Senator the Hon Michaelia Cash
Shadow Attorney-General
Shadow Minister for Employment and Workplace Relations
Deputy Leader of the Opposition in the Senate
Senator for Western Australia
TRANSCRIPT
2GB Radio Drive with John Stanley
TOPICS: mandatory minimum sentences for terrorism, hate crimes and displaying prohibited Nazi and terrorist symbols; antisemitism
20 January 2024
E&OE
John Stanley
I’m joined by Shadow Attorney-General Senator Michaelia Cash. From the legal point of view, there are three elements, as I’ve explained from all of this, where you’ve got minimum mandatory sentences, if we start off, say, with 12 months imprisonment for publicly displaying these prohibited Nazi symbols, which I understand that they’re already banned. So how would that work?
Senator Cash
That’s exactly right. So basically, in the wake of the October 7 terrorist attacks against Israel, what Australia has seen is protesters proudly displaying the symbols of terrorist groups and celebrating terrorist leaders. This is completely, totally and utterly unacceptable, so if we are elected, a Dutton government will strengthen the hate symbols laws, and we will make it clear that the display of hate symbols and the glorification of terrorists has no place in Australia, and we will do this by introducing mandatory minimum sentences of 12 months imprisonment. So at the moment, there is no mandatory minimum sentence, and we absolutely have to tell anybody who wants to indulge in this type of behaviour, we will catch you, we will prosecute you, and you will go to jail for a minimum of 12 months.
John Stanley
Just to clarify that, because I think you’ve got the State laws that look after law and order. So, so how? What’s the legal position here, in overriding, I guess, all the state and territory laws. How does that work?
Senator Cash
So very much this is for specific Commonwealth offences. But what we will do, and this is why the failure of Anthony Albanese to convene a National Cabinet is so important. And that is one of the first things that Peter Dutton is going to do when he is elected as Prime Minister. He will ensure that Federally, we take up a national leadership role, and we will immediately convene a National Cabinet to address and tackle antisemitism. What we want to ensure across Australia is that there are uniform and a united approach amongst all jurisdictions to tackling antisemitism. And law enforcement agencies in every jurisdiction are empowered to deter and prevent antisemitic attacks and the destruction of places of worship that we are, and I just hate to see it.
John Stanley
Yes just to the legal position. So, so this is Commonwealth law. So if someone does it in in the eastern suburbs of Sydney, or were they anywhere in Sydney, in the CBD, do they? Would they be prosecuted under Commonwealth law? Or how is that going to work?
Senator Cash
It’s a really good question. So currently, the public display of prohibited Nazi symbols, the prohibited terrorism organization symbols and giving the Nazi salute, we would increase the maximum penalty to five years. We would implement a minimum sentence of 12 months….
John Stanley
But just I’m saying that that would be sorry. I just started with jurisdictional matters…
Senator Cash
Sorry, Criminal Code, and that sections 80.2 H and 80.2 HA of the Criminal Code, and that is why I said it is so important that we also convene a National Cabinet, because we need to bring everybody together across Australia to address and attack antisemitism. But we will amend the Criminal Code.
John Stanley
The Criminal Code, so the New South Wales Police, if they arrest someone, they are then being arrested under what the Commonwealth Criminal Code?
Senator Cash
It would depend on the circumstances, but certainly there could be the prosecution under the Commonwealth Criminal Code.
John Stanley
Okay, all right, so since I’m trying to clarify, because in the end, we’ve got, we have got this Federation, and different states are going to have different approaches. And I know you’re talking about getting everyone together in relation to this.
Senator Cash
Which, again, is why it’s just so important. And I still can’t believe that the Prime Minister, despite what is happening in Australia, despite, you know, the attack on the Adas Israel Synagogue in Melbourne, despite, more recently, the incident we saw in a residential area in Dover Heights in Sydney. I mean, this has shocked Australia. It shocked the world, but the Prime Minister still refuses to take action and actually convene a National Cabinet so that across Australia we have a uniform and united approach amongst all jurisdictions.
John Stanley
Okay, so just in relation to and the 12 months, so you’ve got what we’ve had, we’ve got organizations here – we’ve seen over the last 12 months, there were people who celebrated Hitler’s birthday who….
Senator Cash
It is just utterly shocking.
John Stanley
It’s disgraceful.
Senator Cash
In all honesty, John, I don’t know the Australia that we now live in under Anthony Albanese. You wake up in the morning, and sometimes you think, am I looking at an overseas country? Because the Australia that you and I know and love dearly does not tolerate these types of sickening things.
John Stanley
You know, I’m just trying to look at the practicalities of this. Because if someone, for instance, is giving the Nazi salute or wearing a Nazi uniform of the like, that would be an automatic 12-month jail term without any extenuating circumstances. That’s the argument, as you’d know.
Senator Cash
You’d obviously need to be prosecuted, and if it is upheld under the sections 80.2H or 80.2HA of the Criminal Code, there will now be a mandatory minimum sentence of 12.
John Stanley
But I’m just trying to clarify so if someone, for instance, is wearing it, they say they’re wearing it for a joke or at a party. Would the law specify that they needed to be aware of what they were doing and they were, they were doing it for the purposes of propagating the Nazi views. Or how would the law be structured?
Senator Cash
So there will, there already is the exceptions in the act for certain things, and those exceptions will actually stay. So for example, there are public interest exceptions for journalism. There are also public exemptions for religious, academic, educational, artistic, literary and scientific purposes. And the offenses themselves make clear that the display of the terrorist symbols needs to involve things like advocating race hatred or intimidation. So often journalists will say, hey, hold on. What are we going to be able to do? So we’re not talking about satire or news reports. We’re talking about strong action against criminal conduct that targets people based on their race or religion.
John Stanley
And so what you’re also saying is you get that if the Commonwealth code has the mandatory sentence you would believe that the state laws, the local laws, will also need to mirror that, because people may try and then get the case tried in a different court or a different jurisdiction.
Senator Cash
Well very much here you are likely to be prosecuted under the Commonwealth Criminal Code. But again, I go back to – this is why, regardless Mr. Albanese or the Prime Minister not calling a National Cabinet to address and tackle antisemitism. I think most Australians now don’t know what this Prime Minister stands for, because what we do need is to see the uniform and united approach across all jurisdictions. So, you know, every jurisdiction is empowered to deter and prevent anti systemic attacks and the destruction of places of worship. I mean, I just cannot, as I said, believe that we are currently seeing these types of sickening acts of racial hatred in modern Australia. I mean, it’s just gobsmacking.
John Stanley
Yeah, well, I think everyone feels the same way in relation to that, and I’m just trying to also just in relation to this, so you can, you can change the law and do this, but you would, you’d need to get it. You’d need to get through the parliament, wouldn’t you?
Senator Cash
Look any change to law obviously needs to go through both the House of Representatives and the Senate. But what I would say to the Australian Labor Party is this, if Peter Dutton is elected to government, we have been pretty clear that we will take a strong stand in relation to antisemitism, where the Albanese government has shown weakness and failed to combat extremism. Peter Dutton will show strength and act. Mr. Albanese stands up and he says, Oh, we don’t tolerate antisemitism in Australia. Well, guess what? If we get in, we will hold him to his words, and yes, we will expect Labor on the basis that we will have a mandate to support these changes through the Senate. And quite frankly, if they don’t, well, that speaks volumes of the Australian Labor Party.
John Stanley
All right, the Shadow Minister, I appreciate your time and that explanation. Thank you very much for that.
Senator Cash
Thank you. Great to be with you, John.
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