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Background note on section 93Z
The NSW Attorney General has asked the Law Reform Commission to review the effectiveness of section 93Z of the Crimes Act 1900 (NSW) (Crimes Act) in addressing serious racial and religious vilification.
We invite you to make a submission on issues relevant to the terms of reference for this review. Submissions are due on 19 April 2024.
This page outlines what section 93Z covers, its purpose and its history. We also note some other relevant NSW and Commonwealth offences, and the protections against vilification in the Anti-Discrimination Act 1977 (NSW) (Anti-Discrimination Act).
An overview of section 93Z
What is covered by section 93Z?
A person commits this offence if, by a public act, they intentionally or recklessly threaten or incite violence towards another person, or group of people, on any of the following grounds:
(a) the race of the other person or one or more of the members of the group,
(b) that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation,
(c) the sexual orientation of the other person or one or more of the members of the group,
(d) the gender identity of the other person or one or more of the members of the group,
(e) that the other person is, or one or more of the members of the group are, of intersex status,
(f) that the other person has, or one or more of the members of the group have, HIV or AIDS.
It is irrelevant whether the alleged offender’s assumptions or beliefs about an attribute of the other person or member of a group were correct or incorrect at the time.
How are these characteristics defined?
As defined in section 93Z:
- “race” includes colour, nationality, descent and ethnic, ethno-religious or national origin
- “religious belief or affiliation” means holding or not holding a religious belief or view
- “sexual orientation” means a person’s sexual orientation towards persons of the same sex, persons of a different sex, or persons of the same sex and persons of a different sex
- “gender identity” means the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth, and
- “intersex status” means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male.
What is a "public act"?
A “public act” includes:
- any form of communication to the public, including speaking, writing, displaying notices, playing recorded material, broadcasting and communicating through social media or other electronic methods
- any conduct observable by the public, including actions, gestures and wearing or displaying clothing, signs, flags, emblems and insignia, and
- distributing or disseminating any matter to the public.
An act may be a public act even if it occurs on private land.
What is meant by "violence"?
“Violence” is defined to include violent conduct and violence towards a person or group of persons includes violence towards the property of the person or a member of the group, respectively.
What does it mean to incite or threaten violence?
The courts have held that inciting violence means to encourage it or spur it on: Sunol v Collier (No 2). It is not necessary for a person to actually be incited to violence. The test is whether an ordinary member of the group to which the act is directed would be incited to violence.
This is reflected in section 93Z, which provides that it is irrelevant whether anyone carried out an act of violence, or formed a state of mind to do so, in response to the alleged offender’s public act.
It is also an offence to threaten violence, even if this does not reach the higher threshold of inciting violence.
What state of mind is required?
A person will only be guilty of this offence if they:
- intend to incite or threaten violence by their act, or
- know that inciting or threatening violence is a possible outcome of their act, but they do the act anyway (this is “recklessness”).
What is the maximum penalty?
For an individual, the maximum penalty is 100 penalty units ($11000) or imprisonment for 3 years, or both.
For a corporation, the maximum penalty is 500 penalty units ($55000).
Under the Criminal Procedure Act 1986 (NSW), offences against section 93Z are tried in the Local Court unless the prosecutor or accused person elects for it to be heard in a higher court, such as the District Court.
The Local Court has lower sentencing limits than the higher courts: 2 years’ imprisonment for a single offence, or 5 years for multiple offences (Criminal Procedure Act 1986 (NSW) s 267(2); Crimes (Sentencing Procedure) Act 1999 (NSW) s 53B)).
Who can commence a prosecution?
A police officer or the Director of Public Prosecutions (DPP) can commence a prosecution.
Originally, any prosecutions under section 93Z needed to be approved by the DPP. In 2018, the then Attorney General Mark Speakman SC MP said this was to ensure the offence was only prosecuted where appropriate.
This requirement was removed in December 2023. Attorney General Michael Daley MP explained there were concerns that the time taken to refer matters to the DPP and obtain approval may act as a disincentive for laying charges.
The change also made section 93Z consistent with other offences that do not have this requirement, including the offence of displaying Nazi symbols in section 93ZA.
The history and purpose of section 93Z
Section 93Z was added to the Crimes Act in 2018. It replaced four serious vilification offences that, until then, appeared in the Anti-Discrimination Act.
