R v Kahtan ABDUL-WAHAB No 3

[2025] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation:

R v Kahtan ABDUL-WAHAB No 3 [2025] NSWLC 7

Hearing dates:

18, 19 August 2025 and 29 October 2025

Date of orders:

29 October 2025

Decision date:

29 October 2025

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

See orders at [53]-[54]

Catchwords:

Constitutional law – whether State criminal law is invalid – implied freedom of communication about governmental or political matters – where s 93ZA(1) Crimes Act (NSW) 1900 prohibits the public display of a Nazi symbol without reasonable excuse – where defendant during a protest placed a placard on a bin in Hyde Park displaying a Nazi flag superimposed over the flag of Israel with the surrounding words “The irony of becoming what you once hated” – whether s 93ZA(1) burdens the implied freedom of political communication – whether the purpose of the s 93ZA(1) is a legitimate purpose and compatible with the maintenance of constitutionally prescribed system of representative and responsible government – whether s 93ZA reasonably appropriate and adapted to that purpose – whether s 93ZA(1) suitable, necessary and adequate in balance

Legislation Cited:

Constitution of the Commonwealth, ss 7, 24,

Crimes Act 1900 (NSW), s 93ZA(1) (rep)

Crimes Amendment (Display of Nazi Symbols) Bill 2021

Criminal Code (Cth), 80.2H(10(f)

Evidence Act, (1995) s 191

Judiciary Act 1903 (Cth), 40, 78B

Summary Offences Act (Vic), 1966,

s 41K(2B)

Cases Cited:

Babet v Commonwealth of Australia [2025] HCA 21

Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1

Clubb v Edwards [2019] HCA 11;(2019) 267 CLR 171

Farmer v Minister for Home Affairs [2025] HCA 38

Lambert v Weichelt (1954) 28 ALJ 282

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Lees v State of New South Wales [2025] NSWSC 1209

Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579

LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

R v Kahtan ABDUL-WAHAB No 1

R v Kahtan ABDUL-WAHAB No 2

Ravbar v Commonwealth of Australia [2025] HCA 25

Taikato v The Queen (1996) 186 CLR 454

Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508

Texts Cited:

Legislative Assembly, Parliamentary Debates, Hansard 21 June 2022 at 9076.

Report by the Legislative Council Standing Committee on Social Issues (Report No 60 of February 2022)

Statement of Public Interest Crimes Amendment (Prohibition on Display of Nazi Symbols) Bill 2022

Category:

Principal judgment

Parties:

New South Wales Police Force (Prosecution)
Kahtan ABDUL-WAHAB (Defendant)

Representation:

Counsel: P Singleton (Prosecution)

F Graham with M Hawila (Defendant)

Solicitors: Majed Kheir Jr, Kheir Lawyers (defendant)

Intervener

M G Sexton SC with C Andrenotti for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW)

File Number(s):

2024/372546

Publication restriction:

No

Judgment

1. This is a constitutional challenge to a criminal law enacted by the Parliament of New South Wales. The defendant seeks a declaration that the State law – section 93ZA Crimes Act (NSW) 1900 (the impugned law) – is invalid and beyond the power of the Parliament because it infringes the implied freedom of communication about governmental or political matters in the Commonwealth Constitution. Alternatively, the defendant seeks the court to limit the application of the law by applying the reasoning of Gleeson CJ in the High Court decision of Coleman v Power (2004) 220 CLR 1 at [15].

2. The implied freedom does not confer rights on individuals. It is a constraint upon the exercise of legislative power to burden or impair the freedom of political communication.

3. Section 78B(1) of the Judiciary Act 1903 (Cth) provides that where a “cause pending” in a State court involves a constitutional issue, the court must not proceed unless notices have been given to the Commonwealth and States’ Attorneys-General, and a reasonable time for consideration has elapsed. The defendant has issued s 78B notices in this case.

