Criminal Offence Update: Offence to Publicly Display or Perform Nazi Symbols or Gestures
The Summary Offences Act 1966 (Vic) (The Act) has been amended by the Summary Offences Amendment (Nazi Salute Prohibition) Bill 2023 to outlaw the public display of Nazi symbols and or gestures.
The amending Bill has resulted in the insertion of Division 4C into the Summary Offences Act 'Public display or performance of Nazi symbols or gestures.
Section 41K of the Act creates the offence of Public display or performance of Nazi symbols or gestures and prescribes a maximum penalty of 120 penalty units or imprisonment for 12 months or both.
The Elements of the Offence
The key element to an offence under section 41K is that the display of a Nazi symbol or gesture must be intentionally performed and occurs in a public place or is sight of a person who is in a public place, a non-Government school, or a post-secondary education institution.
Good faith defence
Section 41K(2) creates some defences to the offence, namely:
if the display or performance of a Nazi symbol was engaged in reasonably and in good faith- for a genuine academic, artistic, educational or scientific purpose or;
in making or publishing a fair and accurate report of any event or matter of public interest.
Other 'good faith' defences are outlined in subsections 41K(2A), (2B), (3)-(5)