Have you been charged for the public display of a nazi symbol or the nazi salute?
If you have been charged with the public display or performance of Nazi symbols, make an appointment to see one of our experienced criminal lawyers today.
Public display or performance of Nazi symbols or gestures is a summary offence under section 41K of the Summary Offences Act 1966 (Vic). This is a new law that commenced on 21 October 2023.
Being found guilty of this charge can result in imprisonment, and you will need to carefully consider several issues before advising the Court whether you intend to plead guilty or not guilty.
Can the prosecution make out their case? Did you display a Nazi symbol or gesture? What were the circumstances? Were you acting under an exemption? Do you have a defence? If you are pleading guilty, what can you do to minimise your sentence?
Speak to a specialist criminal lawyer before proceeding further.
Read on for further information on the charge of ‘public display or performance of Nazi symbols or gestures’.
Elements of the offence
A person commits a criminal offence under section 41K(1) of the Summary Offences Act 1966 if they:
Intentionally display a Nazi symbol or Nazi gesture; and
Know, or ought reasonably to know, that the symbol or gesture is a Nazi symbol or Nazi gesture; and
The display occurs:
In a public place, a non-Government school or a post-secondary education institution; or
In sight of a person who is in a public place, a non-Government school or a post-secondary education institution.
A person commits a criminal offence under section 41K(1A) of the Summary Offences Act 1966 if they:
Intentionally perform a Nazi gesture; and
Knows, or ought reasonably to know, that the gesture is a Nazi gesture; and
The performance occurs:
In a public place, a non-Government school or a post-secondary education institution; or
In sight of a person who is in a public place, a non-Government school or a post-secondary education institution.
Intentionally display or perform
Both subsections 1 and 1A require the display or performance to be intentional. This avoids the capturing of inadvertent displays or performance of nazi symbols or gestures in a public place.
Whether a person ought reasonably to know that a gesture or symbol is a Nazi gesture or symbol is an objective test. That is, the test is determined according to what a reasonable person in the position of the person displaying or performing the gesture ought to have known.
What is a Nazi symbol?
A range of Nazi symbols and gestures used by the historic Nazi Party and its paramilitary organisations are prohibited under the Summary Offences Act 1966.
‘Nazi Party’ means the National Socialist German Workers’ Party (NSDAP), which was active from 1920 to 1945, and includes several paramilitary arms (s41J). Paramilitary organisations include, but are not limited to, the SS (Schutzstaffel), the SA (Sturmabteilung), the NSKK (National Socialist Motor Corps) and the SNFK (National Socialist Flyers Corps) (s41J).
‘Nazi symbol’ means the Hakenkreuz, any other symbol used by the Nazi Party or a symbol that so closely resembles a symbol used by the Nazi Party that it can be confused with or mistaken for that symbol (s41J).
The Hakenkreuz versus the Swastika
The Hakenkreuz, which is the most widely recognised symbol used by the Nazi party, is a symbol of a cross with the arms bent at right angles in a clockwise direction. The Hakenkreuz is similar to and often used interchangeably with, the swastika (an ancient religious and cultural symbol). However, the importance of the swastika as an ancient symbol in Buddhist, Hindu, Jain, and other religions is recognised by the legislation, and its use is exempted for cultural or religious purposes.
Another example of a symbol that closely resembles the Hakenkreuz is a cross with arms bent at right angles in a counterclockwise direction. Anyone who tries to circumvent the prohibition by using symbols that closely resemble Nazi symbols is therefore also liable to criminal charges.
The prohibition of Nazi symbols is intended to capture flags, insignia and medals that were used by the Nazi Party and paramilitary arms, including:
the SS bolts symbol (sig runes)
the Totenkopf (or death’s head), which was also used by the SS
other symbols of the SA, the NSKK, and the NSFK.
The Nazi salute and other gestures
‘Nazi gesture’ means a Nazi salute, any other gesture used by the Nazi Party or a gesture that so nearly resembles a Nazi gesture that it is likely to be confused with or mistaken for that gesture (s41J).
The drafting of the offence under section 41K(1) to include gestures ensures that various methods of communicating the Nazi salute are prohibited, such that a person is also prevented from displaying a poster of a person performing a Nazi salute, for example.
