Western Australian Numbered Acts Western Australian Numbered Acts At the end of
Part II insert:
Chapter 11A — Nazi symbols and salute
(1) In this
Chapter —
display , of a Nazi symbol —
(a) in a
public place, has the meaning given in section 80N(2); and
(b) on
private property, has the meaning given in section 80N(4);
interested person , in relation to a relevant
place, has the meaning given in section 80U(1);
Nazi hakenkreuz has the meaning given in
section 80L;
Nazi symbol has the meaning given in
section 80M(2);
Nazi symbol removal notice has the meaning given
in section 80U(2);
owner , of a place, means —
(a) if
the place comprises, or is on, land that is subject to the
Transfer of Land Act 1893 or the Land Administration Act 1997
— a proprietor of the land as defined in the
Transfer of Land Act 1893 section 4(1);
(b) if
the place comprises, or is on, land that is subject to the
Registration of Deeds Act 1856 — the holder of an estate or
interest in the land that is registered by memorial under that Act;
private property includes a vehicle, vessel or
aircraft;
publish means publish to the public or a section
of the public;
relevant place , in relation to a Nazi symbol, has
the meaning given in section 80U(1);
remove , in relation to a thing marked with a Nazi
symbol, includes to modify or cover the thing (including by painting or some
other process) so that it no longer displays a Nazi symbol;
senior police officer means a police officer who
is, or is acting as, a Commander or an officer of a rank more senior than a
Commander.
(2) For the purposes
of this Chapter, a reference to a thing marked with a Nazi symbol does not
include a reference to a tattoo or other body marking that comprises or
includes a Nazi symbol.
80L. Meaning of Nazi hakenkreuz
A Nazi hakenkreuz
(commonly referred to as a swastika) is a symbol of a cross with the arms bent
at right angles in a clockwise direction used in connection with the Nazi
Party, the Third Reich, Neo-Nazism or Nazi ideology.
(1) In this
section —
image includes a depiction or representation.
(2) A Nazi symbol
is —
(a) any
of the following —
(i)
a Nazi hakenkreuz;
(ii)
the Nazi flag;
(iii)
the double-sig rune (commonly known as SS bolts);
(iv)
the Nazi eagle;
(v)
an image of a person performing the Nazi salute;
or
(b)
something that so nearly resembles a thing or image referred to in
paragraph (a) that it is likely to be mistaken for that thing; or
(c) a
thing or image prescribed by the regulations.
(3) Regulations made
under subsection (2)(c) —
(a) must
prescribe the thing or image as a graphic representation of the thing or
image; and
(b) may
not prescribe the thing or image by describing a class of things or images.
(4) A thing or image
may only be prescribed under subsection (2)(c) on the recommendation of
the Minister.
(5) The Minister must
not make a recommendation under subsection (4) unless satisfied that the
thing or image is widely known by the public as being solely or substantially
representative of the Nazi Party, the Third Reich, Neo-Nazism or Nazi
ideology.
(1) A reference to a
person displaying a Nazi symbol includes the person —
(a)
wearing, carrying or otherwise possessing or controlling a Nazi symbol, or a
thing marked with a Nazi symbol, in a manner that the Nazi symbol would be
visible to another person; or
(b)
having a tattoo or other body marking that —
(i)
comprises or includes a Nazi symbol; and
(ii)
is left uncovered in a manner that the Nazi symbol would
be visible to another person.
(2) A person displays
a Nazi symbol in the manner described in subsection (1) in a public place
if the Nazi symbol, or a thing or person marked with a Nazi symbol,
is —
(a)
physically in the public place; or
(b)
physically in another place from where the Nazi symbol would be visible to
another person in the public place.
(3) For the purposes
of subsections (1) and (2), a Nazi symbol may be displayed regardless of
whether —
(a) the
Nazi symbol is seen by another person; or
(b) in
the case of subsection (2) — another person is in the public
place.
(4) A person displays
a Nazi symbol in the manner described in subsection (1) on private
property if —
(a) the
person displays the Nazi symbol while physically on the private property; or
(b) the
Nazi symbol is visible to another person on the private property regardless of
whether the Nazi symbol is seen by the other person.
80O. Offence to display Nazi symbol
(1) A person commits a
crime if the person displays a Nazi symbol in a public place.
Penalty for this subsection: imprisonment for
5 years.
Summary conviction penalty: imprisonment for
2 years and a fine of $24 000.
