Instead of focusing on a specific symbol, we need a federal ban on the promotion of Nazism and its ideology, including the use of flags, insignia, uniforms, slogans and gestures.
Saturday’s horrific display of black-clad neo-Nazis throwing Hitler salutes on the steps of the Victorian Parliament has left the Jewish community in shock. We knew they were out there, but the sight of Nazism being promoted in the centre of Melbourne under police protection took us to a new low.
Previous displays of Nazi symbolism, often away from the public eye, have been amplified through the media rather than quietly erased. That has emboldened the neo-Nazis and helped them recruit. Many of us have spoken out in frustration at this. Saturday, however, was different. It was highly public, occurred openly metres away from police, and was a clear message that the law as it currently stands, even with the much-lauded ban on the Nazi swastika, cannot stop local neo-Nazis.
Previous legislation was a symbolic win, not an effective one. Under media pressure created by those amplifying the presence of Nazi symbols, regardless of whether it was actual neo-Nazis or scrawling by delinquent children, Victoria rushed to be the first state to ban the Nazi swastika. We didn’t look to the international experience, and while there was a consultation, key advice, including from the Online Hate Prevention Institute, was ignored. We need to do better this time.
Instead of focusing on specific symbols, we need a general ban on the glorification of Nazism and the promotion of Nazi and neo-Nazi ideology, including through the use of flags, insignia, uniforms, slogans, symbols, and gestures. This focus on the purpose would prevent neo-Nazis using such symbols. It would not impact the use of such symbols by others in educational material, research or even in public protests.
Memes comparing Premier Daniel Andrews to a Nazi, or visually morphing him into Hitler, began circulating during Covid by the anti-lockdown movement. We saw one circulating as recently as this week. The anti-lockdown movement also co-opted the yellow star that Jews were forced to wear by Hitler’s Nazis. As I warned at the time, this rhetoric is more than merely offensive. Nazis infiltrated the anti-lockdown movement and supported the use of Nazi comparisons. It normalised their symbols.
We have a political consensus to tackle the neo-Nazis. let’s use it to tackle them directly.
After Saturday’s incident, the Online Hate Prevention Institute saw comments in social media suggesting that the neo-Nazis were merely protesting against the government and that this should be acceptable. Others suggest that perhaps they were merely waving. The video and media reports make it clear this was not the case.
This space for neo-Nazism is a result of the normalisation that occurred during lockdown. It was also fuelled by political polarisation tactics used in the lead-up to the last Victorian election. We have a political consensus to tackle the neo-Nazis; let’s use it to tackle them directly, and to set a new tone.
Legislation in Victoria and New South Wales, and a bill before the South Australian parliament all focus on the use of symbols (though in reality just one symbol, the Nazi swastika) in any context that is not specifically excepted. Instead, we need legislation that defines Nazi symbols in terms of the symbols of the Nazi party active in Germany from 1920 to 1945, and the symbols of neo-Nazi groups that seek to revive that ideology.
Symbols itself could be defined as a “symbol, sign, gesture, emblem, flag, uniform, or other identifiable representation”. While some examples could be given, legislation should leave it open to the courts to determine if other symbols, including newly emerging neo-Nazi symbols, fall within the definition.
The legislation should also limit itself to the display of such Nazi symbols for the purpose of glorifying Nazism or promoting or expressing support for a Nazi or neo-Nazi group or their ideology. If the legislation was limited to public displays, Nazis could still use these symbols in closed private gatherings taking place on private property, but recruitment would be reduced.
Andrews has said he will look to legislation overseas in drafting the legislation, which is welcome. Switzerland, for example, found its ban on Nazi salutes only partially effective, with the courts finding the Nazi salute was illegal when used for propaganda purposes to spread Nazi ideology, but not when used to express personal convictions among like-minded people. There has been a growing push in Switzerland, with support from both the Left and Right, to eliminate this distinction.
Federal Opposition leader Peter Dutton tried to suspend normal parliamentary business this week to allow consideration of a Private Members Bill by shadow attorney-general Julian Leeser to ban the Nazi salute across Australia. While narrowly losing the procedural vote, the Opposition has pledged its support for federal legislation.
A federal ban, created after consultation with National Cabinet that includes the state premiers and first ministers, would be the best way forward.
Dr Andre Oboler is CEO of the Online Hate Prevention Institute and an expert member of the Australian Government’s delegation to the International Holocaust Remembrance Alliance, and Honorary Associate in the La Trobe Law School.
This op-ed was originally published as: Andre Oboler, “Swastika ban is not enough: anything that glorifies Nazism must be outlawed“, Plus61J, 24 March 2023