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Local Court 29 October 2025

R v Kahtan ABDUL-WAHAB No 3

[2025] NSWLC 7

Public order & justice offences
CONSTITUTIONAL LAW WHETHER STATE CRIMINAL LAW IS INVALID

Citation: R v Kahtan ABDUL-WAHAB No 3 [2025] NSWLC 7
Court: NSW Local Court
Date: 29 October 2025
Judge: Donnelly LCM

Background

The defendant was charged under s 93ZA(1) of the Crimes Act 1900 (NSW) with knowingly displaying a Nazi symbol by public act without reasonable excuse. The charge arose from an incident on 6 October 2024 during a protest in Hyde Park, Sydney, where the defendant placed a placard on a bin. The placard showed a Nazi flag (the Hakenkreuz) superimposed over the flag of Israel, accompanied by the words "The irony of becoming what you once hated."

In an earlier judgment (R v Kahtan ABDUL-WAHAB No 2), the court found that while the defendant had raised a reasonable excuse for the display, the prosecution had negatived that excuse beyond reasonable doubt. The constitutional question was the only remaining matter standing between the defendant and a finding of guilt.

The defendant challenged s 93ZA(1) as constitutionally invalid, arguing it infringed the implied freedom of communication on governmental and political matters in the Commonwealth Constitution. Alternatively, he sought a narrowing construction of the provision along the lines adopted by Gleeson CJ in Coleman v Power. The defendant had issued the required notices under s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth and State Attorneys-General, and no party removed the constitutional question to the High Court under s 40 of that Act.

  • Whether s 93ZA(1) of the Crimes Act 1900 (NSW), which prohibits the public display of a Nazi symbol without reasonable excuse, effectively burdens the implied freedom of political communication under the Commonwealth Constitution.
  • Whether the purpose of s 93ZA(1) is legitimate and compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
  • Whether s 93ZA(1) is reasonably appropriate and adapted to that purpose, including whether it is suitable, necessary, and adequate in the balance under the structured proportionality framework.
  • Whether, if the law is not invalid, it should nonetheless be given a narrower construction to limit its reach.

Decision

Question 1: Does the law burden political communication?
The court answered yes. The display of the placard, with its explicit political message about Nazism and the conduct of the State of Israel, fell within the scope of political communication protected by the implied freedom. The burden imposed by s 93ZA(1) was therefore engaged.

Question 2: Is the purpose legitimate?
The court answered yes. The purpose of the provision, enacted to prohibit public displays of Nazi symbols, was found to be compatible with the maintenance of the constitutionally prescribed system of government. The court accepted that preventing the public display of symbols associated with a genocidal ideology serves a legitimate protective purpose.

Question 3: Is the law reasonably appropriate and adapted to that purpose?
The court answered yes. Applying the structured proportionality framework from McCloy v New South Wales, the court found the law suitable, necessary, and adequate in the balance. The court noted that s 93ZA(1) is narrowly drawn, targeting a specific category of symbols rather than broad classes of "insulting" conduct as in Coleman v Power. Critically, the reasonable excuse exception within s 93ZA(1) was found to accommodate symbolic political expression critical of Nazism, including academic, artistic, and public interest purposes. The court held that the protective purpose of the law was compelling and that its benefit was not manifestly outweighed by the burden on political communication.

The court also rejected the alternative argument that a narrowing construction equivalent to that applied in Coleman v Power was warranted. That approach was directed at a broadly worded offence of "insulting" language with no reasonable excuse provision. The court found it would be artificial to impose the same limits on s 93ZA(1), given the modest burden on political communication it identified here.

Orders Made

  • Section 93ZA of the Crimes Act 1900 (NSW) was held not to be constitutionally invalid.
  • The defendant was found guilty of the charge of knowingly displaying a Nazi symbol by public act without reasonable excuse.

Key Takeaways

  • Section 93ZA(1) of the Crimes Act 1900 (NSW), prohibiting public display of a Nazi symbol without reasonable excuse, does burden the implied freedom of political communication but is not constitutionally invalid because it satisfies all three limbs of the Lange test.
  • The reasonable excuse exception in s 93ZA(1) was treated as a significant constructional feature: it preserves space for symbolic political expression critical of Nazism and distinguishes the provision from the overbroad language-based offence struck down (in part) in Coleman v Power.
  • A narrowing construction of the kind applied in Coleman v Power was found inappropriate where the burden on political communication is slight and the provision already contains a reasonable excuse exception.
  • The Local Court acknowledged, without resolving, the ongoing debate among High Court justices about whether structured proportionality is merely a tool of analysis or a binding doctrine that must be applied in every implied freedom case.
  • The implied freedom of political communication does not extend to protect all offensive communications or those degrading of a person's dignity, and it does not confer rights on individuals: it operates as a constraint on legislative power.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93ZA(1) (since amended)
- Commonwealth Constitution, ss 7, 24
- Judiciary Act 1903 (Cth), ss 40, 78B
- Evidence Act 1995, s 191
- Crimes Amendment (Display of Nazi Symbols) Bill 2021 (NSW)
- Criminal Code (Cth), s 80.2H(1)(f)
- Summary Offences Act 1966 (Vic), s 41K(2B)

Cases:
- Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
- Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
- McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
- Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328
- Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171
- Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508
- LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1
- Babet v Commonwealth of Australia [2025] HCA 21
- Ravbar v Commonwealth of Australia [2025] HCA 25
- Farmer v Minister for Home Affairs [2025] HCA 38
- Lees v State of New South Wales [2025] NSWSC 1209
- Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579
- Taikato v The Queen (1996) 186 CLR 454
- Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
- Lambert v Weichelt (1954) 28 ALJ 282