A nation’s laws should not curtail political freedoms while somehow finding a way to not permit using the tool of political voice seeking to cause harm.
Right to Political Communication - implied?, Appears to me to be expressly stated in the Victorian Charter at s 15 Freedom of Expression. Perhaps a video on Victorian Charter of Human Rights and Responsibilities Act (and the ACT equivalent) might be worth while doing a video on. Especially address - how this Charter, created by the Vic govt under Premier Bracks, allows the same government to breach the very rights they have bestowed upon us by the enactment of the Charter; as was the case of bringing in the statutory provision making it an offence to raise a person's arm in a NSDAP salute or displaying the hakenkruez (swastika) which law, clearly, is a breach of the right to freedom of expression.
Acts take lower precedence than Constitutions. Generally, if two Acts (as Acts always have equal precedence) have a conflicting provision, the more specific provision prevails over the less specific provision, unless there is an explicit statement to the contrary.
@@geordannicholson2854 Thanks. Just on Constitutions, The Victorian Constitution appears to be not worth the paper it is written on as D Andrews introduced legislation and changed the Vic Constitution Act as needed, to allow the legislation to take effect, and others or, at least other Act provisions, states that the breach of the Constitution was intentional when that provision or Bill was passed. I do understand the Charter can be breached by Govt with Bills it introduces, and there is a process set out by the Charter where the AG must inform parliament that a Charter provision is in conflict with the proposed bill. And, under s38 of the Charter, that a Govt department can suppress a Charter right so long as that department 'properly considers' the affect of the suppression and can justify the suppression. Justice Brennan gave a very good explanation of 'properly consider' in the Peko Wallsend case in the High Court some years ago. In July/Aug 2018, I submitted an application for judicial review to the Supreme Court of Vic on a Vic Govt Department suppression of one of my Charter rights. The result? In spite of two follow up personal visits to the Supreme Court Prothonotary office, the application was not filed, nor was any correspondence received to explain why, and no correspondence has ever been received. The application was delivered in person so it is not as if the Court can claim it when missing in the mail. I gave up waiting some time back, and this with other examples, added to the reasons why I lost any faith I had in the Victorian legal system. It is no longer a justice system. What hope have we got when the Supreme Court behaves in a way which is calculated to bring the administration of the law into disrepute? I have other examples for which I have first hand personal knowledge.
I always enjoy your explanations Anne, using simple and clear language for us (the great unwashed.) I personally see one man displaying a na*i salute in protest as far less dangerous to society than governments increasingly curtailing free speech to stop criticism of their unpopular actions.. In my ideal world free speech would be explicitly guaranteed in the constitution. This is one thing our American cousins got right.
I was almost charged once for sarcastically responding to a cop with a “heil” and a nazi salute during a protest when the cops had begun pushing their weight around. It was my response to how the cops in nsw can be a little bit fascist in dealing with legitimate protest during the late 90s.
When will freedom of expression be truely implemented. Such laws are too susceptible to abuse and vindictiveness. As long as they are not intentionally targetting anyone, wearing any geometric design/style or covering any part of the body and making a non-hateful body gesture should be sacredly guaranteed under the right of freedom of expression. Enough is enough!
@@MAGH1O1 Then I suggest you have little true understanding of of history and/or the concept of post traumatic stress. Although most of the survivors of the Holocaust have died, post traumatic stress can be inherited. I am not Jewish, I don’t have any relatives who were victims of the Holocaust (and in fact I would considered Aryan by the Nazis) and I was born well after WWII, but I still see the Nazi salutes as a symbol of hate of non Aryan races. It is a very racist gesture. The question is - is it reasonable to prohibit its use. By the criteria outlined in your previous response - the answer is yes.
I’m aware that the federal version of this law is likely supported by external affairs. However could you make a Thomas v Mowbray type argument that the suppression of such anti democratic groups is necessary for the defence of the Commonwealth under the defence power?
