In my previous post I talked about when Victoria was experiencing a series of king hits and the legislated response by the government was adding an alternative pathway for prosecutors to charge people under dangerous act manslaughter; more recently however, the Victorian government has banned both Nazi symbology and associated gestures.
The law is a product of and reflective of that moment’s society and people’s concerns. In this post, I want to explore the series of legislation, both passed and failed that banned a series of behaviours related to Nazi gestures, symbols and phrases. With a specific focus on whether existing legislation was sufficient to criminalise and prevent these actions.
In this post I talk about how the Victorian government has successfully implemented a series of legislation aimed at targeting Nazi and Neo-Nazi gestures and symbology. While interestingly, when the Commonwealth government attempted a similar ban, it was unsuccessful. Like the previous post, where the new manslaughter charge provided a legislative pathway to make already criminalised behaviour easier to prosecute. These new pieces of legislation arguably fulfill a similar purpose, in that they provide an alternative pathway, but I believe that one of the legislative pieces was made to satisfy public outrage and to show that action was being taken on the public’s legitimate concern.
As I mentioned in the last post, legislation is both reflective of the issues of the public of the time and has many intended purposes that its creation hopes to solve from providing clarity to a criminal act; implementing safeguards; or in this case, responding to societal concerns, and that the various Nazi related legislation is no different.
Nazi Gesture Ban
Around three years ago the Victorian government passed legislation that made it a criminal offence to perform the Nazi salute or display any kind of Nazi memorabilia in public or where there is the expectation that it may be observed publicly. Just like the previous post I believe these Nazi offences were most likely contained in another offence. However, to properly ascertain this claim, it is necessary to examine existing laws and identify if a gap exists.
Before the Victorian government passed specific laws banning the display of nazi gestures and symbology, using obscene, indecent, threatening language and behaviour etc. in public was already criminalised under the Summary Offences Act.[1] This criminalised a wide array of offences for anyone in or near a public place, within view or hearing of anyone being there or passing by if they sung an obscene song or ballad; if they wrote, drew, displayed an indecent or obscene word, figure or representation; used profane, indecent, obscene language, threatening abusive or insulting words; or behaved in a riotous indecent offensive or insulting manner.[2]
This should have been sufficient in criminalising people performing a nazi salute, as it would have been considered riotous, indecent offensive behaviour; especially as it would have offended the public and disrupted the public peace. As these kinds of actions would have been used as a method to incite violence or draw unease within the public, specifically any minority groups present nearby. Furthermore, displaying the nazi memorabilia and symbol would likely have been caught under displaying an indecent or obscene representation and figure, as the symbol has long been regarded as indecent due to the history surrounding it and it is unlikely to be used in an appropriate manner, such as education.
What I believe to be the key cause for the legislation was an anti-transgender protest occurring outside on the steps of Victoria’s Parliament, with the anti-transgender protestors performing the Nazi salute, likely in response to another protest group.[3] These men performing the salute, should have been charged with performing obscene, indecent, threatening language and behaviour etc. in public as I highlight above were well within the scope of the charge.
However, ABC News highlights what I believe to be a reason for new legislation being enacted, and why those performing the salute were not punished. During the obscene display of Nazi salutes, the police were seen “holding the counter-protesters [sic] back” while allowing those performing the salute to walk freely.[4]
This display of police would have rightly angered the public and caused them to demand both better police action and a legislative response from Parliament to criminalise that kind of behaviour. This was evident by comments from then Opposition spokesman David Southwick who said his party would ensure that the police had the power and resources to prevent it reoccurring, and then police association Secretary Wayne Gatt who excused the police inaction saying the officers were required to protect the saluting protesters from the counter-protesters.[5]
Then federal Labor MP Josh Burns claimed that the people performing the salute were allowed to “walk up and down Spring Street doing the Sieg Heil and saluting neo-Nazi ideology”.[6] I believe this to be a misconception on what could actually occur but also a way to drum up political support, as the actions should have been caught under the Summary Offences Act and the men penalised; but as the public would have seen, the actions were allowed as the police did not arrest them but rather tangentially optically supported them by holding the protesters back and not stopping them from performing the salutes. Thus, it would have generated public concern and generated anger, with new laws needing to be passed that made it more obvious that the behaviour was not allowed, and to provide further clarification on what the police could do in a similar situation.
