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The New South Wales Government has announced a review into the operation of state laws regulating public threats and inciting violence.

The review will be conducted by the former Chief Justice of the NSW Supreme Court, the Honourable Tom Bathurst AC KC who is currently the Chairperson of the NSW Law Reform Commission.

It plans to review the policy objectives and effectiveness of section 93Z of the Crimes Act 1900 (NSW) which contains the ‘offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’.

No person has been convicted under the law since its introduction in 2018.

The review will consider similar laws in other jurisdictions such as the United Kingdom, as well as any possible options for reform.

“There is no place in NSW for hate speech or incitement to violence. We live in a multicultural society, and it is vital that we have laws that protect people who come from communities all around the world and call NSW home.” said Premier of NSW Chris Minns.

It has been prompted by concerns raised by some community groups about the effectiveness of section 93Z, as well as recent procedural changes which sought to ‘streamline’ prosecutions by removing the safeguard that the Director of Public Prosecutions(‘DPP’) is required to agree to the prosecution.

In December 2023, the NSW and Federal Police discontinued investigations into alleged ‘anti-Semitic’ sermons including by a man known as ‘Brother Ismail’ on 27 October 2023 at Al Madina Dawah Centre in which he warned that the government was “pushing Muslims into a corner.”

Law enforcement stated that after reviewing relevant footage it was deemed that the sermons did not meet the criminality threshold.

This was despite the Government seeking to make the laws ‘tougher’ on 11 December 2023 by removing the safeguard that the DPP was to approve any prosecutions before they proceeded.

The Government had concerns regarding the time it takes to refer matters to the DPP and obtain approval to prosecute which could have acted as a disincentive to laying appropriate charges.

However, the requirement for DPP approval initially being introduced as a safeguard to ensure appropriate prosecutions.

“The widespread loss of life and impacts of war in the Middle East is traumatic for many families and communities. The impacts are felt deeply by many…

“This review, to be conducted by one of the State’s most respected legal minds, will be considered and thorough and help provide the community with confidence that our laws are operating effectively.” stated Minns.

The New South Wales Council for Civil Liberties has expressed concerns that the police have been given power to launch prosecutions under section 93Z, stating that the “NSW Police have not overcome entrenched hostility to some vulnerable communities.”

“The Council supports educative and human rights-based models that deal with community tensions rather than the blunt instrument of criminal law which give the police power to target vulnerable people in discriminatory ways.” it explained.

Section 93Z of the Crimes Act 1900 (NSW) criminalises intentionally or recklessly threatening or inciting violence towards another person or a group of persons, by public act.

The conduct is required to be towards another person, a group of persons, or one or more of the members of the group due to a common characteristic, namely their:

  • race (i.e., colour, nationality, descent and ethnic, ethno-religious or national origin),
  • specific religious belief or affiliation (i.e., holding or not holding a religious belief or view),
  • sexual orientation (whether towards the same sex, different sex, or both),
  • gender identity (i.e., the gender related identity, appearance, mannerisms, or characteristics of a person with or without regard to the person’s designated sex at birth),
  • intersex status (i.e., the status of having physical, hormonal, or genetic features that are neither wholly female nor wholly male, a combination or both, or neither), or
  • HIV or AIDS status.

Public act is defined as any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting, and communicating through social media and other electronic methods) to the public.

It also includes any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems, and insignia) observable by the public, as well as the distribution or dissemination of any matter to the public.

It is irrelevant whether or not, in response to the alleged offender’s public act, any person formed a state of mind or carried out any act of violence.

In the case of an individual, a maximum penalty of a $11,000 fine and/or 3 years imprisonment is applicable. For a corporation, the maximum penalty applicable is instead a $55,000 fine.

Prosecutions under this section may now be commenced by the Director of Public Prosecutions or a police officer.

Urging Violence Against Groups

Any person who intentionally urges another person or group to use force or violence against a group, and does so intending that force or violence will occur in circumstances the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion, and that use of force or violence would threaten the peace, order and good government of the Commonwealth will face a maximum penalty of up to 7 years, according to section 80.2A(1) of the Criminal Code.

If a person commits the above offence without the use of the force or violence threatening the peace, order and good government of the Commonwealth, then the maximum penalty is 5 years imprisonment, according to section 80.2A(2) of the Criminal Code.

By Poppy Morandin and Jimmy Singh.

Published on 31/01/2024

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