I think it would depend on the circumstances, but if there were neo-Nazi groups that posed a terrorist threat to Australia, then the defence power would certainly be in play, because of Thomas v Mowbray. On the other hand, if it was really just kids pushing boundaries to show how tough they are, then the defence power is unlikely to apply.
surely if the Nazi salute occurs from a group of them doing the stunt marches that we've seen recently, then that would be enough of a threat to good order to warrant such a law, especially when their leader is a convicted violent offender. @@constitutionalclarion1901
Perhaps a video on how difficult it is to conduct a court case to to get the judge to uphold our fundamental rights such as the right pertinent to this video - the right to freedom of expression aka freedom of speech. The plaintiff has to pay the Vic Supreme Court over $1,000 application fee to apply for a judicial review of the government decision to breach a right. Then the judicial review has to be argued and to argue a judicial review case, even many lawyers do not understand how to do this. The plaintiff has to pay many thousands of dollars to pay a specialist KC to argue his case for him. The lawyer is specialist cos he has to understand the principle of Wednesbury unreasonableness/House v The King (1936) then be able to argue these principles.
Sorry to mislead with the title - I was just trying to be succinct. It is a bit to wordy to refer to the constitutionally implied freedom of political communication in the title. But I agree the title was wider than the scope of the content.
If someone had no other Nazi paraphernalia or relationship to any such groups, what would happen if they claimed that they were merely imitating the once popular in the USA "Bellamy salute'?
Far from being a "horrible law," it's timely. The only disgrace is that the judge in the Hersant case looks likely to apply a 12 month sentence because he is not in any way remorseful for his actions, which are not a bunch of 'tough-guy-act' men throwing their hands around but based in sincere commitment to what the gesture represents, when really if there's no remorse we should be talking about an indefinite penalty.
I would hope to see the law upheld where it concerns legitimate Nazi ideology and hateful intent, contrasted against the use of the salute as a commentary on political speech.
Superb video as always. Whilst I appreciate the offence people take I’m strong advocate for freedom of expression. I find your video cut slightly short for the following reasons. 1. The Nazi Salute has been used in popular culture for decades including comedy. 2. The Nazi party disbanded on October 10, 1945 and this law was enacted in Victoria 78 years later only after a political revolt against the then premier Daniel Andrew’s where the people of Victoria could legally use the symbol for freedom of political expression against the Victorian Government and other governments within the commonwealth of Australia for oppressive and authoritarian governance. So it appears that the motivation of the law was not to protect people from harm of being offended but rather protect politicians from scrutiny.
I don't support any right to do anything Nazi style, but people should know the salute is actually Roman, and also used during the Napoleonic period in France.
Yes - I tend to agree - But when it comes to the 'Roman Salute' - actual documented or verifiable evidence is pretty thin on the ground. Furthermore, the Napoleonic period didn't really see its adoption as was painted in the famous 'Oath of the Horatii' by David. A much clearer use of the salute came to be called the 'Bellamy' salute - first demonstrated in the US in 1892. The law in Australia forbids it in political rallies. Trouble is - the definition of what is or is not a salute falls into a number of grey areas. Just don't wave to anyone at a rally 😉🙂😊
I must be an unreasonable person. I'm not offended. In fact much as I hate the nazi ideology, I admire their FU attitude to the actual totalitarians who actually have the power to impose their totalitarian views on the populace.
The nazis used the swastika as one of their main symbols but the Hindu religion has used the same symbol for millennia. How is this addressed as it could be classed as restriction of religious freedom?
seriously who cares if they give u the bird or a nazi salutthe worlds gone flipping mad. Gave my dad who was a Prussian immigrant and refugee once when I was 15 he gave me a back hander enough said
Both sides so to speak are simply psychopathic, everywhere psychopaths testing psychopaths and psychopaths punishing psychopaths...middle humanity lost.
I do know we do not have the freedom of speech, tho we have the freedom of expression in our Constitution. As well as the right to free water. As a democracy you would think we have the right to the freedom of speech tho we do not. Time the constitution was taught again in schools. Shame on the government
The High Court has identified an implied freedom of political communication in the Constitution, but there is no broader freedom of speech or freedom of expression there. Nor is there a right to free water. At most, s 100 says the Commonwealth Parliament cannot make a law on trade or commerce that abridges the right of a State or their residents to the reasonable use of the waters of rivers for conservation or irrigation. But this does not stop State laws doing so, or even Commonwealth laws that are not laws respecting trade or commerce.
