Abdul-Wahab v R (No 2) [2026] NSWDC 395 | Case summary | Zoe

NSWNSWDC

Abdul-Wahab v R (No 2)

[2026] NSWDC 395

District Court of NSW|2026-10-27|Before: Abadee DCJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2026-10-27

Before

Abadee DCJ

Catchwords

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

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Catchwords

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

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Abdul-Wahab v R (No 2) [2026] NSWDC 395

Hearing dates: 17, 18, 19 August 2026; supplementary written submissions provided 31 August 2026, 2, 7 September 2026, 23 October 2026

Date of orders: 27 October 2026

Decision date: 27 October 2026

Jurisdiction: Criminal

Before: Abadee DCJ

Decision: See: [310]

Catchwords: 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

Cases Cited: Abdul-Wahab v R [2026] NSWDC 394
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352
Azzopardi v The Queen (2001) 205 CLR 50
Brown v Tasmania (2017) 261 CLR 328
Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892
Cassuto v Kostakidis [2025] FCA 1226
Charara v R [2006] NSWCCA 244
Clubb v Edwards (2019) 267 CLR 171
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coleman v Power (2004) 220 CLR 1
Eatock v Bolt (2011) 197 FCR 261
Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537
Farmer v Minister for Home Affairs (2025) 425 ALR 116; [2025] HCA 38
Farquhar v Bottom [1980] 2 NSWLR 380
Federal Court of Justice, 3 StR 486/06, 15 March 2007
Hanson v Faruqi (2026) 317 FCR 266
Henshaw v Mark (1997) 140 FLR 438
Higher Regional Court of Zweibrücken, 1 ORs 3 SRs 70/25, 24 June 2026
Jarrett v State of New South Wales (2026) 119 NSWLR 285
Lambert v Weichelt (1954) 28 ALJ 282
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
LibertyWorks Inc v The Commonwealth (2021) 274 CLR 1
Maxwell v Hersant (Magistrates’ Court of Victoria, Magistrate Sonnet, 8 October 2024)
Maxwell v Hersant [2025] VSC 1923
McCloy v New South Wales (2015) 257 CLR 178
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
McNab v Director of Public Prosecutions (2021) 106 NSWLR 430
Monis v The Queen (2013) 249 CLR 92
Moriarty v Nye (2024) 114 NSWLR 560
National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159
Nix v Germany (European Court of Human Rights, Chamber, Application No 35285/16, 13 March 2018)
Oshlack v Richmond River Council [1998] HCA 11
Palmanova Pty Ltd v Commonwealth (2025) 424 ALR 768; [2025] HCA 35
Peers v Medical Board (2026) 402 FLR 107; [2026] VSCA 69
Pham Global Pty Ltd v Insight Imaging Pty Ltd (2017) 251 FCR 379
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
Potter (A Pseudonym) v The King (2026) 100 ALJR 1028; [2026] HCA 25
Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263
R v Kahtan Abdul-Wahab (No 1) [2025] NSWLC 5
R v Kahtan Abdul-Wahab (No 2) [2025] NSWLC 6
R v Kahtan Abdul-Wahab (No 3) [2025] NSWLC 7
Richardson v McSephney [2026] VCC 1225
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186
Shepherd v The Queen (1990) 170 CLR 573
South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Masuku [2022] ZACC 5; 2022 (4) SA 1 (CC)
StandWithUs Center for Legal Justice v Massachusetts Institute of Technology (No. 24-1800, 21 October 2025)
State of New South Wales v Farhat [2026] NSWSC 985
Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44
Taikato v The Queen (1996) 186 CLR 454
Tajjour v New South Wales (2014) 254 CLR 508
Toltz v Riemer [2025] FCA 1385
Trkulja v Google LLC (2018) 263 CLR 149
Unions NSW v New South Wales (2019) 264 CLR 595
Wertheim v Haddad (2025) 311 FCR 263
Wotton v Queensland (2012) 246 CLR 1

On 29 October 2025, the Local Court of New South Wales imposed the sentence of a six-month conditional release order on Kahtan Abdul-Wahab (the appellant), without conviction being recorded, pursuant to ss 9 and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the ‘CSP Act’). This followed the Local Court’s finding that he was guilty of the offence of knowingly displaying a Nazi symbol without reasonable excuse on 6 October 2024, contrary to s 93ZA(1) of the Crimes Act 1900 (NSW).
The appellant does not appeal against the sentence. He appeals against the determination of guilt. His appeal to this Court is brought pursuant to ss 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (the ‘CAR Act’). Although he was not ‘convicted’ of the offence, by reason of s 10(5) of the CSP Act, he has the same right to appeal as if he had been convicted.
In the Local Court, the primary judge published three judgments. The first of those concerned the onus and standard of proof of the defence of reasonable excuse. [1] The primary judge held that an accused carries an evidentiary onus to raise the excuse by giving evidence (or via other evidence, or both) and, if the accused discharged that evidentiary onus, the onus was on the Crown to negative the excuse beyond reasonable doubt. In this Court, the appellant confirmed that this determination is accepted, so there is no appeal from the first judgment.
The second judgment determined that the prosecution had proved the elements of the offence, including that the prosecution had negatived the defence of reasonable excuse: R v Kahtan Abdul-Wahab (No 2) [2025] NSWLC 6 (the ‘Second Judgment’). That result, however, left standing the appellant’s constitutional objection. The third judgment rejected a challenge to the constitutional validity of s 93ZA of the Crimes Act on the basis that it imposed an unjustifiable burden on the implied freedom of communication of political and governmental matters (‘the implied freedom’): R v Kahtan Abdul-Wahab (No 3*)* [2025] NSWLC 7 (the ‘Third Judgment’). After making that decision, the primary judge determined that the prosecution had proven the charge beyond reasonable doubt and found the appellant guilty of the offence.
Notices of a constitutional issue in this appeal were served under s 78B of the Judiciary Act 1903 (Cth).
The Attorney General for New South Wales intervened in the Local Court proceedings, to make submissions about the interpretation of the expression ‘reasonable excuse’ and the constitutional validity of s 93ZA(1) of the Crimes Act. The Attorney General also intervened in this Court, filing written submissions (MFI 2 and MFI 9) and making oral submissions.
Two issues of law loom large.
The first concerns the Court’s interpretation of a criminal statutory provision enacted by the democratically elected legislature.
The second concerns the Court’s adjudication of the constitutional validity of state laws which are alleged to impermissibly burden the implied freedom. As was recently explained in the Court of Appeal’s decision in Jarrett v State of New South Wales (2026) 119 NSWLR 285 (‘Jarrett’) at [5], which postdated the judgments in the Local Court:

The purpose of this, as trial counsel for the appellant explained in the Local Court, was to provide background and context for the appellant’s display of the swastika.
His Honour took ‘judicial notice’ of information contained in the documents and found that there is a Genocide Convention. The primary judge found that genocide is a crime under international law. Article 2 of the Convention sets out conduct prohibited under the Convention. Australia and Israel are parties to the Convention. The Convention was, in part, a response to the atrocities committed by Nazi Germany in World War II against Jewish people and several other minority groups. The primary judge took judicial notice that there has been a conflict in Israel and Palestine, that thousands of people had died, and that there was a case commenced against Israel in the International Court of Justice which (at the date of the trial) was still to be determined. The primary judge took judicial notice that there have been reports issued by the United Nations, such as a report, “Anatomy of a Genocide” (admitted as Exhibit 4), which concluded there were reasonable grounds to believe that the threshold indicating Israel’s commission of genocide had been met. Finally, the primary judge took judicial notice that a pre-trial chamber of the International Criminal Court had issued warrants for the arrests of the Prime Minister and a former Defence Minister of Israel.
The Crown did not take issue with these findings.
His Honour eschewed making any findings about the truth of the allegations of genocide, which his Honour acknowledged was a question being considered in international forums.
Further, his Honour appeared to find that the appellant was aware of allegations of genocide against Israel. The appellant embraced that finding in this Court.
The primary judge found that the appellant had met the evidential burden that he had reasonable excuse for displaying the Nazi symbol. The Crown did not dispute that finding.

In his Honour’s Second Judgment, the primary judge determined that the purpose of s 93ZA was to prohibit displays of public acts of Nazi symbols, subject to a defendant having a reasonable excuse. What constituted a ‘reasonable excuse’ was partly expressly defined, in s 93ZA(3), although not exhaustively. The provision was located in Part 3A of the Crimes Act. The ‘public order’ that Parliament envisaged involved one where Nazi symbols were not displayed, since they were not only offensive for what they represented at the time, but also took into account the distress caused to people who were victims of the Nazis and World War II, and to their descendants ([15]).
When construing the ambit of the further excuse, being ‘another purpose in the public interest’, a court had to have regard to the purposes of the law and the circumstances of the individual case ([19]). It was too simplistic to accept that a reasonable excuse could arise because the Nazi symbol was displayed for a ‘political purpose’. That construction would easily defeat the purpose of the general provision ([20]). This was not just to prevent the promotion of Nazism, but also to prevent harm caused (to particular members of the community) by the display of Nazi symbols ([47]).
The primary judge noted the existence of a ‘protest exception’ in legislation in Victoria. But the primary judge emphasised that, if the New South Wales Parliament had intended that a display of a Nazi symbol in the course of, or connected to, a political protest constituted a reasonable excuse, Parliament could easily have added it to the other excuses in s 93ZA(3)(a).
The primary judge emphasised that the appellant did not give evidence and gave himself an Azzopardi direction. [4]
The primary judge accepted that the appellant had discharged the evidential burden of raising the issue of reasonable excuse ([46]). His Honour rejected the appellant’s submission that the harm caused by the display of the symbol was slight. His Honour found that there may be scope to invoke participation at a political protest as a reasonable excuse to display a Nazi symbol, but probably only where there was minimal or slight harm. Here there was a high degree of offence. This put the appellant’s conduct beyond the scope of the available defence, since the purpose and objects of the law would be too easily defeated ([48]).
In the circumstances of this case, the appellant did not tell police that he was intending to make a political point, even though his words indicated that this was what he was doing. He said to police officers that he wanted to “speak up against the genocide” and that he made the display in order to make a political point. The prosecution negatived the excuse beyond reasonable doubt ([49]).

The primary judge said that it was uncontroversial that the first question should be answered affirmatively ([15]).
But his Honour did not accept that the burden that was imposed was substantial or would have a ‘very chilling’ effect on free speech. The law was directed at specific historical symbols. People remained entitled to voice their opinions (if they held them) that the contemporary conduct of the State of Israel should be equated with Nazi Germany ([21]). The law had the purpose of protecting those harmed by the display of Nazi symbols ([22]). It was erroneous to say that it was limited to the prevention of the promotion of Nazi ideology. The burden was slight ([23]).
As to the second question, the primary judge acknowledged that the object or purpose of the law needed to be identified. Repeating what his Honour had determined in the Second Judgment, s 93ZA was directed to prohibiting the promotion of Nazi ideology and preventing distress and offence caused by the public display of Nazi symbols ([24]-[25]). The public order envisaged by the New South Wales Parliament was one where Nazi symbols were not to be displayed, since they were considered to be offensive for what they represented at the time, but also took into account the distress caused to people who were victims of the Nazis before and during World War II, and to their descendants. Such conduct undermined the interests of amenity and security of citizens, [5] which was a legitimate object ([26]-[27], [32]). This went beyond the appellant’s limited submission that the provision was only directed towards prohibition upon the promotion of Nazi ideology or incitement of hateful behaviour ([31]). The provision achieved the legitimate object of preserving order in public places in the interests of the amenity of citizens. The primary judge accepted submissions from the Attorney General that the law was legitimate and compatible with the maintenance of the constitutionally prescribed system of government because Nazi symbols caused offence and distress by their association with a historical regime committed to dismantling liberty and democracy. The second question was answered affirmatively.
As to the third question, the primary judge applied the three-staged test of ‘structured proportionality’ enunciated by a majority of the High Court in McCloy at [2]. At the stage of considering suitability, his Honour noted the appellant’s limited concession that s 93ZA was suitable, in the narrow sense that it was capable of achieving its purpose of prohibiting the promotion of Nazi ideology ([34]).
At the stage of considering necessity, the primary judge accepted the Attorney General’s submission that the provision went no further than was necessary to achieve the purpose of preventing the hurt and offence caused by the display of Nazi symbols. His Honour rejected the appellant’s submission that there was a true alternative to achieving the purpose of limiting the law to displays that promoted neo-Nazi or hateful ideology and the incitement of violence, as that suggested approach mischaracterised the purpose of the provision ([35]-[36]).
At the stage of considering whether the provision was adequate in its balance, the primary judge rejected the appellant’s submission, which was based upon what Gleeson CJ had said in Coleman v Power (2004) 220 CLR 1 (‘Coleman’) at [15], to the effect that the provision represented legislative overreach by criminalising the display of a Nazi symbol to express a political view on a controversial matter at a peaceful political protest, with nothing to indicate potential for provoking violence. The primary judge found that, in contrast to Coleman, the statutory provision was specific, and it contained a ‘reasonable excuse’ exception. This is in a context where the burden on the implied freedom was slight ([45]-[47] and [51]). When exercising the ‘value judgment’ that this stage required, the benefit derived from the purpose was not manifestly outweighed by the burden on the freedom. In particular, the exception for ‘reasonable excuse’ can accommodate symbolic political expression critical of Nazism. The provision was reasonably appropriate and adapted to advance its purpose ([52]-[53]).

