Section 80.2J Criminal Code Act 1995
Trading in Prohibited Nazi Symbols

80.2J Trading in prohibited Nazi symbols

(1) A person commits an offence if:

(a) the person trades in goods; and

(b) the goods depict or contain a prohibited Nazi symbol; and

(c) the person knows that, or is reckless as to whether, the prohibited Nazi symbol is associated with Nazi ideology; and

(d) subsection (3) applies; and

(e) subsections (4) and (5) do not apply.

Note: For defences, see subsections (6) to (8).

Penalty: Imprisonment for 12 months.

(2) Absolute liability applies to paragraphs (1)(d) and (e).

Jurisdictional requirements

(3) For the purposes of paragraph (1)(d), this subsection applies if:

(a) the trading occurs to any extent outside Australia; or

(b) the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement; or

(c) the trading occurs within a Territory or involves transportation to or from a Territory; or

(d) the trading is engaged in by, or on behalf of, a constitutional corporation; or

(e) some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or

(f) the trading:

(i) occurs to any extent at a Commonwealth place; or

(ii) involves transportation to or from a Commonwealth place; or

(g) the person is an alien; or

(h) the trading involves the person:

(i) selling the goods to an alien; or

(ii) preparing the goods for supply with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or

(iii) transporting the goods with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or

(iv) guarding or concealing the goods with the intention of selling them to an alien or with the intention of assisting another person to sell them to an alien or with the intention of assisting an alien to sell them; or

(v) possessing the goods with the intention of selling them to an alien.

Other matters

(4) For the purposes of paragraph (1)(e), this subsection applies if a reasonable person would consider that:

(a) the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose; and

(b) the person’s trading in the goods is not contrary to the public interest.

(5) For the purposes of paragraph (1)(e), this subsection applies if:

(a) the goods that are traded contain one or more news reports or current affairs reports; and

(b) each prohibited Nazi symbol that the goods depict or contain appears in such a report and only appears in such a report; and

(c) in relation to each such report in which a prohibited Nazi symbol appears–a reasonable person would consider that:

(i) the report was made by a person working in a professional journalistic capacity; and

(ii) disseminating the report is in the public interest.

Defences

(6) Subsection (1) does not apply to a person’s trading in goods if:

(a) the goods that are traded contain commentary on public affairs; and

(b) each prohibited Nazi symbol that the goods depict or contain appears in the commentary and only appears in the commentary; and

(c) in relation to commentary in which a prohibited Nazi symbol appears–making the commentary is in the public interest.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(7) Subsection (1) does not apply to a person’s trading in goods if the trading is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or

(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, or a foreign country; or

(c) the administration of justice (whether within or outside Australia).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(8) Subsection (1) does not apply to a person’s trading in goods if:

(a) both:

(i) the trading is in connection with the performance by a public official of the official’s duties or functions; and

(ii) the trading is reasonable in the circumstances for the purpose of the public official performing that duty or function; or

(b) both:

(i) the trading is in connection with an individual assisting a public official in relation to the performance of the public official’s duties or functions; and

(ii) the trading is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official’s duties or functions.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

Interpretation

(9) The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.

(10) In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

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