Governments always Decide what they called Social Srandards. People Never get a Vote or a Say as to what Social Standards are because this is how they slowly Take Away Your Rights. Now We must once again Trust Government to Decide what is Good for Us.
@@constitutionalclarion1901 Rubbish....Two Parties who have the Same Agenda and Always get the Same Outcome and they use the Cover of having a Mandate to Justify their Corruption and Never Reverse each other's Corrupt Laws.
Who decides the policies of the parties and who votes them in? The people. Has it occurred to you that perhaps the majority of people have different views to you, which is why certain parties are elected?
@constitutionalclarion1901 racism is a communist construct invented approximately 100 years ago. You are simply brainwashed into believing it means anything. As for promotion of violence a Roman Salute and National Socialism does no such thing. That is what communism does. That's what communism explicitly advocates. Your world view is backwards. Opposing communism preserves civilisation. Banning those most effective at opposing communism simply hastens our demise
This reply is hilarious. I’m taking the bait. What the mainstream knows of the NSDAP is postwar propaganda and nothing more. What if one has the belief that they were not racist in the slightest? Is one then guilty on the premise of having a different historical belief?
What about my racial heritage? Should I know forego the Roman salute based on some ridiculous ww2 narrative that has no opposition in the public domain?
Thank you for explaining this topic so clearly and with such detail.
Thank you Professor Twomey!!!!
Funny how it was introduced in Dan Andrews term
A nation’s laws should not curtail political freedoms while somehow finding a way to not permit using the tool of political voice seeking to cause harm.
Right to Political Communication - implied?, Appears to me to be expressly stated in the Victorian Charter at s 15 Freedom of Expression. Perhaps a video on Victorian Charter of Human Rights and Responsibilities Act (and the ACT equivalent) might be worth while doing a video on. Especially address - how this Charter, created by the Vic govt under Premier Bracks, allows the same government to breach the very rights they have bestowed upon us by the enactment of the Charter; as was the case of bringing in the statutory provision making it an offence to raise a person's arm in a NSDAP salute or displaying the hakenkruez (swastika) which law, clearly, is a breach of the right to freedom of expression.
Acts take lower precedence than Constitutions. Generally, if two Acts (as Acts always have equal precedence) have a conflicting provision, the more specific provision prevails over the less specific provision, unless there is an explicit statement to the contrary.
@@geordannicholson2854 Thanks. Just on Constitutions, The Victorian Constitution appears to be not worth the paper it is written on as D Andrews introduced legislation and changed the Vic Constitution Act as needed, to allow the legislation to take effect, and others or, at least other Act provisions, states that the breach of the Constitution was intentional when that provision or Bill was passed.
I do understand the Charter can be breached by Govt with Bills it introduces, and there is a process set out by the Charter where the AG must inform parliament that a Charter provision is in conflict with the proposed bill. And, under s38 of the Charter, that a Govt department can suppress a Charter right so long as that department 'properly considers' the affect of the suppression and can justify the suppression. Justice Brennan gave a very good explanation of 'properly consider' in the Peko Wallsend case in the High Court some years ago.
In July/Aug 2018, I submitted an application for judicial review to the Supreme Court of Vic on a Vic Govt Department suppression of one of my Charter rights. The result? In spite of two follow up personal visits to the Supreme Court Prothonotary office, the application was not filed, nor was any correspondence received to explain why, and no correspondence has ever been received. The application was delivered in person so it is not as if the Court can claim it when missing in the mail. I gave up waiting some time back, and this with other examples, added to the reasons why I lost any faith I had in the Victorian legal system. It is no longer a justice system.
What hope have we got when the Supreme Court behaves in a way which is calculated to bring the administration of the law into disrepute? I have other examples for which I have first hand personal knowledge.
I always enjoy your explanations Anne, using simple and clear language for us (the great unwashed.) I personally see one man displaying a na*i salute in protest as far less dangerous to society than governments increasingly curtailing free speech to stop criticism of their unpopular actions.. In my ideal world free speech would be explicitly guaranteed in the constitution. This is one thing our American cousins got right.
I was almost charged once for sarcastically responding to a cop with a “heil” and a nazi salute during a protest when the cops had begun pushing their weight around. It was my response to how the cops in nsw can be a little bit fascist in dealing with legitimate protest during the late 90s.
When will freedom of expression be truely implemented.