Ultimately, whether a symbol or gesture is considered to be a Nazi symbol or gesture or to closely resemble one is decided by the courts.
Public place
Both subsections prohibit the display or performance of a Nazi gesture in a public place, a non-Government school, or post-secondary education institution, such as a university or TAFE institute. A public place is defined broadly as capturing any display or performance of Nazi symbols or gestures to the public or observable by the public, including the display or performance on private premises visible to the public.
The offence does not prohibit the trade or sale of historical memorabilia, but traders must not display Nazi symbols or gestures publicly. While the law applies to Nazi symbols or gestures that are displayed or performed in a public place, they do not apply online.
The maximum penalty
The offence of displaying or performing a nazi gesture is subject to a maximum penalty of 12 months imprisonment or a fine of 120 penalty units or both (Summary Offences Act 1966 s41K).
What are the exceptions?
Exceptions apply to permit the performance or display of a Nazi symbol or gesture if the display or performance was engaged in reasonably and in good faith for certain purposes.
Academic, artistic, educational, or scientific purpose
Under section 41K(2), a person does not commit the offence if the display or performance was engaged in reasonably and in good faith for a genuine academic, artistic, educational, or scientific purpose. The following examples of exceptions are provided under this subsection:
A person performs the Nazi salute during a theatre performance.
A bookshop displays for sale an educational textbook on World War II, which has a Hakenkreuz on the cover.
A teacher shows a film as part of a history class in which the SS symbol can be seen.
For genuine cultural or religious purpose
Under section 41K(2A), a person does not commit the offence if the display of the nazi symbol was engaged in reasonably and in good faith for a genuine cultural or religious purpose. Subsection 2A provides the following examples of this exception:
A person of Hindu faith displays a swastika in the front window of the person’s shop as a symbol of good luck.
A person of Jain faith draws a swastika on the person’s new vehicle before using it as a symbol of good fortune.
A person of Buddhist faith displays a sculpture of Buddha with a swastika on the chest, as a symbol of auspiciousness, at a Buddhist temple.
The floor of a shop is patterned with swastikas in the hope of bringing prosperity.
A member of the Hindu community wears a T‑shirt in public with a swastika on the front as a symbol of peace.
In opposition to fascism, Nazism, or neo-Nazism
Under section 41K(2B), a person does not commit the offence if the display of the Nazi symbol or gesture was engaged in reasonably and in good faith in opposition to fascism, Nazism, neo-Nazism, or other related ideologies. Subsection 2B provides the following examples of this exception:
A person who displays a flag of Nazi Germany with a marking through it to signal the person’s opposition to Nazism.
A person participating in a protest who displays a Nazi symbol on a placard which also contains words stating opposition to fascism.
A person who displays the pink triangle used by LGBTIQ+ communities.
Tattoo and law enforcement exemptions
The following exceptions also exist:
A person does not commit the offence if the Nazi symbol or Nazi gesture is displayed on the person’s body by means of tattooing or other like process (s41K(3)).
A law enforcement officer or a member of an intelligence agency does not commit the offence if the display or performance occurs in the performance of the officer’s or member’s duties and is done in good faith (s41K(4)).
A person does not commit the offence if the display or performance occurs in the course of official duties connected with the administration of the justice, including the investigation or prosecution of offences or the giving of evidence in a proceeding in a court or tribunal, and is done in good faith (s41K(5)).
Defences to the offence
As with all criminal offences, for a person to be found guilty of Public Display or Performance of a Nazi Symbol or Gesture, the prosecution must prove each element beyond reasonable doubt.
Accordingly, a factual dispute concerning the conduct, which is alleged to be the display or performance of a Nazi symbol or gesture, may give rise to a defence.
If you have been charged with Public Display or Performance of a Nazi Symbol or Gesture, you may have a valid defence, such as acting under duress or mistake of fact. Experienced legal advice is important to ensure an appropriate defence is raised to a charge against you.
Direction to remove Nazi symbols from display
Under section 41L, a person may be directed by a police officer to remove a Nazi symbol or gesture from display if the police officer reasonably believes an offence is being committed against section 41K(1). Such a direction may be given orally or in writing, and failure to comply with the direction is liable to a penalty of 10 penalty units (s41L).
