Lawyers for the first-ever Victorian charged with making a banned Nazi salute have challenged the validity of the ban, arguing the gesture is a legitimate form of political expression.
Neo-Nazi Jacob Hersant was charged with making a Nazi salute just days after Victoria outlawed it in October last year.
The charge was sparked by an incident caught on news cameras outside the Victorian County Court in October last year, where Mr Hersant had appeared on another matter.
The footage, which was played in court, showed Mr Hersant saying “heil Hitler” before raising his right arm at about a 90-degree angle from his shoulder, then taking it down.
“Oh, nearly did it, it’s illegal now isn’t it,” Mr Hersant said.
As he walked away, Mr Hersant called out: ”Australia for the white man. Heil Hitler.”
Defence lawyer Timothy Smartt conceded it was “very clear to everyone my client has these views” but argued his gesture was not a Nazi salute.
Court analyses arm angle of salute
Mr Hersant’s first course of defence was to argue he did not perform the salute, with the defence claiming the angle of his hand and arm did not fit the accepted definition of a Nazi salute.
Mr Smartt said people raised their right arm for many reasons including hailing a taxi, an argument which prosecutors slammed.
Magistrate Brett Sonnet pointed out an expert witness had testified there were variations of the salute, depending on circumstance.
“You can’t stitch them together in a Frankenstein gesture,” Mr Smartt replied.
Jacob Hersant was leaving a Melbourne court following a separate matter last year when it is alleged he made a Nazi salute. (ABC News)
Further, the defence argued Mr Hersant’s “nearly did it” comment indicated he did not follow through with the gesture.
“He’s saying, ‘I can still promote my philosophy in a way that doesn’t infringe this law,'” Mr Smartt said.
Prosecutor Daniel Gurvich came to the opposite conclusion, telling the court the comment was “effectively a submission”.
“The context is critical, and it is not possible to disaggregate or divorce the words used from the action displayed,” he said.
Mr Gurvich also attacked the “Frankenstein” argument, pointing out the laws did not just ban the Nazi salute but any other gesture that resembled or could be confused with it.
Defence challenges validity of ban
Mr Hersant’s second course of defence was to argue the charge did not hold up under the constitution because the Nazi salute was a legitimate form of political expression.
That approach required a representative of the Victorian attorney-general to appear as a party in the case.
Representative Sarah Zeleznikow told the court Mr Hersant’s alleged conduct was “at the heart” of what the legislation was written to prevent.
She pointed to the concept of “implied freedom” in Australia’s constitution, which restricts laws that interfere with political communication.
“A significant sphere of reality is left to communicate Nazi ideology in Victoria … what is banned is particularly harmful manifestations of the ideology,” she said.
The court also discussed the extent of the magistrate’s decision.
“The court will never be in a position where it would be appropriate to make a blanket declaration of validity,” Ms Zeleznikow said, explaining any decision would only impact the specific sections of law related to Mr Hersant’s defence.
Tensions flare in cross-examination of experts
The constitutional argument had prompted Magistrate Sonnet to request evidence from experts in Nazi ideology.
On Monday historian Robert Loeffel and hate speech specialist Katharine Gelber appeared, facing tense cross-examinations.
“Did you use the Wikipedia page ‘Nazi Salute’ to prepare your report?” Mr Smartt asked Dr Loeffel.
“I think I looked at it … I may have,” the historian replied.
“Do you think experts in the subject matter use Wikipedia to learn about it?” Mr Smartt asked.
Dr Loeffel explained he used Wikipedia to check referencing and locate a book included as one of his sources in the report.
On day two of the hearing Mr Smartt told the court he had been “quite aggressive at the start of the cross-examination but ultimately agreed “almost completely” with Dr Loeffel’s definition of a Nazi salute.
The defence also questioned Dr Gelber’s findings on hate speech, arguing her report was “biased” and her reasoning was “circular”.
“I completely reject that,” Dr Gelber said.
“Structurally and systematically … the phenomenon of hate speech does harm.”
Dr Gelber said the conclusions were based on evidence and almost 30 years of research, at one point suggesting to Mr Smartt that “you maybe don’t get it”.
Mr Smartt doubled down on his criticism of her evidence on day two, while Ms Zeleznikow told the court the attorney-general rejected the defence claims.
Magistrate Sonnet reserved his decision on both Mr Hersant’s guilt and the question of constitutional validity until next month.
