NSW Targets Threats or Violence on Grounds of Sexuality, Race, Religion

Thursday 7 June 2018 @ 1.20 p.m. | Crime | Legal Research

On 5 June 2018, the NSW Government introduced the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 (NSW) ('the Bill'). The Bill proposes to create an offence of threatening or inciting violence on the grounds of race, sexual orientation, gender identity or HIV/AIDS status.

Main Amendments

The Bill proposes to make the following amendments:

  • Insertion of a new section into the Crimes Act 1900 (NSW) to prohibit a person from intentionally or recklessly threatening or inciting violence on various  grounds such as race, sexual orientation or religious affiliation;
  • Amendment of the Anti-Discrimination Act 1977 (NSW) for the purpose of removing offences related to racial vilification, transgender vilification, homosexual vilification and HIV/AIDS status vilification;
  • Amendment of the Criminal Procedure Act 1986 (NSW)  to provide that the purposed new indictable offence of publicly threatening or inciting violence is o be dealt with summarily, unless the prosecutor or person charged elects otherwise.

In his second reading speech, Attorney-General Mark Speakman stated that the Bill reflected community standards and was based on the need to strike a balance between maintaining freedom of expression and prevention of public threats:

‘It will reflect community standards through an increased maximum penalty. The bill will also clarify that it is not necessary to adduce evidence of the state of mind of any other person apart from the accused or that any other person has acted as a result of the accused's alleged act. The new offence will be investigated by the NSW Police Force and require the approval of the Director of Public Prosecutions to commence a prosecution. The requirement for the director's consent will provide a safeguard to ensure that the offence is only prosecuted where appropriate, in accordance with the Prosecution Guidelines. Importantly, the amendments strike a careful balance between preventing public threats and acts of violence, and facilitating freedom of expression in New South Wales. The bill follows extensive consultation on and reviews of New South Wales' serious vilification laws.’

Media Response

The organisation Keep Australia Safe was reported by The Guardian Australia as welcoming the Bill, stating:

‘The government has drawn a very important line in the sand, and this is a great day for the residents of NSW.’

NSW Shadow Attorney-general Paul Lynch also welcomed the announcement. He is quoted by The Guardian Australia as saying:

‘It has been five years in the waiting but I am pleased that the state government is finally adopting our position. The community has waited far too long for this day and it is shameful that the government has been so inactive on this issue for so long.’

In a media release issued by the NSW Department of Justice, Attorney-General Speakman noted that the proposed changes would also have the effect of strengthening police powers:

‘Our new laws will boost police powers allowing them to target offenders and better protect a broader range of people, including those belonging to religious groups.’

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Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 (NSW), explanatory memorandum and second reading speech, as published on TimeBase LawOne.

[media release] NSW Department of Justice, 'New Laws to Target Incitement of Violence,' 5 June 2018.

Christopher Knaus, 'Tougher race hate laws for NSW as government reverses position again,' The Guardian Australia, 5 June 2018. 

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