4. The defendant was charged that on 6 October 2024 he knowingly displayed by a public act a Nazi symbol without reasonable excuse under 93ZA Crimes Act (NSW) 1900. The offence provision has been amended since the incident but at the time of the alleged offence it provided as follows:

93ZA Offence of displaying Nazi symbols

(1) A person who knowingly displays, by public act and without reasonable excuse, a Nazi symbol commits an offence.

Maximum penalty —

(a) for an individual—100 penalty units or imprisonment for 12 months, or both, or (b) for a corporation — 500 penalty units.

(2) For subsection (1), the display of a swastika in connection with Buddhism, Hinduism or Jainism does not constitute the display of a Nazi symbol.

(3) Also, without limiting subsection (1), a reasonable excuse includes the display of a Nazi symbol done reasonably and in good faith —

(a) for an academic, artistic or educational purpose, or

(b) for another purpose in the public interest.

(4) In this section —"public act" has the same meaning as in section 93Z.

The course of proceedings

5. Appendix A consists of the agreed facts (with one image partially obscured for publication) admitted as Exhibit 1 in the criminal hearing. It is an agreed fact pursuant to s 191 of the Evidence Act that during a protest the defendant placed a placard on a bin in Hyde Park displaying a Nazi flag (known as the Nazi Hakenkreuz) superimposed over the flag of Israel with the surrounding words “The irony of becoming what you once hated”. Following a criminal hearing the Court held that the defendant had met his evidentiary burden to raise a reasonable excuse. However, given the purpose of the law, and having regard to the particular circumstances of the case the prosecution had negatived the excuse beyond reasonable doubt. See R v Kahtan ABDUL-WAHAB No 2. The remaining constitutional issue was not removed to the High Court by any of the parties under s 40 of the Judiciary Act (Cth) 1939. Therefore it is necessary for the court to decide the constitutional question after the defended hearing because, in the words of Dixon CJ in Lambert v Weichelt (1954) 28 ALJ 282 (speaking for the Court):

" … there exists a state of facts which makes it necessary to decide such a [constitutional] question in order to do justice in the given case …."

6. The defendant's guilt or innocence cannot be determined until the court decides the constitutional issue.

Implied freedom of political communication

7. In the unanimous decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561 the High Court held that freedom of communication on matters of government and politics is an indispensable incident of the system of representative government. The Commonwealth Constitution creates under sections 7 and 24 the system of representative government by requiring that members of the House of Representatives and Senate shall be “directly chosen by the people”. Sections 7 and 24 and related sections protect freedom of communication which enables people to exercise a free and informed choice as electors. Gageler CJ, Gordon and Beech-Jones JJ described the “system” in Farmer v Minister for Home Affairs [2025] HCA 38 at [36]:

“…a system in which electors are able to exercise a free and informed choice when choosing their representatives and, for them to be able to do so, a system in which there is a free flow of political communication.

8. Sections 7 and 24 preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

9. Since Lange’s case there have been thirty-one decisions where the High Court has considered the implied freedom of political communication: see Ravbar v Commonwealth of Australia [2025] HCA 25 per Gageler CJ at [23] plus Farmer v Minister for Home Affairs [2025] HCA 38. As a lower court this is not the occasion to embark upon an extensive analysis of the decision of Lange or these cases in which the decision has been debated, explained and applied. The task of the court is to ask and answer the questions set out Lange having regard to recent statements by the High Court.

10. A succinct exposition of the questions is set out by Gageler J (as he was then) in Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 at [156]:

The result is to restate the analytical framework for determining whether a Commonwealth, State or Territory law contravenes the implied freedom of political communication, set out in Lange and refined in Coleman, in terms of three questions. They are to the following effect:

1. Does the law effectively burden freedom of political communication?

2. Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?

3. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

If the first question is answered "yes", and if either the second question or the third question is answered "no", the law is invalid. [emphasis added]

11. Lange was a unanimous decision and has never been re-opened by the High Court. However what has been described as a “tool of analysis” of “structured proportionality” has emerged regarding the third question of whether the law is “reasonably appropriate and adapted”. Structured proportionality was explained in McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 by French CJ, Kiefel, Bell and Keane JJ at [2]:

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision [fn 6 Unions NSW v New South Wales [2013] HCA 58; (2013) 252 CLR 530 at 558-559 [55]- [56]];

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be "no" and the measure will exceed the implied limitation on legislative power.

