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District Court 27 October 2026

Abdul-Wahab v R (No 2)

[2026] NSWDC 395

Public order & justice offences
CRIMINAL LAW APPEALS AND REVIEWS PUBLIC ORDER OFFENCES CRIMES ACT 1900 (NSW), S 93ZA(1) DISPLAY OF NAZI SYMBOL DISPLAY IN COURSE OF PRO

Citation: Abdul-Wahab v R (No 2) [2026] NSWDC 395
Court: District Court of New South Wales
Date: 27 October 2026
Judge(s): Abadee DCJ

Background

The appellant attended a pro-Palestinian protest rally at Hyde Park in Sydney on 6 October 2024, one of approximately 10,000 participants. Between 2:45pm and 2:50pm he affixed two laminated A4 placards to a public bin. One depicted a composite image combining elements of the Israeli and Nazi Party flags, with the slogan "The Irony of Becoming What You Once Hated." Police officers witnessed the act, photographed and removed the placard, and spoke with the appellant, who said he was "speaking up against the genocide."

The appellant was charged with knowingly displaying a Nazi symbol without reasonable excuse, contrary to s 93ZA(1) of the Crimes Act 1900 (NSW). The Local Court found him guilty and imposed a six-month conditional release order without recording a conviction. He did not appeal his sentence but appealed his conviction to the District Court.

The Attorney General for New South Wales intervened, making submissions on both the statutory construction of "reasonable excuse" and the constitutional validity of s 93ZA. The case raised two major questions: whether the Crown proved the appellant lacked a reasonable excuse for displaying the symbol, and whether s 93ZA impermissibly burdened the implied constitutional freedom of communication on governmental and political matters.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that the appellant displayed a Nazi symbol "without reasonable excuse" under s 93ZA(1) of the Crimes Act 1900 (NSW), specifically whether the display was done reasonably and in good faith for a purpose in the public interest under s 93ZA(3)(b)
  • How the "reasonable excuse" defence should be construed, including whether political communication or denunciation of Nazism can fall within it
  • Whether s 93ZA of the Crimes Act imposes an unjustified burden on the implied constitutional freedom of communication about governmental or political matters
  • If so, whether the provision has a legitimate purpose compatible with the constitutionally prescribed system of representative and responsible government, and whether it is reasonably appropriate and adapted to achieving that purpose

Decision

Issue 1: Statutory construction of "reasonable excuse"

The Court held that the purposes of s 93ZA are threefold: protecting community members historically targeted by Nazis from presumed harms (including intimidation, vilification, and re-traumatisation); denouncing public displays of Nazi symbols; and deterring such conduct. The extrinsic material demonstrated that Parliament virtually presumed such displays to be inherently harmful (at [157]-[160]). The Court declined to adopt the appellant's narrower construction, which would have limited the offence's mischief to preventing the promotion or normalisation of Nazi ideology. The Court found that the reasonable excuse defence requires an objective assessment from the perspective of the ordinary member of the community, informed by a structured, though non-prescriptive, evaluative framework (at [167]-[170]).

Issue 2: Application to the facts

The Court found the display capable of conveying, to an ordinary member of the community, the imputation that "Jews are Nazis" or have become like Nazis. The dominant or preponderant meaning of the composite image, including the conjunction of the Star of David with the swastika and the personalised language of the slogan, crossed the line from denunciation of the State of Israel into a message capable of vilifying or inciting hatred against Jewish people (at [191]-[192], [211]). The Court also found that the appellant had non-offensive alternative signs available, and there was no evidence that he considered display of the Nazi symbol necessary to convey his message (at [204]-[206]). Even accepting good faith motivation, his conduct was not reasonable and was not in the public interest, given the risk of harm to the groups the provision was designed to protect (at [218]-[219]). The Crown negatived reasonable excuse beyond reasonable doubt (at [219]).