Such laws are too susceptible to abuse and vindictiveness.
As long as they are not intentionally targetting anyone, wearing any geometric design/style or covering any part of the body and making a non-hateful body gesture should be sacredly guaranteed under the right of freedom of expression.
Enough is enough!
@@MAGH1O1Except that a Nazi salute can be considered hateful and/or offensive given its historical context.
@@brontewcat
Getting offended by such things is below childish, IMHO.
@@MAGH1O1 Then I suggest you have little true understanding of of history and/or the concept of post traumatic stress.
Although most of the survivors of the Holocaust have died, post traumatic stress can be inherited.
I am not Jewish, I don’t have any relatives who were victims of the Holocaust (and in fact I would considered Aryan by the Nazis) and I was born well after WWII, but I still see the Nazi salutes as a symbol of hate of non Aryan races. It is a very racist gesture.
The question is - is it reasonable to prohibit its use. By the criteria outlined in your previous response - the answer is yes.
@@brontewcat Cheers
I’m aware that the federal version of this law is likely supported by external affairs. However could you make a Thomas v Mowbray type argument that the suppression of such anti democratic groups is necessary for the defence of the Commonwealth under the defence power?
I think it would depend on the circumstances, but if there were neo-Nazi groups that posed a terrorist threat to Australia, then the defence power would certainly be in play, because of Thomas v Mowbray. On the other hand, if it was really just kids pushing boundaries to show how tough they are, then the defence power is unlikely to apply.
Fake democracy must fight democratic forms of protest to defend oligarchy: Film at Eleven!
surely if the Nazi salute occurs from a group of them doing the stunt marches that we've seen recently, then that would be enough of a threat to good order to warrant such a law, especially when their leader is a convicted violent offender. @@constitutionalclarion1901
Perhaps a video on how difficult it is to conduct a court case to to get the judge to uphold our fundamental rights such as the right pertinent to this video - the right to freedom of expression aka freedom of speech. The plaintiff has to pay the Vic Supreme Court over $1,000 application fee to apply for a judicial review of the government decision to breach a right. Then the judicial review has to be argued and to argue a judicial review case, even many lawyers do not understand how to do this. The plaintiff has to pay many thousands of dollars to pay a specialist KC to argue his case for him. The lawyer is specialist cos he has to understand the principle of Wednesbury unreasonableness/House v The King (1936) then be able to argue these principles.
Good video fleshing out the issues, albeit the title was misleading.
Sorry to mislead with the title - I was just trying to be succinct. It is a bit to wordy to refer to the constitutionally implied freedom of political communication in the title. But I agree the title was wider than the scope of the content.
If someone had no other Nazi paraphernalia or relationship to any such groups, what would happen if they claimed that they were merely imitating the once popular in the USA "Bellamy salute'?
There are some exceptions in the legislation, so you would need to see whether it fell within them.
Very good video, Anne. Thanks for making it. I predict the High Court will once again let us all down and allow this horrible law.
Far from being a "horrible law," it's timely. The only disgrace is that the judge in the Hersant case looks likely to apply a 12 month sentence because he is not in any way remorseful for his actions, which are not a bunch of 'tough-guy-act' men throwing their hands around but based in sincere commitment to what the gesture represents, when really if there's no remorse we should be talking about an indefinite penalty.
Great video thank you!
In the broader context this prevents Sabbath keeping. So is there a limitation on a so-to-speak right to religious freedom?
Insightful as always.
I would hope to see the law upheld where it concerns legitimate Nazi ideology and hateful intent, contrasted against the use of the salute as a commentary on political speech.
Superb video as always. Whilst I appreciate the offence people take I’m strong advocate for freedom of expression.
I find your video cut slightly short for the following reasons.
1. The Nazi Salute has been used in popular culture for decades including comedy.
2. The Nazi party disbanded on October 10, 1945 and this law was enacted in Victoria 78 years later only after a political revolt against the then premier Daniel Andrew’s where the people of Victoria could legally use the symbol for freedom of political expression against the Victorian Government and other governments within the commonwealth of Australia for oppressive and authoritarian governance.
So it appears that the motivation of the law was not to protect people from harm of being offended but rather protect politicians from scrutiny.
