Imagine what it must be like to be NSW premier Chris Minns: Sydney is under increasing attack by anti-Jewish terrorists and the community needs to know those attacks will not go unanswered.
More police action is all well and good. But what about the law?
In the absence of urgently needed improvements to federal hate-speech laws, Minns has resorted to considering a plan that was rejected by a recent inquiry led by the state’s former Chief Justice, Tom Bathurst.
The Premier needs to take a breath. There is another way.
For more than a year, hate preachers and anti-Israel activists have been fomenting violence with impunity.
Despite reassuring words from Canberra, the bill to beef up federal hate speech laws is stuck in federal parliament where it has not been treated with urgency.
The proposed federal changes are contained in the Criminal Code Amendment (Hate Crimes) Bill which would focus on the most serious end of the hate-speech spectrum: language that incites violence.
Once enacted, this bill would make it easier to achieve convictions against hate preachers by removing one of the most outrageous provisions ever to appear in a federal statute: the “good faith” defence in section 80.3 of the Commonwealth Criminal Code.
This provision provides a complete defence for those who incite racial or religious violence, who intend to do so and who intend for violence to take place.
On September 12, when Attorney-General Mark Dreyfus introduced this bill, he made the unarguable point that “there are no circumstances in which urging force or violence against a targeted group or its members can be done in good faith”.
In late November the Albanese government rammed through more than 30 pieces of legislation in one day. The Hate Crimes Bill was not among them.
So what was Minns to do?
The anti-Semitic violence blighting Sydney needs a fast legislative response and federal parliament is not due to resume until next month.
There has been widespread disappointment with the effectiveness of the NSW law against inciting racial or religious violence.
But Minns had already asked Bathurst and the state Law Reform Commission to review that law – section 93Z of the Crimes Act – and they recommended against broadening its scope.
Bathurst’s report cautioned against copying “imprecise” statutes from Western Australia that focus on odious speech which falls short of inciting violence.
Bathurst’s report, just like the Dreyfus bill, wanted the law to continue to focus on the most serious end of the hate-speech spectrum which is speech that incites violence.
Yet Minns now proposes to ignore that advice and enact a new law, based on the WA model, that would impose criminal sanctions for speech that does not contain a threat of violence or force.
The problem is that the WA law achieves its expanded scope by using terms that might sound reasonable but are so imprecise they should not be included in criminal statutes.
Statements that incite “animosity” and “hatred”, for example, are repugnant. But they are hard to define with the certainty demanded by a law that imposes jail time.
If these terms were part of the criminal law of NSW, Bathurst’s report warned they would introduce imprecision and subjectivity.
“Criminal offences carry serious penalties, including the possible deprivation of a person’s liberty. It is therefore important that criminal offences are clear and can be consistently understood across the community,” Bathurst’s report says.
He warned there were differences of opinion within the community about what hatred means and this ambiguity made it an inappropriate standard for the criminal law.
Bathurst believed it would be difficult to prove terms like “hatred” to the criminal standard and cited one submission to his inquiry that suggested proving hatred beyond reasonable doubt might be more difficult than securing a conviction under section 93Z – the NSW provision that has proved difficult to apply.
But with Sydney’s Jewish community under attack, and no sign of when the Dreyfus bill will be enacted, Minns is set to ignore Bathurst’s warning.
On Sky News during the week Minns told Sharri Markson he was looking at other jurisdictions and “WA in particular has very strong anti-hate speech laws”.
There is clearly a need for a legislative response to the wave of terrorism. NSW must defend itself.
But Bathurst is right; criminal law requires precision, not vague terms that could be applied subjectively. The WA approach is bad law.
Instead of pushing ahead with a plan that has been rejected by an inquiry which Minns commissioned, the Premier would be better advised to take a different course.
He should work with the Executive Council of Australian Jewry to persuade Dreyfus to strengthen the federal Hate Crimes Bill and have that bill enacted urgently.
Instead of referring to incitement, the ECAJ has suggested a clever and simpler way of broadening the scope of the federal law without resorting to the sloppy drafting that so concerned Bathurst.
In the view of the ECAJ, the Hate Crimes Bill should drop the term incitement and instead cover speech which promotes, advocates or glorifies the use of force or violence while being reckless about the outcome.
Those terms are more certain than the drafting from WA. They might also be more effective.
The proposal from the ECAJ could catch those who use vague phrases and ideological or religious allusions which nevertheless promote, advocate or glorify violence against a particular race or religion.
In perilous times, leaders need to keep their heads and respond to terror with laws that are clear and uncompromising.
