NSW’s proposed new hate laws feel somehow incomplete

NSW Premier Chris Minns is to be congratulated for the alacrity with which he responded to Australia’s antisemitism crisis.

While others dithered, he went against the recommendation of the state’s Law Reform Commission and announced new legislation centred on race alone following a review of hate speech laws. The changes to section 93Z of the Crimes Act include the creation of a new criminal offence for intentionally inciting racial hatred against various defined groups, strengthening protections for places of worship, and amending existing laws to create an aggravated offence for placing graffiti, such as a Nazi symbol, on such sites.

The NSW government has bravely gone down its own path to deal with antisemitism. The federal government and most states, except Western Australia, have only applied criminal sanctions to hate speech where there is a threat of violence or damage to property.

“We have seen disgusting acts of racial hatred and antisemitism,” Minns said. “These are strong new laws and they need to be because these attacks have to stop. These laws have been drafted in response to the horrifying antisemitic violence in our community, but it’s important to note that they will apply to anyone, preying on any person, of any religion.”

The legislation is expected to be introduced into parliament next week, but the changes are quite technical and unlikely to have a significant impact on the growing threat of antisemitism. In its report last November, the Law Reform Commission concluded that strengthening laws was not always the best way to address underlying social issues and noted the low prosecution rate for section 93Z could be explained by police preferring other, more serious offences for these types of crimes.

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Former federal attorney general George Brandis wrote in the Herald that both federal and state parliaments have had to calibrate the correct legislative response to the outbreak of antisemitism but only Minns “has overreached”, while Prime Minister Anthony Albanese, under pressure from Opposition Leader Peter Dutton, has made the right call on amendments to “hate speech” laws.

But the sharp focus of the proposed NSW law illustrates the shortcomings of rushing through legislation.

Minns has admitted that faith groups and the LGBTQ community would not be covered by the new laws, conceding that making wholesale changes to the state’s anti-vilification legislation would be too difficult to achieve quickly. He has not ruled out a broader overhaul of hate speech laws, however. While admitting such a change would be complex, “that doesn’t mean it’s impossible, and it doesn’t mean that we shouldn’t pursue it”.