The appellant clarified in oral argument that it made no difference to the outcome whether his display of a Nazi symbol was done ‘without reasonable excuse’ within the meaning of s 93ZA(1), or whether it was done reasonably and in good faith for another purpose in the public interest within the meaning of s 93ZA(3)(b) of the Crimes Act. He further clarified that his argument placed no reliance upon the exception in s 93ZA(3)(a). This, I note, represented something of a change of position from the submissions advanced on his behalf in the Local Court. [9] Plainly, the exception in s 93ZA(2) did not apply either.
The appellant’s case is that, properly construed and applied to the facts, s 93ZA did not criminalise his conduct. He does not diminish the profound historical significance of Nazi symbols, or the grave hurt that they can cause to Jewish people and other groups targeted by Nazism. He acknowledges that these matters are relevant to the objective evaluation required by those provisions. In oral argument, his counsel also acknowledged that symbols were more powerful than words. But his conduct in displaying the Nazi symbol had to be evaluated in its proper context, including a fair characterisation of its message, purpose, contemporaneous expression, and the international legal and geopolitical context. His display of a Nazi symbol was a good-faith political communication at a peaceful public protest regarding Israel’s conduct in Gaza, the suffering of Palestinians, and what the appellant regarded as genocide. He displayed the symbol to draw an anti-fascist, anti-war and anti-genocide analogy, without promoting Nazism, without expressing hostility towards Jewish people, and without equating them with Nazis. He was conveying that it was the State of Israel that was promoting Nazi ideology, inciting racial hatred, or otherwise acting in a manner reminiscent of Nazi Germany. In short, he was denouncing Nazism. The notion of ‘reasonable excuse’ would accommodate this.
Beginning with the text, the appellant submits that Part 3A (and therefore s 93ZA) of the Crimes Act was said to be concerned with criminal acts that disrupted or threatened the peace and effective functioning of society, often involving anti-social and dangerous behaviour in public spaces.
The appellant noted that an earlier iteration of the provision identified, as a specific mischief sought to be addressed by the prohibition of Nazi symbols, the rise of neo-Nazi activity in Australia and its role in inciting hate behaviour and hate crimes. Extrinsic material linked the display of the swastika with Nazi ideologies that perpetuated hate and harm.
Given the breadth and scope of the general prohibition in s 93ZA(1), the appellant said that the reasonable excuse carve-out had significant work to do, in order to ensure that the provision not only conformed to its purpose, but did so in a way that accorded with the principle of legality and the implied freedom. Citing what the plurality said in Monis (at [334]), the provision, as a whole, should go no further than was necessary in order to achieve its purpose, consistent with its terms, without unduly burdening political communication. In addition, the appellant submitted that his construction of s 93ZA should be preferred, since it would avoid the spectre of a determination of invalidity (Interpretation Act 1987 (NSW), s 31(1)).
The appellant criticised the primary judge’s identification of the purpose. The judge’s identification of purposes – the prevention of adverse effects on public order and the distress caused – was too broad. Stated at that level of generality, the carve-out for reasonable excuse would be denuded of any work to do: it would exclude the display of Nazi symbols for the purposes of denunciation, education, satire, historical reference or other political communications made in ‘good faith’. Construing the provision in a way that criminalises speech that denounces Nazi ideology reasonably and in good faith would be self-defeating. The appellant’s conduct was engaged in to condemn Nazism and discourage its acceptance in the community.
He argues that the mischief in s 93ZA is to prevent the public display of Nazi symbols as a means of promoting, normalising, recruiting or reanimating support for the ideas those symbols represent, including fascism, racial hatred and genocidal action, rather than suppressing political communication merely because it contains confronting or offensive imagery.
In oral argument, his counsel more succinctly submitted that the objective was to proscribe the use of Nazi symbols so as to avoid normalising them, but not to the exclusion of their use in denunciation of Nazism. This argument, his counsel submitted, was compatible with the submissions of both the Attorney General and the Crown, which emphasised other objectives (such as preventing racial vilification or the incitement of racial hatred).
The appellant refers to s 93Z of the Crimes Act which, he says, tells against a construction that would require conduct to provoke a breach of the peace. The purpose is not simply to prevent offensive conduct of a kind likely to provoke a breach of the peace.
The reasonable excuse carve-out is to be construed in a way that does not unduly restrict freedom of expression that is any more than necessary to protect the public in that way. The appellant argues that although the expression ‘another purpose in the public interest’ cannot be exhaustively defined, it should be interpreted to include communication on political and governmental matters. This was consistent with the notion of public interest given in another statutory context (Anti-Discrimination Act 1977 (NSW), s 20(2)(c)). Further, the appellant noted the observation of Hayne J in Tajjour v New South Wales (2014) 254 CLR 508 (‘Tajjour’) at [86], that the defence of reasonable excuse to an offence of ‘consorting’ may arise if it was committed for the purpose of making or receiving political communications.
In oral argument, counsel for the appellant referred the Court to the Full Federal Court’s decision in Hanson v Faruqi (2026) 317 FCR 266 (‘Hanson’) at [88]-[89]. This case did not concern a criminal provision, but rather it concerned anti-discrimination legislation (s 18C of the Racial Discrimination Act 1975 (Cth)). The legislative framework in that case contained a closely confined list of exceptions to a general prohibition against certain conduct, in contrast to s 93ZA of the index legislation. But the legislative framework shared with s 93ZA(3)(b) the feature of having an exemption to a prohibition for ‘reasonable and bona fide’ conduct. The Full Federal Court said in that case that ‘reasonableness’ was an objective question, requiring that there be a rational connection between the purpose or activity (in the relevant exemption) and the doing of the impugned act. It was also informed by normative aspects (the proscribed conduct and the exemption) and by recognition of the competing values protected by those provisions. ‘Good faith’, for the purposes of the exemption, required subjective honesty and legitimate purpose, which in turn required sensitivity to the values embodied in the proscription. [10]
In oral argument, counsel for the appellant said that engaging in political advocacy was, subject to certain qualifications, always in the public interest. It was a ‘social good’. The appellant acknowledged that some political speech would fall foul of the requirements of reasonableness and/or good faith. A display of a Nazi symbol which may be taken to amount to denunciation of Nazism falls within exceptions provided for in s 93ZA(3)(b) (or s 93ZA(1)) of the Crimes Act. By contrast, neo-Nazi proponents displaying Nazi symbols as hate speech could not avail themselves of the excuse.
The appellant says that he was not promoting, endorsing or disseminating Nazi ideology. The appellant submits that the display of a Nazi symbol in the course of making political communications on an important matter (what was occurring in an Israeli military operation in Gaza) was not for the purpose of promoting Nazi ideology or inciting racial hatred, presented no threat to the peace or victimisation, and fell within the confines of reasonable excuse.
The appellant referred to inter-state legislation, especially that of Victoria, where there was what could be characterised as an ‘anti-Nazism’ exception to a similar prohibition. [11]
Returning to the primary judge’s interpretation of purposes, the appellant submitted that, by placing emphasis upon protecting people from distress or offence, the primary judge evinced a conception of public order and civil life that was (later) eschewed by the Court of Appeal in Jarrett. He fastened upon the Court of Appeal’s observation that the interpretation involved a “distorted notion of the public square in which dissenting and objectionable voices are suppressed, in the name of creating a more civil and tranquil environment. That is not the type of public square that the implied freedom operates to maintain”. [12]
The appellant submits that his conduct should be characterised as a form of political communication that denounced Nazi-like ideology and condemned perceived Nazi-like conduct.
The appellant submits that, if the defence is construed in the manner that he says it should be, the Court would not be satisfied beyond reasonable doubt that he was guilty of the offence.

By his written submissions, the Attorney General submitted that the purposes of s 93ZA are to protect members of those groups that had been targeted by the Nazi regime (in particular, but not exclusively, Jewish people) from the deep hurt, offence, intimidation and trauma associated with the public display of Nazi symbols, and to ensure that those persons feel safe to participate in ordinary life in public spaces.
These purposes are evinced from the text. Section 93ZA narrowly focusses on Nazi symbols. Parliament has made a judgment that it is the public display of such symbols which produce deeply negative impacts on members of groups that had been targeted by the Nazi regime.
The Attorney General referred to extrinsic material in support of this identification of the purposes. A private member’s bill [13] had been considered and endorsed in a report of the Legislative Council’s Standing Committee (the ‘Committee’). [14]
The Committee referred to an earlier (2021) bill in which the private member explained that it was “in response to the rise of neo-Nazi activity in Australia and its role in inciting hate behaviour and hate crimes” (paragraph 1.5 of the report). In that regard, the Statement of Public Interest later referred to the Government’s response to reports of antisemitic and far-right extremist activities in New South Wales.
On the aspect of right-wing extremism being a driver of the laws, the Attorney General submitted that this was not particularly significant when considering constitutional validity: displays of Nazi symbolism were not comparable to public assemblies. To recognise the presence of neo-Nazi groups did not mean that it was beyond the pale for supporters of such groups to display symbols privately and, in any event, this matter did not arise on the facts in this case.
The Committee identified a brief history of the swastika (at [2.1]). It had significance to the Hindu, Jain and Buddhist communities. It was adopted by the Nazi Party in 1920 as it was perceived to symbolise German, and specifically Aryan, culture.
The Committee wrote (at paragraph 2.58):

The Attorney General submitted that the meaning of ‘reasonable excuse’ not only depends on the circumstances of an individual case, but also on the purpose(s) of a provision to which the defence is an exception. The High Court’s decision in Taikato v The Queen (1996) 186 CLR 454 (‘Taikato’) was cited by all parties. The difficulty is to find a principled way of distinguishing cases where the legislature could not conceivably have envisaged a defence arising from those where it may well have envisaged such a defence being available. Courts have to make what are, effectively, political judgments by identifying material differences that justify the distributive operation of the criminal law in a variety of circumstances which have many, and sometimes almost identical, similarities. Defences of this kind are categories of indeterminate reference, by which it is left to courts to determine their content, effectively requiring them to prescribe rules of conduct only after its occurrence. [19]
Ms Crown, in her submissions in reply, referred the Court to Henshaw v Mark (1997) 140 FLR 438 (‘Henshaw’). In Henshaw, after acknowledging the principles in Taikato, Miles CJ also stated that the standard of the hypothetical ordinary member of the community in the position of the person concerned was generally the standard to apply in deciding what was reasonable. It was at least relevant for the source of a person’s belief to be indicated, particularly if the basis was outside the range of experience of the hypothetical ordinary member of the community. [20] But there was no requirement to inquire into the validity of the defendant’s belief. [21]
Where an excuse is linked to ‘the public interest’, courts are also to exercise a discretionary value judgment by reference to undefined factual matters which is unconfined, except so far as the subject matter, scope and purpose of statutory enactments enable courts to pronounce given reasons to be definitively extraneous to any objects the legislature could have had in view. [22]
The Attorney General referred the Court to the decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 for what was meant by ‘discretion’ in this particular context. This was a decision-making process in which no one consideration, and no combination of considerations, was necessarily determinative of the result. The decision-maker was allowed some latitude as to the choice of decision to be made. The extent of that latitude may be considerable, as, for example, where the relevant considerations were confined only by the subject matter and object of the legislation conferring the discretion (at [19]).