(2) A person commits a
crime if the person displays a Nazi symbol on private property without the
consent of the person who has the management or control of the private
property.
Penalty for this subsection: imprisonment for
5 years.
Summary conviction penalty: imprisonment for
2 years and a fine of $24 000.
(3)
Subsections (1) and (2) do not apply to a person who has not reached
18 years of age.
80P. Offence to make Nazi gesture
(1) A person commits a
crime if —
(a) the
person makes a gesture in a public place; and
(b) the
gesture is a Nazi salute or so nearly resembles a Nazi salute that it is
likely to be mistaken for a Nazi salute; and
(c) the
person intends the gesture to be a Nazi salute.
Penalty for this subsection: imprisonment for
5 years.
Summary conviction penalty: imprisonment for
2 years and a fine of $24 000.
(2) For the purposes
of subsection (1), a person makes a gesture in a public
place —
(a) if
the person makes the gesture in a way that would be visible to another person
in the public place regardless of whether —
(i)
the gesture is seen by another person; or
(ii)
another person is in the public place;
and
(b)
whether the person making the gesture is —
(i)
physically in the public place; or
(ii)
physically in another place.
(3) A person commits a
crime if —
(a) the
person makes a gesture on private property; and
(b) the
gesture is a Nazi salute or so nearly resembles a Nazi salute that it is
likely to be mistaken for a Nazi salute; and
(c) the
person intends the gesture to be a Nazi salute; and
(d) the
person makes the gesture without the consent of the person who has the
management or control of the private property.
Penalty for this subsection: imprisonment for
5 years.
Summary conviction penalty: imprisonment for
2 years and a fine of $24 000.
(4)
Subsections (1) and (3) do not apply to a person who has not reached
18 years of age.
80Q. Offence to apply Nazi symbol to property
(1) A person commits a
crime if the person applies a Nazi symbol —
(a) to
public property; or
(b) to
the property of another person without the consent of that other person.
Penalty for this subsection: imprisonment for
5 years.
Summary conviction penalty: imprisonment for
2 years and a fine of $24 000.
(2) For the purposes
of subsection (1), a person applies a Nazi symbol to property if the
person —
(a)
draws, writes, paints, plasters, scratches or etches a Nazi symbol on the
property; or
(b)
marks the property with a Nazi symbol; or
(c)
takes any other action so that a Nazi symbol appears or is displayed on the
property.
(3)
Subsection (1) does not apply to a person who has not reached
18 years of age.
80R. Defence to s. 80O or 80P charge
(1) It is a defence to
a charge of an offence under section 80O or 80P to prove that the accused
person’s conduct was engaged in reasonably and in good
faith —
(a) in
the performance, exhibition or distribution of an artistic work; or
(b) in
the course of any statement, publication, discussion or debate made or held,
or any conduct engaged in, for —
(i)
any genuine academic, artistic, religious or scientific
purpose; or
(ii)
any purpose that is in the public interest;
or
(c) in
making or publishing a fair and accurate report or analysis of any event or
matter of public interest.
(2) For the purposes
of subsection (1), an accused person’s conduct is not engaged in
reasonably or in good faith if the conduct promotes or supports the Nazi
Party, the Third Reich, Neo-Nazism or Nazi ideology.
(1) It is a defence to
a charge of an offence under this Chapter in relation to the display of a Nazi
symbol to prove that the accused person did not know, and could not reasonably
be expected to have known, that the Nazi symbol was being displayed.
(2) It is a defence to
a charge of an offence under this Chapter in relation to the display or
application of a Nazi symbol to prove that the accused person did not know,
and could not reasonably be expected to have known, that the symbol was a Nazi
symbol.
(3) It is a defence to
a charge under this Chapter to prove that the accused person was acting
reasonably and in good faith in opposition to the Nazi Party, the Third Reich,
Neo-Nazism or Nazi ideology.
(1) In this
section —
intelligence agency has the meaning given in the
Crimes Act 1914 (Commonwealth) section 15K;
law enforcement agency means —
(a) the
Police Force of the State; or
(b) the
Police Service of the State; or
(c) the
Office of the Director of Public Prosecutions of the State; or
(d) the
Corruption and Crime Commission; or
(e) an
entity of another State or Territory, the Commonwealth or another country that
has functions similar to functions of an entity referred to in
paragraph (a), (b), (c) or (d).