This is explained in the second reading speech, as then MP David Davis claims that the existing laws were unable to “deal with Nazi gestures such as the Nazi salute”.[7] Furthermore, it appears just days before the Bill was discussed in Parliament, more men performed the Nazi salute and other similar displays at Flinders Street Station and on trains.[8] Interestingly, then MP Evan Mulholland confirms my point, that the police already had the power to handle them and that this law was simply making it clearer, as he said that “Victoria Police do not appear to be using their existing powers”.[9] Again, I want to make it clear that I am not saying this law serves no valid purpose, rather I am saying the opposite, that it provides clarification on existing police powers and what they can do.
This law, makes it more clearer to police that people performing the Nazi salute, singing any Nazi supporting songs and similar behaviours is criminal and should not be allowed. The actions were already prohibited through the Summary Offences Act, but it may not have been entirely clear, by specifically introducing a new law that outright criminalises it, it makes it a lot clearer to both the police and the public that those kinds of behaviours are criminalised. Akin to what the king hit manslaughter did, it made it easier to prosecute that kind of behaviour.
It seems that both the Nazi gesture and manslaughter offence were created for both similar and different reasons. The Manslaughter offence was created to show that Parliament was taking everyone’s concerns seriously and that they were reacting to a social concern. Meanwhile, the Nazi gesture offence was created because there appeared to be confusion about what powers police had and whether performing those behaviours were obscene or against public standards, similarly they were also in response to growing public concerns about growing antisemitism and the rise of Nazi displays.
Nazi Symbol Ban
Interestingly, Victoria in 2022 passed legislation banning the display of the Nazi Swastika, which was the first ban related to Nazi imagery and gestures.[10] I consider it relevant to exploring the ban on Nazi gestures, as it occurred before the demonstrations and may offer further insights into why the legislative bans occurred, beyond the aforementioned protests occurring.
The reason for the ban of the imagery only, was surprisingly hard to discern beyond a mere general sense of duty and concerns over rising antisemitism seen in the general community. From what I have been able to discern, the likely cause was a couple in 2020 who had a swastika flag above their home, which the police had no power to prevent.[11] Furthermore, COVID-19 and its isolative impacts would have also played a role in antisemitism developing and warranting government intervention in banning the symbol.[12]
Furthermore, this ban also highlights further instances where police were supposedly powerless to act. These instances include a Nazi flag flying on a mobile phone tower in Kyabram; a gathering of people performing the Nazi salute and chanting “sieg heil”; and a man wearing a swastika symbol on his sleeve walking around.[13]
While I believe the chants and salutes were already criminalised through the aforementioned section, it seemed that displaying the symbol either through clothing or a flag was not inherently criminalised, and was an area needing clarification. With this ban serving a public need, as the police need to be able to act on and remove the symbol in public. Unlike the previous ban which seemed to clarify existing police powers, this ban creates a criminal action that can be prosecuted and handled by the police.
Federal Symbol Ban
Interestingly, a couple months after the Victorian Nazi symbol ban had passed their own ban, the Commonwealth attempted to pass their own version, which failed to get the required support to become law. The Australian Federal government tried to pass a law titled Criminal Code Amendment (Prohibition of Nazi Symbols)[14] which is the federal version of the Victorian Act.
Through the explanatory memorandum of this failed act, we see that it was also in response to the anti-transgender protest occurring outside the Victorian parliament.[15] This demonstrates an interesting scenario, where both the federal and state governments were creating similar legislation in response to the same kind of issue. If this legislation was to pass, it would lead to an interesting scenario.