12. There has been a lively debate within the High Court as to whether structured proportionality is merely a tool of analysis and a way of organising reasons or a binding doctrine which must be applied in every case. See LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 Kiefel CJ, Keane and Gleeson JJ at [48]; Babet v Commonwealth of Australia [2025] HCA 21 Gageler CJ and Jagot J at [49]; Gordon J and Beech-Jones J agreeing. In Ravbar v Commonwealth of Australia [2025] HCA 25 Beech-Jones J said at [427]:

I will apply structured proportionality as a "tool of analysis" and accordingly address suitability, necessity and adequacy. However, at least in this case an analysis of all those criteria reduces to the same point.

13. But in Babet v Commonwealth of Australia Edelman J at [176] and Steward J at [210]-[211] forcefully disagreed with the proposition that structured proportionality is merely a tool of analysis. Their Honours separately argued the doctrine is binding and must be applied in every case until it is overruled.

14. It is only necessary for the Local Court to record these disagreements and note that this doctrinal difference is a matter for further clarification by the High Court. For prudence the court will apply question 3 as framed in Lange and also using “structured proportionality”. The Solicitor-General on behalf of the Attorney- General submitted that the answer to question 3 in Lange and the application of “structured proportionality” yields the same result and there is no substantive difference.

Does the law effectively burden freedom of political communication?

15. It is uncontroversial in this case that the first question is answered in the affirmative. For this question the Court must consider whether the law “puts some limitation on, the making or the content of political communications”: Farmer v Minister for Home Affairs [2025] HCA 38 per Gageler CJ, Gordon and Beech Jones JJ at [40]; Gleeson J at [194]. The court considers how the law’s operation or effect impacts upon the free flow of communication on governmental or political matters generally. It is clear in this case that the nature of the limitation is on political communication. Political controversy includes as Gleeson J explained in Farmer v Minister for Home Affairs [2025] HCA 38 at [182]:

‘…matters of international political or social controversy that may invite voters to think about the government of Australia in a way that could affect their electoral choices’

16. The conflict in Gaza and the allegation of genocide by Israel by parts of the international community is clearly a matter of international political controversy. Indeed it is not in dispute that the defendant was, inter alia, making a political point by the display of the Nazi symbol. The defendant also submitted that the subjects of political and governmental communication include as McHugh J stated in Coleman v Power (2004) 220 CLR 1 at [80] “activities of the Executive arm of government”. In this case the defendant further argues that this may include providing political, financial or military support to Israel. It is not in dispute that the conduct of the defendant is a political communication as that term is understood for the purposes of the implied freedom. Although all parties accepted that the impugned law burdens the freedom of political communication there was a significant disagreement concerning the degree of the burden.

17. The Attorney-General argued that the burden is only slight because the impugned law only applies to the display of Nazi symbols in public. Further, that in assessing the burden the observation of Kiefel CJ, Keane and Gleeson JJ in LibertyWorks Inc v The Commonwealth (2021) 274 CLR 1 at [64] is relevant. The Court must examine “what political communication is not affected”. The Attorney-General submitted that people are still free to express views in relation to Nazi ideology or how it may have political relevance but not by knowingly displaying Nazi symbols. The law does not criminalise peaceful protest but only the display of Nazi symbols.

18. The Attorney-General amplified the fact that the impugned law has a reasonable excuse exception which can include where the display is done reasonably and in good faith, for an academic, artistic or an educational purpose, or for another purpose in the public interest. The non-exhaustive reasonable excuse exception has the effect that the burden on political communication is slight. The Attorney-General submitted that the characterisation by the defendant of the burden being considerable overstates the effect of the impugned provision on political communication and does not have proper regard to the operation or the effect of the law.