There are plenty of other ways in which the people can express their views about politicians, and giving a salute does not amount to scrutiny.
@@constitutionalclarion1901I thought you could remove your personal opinions in the same manner for constructive discussion.
Most of those points are covered in the "cut short" video! If you enjoy scrutinising with salutes you should look into refereeing a sport.
The swastika is a Hindu religious symbol. Are religious symbols exempted from such laws?
@@michaelsecomb4115 Yes.
I don't support any right to do anything Nazi style, but people should know the salute is actually Roman, and also used during the Napoleonic period in France.
Yes - I tend to agree - But when it comes to the 'Roman Salute' - actual documented or verifiable evidence is pretty thin on the ground. Furthermore, the Napoleonic period didn't really see its adoption as was painted in the famous 'Oath of the Horatii' by David. A much clearer use of the salute came to be called the 'Bellamy' salute - first demonstrated in the US in 1892.
The law in Australia forbids it in political rallies. Trouble is - the definition of what is or is not a salute falls into a number of grey areas. Just don't wave to anyone at a rally 😉🙂😊
Thanks.
So much for the freedom of political expression. Don't get me wrong, I find Nazi's deplorable.
I must be an unreasonable person. I'm not offended. In fact much as I hate the nazi ideology, I admire their FU attitude to the actual totalitarians who actually have the power to impose their totalitarian views on the populace.
The nazis used the swastika as one of their main symbols but the Hindu religion has used the same symbol for millennia. How is this addressed as it could be classed as restriction of religious freedom?
seriously who cares if they give u the bird or a nazi salutthe worlds gone flipping mad. Gave my dad who was a Prussian immigrant and refugee once when I was 15 he gave me a back hander enough said
People do care - hence the law.
Nanny state keeps growing.
Both sides so to speak are simply psychopathic, everywhere psychopaths testing psychopaths and psychopaths punishing psychopaths...middle humanity lost.
I do know we do not have the freedom of speech, tho we have the freedom of expression in our Constitution. As well as the right to free water. As a democracy you would think we have the right to the freedom of speech tho we do not. Time the constitution was taught again in schools. Shame on the government
The High Court has identified an implied freedom of political communication in the Constitution, but there is no broader freedom of speech or freedom of expression there. Nor is there a right to free water. At most, s 100 says the Commonwealth Parliament cannot make a law on trade or commerce that abridges the right of a State or their residents to the reasonable use of the waters of rivers for conservation or irrigation. But this does not stop State laws doing so, or even Commonwealth laws that are not laws respecting trade or commerce.
i dare say the ISIS flag and salute would come under these laws as well.
Governments always Decide what they called Social Srandards.
People Never get a Vote or a Say as to what Social Standards are because this is how they slowly Take Away Your Rights.
Now We must once again Trust Government to Decide what is Good for Us.
The people get their say every time they vote in elections.
@@constitutionalclarion1901
Rubbish....Two Parties who have the Same Agenda and Always get the Same Outcome and they use the Cover of having a Mandate to Justify their Corruption and Never Reverse each other's Corrupt Laws.
Who decides the policies of the parties and who votes them in? The people. Has it occurred to you that perhaps the majority of people have different views to you, which is why certain parties are elected?
@@constitutionalclarion1901
People don't have à choice because elections are all Rigged to favour the Two Party Criminal Corporation.
Assuming that corruption hasn’t taken hold.
The issue is the hysteria about National Socialism. The system fears those most effective at exposing their hypocrisy and corruption.
People can expose hypocrisy and corruption without using signs and actions intended to support racism and violence.
@constitutionalclarion1901 racism is a communist construct invented approximately 100 years ago. You are simply brainwashed into believing it means anything. As for promotion of violence a Roman Salute and National Socialism does no such thing. That is what communism does. That's what communism explicitly advocates. Your world view is backwards. Opposing communism preserves civilisation. Banning those most effective at opposing communism simply hastens our demise
This reply is hilarious. I’m taking the bait. What the mainstream knows of the NSDAP is postwar propaganda and nothing more. What if one has the belief that they were not racist in the slightest? Is one then guilty on the premise of having a different historical belief?
What about my racial heritage? Should I know forego the Roman salute based on some ridiculous ww2 narrative that has no opposition in the public domain?