As s 109 of the Constitution has overlap between state and federal law, the federal law overwrites state law until the inconsistency has ended.[16] This is not typically relevant for criminal law as it is typically a state power, unless the state gives the power to the Commonwealth.
Alternatively, if there is no overlap between the two areas of law, both pieces of legislation may exist in the same space. An example of this is state and federal robbery. State robbery is about force when committing theft, while federal robbery is about committing forceful theft against a commonwealth entity. This means it is possible to be in breach of both state and federal criminal law.
If the Commonwealth successfully passed their own ban on the federal symbol, it is hard to say whether the Victorian legislation would have stayed but it is likely that the Federal one would have won out.
Federal Nazi Symbol and Object Ban
The federal ban on just the symbol was not successful, but I believe two reasons it failed was because Victoria successfully passed their own copy of the law, and that the federal government wanted to possibly pass a more comprehensive piece of law. As always, the only way to know is to look at parliamentary materials and surrounding news pieces that offer insights into what the community was wanting around that time.
As briefly mentioned before, both the state and federal governments can create laws on the same topic, this is dependent on what is known as residual and express powers from the Constitution.
An express power is directly mentioned under s 51, and includes things such as marriage, divorce, taxes, external affairs and are areas where the federal have exclusive law-making power.[17]
Likewise, residual powers are powers that are not mentioned and are given to the states to have exclusive law-making power, as they are the residuals, akin to leftover chocolate syrup at the bottom of a milkshake.
Terrorism is not an express power however, but it is an area where the federal has law-making power. States and territories can give the federal jurisdiction over an area of law by passing an Act saying so, and the federal does similar accepting it, an example of this is the Criminal Code Amendment (Terrorism) Act[18] which allows the federal parliament to pass terrorism legislation. [19]
The title of the Bill is interesting as it shows the power the federal government was relying on to pass the legislation and offer insights into what the community at large was thinking.
The Bill was the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures).[20] This means the federal government was relying on the terrorism power given by the states to pass the law and raised questions about whether it was the best power to pass this legislation. As some news commentators said around the time it was proposed, terrorism and public promotion of hatred are two different kinds of criminality, and both have their own elements to be proven.[21] Furthermore, relying on that power has further distinct limitations, as it has the federal government constrained to anti-terrorism powers including being limited to certain symbols.[22] If instead, the federal government relied on the external affairs power, they would be able to include more symbols and have more flexibility.
Examining the explanatory memorandum (EM), it becomes evident why they are relying on anti-terrorism laws, as they are using it to ‘strengthen Australia’s counter-terrorism
legislative framework’, as it focuses on Nazi symbols but also Islamic State symbols.[23] The EM states that these new offences would show no tolerance for extremist ideologies that the symbols communicate, and support law enforcements efforts to address both ‘radicalisation and vilification’.[24]
What makes this piece of legislation interesting, is that while it also bans some Nazi symbols and gestures it goes further. It also makes it an offence to trade in goods bearing prohibited symbols,[25] which is something the Victorian acts fail to do. This would also mean that the federal legislation has gone further than the Victorian, and that no inconsistencies can arise because of it. However, oddly enough in the same vein the federal ban lacks something the Victorian one does, as it does not explicitly ban the Nazi salute.[26]
Anti-Vilification and Hate Speech Laws
At the start of this post, I briefly talked about how the aforementioned actions should have been caught under summary offences in Victoria; these actions should have also been caught under anti-vilification and hate crime laws due to the nature of the actions committed. Now I want to briefly examine the laws that would have existed then and the laws now; to ascertain whether they would have or will be sufficient to address the criminalised behaviours.