The Crown adopted the intervener’s submissions on the proper construction of ‘reasonable excuse’, but made additional submissions as well. The Crown contends that the point of the exception is to excuse a range of conduct that may not cause the degree of harm that the proscription in s 93ZA(1) protects against. This gives the expression ‘without reasonable excuse’, which is an essential element of the offence, work to do.
The Crown submitted that whether a display of a Nazi symbol could be ‘in the public interest’ requires application of a discretionary value judgment made with reference to undefined factual matters, confined only by the scope of the purpose and objects of the provision as applied to the circumstances. The Crown endorsed observations of Tamberlin J in McKinnon v Treasury. [23] The Court’s task, his Honour observed, was to consider what conclusion or determination best served the advancement or welfare of the public, society or nation, depending on the particular circumstances. Sometimes there are ‘opposing’ public interests. The relevant facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making the determination.
Those purposes were, the Crown argued, described in the Second Reading Speech. One of the things that the Parliamentarian emphasised, in effect, was that the display of Nazi symbols was harmful per se; or, as Ms Crown said, the assumption that harm was generally caused by a display of a Nazi symbol was ‘embedded’ in the purpose. The mischief that the provision was intended to remedy was to prevent the particular harms arising from communication by the use of Nazi symbols. Later, in her final oral submissions in reply, Ms Crown clarified that the display of a Nazi symbol was apt to represent all of the following: intrinsic harm, a tendency to cause harm, and an intrinsic tendency to cause harm. The exception that the provision prescribed accommodates discrete situations in which the risk of harm is capable of being reduced to the point where it can be tolerated. Political communication is not necessarily one of those situations.
Moreover, the Crown referred to some matters of context. These included the rise of right-wing extremist groups and an increasing concern for community safety, given that some of those groups had adopted Nazi symbols to represent their ideologies and as a means of rallying and recruiting members. The primary judge did not err in identifying that the purpose of the provision was to prevent adverse effects on public order by the public display of Nazi symbols, and the distress caused by the use of those symbols (which were inherently likely to cause such distress).
As to the application of the provision, the only real excuse for which an evidential burden fell upon the appellant was that the display was for a purpose in the public interest under s 93ZA(3)(b). In saying this, the Crown acknowledged that, in the Local Court and in this case, it appeared that the appellant may faintly have been relying upon an exception in s 93ZA(3)(a) as well. But reliance upon that exception could not succeed where the appellant had said nothing to that effect to the police officers and elected not to give evidence in the Local Court.
That means that the onus fell upon the Crown to prove that his display of the placard, bearing the swastika, was not done reasonably or in good faith for a purpose in the public interest.
The Crown referred to other considerations aiding in the construction of the expression ‘without reasonable excuse’ in s 93ZA(1). First, the selective and narrow focus on Nazi symbols recognises their distinctly harmful and intimidating significance. Secondly, as indicated in the agreed facts, a swastika is a particularly potent Nazi symbol (a matter indicated in s 93ZA(2)). Public displays of the swastika readily cause harm, offence and intimidation since the swastika symbolises the hatred, genocide and horrors of Nazism and World War II. Thirdly, the purpose of the provision is to protect the community from a variety of harms. There are, most obviously, negative impacts on groups persecuted by the Nazis: (primarily) Jewish people, but also negative impacts upon other minorities and supporters of them. But another harm is the apprehended effect of the deployment of the swastika and other symbols in normalising Nazi ideology in community affairs. The provision effectively strives to prevent a foothold for Nazi ideology in the community or, less optimistically, to limit Nazi ideology becoming embedded in the community, given the threat it poses to public order and safety. A further protection may be protection from the potential for divisiveness and racial hatred incited by public displays of Nazi symbols. Those symbols themselves represent harmful conduct perpetrated against groups that the Nazis targeted. The Crown contends that the primary judge well understood the purposes.
As to what ‘done reasonably’ means, this is an objective question, and the Crown endorses the primary judge’s reasoning that the question had to be viewed by reference to the legislative object of prohibiting the promotion of Nazism and protecting members of the community. In this regard, the Crown accepts that a value judgment is to be imposed. It says that the question did not require consideration of contemporary standards of public order, except to the extent that they informed the concepts of reasonableness and public interest. It was unnecessary that the conduct be actually threatening or actually inciting violence, or calculated to provoke a breach of the peace (even if those circumstances would amount to compelling evidence that there was no reasonable excuse).
The Crown did not refute the possibility that a display of a Nazi symbol could: (a) amount to a political or governmental communication; and (b) be in the public interest. The Crown accepts that excluding political communication as providing a basis for reasonable excuse would hobble the operation of s 93ZA; a result that should be avoided. [24] However, the defence does not turn upon characterisation by category.
On the facts, the Crown submits that the display of the swastika on the placard was not done reasonably for a purpose in the public interest. Firstly, it was not done to help Palestinians, despite what the appellant told police, since the display of that symbol was apt to arouse intense sentiments in large swathes of the community.
Secondly, to deploy the swastika against the very people, Jewish people, who were the primary target of Nazi genocide, underscored the unreasonableness of the conduct. In the Local Court, the prosecutor had submitted that amongst “all right-minded people”, it was most offensive that the display compared Israel and Jewish people with Nazis. [25] A clear, or at least reasonably available, imputation (or as a true innuendo) of the placard, with the Nazi flag on the Star of David and the slogan, “The Irony of Becoming What You Once Hated”, was that Jewish people were to be assimilated or equated to Nazis, or that Jewish people behaved like Nazis. The word “you” in the slogan was significant. This was not a denunciation of Nazism but rather a reference to what Jewish people had become. These were people (Nazis) whom Jews hated. The Crown emphasised the content of Agreed Fact 15 as representing what the parties had agreed was conveyed by this Nazi symbol: the horrors of Nazism and World War II, including military brutality, racial vilification and oppression, and is regarded as one of the world’s most prominent and potent symbols of hatred and genocide.
Thirdly, although the protest on 6 October 2024 was peaceful at the time of the offending, the public display of the swastika risked escalating the conduct of the participants by provoking angry or hateful reactions. The display of a swastika put the peaceful nature of the protest at risk. The protest took place on a Sunday in Hyde Park, itself located in a central part of the CBD (not far from the Supreme Court of New South Wales and from retail shopping districts and eateries). It was not cordoned off to allow only for pro-Palestinian supporters, so there was a possibility that any number of citizens not associated with the protest, and who were neither pro-Palestinian supporters nor pro-Israeli supporters, may have seen it. The placard was placed on a bin on the public thoroughfare towards the fountain in Hyde Park, where there are some (albeit slight) indications, [26] the locus of the protest was situated. It could conceivably have been seen by many members of the community other than pro-Palestinian supporters.
Fourthly, the use of the swastika was unnecessary for the appellant to make good his political point. He told police officers that he had other (non-offensive) signs to deploy as an alternative.
On the other aspect of the excuse, the absence of good faith, the Crown emphasised that it did not have to prove that the appellant acted in bad faith. In the absence of evidence from the appellant (other than what the agreed facts stated he told police officers), although this could be inferred from a number of evidentiary sources, the sequence in the agreed facts indicated that, initially, he exuded a sense of entitlement. Although he later apologised, he thereafter justified his action (on the basis that he was speaking up to help the Palestinians), which indicated defiance. Further, there was a high degree of offensiveness in the display: it was highly inflammatory. Finally, no identifiable public interest would support the display of a swastika in conveying the statement that Israel hated Nazis and that it was ironic that Israel had become what it once hated. It was not anti-fascist denunciation but could be viewed as encouraging or inciting racial hatred.
However, even on the assumption that the appellant acted in good faith, and even accepting that his purpose was to denounce Nazi ideology, his conduct was still not reasonable and was not in the public interest, having regard to the risk of his conduct causing offence, inciting harmful sentiments and triggering deep hurt and trauma suffered particularly by Jewish people (but also other groups that had been persecuted by the Nazis) and their descendants or supporters.
The Local Court judge was correct to hold that the reasonable excuse exception was not established by the appellant making a political point in the circumstances that he did.
The Crown responded to the appellant’s point regarding other inter-state legislation. Ms Crown argued that the absence of an exception for political communications reinforced the inference that the New South Wales Parliament did not consider that the display of a Nazi symbol in aid of denunciation of Nazism would necessarily give rise to reasonable excuse. This reinforced the primary judge’s view that the protective purposes of the provision were not limited to preventing the expression or espousal of Nazi ideology, but also included the harm caused by the display of Nazi symbols.
The Crown submits that there was no error, in fact or law, in the primary judge’s conclusion that the prosecution had proved, beyond reasonable doubt, that the appellant’s display of the Nazi symbol was without reasonable excuse. In circumstances where the only contentious element was whether the conduct was done without reasonable excuse, it followed that the prosecution had also established proof of the offence.

The appellant submitted that the Crown’s reliance upon cases such as McKinnon and Oshlack v Richmond River Council (1998) 193 CLR 72 as delineating principles relating to what was ‘in the public interest’ was inapposite. Even if a court is making an evaluative assessment, informed by different considerations, it is not making any discretionary determination under that exception. There is only a single answer.
In oral argument, the appellant’s counsel submitted that the appellant was denouncing the State of Israel by equating its conduct with that of Nazi Germany. The appellant submits that the Crown’s submission depended upon an impermissible substitution: it recasts criticism of the State of Israel (and its conduct in Gaza) as a statement about Jewish people. This was not a permissible inference having regard to what the placard stated and what the appellant himself told police. He was not saying that Jews were Nazis. It was not a fair imputation or true innuendo to say that he was making some statement about Jewish people. The slogan should be understood as conveying the statement that it was ironic that the State of Israel was committing genocide because the State itself was founded in response to a historical episode of genocide against people of a particular race.
Counsel for the appellant drew upon a range of cases from jurisdictions in this country [27] and in South Africa [28] (MFI 5) to support the propositions that: (a) criticism of Israel was not axiomatically targeted at Jewish people, even if it may reasonably be regarded by some as offensive; and (b) Jewish people, in Australia and elsewhere, are not a monolith. Counsel for the appellant also cited a decision of the United States Court of Appeal for the First Circuit in which the Court said that it was not axiomatic that an accusation that Israel was committing genocide was antisemitic. [29] However, I note that none of those cases involved the public display of a Nazi symbol.
He submitted that there was no evidence of any harm having been caused, and the Court could not take judicial notice of such a fact. The Crown put too much ‘spin’ on the facts when it submitted, for example, that the appellant put at risk the peaceful nature of the protest, or that the police officers approached the appellant because they were apprehensive about the potential risks or effects of his conduct in displaying the symbol.
Counsel for the appellant submitted that the Crown had not contended that the appellant had racially vilified Jews, contrary to s 18C of the Racial Discrimination Act 1975 (Cth), or had threatened or incited racial hatred, contrary to s 93Z(1)(a) of the Crimes Act or any other law. He was not the sort of person targeted by the proscription.
The appellant accepted that s 93ZA pursues important protective purposes. But it was important that they not be pitched at too great a level of abstraction. It did not take analysis far to say that a purpose was to vindicate the dignity of persons belonging to certain groups, or to prevent certain groups from feeling offended by acts of political communication. It also did not take analysis far to say that it was intended to promote social cohesion. Something more specific was required. This included, for example, purposes to prevent racial vilification or to prevent the incitement of racial hatred. Those purposes were targeted. The appellant contends that it is the breadth of the purposes identified by the Attorney General and the Crown which, if accepted, left the provision open to constitutional doubt.
The Court also notes that in the final tranche of his written submissions (MFI 21), the appellant characterised the position of the Attorney General and Crown on purpose as being the avoidance of serious offence from conduct falling short of intimidation of hate speech.
The appellant submits that the Attorney General and the Crown overstate the consequences of the purposes. It is not that the purposes they identified were unimportant. The issue is whether they require the criminalisation of every confronting use of Nazi symbols, including anti-fascist and anti-genocide uses in a peaceful public protest at a time of what could be regarded as an apparent genocide, where the appellant genuinely sought to express his opinion. The issue is whether that conduct, in all the circumstances that it occurred, was in the public interest.
Although a political communication is not among the non-exhaustive matters referred to in s 93ZA(3), that does not mean that robust, challenging or dissenting political communications are not in the public interest. The degree of offence or harm cannot be dispositive. It is not the case that a display must cause no, or only minor, offence before the display may be regarded as reasonable, in good faith, and in the public interest.
The appellant accepts that a display that promotes Nazism, vilifies Jewish people, invites hostility towards a racial or religious group, or seeks to intimidate, plainly fails the test of whether the display is done reasonably and in good faith for a purpose in the public interest. But the fact that a display employs inherently confronting symbolism does not, without more, establish that the display was unreasonable and not in good faith.
Care needed to be exercised when considering the Crown’s submission that an ordinary member of the community in the appellant’s position would think that the appropriate course, in order to help Palestinian people or take a stand against Israeli genocide, was simply not to display the symbol. That submission collapses into an argument that the appropriate conduct was simply not to commit the offence.
The appellant invited this Court to consider other legislative regimes in the Commonwealth and some of the states and territories. Some Victorian decisions were referred to, including Richardson v McSephney [2026] VCC 1225 which dealt with s 41K(1A) of the Summary Offences Act 1966 (Vic). The absence of an express ‘opposition-to-Nazism’ exception was not conclusive against the application of such a defence. That Parliament left it to the courts to interpret what was in the public interest is a reason to apply the statutory language according to its terms, not a reason to treat anti-fascist political communication as being necessarily excluded.
The appellant also referred the Court not only to the approach of other jurisdictions in Australia, but also the way in which other countries had criminalised the public display of Nazi symbols. This had been touched upon in some of the extrinsic material in New South Wales. [30] In particular, reference was made to the decision of the European Court of Human Rights (Fifth Section) of Nix v Germany (‘Nix’). [31] This decision had been referred to in the Magistrate’s Court of Victoria. [32] The appellant pointed out in Nix that there was a blanket legislative prohibition against the display of Nazi symbols. But there was also a personal and constitutional right to freedom of expression. A person exercising their right to freedom of expression to denounce Nazism did not fall within the scope of the offence. Reference was also made to academic commentary comparing German law and the way that Australian jurisdictions have criminalised displays of Nazi symbols. [33] Reference was also made to a newspaper report of a decision of a German appeals court which acquitted a woman whose conduct, in the course of comparing Israel to Nazi Germany in online posts, amounted to ‘protected’ expression and did not meet the threshold for incitement. [34] Finally, after judgment was reserved, but with leave, the appellant referred the Court to two decisions of two different German courts (MFI 20) and made specific submissions about them (MFI 21). [35]
The appellant submitted that there is a public interest in political dialogue between electors and others influencing election results and that such dialogue is not confined to speech that is uncontroversial or even offensive. A political communication does not automatically fall within the exception. But in a fact-intensive inquiry, a court should have regard to the character and content of the communication, its context, the speaker’s purpose, its likely meaning to a reasonable observer, and the presence or absence of promotion of an abhorrent ideology, intimidation or hatred.
The appellant submitted that he had discharged his evidential burden, when considering all of the following:

(a) The peaceful setting of a pro-Palestinian protest. The appellant was present at a political demonstration seeking peace and justice. (b) A fair reading of the placard was that it criticised the State of Israel for behaving in a genocidal way towards Palestinians. The poster did not refer to Jewish people. The State of Israel, represented by its national flag, government, its military operations and treatment of Palestinians, was a legitimate subject for criticism. The Crown’s characterisation of the placard as equating criticism of the State of Israel with a statement about Jewish people should be rejected. It is not to the point whether display of a Nazi symbol was unnecessary. That would substitute a judicial assessment of the appellant’s rhetorical preference for the statutory inquiry. (c) The display was brief, not defiant, and did not actually produce the types of harms that were apprehended. The Crown did not suggest that anyone complained about or had even seen the placard (other than police officers), and he did not persist with it after police intervention. The evidence did not appear to indicate any wilful defiance of the law. (d) The existence of other signs in the appellant’s possession indicating solidarity with the Palestinian movement reinforces the inference that his purpose was to engage in peaceful political advocacy; and not to promote, disseminate or normalise Nazi ideology. (e) The content of his conversation with police reflected a quintessentially noble purpose. His explanation to police reflected his perception that being accountable to his ‘Creator’ required him to do something to communicate his belief that Palestinians required protection from genocidal violence of the kind historically recognised as being associated with Nazism. (f) Concern about allegations of genocide in Gaza was not just the appellant’s private concern. It was a matter of widespread debate, including actions taken in the International Court of Justice and a report by a United Nations Special Rapporteur. It was a matter of public concern that extended to include what Australia’s role should be. (g) There was nothing to indicate any promotion, support or recruitment of Nazi ideology or Nazi sympathisers. (h) The circumstance that alternative means of expression, or a more polite, tactful or moderate way of making the same point, does not establish that the actual display was unreasonable or in bad faith.

