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Chris Merritt
Legal Affairs Contributor
10 November, 2023
Legislation should not be selectively enforced

Five years ago, when Vic Alhadeff was chief executive of the NSW Jewish Board of Deputies, he led a long and successful campaign that should have been a body blow to those who incite racial and religious violence.
That campaign persuaded the NSW government to introduce a new law accompanied by big fines and jail time for those who publicly threaten or incite racial and religious violence.
At the time, it looked like NSW was sending a message about the sort of conduct that has no place in this country.
But the recent rise of anti-Semitism shows that the law alone is not enough.
Even the best statute can be rendered meaningless unless it is enforced. And that is what seems to have happened to the law that was championed by Alhadeff.
It is now one month since crowds gathered outside the Sydney Opera House and called for Jews to be gassed. Evidence of this public incitement of violence was broadcast around the world.
Police were present. But instead of enforcing the criminal law that had been approved by parliament five years earlier, they chose to arrest a Jewish man who had broken no law but had displayed an Israeli flag.
This selective enforcement of the law is the antithesis of the principle that the law should apply equally to the entire community.
No officer of the state should arbitrarily decide that the criminal law should not be enforced against supporters of Palestinians; nor should officers of the state determine that Jews should be denied the benefit of the law championed by Alhadeff.
To do so brings the law into disrepute and can encourage the very conduct that parliament sought to prevent.
The consequences of that failure outside the Opera House are now becoming apparent. More incitement to kill Jews is blighting the streets of Sydney and parts of the Islamic community.
Media reports say police are investigating an Islamic preacher – just as they are now investigating the criminal conduct they ignored when it took place in front of them at the Opera House.
But that’s not the worst of it.
Sharri Markson reported on Sky News this week that a Jewish man was beaten and kicked by a pro-Palestinian mob in the Sydney suburb of Arncliffe on October 28.
One of his attackers threatened to murder him. He was hospitalised with concussion, four spinal fractures and two black eyes.
It seems clear in retrospect that the authorities in NSW made a terrible mistake outside the Opera House.
In the light of subsequent events, it would have been better to focus less on avoiding a confrontation and more on making it clear that the law enacted by parliament had to be respected. The law that should have been enforced that night is the provision that was championed by Alhadeff – section 93Z of the NSW Crimes Act, which has been on the statute book since June, 2018.
Had this law been applied to those encouraging murder it would have sent a clear message about the consequences that await those who threaten Australians with violence because of their religion or race.
The maximum penalty for a conviction under section 93Z is three years in prison and a fine of up to $11,000.
What we are witnessing is not just the first real test of section 93Z.
This community and its leaders are all being tested.
Do we still insist that the laws made by parliament must apply equally?
Or is it now acceptable for police, when directly confronted with public threats to kill Jews, to tolerate such conduct and investigate later?
In order to avoid antagonising supporters of Palestinians, police deprived Jews of the benefit of a law that protects people from the threat of violence.
This might not have been their intention. But it helps explain why some Jews in this country now fear for their safety.
In 1949, US Supreme Court judge Robert Jackson wrote that “nothing opens the door to arbitrary action so effectively as to allow officials to pick and choose only a few to whom they will apply legislation”.
This is in line with a later statement by the English jurist Lord Scarman, who told the House of Lords in 1983: “Every person within the jurisdiction enjoys the equal protection of our laws.”
When section 93Z was introduced to the NSW parliament, the Coalition’s Mark Speakman was Attorney-General. He is now Leader of the Opposition.
He told parliament on June 5, 2018, that the new offence would demonstrate that his government “does not tolerate threats of violence or incitement of violence”.
He issued a press release the same day that, after the events at the Opera House, now looks like wishful thinking.
It said: “We’re not saying people can’t have opinions or express their views, but if they cross the line into threatening and inciting violence they will not go unpunished.
“Our new laws will boost police powers, allowing them to target offenders and better protect a broader range of people, including those belonging to religious groups,” that press release said.
When asked this week for his assessment on the current state of the law, Alhadeff had some advice for our political leaders:
“All Australian citizens would expect that the criminal law would provide them with protection from any person or group who would promote or advocate violence against other Australians for any reason,” he said.
“If the current law can’t do that, then state and federal governments need to act now to give all Australians the protection they deserve.”