Tom Bathurst, the former chief justice of NSW, has been handed a task that has proved to be beyond the capacity of the best brains in the NSW parliament.
He has been asked to review a law that is incapable of dealing with the worst of the anti-Semitic bile that has given Sydney a global reputation for racial hatred.
This law has already been tweaked. But it has not been used against those who have been inciting violence against Jews.
The test will be whether Bathurst’s review can remain focused on the core issue instead of becoming bogged down in an irrelevant public debate about freedom of speech.
Let’s be clear about this. The problem here is the failure of NSW to deal with race-based incitement to violence – a criminal offence that is supposed to attract jail time under section 93Z of the Crimes Act.
This failure may well have fostered a sense of impunity among those who, in a rational world, should have been brought before a court.
Incitement to violence is a crime, not a legitimate exercise of free speech.
That remains the case regardless of whether it happens on the steps of the Sydney Opera House, at a religious gathering or some other public place.
Incitement falls into a completely different category to the far less serious question of whether someone has been offended, insulted, humiliated or intimidated.
That already attracts civil penalties under section 18C of the federal Racial Discrimination Act.
Parts of the Islamic community have reportedly expressed concern about this review. Those concerns are misplaced.
This project is not aimed at stifling their freedom of speech. It is aimed at stopping crime and saving lives – something that serves the interests of all vulnerable minorities, including Muslims.
Bathurst’s task will not be easy. He is under pressure from the NSW Council of Civil Liberties to not lower the criminal threshold to secure convictions.
There is, however, a ready-made solution. And it is to be found in a 2016 book on section 18C that was co-authored by Lorraine Finlay before she was appointed Australian Human Rights Commissioner.
Finlay and her co-authors, Joshua Forrester and Augusto Zimmerman, have drafted a proposed criminal provision dealing with the wrongdoing that prompted NSW Premier Chris Minns to call in Bathurst.
Their test would not turn on the vague question of whether someone was offended, but on whether violence or an imminent danger of violence had been incited against people by reason of their racial identity, colour, ethnicity or nationality.
Their drafting is tight and specific – something that should satisfy the Council of Civil Liberties. It can be found in chapter six of their book, “No offence intended – why 18C is wrong”.