The Crown submitted that the placard could not reasonably be construed as amounting to a ‘denunciation’ of Nazi-like conduct. It did not denounce Nazi Germany. It did not denounce the State of Israel for its conduct aligning with that of Nazi Germany. What was denounced was the State of Israel’s perceived hypocrisy.
The Crown noted the very public location where the conduct occurred. It was done in the context of a rally, attended by thousands of people.
The Crown submitted that although the primary judge found that it was the Israel flag that had the swastika superimposed (Second Judgment at [7]), the words of the slogan (written on the blue lines) actually obscured that, and the significant white background of the Israeli flag had been substantially reduced. The white part of the placard was necessary as the swastika (in black) on the Nazi flag was depicted against a white background. The effect of the image was to give prominence to the Star of David and the Nazi flag. The predominant background colour was red, not white. The overall effect was that prominence was given to a swastika superimposed on the Star of David. That was highly offensive to many people: Jewish people; people generally offended by the display of Nazi symbols (including, for example, members of Buddhist communities who had used the swastika before its appropriation by the Nazis); people generally offended by equating any community with Nazism; and those who apprehended the deep horrors associated with Nazi Germany.
The Crown cited judicial authority for the notion of a display of a Nazi symbol being regarded as “highly offensive”. In particular, the Crown relied on observations of Jagot and Rangiah JJ in National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159 (‘NTEIU*’*). That case concerned an academic’s application to be reinstated following his dismissal from employment for breach of a code concerning academic misconduct. That dismissal was partly based upon a PowerPoint presentation prepared by the academic. One of the slides was an ‘infographic’ featuring an Israeli flag with a superimposed swastika (which an enlarged version was depicted at [98]). The academic’s position was that that and his other conduct represented the exercise of his intellectual freedom which, by definition, could not amount to misconduct under the code and which the University had no right to prevent. Their Honours described the infographic as “deeply offensive and insensitive to Jewish people and to Israel”, although their Honours declined to consider whether or not the conduct was a form of racial vilification ([267]-[268]).
The Crown submitted that the appellant’s references to cases on different legislative provisions, operating in different legislative contexts and in other Australian or overseas jurisdictions, were beside the point. Although a conventional tenet of statutory interpretation is that a provision in the statute of one state might correspond with the meaning of the same provision in a different statute sharing the same field of operation, that did not extend to legislation in other jurisdictions: Moriarty v Nye (2024) 114 NSWLR 560 at [114].
The Crown submitted that it was irrelevant that the Crown, exercising a discretion vested in the executive, did not bring charges centred around actual racial vilification or actual incitement to racial hatred. They were relevant in the sense of helping to prove the offence in question. They were also relevant to penalty. But they were not essential elements of the offence in question. The Crown, in short, did not have to prove the conduct constituted ‘hate speech’.
The Crown took issue with the appellant’s reference to statutory purposes expressed at a high level of generality. These purposes, the Crown pointed out, were clearly and succinctly identified in the Statement of Public Interest referred to earlier.
The Crown argued Henshaw was a useful demonstration as to how reasonable excuse may play out in the context of an offence provision. I referred to the principles on which the Crown relied on the decision earlier. Applying those principles, this Court would:

As to the matter of context, a recurring thread, from the consideration of the Bill at the Committee stage, through to the Second Reading Speech, identified three purposes of s 93ZA:
to protect individuals and particular communities from hateful conduct;
to denounce those who support hateful conduct; and
to foster the strengthening of multiculturalism and respect for diversity.
Section 93ZA also falls to be construed with reference to s 93Z, a provision which preceded it in time. About s 93Z, it had been suggested that one of the purposes of that provision is protective, being to protect identified groups from threats of, or incitement to, violence; whilst another is symbolic, signifying that the community does not condone such conduct. [41]
As to this first purpose referred to in relation to s 93ZA, it is expressed in terms of harm, in various forms: deep hurt, offence, intimidation, and anticipated trauma or re-traumatisation among certain people within particular groups. It is deeply harmful because hatred directed towards a particular group can present an existential threat to that group, or persons within such group, to whom it is directed. In my view, the perceived harms to be protected against carry a connotation of exposure of particular segments of the community that had been victimised by the Nazis (and persecuted by their modern-day adherents) to the expression of hatred symbolised by a Nazi symbol. The display of a Nazi symbol is intrinsically, or at least has the tendency to be, harmful partly because it is hateful in nature. The extrinsic material suggests that Parliament virtually presumes or expects that public expression through the display of Nazi symbols is itself harmful. The public display of a Nazi symbol might, at least in some circumstances, be colloquially regarded as a form of ‘hate speech’.
Hatred informs all three statutory purposes in relation to the display of Nazi symbols. Such display risks traumatising or re-traumatising those to whom the hatred is directed, who have themselves (or know others who) suffered at the hands of the Nazis, as well as those afflicted by ‘intergenerational trauma’. The expression of hatred for baleful purposes, such as for intimidation, vilification, inciting fear, hatred (in others), or violence, is a matter that the Parliament considers needs to be denounced, and such denunciation indirectly helps to achieve (general and specific) deterrence. If it is not denounced or ‘called out’, such omission may be perceived by perpetrators as acquiescence, emboldening them, and encouraging others tempted to engage in the conduct. An indirect effect of denunciation, to repeat, is to achieve general as well as specific deterrence. Once persons inclined to display Nazi symbols for subjectively malign purposes think that they can get away with targeting one particular segment of society, the view may take hold in other persons that they too can deploy Nazi symbols against different groups, who it is expected or assumed will be especially harmed as a result. Hatred caused through vilification and incitement does not just harm social cohesion but, as will be shown, also derogates from the constitutionally prescribed system of representative and responsible government, since it can deter certain individuals within a certain group from expressing their views publicly, as well as at the ballot box. [42]
The values reflected by Nazism (including racism, fascism, militarism, and a disregard for the rule of law and democracy) are hateful in nature, and they undermine, and are antithetical to, the multicultural compact in Australian society.
All of these purposes suggest that s 93ZA is directed, fundamentally, to the prevention of expected or assumed harms, in the various manifestations described.
With respect to the eminent jurists of the German courts and the European Court of Human Rights that have interpreted s 86a of the German Criminal Code, this Court does not consider the decisions of those courts as extrinsic material, or, with respect, as providing useful assistance in the construction (or constitutional interpretation) of s 93ZA of the Crimes Act. Although reference was made in the extrinsic material referred to earlier to the fact of Germany (along with some other European nations) criminalising the public display of Nazi symbols, [43] which suggests that this provided a level of legislative inspiration, nothing was indicated as to whether particular means or particular ends were influenced by the content or interpretation of the offence in Germany or the other European countries.
Moreover, the statutory provision in the German penal code was enacted in a quite different constitutional tradition to that of New South Wales and, unsurprisingly in view of twentieth-century German history, has discrete statutory purposes that are qualitatively different to the policies influencing the New South Wales Parliament when it enacted s 93ZA of the Crimes Act.
In particular, the two German decisions that the appellant supplied to the Court, with leave, after the close of argument, identified that the purposes included the prevention of the revival of the banned organisation or the anti-constitutional aims it pursued, and the preservation of political stability by seeking to avoid the semblance of such resurgence, and the creation of the impression in others, that there is a domestic political trend contrary to the rule of law. [44] This is what the appellant generally characterised as a ‘pro-democratic’ purpose of s 86a of the German Criminal Code, of seeking to prevent the promotion and normalization of Nazi ideas (MFI 21). The purposes of denunciation and deterrence may, perhaps in a small way, dovetail with the aspiration to thwart the dissemination and promotion of Nazi ideology. It is another thing to say that the German example exhaustively illustrates the statutory purposes in s 93ZA. What is absent from this identification of purpose in the two decisions of the German courts is any reference to harms expected or assumed to be caused to certain groups by the display of the symbol.

The defence of reasonable excuse has to be considered with regard to these purposes. The interpretative task is to determine the point where a defence is given real work to do, but not in a way that substantially derogates from the statutory purposes. Reading s 93ZA(1) harmoniously with s 93ZA(3)(b), the question of what constitutes reasonable excuse under the former provision imports consideration of whether the display was reasonable and was engaged in in good faith.
The parties did not supply the Court with any authoritative (binding) statement in law as to what is meant by ‘reasonable excuse’ or a purpose ‘in the public interest’ in s 93ZA(1) of the Crimes Act.
Applying what was said in Taikato, this Court is bound to make what are substantially political judgments, or value judgments, as to what conduct which involves the display of a Nazi symbol deserves to be exempted from the scope of the general proscription.
Generally, I am inclined to respectfully follow the approach of Miles CJ in Henshaw in the application of the objective test; by considering the perspective of the hypothetical ordinary member of the community.
I find that assistance is also derived from some of the questions that the Attorney General had submitted were relevant to the analysis of whether an excuse is ‘reasonable’. In a practical sense, the trier of fact, applying the perspective of the ordinary member of the community to all of the circumstances forming the context for the display of a Nazi symbol, may (without limitation) be expected to have regard to the following matters at certain stages of analysis. To be sure, this form of analysis is not intended to be prescriptive, and there is no rigid division as to which stage the various matters fall into, but it is adopted as a practical framework for organising relevant considerations:
Whether the display was capable of causing harm to the community, or a segment or segments of the community, and articulate why that is so.
What excuse for the display is identified (on the premise that a defendant has discharged an evidential burden that there was an excuse)? The ordinary member of the community will consider the display in all the circumstances, including:

