Law review nips NSW hate-speech reform in bud
A review into NSW’s hate-speech laws has recommended no reform, despite the provisions recording just a sole conviction in six years, incensing Jewish leaders who said it signalled that Australians should expect to ‘keep living’ with hatred.
A nine-month review into NSW hate-speech laws has recommended no reform, despite the provisions recording just a sole conviction in six years, incensing Jewish leaders who said it signalled that Australians should expect to “keep living” with hatred.
On Friday, the NSW Law Reform Commission released its 135-page report into Section 93Z of the state crime code, citing unintended negative consequences of any potential amendments as it recommended leaving the provisions as is.
The report was released a day after an anti-Semitic attack in a Sydney suburb homing the state’s largest Jewish community, which left one car torched, and a dozen others and apartment blocks tagged with “f..k Israel” graffiti.
NSW Premier Chris Minns sent the provision – which outlaws the incitement of violence on the basis of religion, race or sexual orientation, among others – to the commission in February after reporting by The Australian on a slew of anti-Semitic sermons in southwest Sydney.
Led by former NSW Supreme Court chief justice Tom Bathurst, the commission cited a lack of consensus, existing offences and possible infringements of freedoms, recommending no strengthening to the provision.
NSW Jewish Board of Deputies president David Ossip said although the body remained reviewing the report it held initial concerns.
“... We are concerned that individuals will continue to be able to incite violence and spread hate speech against fellow Australians with impunity,” he said.
“If the (provision) is sufficient, as has been suggested by the review, then the police must give effect to the law by immediately charging and prosecuting those responsible.
“We cannot accept a status quo where Australians are not protected by the law from threats of violence by purveyors of hate.”
The Executive Council of Australian Jewry has taken one cleric to the Federal Court, alleging a slew of sermons he gave vilified their community, including calling Jewish people “descendants of pigs and monkeys”.
Its co-chief executive, Peter Wertheim, called the commission’s response “deeply disappointing”, saying it signalled that Australians should prepare to “live with” hate speech.
He said: “We have seen protesters in the forecourt of the Sydney Opera House burn an Israeli flag and chant ‘f..k the Jews’; self-described religious preachers spewing hate against Jewish people and the LGBTIQ community; street protests displaying degrading and dehumanising slogans; and many other unprecedented acts that have shattered the harmony.”
Political leaders had criticised the provision’s narrow scope and high threshold, meaning that only direct calls to violence against specific persons or a person would likely fall foul of the law.
For example, degrading comments about an ethnic group, or publicly praying for that group’s death, would not constitute a breach of 93Z, which – unlike with similar provisions in Western Australia and Victoria – does not outlaw inciting racial hatred.
“The commission has effectively told us that we will just have to keep living with this sort of behaviour,” Mr Wertheim said, calling it a “shortsighted approach” that affected all communities, and that hate speech “invites an escalation” to violence.
Opposition home affairs spokesman James Paterson said the Jewish community had been let down by poor enforcement.
“The barest minimum (they are) entitled to expect is proper enforcement of existing laws – and governments have not even met that low bar,” he said.
“But when they are manifestly inadequate, the laws should also be reformed. It’s clear the incitement to violence conduct that parliaments intended to outlaw has not worked in practice.”
Speaking on Sunday at the ECAJ’s annual general meeting, Senator Paterson set out a Coalition government’s plan to tackle anti-Semitism, which would include better enforcement and strengthening “unfit” incitement provisions.
Liberal senator for NSW Dave Sharma, however, pointed to the commission’s emboldening of law enforcement to start more frequently using 93Z, or similar offences – such as intimidation – that could capture hate speech.
“It is critical for the credibility of the law, and the deterrence it provides, that these powers be used to their fullest,” he said.
The NSW government was “giving careful consideration” to the LRC’s report, a spokesman said.
The LRC’s report cited opposition to strengthening 93Z, a lack of consensus among affected communities, possible “negative consequences” of expanding vilification offences, a potential introduction of “imprecision and subjectivity” into criminal law, and existing offences that could cover hate speech, noting a possible infringement on freedom of expression and religion with an expanded provision.
A lower bar required in WA has resulted in 52 proven charges in the past two decades under a similar offence, and Victoria’s code expands vilification to include “inciting hatred” rather than just “inciting violence”.
But the LRC recommended more be done to improve the visibility and track the effectiveness of the wider criminal justice response to hate crimes, and a review of sentencing procedures to assess the existing effectiveness of hatred and prejudice as aggravating factors.
More Coverage
Immigration detention duty: minister Burke powers up
Immigration Minister Tony Burke has quietly issued new rules granting himself the power to impose electronic monitoring and curfews on dangerous non-citizens released from detention.
$42k taxpayer grant for anti-Israel artist
Matt Chun received a $42,452 taxpayer grant in May 2023 to publish a picture book. He previously co-wrote works that attacked ‘colonial and imperialist’ statues.