CRIMINAL LAW — appeals and reviews — public order offences — Crimes Act 1900 (NSW), s 93ZA(1) — display of Nazi symbol — display in course of pro-Palestinian protest — prohibition on the public display of a Nazi symbol ‘without reasonable excuse’ — Crimes Act 1900 (NSW), s 93ZA(3)(b) — defence if display of symbol done reasonably and in good faith for ‘another purpose in the public interest’
STATUTORY INTERPRETATION — criminal law — Crimes Act 1900 (NSW), s 93ZA(1) — ‘reasonable excuse’ defence — whether display ‘for another purpose in the public interest’ — consideration of standard for evaluation of reasonable excuse
CONSTITUTIONAL LAW — whether State criminal law invalid for infringing implied freedom of communication about governmental or political matters — whether and to what extent the provision burdens the implied freedom — whether the provision has a legitimate purpose that is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government — whether provision is reasonably appropriate and adapted to advance that purpose
Quick Take
1Under s 93ZA(1) and (3)(b) of the Crimes Act 1900 (NSW), whether a display of a Nazi symbol had a reasonable excuse or was done reasonably and in good faith for a purpose in the public interest is an objective value judgment, made from the perspective of the ordinary member of the community, informed by the statutory purposes: protecting targeted groups from hateful conduct, denouncing such conduct and fostering multiculturalism. Actual harm, an intention to cause harm and the defendant's identity or motive (eg not being a neo-Nazi) are not determinative. Political communication can, in some circumstances, amount to a reasonable excuse, but characterising a display as political does not of itself establish the defence.
2On the facts, the Crown negatived reasonable excuse beyond reasonable doubt. A placard conjoining the Star of David with the Nazi flag and swastika, captioned 'The Irony of Becoming What You Once Hated', was posted in a busy public park during a protest. It was capable of conveying that Jews are, or have become like, Nazis. It was not an overt denunciation of Nazism and was unnecessary to communicate the protester's message. Ambiguity in meaning did not mitigate the presumed harm. The separate question of good faith was left undecided.
3Section 93ZA effectively but not substantially burdens the implied freedom. Its protective purposes are legitimate. They go beyond preventing mere offence and extend to protecting the dignity of, and political participation by, groups targeted by Nazism. [name withheld] does not establish that promoting social cohesion can never be a legitimate purpose. The provision is reasonably appropriate and adapted under structured proportionality analysis. In particular, it restricts only one mode of communication, the reasonable excuse defence permits case-by-case tailoring, and an 'anti-Nazism' exception of the Victorian kind would not be an equally effective alternative.
