Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW)

An Act to amend the Crimes Act 1900 to create an offence of threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status; make consequential amendments to the Anti-Discrimination Act 1977; and for related purposes.

1Name of Act

This Act is the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1Amendment of Crimes Act 1900 No 40

Insert after Division 7:

Division 8Public threats or incitement of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status93ZOffence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status(1)

A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

• (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.

Maximum penalty:

• (a)

  in the case of an individual—100 penalty units or imprisonment for 3 years (or both), or

• (b)

  in the case of a corporation—500 penalty units.

(2)

In determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender’s assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1) (a)–(f) were correct or incorrect at the time that the offence is alleged to have been committed.

(3)

In determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender’s public act, any person formed a state of mind or carried out any act of violence.

(4)

A prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

(5)

In this section:

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.

intersex status means the status of having physical, hormonal or genetic features that are:

• (a)

  neither wholly female nor wholly male, or

• (b)

  a combination of female and male, or

• (c)

  neither female nor male.

public act includes:

• (a)

  any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and

• (b)

  any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and

• (c)

  the distribution or dissemination of any matter to the public.

For the avoidance of doubt, an act may be a public act even if it occurs on private land.

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:

• (a)

  persons of the same sex, or

• (b)

  persons of a different sex, or

• (c)

  persons of the same sex and persons of a different sex.

violence includes violent conduct and violence towards a person or a group of persons includes violence towards property of the person or a member of the group, respectively.

Schedule 2Amendment of Anti-Discrimination Act 1977 No 48[1]Section 20D Offence of serious racial vilification

Omit the section.

[2]Section 38T Offence of serious transgender vilification

Omit the section.

[3]Section 49ZTA Offence of serious homosexual vilification

Omit the section.

[4]Section 49ZXC Offence of serious HIV/AIDS vilification

Omit the section.

[5]Section 89B Acceptance or declining of complaints by the President

Omit “(not including section 20D, 38T, 49ZTA or 49ZXC)” from section 89B (2) (c).

[6]Section 90A Investigation of vilification complaints

Omit “, or alleges an offence under section 20D, 38T, 49ZTA or 49ZXC” from section 90A (1).

[7]Section 91 Prosecution for serious vilification

Omit the section.

[8]Section 93A Referral of complaints to Tribunal at requirement of complainant

Omit “, 91 (4)” from section 93A (1).

[9]Section 96 Leave of Tribunal required for inquiry into certain matters

Omit “, but not including a complaint to which section 91 (2) applies,” from section 96 (1).

Schedule 3Amendment of Criminal Procedure Act 1986 No 209

Insert after clause 10C of Part 3 of Table 1:

10CAPublicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status

An offence under section 93Z of the Crimes Act 1900.