Police urged to prosecute pro-Palestine Opera House protesters

Police are being urged to charge protesters yelling “gas the Jews” at the pro-Palestine Opera House riots under an unused offence introduced by the Coalition.

A pro-Palestine protest on the forecourt of the Sydney Opera House following the recent outbreak of war between Israel and Palestine. Picture: NCA NewsWire/Jeremy Piper

Police are being urged to charge protesters who yelled “gas the Jews” at a pro-Palestine Opera House rally under an unused ­offence introduced by the ­Coalition, in a bid to stamp out anti-Semitism.

The Weekend Australian has obtained legal advice, compiled by barristers and handed to NSW Police Minister Yasmin Catley, which says that anyone yelling “gas the Jews” could be prosecuted under a new offence which criminalises threatening or inciting violence on various grounds including race or religion.

Those yelling “f..k the Jews”, however, are unlikely to be prosecuted. “The acts of chanting ‘f..k the Jews’ or ‘f..k Israel’, viewed by themselves (without any further context), are unlikely to be found to fall within the meaning of ‘threaten or incite’ to the criminal standard,” the advice, written by barristers Andrew Boe and Dan Fuller, reads. “While they are provocative acts, the connection with a tangible encouragement to violence is not present.

“The call to ‘gas the Jews’ is in a different category. The usage of the term ‘gas’ would, to the ordinary person, be a clear reference to what occurred in WWII, viz, systematic mass genocide by using lethal gas of Jewish people. The statement, understood ­literally, is a threat or incitement to kill.”

Police are trawling through hours of CCTV footage from the rally on October 9 that descended into anti-Semitism.

Last month, police released footage to “assist with inquiries” of a man throwing a flare at the rally. Three men have been charged and remain before the courts.

No case has yet been successfully prosecuted under the 93z ­reforms, which were introduced in mid-2018 after a concerted lobbying effort by an alliance of 31 groups, who warned the old laws were allowing threats of racially and religiously motivated violence to go unpunished.

Police investigating unlawful protest activity at the Opera House have released CCTV images in an appeal for public assistance. Pictures: NSW Police

Offences must be investigated by NSW Police and require the approval of the Director of Public Prosecutions, and those prosecuted will be penalised with up to a $11,000 fine and/or three years’ imprisonment.

NSW Opposition Leader Mark Speakman, who introduced the laws as attorney-general, said the events of October 9 needed to be closely investigated, and penalised under 93z if appropriate.

“These were shocking events in their own right,” he said. “They are doubly shocking when they happened on the doorstep of Australia’s most iconic location beamed around the world.

“It was disgraceful that the Jewish community did not have the opportunity to mourn, to come together, so soon after the shocking terrorist attacks in Israel.”

Mr Speakman said the elements of 93z were clear, and it was up to the police and the NSW DPP to prove them.

“The elements of this offence are pretty simple – it’s intention or recklessness, threatening or inciting violence based on someone’s attribute, like race or religion. It’s just a matter of proving that there’s been a contravention of those elements,” he said.

“Given reports of what has happened on the doorsteps of the Opera House, the police need to be closely investigating whether prosecutions can be brought under that section.”