24 / 11 / 2023

The new offence of performing a Nazi gesture

Victoria has recently introduced legislation making it an offence to perform a Nazi gesture, the most common form being the Nazi salute, in public catching up with New South Wales, Queensland and Tasmania. In most jurisdictions, the offence carries a penalty that involves a fine, imprisonment or both.

The history of Nazism provides a solid foundation for laws prohibiting the display of Nazi symbols or gestures.

Nazism plays on ignorance, fear and prejudice in order to set apart, scapegoat and demonise one or more parts of a society in the eyes of the rest of that society. This is directly contrary to a foundational principle of liberal democracy, namely inviolability of the life and dignity of each human being.

The public display of Nazi symbols and gestures with impunity is therefore an objective threat to our way of life and to the freedom, safety and security of all Australians, especially those who are members of groups and communities who have historically been the targets of Nazi policies.

The physical element

A prosecutor will need to prove the accused person displayed a Nazi gesture or performed a Nazi gesture. It will also be necessary to prove the display or gesture was done in public or other public related areas.

Like most types of offences, proof of the physical elements will be supported by photographs, video and observations made by witnesses.

If there is no independent evidence, such as photographs or videos, a witness will need to describe what they observed. It is unlikely that they will be able to conclusively say what they observed was a Nazi display or gesture. They will only be able say what they observed. It will then be for the court to determine based on the quality that witnesses observations and accuracy whether the display or gesture was a Nazi gesture.

Given these types of offences will commonly be committed in public, there will also be issues about identification. That is, there may sometimes be issues in proving that it was a particular accused person that made the gesture. In busy public gatherings that may be difficult.

The mental element

Depending on the jurisdiction, a prosecutor will be required to prove one or two mental elements. Namely, that the accused displayed or made the gesture intentionally, and knowingly that the display or gesture is a Nazi display or gesture.

The criminal standard of proof is beyond reasonable doubt.

An accused person has a right to silence and no negative inference can be made against an accused for remaining silent, either during the investigation or in court.

It can be difficult to prove what a person was thinking when they did something as we do not have a crystal ball to look into someone’s mind. This is especially challenging when an accused remains silent.

A prosecutor would be required to present evidence of the full circumstances in which the offence occurred for a court to be satisfied of the mental elements.

Exceptions

There are exceptions if the conduct was done for genuine academic, artistic, educational, or scientific purposes.

Tom Taylor, Partner