An Australian Constitutional Analysis
These laws are not unconstitutional in Australia because Australia's constitution does not expressly protect the freedom of speech or political expression, and because its implied protections are weak and are not individual rights.
The Australian Constitution is a document that sets forth the relative powers of the federal and state governments in Australia, and the organizational structure of the federal parliament, the cabinet, and the judiciary.
But, unlike many national constitutions, the Australian Constitution is not an instrument protecting individual human and civil rights, such as the freedom of expression, except to provide a road map over whether certain kinds of legislation are a federal or state responsibility.
Any protection of individual rights in Australia has a source different from the Australian Constitution. In Australia, most protections for individual rights arise under the common law and legislation. According to the Australian Attorney-General:
The Australian Government is committed to protecting and promoting
traditional rights and freedoms, including freedom of speech, opinion,
religion, association and movement. These rights and freedoms are
protected by the common law principle that legislation should not
infringe fundamental rights and freedoms unless the legislation
expresses a clear intention to do so and the infringement is
reasonable.
The Australian common law provides particularly strong protections for
freedom of speech related to public affairs and political matters. The
government believes these rights and freedoms underpin Australia’s
democracy and should not be taken for granted, and has taken some key
steps to ensure that these rights and freedoms are protected and
promoted.
But, basically, Australia, like the U.K., has a tradition of parliamentary sovereignty, in which a clearly expressed intent of legislation is not subject to judicial review on a substantive basis. As noted in the source cited in the question:
It's not uncommon to hear people in Australia talk about their 'right
to freedom of speech'. However, many people are surprised to learn
that the Australian Constitution contains no such right.
It goes on to explain that:
As its name suggests, the implied freedom is not expressly contained
in the Constitution.It is an implication drawn from the constitutional
'text and structure'. It originates from the sections of the
Constitution that require that the Commonwealth Parliament be
'directly chosen' by the people, and that the people will change the
Constitution by vote.
The High Court regularly emphasises that the implied freedom is not a
personal right, but operates as a restriction on legislative and
executive power.This means that the Commonwealth and State governments
cannot make laws or take action that would breach the implied freedom.
The implied freedom is not absolute – it exists only to the extent
necessary to protect the system of government reflected in the
constitutional text. In practical terms, then, this means that a law
can interfere with communication about government or politics without
breaching the implied freedom, if the law does so for a legitimate
aim, and is generally proportionate to that aim. . . .
Under the current case law, three questions must be answered when
deciding whether a law infringes the implied freedom:
Does the law effectively burden the freedom in its terms, operation or
its practical effect (the burden question)?
If so, are the purpose of the law and the means adopted to achieve
that purpose legitimate, in the sense that they are compatible with
the maintenance of the constitutionally prescribed system of
representative government (the legitimate end question)?
If the answer to the second question is 'yes', is the law reasonably
appropriate and adapted to advance that legitimate object (the
reasonably appropriate and adapted question)? This question involves a
proportionality test to determine whether the law is justified as
suitable, necessary and adequate in its balance.
If the first question is answered 'yes' and the second or third
question is answered 'no', the law will be invalid.
Essentially, this weak protection of political freedom under the implied freedom of political expression is legitimate if the state governments in question determine that fascism is inconsistent with a Western style political democracy and must be suppressed, and if the laws employed to suppress fascism are not too draconian. This is done in the context of a strong tradition of deference to political decision-making by state and federal parliaments.
Put another way, so long as the law doesn't make Australia basically a less democratic political system that is depriving people of a meaningful ability to elect members of parliament at the state and federal level, it probably doesn't go too far given the justifications for the implied right. The scales are balanced at the institutional level in terms of whether democracy in Australia is impaired, rather than as an individual right of particular Nazis to express their views.
A Human Rights Treaty Analysis
Also, Australia, like the U.K., and many European countries, entrusts the protection of human rights primarily to international treaties which are superior to domestic legislation and are entrenched by the limitations in the treaties themselves upon leaving the treaties, as noted here:
Australia is a party to the seven core international human rights
treaties:
- the International Covenant on Civil and Political Rights (ICCPR)
- the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- the Convention on the Rights of the Child (CRC)
- the Convention on the Rights of Persons with Disabilities (CRPD).
It is against these treaties that human rights scrutiny processes
under the Human Rights (Parliamentary Scrutiny) Act 2011 are
undertaken. Australia also has periodic treaty body reporting
obligations under these treaties.