Physical circumstances. The most vivid evidence of the physical circumstances is the photograph as part of Agreed Fact 3. The public space in this case was a well-known part of the CBD of Sydney. It is also a well-known place in the Sydney CBD for a rendezvous. It is also an attractive place whereby people pass through on the way to other parts of the CBD. It is, in short, a popular public place.
The occasion was a pro-Palestinian protest rally. There were 10,000 people as part of the rally. It was not cordoned off in any way.
The photograph in Agreed Fact 3 should be viewed with some caution. It particularly illuminates the placard in question. This was in no small part due to the preponderant red background. Agreed Fact 3 indicates that it was laminated. It was intended to stick out.
The bin to which the placard was affixed was located along the public thoroughfare looking towards the fountain (heading south). It was some distance (south) away from the fountain, and some distance away from the entrance to that thoroughfare (near the statue of Governor Macquarie) to the north. I infer that where the bin was located was not a place where most persons walking along the thoroughfare would ordinarily stop (other than, of course, persons wanting to dispose of rubbish).
But because there was a placard that displayed a Nazi symbol affixed to a bin, this would naturally have been an arresting sight and would likely have been looked at, if not necessarily closely studied.
The setting for the public display. On the facts, there was nothing to suggest that any limitation had been imposed by organisers of this protest rally as to who could attend. Although it is important to take care in drawing inferences generally, the Court considers that those who attended the rally generally were, to varying degrees of intensity, sympathetic to, and wished to express their support for Palestinians (in positive terms) or to denounce Israel (in negative terms). However, given the absence of any evidence of restriction in a place as publicly prominent as Hyde Park, certain people walking down the thoroughfare in the direction of the fountain were likely to have been simply curious and not particularly partisan. The Court considers it reasonable to infer that those persons who agreed with or supported Israel’s military actions were unlikely to have been present in the precinct supporting the rally because they wanted to support the protesters. However, the possibility cannot be excluded that some persons falling even within that last category may still have been in Hyde Park for other reasons, such as facilitating ready access to places in the city that they wanted to go to. Other persons likely to pass by would include persons with no interest in the rally at all but who were simply walking through the park in transit.
Political context. The context for the display was entirely political. By displaying the Nazi symbol, the appellant was engaging in political speech, whose subject matter, the conflict in Gaza and Israel’s conduct of its military operations, potentially engaged the implied constitutional freedom.
Meaning(s) from the symbol. Language can be ambiguous. So can designs that manipulate a combination of symbols. Often there is nuance. Ambiguity in message can be useful in political communications.
In trademark cases, when a court is required to consider whether a rival mark is deceptive, the correct approach for the trier of fact is to focus upon the ‘dominant cognitive cues’ or essential elements, which strike the eye. [49]
Although the primary judge accurately described the placard as an Israeli flag over a Nazi flag with written text above and below it, that view, with respect, substantially understates what is depicted. This was substantially different, for example, to the superimposition of the swastika on an Israeli flag depicted in NTEIU.
An Israeli flag (as noted in Agreed Fact 16) is rectangular in shape, with two horizontal (sea) blue stripes (one at the top and one at the bottom) and a blue Star of David in the centre. To this should be added that between the two blue lines, there is a relatively vast amount of white colouring. The Nazi Party flag featured a white circle within which the swastika can be seen. That white circle is surrounded by a vast amount of red colouring (Agreed Fact 15).
On the placard reproduced at Agreed Facts 3 and 4, two conspicuous features emerge. The first is that there is writing on both of the blue horizontal lines. The second is that, to the extent that there is any white backdrop to the Star of David, it is significantly curtailed. The effect of these features is to significantly obscure parts of the flag of Israel. Someone seeing this flag could very easily miss identifying or recognising the blue lines since their attention would be apt to be drawn to the written text that appears on both lines. A clearly available visual impression from observation, if not close study, of what is depicted on the placard is that the Star of David has been imposed on the flag of the Nazi Party, featuring, amongst other things, the swastika.
Then there is the text: “The Irony of Becoming What You Once Hated”. It is unusual for a s**tate to ‘hate’ Nazis. The more natural reading is that a state’s people (or at least some of its people) hate Nazis. That natural reading is reinforced by the word ‘you’ on the placard. It is a personalised reference. By the time that the State of Israel came into being, Nazi Germany no longer existed. The State of Israel did not ‘once [hate]’ Nazi Germany. Rather, Jews hated Nazi Germany and the memory of it.
T**he perspective of the ‘ordinary member of the community’. In other areas of law, certain qualities, knowledge or beliefs are attributed to the reasonable or ordinary representative member of a particular ‘class’, to whom it is necessary to objectively attribute characteristics and knowledge. [50]
The Court finds that, as at the date of the alleged offending, the attributes of the ‘ordinary member of the community’ are that they:
are of normal intelligence;
have an interest in current affairs;
do not ‘live in an ivory tower’, but can and do read between the lines in the light of their general knowledge and experience of worldly affairs; [51]
are not unduly sensitive or insensitive, passionate or dispassionate, emotional or impassive; [52]
are a layperson, not a lawyer, with a capacity for implication much greater than that of a lawyer. [53]
Having regard to the extrinsic material, the facts, as well as my individual experience and understanding of people and human affairs, the Court also finds that the knowledge or beliefs attributed to the ordinary member of the community, as at the date of the alleged offending, are that they:
recognise the Star of David as a Jewish symbol of identity;
recognise the flag of Nazi Germany and the swastika as prominent symbols of Nazi rule;
understand that Nazi Germany perpetrated atrocities against Jews in the lead up to and during World War II;
understand the lingering effects or legacy of Nazi Germany for survivors and their descendants, particularly people in the Jewish community;
identify the State of Israel as being formed as a Jewish state;
are aware of many Palestinian deaths and casualties in the Gaza conflict caused by Israeli military operations;
would apprehend that the Palestinian deaths and casualties arising from the armed conflict were likely to arouse particularly strong feelings in a segment, or segments, of the community in New South Wales (and elsewhere);
are conscious of living in a multicultural society, whose citizens possess diverse characteristics of religion, race, sexuality and ethnicity, place some value upon social inclusion, and, given such diversity, accept the desirability for tolerance in the expression of differing viewpoints; [54] and
appreciate that symbols of hate, when displayed in public communications, are apt to arouse or stimulate negative emotions or feelings in those who encounter them.
I substantially agree with the Crown that, in the circumstances that I have described, the display of the symbol on the placard was capable of conveying the imputation that ‘Jews are Nazis’, although another variation, to similar effect, is that ‘Jews have become like Nazis’ in terms of their behaviours as a manifestation of their beliefs. It is unnecessary to be more precise. What was clearly capable of being understood was an association between Nazis and Jews. The ordinary member of the community might interpret this display of a Nazi symbol as capable of conveying hate towards Jews for being Jews. A message conveying hate towards Jews for being Jews was also capable of vilifying and intimidating a segment of the community that the offence was intended to protect. Arguably, a message capable of conveying hate towards Jews at a Palestinian protest rally against Israel, which was itself likely to arouse passionate feelings, also carried a real risk of inciting in those whom the appellant intended would see the display hatred against and disgust towards a segment of the community that the offence was intended to protect.
Most of what I have said in the last paragraph is affected by the wording and what is conveyed by it. But when added to the display of the symbol itself, which conspicuously conjoins a fundamental symbol of Jewish identity – the Star of David – with perhaps the foremost symbol of Nazi rule – the swastika – the display is more than capable of conveying a disparagement of Jews.
It is important to stress that in this Court’s view, it is unnecessary for the ordinary member of the community to form any view as to whether the display amounted to the actual commission of an offence, or was otherwise unlawful. That would constitute an unnecessary restriction given the objects of the proscription. To repeat, the ordinary member of the community is taken to be a layperson; not a lawyer. Moreover, the legal characterisation that the ordinary member of the community would assign to the display is irrelevant.
Accordingly, I do not find persuasive the appellant’s point that the circumstance that no action was ever brought against him under the Racial Discrimination Act 1975 (Cth) (for breach of s 18C) or s 93Z of the Crimes Act itself. Section 93ZA reflects the State’s own interest in the proscription of displays of Nazi symbols, whatever recourse private individuals may have in other statutory regimes (such as the Anti-Discrimination Act 1977 (NSW)), to obtain compensation for harm so caused. As to s 93Z, although it has some similarity in subject matter to s 93ZA, it differs fundamentally from the latter provision. It has a quite different mental element.
Nor does the Court agree with the appellant’s submission (MFI 21) that the Crown and Attorney General limited their argument about statutory purposes in s 93ZA as being confined to the avoidance of serious offence from conduct falling short of intimidation or hate speech. That submission does not reflect the Court’s understanding of the position of the Attorney General or the Crown. Conceivably the submission is related to the view that there cannot be any overlap between s 93ZA and s 93Z (in particular). The Court does not accept that there cannot be any potentially coextensive operation between the two provisions, notwithstanding the same, similar or overlapping elements. A relevant analogy that comes to mind are the personal injury offences in Division 6 of Part 3 of the Crimes Act.
It is not for the Court to second-guess the Director of Public Prosecution’s exercise of prosecutorial discretion. The prosecution was not precluded from charging the appellant under s 93ZA, but not s 93Z, where the physical element of the offence for s 93Z may have been established by the same conduct and circumstances.
The ordinary member of the community would expect that the display was more than capable of causing harm to a particular group, or segment of the community and, indeed, to the community as a whole; vindicating or confirming the virtual presumption or expectation apparent in the extrinsic material that such displays are inherently harmful. Indeed, this Court agrees with the primary judge that, set against a display of the kind seen in NTEIU, this display carried a high degree of offence.

Identifying the excuse. Not only can a political communication amount to a reasonable excuse, but it must be capable, in certain circumstances, of falling within the concept in order for the provision to survive constitutional scrutiny. Indeed, a reason for admitting the possibility of a ‘free speech’ exception in s 93ZA as falling within the notion of a purpose in the public interest, is the general tenet of statutory construction that, although a right of free speech is not, nor has ever been, absolute, clear statutory language is required to erode or curtail common law rights. [55] On this aspect, I agree that where there is a constructional choice that will mean the difference between invalidating the provision and not invalidating it, a court must choose the latter construction where that reading is reasonably open. However, the assumption has no application merely because a person exposed to sanction is able to cast some doubt about the validity of the construction advanced by the Crown. [56] For reasons that are to be explained, I do not consider that the Crown’s or Attorney General’s construction is so obviously constitutionally doubtful that the provision can only be saved by acceptance of the appellant’s construction.
Another message? The ordinary member of the community walking past and noticing this placard might accept that the meaning conveyed a denunciation of the State of Israel by means of comparison to Nazi-like behaviour, however, that would mainly be because of circumstances and context not clearly apparent on the face of the placard itself. I accept that in this there is a true innuendo, reading those words with the balance of the placard and other extrinsic matters, that it is capable of being interpreted as a comparison between the State of Israel and its conduct and the ideology and other aspects of Nazi Germany.
Targeted audience. Implicit in the Court’s finding in the Stage 1 analysis is that part of the appellant’s targeted audience comprised Palestinian supporters. However, the Court considers the intended audience was broader than that. I repeat what is said about the physical circumstances and setting for the display at paragraphs [175]-[181] above.
Moreover, the Court infers that he intended to affix the placard for a period of indeterminate duration. His mode of communication was not transient, like a social media posting in a defamation case. [57] It was intended that the placard be looked at and considered. The appellant was not waving any flag or banner, for the period he attended the rally, which was portable and could be taken away as he left Hyde Park at the conclusion of the rally. It is inferred that, but for the intervention of the police officers, he intended to leave the placard there for an uncertain period of time. This Court cannot say that, but for the intervention of the police officers, on the probabilities, he would have taken the placard away with him as he left Hyde Park, so that the further inference could be drawn that he was only intending to influence those who, like him, had attended the protest rally that afternoon. Nor was there evidence in the Local Court that protest rally organisers had any policy or procedure for the disposal of placards that displayed Nazi symbols and which were affixed to objects during the rally. It is not open to find that the appellant intended the placard to be present for the period of time corresponding only to the duration of the protest rally and no longer. This is not a case, therefore, where the appellant was only, in effect, ‘preaching to the converted’. His target audience for the political message he was communicating was broader than the persons who attended the protest rally in support of Palestinians.
What wa**s known about the appellant? This is relevant to the separate aspect of ‘bona fide’ belief. But it is also relevant to the objective inquiry. The appellant elected not to give evidence in the Local Court. He did not apply for leave to give fresh evidence in this Court. He relied upon the inferences that were available from his conversation with the police officers. This is not a case, as sometimes happens, where judges in this Court might give deference to the views of Local Court judges about the credibility of explanations given by defendants because of the advantages that they have in seeing and hearing all of the evidence.
All that the appellant pointed to was the part of the conversation in Agreed Fact 12. Very little else was known about the individual characteristics of the appellant, his background or intelligence. An aspect of his knowledge was an essential element of the offence. It can be inferred that he believed that Israel had committed, or was committing, genocide against Palestinians in Gaza. This last inference was the subject of a specific finding by the primary judge. It can further be inferred that he wanted to help Palestinians. It can readily be accepted that he attended the rally to both support Palestinians and to denounce Israel. This is all a statement of motive, at a general level. It was a statement of his objectives or his ends.
Was it necessary to display the symbol to communicate the message? However, what is ambiguous or unclear, when one considers the account the appellant gave to the police officers, is his reason for the means he chose to give effect to those ends. This was particularly important in a case like this since his argument was that his ends and means were so obviously assimilated as to engage the constitutional implied freedom. But the appellant’s account, to the extent that it could be ascertained by his conversation with police contained in the agreed facts, raised more questions than it answered, such as why he chose to display this placard, and possibly another Nazi-related sign (it being unclear whether that also amounted to a display of a Nazi symbol) on a nearby palm tree in order to denounce Israel, in preference to the ‘non-offensive’ signs he had in his possession referred to in Agreed Fact 9. There was no agreed fact about what the expression ‘non-offensive’ signs meant (and they were not apparently in evidence in the Local Court, nor in this Court). I take that expression to mean (at least) signs that did not bear a Nazi symbol. I also take the expression to mean that they could be interpreted as being at least ‘pro-Palestinian’.
The police officers did not ask the appellant why he chose to display signs with Nazi symbols. They simply told him not to use them. His dual purposes in attending the rally could arguably have been served by displaying ‘non-offensive’ signs just as much as they were by displaying Nazi symbols. Those purposes were two sides of the same coin. Before the intervention of the police officers, was it his plan to display all his signs (the non-offensive ones) or was it just the signs that bore the Nazi symbols? If it was only his plan to display the Nazi symbols, why did he bring the non-offensive signs in his bag at all? His counsel was quick to correct an impression created by the appellant’s written submissions in chief that it was the appellant who had fabricated the design of the symbol. If there was a non-offensive sign which still conveyed denunciation of Israel in a separate way, without the Nazi symbol, there would be less justification for publicly displaying a Nazi symbol (and particularly this Nazi symbol, with the reasonable imputations the Court has found were conveyed). He did not say, for example, that it was necessary for him to display the Nazi symbol as there was no other way of getting across the message that he wanted to convey.
To be sure, the appellant bore no onus of proof, and there was no expectation that he would give or call evidence. There may have been good reasons for his not doing so, and those omissions cannot act as a makeweight on or fill gaps in the prosecution case. The prosecution at all times carried the onus of proof on all elements (including disproof of reasonable excuse). The Court is not, however, drawing inferences adverse to the appellant from these matters. The Court was invited by the appellant’s counsel to make a positive finding beneficial to the appellant about something only he knew about in an evidentiary vacuum. Put another way, there is no evidence in this case that would enable the Court to find that the appellant actually thought that it was necessary for him to display a Nazi symbol, as distinct from other signs he had in his possession, in furtherance of his motives of denouncing Israel (or influencing others to denounce Israel) or advocating for Palestinians. It therefore does not accept the submission made on his behalf that the Court can find that he selectively or conscientiously chose to display this particular placard because he was astute to the greater potential or actual political impact of displaying a Nazi symbol in conveying his political message in comparison to if he had used the ‘non-offensive’ signs or engaged in other acts of political advocacy that were pro-Palestinian or anti-Israel.
The ordinary member of the community would consider that, if the appellant’s explanation as to what motivated him to attend the rally was right, his point was to galvanise others in the public to take steps, including advocacy from government, to stop what he considered to be genocide against Palestinians; not to engage in conduct that may have had the tendency to vilify, intimidate or incite hatred against Jews. The ordinary member of the community would not consider that a person motivated to denounce Israel and help Palestinians would need to resort to the display of this particular Nazi symbol to vindicate his asserted beliefs. Other alternatives were available. Since, as the Court has found, denunciation of Israel and support of Palestinians were effectively two sides of the same coin, he could have used the non-offensive signs he had in his possession. He could have joined in protest chants that denounced Israel, or its political or military leaders. Instead, he chose to display a symbol that reasonably carried the imputations the Court has found, which was more than capable of causing harm to segments of the community and social cohesion more generally. By this display of a Nazi symbol, the ordinary member of the community would regard the display as being unreasonable not only because of its likely effect on the group targeted by it, but because it was disproportionate to the appellant’s avowed purpose for attending the rally.
Effectiveness of the display in communicating the message. This Court accepted earlier that the appellant is not a neo-Nazi. This Court accepts that he was not promoting Nazism. This Court has indicated that although he was motivated at a generic level to denounce Israel for what he regarded as its genocide, that did not explain his choice of symbols. There is force in the view of Ms Crown that, viewing the placard in isolation, and taking a favourable view that the design of the symbol was such that it (only) targeted the State of Israel, the Court is unable to find that he was overtly denouncing Nazism, as such, but was, from his perspective, only comparing Israel to Nazi Germany.
Although this Court has made certain observations about the absence of relevance (or probative value) of German jurisprudence on s 86a of the German Criminal Code, it notes in passing that the appellant’s position was not substantially dissimilar to the offender in Nix, where the European Court of Human Rights found that there was nothing in the text of the impugned blog in that case that referred to racism or discrimination (at [53]), or any clear and obvious opposition to Nazi ideology (at [54]), and that although the defendant in that case may have intended to contribute to the debate on a matter of public interest, his use of the Nazi symbol was determined to be gratuitous. If there was any denunciation of Nazi Germany by the offender in Nix at all, it was found to be only indirect.
There is much to be said for the view that similar findings might be made about this display by the appellant. There was no cross put through the swastika, or any other ‘negatory’ (to adopt the appellant’s expression in MFI 21) indication in the display expressly conveying disapproval of Nazism. His display of the symbol, in the form in which it appeared, mixed up, to the point of obscuring altogether, the message which his counsel ascribed to the protest rally as a whole.
Did a message predominate*?* Even though I consider that the meaning propounded on the appellant’s behalf is reasonably available, in my view, the preponderant or dominant meaning is that the message of the symbol crossed the line from a message of denunciation of the State of Israel to being capable of being regarded by the ordinary member of the community as vilifying, intimidating or inciting hatred of Jews.
But even if the Court was unable to express a view as to its preponderant meaning, the circumstance that there was, objectively, ambiguity which, either by design or by effect, could allow persons to display this placard with plausible deniability as to its meaning was a matter that, objectively, pointed to the conclusion that it was not reasonable to publicly display it. It is not the position, as in defamation law, where the Court needs to fix upon a single meaning. It was not reasonable since, as explained, it is virtually presumed or expected that the public display of a Nazi symbol will cause a particular segment, or segments, of the community to suffer harm and adversely affect social cohesion. If there is any ambiguity, that would not mitigate the risk of harm to a segment of the community and sowing discord that is expected or assumed and which, as explained, underscores the scope of the defences to the prohibition under s 93ZA of the Crimes Act.
Mitigation. It is relevant, when considering the defence of reasonable excuse, to ask whether it can reasonably be apprehended that the conduct asserted to be excused would mitigate the harms to the groups that are presumed to occur because of the display. It appears to the Court that that this is another way of describing what the primary judge said about the scope given to the defences generally. For the specific matters in ss 93ZA(2) and 93ZA(3)(a), the display of a Nazi symbol in a particular context can be said to involve freedom of expression (and communication) that may reasonably be apprehended to mitigate harms to the group or groups presumably affected by the display and, what is more, the communication occurs where the ordinary member of the community would perceive that no harm was deliberate or intended by the display.
This view is not advanced in absolute terms, since there may be circumstances where it is determined that the public interest in the display is of such importance as to override the harms presumably caused to certain groups. Here, of course, the appellant invokes the implied freedom as one such category of case. But as will be explained, even when considering the implied freedom, a court is not necessarily presented with a binary choice, since communications can be made in different ways. Further, because harm or harms is or are expected or presumed to flow from the display of a Nazi symbol to a particular group or groups, and because the defence of reasonable excuse is linked, as I think it should be, to whether the conduct can reasonably be apprehended to mitigate those harms, in my view, a court evaluating whether the conduct can be excused should not resort to any categorical assessment of probability that harm will or will not be mitigated by the display in all the circumstances. There was no mitigation here.
Does it make any difference if the appellant is not a ‘neo-Nazi’**? I accept that the legislative context indicates that an earlier version of the Bill appears to have been spurred in the early part of this decade due to a rise in neo-Nazi activity and its role in inciting hate behaviour and hate crimes (Committee Report at 1.5). Similarly, the Statement of Public Interest indicated that the New South Wales Government was responding to reports of rising incidents of antisemitic and far-right extremist activities in New South Wales. There is nothing to suggest that the appellant is a neo-Nazi.
This argument of the appellant, however, has more to do with motive rather than the objective evaluation of conduct, which is critical to the determination of whether there is a reasonable excuse. As previously noted, there was a tendency in the appellant’s argument to elide any distinction between ends and means. Conceivably, and other things being equal, the ordinary member of the community might regard it as less harmful for a Nazi symbol to be displayed by a Palestinian protester demonstrating against the Israeli Government than by a neo-Nazi. But a Nazi symbol was weaponised all the same, with the imputations noted earlier. To ascribe significance to the appellant’s identity or beliefs would tend impermissibly to make the protections contingent upon the identity of the perpetrator and their particular beliefs. It would be contrary to the statutory purposes to exempt the appellant from the application of the proscription by reason of his identity or beliefs.