(2) A member or
officer of a law enforcement agency or an intelligence agency does not
contravene this Chapter if the act that would otherwise constitute an offence
occurs in the performance of the official duties of the member or officer and
is done in good faith.
(3) A person does not
contravene this Chapter if the act that would otherwise constitute an offence
occurs in the course of official duties connected with the administration of
the justice system, including the investigation of offences, and is done in
good faith.
80U. Issue of Nazi symbol removal notice
(1) In this
section —
interested person , in relation to a relevant
place, means a person who —
(a) is a
lessee or hirer of the place, whether or not actually occupying the place; or
(b) is
occupying, or is entitled to possession of, the place;
relevant place , in relation to a Nazi symbol or a
thing marked with a Nazi symbol, means the place where the Nazi symbol or
thing is located.
(2) If a senior police
officer reasonably suspects that a Nazi symbol is being displayed in a public
place, the senior police officer may issue a written notice (a Nazi symbol
removal notice ) to a person requiring the person to remove the Nazi symbol,
or a thing marked with the Nazi symbol, from display in the public place.
(3) The Nazi symbol
removal notice must —
(a)
identify the public place where the Nazi symbol, or thing marked with a Nazi
symbol, is displayed and, if the Nazi symbol or thing is located in a place
other than the public place, the place where the Nazi symbol or thing is
located; and
(b) be
addressed to each of the following persons —
(i)
each owner of the relevant place, identified by name; and
(ii)
each other person who is an interested person in relation
to the relevant place, without naming the person but explaining the term
“interested person”.
(4) This section does
not apply if the Nazi symbol being displayed is, or is part of, a tattoo or
other body marking.
80V. Content of Nazi symbol removal notice
A Nazi symbol removal
notice must contain —
(a) a
statement to the effect that —
(i)
the senior police officer issuing the notice reasonably
suspects that a Nazi symbol is being displayed in a public place specified in
the notice; and
(ii)
the notice is issued to the person because the person is
the owner of, or an interested person in relation to, the public place or
other place where the Nazi symbol or thing marked with a Nazi symbol is
located; and
(iii)
within 14 days after the day on which the notice is
served, the person must ensure that the Nazi symbol, or a thing marked with
the Nazi symbol, is removed so that the Nazi symbol is no longer displayed in
the public place specified in the notice;
and
(b) an
explanation of the right of the person to apply to the Commissioner of Police
under section 80Y to revoke the notice; and
(c) an
explanation of the effect of section 80ZA.
80W. Service of Nazi symbol removal notice
(1) A senior police
officer must, as soon as practicable after issuing a Nazi symbol removal
notice to a person, ensure that the notice is served on the person under this
section.
(2) The Nazi symbol
removal notice must be served by a police officer —
(a) by
personal service; or
(b) if,
despite reasonable steps being taken, paragraph (a) cannot be complied
with — by personal service on a person who appears —
(i)
to be occupying the relevant place identified in the
notice; and
(ii)
to have reached 18 years of age;
or
(c) if,
despite reasonable steps being taken, neither paragraph (a) nor (b)
can be complied with — by attaching the notice to the front
entrance, or another part, of the relevant place identified in the notice
where it can be easily seen.
(3) A Nazi symbol
removal notice expires if it is not served within 7 days after it is
issued.
80X. Duration of Nazi symbol removal notice
(1) A Nazi symbol
removal notice takes effect in relation to a person when the notice is served
on the person under section 80W.
(2) The Nazi symbol
removal notice remains in effect until the Nazi symbol, or a thing marked with
the Nazi symbol, has been removed in accordance with the notice, unless the
notice is revoked sooner under section 80Y(4).
80Y. Revocation of Nazi symbol removal notice
(1) A person served
with a Nazi symbol removal notice may apply to the Commissioner of Police to
revoke a Nazi symbol removal notice.
(2) The application
must be made —
(a) in
writing; and
(b)
during the period that the Nazi symbol removal notice is in effect.
(3) The Commissioner
of Police must determine the application within 72 hours after the
application is made.
(4) The Commissioner
of Police must revoke a Nazi symbol removal notice if satisfied —
(a) the
requirements under section 80U(2) for issuing the notice were not met; or
(b) the
person is not the owner of, or an interested person in, the relevant place
identified in the notice; or
(c) the
Nazi symbol to which the notice relates is no longer displayed in the public
place specified in the notice.
