Under Section 93ZAA of the Crimes Act 1900 (NSW), it is an offence to publicly incite hatred on the grounds of race.

Elements

A person commits an offence if:

• through a public act, they intentionally incite hatred towards another person or a group of people on the grounds of race, and
• the public act would cause a reasonable person who was the target of the incitement of hatred, or a reasonable person who was a member of a group of people who was the target of the incitement of hatred, to fear harassment, intimidation, violence, or fear for the reasonable person’s safety.

However, subsection (1) of the section does not apply to an act that consists only of directly quoting from, or otherwise referencing a religious text for the purpose of religious teaching or discussion.

When determining whether the alleged offender has committed an offence under this section, it is irrelevant:

• whether the alleged offender’s assumptions or beliefs about the race of another person or a member of a group of people were correct or incorrect when the offence is alleged to have been committed, or
• whether or not any person formed a state of mind or carried out an act of hatred in response to the alleged offender’s public act.

Prosecutions for an offence under this section may only be commenced by the Director of Public Prosecutions or a police officer.

Under this section, public act and race have the same meanings as those defined in section 93Z.

Penalties

The maximum penalty for this offence is 100 penalty units or imprisonment for up to 2 years, or both for an individual.

If the offender is a corporation, the maximum penalty is 500 penalty units.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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