The NSW Government is moving to toughen laws against hate speech, threats and incitement to violence amid concerns that criminal provisions introduced five years ago have not resulted in successful prosecutions.
The Herald has confirmed the Jewish Board of Deputies, along with other groups including Faith NSW, have lobbied Premier Chris Minns and the government over laws they describe as “ineffective and impotent”.
But the opposition is warning against any changes that allow the law to be “weaponised” to threaten speech that is controversial but should remain legal.
It comes amid growing concern about rising anti-Semitism and some Islamic preachers extolling jihad in the wake of the 7 October attack on Israel and the subsequent war between the Jewish state and the Hamas-controlled Gaza Strip.
One target is Section 93Z of the Crimes Act, introduced in 2018, which makes it illegal to “intentionally or recklessly threaten or incite violence” – through a public act – against someone because of their race, religious belief or affiliation, sexual orientation or other characteristics.
The section carries penalties of up to three years in prison or an $11,000 fine for individuals. But Minns said he was concerned that there had been no lasting convictions under the laws, which are now being reviewed by the Labour government.
“If you’re going to have a law on the books that says racial vilification and hate speech is not allowed in NSW, then it can’t be toothless,” the Premier said. “There is naked racism and incitement to violence in our community. So something has to change.”
“I don’t think anyone with a straight face would say that hate speech has been eradicated in this state. The laws need to reflect what’s happening on the ground.
NSW Police are investigating an inflammatory sermon delivered at the Al-Madina Dawah Centre in Bankstown last month, as well as footage of the 9 October protest outside the Sydney Opera House, in which some participants chanted “f— the Jews” and reportedly “gas the Jews”.
The Australian reported that legal advice given to Police Minister Yasmin Catley concluded that “f— the Jews” was unlikely to meet the criminal standard of threatening or inciting violence, but that “gas the Jews” could be understood as a threat or incitement to kill.
Two previous prosecutions under Section 93Z of the Crimes Act, which resulted in convictions, were quashed after it emerged that the police had failed to obtain the consent of the Director of Public Prosecutions, as required by the Act.
Barrister and former police prosecutor Mahmud Hawila has described this as an administrative bottleneck, while the president of the NSW Jewish Board of Deputies, David Ossip, said it was the most problematic element as obtaining DPP approval ‘can take months’.
Hawila also said the law as it stands criminalises “a niche example of hate crime which, while objectively serious, is uncommon”, while the threshold for threatening or inciting violence is high and “notoriously difficult to prove beyond reasonable doubt”.
Executive Council of Australian Jewry co-chief executive Peter Wertheim, a former lawyer, echoed this view, saying the law should be broadened to criminalise “the promotion or advocacy of violence”, not just incitement.
“The concept of incitement is to incite people to act violently in some way,” Wertheim said. “In practice, what usually happens with hate preachers or demonstrators is that the speech arouses violent emotions in people but stops short of explicitly urging them to commit an act of violence.”
Faith NSW, a multi-denominational group launched by Minns last month, welcomed the review, saying the 2018 laws were well-intentioned but had proved “ineffective and impotent”.
Opposition leader Mark Speakman, who introduced the changes when he was attorney general, said he was open to change, but it was “important to note that there hasn’t been a court case to show the need for reform”.
“We must be careful not to allow the law to be weaponised against controversial free speech that doesn’t warrant criminal sanction,” Speakman said. “The best thing Chris Minns can do is to find a more active and capable policing minister who won’t just stand by and watch these issues escalate.”
Attorney General Michael Daley was contacted for comment.
Separately on Sunday, the government announced the introduction of a new law making it unlawful to incite hatred, serious contempt or serious ridicule of someone because of their religious beliefs or affiliations. Complaints can be made to Anti-Discrimination NSW, although these are not criminal matters.
Minns said he was appalled by the vandalism of an Israeli restaurant in Surry Hills at the weekend, with the words “child murder” and other phrases scrawled on the walls. He said effective hate speech laws were vital to protect different vulnerable groups at different times.
“Right now you’d assume they’d be used to protect members of our Jewish community,” he said. “But tomorrow they could be used for members of the Hindu community, and the day after that for members of the Muslim community.”