Australia is a signatory to both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on the Elimination of all forms of Racial Discrimination (ICERD). These instruments impose obligations to prohibit discrimination solely based on race, colour, sex, religion or social origin. The ICCPR also functions to protect individuals' freedom of expression, whilst acknowledging this freedom is not without limits.
While Australia's international obligations are not solely responsible for the NSW Government's decision to introduce offences intended to prohibit discrimination against individuals or groups based on special characteristics, key instruments (such as the ICCPR and ICERD) provide important social and political context to the legal background.
Section 93Z was introduced to the Crimes Act in 2018, creating an offence of publicly threatening or inciting violence on the grounds of certain characteristics held by a person or group of persons. These characteristics include a person's race, religion, sexual orientation, gender identity, intersex or HIV/AIDS status.
Section 93Z replaced four serious vilification offences contained in the Anti-Discrimination Act 1977 (NSW) (the Anti-Discrimination Act) with a single indictable offence. It created a consistent maximum penalty, and broadened the protections to include vilification relating to intersex status and religious beliefs or affiliation.
Section 93Z of the Crimes Act was introduced, in part, to address the fact that there had been no prosecutions brought under these previous offence provisions. The amending legislation also transferred responsibility for approving prosecutions from the Attorney General (which existed under the pre-existing serious racial vilification offence) to the DPP under the new s 93Z offence. This requirement was intended to act as a safeguard to ensure prosecutions for alleged offences against s 93Z of the Crimes Act were appropriate.
In December 2023, s 93Z was amended to remove the bar against commencing a prosecution without the approval of the DPP and to specify those who were permitted to commence proceedings. The change allowed prosecutions for alleged offences under s 93Z of the Crimes Act to be commenced by NSW Police. This revision was in response to concerns raised around the time taken to refer matters to the DPP to obtain approval to commence a prosecution, which was seen as a disincentive to laying appropriate charges. In support of the change, the NSW Attorney General, Michael Daley, stated that: "we want to ensure offences of this type can be prosecuted in a timely and efficient manner to ensure community safety".
We understand that NSW Police have commenced four prosecutions under s 93Z of the Crimes Act, all of which proceeded summarily and resulted in convictions in the Local Court. Two of these convictions were subsequently annulled, and another was overturned on a conviction appeal. In light of this, the NSWCCL commends the NSW Attorney General's timely review of s 93Z.
Removal of the requirement that prosecutions under s 93Z of the Crimes Act not be commenced without approval of the DPP
When s 93Z of the Crimes Act was introduced, it featured a requirement that prosecutions under this provision not be commenced without the approval of the DPP. As previously mentioned, this requirement was removed in December 2023 to enable members of NSW Police to commence prosecutions on their own volition. The amendment was rushed through Parliament without appropriate public scrutiny, or even scrutiny by the very vulnerable communities that the reforms asserted to protect.
The NSWCCL considers the consent clause provided an essential safeguard against misconceived serious vilification charges being brought by police (or private prosecutors) under s 93Z of the Crimes Act. The DPP has inherent within their functions the obligation to consider whether a prosecution would be in the public interest. This necessarily operated to balance the protection of individuals' freedom of expression against the public interest in bringing a prosecution.
Because of the sensitivity of the offence (and potential seriousness), it is appropriate to be dealt with by the ODPP in the ordinary course. There have been many criticisms of the police in the past as having been insensitive to issues of discrimination, which have no doubt been extended to vilification.
The NSWCCL is concerned that NSW Police have been given power to launch prosecutions under s 93Z in circumstances where there remain entrenched hostilities between members of the NSW Police and vulnerable minority groups.
Such concerns are reflected in the following limited recent examples (which are not intended to be exhaustive):
(a) On 23 February 2024, NSW Police Officer, Beau Lamarre-Condon, was charged with the murder of Jesse Baird and his partner, Luke Davies.
(b) On 21 December 2023, the NSW Government released the final report by the Special Commission of Inquiry into LGBTIQ hate crimes. The review observed that NSW Police had 'in significant respects' engaged with the inquiry in a way that was 'adversarial o runnecessarily defensive'.
In addition, the review commented that 'even very recently', there has been a resistance within the police to acknowledge the extent of hostility LGBTQ+ people experienced at the hands of NSW Police.
(c) The Australian Institute of Criminology reports that, between 1 July 2022 and 30 June 2023, there were 10 indigenous deaths in police custody (an increase from eight deaths in custody for the previous 12 month period).
(d) On 2 May 2019, the NSW Civil and Administrative Tribunal ordered NSW Police to publish an apology and implement racial vilification training for senior officers after a tribunal found a police training exercise in October 2017 racially vilified Palestinians and Arabs and portrayed them as potential terrorists.
Procedural impediments to the effectiveness of s 93Z of the Crimes Act
The NSWCCL considers there are a number of procedural impediments to the commencement of prosecutions under s 93Z of the Crimes Act. Relevantly, the requirement for the prosecution to prove beyond reasonable doubt that an individual 'intentionally or recklessly threatens or incites violence' sets a high standard.
This standard is necessary, however, when the weight of criminal law is deployed to set community standards. Were the legal threshold to be lowered, it will not make faith communities any safer from a perceived risk of violence or the risk of actual violence occurring. In addition, Lowering the threshold could substantially alter the fabric of our democracy.
While removing or relaxing the offence elements under s 93Z may make the offence easier to prosecute, this will have implications for the freedom of expression in NSW. The NSWCCL considers that, where legislation creates a criminal offence intended to curtail this freedom, the bar must be set very high.
The NSWCCL notes there are other avenues under the criminal law to pursue outcomes for addressing the vilification of vulnerable minority groups. For example, The Crimes Act contains a suite of alternative offences that could be employed as an alternative to s 93Z. For example:
(a)common assault;
(b)affray;
(c)threatening to destroy or damage property; and
(d)intimidation or annoyance by violence or otherwise.
In addition, where any such offence is motivated by hatred or prejudice against a group of people to which an offender believes any victim belongs, this is an aggravating factor for the purpose of sentencing.
Read our full submission here.