Australia is an active participant in the Universal Periodic Review
process which provides an in-depth analysis of Australia’s compliance
with our international human rights obligations.
Australia is also a party to:
- the Optional Protocol to the International Covenant on Civil and Political Rights establishing an individual communication mechanism
- the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death
Penalty
- the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
- the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography
- the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women establishing an
individual communication mechanism
- the Optional Protocol to the Convention on the Rights of Persons with Disabilities establishing an individual communication
mechanism - the Optional Protocol to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
From a U.S.-centric view, the way that Australia protects human rights is similar to how the U.S. regulates itself with regard to preventing war crimes.
In the Australian context, the core issue with respect to the legislation discussed in the question is whether it abridges an obligation of Australia under the International Covenant on Civil and Political Rights (ICCPR). Primarily, Articles 19 and 20 of that treaty are implicated by this legislation. These articles state:
Article 19
Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of his
choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
Article 20
Any propaganda for war shall be prohibited by law.
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall
be prohibited by law.
In the treaty analysis, the argument would presumably be that section 3 of Article 19 is adequate to permit the law, because Nazism inherently disrespects the rights of others and present a threat to national security, public order, and public morals, particularly considered in light of Article 20, Section 2, as Nazi symbols can be considered incitements to discrimination, hostility, and violence.
I'm not personally familiar with precisely how these rights are implemented under Australian law, nor am I personally familiar with the case law interpreting these Articles of the ICCPR.
Application To Hypotheticals
Is it possible that these laws are unconstitutional, and simply
haven't been struck down by the courts yet?
Yes. Indeed, I have no idea who would have standing to raise the issue, or by what procedural route this would be done.
I could imagine, for example, that an individual prosecuted for using such symbols might not have standing to context a prosecution under the laws on these grounds, while the leader of a proposed political party with a petition for recognition pending might be able to make these legal arguments.
However, shouldn't these laws violate the implied right to political
speech of the Australian constitution?
As discussed above, under Australia's political freedom jurisprudence, both as an implied constitutional right and under the ICCPR, it isn't an open and shut case.
Notably, similar prohibitions in Germany have not held to violate the express protections for freedom of political speech of Germany's Basic Law.
If someone wanted to collect the signatures needed to found the
Australian Nazi Party and run for parliament, shouldn't they have the
right to do so, and to display the symbols of the party they intend to
found as part of that effort? Shouldn't their supporters be able to
display the symbols of their support for said party?
Australian courts can address that question when it arises. Presently, there isn't a ground swell of support for such a party. And, there is no legal prohibition on establishing a political party with particular political views that the neo-Nazi party might ascribe to itself, nor is there as prohibition on such a party establishing any other new logos and symbols for itself that it devises.
Essentially, what a holding that the particular symbols cannot be used is saying is that these symbols are now so deeply and indelibly identified with genocide, and racial discrimination, religious discrimination, and political violence that the government may rightly declare that adopting those widely understood meanings of those symbols is outside the "Overton Window" of acceptable political thought within Australian democracy.
In the U.S. free speech jurisprudence, the analogous case would be U.S. laws that prohibit cross-burning in front of unwilling people's homes and businesses because such symbols have developed in the context of U.S. history and culture the character of a "true threat".
Australian states are basically saying that the symbols of the Nazi Germany regime amount to, in the current Australian context, a true threat to use violence against minorities in Australian society.
If someone wants to espouse the non-genocidal, non-discriminatory policies of the Nazi Party in Germany, without advocating political violence, they are welcome to try to do so under a different name with symbols of their own that distance themselves from that violent, threatening, and anti-democratic Nazi German legacy.
U.S. law protects people's right to use Nazi symbols. But, the U.S. has an express individual protection of freedom of speech without the same qualifications as Australia's implied constitutional right and treaty rights. And, one could imagine a rational U.S. Supreme Court resolving that narrow question differently without unraveling the whole of U.S. freedom of speech jurisprudence, just as it did in the case of cross-burning laws which are an uncontroversial part of modern U.S. constitutional free speech law.
As another example, suppose that a Jewish Temple held the copyright and also trademark rights to those symbols in the context of political campaigns. A political party couldn't use those symbols then any more than they could use the McDonald's arches as its symbols without permission. But that isn't a major restriction on political freedom. The restriction on the use of the Nazi symbols isn't itself a restriction on particular political policies or ideas.