Existing Hate Crime Legislation
Racial and Religious Tolerance Act 2001
During the protests in Victoria, there was existing legislation that targeted vilification behaviours, such as hate speech or threats to a group based on their characteristics. The Racial and Religious Tolerance Act was in effect, and it should have caught the behaviours of the rioters.[27]The rioters performing the salute would likely have breached s 24, as they were engaging in conduct designed to incite hatred and threaten harm to a group of persons.[28]
I believe the actions were not caught as that offence was based on serious racial vilification and the targets of the behaviour were not targeted based on race, but rather more likely political affiliation, ultimately meaning that the behaviours would not be caught under these offences.
Similarly, there would be similar offences for serious religious vilification, and once again these would not be caught because it was not religion but rather political affiliation.
Finally, getting charges under this legislative framework is incredibly difficult with only two successful instances being performed.[29]
Equal Opportunity Act 2010
Victoria also had the Equal Opportunity Act and that also offered further protections around this time.[30] However, this legislative framework is more aimed at civil protections and preventing a broad range of discrimination on the basis of protected characteristics; meaning that it would not be likely to catch or prevent these behaviours. A further issue is that I believe the actions of the counter-protestors would also suffer a similar issue, as they were not based on race or religion, but rather political affiliation.
Finally, this piece of legislation does not create criminal offences that the police could use to handle the protestors with; as it instead, creates a civil framework and enforcement body that enforces anti-discrimination law and policies.
This means that for the most part Victorian police were unable to rely on hate crime legislation and anti-vilification laws to handle the actions and conduct of the counter-protestors, further supporting the need for both the Victorian and Federal legislation to ensure that further instances like that cannot happen again.
New Hate Crimes Legislation
Criminal Code Amendment (Hate Crimes) Bill 2024
In 2024 the Federal Parliament passed new legislation relating to Hate Crimes and one Bill was arguably in response to the rising use of Nazi symbols and ideology. The federal Bill passed in early 2025 a Bill amending the Criminal Code, which covers federal offences, which was related to the previous Act banning Nazi symbols and objects.[31] Under this amended Act Parliament intended to further strengthen the anti-nazi law and ‘support law enforcement’s ability to disrupt, investigate, and protect against the activities of those who foster hatred and incite violence.’[32] Furthermore, this new act would also make it easier to prosecute people for urging violence against groups, add further prohibited hate symbols and add new criminal offences for ‘threatening force or violence against targeted groups and members of targeted groups’.[33] These new offences would be sufficient to encapsulate the actions of the Neo-Nazis at the start of the blog, and was made in response to the police’s apparent lack of power to prevent them from performing the behaviour.
Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025
In 2025 the Victorian government passed a new law that repealed the Racial and Religious Tolerance Act as it was too hard to successfully convict people in breach of those offences.[34] This new Act provides a wider range of protected characteristics that previous Acts failed to protect.[35]
Under s 4 of the Act, it inserts new criminal offences into the Crimes Act 1958 where it is illegal to do or say things that incite hatred to another group, or if they threaten another group based on their protected attribute.[36]
As it now includes a wider range of characteristics including sexual characteristics and related personal characteristics it makes it more likely that the counter-protestors would be caught under this law. Furthermore, the Act also catches actions, gestures and wearing/displaying clothing and badges;[37] making it all the more likely that it should prevent another series of Nazi displays as was seen years ago.
Conclusion
The counter-protest display by the men performing the Nazi salutes and similar observed behaviours seen across Victoria over the last few years highlighted issues in the way our vilification and hate speech laws operated. The police were unsure of what their powers were and as a result they were seen to optically support the Nazi protestors, by holding back the original protestors.
What should have been caught under existing summary offences instead highlighted issues with existing hate speech laws; that led to new legislation being passed aimed at preventing Nazi symbols, ideologies and behaviours from being accepted. These new laws serve an important purpose as they make clearer police power and provide clarity regarding what is acceptable behaviour in public, similar to the previously enacted manslaughter legislation they are not made solely to appease the public but also serve a valuable purpose.
Having briefly examined the then hate crime and vilification laws, they were inadequate to properly handle the Nazi protestors and highlight shortcomings in the law. The newly enacted laws should provide an alternative pathway to prevent a similar occurrence reoccurring and that police have the powers needed to handle future incidents.