19. Mr Singleton for the prosecution adopted the submissions of the Attorney-General and similarly submitted that the burden was slight. People are still free to equate Nazi Germany with Israel but the communication cannot be expressed by displaying a Nazi symbol. He described this as a “narrower and slighter burden”. It is not a total ban on expressing the opinion.

20. Ms Graham submitted on behalf of the defendant that the burden in the present case is direct and substantial. The definition of public act in s 93Z is broad. The impugned law effectively bans the public use of Nazi symbols, criminalises peaceful protest and voices that wish to use symbols to effectively and potently communicate anti-war, anti-genocide and anti-fascism. The impugned law has, according to the defendant, “a very chilling effect on political speech”. This is because symbols are an important communicative power of political expression. The nature of the burden is a penalty by way of conviction, a criminal record, potential imprisonment and/or substantial financial penalty. There is also risk of arrest, or a move on direction by police to stop engaging in speech acts by displaying a sign in circumstances where there is minimal or zero interference with amenity or security. The nature of the burden is essentially a complete ban on the use of a symbol for any type of political communication. All this requires a strict or intense degree of judicial scrutiny at the justification stage.

21. The court does not accept that the burden on the freedom of political communication is substantial or that the impugned law has a very chilling effect on free speech. In short it does not accept the “nature and intensity” (Brown v Tasmania per Gageler J at [146]) advocated by the defendant. The impugned law is directed at specific historical symbols. It is worth repeating people are still free to express an opinion in many ways that the contemporary conduct of Israel should be equated Nazi Germany. However if the communication involves displaying a Nazi symbol in public, then the conduct is assessed in light of the purposes of the impugned law. The defendant’s submission about the nature and intensity of the burden arguably overstates the importance of Nazi symbols in political communication in Australia.

22. So far as the onus of proof for the impugned law is concerned the court earlier ruled that an accused is not required to prove a reasonable excuse (cf offence provision in Taikato v The Queen (1996) 186 CLR 454 per Kirby J at 486) but only has an evidential onus to raise any reasonable excuse. See R v Kahtan ABDUL-WAHAB No 1. The defendant’s written submissions at [82] state that the burden lies on an accused to prove a reasonable excuse. This is a misinterpretation of the onus and standard of proof of impugned law. Further, the impugned law has several reasonable excuse exceptions - academic, artistic, educational or for a purpose in the public interest. This is a non-exhaustive list by the use of the word “includes” in s 93ZA(3). The reasonable excuse exception does not refer to a political purpose. This however does not mean a political purpose could never be relied upon as a reasonable excuse. It would depend on the circumstances of the case assessed against the purpose of the provision - a protective purpose of protecting those harmed by the display of Nazi symbols. It involves carefully applying the decision of Taikato v The Queen (1996) 186 CLR 454.

23. The defendant’s submissions were premised on an erroneous view of the purpose of the law as being limited to the promotion of Nazi ideology. They overstate the burden on political communication. The court accepts the submissions of the Attorney-General that the burden on political communication is slight.

Is the purpose of the s 93ZA(1) a legitimate purpose and compatible with the maintenance of constitutionally prescribed system of representative and responsible government?

24. This question requires the Court in the first instance to identify the object or purpose of the law. It requires an examination of what the law is designed to achieve or what mischief the law is designed to address with reference to extrinsic materials and the legislative history: Farmer v Minister for Home Affairs at [54]. This includes examining the text and the context of the impugned law and the parliamentary proceedings that preceded the enactment of the law.

25. The court was required to apply Taikato v The Queen (1996) 186 CLR 454 at 464 and ascertain the purpose of the offence provision in determining whether the defendant had a reasonable excuse: R v Kahtan ABDUL-WAHAB No 2. The Court held that the provision is found Part 3A of the Crimes Act which is concerned with public order; it is directed at prohibiting the promotion of Nazi ideology and also to preventing distress and offence caused by the public display of Nazi symbols.

