As the government prepares to introduce legislation into parliament for an Australia-wide ban on Nazi symbols, it’s timely to revisit the extensive coverage of this issue in ASPI’s Counterterrorism yearbook 2022 ^[1].

The yearbook placed the threat of ideologically motivated violent extremism in all its forms, including nationalist and racist behaviour, in a national context to explain why action must be taken to deal with it and how lawmakers could avoid some unintended consequences.

Early last year, notwithstanding the elevation of foreign interference as Australia’s top national security priority, the director-general of the Australian Security Intelligence Organisation, Mike Burgess, identified terrorism and extremism threats as ‘significant and constantly evolving’. Burgess also warned of a nationwide escalation in militant extremist behaviour and said:

As a nation, we need to reflect on why some teenagers are hanging Nazi flags and portraits of the Christchurch killer on their bedroom walls, and why others are sharing beheading videos. And just as importantly, we must reflect on what we can do about it.

In a detailed chapter setting out the case for banning Nazi symbols, former NSW police officer Kristy Milligan writes that the urgency of banning symbols may seem more immediate in places such as the US and some European nations with more actively violent and coordinated far-right extremist organisations.

‘However,’ she says, ‘if we fail to implement appropriate strategies, the risk of greater proliferation of violence-oriented ideologies will increase.’

Milligan has researched the role of symbolism in terrorist and extremist propaganda, including in the anti-government ‘sovereign citizen’ movement.

She writes that drawing a line in the sand regarding the ethical standards by which we choose to live in a liberal democratic society is critical and law enforcement and policymakers face the very challenging task of balancing societal expectations, protecting religious rights and preserving freedom of speech.

‘While many other symbols used by extremist groups aren’t as clear-cut, there’s no ambiguity about the meaning and intent behind symbols such as the Hakenkreuz ^[2] [Nazi swastika] or Totenkopf ^[3] [Nazi skull symbol],’ Milligan says. ‘Specifically, the criminalisation of unambiguous Nazi symbols in Australia would equip frontline officers with powers to seize materials or detain individuals who publicly display those symbols of hate.’

Milligan says the enactment of such laws is critical for law enforcement to effectively manage existing and emerging risks associated with extremist activity. The wider security and law-enforcement community would benefit from the proposed laws, she argues, enabling it to collect intelligence and conduct investigations into the production, importation or use of these symbols both in public and on online forums.

International bans have made a strong social statement of community values and society’s condemnation of racist and violent rhetoric to reduce right-wing extremist activity and anti-Semitic rhetoric associated with the Nazi ideology. Australian law enforcement requires laws that provide appropriate penalties for offences committed by individuals or groups who use these co-opted symbols to spread hate and fear in our community.

The use of these symbols by the NSN ^[4] [National Socialist Resistance], Antipodean Resistance ^[5] and the Christchurch terrorist ^[6] all demonstrate the need for Australia to develop appropriate legislative tools, which can be adapted based on the experience and best practice of other Western democracies that have had such laws for decades.

Milligan writes that a reasoned, clearly defined and compassionate legislative response would provide a strong statement of our nation’s values, impede the dissemination of extremist ideology, and protect those for whom variations or traditional iterations of these symbols might have a legitimate purpose.

Milligan notes that runes and symbols such as the swastika have been associated with Nordic, Germanic and other Indo-European cultures for centuries before their appropriation by Hitler’s Nazi Party.

She notes the importance of proposed legislation not prohibiting the display of the swastika in such religious and cultural contexts. The bill sponsored by Attorney-General Mark Dreyfus includes exemptions, such as for religious, academic and journalistic use.

But criminalisation of such symbols used in an extremist context would be a vital tool for Australian law enforcement, which would be equipped with the appropriate powers to prosecute and prevent violence and threats to democracy associated with these ideologies.

Milligan examines NSN activities in the Grampians National Park in January 2021, which resulted in renewed calls for the criminalisation of the display of Nazi symbols after police deemed that no offences had been committed.

Halls Gap community members and visitors to the national park reported witnessing approximately 20 NSN members marching through the town, harassing the community, and chanting ‘white power’ and ‘Heil Hitler’ as they performed the Hitler salute. Some wore black uniforms depicting the ‘white pride’ symbol as they posed in front of a burning cross against the scenic backdrop of the Grampians.

‘The NSN’s actions in the Grampians weren’t deemed illegal,’ says Milligan. ‘The reason was a lack of legislation criminalising the display of the Hakenkreuz, the Hitler salute and ‘white pride’ symbols, or the chanting of Nazi slogans. Victoria Police concluded that no criminal offences had been committed. Yet, despite no visible action being taken at the scene, the NSN’s activities would have undeniably been investigated closely by CT units.’

Milligan says police attending the scene in Halls Gap could have used Victoria’s Summary Offences Act 1966, section 17 of which specifies ‘offensive’ acts as being obscene, threatening, insulting and abusive words or behaviours committed in a public place.

But, she says, that legislation is at the lowest end of the spectrum of legal options, making the actions essentially mere ‘street’ offences.

In the yearbook, the executive director of the Australia/Israel and Jewish Affairs Council (AIJAC), Colin Rubenstein writes that in Victoria, ideologically motivated extremism, including far-right activity, is overwhelmingly characterised by intimidation, threats and harassment in the form of phone calls, letters, graffiti, vandalism, and noxious remarks and gestures, including the Nazi salute.

Rubenstein describes how anti-authority extremists set out to infiltrate lockdown protests, and how some neo-Nazi and white supremacist groups have openly looked to Islamist terror organisations, such as Islamic State, ‘as a model and inspiration’ for their own efforts.

Rubenstein says the term ‘far right’ has become less useful as a general descriptor as this coalition of neo-Nazis, conspiracy theorists, racists, nationalists and anti-authority libertarians has coalesced, leading Victoria Police to warn that it was ill-prepared to deal with these ‘conflating ideologies’, which have ‘presented a challenge in effectively tasking and investigating these individuals as they do not fit neatly into pre-existing tasking and coordination frameworks’.

He strongly backs AIJAC’s recommendation, among others, that to combat the evolving extremist threat, the Victorian government should fully implement its expansion of anti-vilification measures, including the Hakenkreuz ban, announced in May 2022.

AIJAC also urges the state government to keep abreast of new racist codewords and gestures used by nationalists, racists and conspiracy theorists to ban their public use under anti-vilification measures.

For almost two decades after the 9/11 and Bali terror attacks, Australia and the Western world fought terrorism as the top national security threat. We now face the most uncertain strategic circumstances in generations, with aggressive authoritarian regimes in Moscow and Beijing, as well as cybercriminals, creating instability and havoc from the trans-Atlantic to the Indo-Pacific.

Terrorism in Australia might have dropped in threat level, but it hasn’t disappeared and continues to evolve, which means we too need to adapt and show that we can counter multiple threats simultaneously to maintain national resilience, security and freedom. This legislation, which should receive bipartisan support, is part of that process.