Where will my case be heard?
Charges for the display of Nazi symbols or gestures are generally heard in the Magistrates’ Court of Victoria. However, if the matter is to be heard with a more serious indictable charge and there is consent, it may be moved to a higher court (Criminal Procedure Act 2009 s242)
What to do next?
Consult an experienced criminal lawyer urgently. If you intend to plead guilty to the Public Display or Performance of a Nazi Symbol or Gesture, we can provide advice and prepare a plea with relevant reports and documents to help you achieve the best outcome possible.
If you intend to plead not guilty, contact us as soon as possible to arrange a suitable case strategy. You need an experienced lawyer who will consider all relevant evidence.
Consideration of these factors and early intervention by an experienced lawyer will increase the chances of achieving a withdrawal of charges or an acquittal.
Don’t delay your preparation until the last minute, as time and careful planning are essential for a favourable outcome.
The legislation
SUMMARY OFFENCES ACT 1966 – SECT 41K
Public display or performance of Nazi symbols or gestures
(1) A person must not intentionally display a Nazi symbol or Nazi gesture if—
(a) the person knows, or ought reasonably to know, that the symbol or gesture is a Nazi symbol or Nazi gesture; and
(b) the display—
(I) occurs in a public place, a non‑Government school or a post‑secondary education institution; or
(ii) occurs in sight of a person who is in a public place, a non‑Government school or a post‑secondary education institution.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(1A) A person must not intentionally perform a Nazi gesture if—
(a) the person knows, or ought reasonably to know, that the gesture is a Nazi gesture; and
(b) the performance—
(i) occurs in a public place, a non‑Government school or a post‑secondary education institution; or
(ii) occurs in sight of a person who is in a public place, a non‑Government school or a post‑secondary education institution.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(2) A person does not contravene subsection (1) or (1A) if the display or performance was engaged in reasonably and in good faith—
(a) for a genuine academic, artistic, educational or scientific purpose; or
Examples
1 A person performs the Nazi salute during a theatre performance.
2 A bookshop displays for sale an educational textbook on World War II, which has a Hakenkreuz on the cover.
3 A teacher shows a film as part of a history class in which the SS symbol can be seen.
(b) in making or publishing a fair and accurate report of any event or matter of public interest.
(2A) A person does not contravene subsection (1) if the display of the Nazi symbol was engaged in reasonably and in good faith for a genuine cultural or religious purpose.
Examples
1 A person of Hindu faith displays a swastika in the front window of the person’s shop as a symbol of good luck.
2 A person of Jain faith draws a swastika on the person’s new vehicle before using it as a symbol of good fortune.
3 A person of Buddhist faith displays a sculpture of Buddha with a swastika on the chest, as a symbol of auspiciousness, at a Buddhist temple.
4 The floor of a shop is patterned with swastikas in the hope of bringing prosperity.
5 A member of the Hindu community wears a T‑shirt in public with a swastika on the front as a symbol of peace.
(2B) A person does not contravene subsection (1) if the display of the Nazi symbol or the Nazi gesture was engaged in reasonably and in good faith in opposition to fascism, Nazism, neo-Nazism or other related ideologies.
Examples
1 A person who displays a flag of Nazi Germany with a marking through it to signal the person’s opposition to Nazism.
2 A person participating in a protest who displays a Nazi symbol on a placard which also contains words stating opposition to fascism.
3 A person who displays the pink triangle used by LGBTIQ+ communities.
(3) A person does not contravene subsection (1) if the Nazi symbol or Nazi gesture is displayed on the person’s body by means of tattooing or other like process.
(4) A law enforcement officer or a member of an intelligence agency does not contravene subsection (1) or (1A) if the display or performance occurs in the performance of the officer’s or member’s duties and is done in good faith.
(5) A person does not contravene subsection (1) or (1A) if the display or performance occurs in the course of official duties connected with the administration of the justice system, including the investigation or prosecution of offences or the giving of evidence in a proceeding in a court or tribunal, and is done in good faith.
(6) A prosecution of a child for an offence against subsection (1) or (1A) must not be commenced without the written consent of the Director of Public Prosecutions.
