Critics have accused the New South Wales government of ignoring its own 2024 review into hate speech laws, as it tries to respond to a spate of antisemitic vandalism and arson attacks in Sydney that has left Jewish communities on edge.
The NSW Council for Civil Liberties says the government risks making “reactionary” legislative decisions and has warned state officials that they “cannot arrest your way into social cohesion”.
The criticism comes amid growing calls for the government to do more to stem the attacks.
What has been proposed?
The laws have not yet been drafted, but the premier, Chris Minns, flagged on Friday the government would seek changes to hate speech laws during the first sitting week in February.
The changes could result in amendments to section 93Z of the Crimes Act. Minns says the government is looking at what other jurisdictions are doing and whether it should take similar steps.
Section 93Z covers the offence of publicly threatening or inciting violence on the grounds of someone’s race, religion, sexuality or gender identity. The maximum penalty is three years in prison or an $11,000 fine for an individual.
Minns has suggested that an amendment could result in NSW making vilification a criminal rather than a civil offence involving civil penalties.
“Hate speech laws have been in place in the state for a long period of time, but they’ve criminalised acts that have induced violence in the community, not, for example, vilification,” Minns says.
“It’s still against the law, but [it] requires a private individual to launch prosecution.
“So we’re going to be looking at that aspect of the law. It’s in place in other jurisdictions around Australia,” Minns says, adding that “self-evidently, something needs to change”.
Western Australia and Victoria criminalise incitement to hatred, and other
forms of vilification.
What do civil liberties groups say?
The NSW Council for Civil Liberties says it has warned the government against making amendments to 93Z, saying it goes against the recommendations of a review the government commissioned last year.
“You cannot arrest your way into social cohesion. This reactionary response from the premier will not make people safe,” says Timothy Roberts, the president of the council.
The government commissioned Tom Bathurst SC, the chair of the NSW Law Reform Commission and a former supreme court chief justice, to examine if 93Z was operating effectively, and to “provide the community confidence”.
Bathurst’s review recommended against changing 93Z and making vilification a criminal offence.
This week, as NSW considers hate speech reform, Minns pointed to Victoria’s equivalent 93Z laws as taking a “tougher” approach to vilification.
But the Bathurst report specifically advised the NSW government against following Victoria’s lead, arguing such laws would “introduce imprecision and subjectivity into the criminal law”.
“We acknowledge public interest in the operation of [93Z] has increased following the events in Israel and Gaza on and after 7 October 2023. However, after consulting widely, we have concluded that [93Z] should not be amended,” the report said.
“Concerns raised about the limits of the criminal law in achieving and maintaining social cohesion have also informed our decision not to recommend change to [93Z].”
As one submission observed, less punitive approaches may be better at promoting education and maintaining “peace and order”.
The NSW Jewish Board of Deputies submitted to the review that 93Z should be expanded to cover acts that incite hatred. Meanwhile, the Shia Muslim Council of Australia urged the government to “consider ‘soft’ measures – such as social media regulation and anti-racism strategies – rather than ‘hard law’”.
Roberts says potentially going against Bathurst’s recommendations shows “a concerning disregard for the advice commissioned by his own government”.
“It is perplexing that the premier should look to Victoria as an example instead of listening to the considered views of Tom Bathurst,” he says.
“It is clear from recent events in that state that the so-called ‘tougher laws’ have not solved the issue the premier seeks to address.”
Has 93Z been amended before?
At the end of 2023, the government amended 93Z so that police can prosecute someone under the laws without the approval of the director of public prosecutions.
There was support for the change at the time, but also concern that the change removed an important safeguard.
The amendment was made in the wake of community concerns about antisemitism, and there were questions as to whether the law was fit for purpose given there had been no successful prosecutions since the law was introduced in 2018.
The NSW Law Reform Commission report on whether 93Z should be amended noted that some submissions to the review had said it was premature to consider further changes to the law given that the removal of DPP approval had not yet been assessed.
The NSW attorney general was due to table a report on the effectiveness of that amendment on 1 January. A spokesperson for Michael Daley says the report will be tabled in the “coming months”.
“We don’t need more reviews,” the spokesperson says, noting the detailed review that the commission conducted last year.
A review is also now under way examining the effectiveness of the Anti-Discrimination Act, which covers vilification laws. That report is due to be tabled early this year.
What else has been flagged?
Minns says when parliament resumes in February it will also consider the December announcement about potential further regulations on protests outside places of worship.
Alongside possible changes to 93Z, Minns has said changes to the sentencing procedures in the Crimes Act may be made, which could consider discrimination as an aggravated factor in sentencing.