24. The Attorney-General submitted that the fact that the impugned law is found in Part 3A headed “Offences relating to public order”, picks up the definition of public act in s 93Z and is directed to the public display of Nazi symbols all indicates that the purpose of the law concerns public order. The Attorney-General relied upon the judgment of Gleeson CJ in Coleman v Power (2004) 220 CLR 1 to articulate the object of public order legislation as being related to the concept of public amenity. Gleeson CJ said at [32]:

Legislation creating public order offences provides a good example of the reason for this difference in functions. The object of such legislation is generally the same: the preservation of order in public places in the interests of the amenity and security of citizens, and so that they may exercise, without undue disturbance, the rights and freedoms involved in the use and enjoyment of such places. The right of one person to ventilate personal grievances may collide with the right of others to a peaceful enjoyment of public space.

[Emphasis added]

27. The Attorney-General submitted that the law is directed to the display of Nazi symbols to the public. Display of Nazi symbols without a reasonable excuse is apt to cause offence and distress to citizens who were persecuted by the Nazi regime and for them to not feel safe in public places. Or in words of Gleeson CJ in Coleman v Power above to undermine the “amenity and security of citizens”.

28. The Attorney-General referred to extrinsic materials and the legislative history of the impugned law. There was a Private Members Bill titled the Crimes Amendment (Display of Nazi Symbols) Bill 2021 well before the Bill introducing the impugned law. That Bill was the subject of a Report by the Legislative Council Standing Committee on Social Issues (Report No 60 of February 2022). The Report recognised that the purpose of the Private Members Bill was to protect individuals and communities who are hurt, traumatised and offended by the display of Nazi symbols; to address right wing extremism; and to foster respect for diversity and multiculturalism. When the impugned law was introduced (Crimes Amendment (Prohibition on Display of Nazi Symbols) Bill 2022) the government issued a Statement of Public Interest for the Bill. That Statement referred to “careful consideration by the Government of [the] report” and made explicit reference to the Report’s “reasons” for criminalising the display of Nazi symbols including “To protect individuals from hateful conduct”: Statement of Public Interest Crimes Amendment (Prohibition on Display of Nazi Symbols) Bill 2022.

29. The Attorney-General also relies on the Second Reading Speech of The Honourable Gabrielle Upton MLA introducing the Bill for the impugned law where she referred to the protective purpose because of the harm to the Jewish community and other groups persecuted by the Nazi regime and “the hatred and bigotry that Nazi symbols invoke and inspire”. Legislative Assembly, Parliamentary Debates, Hansard 21 June 2022 at 9076.

30. The Attorney-General submitted that the purpose of the provision concerned preventing the adverse effects on public order by the public display of Nazi symbols and the distress caused - particularly the inherent capacity of Nazi symbols to cause distress. The impugned law is focussed on the harmful effects of the public display of Nazi symbols and not on the intention of the person engaging in the display. This purpose of the law is legitimate and compatible with the maintenance of constitutionally prescribed system of representative and responsible government. This is because Nazi symbols cause offence and distress by referring to a historical regime which was committed to dismantling liberty and democracy. The impugned law according to the Attorney-General enhances the constitutionally prescribed system of representative and responsible government.

31. The defendant submitted that the law had a more limited purpose of being directed to prohibiting the promotion of hateful or Nazi ideology and the incitement of hateful behaviour on the basis of particular characteristics by the public use of a Nazi symbol. In short it is not concerned with the mere object display of a Nazi symbol. The defendant submitted that having regard to the text and context, including the extrinsic material and the principles of legality, it appears that the particular mischief sought to be addressed by s 93ZA(1) is the disturbance of public order brought about by the promotion of hateful or Nazi ideology to the public or by the incitement of hatred or discrimination on the grounds of characteristics like race or religion in public or towards any member of the public by the public use of a Nazi symbol.

32. The court has already made clear that it does not accept the submission of the defendant. It is clear from the text, context and extrinsic material that the purpose of the impugned law is broader and, in the terms, described by the Attorney General. In that respect the submissions by the Attorney-General are accepted. The impugned law has a protective purpose. The public order envisaged by Parliament is one where Nazi symbols are not displayed because they are considered to be offensive and for what they represented at the time, but also the distress to people who were victims of the Nazis before and during World War II and their descendants. The object of the impugned law being the preservation of order in public places in the interests of the amenity of citizens is a legitimate object. The second question is answered in the affirmative.

Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

33. Both the Attorney-General and the defendant submitted on the structured proportionality criteria.

Suitability

34. The Attorney-General submitted that the law is suitable because it has a rational connection to the purpose – the means for which it provides are capable of realising the purpose – that is, the creation of a criminal offence to prohibit the harmful effects of the public display of Nazi symbols where the purpose of the law is to prevent distress caused by the display of Nazi symbols. The defendant accepted that the impugned law is suitable in the sense it is capable of achieving its purpose but only if the purpose was limited to the promotion of Nazi ideology.

Necessary

35. This criterion poses the question of whether the impugned provision is necessary — in the sense that there is no obvious and reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom. The Attorney-General submitted that the impugned law is directed at the hurt and offence caused by the display of Nazi symbols. The provision does not go beyond what is necessary to achieve that purpose. It was submitted in answering the necessity question the Court must apply the plurality judgment of Crennan, Kiefel and Bell JJ in Tajjour v New South Wales (2014) 254 CLR 508 at [114] which emphasised that the alternative must be a “true alternative” and:

…the hypothetical measure must be as effective in achieving the legislative purpose. It must be as capable of fulfilling that purpose as the means employed by the impugned provision, “quantitatively, qualitatively, and probability-wise.

36. The Attorney-General submits that once the broader purpose of the law is accepted there is no obvious compelling alternative in this case.

37. The defendant submits that an alternative would be a law only directed at displays promoting neo-Nazi or hateful ideology and the incitement of violence. The defendant refers to laws passed in Victoria and the Commonwealth. Section 41K(2B) of the Summary Offences Act (Vic)1966 provides for an exception against a charge of displaying a Nazi symbol or gesture if the display was done reasonably and in good faith for opposition to fascism, Nazism, neo-Nazism, or related ideologies. Section 80.2H(10(f) of the Criminal Code (Cth) provides an exception where the accused genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism, or a related ideology.

38. However the Attorney-General retorts that the hypothetical measure proposed does not fulfill the purpose of the impugned law. The statutory examples are not a “true alternative” and focus on the intention of the person rather than displaying Nazi symbols per se. Further, to the extent that a true alternative is a law directed at the incitement of violence an offence of that kind already exists in s 93Z. Ultimately the approach to necessity is not accepted because it mischaracterises the purpose of the impugned law. The submissions of the Attorney-General in relation to necessity are accepted particularly as they relate to the purpose of the impugned law and the differences between the impugned law and the purported true alternatives.

Adequacy in the balance

39. The criterion requires “a value judgment, consistently with the limits of the judicial function” The expression “value judgment” has in one sense an indeterminate quality: See Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [81] where McHugh J referred to what he described as “indeterminate terms such as "fair", "just", "just and equitable" and "unconscionable."” This criterion also requires the court to examine whether the impugned law is adequate in the balance between the importance of the purpose served by the impugned law and the extent of the restriction it imposes on the implied freedom. A recent example is Lees v State of New South Wales [2025] NSWSC 1209. Mitchellmore J found - although it was unnecessary to decide - that the impugned move on direction law was not adequate in the balance because it could be applied to protests close in proximity to a place of worship which were not directed at the place of worship.

40. In this case the Attorney-General submits that the benefit sought to be achieved is not outweighed by its adverse effect on the implied freedom and relies on this passage in LibertyWorks Inc v The Commonwealth of Kiefel CJ, Keane and Gleeson JJ said at [85]:

…a powerful public, protective purpose assumes a special importance.

[footnote 87 McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 218-219 [86]- [87]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 209 [101]- [102]; Comcare v Banerji (2019) 267 CLR 373 at 402-403 [38], 404 [42].