Relevance of denunciation and deterrence. To adopt the appellant’s construction that the display of Nazi symbols is punishable only because of a certain subjective characteristic of an offender (their beliefs, ideology or motive for displaying the symbol) would substantially derogate from the statutory purposes viewed in combination. One of those, perhaps unusually for an offence, is denunciation (which is closely associated with general deterrence); which is a well-known sentencing consideration. Parliament made it clear that its intention was to stamp out the public display of Nazi symbols subject to very limited exceptions. To reiterate, if the conduct was not denounced, but was excused because of the profile or characteristics of a particular offender, then it could be repeated by others who might be expected to be prone to engage in offending of this type, perhaps with more malign purposes. It could also encourage persons to weaponise a Nazi symbol against other groups that historically had been targeted by Nazis, such as persons in the LGBTIQA+ community and people with disabilities; in relation to causes or issues of particular concern to such other groups. If not denounced, it could normalise the use of a hate symbol, and even frustrate attempts to clamp down on neo-Nazi efforts to revive Nazi ideology.
I agree with the primary judge that it may be possible to conceive of a display of a Nazi symbol in a constitutionally protected political communication. However, applying the emphasis in the authorities upon the discretionary judgment (in the sense advocated by the Attorney General) being brought to bear in the individual circumstances, whilst having regard to the scope of the subject matter and legislative objects, I agree with the Crown that it would too easily defeat those objects to accept that it was reasonable to display the Nazi symbol the subject of this case, which could reasonably have conveyed a message of intimidation and vilification, and carried the risk of inciting hatred of Jews, merely because the political communication was motivated by a person’s bona fide desire to help an oppressed or suffering people.
The Court finds beyond reasonable doubt that the Crown has negatived the notion that it was reasonable for the appellant to display the Nazi symbol.
It is unnecessary to decide the separate question whether the Crown also negatived the notion that he displayed the symbol bona fide.

The appellant describes s 93ZA(1) as an exceptional kind of prohibition on communication since it limits political communications by reference to their content irrespective of their effects (such as provoking a breach of the peace, vilifying other persons or causing distress). Repeating what he said on the construction issue, a prohibition intended to avoid social disharmony feared from public demonstrations is incompatible with preserving a free society upon which democratic institutions depend. Public debate can cause offence. The implied freedom is not limited to communications that are polite, rational, and peaceful. It protects communications raised by or supporting minority or unpopular views.
The appellant submits that the Local Court erred when it reasoned that communications about the display of a Nazi symbol were not particularly important to public debate in Australia. This was not supported by evidence and was not a matter upon which the primary judge was entitled to take judicial notice of. The display of Nazi symbols will often, even typically, be offensive. But not always. It may even be offensive to some people or in some circumstances, however, the implied freedom applies irrespective of whether or not a communication is offensive. The proscription of a category of communication that is likely to offend might be a legitimate means to some other end, but to argue that it is a proper end in itself misconceives the scope of what the implied freedom protects. By reasoning that the burden on the communication was slight because the content was seriously offensive, the primary judge elided the line between legitimate and illegitimate debate.
The appellant addressed each of the stages in the Lange test.
As to the first stage, the appellant submitted that it was necessary to be specific about the burden. It needed to be relevantly incremental in the sense that the law imposed a burden beyond existing restrictions. In some cases, there was no burden in the requisite sense given the existing illegality of the conduct.
The burden on the implied freedom was direct and substantial. This was so because the provision criminalises a (symbolic) mode of political communication, subject only to a reasonable excuse qualification. The burden is direct because it targets the communicative act itself: the public display of a Nazi symbol. Given that it attaches criminal liability to expression in the public space, the burden is substantial: it has a chilling effect on political communication. The circumstance that the boundary between the general prohibition and the carve-out for reasonable excuse is unclear may be contestable, but the defence does not effectively reduce the burden so that it is only minor. In other words, the potential availability of a defence does not make the burden slight.
In her oral argument, counsel for the appellant said that the impugned provision was ‘viewpoint’ neutral, in the sense that (subject to reasonable excuse) it could capture communications for or against Nazis, but it was not ‘content’ neutral. Counsel referred this Court to observations of Gageler J in Clubb v Edwards (2019) 267 CLR 171 (‘Clubb’) (at [170] and [183]) where his Honour said that for some types of laws, more was needed than simply establishing a legitimate purpose: there needed to be a ‘compelling’ government interest for laws that target content. They require close scrutiny. Counsel submitted that this particular observation had not been fully accepted, although it was discussed by the Full Federal Court in Hanson. This law affected political speech even if, in its form, it was value neutral; unless a court was to find that someone would be permitted to display a Nazi symbol to denounce some foreign government apart from Israel, for engaging in conduct reminiscent of Nazi Germany. Close scrutiny is required because s 93ZA(1) is a content-based prohibition. It singles out a particular category of political symbol and makes its display criminal.
As to the second stage of Lange analysis, to repeat, the appellant said that the primary judge mischaracterised the purpose of the law. But if the appellant was wrong in that, the law was still beyond power.
The appellant does not say that there can never be justification where a purpose of the law is to prevent offensive speech. But with reference to the cases of Clubb and Monis, the proponent of the impugned law could not satisfy the requirement of justification upon the burden merely because the law restricted seriously offensive speech per se. Those cases indicated that an additional basis for justification could include a purpose, stated at a high level, of enhancing ‘dignity’. [58] The concept of ‘dignity’, however, encompassed many potential values, including, amongst other values, the right not to be subjected to ‘hate speech’.
If, as the appellant contended, the only purpose of the law was to protect against what might broadly be described as hurt feelings, stemming from seriously offensive speech, this would not be enough on its own to amount to justification. If, on the other hand, restrictions were imposed that were pro-democratic and sought to prevent the normalisation of Nazi ideology or ideas which were corrosive of the rule of law or which could result in persons being dehumanised because of vilification (say), then the proscription upon the display of Nazi symbols would be justified.
A desire to preserve social cohesion irrespective of the purpose of a communication that might be upsetting, inflammatory and divisive was rejected as constitutionally legitimate in Jarrett and so it should be here. To limit a category of political communication cannot be a legitimate end in itself.
As to the third stage, once the Local Court erroneously characterised the impugned provision in the way that it did, it was inevitable that the proportionality stage (in each of the parts of the structural analysis) would be reached.

The appellant did not dispute that s 93ZA was, at a general level, ‘suitable’ in the sense of being rationally connected to a legitimate objective of preventing the public promotion or normalisation of Nazi ideology. But on the construction adopted by the primary judge, which could capture anti-fascist, denunciatory communications about Nazism, the provision was apt to have a chilling effect on political communication and would undermine the mischief.
The appellant submitted that the Local Court’s construction of ‘reasonable excuse’ was not ‘necessary’. There is an alternative, less burdensome and compelling approach if reasonable excuse were construed as extending to good faith political communications where the Nazi symbol is used to condemn or criticise Nazism, or to communicate an anti-fascist message. In this case, the appellant says his communication was self-evidently political and denunciatory. A construction of the provision capturing his conduct is not necessary to achieving the legitimate end of preventing the re-emergence of support for Nazi ideology.
The Local Court erred when finding that the provision was adequate in balance because of its view that political communication might only be excusable when it caused only minimal or slight harm. That approach was tantamount to suppressing political communication because it is offensive or divisive. To the contrary, the Local Court’s construction of reasonable excuse in s 93ZA imposes a heavy burden on political communication by criminalising a mode of symbolic expression and confining the excuse to a narrow and uncertain category for a marginal benefit.
In addition, the appellant submits that his construction of s 93ZA should be preferred so as to avoid invalidity (Interpretation Act 1987 (NSW), s 31(1)). Alternatively, s 93ZA should be severed and disapplied to cases involving the display of a Nazi symbol for the purpose of denouncing the present-day manifestation of ideas that the symbol represents. Further, if that is not possible, the provision should be invalidated in its entirety.

