Police protection of TERFS and Nazis requires more than cosmetic change

Victoria often prides itself as one of the most progressive states in Australia. This sense of pride may be fading as we see an increasing presence of Nazis and trans-exclusionary feminists occupying our public spaces and conversations.

On Saturday, many of us watched footage appearing to show Victoria Police protecting space for Nazi protestors to consistently use the Nazi salute. The Nazi protestors were there in support of Kellie-Kay Keen, an anti-trans advocate who is touring Australia.

The “Let Women Speak” event sat against a broader anti-trans debate that has proven toxic and harmful, with placards appearing to falsely link trans and gender diverse identities with paedophilia. This was a common tactic used against the same-gender attracted community for decades.

The actions, including salutes, of Nazi protestors, should raise the serious prospects of criminal prosecution. Victoria’s Racial and Religious Tolerance Act makes it unlawful to knowingly engage in conduct with the intention of inciting serious contempt, revulsion or ridicule of someone or a group based on their race or religion. There are also laws that protect against the use of Nazi symbols, which could extend to these salutes.

It may be argued that Victorians, including Nazi-Victorians, have a right to peaceful assembly and freedom of expression under our Victorian Charter of Human Rights. It is true that all Victorians enjoy these rights. However, it is also true that these rights need to be balanced against one another, and those rights are unlikely to permit the unlawful use of gestures that signal support for genocide.

That Victoria Police chose to protect, rather than remove, these fascist gestures in public spaces leave me feeling very uneasy. It speaks to Victoria Police’s failure to adequately pursue racial and religious vilification claims in Victoria, with less than a handful of successful prosecutions in more than twenty years. It is hard to figure how our legal system works to support a booming prison population incarcerating black women, but it has such a hard time incarcerating visible Nazis.

It once again surfaces difficult questions about the culture of police forces and the legal system. It also reinforces calls for an Independent Police Ombudsman to renew the public’s trust in policing.

The Victorian Government has committed to law reform to outlaw the use of the Nazi gesture. This falls well short of what is necessary.

This incident isn’t just about Nazism, it also highlights the lack of laws protecting the trans and gender diverse community who were the target of the rally. As Victoria’s framework for vilification protections, the Racial and Religious Tolerance Act is grossly out-of-step with the rest of Australia.

Women (both trans women and cis-gender women), gender diverse, intersex, disabled, those labelled mentally ill and other communities have no protection against vilification under Victorian laws. As Australia appears to be importing US culture-war debates, we should impress the urgency on governments to act. Implementing the recommendations from a 2021 Parliamentary Inquiry report is the obvious starting point. The report recommends, among other things, that vilification protections extend to the communities identified above.

This needs to be addressed nationally, and with a focus on the interplay of online and in-person forms of vilification. With the sacking of various human rights advisors and content moderators at Twitter, users may be more exposed to hateful content that may harm victims and radicalise potential supporters.

We should ask whether e-Safety Commissioner – a national regulator of social media platforms – powers are fit-for-purpose. If they are, we should ask whether they are being utilised where there are visible instances of hate.

For Victorians there may be hope for change. Though yet to act, the Victorian government has committed to reforming vilification laws. It should seize this moment to implement them and to build our confidence that they will be enforced.

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Three things governments could do right now:

• Create an independent Police Ombudsman to give independent oversight of Victoria Police (Victorian Government)

• Implement the 2021 anti-vilification reforms to protect trans and gender diverse Victorians from hate speech and vilification (Victorian Government)

• Inquire into what actions the eSafety Commissioner is taking to address online hate directed to trans and gender diverse people, including whether the eSafety Commissioner is utilising compliance powers (Commonwealth Government)

Note: I am not trans. I am speaking from experience having worked at the Victorian Equal Opportunity and Human Rights Commission during the Legal and Social Issues Inquiry into anti-vilification protections. I don’t speak for the Commission or any other organisation.