41. The defendant submitted that to the extent that the impugned law criminalises the causing of offence it is not supported by the constitutional values in relation to legislation that has a public order purpose. The defendant described it as “overreach”. The defendant relied upon the decision of Coleman v Power (2004) 220 CLR 1. It is instructive to record the oral submission of Ms Graham in the hearing on 19 August 2025 at p 11:

The notion of sparing people from offence and distress simply by seeing a Nazi symbol, that either casts the purpose too broadly or in the proportionality analysis means that the law must fall over and be invalid because the benefit [that] might be attained from such a purpose is manifestly outweighed by the substantial imposition on free speech.

42. It is necessary to further discuss the decision of Coleman v Power (2004) 220 CLR 1. The High Court did not declare a Queensland criminal offence of using insulting language against a person in public invalid. However the Court restricted its operation. It was an unusual case. The High Court had to determine the reach the offence in circumstances where the Parliament had re-enacted the offence and removed the ingredient “breach of the peace”. The offence did not have a reasonable excuse exception and as McHugh J described it at [69] it was a law “without qualification”.

43. It was accepted by the court that the offence of using insulting words in public was capable of burdening the communication of political and governmental matters. Gummow and Hayne JJ at [183], [200] held it was not enough merely to prove the offence by the person the target of the insult to assert they were insulted, or to show that the insulting conduct was calculated to hurt the person’s self-esteem. Gummow and Hayne JJ held the law had more a limited operation. The offence of using insulting language against a person covered conduct directed to hurting an identified person that was provocative in the sense the insulting words were intended to provoke an unlawful retaliation, or reasonably likely to provoke unlawful physical retaliation from either the person to whom they were directed or a person who heard them uttered.

44. Gummow and Hayne JJ held that where the operation of the law was limited in that way, although it was capable of burdening communication about governmental or political matters, it was reasonably appropriate and adapted to serve the legitimate public end of keeping public places free from violence. Kirby J agreed and adopted the reasoning. Gleeson CJ however did not agree with that approach (see [10]) and set out what His Honour regarded as conduct covered by the offence provision at [14]-[15]. It is not necessary to record here Gleeson CJ’s formulation. The defendant relies upon Gleeson CJ’s description of conduct that was not covered by the offence of insulting language at [15]:

But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language, and the circumstances, may be significant.

45. The defendant submits that the court should limit the operation of the impugned law in the same way. In this case the display of a Nazi symbol was an expression of a political view on controversial matters at a peaceful political protest. There was no evidence of hurt or offence and no victimisation and no potential for provoking violence. It was also submitted that the court should also have regard to the robustness of political communications in Australia as described by Kirby J in Coleman v Power at [239]:

One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion [229]. They are part and parcel of the struggle of ideas.

46. The defendant relies on Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 623 where McHugh J observed that the constitutional implication protects true, rational and detailed communication but also false, unreasoned and emotional ones and also Gageler J’s statement in Brown v Tasmania [2017] HCA 43 at [202] that it may include protecting “political communications [which are] unhelpful or inconvenient or uninteresting to a current majority”.

47. The defendant submitted that the benefit of the law of preventing distress and offence is outweighed by the impost on legitimate political communication especially where the communication is anti-genocide, anti-Nazi and the distress and offence is minimal or non-existent. The defendant submitted that people may disagree with equating the state of Israel with Nazi Germany but that is legitimate speech within the context of ideas that exist in our system. The provision is overreach by the NSW Parliament, ill-fitting, disproportionate, controlling speech, lacks reasonableness, suppresses political dissent than is greater than reasonably necessary and cannot survive constitutional scrutiny.

48. The Attorney- General responded to these submissions concerning adequacy in the balance by arguing that the defendant’s submissions are premised on an asserted over-inclusiveness of the impugned law and underplays the constructional significance and practical effect of the reasonable excuse exception which can accommodate symbolic political expression critical of Nazism. It is an “in-built safeguard against any unnecessary intrusion into the freedom”: Ravbar v Commonwealth of Australia [2025] HCA 25 at [404] per Jagot J. And it places only a slight evidential burden on an accused. Further, the defendant overstates the place Nazi symbols have in Australian political communication and underplays the narrow basis of the burden. (see earlier discussion of burden in question 1).