To repeat, the Attorney General submitted that the Court can accept that the same statutory purposes relevant to the construction issue apply to the constitutional question.
The Attorney General referred in detail to the High Court’s decisions in Coleman, Monis, Clubb and Farmer v Minister f**or Home Affairs (2025) 425 ALR 116; [2025] HCA 38 (‘Farmer’) for what was said about the significance of purposes that were protective of persons being offended.
In Coleman, of the Justices that formed the majority, different approaches were taken. For example, McHugh J characterised the law as amounting to an ‘unqualified prohibition’ upon insulting language in a public place. It was not open to the State to argue that the proscription could be justified on the basis of avoiding a breach of the peace or preventing persons from being intimidated into silence (at [101]-[105]). The Attorney General argued that this case was far removed from Coleman: the protective purposes were not simply to prevent hurt feelings, or to promote the civility of political discourse. If the appellant wanted to rely upon Coleman, the Attorney General argued, he would have to argue that the display of Nazi symbols was integral to the system of representative or responsible government.
In Monis, the legislative proscription was against using a postal service in an offensive manner. Monis was a problematic case: not only for the outcome of a divided decision (a 3:3 split), but also because it appeared that at least French CJ and Hayne J (separately) were influenced by a view that the purpose was confined to the prevention of the conduct that it prohibited ([73]). Transposed to this case, the purpose would simply be the prohibition on the display of Nazi symbols. But some doubt has since been expressed about the correctness of this view, [59] and no party supported its correctness in this Court. The Attorney General pointed to the indication in the plurality’s judgment (at [281]) to the effect that it would be a rare case where a conclusion of ‘outright incompatibility’ would be reached and, where it was, that would be because of the object of the legislation.
The Attorney General referred to the judgment of Gageler J in Clubb at [196] where his Honour said that Coleman and Monis should not be understood as authority for the proposition that a purpose of curtailing unsolicited, unwelcome, uncivil or offensive speech was incompatible with the constitutionally prescribed system of representative and responsible government. Protecting against unwanted or offensive communication was a permissible purpose, the capacity of which was to justify a burden on political communication which varied in the circumstances. In some contexts, that purpose was insignificant. In other contexts (including, it was said, the context for this decision), the purpose could be ‘compelling’.
The Attorney General also referred to the judgment of the plurality where, at [51], reference was made to the value of ‘dignity’. The ‘anti-abortion’ activist was not exercising any particular dignity when protesting against the woman who approached the facility. The aspect of dignity was relevant from the perspective of the woman whose dignity in being at peace as she approached the abortion clinic was threatened by the protester foisting political communication upon her. The Attorney General reasoned from Clubb, by analogy, to submit that people, but especially those who had been targeted by Nazis, or Nazi ideology, had a vested interest in going about their lives in public without being exposed to Nazi symbols, or political communications wrapped up in Nazi symbols.
Reference was then made to Farmer: a visa decision concerning the Minister’s power to refuse a visa if they found that the applicant did not pass a character test. One criterion was the risk that the visa applicant would incite discord in the Australian community or a segment of that community. This was construed as requiring proof of a real or appreciable risk that the person would stir up or encourage harmful or deleterious dissension or strife in the Australian community or a significant part of it. This included intimidation, vilification or victimisation of, or disruption within or to, a segment of the Australian community. At [54]-[55], the plurality explained that this purpose was ‘legitimate’. The Attorney General relied upon that reasoning in relation to s 93ZA.
The Attorney General submitted that the statutory purposes he identified are ‘legitimate’, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The purposes that the Attorney General referred to could be characterised as protecting the ‘dignity’ of the people of the Commonwealth [60] and enhancing the system of representative and responsible government as they promote participation in public life by persons who might otherwise feel discouraged from participating because of the public display of such symbols. Government action taken to enhance social cohesion is a legitimate end in this context. [61]
The Attorney General submitted that it was wrong for the appellant to say that the state of the law in this area was that it was not a legitimate purpose to restrict seriously offensive speech (because of apprehension of the harm it might cause) per se, that is, without an additional legitimate purpose. There were indications that this was legitimate in the Full Federal Court’s decision in Hanson. At [153]-[154], the Full Federal Court indicated that a purpose of s 18C of the Racial Discrimination Act, of preventing offensive conduct of a certain quality, was legitimate. The real debate would centre on the third stage of Lange.
What the Court of Appeal said in Jarrett had to be viewed in the context of the legislation before it. The legislation in that case was not directed to preventing breaches of the peace or social disorder as conventionally understood. It was directed at public assemblies generally, which had formed part of the constitutional tradition in the country. The mischief was public assemblies themselves (at [118]-[122]). The Court of Appeal was not saying that a measure to promote social cohesion was an illegitimate purpose. It was saying that it was illegitimate for a law to restrict public assemblies. This was the core reason the legislation in that case was invalidated.
In this case, there was no core tradition of anyone displaying Nazi symbols. Parliament had taken the view that the display of such symbols was especially harmful. Conceivably, there were coded messages, or they were emblematic of certain matters. They were more intractable, say, to words. But symbols could also be misunderstood in the absence of words used by persons which explained or elaborated on their meaning. Here it was Nazi symbols (not part of the constitutional tradition) which were the mischief to which the proscription was directed; not public assemblies (which were part of the constitutional tradition).
The Attorney General noted another point from Jarrett. There was a legislative inflexibility in that case: once a public assembly restriction declaration was made, it did not distinguish between different assemblies. It could not be tailored.
Section 93ZA was not, contrary to what the appellant said, a blanket prohibition subject to a reasonable excuse defence. The reasonable excuse (or its absence) was an essential element. Providing for a defence in this way was the antithesis of a blanket prohibition. It was capable of being tailored (by courts) to deal with individual circumstances.
The provision was reasonably appropriate and adapted to achieving its legitimate ends.
Before addressing ‘structured proportionality’ analysis, the Attorney General made several other points. First, there was only a very slight burden on the implied freedom. The appellant was capable of conveying his message (whatever that was) without publicly displaying a Nazi symbol. The proscription related to conduct in public. An element of the offence was an accused’s knowledge that what they displayed was a Nazi symbol. An exception was provided for ‘reasonable excuse’ (which the prosecution had to negative if it was raised). The Attorney General referred to the circumstance that there were other legal restrictions upon a person’s ability to publicly display a Nazi symbol. The burden imposed by s 93ZA should be viewed as an incremental increase added to the burdens imposed by those other restrictions.
Secondly, the Attorney General took issue with the appellant’s point that the use of a symbol was an important part of a political communication. That was contentious. But even if it was, a person intent on making a political communication could do so without the display of the symbol.
Thirdly, the Attorney General qualified something that was put in written submissions. He had submitted that s 93ZA was a ‘content-neutral’ provision (it being open to anyone to communicate some message without the symbol), so that it engaged the distinction drawn by Mason CJ in Australian Capital Television at 142-143, between restrictions on ideas or information and those which restrict the mode of communication by which ideas or information are transmitted. The Attorney General somewhat qualified this in oral submissions. Counsel submitted that if, and to the extent that, a Nazi symbol has any communication content that cannot be captured by words, this provision did constitute some level of content regulation. This, however, was theoretical. No party had suggested that the symbol on the placard in this case could not be conveyed by words. If what the appellant said about his intentions was true, then his message could be conveyed without displaying the Nazi symbols (both the Nazi flag as a whole, and the swastika by itself).
Fourthly, the Attorney General emphasised the open-ended nature of finding a reasonable excuse. This, he argued, was virtually sufficient to ensure constitutional validity by reference to a line of authority in this area. [62]
Fifthly, the purposes of s 93ZA, as evidenced by the constitutional fact material, were especially important. [63]

The provision was ‘suitable’. It was rationally connected to the objects of the provision. The Attorney General submitted that the appellant’s attempt to diminish his concession that s 93ZA was ‘suitable’ should be rejected since it was based on an erroneous understanding of legislative purposes.
The Attorney General argued that should the Court accept his contention that the burden on communication is slight, then this feeds into the necessity analysis.
The appellant’s suggested alternative – excluding from the scope of the prohibition public displays of the symbol to denounce Nazism or Nazi ideology or ideas – would not achieve the purposes of the provision to the same extent.
The Attorney General submitted that the balance is adequate. The burden on political communication is slight. The legislative objects are substantial. There are inherent safeguards: there is the ‘reasonable excuse’ qualification which could permit communications to occur where the prosecution has not negatived reasonable excuse. This involves the trier of fact deploying value judgments based on all the facts, and the onus is on the Crown to negative the defence to the highest standard of proof. The Attorney General referred to Hanson, where the Full Federal Court referred to certain matters suggestive of the potential invalidity of the provision in question there, but still the Full Federal Court upheld the validity of the provision in its conclusion. Important findings that led to that result were the Full Federal Court’s findings that the law had the potential only to affect a relatively narrow segment of political communication; that most if not all instances of genuine political communication that prima facie contravened the proscription would fall within a specific exemption; and, that sometimes government intervention was required to ensure that the voices of other persons could be heard ([180]-[184]). He also referred to Wotton as authority for the proposition that where a statutory provision vests a decision-maker with a wide range of considerations, it would be expected that the decision would be made consistently with constitutional limits.
Where the appellant had submitted that the message he wished to communicate was part of the mainstream (i.e. Israel being run by a right-wing Government evincing fascist tendencies), he misunderstood the category of conduct proscribed by s 93ZA. The provision proscribed the display of symbols; not his capacity to communicate messages about the State of Israel or any other foreign state. It may be seen that the topic of the public display of Nazi symbols was at the periphery of political communication.
The point raised by the appellant that the defence may not capture political communications to denounce Nazi ideology does not suggest an inadequacy in the balance. Such a defence could easily be claimed and would be difficult to challenge. [64]
The Attorney General submitted that the material comprising Exhibit B was irrelevant to constitutional validity. This included the argument that the conduct of the café proprietor in the Australian Capital Territory may have been caught had such conduct been engaged within the jurisdiction. The circumstance that no charge was laid against him indicated nothing other than the exercise of prosecutorial discretion in a certain way.
The decision of the United States Court of Appeals was, with respect, irrelevant to deciding constitutional validity here.
The Attorney General also submitted that recourse to Victorian or other state legislation did not assist. Victoria and New South Wales had taken different approaches. To adapt the Victorian approach to ‘reasonable excuse’ would not achieve the purposes of the New South Wales legislation, including the need to foster multiculturalism. Counsel referred to observations of Nettle J in Brown v Tasmania (2017) 261 CLR 328 (‘Brown’) at [282] and [286], and Edelman J in Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at [253]. The Attorney General similarly submitted that the German decisions that the appellant brought to the Court’s attention after judgment was reserved did not establish any absence of proportionality or that s 93ZA was not reasonably appropriate and adapted.

The appellant submitted that if, contrary to his position, the Crown had made out his guilt of the offence, it would mean that s 93ZA would operate as a criminal prohibition upon a form of political communication used to criticise a foreign state and alleged genocide, despite the display being anti-fascist and anti-genocide in its purpose. That would amount to a direct burden on political communication in its operation and effect.
As to the aspect of marginal benefit, the appellant argued that the Attorney General and Crown should not be accepted when they minimised the extent of the burden. It was easy to say that there is no value in the display of Nazi symbols. It was not right to say that this was only a slight burden and therefore required lesser justification. His counsel referred the Court to some newspaper articles (Exhibit B [65] ) in which a former Prime Minister of Israel and a former Israeli Defence Minister had expressed their opinions, to paraphrase, that right-wing fascism had taken hold over Israel. This was, it was said, of a piece with what Fagan J had said in Farhat, in which his Honour had remarked upon a diversity of views amongst persons within the Israeli community itself about the nature of the operations the Israeli military had conducted in Gaza.
The appellant was prepared to accept that some people would have been offended by the placard, or would consider it inflammatory or provocative. The Crown had not shown the degree to which there was such harm, and it could not be inferred that all Jewish people disagreed with the sentiments underlying the placard or that a majority of Jewish people would have felt denigrated by it.
The scope of the proper objects of the impugned law should not exceed their rationale. It would be exceeded if it caught acts of denunciation of the ideas represented by the symbols. Once it was accepted that the appellant was motivated to speak out against genocide, this was a ‘dignity’ interest he would lose if the Crown was correct.
Counsel for the appellant referred to Jarrett. She emphasised the dramatic context in which the impugned laws were enacted, not long after the attack at Bondi in December 2025. Some of the protective purposes said to lie behind that legislation were, it was said, evident in s 93ZA, but even so, the Court of Appeal had still determined that a clamp-down designed to further social cohesion was ultimately not compatible with the freedom.
Counsel submitted that the Attorney General’s citation of Wotton on the third stage of Lange analysis was inapposite. On the facts in that case, a parole board had a discretion to impose conditions. This Court was not exercising a discretion when deciding whether ‘reasonable excuse’ was negatived by the Crown.
Counsel disputed the Attorney General’s submission that the appellant could have made his political point by the use of words. She referred to the observation of Edelman J in Clubb (at [455]) about the power of symbols. A picture paints a thousand words. She tendered photographs of posters displayed in museums that displayed Nazi symbols (Exhibit C). These (and the newspaper clipping regarding the proprietor of the café in Canberra in Exhibit B), she submitted, would be caught by the proscription if they were publicly displayed now. There is an obvious and available alternative, with a lesser burden: comprising the construction of reasonable excuse that he had propounded.
But if the Crown was correct to say that s 93ZA did not accommodate speech acts in opposition to Nazi ideology, that position was at odds with developments in other jurisdictions, principally Victoria.

