Criminalizing Nazi Symbols and Gestures: The Australian Experience

Kerstin Braun is an associate professor at the School of Law and Justice, University of Southern Queensland.

Keiran Hardy is a senior lecturer at the Griffith Criminology Institute, Griffith University.

Far-right extremist groups around the world frequently use symbols and gestures associated with the Nazi regime in an attempt to spread hatred and intimidate communities. To curb these activities, some countries, including, for example, Austria and Germany, have long criminalized public displays associated with Nazism. In Germany, symbols including swastikas and SS sig runes are considered symbols of “unconstitutional organizations.” Publicly displaying or selling goods that depict them has been an offence under German criminal law since the 1960s and is punishable by a fine or up to three years in prison. Performing the Nazi salute in public, or making statements such as “Sieg Heil!,” is also illegal.

In Australia, no laws prohibited the public display of Nazi symbols until 2022. Since then, five Australian states, the Australian Capital Territory, and more recently the federal government have criminalized public use of Nazi symbols and gestures. The jurisdictions are united in their stance against public displays of Nazi ideology, though there are key differences across the laws that may undermine their symbolic benefit. Whether the laws will effectively curb the activities of neo-Nazi groups in practice also remains to be seen.

Australian Laws Banning Nazi Symbols and Gestures

Like many countries around the world, Australia is experiencing a surge in threats of right-wing extremism. It has become increasingly common for far-right groups to use Nazi symbols and perform the Nazi salute at public rallies and protests. To address these threats, several Australian states and, more recently, the federal government enacted criminal laws penalizing specific symbols and/or gestures associated with the Nazi regime and its ideology. All the laws include exemptions from criminal liability where symbols are displayed for legitimate religious, academic, educational, artistic, literary, or scientific purposes.

Victoria enacted the first state law banning the public display of Nazi symbols in 2022, followed by New South Wales (NSW), Tasmania, the Australian Capital Territory, and Queensland. Tasmania was the first state to ban the Nazi salute, followed by Victoria and later the federal government. Whether the NSW law criminalizes salutes is less clear, as the law only applies to Nazi symbols and does not refer explicitly to salutes or gestures. Three men who allegedly performed the salute at a football grand final, and others who allegedly performed the Nazi salute in front of the Jewish Museum in Sydney, have been charged with the offence, but the legislation may soon be amended by the NSW Parliament if those prosecutions do not succeed.

Queensland has taken a different approach. Its laws do not mention Nazi symbols or salutes. Instead, the Queensland government has used the language of hate crime and serious vilification. The scope of the offences will be determined by the executive government, as it is up to the Attorney-General to maintain a list of “prohibited symbols.” The Attorney-General may choose to ban a symbol, following consultation with the human rights and police commissioners, if it is “widely known” to represent an ideology of “extreme prejudice.”

The federal law is the narrowest, banning only the Nazi swastika and “SS double sig rune,” though it includes a separate offence for displaying any symbols used by terrorist organizations. Currently, three far-right groups are listed as terrorist organizations in Australia, so the offences will ban symbols used by those organizations and likely others over time, as more far-right groups are recognized as threats to national security.

The federal offences for display and gestures will apply only if a reasonable person would consider the act to involve advocacy or incitement of hatred, or if the act is likely to offend, insult, humiliate, or intimidate a person. An objective test of reasonableness seems redundant when the two banned symbols and the raised-arm salute unmistakably represent Nazi ideology, and this inclusion may risk prosecutions failing for what is otherwise an offence of strict liability (i.e., like the other state and territory laws, the federal offences do not include a mens rea requirement that the offender intended to incite hatred or intimidate anyone).

The laws are broadly consistent, and Australian governments have been united in their stance against public displays of Nazi ideology. However, there are some key differences across the country that undermine this united front. For example, it will be an offence to display a Nazi tattoo in NSW and Queensland but not in Victoria and Tasmania. The penalties also cover a wide range, from 3 months incarceration in Tasmania, to 6 months for a first offence in Queensland, to 12 months in the other jurisdictions.

Another key difference is who gets to decide which symbols are banned. Federally, the Commonwealth Parliament has played the dominant role by specifying the two banned symbols. In NSW, Victoria, and Tasmania, the courts will play the dominant role in deciding whether something is a Nazi symbol. If the courts differ in their interpretation of what constitutes a Nazi symbol, this could generate further inconsistencies. In Queensland, the Attorney-General will have the determining say. These core differences suggest the laws are largely experimental, with no consensus on the most effective approach.

Will the Laws Be Effective in Practice?

Even if best practice emerges from the different templates, it is doubtful whether the laws will significantly curb the activities of neo-Nazi groups. The groups use a wide range of symbols beyond the swastika, SS, and others that may be recognizable to the general public. For example, the number 14 is commonly used to indicate a 14-word white supremacist slogan, and 88 is well-known code for “Heil Hitler” (because H is the 8th letter of the alphabet). White supremacists commonly use the “OK” hand symbol (by forming a circle with the thumb and forefinger) to indicate their support for white power. The groups are also adept at using humor and memes, which can appear innocuous at first glance, to spread their ideology online.

The Anti-Defamation League maintains a large database of these sorts of hate symbols. To ban all symbols associated with right-wing extremism, even under Queensland’s broader approach, would be impractical. To ban public displays of a number or a common hand symbol that is also used innocently would be nonsensical. On the other hand, banning only the most recognizable Nazi symbols means that far-right groups can simply adapt and avoid using the symbols that attract criminal penalty.

In a recent neo-Nazi march in country Victoria (the region outside of Melbourne), a large group wearing black clothes and balaclavas marched down the street with a sign saying “Australia for the white man.” They did not use Nazi symbols, and they shouted “hail victory!” as the English translation of “Sieg Heil!.” In a media interview, the Secretary of Victoria’s police association called for stronger regulation, saying “If it were up to us, it would be illegal,” but the group did not breach any existing laws. Joshua Roose, an Australian expert on RWE and toxic masculinity, said the group was “effectively daring police,” as “[t]hey know what they can and can’t get away with under current legislation.” The groups do not need the Nazi swastika or SS to spread hatred and make community members feel threatened in public places.

Still, the laws will at least rob neo-Nazi groups of their key calling cards, which may impact their ability to recruit new members and the ability of emerging groups to adopt the same tactics. Ultimately, too, the criminal law serves not only a practical purpose but also a moral one. Despite their many inconsistencies, Australia’s enactment of hate symbol laws at least sends a signal that Nazi ideology and its hate symbols have no place in Australian society.