NSW police gain power to launch hate crime prosecutions
Law changes will allow police in NSW to prosecute people with inciting violence based on race, religion or sexual orientation without external approval.
NSW Attorney General Michael Daley during Question Time in the Legislative Assembly at New South Wales Parliament House, in Sydney, September 19, 2023. (AAP Image/Bianca De Marchi)
NSW Police will have the power to prosecute people for threatening or inciting violence based on race, religion or sexual orientation without gaining external approval under changes passed by state parliament.
During a late-night sitting on Thursday to mark the end of parliament for the year, the upper house agreed to an amendment that only police or the Director of Public Prosecutions (DPP), not private citizens, would have the power to commence hate crime prosecutions.
Seeking permission from the DPP was cited by the government as a key reason no person had been convicted under the law since its introduction in 2018.
All eight charges laid up to June – two on race grounds, two on religion and four on gender identity – have been withdrawn.
No charges have been laid for hate crimes based on a person’s sexual orientation or HIV/AIDS status.
The lack of successful prosecution came to light amid heightened tensions concerning the Israel-Hamas war that reignited eight weeks ago.
But the coalition, while supportive of opening the door to police-led prosecutions, warned the change could also allow citizens to bring private prosecutions.
“The government’s poorly drafted legislation risks weaponising the provision in the hands of people trying to shut down free speech,” opposition leader Mark Speakman and shadow attorney-general Alister Henskens said on Thursday.
“Even if people are ultimately acquitted there is the chilling effect of being threatened with having to go through a criminal prosecution.”
The Greens also raised concern that no public review had examined the reason so few prosecutions had occurred and what extent, if any, the approval process played in that.
Parliament’s upper house ultimately agreed to amendments proposed by independent MP Rod Roberts, to specify prosecutions for hate crimes can only be commenced by NSW Police or the DPP.
Attorney-General Michael Daley had previously attempted to hose down the coalition’s concerns.
To his knowledge, no private prosecution had been run in the past two years.
Even if one was launched, the DPP had the power to take over baseless or any other prosecutions and discontinue them.
“There is nothing to suggest that unfounded private prosecutions are a problem for the NSW criminal justice system, despite the right of private individuals to commence proceedings applying for the vast majority of offences in the Crimes Act,” he told parliament.
The effect of the change will be reviewed every 12 months.
The president of The New South Wales Jewish Board of Deputies, David Ossip, told J-Wire: “We thank and congratulate the NSW Government on the passage of legislation strengthening section 93z of the Crimes Act.
The amended law will allow for the timely and effective prosecution of those who publicly threaten or incite violence against others based on their race, religion, sexuality or other immutable characteristics.
Those who incite such violence tear at the seams of what makes NSW the best place on Earth to live. Such conduct is wholly inconsistent with Australian values and the strengthened law will offer greater protection to all.
We again thank Premier Chris Minns and Attorney-General Michael Daley for their leadership in swiftly strengthening and giving teeth to this important legislation and acknowledge with thanks that, with the exception of the Greens, this legislation received the support of the entire Parliament.”
AIJAC also formally congratulated NSW Premier Chris Minns and NSW Attorney-General Michael Daley for responding to community concerns.
It passed the Upper House with amendments 34 to 5 – with only the four Greens Upper House MPs and the sole Animal Justice Party MP opposing.
AIJAC and a number of other Jewish communal organisations have been at the forefront of the campaign to bring about the changes.
The Crimes Amendment (Prosecution of Certain Offences) Bill 2023 will commence upon proclamation by the Governor and after appropriate police training.
AIJAC Executive Director Dr Colin Rubenstein said: “Hate speech has no place in our society. No one should be permitted to propagate hate towards another group without facing tough consequences – and these changes aim to make it easier to bring those who offend to account.
This is about sending a strong signal that if you engage in hate speech you will be held to account and face prosecution. It is hoped that it will target those who preach hate in our community against the vulnerable.
The Jewish community has long advocated improvements to the existing NSW laws overseeing the prosecution of threats and incitement to violence, given that there has never been a successful prosecution under the current legislation.
Admittedly, this has been a long time in coming, but it is welcome and we now hope that it will result in prosecutions for those who spread hate in our community.
Sadly, there is profound apprehension and anxiety in the state’s Jewish community, especially in light of the recent huge spike in antisemitism in NSW, Australia and around the world.
If we are to strive to maintain our harmonious society that is free from religious and racial discrimination and incitement to violence, then it is essential that our relevant laws are workable and enforceable.”
By: Luke Costin and Maeve Bannister/AAP with J-Wire
Great news. The Greens might have to watch out now!