Nazi salute ban: Daniel Andrews looks at European lessons as Victoria moves to outlaw gesture

<span>Photograph: James Ross/AAP</span>
Photograph: James Ross/AAP

Daniel Andrews says the Victorian government will aim to learn important lessons from Europe in order to shield its proposed Nazi salute ban from legal battles.

On Tuesday the premier vowed to enact legislation to ban the salute after neo-Nazis performed the gesture while attending a rally organised by the British anti-transgender campaigner Kellie-Jay Keen on Saturday.

The Tasmanian government on Tuesday confirmed it would move to follow Victoria in banning the salute while the New South Wales premier, Dominic Perrottet, has signalled he is open to the reform.

“There are some other jurisdictions, some European countries who have successfully been able to do this,” Andrews told reporters on Tuesday.

But Andrews also pointed to “some challenges” faced by some European countries that have banned the Nazi salute, leading them to further refine their legislation.

“We’ll look toward them and make sure that we do this in the most practical and meaningful way and try and do it in a way that it can’t be challenged in the courts,” he said.

“People do have the right to challenge laws – that’s why I think it is very important.”

In Europe, some countries have specifically banned the salute, including Germany and other countries occupied by the Nazi regime during the second world war such as Austria and the Czech Republic.

Other countries, like Switzerland and Sweden, have broader legislation that captures the salute.

But in 2014, Switzerland’s top court ruled that the salute was not illegal racial discrimination if it was performed as a personal statement.

Josh Roose, an extremism expert and associate professor at Deakin University, said Victoria would be able to use its ban of the public display of the Nazi flag – which came into effect in December – as a foundation to expand its vilification laws.

The legislation requires that a person intentionally used the symbol in a public spaces and ought to have known the it is aligned with Nazi ideology.

He said the success of banning the salute would be dependant on the specific wording of legislation and a “willingness to prosecute it”.

“What the major issue here is [is] a willingness to actually police the actual act itself as it’s constructed. And that’s a political question rather than a legislative question. Is the … police force willing to take this to court, prosecute it and fight it?” he asked.

Roose said authorities in England have recently looked to provisions for racially aggravated harm offences to prosecute offenders, pointing to the case last year of a football fan who made the Nazi salute towards supporters of another premier league teams. The fan was ordered to pay more than £300.

But Mario Peucker, an extremism expert at Victoria University, warned that focusing on banning specific gestures – similar to Germany’s model – did not tackle the underlying drivers of far-right extremism.

“Listing things and having an exhaustive list makes little sense as the far-right just move to the next symbol,” he said.

Peucker advocated for a wider legislative approach that cracked down on the glorification of Nazi ideology, rather than individual symbols or gestures.

“Then it’s up to the courts. Some of it will be obvious and the courts will establish that quickly,” he said.

The Liberal opposition has flagged bipartisan support for the ban, meaning the government would not need to negotiate with the crossbench to pass the legislation.

Last year, Victoria became the first Australian jurisdiction to ban the public display of the Nazi swastika. The ban acted on a recommendation from a parliamentary inquiry into the state’s anti-vilification laws which called for the criminalisation of all symbols of Nazi ideology.

Queensland last week vowed to make it illegal to display Nazi swastika tattoos as part of its ban on hate symbols, which it says will be among the strongest in the country.