Individuals who incite or threaten violence based on race, religion, sexuality or various other grounds risk a three-year jail sentence under new NSW laws.
The Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW)1 (Amending Act) was passed on 20 June 2018. It consists of two major parts.
The first part of the Amending Act inserts a new section 93Z into the Crimes Act 1900 (NSW). Section 93Z prohibits a person, intentionally or recklessly, by a public act, threatening or inciting violence towards another person or a group of persons on the grounds of the race, religious belief or affiliation, sexual orientation, gender identity, intersex status or HIV/AIDS status.
A ‘public act’ includes:
- any form of communication (including online – for example on social media) to the public;
- any conduct observable by the public; and
- the distribution or dissemination of any matter to the public.
An act will be a public act even if it occurs on private land.
In deciding whether an alleged offender has committed an offence, it is irrelevant whether the alleged offender’s assumptions or beliefs about an attribute of another person(s) were correct or incorrect – in other words, the fact that someone’s prejudice is totally misguided, or that they genuinely hold a view that is simply wrong, is no defence.
In deciding whether an alleged offender has incited violence, it is irrelevant whether or not, in response to their public act, any other person actually carried out any act of violence. The threat of violence is enough.
Contravention of these provisions is an indictable offence carrying a maximum penalty of 100 penalty units ($11,000) or imprisonment for 3 years (or both) for individuals. There is also a penalty for corporations of 500 penalty units ($55,000).
The second part of the Amending Act abolishes the existing serious vilification offences in the Anti-Discrimination Act 1977 (NSW) – which were widely acknowledged to be ineffective – because they have been replaced by the new provisions of the Crimes Act. These offences, under which there has never been a prosecution, carried only a maximum sentence of six months. The amendments do not affect the existing race, transgender, homosexual or HIV/AIDS status vilification provisions of the Anti-Discrimination Act.
The Amending Act is a clear message that the State of New South Wales will no longer tolerate the risk to community safety that is inherent in incitement or threats of violence against historically targeted groups. It is also clear that any form of online communication that incites or threatens violence will now be under higher scrutiny and carry heavier consequences. Employees engaged in online bullying may be liable under the new provisions and, if they engage in that activity while at work or in connection with work, there may also be reputational repercussions for the employer.
Accordingly, this is a good time for employers and educational institutions to review, and perhaps strengthen, their discrimination, bullying and harassment policies.
If you would like us to review your policies, or seek further information about the Amending Act, please contact a member of our Employment and Safety team.
1 At the time of writing, the Amending Act has not yet been published and available to the public for reading. However, a copy of the Bill, which contains the same content as the Amending Act (as it was passed without any amendments), is available here: https://www.parliament.nsw.gov.au/bill/files/3524/First%20Print.pdf