By Paul Gregoire and Ugur Nedim
On the last parliamentary sitting day in NSW for 2023, the Minns government successfully passed legislation that served to tighten a hate speech offence, as a safeguard mechanism within it was deemed to have rendered it ineffective and having resulted in a lack of convictions.
The offence was tightened during the political fallout spawned by the Israeli government, as it had unleashed an all-out massacre on the 2.3 million Palestinians of the Gaza Strip, which is an act being perpetrated with genocidal intent that started on 7 October and continues to this day.
In NSW, premier Chris Minns lit up the Sydney Opera House with the Israeli flag in early October, at a moment when Israeli communities were reeling from a Hamas attack and Netanyahu commenced the mass extermination of the civilian population of Gaza in an act of disproportionate retaliation.
Pro-Palestinian protesters gathered before the Opera House on the night of 9 October in response to support for the state of Israel being projected on to it, as the wholesale carpet bombing of Gaza had just begun, after the residents of that region have been suffering under a 16 year goods blockade.
Footage of 9 October rally emerged soon after. This appeared to show some people chanting antisemitic rhetoric. But the authenticity of the footage, which was circulated by the Australian Jewish Association, is still questioned as the original source has refused to produce it for verification.
So, as the atrocities in the Middle East continue and NSW Labor clocks off for the holidays, the state, which has seen a rise in reports of Islamophobia and antisemitic incidents of late, has strengthened religious vilification laws on the books in response to what could be a civilian false flag incident.
Ineffective or unbroken?
The Crimes Amendment (Prosecution of Certain Offences) Bill 2023 passed through both houses of NSW state parliament on 30 November: the last sitting day for the year. And the legislation has resulted in a simple tweak to a 2018 enacted hate speech or vilification crime.
“This bill makes a small but important amendment to section 93Z of the Crimes Act 1900,” explained NSW attorney general Michael Daley during his second reading speech. “The amendments proposed in the bill will streamline the process for police to prosecute people who offend against section 93Z.”
Section 93Z of the Crimes Act 1900 (NSW) contains the offence of publicly threatening or inciting violence on grounds of race, religion, sex, gender or intersex or HIV/AIDS status, which carries up to 3 years prison and/or a fine of $11,000 for individuals, while corporations can cop a $55,000 fine.
An individual can be convicted of this offence if the court finds, beyond reasonable doubt, that the accused either intentionally or recklessly threatened or incited violence towards another person or group based on any of the protected attributes making up the title of the offence via a public act.
A public act includes any form of communication to the public and any conduct observable by the public, as well as the distribution or dissemination of any matter to the public.
Communication involves “speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods,” while conduct can be “actions and gestures” or wearing or displaying “clothing, signs, flags, emblems and insignia.”
Further elements of the offence confirm that the alleged offender remains guilty regardless of whether they were incorrect in their assumptions and beliefs about the individual or group they vilified, as well as when such vilification is found to have been ineffective in influencing others.
Prior to Minns legislating on the fly in response to rumours circulating, subsection 93Z(4) stipulated “a prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions”.
The amendment bill results in the replacement of the preexisting stipulation in subsection 93Z(4), so that the prosecution of the vilification or hate speech can either be pursued with the approval of the DPP or a NSW police officer.
Attempting to criminalise a freedom movement
The Australian reported that the Minns government was debating strengthening NSW hate speech laws on 14 November, as a direct result of the antisemitic statements made during the 9 October rally before the Sydney Opera House.
The CEO of recently established lobby group Faith NSW Murray Norman told Sky that he was concerned hate speech laws were ineffective because the bar was set “too high”, whilst Minns, who attended the group’s launch, said there’s no point to having the laws if they aren’t used.
Prior to strengthening of the 93Z offence, Minns asserted that the reason it had resulted in no convictions over five years was the DPP stipulation, and in championing this idea, the premier disregarded any preventative impact that criminalising such behaviour may have resulted in.
This was following The Australian obtaining legal advice, which suggested the disputed 9 October chant “gas the Jews” would fall foul of the laws. However, the multiple reports of people stating “fuck the Jews” wouldn’t trigger the old law, as it’s unlikely to constitute a threat or incitement.
The Berejiklian-government passed Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW) created the 93Z offence half a decade ago, in an effort to consolidate the multitude of vilification offences then located in the Anti-Discrimination Act 1977 (NSW), in the Crimes Act.
“It is also important to ensure that there are no unnecessary fetters in place that could impact on the efficient and appropriate prosecution of offences committed by those who publicly threaten or incite violence in this state,” Daley further told the lower house chamber on introducing the bill.
“The NSW government considers that removing the requirement for DPP approval to commence prosecutions under section 93Z continues to strike the right balance,” he added, whilst introducing the bill on 27 November.
Indeed, whilst Minns’ amendment to hate speech law professes to capture those who publicly display prejudicial sentiment towards an individual or a group due to protected attributes, it’s also the result of a government scrambling to attempt to curb rising dissent in this state.
This dissent consists of the rejection of the official position of both major parties in their unbridled support for Israel as it perpetrates the crime of the century and the embrace of the Palestinian cause, which involves an end to the Gaza bloodshed and for the reestablishment of a free Palestine.
Rather than being anti-Jewish in nature, this rising Palestinian support is anti-Zionist, which is the 19th century ideology that promotes and has resulted in the creation of the Israeli state to the detriment of historic Palestine.
So, it’s rather unlikely that the amendment will result in criminalising public displays of support for the liberation of an occupied people, and this is despite the attempt of western leaders in general to equate pro-Palestinian support with antisemitism.