Issue 3: Implied freedom — burden and legitimate purpose

The Court accepted that s 93ZA effectively burdens the implied freedom by proscribing a symbolic mode of political communication (at [281]). However, it rejected the appellant's argument that the provision's purposes were limited to preventing offensive speech, finding the purposes broader: protecting vulnerable community segments from presumed harms including intimidation and vilification, and fostering their participation in public and political life (at [283]-[285]). These purposes are compatible with, and indeed support, the constitutionally prescribed system of representative and responsible government (at [287]-[290]).

Issue 4: Implied freedom — proportionality

Applying the structured proportionality framework from McCloy, the Court found s 93ZA suitable, necessary, and adequate in its balance. The burden on communication is not substantial because alternative modes of expression remain available and the restriction applies only to public displays (at [300]-[301]). The Court noted that the flexible "reasonable excuse" defence, adjudicated by courts on the facts of individual cases, calibrates the provision's operation and can accommodate genuine instances of political communication critical of Nazism or Nazi-like conduct (at [296]). The Court rejected the appellant's proposed anti-Nazism exception, finding it would rely too heavily on subjective motive and would be less effective in achieving Parliament's combined purposes (at [298]-[299]). Section 93ZA is reasonably appropriate and adapted to its legitimate purposes, and the appeal against the Local Court's constitutional ruling was rejected (at [307]).

Orders Made

  • The appellant's appeal is dismissed.

Key Takeaways

  • Under s 93ZA(1) of the Crimes Act 1900 (NSW), the purposes of the prohibition on public display of Nazi symbols extend beyond preventing the promotion of Nazi ideology. They include protecting community members historically targeted by Nazis from presumed harms such as intimidation, vilification and re-traumatisation, and deterring the normalisation of such displays (at [157]-[160]).

  • The District Court confirmed that whether a display of a Nazi symbol amounts to a "reasonable excuse" requires an objective assessment from the perspective of the ordinary member of the community, evaluated against all the circumstances of the display, including its content, context, targeted audience, likely meaning, and whether it could be apprehended to mitigate the harms the provision presumes (at [167]-[170], [213]-[214]).

  • A claim that a display of a Nazi symbol constitutes anti-fascist or denunciatory political communication does not automatically satisfy the reasonable excuse defence. Where the dominant meaning of a composite image is capable of vilifying or inciting hatred against a targeted group, and where alternative, non-offensive means of communication were available, the Crown may negative reasonable excuse even where the defendant acted without neo-Nazi motivation (at [211], [218]-[219]).

  • Section 93ZA of the Crimes Act effectively burdens the implied constitutional freedom of political communication but does so for legitimate purposes, including protecting the dignity and political participation of groups historically persecuted by Nazis. The provision is not a blanket prohibition: the "reasonable excuse" defence, adjudicated by courts on the specific facts of each case, gives the provision the flexibility needed to accommodate genuine political communication (at [281], [287]-[290], [296]).

  • In dismissing the appeal, the District Court held that s 93ZA is reasonably appropriate and adapted to its legitimate purposes and is constitutionally valid. A legislative exception modelled on Victorian or German law, permitting display of Nazi symbols for avowed anti-Nazism purposes irrespective of harm caused, would be less effective in achieving Parliament's combined protective, denunciatory and deterrent objectives and was not required by constitutional necessity (at [298]-[299], [307]).

Legislation and Cases Referenced

Legislation
- Anti-Discrimination Act 1977 (NSW) , s s 20, 20C, 49ZE
- Crimes (Appeal and Review) Act 2001 (NSW) , ss 11, 18, 19, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 9, 10
- Crimes Act 1900 (NSW) , s 93ZA
- Evidence Act 1995 (NSW) , s 191
- Interpretation Act 1987 (NSW), s s 31 , 33, 34
- Judiciary Act 1903 ( Cth), s 78B
- Racial Discrimination Act 1975 ( Cth) , s 18C
- Summary Offences Act 1966 (Vic), s 41K
- Summary Offences Act 1988 (NSW), ss 4, 4A

Cases
- 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