NSW breaks judicial ground with first successful hate-speech conviction under section 93Z
NSW has recorded its first conviction under the state’s hate-speech laws to the relief of the Minns government amid ‘huge community concerns’ over rising incitement.
NSW has recorded its first successful conviction under the state’s hate-speech laws to the relief of the public prosecutor and the Minns government amid “huge community concerns” about rising incitement.
The conviction of a 24-year-old Indian man could, however, fuel questions about the reluctance or inability to use state laws to prosecute rising cases of anti-Semitism since the October 7 attacks, and whether it required redrafting to capture more broad instances of hate speech.
NSW District Court judge Jane Culver on Friday dismissed the appeal of Avon Kanwal, who sought to overturn a 2023 local court conviction of threatening violence on the grounds of race.
It becomes the first conviction since the offence’s enactment in 2018 under section 93Z of the state crimes act, which outlaws threats of, and the incitement to, violence on the grounds of race and religion.
“While this section has a relatively recent genesis, it is clear the community has concern about threats or incitement of violence being made by way of a public act, on the grounds of race” Judge Culver told the court.
“It (hate speech, incitement) is a huge concern for the community… (you) only have to listen to or read the daily news to realise its significance.”
Mr Kanwal was convicted for his role in threatening an Indian Sikh who supported the Khalistan independence movement, which led to a wild brawl in Harris Park, southwest Sydney, in mid-2020.
An appeal to dismiss a conviction of inciting the commission of a crime, namely affray, was also dismissed.
“There have not been a lot of cases under this, which is because it’s a recent provision (that was introduced to) respond to community concerns,” Judge Culver said, saying general deterrence remained significant given its importance to the wider public.
The two-day appeal hearing centred on whether Kanwal’s threats were rooted in his opposition to the Sikh Khalistan movement. Judge Culver determined that they were.
She also determined the Sikh Khalistan movement was inherently ethno-religious, allowing it to fall under section 93Z, despite arguments from Kanwal’s lawyers.
Friday’s decision upholds the sentence handed down to Kanwal in 2023 of a six-month community corrections order, with Judge Culver dismissing a mental health application to waive that sentence given the need for general deterrence.
For the conviction of inciting a crime, the local court’s six-month conditional release order, but with a conviction, was also upheld.
The milestone case – of only four prosecutions initiated under 93Z, this is the first to be successfully convicted since its introduction – could have ramifications that reach outside the courtroom.
The NSW Law Reform Commission and former NSW chief justice Tom Bathurst are currently reviewing the section, after an inquiry was ordered by Premier Chris Minns following a raft of anti-Semitic sermons.
Members of Mr Bathurst’s team were present at the appeal and spoke with Judge Culver, who indicated she would provide general observations elicited from the hearing.
Now that the provision has registered a successful conviction, the inquiry may hold back on recommending substantial changes when it delivers its report later in the year.
It is likely Mr Bathurst’s recommendations won’t be seismic. Rather, he could fine tune the provision and encourage more frequent prosecutions under the act.
Since January police have been able to lay charges under the act without the approval of the chief prosecutor’s office.
The Minns government has previously said there was “no place” for hate speech or incitement to violence, and if laws could be improved it would look to do so.
The conviction could vindicate those who have asked why hateful rhetoric coming out of extremist southwest Sydney Islamic centres haven’t been the subject of police investigations.
Political figures have long called for police to lay charges against some of those clerics to at least put the legislation to work. The fact it has now registered a conviction may prompt more calls to use it more frequently against rising hate speech.
“This successful prosecution blows away the excuses about how these laws are unusable,” the Opposition Home Affairs spokesman, Senator James Paterson, said.
“It’s now time to use them against the horrific wave of anti-Semitism tearing our community apart since October 7.”
NSW Upper House deputy president Rod Roberts said he was “enthused” with the conviction and that it “should set a precedent”.
“It sets a benchmark that here in NSW inciting violence is against the law and that there’s ramifications,” the MP said.
“But I think it shows that the DPP should have commenced more prosecutions under the legislation and been more active (against hate speech).”
Mr Roberts said instigating prosecutions would have helped policy makers determine the strength or weakness of existing legislation.
“From that, judges would have said ‘it breaches 93Z because of x, y or z’,” he said.
“Or said ‘it doesn’t, because of a, b and c’ – and that would have helped us determine its operability, but that never happened.”
Similarly, it could further illustrate the absence in state legislation of provisions that outlaw “hatred or contempt”, that may not necessarily lead to or incite violence in a direct instance.
Although Friday’s appeal dismissal illustrated the operability of the legislation in determining a case of threatening violence on race-base grounds, it does not outlaw public speech of hatred or contempt – including racism and anti-Semitism – in itself, unlike criminal provisions in WA, the UK and France.
Executive Council of Australian Jewry co-chief executive Peter Wertheim said 93Z worked when the threat of violence was “clear cut” or “unambiguous”.
“However, one would have thought that the disgraceful display of anti-Semitism at the Sydney Opera House on October 9 was explicit enough, and yet there was no prosecution,” the retired 32-year lawyer said.
“So even when the case is clear, there can be a problem with a lack of political will to prosecute.”
Mr Wertheim said more general statements from people in an authority position that “encouraged an impressionable audience to commit acts of violence” – including “when violence is affirmed or glorified without explicitly being called for” – also slipped through the cracks.
“Section 93Z fails to capture conduct that employs subtle linguistic and symbolic signals that trigger emotions which move people to engage in violence,” he said, adding that the legislation needed to be reformulated to capture that sort of rhetoric.
NSW Police have previously told The Australian upon receiving legal advice anti-Semitic and hateful sermons wouldn’t breach 93Z.
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