When a court determines this limb of the test, the focus is upon what mischief the law is designed to address. [66] This was addressed in the earlier treatment of the construction issue. Section 93ZA is protective in the sense of protecting a segment, or segments, of the community in New South Wales from the risks of harms which are presumed or expected will be suffered, arising from the display of Nazi symbols. I reject the appellant’s argument, which merely characterises the purpose as the protection of certain people from receiving ‘offensive’ political communication. The purposes are broader than that. The extrinsic material is replete with references to ‘profound distress’ and ‘intergenerational trauma’. To adapt what the plurality said in Farmer, [67] Parliament contemplated that it was not just injured feelings or sensitivities capable of being engendered by displays of Nazi symbols in certain segments of the community that had historically been targeted by Nazis. Weaponising displays of Nazi symbols against segments of the community is apt to do several harmful things: it may, among other things, intimidate, vilify or victimise a segment of the community. [68]
Further, I agree with the Attorney General that the purpose of protecting a certain segment, or segments, of the community from the presumed or expected harm is coextensive with protecting the dignity of persons within the Commonwealth, [69] including not having a particular form of political communication – hate speech – foisted upon them. This is not just a matter of private interest to individuals within the particular segment of the community targeted by the display of a Nazi symbol, but has a correlative public interest as well. The display of Nazi symbols, in and through the course of political communications, can deter and discourage persons who are targeted by the display, as they may seek to avoid or limit exposure to the particular source of harm, from fully participating in the political life of the community.
In this way, even if this Court accepted the appellant’s argument that it is not a legitimate purpose (in the constitutional sense) to regulate seriously offensive speech per se because of the harm assumed to be caused to a certain segment or segments of the community, in this case there is a complementary purpose which buttresses or reinforces the legitimacy of that purpose. The harms to particular segments of the community of New South Wales contemplated by the public display of Nazi symbols are likely to travel well beyond the sort identified in Coleman or Monis, being hurt or injured feelings caused by being upset, insulted, offended or humiliated, or being sensitive to views that are regarded as inflammatory or divisive, which is readily expected to be endured by those who enter the political marketplace. To reiterate, displays of Nazi symbols are capable of traumatising (or re-traumatising) prominent segments of the Australian community. In Eatock, Bromberg J (at [217]) quoted the following passage from a decision of the Supreme Court of Canada [70] that is apposite in the constitutional context:

The proscription is viewpoint neutral; even though, in practice, the appellant may be right that the display of a Nazi symbol would be more likely to be done by a person seeking to promote Nazism. But as was said in Clubb, the privacy and dignity of particular groups intended to be the beneficiaries of the legislation – those who were historically targeted by Nazis and those who still are targeted by those sympathising with Nazi ideas – may be adversely affected even by persons who do not seek to promote Nazism (at [56]). For reasons previously explained, the Court considers that, in the circumstances of this case, the display of the symbol carried a reasonable imputation of vilifying or intimidating Jewish persons and carried the risk of inciting hatred or disgust against them, and that it was to be expected or assumed that the display would cause harm, without the need to prove such harm, or even to prove the appellant’s intention to produce that result. This object is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
I agree with the Attorney General that the New South Wales Court of Appeal should not be taken in Jarrett to have determined that a measure intended to promote social cohesion can never be a legitimate purpose in the constitutional sense. [72] I also agree that the mischief targeted in that case (in the way that the law was drafted) was the inflexible barring of public assemblies, which was a vital part of the country’s constitutional tradition. The public display of Nazi symbols was not. Parliament did not attempt to curb political debate inside Australia that compared foreign states with Nazi Germany.
On a constitutional level, this case is similar to Sunol, in which decision Allsop P (with Basten JA agreeing at [94]) pinpointed (at [73]) certain subject matters as being of a character where care was needed to be taken in discussion of them in order that forces of “anger, violence, alienation and discord” were not fostered. His Honour noted that a diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups is entitled to require civility, reason or good faith, and it was for Parliament to choose such topics to “entrench” upon. The topic in that case was homosexuality, and the Court of Appeal determined that the law proscribing vilification (s 49ZT of the Anti-Discrimination Act) was compatible with the system of representative and responsible government (at [72]-[73]). Although Monis and Coleman were referred to by the Court of Appeal in Jarrett, Sunol was not referred to. This fortifies this Court’s acceptance of the Attorney General’s submission that to the extent that the Court of Appeal in Jarrett addressed the value of social cohesion, it did so in the particular context of a law whose mischief was the restriction of public assemblies.
The objects in s 93ZA of the Crimes Act are constitutionally legitimate.

Having accepted that s 93ZA effectively burdens the implied freedom of communication, but does so for a legitimate purpose (indeed, purposes), the remaining question for the Court is whether the means are reasonably and appropriately adapted to achieve the legitimate purposes.
The primary judge noted doctrinal differences between Justices in the High Court regarding the application of ‘structured proportionality’ analysis to this third stage of Lange analysis. In this Court, the Attorney General noted alternative approaches. This was also noted in the Court of Appeal in Jarrett (at [100]). The appellant’s submissions in chief adopted structured proportionality analysis. Like the primary judge, until McCloy is reopened and overruled, this Court proposes to apply structured proportionality analysis at this stage. No party in this proceeding suggested that it was not permissible to adopt that approach.
This Court accepts that there is a rational connection between s 93ZA and the statute’s legitimate purposes, with those purposes being furthered.
This Court has already found on the facts that it is unable to find that the appellant displayed the Nazi symbol in issue in this case (in comparison to his non-offensive signs) because he thought it might create greater impact or influence, or because he believed that it was necessary for him to convey the message he stated he was motivated to convey. But accepting the possibility, acknowledged by both parties, that symbols can, in the abstract, have greater impact than other forms of expression, it is also the case that in the way that this Nazi symbol was displayed, there was a greater propensity for misinterpretation. Here, there was not just a public display of a Nazi symbol, but a manipulation or fabrication that included the Nazi symbol with other symbols and language as part of a composite design, without accompanying communication clearly and expressly conveying the intended message. An artist who wished, say, to create a painting for political communication, which partly contained a well-known political symbol, may generate a greater risk of misinterpretation of the message from displaying the artwork by itself, unadorned by words, than one who, in combination with the work of art, provides an accompanying verbal or written explanation as to the message intended to be conveyed. Different persons, of a certain ideological predisposition, may interpret a symbol differently to persons of a different disposition. But to an important section of a community, the artwork may carry significant meaning which is very harmful. Ambiguity may be benign, or it may be malign. People can see what they will.
There is force in the Attorney General’s view that the appellant did not assert or try to demonstrate that there was something in the Nazi symbol that he displayed that could not have been expressed in words. In large measure, the proscription was ‘content neutral’ and mainly focussed on preventing harmful effects. Expressed differently, electors in New South Wales and the Commonwealth were not, by the practical operation of this law, deprived of the opportunity of hearing or perceiving the appellant’s opinion, or the opinion of anyone else, about the similarity of the conduct of the State of Israel with that of Nazi Germany simply because he was prohibited from publicly displaying the Nazi symbol.
An in-built feature of the provision is that a court is vested with the power to adjudicate upon whether there is a reasonable excuse (and the similar question whether the display had a purpose in the public interest). This was a significant factor favouring constitutional validity in Hanson (at [181]). As was also explained earlier in these reasons, to a not insignificant extent, the answer to that question will turn upon whether the display of a Nazi symbol can reasonably be apprehended to be done in a way that mitigates the harm that is presumed. It is not necessary to engage in semantics as to what is meant by ‘discretion’ in this sense. It is plain that a value judgment ultimately needs to be exercised, taking into account a range of matters. In short, the application of the provision, and particularly the application of the defence of reasonable excuse, is tailored. I agree with the primary judge when his Honour said that the notion of reasonable excuse is flexible enough to accommodate political communications critical of persons or states who subscribe to Nazism or engage in Nazi-like conduct.
The terms of s 93ZA, which expressly accommodate exceptions for conduct in the public interest, or with reasonable excuse, as adjudicated by a Chapter III Court, are closely calibrated to the justification inquiry. [73]
It appears, with respect, that the anti-Nazism exception that appears in Victorian legislation [74] (and, for that matter, under the German Criminal Code) countenances an excuse on the basis of avowed denunciation of Nazism, irrespective of the harm that might result to certain communities from the display, if the conduct was regarded as engaged in reasonably and in good faith. This Court does not accept that the grafting of an ‘anti-Nazism’ exception as a defence, of the sort evident in Victorian (or German) legislation, by sidewind, would either reflect Parliament’s intention, or achieve all of the purposes (in combination) to the same extent that the New South Wales legislature intended. Similarly, the appellant’s submission that the burden is only constitutionally permissible if the display of the symbol would establish an offence (under s 93Z) or contravention of the Anti-Discrimination Act (such as s 20C or s 49ZE) is rejected. As explained, these provisions have additional requirements. The Court considers that the alternative the appellant propounds is less effective to achieve all of the purposes that Parliament intended. It is also not necessary, for the reasons already referred to. There were no alternative means available that were equally practicable, having regard to all of the purposes, and less restrictive of the freedom than s 93ZA. Even if there was, or were, legislative alternatives potentially capable of imposing a lesser burden on the freedom, that would be insufficient to invalidate s 93ZA, particularly if the posited alternative(s) is or are a less effective means of securing a legitimate object.
In the Court’s view, the alternative proffered by the appellant is a less effective means, as it relies too heavily upon the motivation and subjective purposes of the person engaging in the act of communication. The operation of the provision should not depend upon the person’s motive, intention or identity. People’s motives and intentions are not always straightforward or obvious, whatever outward appearances may suggest, or whatever they say that they are. The appellant’s posited alternatives do not capture conduct which might effectively obscure the actual mental state of the person displaying the symbol, but is still apt to have seriously harmful effects upon segments of the community, as the facts of this case demonstrate. Ultimately, it is not necessary for this Court to evaluate how much more preferable the appellant’s constructions are in order to supposedly limit the burden, lest it trespass upon a matter that is the province of the legislature. The legislative means of excluding one mode of communication in this case is within the margin of legislative choice left open by the notion of necessity.
The Court accepts that the burden on communication is direct. It does not accept that the burden is substantial. A useful measure for quantifying the burden is to ask what political communication is unaffected by the proscription. [75] It does not impose a blanket prohibition upon communication of information about Nazism or Nazis indiscriminately. A person who, like the appellant, asserts that they wish to compare the conduct of the State of Israel with that of Nazi Germany remains free to engage in communication by means other than displaying Nazi symbols. There are a range of other modes of communication. These last two circumstances are significant as indications of validity. [76] Nor does this Court consider that a person’s ability to communicate a message about Nazism or Nazi-like behaviour is significantly compromised by the proscription upon the display of Nazi symbols. Given that language remains open (subject to other lawful restrictions) and is capable of being expressed in many different public forums, the burden may be considered to be incidental. [77] It is a restriction on one form of political communication. But there is also the prospect of countervailing benefit. On one view of things, the effective ban on one form of hate speech might even enhance freedom of political communication, since it might encourage persons from minority groups historically persecuted by the Nazis, who would or might otherwise feel intimidated or vilified, to come out of the shadows and feel more comfortable participating in representative democracy. One person’s burden on communication might be another’s liberation to communicate politically. At any rate, it is an exaggeration to say that the law has a ‘chilling’ effect on political communication, even if one mode of communication is criminalised.
It is not the position that the proscription could be regarded as a pure illustration of a content-based provision requiring close scrutiny and compelling justification for government intervention. It is more accurate to say that the provision, to adapt what Mason CJ said in Australian Capital Television (at 143) or the similar notion of Gaudron J in Levy v Victoria, [78] is a law incidentally restricting communication, in that it restricts the mode of communication by which ideas are transmitted. It is not to the point that some persons would prefer to politically communicate by the display of a Nazi symbol, because of its perceived greater impact in persuasion of the message, rather than by relying upon other modes of communication. [79] The proscription also applies only to public acts. It would not proscribe the display of the symbol at a gathering in a person’s home amongst fellow ideological travellers. The proscription in s 93ZA can broadly be characterised as constituting restrictions upon the place and manner of a political communication.
Moreover, the appellant’s suggestion that his dignity, in being able to express his strongly held views and sense of obligation to convey them so as to influence others, was unjustifiably violated is no more persuasive than the notion that the ‘anti-abortionist’ in Clubb had her dignity infringed by not being able to foist her ardently held beliefs upon a woman approaching the clinic to receive its services. The appellant’s submission went close to arguing the proposition, which has been repeatedly rejected, that the implied freedom of political communication confers a personal right, or a right which involves forcing a message upon an audience that is captive to it. The proscription positively enhances the system of government by protecting the political sovereignty of the audience that is captive to the display. [80]
In Annexure ‘A’ to his written submissions, the appellant cited other offence provisions in state legislation that would curtail the display of Nazi symbols (subject to applicable defences):
Summary Offences Act 1988 (NSW), ss 4(1) and 4A(1); and
Anti-Discrimination Act 1977 (NSW), ss 20C(1) and 49ZE(1).
The potential application of these other lawful restrictions indicates that the burden imposed on the freedom by s 93ZA is incremental, a matter that also militates in favour of validating the provision. [81]
The statutory purposes are all important. For constitutional purposes, it is especially important that persons belonging to groups which have, in the past, been victimised and persecuted by Nazis or because of Nazi ideology do not feel discouraged from full participation in the political life of the State for fear that hatred is directed towards them because of an aspect of their identity over which they have no control. Further, it is not just a case of it being desirable to enhance social cohesion as an end in itself. The purpose is not to instil civility and limit persons taking offence in political debate. The point is to foster freedom from fear for all citizens in the expression of political belief in ways that are the antithesis of Nazi rule.
To adapt what the Full Federal Court observed recently in Hanson, where a law that restricts freedom of communication works against the tendency for the display of Nazi symbols to discourage or hinder participation in public debate, this is a factor weighing strongly in favour of validity. [82] Section 93ZA is adequate in its balance.
The primary judge was correct in answering the three questions raised by the Lange test, as well as determining that s 93ZA, properly construed and applied, is constitutionally valid.
His Honour was also correct to hold that the prosecution had proven all of the essential elements of the offence beyond reasonable doubt, so that the appellant was guilty of the offence.
There was no (material) error in the Third Judgment of the Local Court.
The appellant’s appeal is dismissed.

Abdul-Wahab v R (No 2)

At a glance

Court

Decision date

Before

Catchwords

Email me a plain-English summary of this case

Catchwords

Judgment

Source

REASONS FOR JUDGMENT

Introduction

The Facts

The offence

The Judgments in the Local Court

Negativing reasonable excuse

The implied freedom

The District Court’s jurisdiction on appeals against Local Court convictions

The jurisdictional issue: the proper sequencing for determining the issues

The construction issue

The appellant’s argument

The intervener’s argument

Statutory purposes

Reasonable excuse

A display of a Nazi symbol in the course of a political communication not for the purpose of promoting Nazi ideology or inciting racial hatred

Significance of constitutional validity to construction of ‘reasonable excuse’

The Crown’s argument

The appellant’s argument in reply

Further submissions of the Crown in reply

Consideration

The approach to construction

Reasonable excuse

General observations

Other points raised by the appellant

Stage 1: Characterising the display

Relevant factors in this case

Stage 2: evaluating the excuse

Stages 3 and 4

‘Public interest’ defence

The constitutional question

The appellant’s argument

Structured proportionality analysis

The Attorney General’s argument (adopted by the Crown)

Statutory purposes

Structured proportionality analysis

The appellant’s argument in reply

Consideration

Effective burden?

Legitimate purpose?

Reasonable adaptation

SCHEDULE 1

Endnotes

Parties

Legislation Cited (11)

Cases Cited (55)