‘Inoperable’ NSW hate-speech laws dealt another court blow as legal probe details revealed
NSW’s ‘inoperable’ hate-speech laws have been dealt another blow in the state court system as the details of a landmark legal probe were revealed.
The only two convictions made under NSW’s “inoperable” hate-speech laws could soon both be overturned – one has already been successfully appealed – raising further questions about the state government’s ability to tackle hate as it revealed the terms of reference of a landmark legal probe.
The Australian can reveal one of two convictions under section 93z of the State Crimes Act – which outlaws inciting violence on the grounds of race or religion – was successfully appealed in February, with the co-accused set for a March appeal hearing, meaning it could be “nought from six” for the government.
Since the provision’s introduction in 2018, the NSW Police Force has charged six people: two prosecutions were annulled, two had charges withdrawn, and of the remaining two, one has had the conviction overturned while the second could follow suit in March.
In February, Baljinder Thukral successfully overturned a conviction of inciting race-based violence for his involvement in a 2020 Harris Park brawl that included two warring groups from Sydney’s Indian community – Hindus and pro-Khalistan Sikhs.
The Khalistan movement is a separatist political movement that seeks to establish an ethno-religious Sikh homeland in the Punjab region.
Mr Thukral’s conviction appeal was upheld by consent, “based on the crown’s concession as to procedural fairness”. Co-accused Avon Kanwal’s appeal is for the same offence for his involvement after he was sentenced in August 2023 to a six-month community correction order.
People with knowledge of the matter said they were hoping his conviction would be overturned because the allegations of inciting race-based violence had “no merit”.
The pair came to blows after a series of TikTok videos they both posted, calling on the other to fight.
It is understood that while animosity arose from their two respective groups, the actual incitement was not racial or religious in nature, with Mr Kanwal’s videos even allegedly saying it had nothing to do with either.
“I have no argument with Khalistan (or Sikhism),” he allegedly said. “My issue is with you … If I have (said something inappropriate), it was about and aimed at you.”
The government “streamlined” 93z after the onset of the Israel-Hamas war and launched a legal probe into its effectiveness, following anti-Semitic sermons by Sydney clerics.
It will be led by the Law Reform Commission – former NSW Supreme Court judge Tom Bathurst, judge Anna Mitchelmore and Kate Eastman.
The probe will “expeditiously” review 93z, comparing it with commonwealth, domestic and international-based criminal provisions, and examine a potential “harmonisation”, as well as any impact on freedom of speech and religion.
It follows a rise in anti-Semitism but also of Islamophobia, with Faith NSW chief executive Murray Norman welcoming the review.
“It’s clear our faith communities are living in limbo when it comes to hate,” he said, saying extremism was becoming a “greater risk”. “What we thought was legislation to keep us all collectively safe was actually a false sense of security … we now know we are all exposed.
“This review comes when we have seen sinister tactics being used across the board in the name of an overseas conflict.”
Hindu Council of Australia vice-president Surinder Jain said free speech was not an “instrument to sow hate … That right is not a weapon to rally forces that want to suppress freedom and liberty of others.”
Mr Jain said although it was “imperative” to preserve freedom of speech and religion, Australians should be protected.
“(Incitement, hate speech) are an attack on free speech and the freedom of others … a crime against humanity,” he said. “Our laws should reflect that.”
NSW MP Rod Roberts said statistics showed the law was “inoperable”. “I’ve had conversations with senior police who told me that in their opinion, the law is not drafted for it to be used as intended – the threshold is too high and narrow,” he said.
NSW Attorney-General Michael Daley said there was “no place for hate speech … (If) we need to strengthen our laws to reflect the values of tolerance, respect, and understanding … that is what we will do,” he said.
“That we have such eminent legal minds leading this review underscores its importance and our commitment.”
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