Banning the Nazi salute won’t kill fascism’s re-emergence in Australia

The kindest interpretation of the Albanese government’s latest law-making initiatives is that it is paralysed by panic. There is no other rational explanation for its decision to completely outsource its legislative responsibility to Peter Dutton.

Dutton demands a law for “preventative detention” of people to replace the system of indefinite immigration detention that he created and the High Court declared illegal — the government simply obliges. “If it were up to me, all of these people would be in detention,” declared Home Affairs Minister Clare O’Neil.

“Even the ones who haven’t committed crimes?” asked the ABC’s Patricia Karvelas. “Yes, because that’s where they were before the High Court decision.”

So, the rationale for extra-judicial imprisonment of these people is that they were previously unlawfully detained. Goodbye, rule of law.

Dutton demands the Nazi salute be criminalised — the government obliges. Attorney-General Mark Dreyfus has announced that Labor’s pending counter-terrorism bill will be amended to add this to the already-planned outlawing of the Nazi swastika and SS symbol.

Only two weeks ago, the government’s own majority on the parliamentary committee reviewing the bill handed in its report, recommending against Commonwealth legislation banning the Nazi salute. The government has now ignored that advice, accepting instead the insistence of the Coalition committee members to the contrary.

The government is acting without thinking, but it should be asking three questions: can the federal government legally do this; should it be doing it, as opposed to the states; and should anyone be doing it at all?

The law can only be valid if the Commonwealth Parliament has constitutional power to make it. There is no head of power for crime generally. The government will hang its hat on the “external affairs” power, which the courts have interpreted liberally to allow for laws that give effect to Australia’s international treaty obligations. Most relevant is the International Convention on the Elimination of All Forms of Racial Discrimination, which obliges participating countries to adopt positive measures to eradicate incitement of racial discrimination and violence.

Whether this would pass muster is an open question. The High Court has held various positions on the external affairs power over the years, grappling with the practical reality — as was noted in one case — that if it empowers the Parliament to make laws giving effect to every international agreement the government chooses to make, then “the Commonwealth would be able to acquire unlimited legislative power” — precisely not what the constitution’s drafters intended.

The answer is: who knows? Although my guess is the High Court would probably give it a tick. A more important question is why should it be the Federal Police, as opposed to state and territory police, who will be arresting people for performing the Nazi salute?

There’s a tenuous logic to federally outlawing Nazi (and other terrorist organisation) symbols, because their propagation these days is most widely and insidiously achieved online, a natural space for federal regulatory enforcement bodies to most efficiently operate. The internet pays no attention to state borders.

The same logic doesn’t apply to physical acts, which is arguably the major concern with neo-Nazis goose-stepping and doing sieg heils. As the government’s committee members said, leaving this problem to state and territory criminal laws would “acknowledge that it is state and territory police that have a presence in communities to respond to such conduct”. The Federal Police are not geared for that type of policing.

Finally, it would be far better if we took the time for a rational conversation before rushing into this new burden on free speech. Not because I wish to defend the Nazi salute — I’m firmly in the “it’s ok to punch Nazis” camp — but, as I wrote in March when Victoria announced its plan to criminalise the salute, we should take these steps only with extreme care.

If Germany had banned the Nazi salute in the 1920s, Hitler would still have come to power. It cannot be viably argued that banning it now will prevent a re-emergence of white supremacist, fascist ideology or politics (don’t get me started on the irony of which political leader is actually generating that risk with his divisive public race-baiting).

Modern Hitler enthusiasts can signify their common values in many ways. The white power hand symbol is doing far more widespread social harm than the salute, because it is insidious and understood. It bears no relationship to anything Nazi. As school kids can find infinite ways to subvert crackdowns by teachers, so can these racist idiots continue to innovate.

That leaves the specific harm that the symbols cause to people who feel targeted by their display: Jews, especially but not exclusively. It’s important to recognise that this is quite different from any justification for outlawing the Islamic State flag or symbols of other terrorist groups; the harm they cause is not offence, intimidation or insult by reference to past horror, but incitement to violence.

There is a case for criminalising Nazi symbols, as anti-Semitism has been re-emerging generally in recent years, and that case is stronger right now because of the extremely heightened atmosphere and threats caused by the dreadful conflict in Israel/Palestine.

However, I repeat what I’ve said before: It is only the baggage that history has attached to any word, gesture or symbol that renders it dangerous. The law, consequently, must be applied with extreme care, mindful of unintended consequences and ready to be moderated or withdrawn if and when the danger has passed.

The government needs to stop panicking and start breathing.

Is banning the salute the right move, or is more needed to stop the re-emergence of fascist ideology in Australia? Readers, we want to hear from you — especially while our comments are closed due to our website upgrade. Send us your thoughts on this article to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.