Would a law banning the Nazi salute be effective – or enforceable?

Amid the growing threat of far-right extremism in Australia, Victoria recently became the first state to ban the Nazi swastika, (known as the Hakenkreuz). Publicly displaying the symbol is now a criminal offence and carries a penalty of up to $22,000, or 12 months of imprisonment.

Other states and territories, including NSW, Queensland, the ACT, Tasmania and most recently, Western Australia, are now taking similar steps.

These moves have been praised as a critical step toward depriving far-right extremists the use of a potent symbol associated with hatred, racism and the horrors of the Holocaust to intimidate and spread fear.

Far-right groups in Australia have also sought to leverage the swastika as a recruitment tool, pulling in young men (in particular) who are attracted to its association with hatred and violence.

But these laws banning Nazi symbols do not (yet) cover the other way far-right extremists espouse their hateful ideology in public spaces and online: the Nazi or “fascist” salute.

Read more: Does Australia need new laws to combat right-wing extremism?

The Nazi salute as a symbol and recruitment tool

The act of raising an arm in salute dates to the Roman Empire where it was used to display respect or allegiance. This was altered in artwork and culture over time in different contexts, including in France and the United States.

More recently, it was appropriated and altered by propagandists among the National Socialists in Germany and fascists in Italy in the early 20th century as a way to both demonstrate commitment to these groups and unity of purpose.

Today, the salute is used to identify oneself as a white nationalist or “Nazi”. It’s also used in public spaces to intimidate and spread fear. There are many instances of this in Australia, most recently by a group of men in the Melbourne suburb of Elwood (a suburb with a high proportion of Jewish residents) and by a far-right extremist leader after his conviction for assault against a Black security officer.

Importantly, the use of the gesture functions as a recruitment device in the same way the swastika is used.

To the often alienated and angry young men attracted to far-right ideologies, photos of groups of men making the Nazi salute offer a sense of a collective and belonging. Far-right extremists groups know this and their online materials feature many photos of members making salutes.

International efforts to ban the Nazi salute

Some countries have specifically banned the salute, such as Germany and others occupied by the Nazi regime during the second world war (Austria, the Czech Republic, Slovakia and Poland).

Others, such as Switzerland and Sweden, have broader statutes that capture the salute. Authorities in the United Kingdom have more recently used provisions related to causing racially aggravated harassment, harm and distress to prosecute offenders.

Penalties in these jurisdictions range from up to three years imprisonment in Germany to low-level fines. Arguably as important as the punishment is the recording of a conviction, building a track record of participation in far-right extremist movements.

Challenges of enforcement

The Nazi salute is instantly recognisable and the most common far-right extremist hand sign globally. We know it when we see it and debates about interpretation are arguably moot.

However, a successful prosecution depends on a number of factors, including the wording of the particular laws and the evidence available. If a statute is not precise, or is not able to be readily applied by law enforcement, it can allow offenders to escape conviction. This happened in Switzerland in 2014.

It is also important to consider the way far-right extremists respond to these laws. They can change their tactics to evade prosecution, including using the OK symbol instead of a Nazi salute.

This gesture, made by connecting the thumb and index finger to create a circle and spreading the other three fingers apart, can be interpreted as the letters “W” and “P”, standing for white power. But because it’s a common hand gesture, it also offers some form of deniability to those using it.

There’s been a similar debate in France and Switzerland over the use of the “quenelle” hand gesture, which resembles the Nazi salute but has been used in attempts to circumvent hate laws.

And crucially, a successful prosecution requires evidence, such a video or photograph, that a suspected offender actually made the salute. This is why many far-right extremists making the salute cover their faces in online posts.

Read more: Why Dieudonné's quenelle gesture poses challenges for Britain and France

What would a ban in Australia look like?

Any laws targeting the Nazi salute are likely to focus on the public use of the salute to intimidate and threaten members of the community, falling under existing or new legislation combating hate or “prejudice motived” crimes.

Such legislation would likely take a similar approach to the new Victorian law banning Nazi symbols, which requires that a symbol is both intentionally used in a public space and that the person ought to have reasonably known making the salute is aligned with Nazi ideology.

In fact, the Victorian government is now reportedly exploring the possibility of expanding its law to include the salute.

Any new law banning the salute would also likely allow for limited exceptions, for example, in the case of artistic parody.

Read more: Far-right groups have used COVID to expand their footprint in Australia. Here are the ones you need to know about

A logical next step

The Nazi salute, as with the swastika, is inextricably linked with the horrors of the Holocaust and grounded in extreme hatred and violence. It is a symbol that has maintained its power over many decades and is currently weaponised by far-right extremists in our streets (and online) to both inspire fear and recruit.

Enacting new laws to ban the salute would be both logical and an important step in protecting the Australian community, particularly those specifically targeted by far-right extremist ideologies. There would certainly be challenges to overcome, however, requiring such laws to be written carefully and, critically, the will to enforce them.