[1] 1966 (Vic) s 17 (‘Summary’).
[2] Ibid.
[3] ABC News, ‘Victorian government may consider amending laws after Nazi salutes at Parliament rallies’ (online, 19 Mar 2023) < https://www.abc.net.au/news/2023-03-19/victoria-nazi-salute-peformed-parliament-government-response/102116672>.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Victoria, Parliamentary Debates, Legislative Council, 10 May 2022, 45 (David Davis).
[8] Ibid, 50 (Michael Galea).
[9] Ibid, 55 (Evan Mulholland).
[10] ABC News, ‘Victoria parliament passes bill banning Nazi symbol, with offenders facing up to a year in jail’ (online, 22 Jun 2022) < https://www.abc.net.au/news/2022-06-22/victoria-passes-bill-banning-nazi-swastika/101172344>.
[11] BBC News, ‘Swastika: Victoria bans display of Nazi symbol in Australian first’ (online, 22 Jun 2022) <https://www.bbc.com/news/world-australia-61890577>.
[12] Sumeyya Ilanbey, ‘Nazi swastika ban takes shape as Victoria introduces landmark legislation’, The Age (online, 11 May 2022).
[13] Karl Quinn, ‘Films, religion, KISS posters … banning Nazi hate symbols is no simple task’, The Age (online, 14 Mar 2021).
[14] Bill 2023 (Cth).
[15] Explanatory Memorandum, Criminal Code Amendment (Prohibition of Nazi Symbols) Bill 2023 (Cth) 2.
[16] Australian Constitution (‘Constitution’).
[17] Constitution (n 16).
[18] (2003) (Cth).
[19] Parliamentary Education Office, ‘The states can refer powers to the federal Parliament but does the federal Parliament have to accept?’ (Web Page).
<https://peo.gov.au/understand-our-parliament/your-questions-on-notice/questions/the-states-can-refer-powers-to-the-federal-parliament-but-does-the-federal-parliament-have-to-accept>.
[20] Bill 2023 (Cth).
[21] Peter Wertheim, ‘The federal government’s ban on Nazi symbols is a step in the right direction, but it needs to go further’ (Web Page, 13 Jun 2023)
<https://www.abc.net.au/religion/ban-on-nazi-symbols-step-in-right-direction-but-not-enough/102474570>.
[22] Ibid.
[23] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) 3.
[24] Ibid 4.
[25] Ibid 22.
[26] Paul Karp, ‘Australia to ban Nazi symbols but not the salute, Mark Dreyfus says’ (Web Page, 7 Jun 2023).
<https://www.theguardian.com/australia-news/2023/jun/07/australia-to-ban-nazi-symbols-but-not-the-salute-says-mark-dreyfus>.
[27] 2001 (Vic).
[28] Ibid.
[29] Gail Mason, ‘Understanding the Victorian Racial and Religious Tolerance Act’ (Web Page)
<https://tacklinghate.org/trainingmodule/understanding-the-victorian-racial-and-religious-tolerance-act/>.
[30] 2010 (Vic).
[31] Jonathan Mills (Cth), Bills Digest (Digest No. 21, 2024–25, 4 October 2024) 3.
[32] Explanatory Memorandum, Criminal Code Amendment (Hate Crimes) Bill 2024 (Cth) 2.
[33] Ibid.
[34] Victorian Equal Opportunity and Human Rights Commission, ‘Fact sheet – explaining Victoria’s new anti-hate laws’ (Web Page)
<https://www.humanrights.vic.gov.au/resources/fact-sheet-explaining-victorias-new-anti-hate-laws/>.
[35] State Government of Victoria, ‘New protections against vilification’ (Web Page)
<https://www.vic.gov.au/new-protections-against-vilification> (‘State Government’).
[36] Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 (Vic) s 4 (‘Justice Legislation’); State Government (n 35).
[37] Justice Legislation (n 36) s 9.
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