(5) The Commissioner
of Police may act under subsection (4) on an application under
subsection (1) or on the Commissioner’s own initiative.
(6) The Commissioner
of Police must, as soon as practicable after revoking a Nazi symbol removal
notice on an application under subsection (1), ensure that written notice
of the revocation is served, by a method authorised by the regulations, on the
applicant.
80Z. Offence to hinder compliance with Nazi symbol
removal notice
(1) A person who does
anything intending to prevent, obstruct or delay the authorised removal of a
Nazi symbol, or a thing marked with a Nazi symbol, in accordance with a Nazi
symbol removal notice commits an offence.
Penalty for this subsection: imprisonment for
12 months and a fine of $12 000.
(2) For the purposes
of subsection (1), the authorised removal of a Nazi symbol, or a thing
marked with a Nazi symbol, means the removal by a person who —
(a) is,
or is acting for or on the instructions of, a person on whom the Nazi symbol
removal notice was served; or
(b) is
acting under section 80ZA(4).
80ZA. Police powers relating to Nazi symbol
removal notice
(1) This section
applies if —
(a) a
Nazi symbol removal notice is served on 1 or more persons (each a relevant
person ) in respect of a Nazi symbol being displayed in a public place; and
(b)
within 14 days (or a longer period allowed under subsection (2))
after the notice is served (the time allowed ), the Nazi symbol, or a thing
marked with the Nazi symbol, has not been removed in accordance with the
requirements of the notice.
(2) The Commissioner
of Police may extend the time allowed —
(a) on
the Commissioner’s own initiative; or
(b) on
an application made by a relevant person to the Commissioner before the time
allowed elapses.
(3) The Commissioner
of Police may cause the Nazi symbol, or a thing marked with the Nazi symbol,
to be removed.
(4)
Subsection (3) authorises police officers and agents of the Commissioner
of Police, without warrant or further notice, in order to do anything for the
purposes of that subsection —
(a) to
enter the relevant place identified in the Nazi symbol removal notice and
secure it; and
(b) to
use any force and employ any equipment reasonably necessary.
(5) The Commissioner
of Police may recover from a relevant person who is the owner of the relevant
place identified in the Nazi symbol removal notice the costs incurred by the
Commissioner under this section in a court of competent jurisdiction as a debt
due to the State.
80ZB. Correcting mistakes in Nazi symbol removal
notice
(1) A senior police
officer may correct a Nazi symbol removal notice if the notice
contains —
(a) a
clerical mistake; or
(b) a
mistake arising from an accidental slip or omission; or
(c) a
material mistake in the description of any person, thing or matter referred to
in the notice.
(2) The senior police
officer must, as soon as practicable after a Nazi symbol removal notice is
corrected under this section —
(a)
ensure that each person who has been served with the notice is notified of the
correction by service of the corrected notice in the same manner as the notice
was originally served under section 80W; and
(b) make
a record of the particulars of the correction of the notice.
(3) A Nazi symbol
removal notice corrected under this section has the same validity and effect
as if the mistake had not been made.
80ZC. Delegation by Commissioner of Police
(1) The Commissioner
of Police may delegate the Commissioner’s functions under
section 80Y or 80ZA to a senior police officer (the delegated officer ).
(2) The delegation
must be in writing signed by the Commissioner of Police.
(3) When the delegated
officer is performing the Commissioner of Police’s functions under
section 80Y or 80ZA, the officer is taken to do so in accordance
with the terms of the delegation unless the contrary is shown.
(4) A senior police
officer who issues a Nazi symbol removal notice must not perform the
Commissioner of Police’s functions under section 80Y or 80ZA
as a delegated officer in relation to the notice.
(5) Nothing in this
section limits the ability of the Commissioner of Police to perform a function
through an officer or agent.
80ZD. Forfeiture of unlawful material
A court that convicts
a person of an offence against this Chapter may make an order for the
forfeiture to the State, or the destruction or disposal, of any Nazi symbol or
thing marked with a Nazi symbol in respect of which the offence was committed.
80ZE. No compensation under this Chapter
The provisions of this
Chapter do not entitle a person to compensation in respect of anything done in
connection with —
(a) a
Nazi symbol removal notice; or
(b) an
order of a court under this Chapter.
80ZF. Exclusion of rule in s. 24
The operation of the
rule in section 24 is excluded in relation to an offence against this
Chapter.