New criminal sanctions for serious vilification in NSW on grounds including race, religion and sexual orientation

New section introduces offence for public acts of violence

Under the new section, s. 93Z of the Crimes Act, it is an offence for a person to, by a "public act", intentionally or recklessly threaten or incite "violence" towards another person or a group of persons on various grounds including "race", "religious belief or affiliation", "sexual orientation", "gender identity", "intersex status", or on the basis of HIV or AIDS (terms as defined).

Relevantly, for the purposes of the section, a "public act" includes:

1. 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
2. any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public; and
3. the distribution or dissemination of any matter to the public: see s. 93Z (5).

Importantly, such an act may be a public act even if it occurs on private land.

Offences will be investigated by the NSW Police Force and require the approval of the Director of Public Prosecutions (DPP) in order to commence a prosecution (s. 93Z (4)). The requirement for the DPP's consent will provide a safeguard to ensure that the offence is only prosecuted where appropriate, in accordance with the Prosecution Guidelines.

Greater penalties have been introduced for these offences, which are up to 100 penalty units ($11,000) or 3 years imprisonment (or both) in the case of an individual, or 500 penalty units ($55,000) for a corporation. Importantly, these penalties are now harmonised, irrespective of the protected attribute involved.

By the way of comparison, under the now repealed provisions of the AD Act, the existing penalties for racial and HIV/AIDS vilification were up to 50 penalty units ($5,500) or imprisonment for 6 months (or both) in case of an individual or 100 penalty units ($11,000) for a corporation. For homosexual and transgender vilification, the previous penalties for an offence were less, namely, 10 penalty units ($1,100) or imprisonment for 6 months (or both) in case of an individual or 100 penalty units ($11,000) for a corporation. The increases in the penalties under the Act are significant.

This Act also removes the following offences from the AD Act:

1. section 20D (offence of serious racial vilification);
2. section 38T (offence of serious transgender vilification);
3. section 49ZTA (offence of serious homosexual vilification); and
4. section 49ZXC (offence of serious HIV/AIDS vilification).

Key considerations for employers

• As the penalties for serious vilification are significantly higher under the Crimes Act, employers must be vigilant in their actions to prohibit such conduct.
• Employers should review, update and strengthen their discrimination, bullying and harassment policies and corresponding training modules.
• Employers should carefully handle vilification complaints.

For further details on this Act or if you need assistance managing a vilification complaint, please contact a member of Lander & Rogers' Workplace Relations and Safety Team.