Neo-Nazi Jacob Hersant found to have intentionally performed banned salute, loses legal challenge to law

Victorian neo-Nazi leader Jacob Hersant has lost his challenge to the constitutional validity of laws banning the public display of Nazi salutes. Hersant, 26, performed the banned salute outside the County Court more than two years ago. It came after he was sentenced on a violent disorder charge for participating in an attack on hikers with other members of the Australian neo-Nazi group, the National Socialist Network, in May 2021. In front of media cameras and journalists, he threw his right arm in the air and stated “heil Hitler”, before remarking; “Oh, nearly did it, it’s illegal now isn’t it”. The act came days after Victorian laws banning the public display of Nazi symbols and gestures came into effect and, in October last year, Hersant was the first person to be convicted of performing the salute. He was sentenced to one month jail by magistrate Brett Sonnet, but has remained on bail after appealing his conviction and sentence. Through his lawyer, Hersant argued his action didn’t meet the criteria of a Nazi salute and, further, that the law banning it was invalid. On Friday afternoon, Judge Simon Moglia handed down his judgment on the appeal, finding Hersant intentionally performed the banned Nazi salute. He also struck down the legal challenge to the Victorian laws, after defence lawyer Tim Smartt argued the laws were unconstitutional because they infringed his implied freedom of political communication. Judge Moglia found Hersant’s implied freedom of political communication had been “effectively burdened” by the prohibition because the salute was political in nature, but that the law was legally valid. “In all the circumstances as I’ve set out, I’m satisfied beyond reasonable doubt Mr Hersant intentionally performed a Nazi salute,” he said. “I find the accused guilty of the offence charged.” Judge Moglia further stated Hersant’s salute occurred in the context of him having been shown “leniency” for the violent disorder charge. “It would seem to me arguable that it was contemptuous, in the legal sense,” he said. Hersant was released back into the community on bail and will return to court next year for a pre-sentence hearing. Mr Smartt raised a number of matters he would seek to rely on for mitigation, including that his client was caring for his sick in-laws and had a one-year-old child. “Mr Hersant is not the first young person to engage in extremist behaviour and he won’t be the last,” he said. “The community is best served when Mr Hersant isn’t defined by his beliefs and is free to participate in the community.” Mr Smartt said he would argue a one month jail sentence for the “nonviolent act” was inconsistent with other sentences imposed for “far more serious offences”, such as domestic violence offences. Outside of court, Hersant said he did not want to comment on the case, but stated: “I am a Nazi”.