49. The Attorney-General submits that it is true political communication can involve the kind of communication described by McHugh J in Levy v Victoria and Gageler J in Brown v Tasmania at [202] (quoted above) but this does not mean the implied freedom should necessarily protect all offensive communications or those degrading of a person’s dignity. In support of that proposition the Attorney-General relies upon a passage of Gageler J in Clubb v Edwards [2019] HCA 11;(2019) 267 CLR 171 at [196]:

Coleman and Monis should not be understood as authority for the proposition that a purpose of curtailing unsolicited, unwelcome, uncivil or offensive speech is incompatible with the constitutionally prescribed system of representative and responsible government. Consistently with how the Supreme Court of the United States has treated the interest of an unwilling listener in avoiding unwanted communication, the better explanation of those decisions is that protecting against unwanted or offensive communication is a permissible purpose the capacity of which to justify a burden on freedom of political communication can vary in different contexts. In some contexts, the purpose of protecting against unwanted or offensive communication can be insignificant. In other contexts, of which the present in my opinion is one, the purpose of protecting against unwanted or offensive communication can be compelling.

50. The Attorney-General submits that the purpose of the impugned law of protecting against unwanted or offensive communication is compelling. Prevention of social and personal harm by the display of Nazi symbols is a necessary objective of importance to the community: Ravbar v Commonwealth of Australia at [402]. The purpose by any objective measure, of such obvious importance is to be characterised as compelling.

51. The court does not accept the defendant’s submission concerning Coleman v Power. The defendant’s reliance on Coleman v Power is problematic both as to the limits to laws with a public order purpose and also by comparing the case to factual circumstances of the instant case. The impugned law by its reference to Nazi symbols is very specific and it contains a reasonable excuse exception. The impugned law in Coleman v Power had a very broad subjective ingredient of “insulting” and did not make any provision for a reasonable excuse. This was why the court was required place some limit on the application of the law. The focus by Gummow and Hayne JJ upon “keeping public places free from violence” and by Gleeson CJ on conduct not covered by the offence was all said in the context of the offence of insulting language. The opinions were not intended to set a bar for any, or all, public order offences. It would be artificial to place the same limits on the impugned law in this case when the court has found the burden on the freedom of political communication is slight.

52. The “value judgment” that must be made for the third question is made adversely to the defendant. The protective purpose of the impugned law is compelling in the sense referred to by Gageler CJ in Clubb v Edwards at [196] and unlike the law in Coleman v Power it is not too broad. The benefit of the purpose is not manifestly outweighed by the burden of freedom of political communication. The Attorney-General submissions are accepted. The defendant has asserted over-inclusiveness of the impugned law and underplayed the constructional significance and practical effect of the reasonable excuse exception. This exception can accommodate symbolic political expression critical of Nazism. The court also accepts the submission that the implied freedom does not protect all offensive communications or those degrading of a person’s dignity. It is instructive to remember what was held in Lange itself - that the freedom of political communication is not absolute and it does not confer a right.

50. Applying the structured proportionality approach the impugned law is suitable, necessary and adequate in the balance to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government. And when the question is asked at a general level i.e. is the impugned law reasonably appropriate and adapted to advance the purpose? - it yields the same affirmative answer because it involves similar considerations. Therefore the court answers the third question in the affirmative.

Conclusion

54. Section 93ZA Crimes Act is not invalid because it unjustifiably burdens the implied freedom of political communication. The Court answers the three constitutional questions as follows:

1. Does the law effectively burden freedom of political communication?

1. Answer: Yes

2. Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?

1. Answer: Yes

3. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

1. Answer: Yes

55. Given the impugned law is not constitutionally invalid and the previous finding that the prosecution has negatived the defendant’s reasonable excuse beyond reasonable doubt the Court finds the prosecution has proved its case to criminal standard of proof and therefore and finding the defendant guilty of the charge.

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Appendix A (1.17 MB, pdf)

Decision last updated: 12 November 2025