It’s hard to identify the worst aspect of the recently enacted hate speech legislation in NSW.

But let’s have a crack, because there is a real chance the greatest achievement of this shocking law will be to let hate preachers off the hook. It is worse than doing nothing.

First consider that this law, which is supposed to criminalise incitement of racial hatred, actually includes an exemption for hate preachers. 

They will be free to continue to incite racial hate as long as they cite a religious text and spew their bile while engaging in religious teaching or discussion.

That exemption means the new law in NSW against inciting racial hatred amounts to appeasement for those who believe they have a religious duty to promote the hatred of Jews.

It means repugnant conduct by religious leaders that has contributed to the rise in anti-Semitism has effectively been protected by the parliament of NSW.

And that endorsement followed a legislative procedure that minimised parliamentary scrutiny and ignored the findings of an independent inquiry.

One month after the world witnessed the disastrous display of anti-Semitism outside the Sydney Opera House on October 9, 2023, the state opposition tried to establish a parliamentary inquiry into the incitement of violence.

That was blocked by the Labor government of Premier Chris Minns, which instead commissioned an inquiry by former chief justice Tom Bathurst and the NSW Law Reform Commission – which it then ignored.

Bathurst had recommended against changing the Crimes Act and warned about the “imprecision and subjectivity” that would be part of a law that attempted to criminalise incitement to hate.

Yet that is exactly what Minns and his Attorney-General, Michael Daley, have just done.

The exemption for hate preachers is outlined in schedule 1 of the Crimes Amendment (Inciting Racial Hatred) Bill which contains provisions that will be inserted into the Crimes Act.

After Daley introduced this scheme to parliament on February 18, the opposition complained that it had only been presented with the bill the week before – 15 months after the government blocked its proposed parliamentary inquiry.

This bill was rushed through parliament in four days and will come into force at some future date after police and the community have been educated about the new approach.

In a rational world, a law aimed at eliminating the incitement of racial hate would have targeted the hate preachers who have used their positions to foster racial hatred – including those who cite religious texts.

Instead, this law does the reverse. It targets everyone except those who have been the prime movers of the sickness that has shamed this nation in the eyes of the world. Yet Daley believes the exemption for hate preachers is justified because it will protect what he considers to be their “religious freedom”.

This is what the Attorney-General said about the exemption in his second reading speech on the new law:

“New section 93ZAA (2) provides for a statutory exemption that will apply to acts that consist only of directly quoting from or otherwise referencing a religious text for the purpose of religious teaching.

“This exemption is intended to protect freedom of religion, and to recognise that some historical religious texts may contain archaic language or historical ‘calls to arms’ that, when part of religious teachings, should not come within the purview of the offence.”

The exemption is not the only problem with this law. 

One of the key points in Bathurst’s report – which did not hit home with the government – is that one of the core requirements of criminal law is precision so it can be consistently understood across the community.

But hatred is a feeling, not an act. 

And that feeling has different meanings to different people which is why Bathurst, unlike Minns and Daley, considered it an inappropriate standard for criminal law.

Yet it looks like this has opened the door for something that could be much worse.

Daley intends to conduct a review of the new law and has not ruled out expanding its scope to criminalise the incitement of hatred on grounds such as religion, which is currently covered by civil penalties.

Keep in mind that civil tribunals have explained that hatred can merely mean violent dislike, detestation, hostility or strong aversion.

If that is what the government is considering, it could amount to a form of blasphemy law, which would further appease those who believe their religion should be beyond criticism.

It’s bad enough that NSW has already sided with those who preach racial hate from their religious books, but criminal law has no business jailing people for criticising aspects of a particular religion – even if that amounts to inciting hostility, strong aversion or violent dislike.

All these issues arise from the fact that Daley and Minns failed to heed Bathurst’s warning: inciting hate is too vague a term to become the basis for sending people to prison. It has been left undefined by the new law.

The Liberal Party’s Damien Tudehope nailed the problem during debate in the Legislative Council: “The opposition is reluctant in its support of this bill because the criminalisation of speech, in the absence of a direct incitement to engage in an act of violence, is deeply problematic.”

Yet Daley has big ambitions for hate speech: “Criminalising hate speech on the grounds of all attributes that are protected by civil vilification regimes is challenging and complex … The introduction of this bill does not preclude the government from bringing forward legislation to address hate speech on other attributes.”