by a professional journalist, where it is in the public interest.

There are several other listed defences, including if the display of the symbol is necessary to enforce a law or investigate a contravention of a law.

Direction to remove

Federal, state or territory police officers have the power to direct a person to remove a prohibited symbol from public display in certain circumstances. Failure to comply with a direction is a criminal offence.

Power to seize

Police officers have the power to seize a prohibited symbol that is displayed in a public place, but only to prevent an offence.

If an item is seized, the owner or the person it was seized from may apply for its return within 90 days. Police must return the item unless it needs to be retained to prevent an offence or for evidentiary purposes.

Trading in prohibited symbols

Sections 80.2J and 80.2JA of the Criminal Code make it a criminal offence to trade in items that depict or contain prohibited symbols.

A person may commit an offence if they trade in such goods and they know or are reckless as to whether the symbol is associated with Nazi ideology or is a prohibited organisation symbol.

What ‘trade’ covers

Trade covers selling, leasing or renting goods. This includes doing things with the intention of selling goods, such as concealing, possessing, transporting and preparing to supply goods for sale.

Legitimate trading

It is not an offence to trade in goods containing prohibited symbols where the trading is for a legitimate purpose and not contrary to the public interest. For example:

• selling a history textbook about World War II that includes images of Nazi symbols
• distributing news or current affairs material created by a journalist in the public interest.

Report a potential crime

If you feel threatened or unsafe in any way, contact police on:

• Triple Zero (000) for immediate threats
• 13 14 44 for non-life-threatening incidents.

You can report a Commonwealth crime to the AFP online using the Report a Commonwealth Crime form.