When it was introduced, the then Attorney General Mark Speakman SC MP explained that the new offence would, among other things:
- broaden the characteristics protected against vilification and update the language used to describe them
- provide a consistent maximum penalty: under the old offences, there were differences between maximum penalties for serious vilification of different protected groups, and
- reflect community standards about this conduct through an increased maximum penalty.
There had been no prosecutions under the old serious vilification offences at the time section 93Z was introduced.
Attorney General Speakman also said that:
- laws protecting identified groups from threats of violence are important to securing the safety of the NSW community, and
- the new offence would demonstrate that the Government does not tolerate threats of violence or incitement of violence.
The Attorney General said that the section struck the right balance between community safety and freedom of speech.
Other relevant NSW and Commonwealth offences
New South Wales
Other NSW offences might be relevant to consider when reviewing section 93Z. For instance:
| Offence | Maximum penalty |
|---|---|
| Riot: Crimes Act 1900 (NSW) s 93B | 15 years’ imprisonment |
| Affray: Crimes Act 1900 (NSW) s 93C | 10 years’ imprisonment |
| Displaying Nazi symbols: Crimes Act 1900 (NSW) s 93ZA | For an individual – 100 penalty units ($11000), 12 months’ imprisonment, or both For a corporation – 500 penalty units ($55000) |
| Stalking or intimidation with intent to cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) | 5 years’ imprisonment or 50 penalty units ($5500), or both |
| Offensive conduct: Summary Offences Act 1988 (NSW) s 4 | 6 penalty units ($660) or 3 months’ imprisonment |
| Offensive language: Summary Offences Act 1988 (NSW) s 4A | 6 penalty units ($660) |
If an offence was motivated by hatred for, or prejudice against, a group of people to which the offender believed the victim belonged, the court must take this into account when determining the appropriate sentence for the offence. This is known as an “aggravating factor” (Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(h)).
Commonwealth
Some Commonwealth offences may also be relevant to consider. For instance:
| Offence | Maximum penalty |
|---|---|
| Urging violence against groups: Criminal Code Act 1995 (Cth) s 80.2A | Where the use of force or violence would threaten the peace, order and good government of the Commonwealth – 7 years’ imprisonment In any other case – 5 years’ imprisonment |
| Urging violence against members of groups: Criminal Code Act 1995 (Cth) s 80.2B | Where the use of force or violence would threaten the peace, order and good government of the Commonwealth – 7 years’ imprisonment In any other case – 5 years’ imprisonment |
| Advocating genocide: Criminal Code Act 1995 (Cth) s 80.2D | 7 years’ imprisonment |
| Public display of prohibited Nazi symbols or giving Nazi salute: Criminal Code Act 1995 (Cth) s 80.2H | 12 months’ imprisonment |
| Using a carriage service to make a threat: Criminal Code Act 1995 (Cth) s 474.15 | Where the threat is to kill – 10 years’ imprisonment Where the threat is to cause serious harm – 7 years’ imprisonment |
| Using a carriage service to menace, harass or cause offence: Criminal Code Act 1995 (Cth) s 474.17 | 5 years’ imprisonment |
At a media conference on 13 February 2024, the Commonwealth Attorney-General announced a process to strengthen Commonwealth hate speech laws.
Protections against vilification in the Anti-Discrimination Act
The Anti-Discrimination Act protects against other forms of vilification.
Under the Anti-Discrimination Act, it is unlawful for a person to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of:
- race
- being a transgender person or persons
- homosexuality
- religious belief, affiliation or activity (or lack of religious belief, affiliation or activity), and
- having HIV/AIDS.
Unlike section 93Z, these are not criminal offences. They do not involve criminal prosecutions or penalties.
Instead, an individual alleging vilification under the Anti-Discrimination Act must make a complaint to Anti-Discrimination NSW (ADNSW).
ADNSW can help resolve complaints through conciliation, where the parties discuss the issues and try to reach an agreement. The complaint can be referred to the NSW Civil and Administrative Tribunal if it is not resolved (and in some other circumstances).
We will consider these protections, and the complaint process, in more detail in our separate review of the Anti-Discrimination Act.
Last updated:
15 Mar 2024
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