Law and Penalties for Inciting or Urging Violence in Australia

By Poppy Morandin and Jimmy Singh.

 

Images of Victorian Police handcuffing a pregnant woman have sparked outrage, after she was arrested and charged with incitement over a Facebook post.

Video of the arrest was posted online and showcases the pregnant young mother, 28-year-old Zoe Buhler, in her home, in her pyjamas and arguing with officers.

The woman’s husband and two kids are seen present as the ordeal unfolds.

After informing her she is under arrest for incitement, the woman is audibly confused questioning: “incitement? Incitement for what, excuse me what on earth?” before informing the officer that she has an ultrasound in an hour.

The alleged Facebook post is connected to “Freedom Day” protests in which Australians, predominately Victorians, are encouraged to protest against restrictions in place due to COVID-19.

There is set to be a series of planned protests across the country, which have been labelled “fundamentally wrong, irresponsible and unsafe,” by Daniel Andrews, Victorian Premier.

When told the incitement charge follows her alleged advocacy of the protests on Facebook, the woman replies: “I wasn’t breaking any laws by doing that,” to the officer.

“I’m happy to delete the post, this is ridiculous…My two kids are watching, I have an ultrasound in an hour, I’m happy to delete the post.” she continued.

“You’ve already committed the offence, I’m not going to argue,” stated the officer.

Despite her pleas the officers continued with the arrest and seized computers and mobile phones, and even the device the arrest was filmed on.

“The optics of arresting a pregnant female are never going to look good, but we can’t discriminate in holding people to account,” said Assistant Commissioner of the Victorian Police, Luke Cornelius.

Several other individuals have been arrested in connection with the protests for incitement, including a 76-year-old man.

Mrs Buhler has stated that her reasoning behind her advocacy for the protests was that she was fighting for ‘human rights’, has “lost her job”, and was “sick of the watching the economy collapse”.

She has even stated that she is “sorry about her bimbo moment,” for not understanding that she was not allowed to do so.

In Victoria, pursuant to section 321G of Victoria’s Crimes Act, where a person incites any other person to pursue conduct that will involve the commission of an offence, if it is acted on in accordance with the intention of the inciter, the inciter is guilty of an offence.

Ruth Barson, Legal Director of the Human Rights Law Centre has stated that: “Handcuffing a pregnant, remorseful woman who poses no threat, in her home in front of her kids, is plainly wrong. It is an extraordinarily unjustified and heavy-handed response by police who have a duty to act reasonably and responsibly.”

“In this moment when Victoria police have been given unprecedented powers over our civil liberties, they must be held accountable when they overstep the line. The footage we’ve seen today is the stuff of a police state and should be a wakeup call for the Andrews Government.” she continued.

There has been considerable outrage, especially on social media, with individuals commenting: “Felt ashamed to be Australian when I found out about arresting a pregnant woman in her own home. What have we become! Police clearly over-stepped the mark here. Accountability!”

However, others have sought to label the outrage as “paternalistic” and that her being a pregnant woman was irrelevant to her actions, with human rights lawyer, Bashi Hazzard, adding: “let’s do a headcount on how many indigenous pregnant mums were arrested for not paying parking fines in the last 5 years without anyone so much as blinking an eye.”

Incitement here includes to stimulate, rouse, urge, stir up or spur. There is a clear distinction between just talking about something and encouraging a person to actually do it.

Got a question? Get in touch with our Sydney, Parramatta or Blacktown Criminal lawyers today.

Law & Penalty for Publicly Inciting or Threatening Violence in NSW

Section 93Z of the Crimes Act 1900 (NSW) prohibits anyone from making public threats or incitement of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status.

This attracts a penalty of up to 3-years jail or $11,000 fine, or both to anyone who, by a public act, intentionally or recklessly threatens or incites violence towards another person or group of persons on any of the above mentioned grounds.

When the court determines whether the alleged offender is guilty of this, it’s not relevant whether the alleged offender’s assumptions or beliefs about an attribute of another person or member of a group is correct or false at the time of the alleged offence.

Equally, when considering whether it was recklessly or intentionally incited, it doesn’t matter whether or not as a result, another person ended up forming a state of mind or carried out a violent act.

Here, a “public act” includes any form of communication to the public. It also includes any conduct such as actions and gestures and the wearing or display of clothing, signs, flags emblems and insignia observable by the public.

A public act is also held to include distribution of dissemination of any matter to the public.

Law and Penalties Across Australia for Urging Violence Against Groups

The maximum penalty is 5-years imprisonment for a person who intentionally urges another person or group to use force or violence against a group, where he/she does so intending that force or violence will occur, and the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion (section 80.2A(2) Commonwealth Criminal Code).

Where the above occurs where the use of force or violence would also threaten the peace, order and good government of the Commonwealth, the maximum penalty is 7-years jail.

A maximum 5-years jail sentence is attached to the offence of intentionally urging another person or a group to use force or violence against a person, and where he/she does this intending that force or violence will occur and does so because of his/her belief that the other person targeted is a member of a group in circumstances that the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion. (section 80.2B(2) Commonwealth Criminal Code).

Where the above occurs where the use of force or violence would also threaten the peace, order and good government of the Commonwealth, the maximum penalty is 7-years jail.

Generally, under the Commonwealth Criminal Code it is a crime to urge the commission of an offence.

A person can still be guilty even if committing the offence incited is not possible.

The following maximum penalties apply:

  • 10-years jail if the offence incited carries life imprisonment.
  • 7-years jail if the offence incited carries 14-years or more imprisonment, but less than life imprisonment.
  • 5-years jail if the offence incited carries 10-years or more imprisonment, but less than 14-years.
  • 3-years jail or the maximum term of imprisonment for the offence incited (whichever is the lesser).

The penalty units equal to the maximum penalty units applicable to the offence incited if the offence incited does not carry an imprisonment punishment.

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