The New South Wales Law Reform Commission report on Serious racial and religious vilification addresses s 93Z of the Crimes Act 1900 (NSW). The Commission states
1.3 On 14 February 2024, the NSW Attorney General asked us to expeditiously review and report on the effectiveness of s 93Z of the Crimes Act 1900 (NSW) (Crimes Act) in addressing serious racial and religious vilification in NSW. Throughout this review, we heard about the significant impact that hate-based conduct has on individuals, groups and our wider community, historically and at the present time. We acknowledge public interest in the operation of s 93Z has increased following the events in Israel and Gaza on and after 7 October 2023. However, after consulting widely, we have concluded that s 93Z should not be amended in response to the specific issues raised by the terms of reference.
Based on the concerns raised with us, we recommend the NSW Government consider:
• commissioning a separate review of the effectiveness s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), which enables motivations of hatred and prejudice to be considered as aggravating factors on sentence, and
• measures to improve the collection of data on hate crimes when offences other than s 93Z are charged for hate-related incidents. ...
It notes
concerns expressed by some community groups about the low number of prosecutions under s 93Z. In particular, some were dissatisfied at the criminal justice response to the experiences of individuals and groups when allegations of vilification and hate-based conduct have been reported.
Data from the Bureau of Crime Statistics and Research (BOCSAR) shows that, as at July 2024, 7 people had charges under s 93Z finalised. Of these people: • 2 were found guilty of an offence under s 93Z, and • 5 had the charge(s) under s 93Z withdrawn. Both convictions were appealed before the District Court. Out of the 2 convictions: • 1 was quashed on 6 February 2024 after a successful appeal, and • 1 was upheld on appeal by the District Court on 7 June 2024 (that is, after this review commenced). There were 2 further convictions in 2020. However, they were annulled because the NSW Police Force commenced prosecutions without the consent of the Director of Public Prosecutions (DPP), which was required at the time.
The requirement to obtain DPP consent before commencing a prosecution was removed from s 93Z in January 2024. This was intended to streamline the prosecution process. ...
This report does not make recommendations about the ADA As we explain in chapter 2, s 93Z operates alongside the civil anti-vilification protections in the ADA. These cover other forms of vilification, that is, public acts that incite hatred, serious contempt or severe revulsion on the basis of: • race • transgender status • HIV/AIDS status • homosexuality, or • religious belief, affiliation or activity (or lack of such belief, affiliation or activity). ...
1.29 A range of organisations argued that the civil and the criminal frameworks should be reviewed holistically, as part of our ongoing review of the ADA. Additionally, some suggested it was premature to consider reforms to s 93Z while the ADA was under review. For instance, the NSW Bar Association suggested that concerns about the operation of the criminal law may be addressed if the civil vilification regime was improved.
1.30 We acknowledge the relationship between the vilification protections, and there are good arguments for considering them together in a holistic review. However, we are bound by our terms of reference which focus, in this instance, on the criminal law response to serious racial and religious vilification in s 93Z.
1.31 Accordingly, this report does not consider several issues raised with us in submissions and consultations. These include whether: • the list of protected attributes in either s 93Z or the ADA should be expanded, including to recognise intersectional experiences of vilification21 • the terminology used to describe the attributes currently protected by s 93Z or the ADA should change22 • s 93Z and the ADA should be aligned in terms of the attributes protected and/or the way common elements are defined23 • the civil protection against religious vilification, introduced into the ADA in 2023, could be improved,24 and • the civil complaints mechanisms, and the framework for civil remedies, should be reformed. ...
1.37 Summary of our key reasons
Throughout this review, we heard about the significant and increasing effect that vilification has on our community. We outline these concerns in chapter 3. While we acknowledge these concerns, we do not recommend reform to s 93Z to address the issues raised by our terms of reference.
Section 93Z needs to be understood as part of the broader legal system in which it operates. This includes other, general criminal offences and the civil vilification framework (outlined in chapter 2). Section 93Z has a protective purpose, in that it aims to protect identified groups from threats of or incitements to violence. It also has a symbolic purpose, signifying that the community does not condone this conduct. There was widespread support for criminalising this conduct in a specific vilification offence, as s 93Z currently does.
One of the factors that led to this review was the low number of prosecutions under s 93Z. However, the low number does not, of itself, make the case for reform. The fact that an appeal against a conviction under s 93Z has been dismissed demonstrates that the section is operable and has a role to play in appropriate circumstances.
As we discuss in chapter 3, the low numbers of prosecutions may be due to a range of factors other than the elements of the offence. The factor most often raised with us is that police may prefer to charge general offences. In many cases, these offences are more familiar to police, are easier to prove and have higher maximum penalties.
There is no clear community consensus, even among religious and multicultural groups, that s 93Z requires reform in response to the issues raised by our terms of reference. Indeed, many cautioned against such reforms.
Expanded criminalisation comes with risks and is not always the best tool to achieve social policy aims. In particular, we are aware that extending the criminal law can have unintended consequences, especially for those groups already overrepresented in the criminal justice system. Specific concerns were expressed about the potential impact on Aboriginal people.
There is also a need to be cautious of any reforms that might over-complicate the law and cause further uncertainty or litigation.
In the following chapters, we detail the responses to the various options suggested in our Options Paper. While views differed in relation to various options, the weight of opinion was that none of these options should be pursued.
The exception was the potential removal of recklessness as a mental element. Opinions in submissions divided more evenly on this issue. However, this change would not strengthen s 93Z or address the concerns that prompted our review. Finally, as we further explain in chapter 3, the law is only one part of a wider range of measures necessary to promote social cohesion in NSW. Non-legal measures may be more effective in achieving this aim.
However, we agree that more could be done to improve the visibility and to track the effectiveness of the wider criminal justice response to hate crime. We recommend that the NSW Government consider commissioning a review of the effectiveness of s 21A(2)(h) of the Sentencing Procedure Act.
We also recommend that the NSW Government consider measures to improve data collection in relation to the prosecution of general offences in response to hate crime.
