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Publicly Threatening or Inciting Violence

Publicly threatening or inciting violence is an offence under section 93Z of the Crimes Act 1900, which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You intentionally or recklessly threatened or incited violence towards another person or group
  2. You did so by way of a public act, and
  3. You did so on grounds of the other person’s or group’s race, religious belief or affiliation, sexual orientation, gender identity, intersex status, or HIV or AIDS status.

A ‘public act’ includes:

  1. Any form of communication to the public, including speaking, writing, displaying notices, playing recorded material, and broadcasting and communicating through social media and other electronic means
  2. Any conduct observable by the public, including actions, gestures, wearing or displaying clothing, signs, flags, emblems or insignia, and
  3. Distributing or disseminating any matter to the public.

An act may be public even if it originates or 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:

  1. Persons of the same sex
  2. Persons of a different sex, or
  3. Persons of the same sex and persons of a different sex

‘Gender identity’ means the gender related identity, appearances, mannerisms or other gender related characteristics of a person without regard to the person’s designated sex at birth.

‘Intersex status’ means the status of having physical, hormonal or genetic features that are:

  1. Neither wholly female nor wholly male
  2. A combination of female and male, or
  3. Neither female nor male

‘Violence’ includes violence towards persons as well as property.

To establish your guilt, the prosecution does not need to prove that:

  1. Your views were incorrect or correct, or
  2. Any person formed a particular state of mind or carried out a violent act

Proceedings for the offence can only be commenced with the approval of the DPP.

Defences to the charge include:

  1. Duress
  2. Self defence, and
  3. Necessity.

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