Premier may ignore legal advice and push ahead with hate speech reform

Premier Chris Minns has flagged he will look to further reinforce hate speech laws as he seeks to address Sydney’s worsening antisemitic crisis, defying legal advice to his government against reforming the controversial racial vilification measures.

Despite a nine-month-long review headed by Law Reform Commission President Tom Bathurst concluding reform to 93Z may not be the most effective means, Minns suggested he would push on regardless, once again reiterating his belief that antisemitism “begins with language”.

Section 93Z of the Crimes Act makes it an offence to publicly threaten or incite violence against a person on the grounds of race or religious belief or affiliation.

The firebombing of a daycare centre in Maroubra in the early hours of Tuesday morning was the ninth antisemitic attack since late November. The brazen destruction of a private business owned by a Jewish family until 2023 and a stone’s throw from a synagogue has only heightened fears across Sydney.

Minns has spent the last week foreshadowing legislative reform, including bringing hate-speech laws under the umbrella of criminal law – aligning NSW with other states – and ensuring vilified individuals are not forced to publicly out themselves in civil proceedings. He has also said laws to protect places of worship from protest will be introduced when parliament resumes in mid-February.

But with political leaders under increasing pressure to stem the antisemitic violence, Minns indicated he was seriously considering further legislative changes.

“I acknowledge that we asked for a recommendation from the state’s Law Reform Commission, but at the end of the day, I don’t believe antisemitism, antisemitic attacks begin and end with a firebombing or a graffiti attack,” he said.

“It begins with language. I think it begins with hateful, racist language that, in that perversely inspires an individual to commit a violent act. And if I can stop it at its source with changes to the law, that’s exactly what we’ll do.”

Asked whether he would reform 93Z, or a section of the Crimes Act which covers how courts can include hatred for or prejudice against a group of people as an aggravated factor in sentencing, Minns replied: “Potentially both.”

“I want to make it clear we’re pursuing legislation as well, but I think it’s reasonable for the government to produce the legislation, take it to cabinet and then release it to the public,” he said.

The premier and his office have remained tight-lipped about the details of any legislative changes.

The Law Reform Commission’s 122-page review of section 93Z was handed to Attorney-General Michael Daley in late September last year. After an earlier options paper outlined eight possible reforms, the Commission ultimately recommended none, saying expanded criminalisation “came with risks” and was not “always the best tool” to achieve social policy goals.

Labor MLC Cameron Murphy, a barrister and former president of the NSW Council for Civil Liberties, urged the government to ensure any legislative reform was not rushed and guided by both the experts, including the Law Reform Commission, and the community.

“This is an extremely hard area to legislate and get right. One of the consequences of rushing legislation through parliament is unintended consequences and things playing out in a perverse way. We need to consider these things extremely carefully,” he told the Herald.

“Everyone wants the same things: that is the end of antisemitism, Islamophobia and other bigotry. But changing the law isn’t necessarily going to bring an end to that.”

Hugh McDermott, parliamentary secretary to the attorney general, said there was a sense of urgency to the reforms given the spate of attacks on the Jewish community. Changes in legislation were necessary to ensure the law is “fit for purpose” and to “stop this domestic terrorism” before the violence spread.

“The government is guided but not bound by the Law Reform Commission. We need to fit the laws for the society at the time. The Bathurst review was handed down at a time when all these attacks hadn’t occurred,” he said.

University of Sydney Professor of Criminal Law, Tyrone Kirchengast, outlined several reform paths the premier might opt for. They included lowering the high threshold of incitement to violence under 93Z to include other verbs – advocated by the Jewish Board of Deputies – such as “urges”, “promotes”, or “advocates”.

Establishing a direct line of evidence for hate speech, unless recorded online, was difficult to establish, he said.

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