In the wake of a disturbing surge in antisemitic vandalism and arson attacks across Sydney, leaving the Jewish community shaken and demanding action, the New South Wales government is grappling with a contentious question: Should hate speech laws be strengthened to criminalize vilification?
Premier Chris Minns has hinted at potentially momentous changes to the state’s anti-discrimination legislation, specifically section 93Z of the Crimes Act, which currently treats vilification as a civil matter. The government, Minns suggests, is closely examining the approaches taken by other Australian jurisdictions like Victoria and Western Australia, where incitement to hatred and other forms of vilification are already criminal offenses.
Hate speech laws have been in place in the state for a long period of time, but they’ve criminalized acts that have induced violence in the community, not, for example, vilification.
– NSW Premier Chris Minns
But the prospect of hasty legal reforms has alarmed civil liberties advocates, who argue that the government risks enacting “reactionary” legislation that could undermine fundamental freedoms without necessarily making vulnerable communities any safer. The New South Wales Council for Civil Liberties (NSWCCL) has been particularly vocal in its opposition, warning that “you cannot arrest your way into social cohesion.”
A Question of Timing and Process
Central to the NSWCCL’s concerns is the fact that the government itself commissioned a comprehensive review of section 93Z just last year, conducted by esteemed jurist Tom Bathurst SC. That review, which involved extensive community consultation, ultimately recommended against amending 93Z to criminalize vilification, citing the need for a more holistic approach to fostering social cohesion.
In the words of the Bathurst report:
We acknowledge public interest in the operation of [93Z] has increased following the events in Israel and Gaza on and after 7 October 2023. However, after consulting widely, we have concluded that [93Z] should not be amended.
– Excerpt from the NSW Law Reform Commission’s 93Z review
Critics contend that by floating the possibility of disregarding these findings mere months later, in the heat of the moment, the Minns government is acting rashly and failing to heed expert advice. There are also questions around the timing of the proposed reforms in relation to an ongoing review of the state’s Anti-Discrimination Act, which covers vilification laws more broadly and is due to deliver its report early this year.
Examining the Victorian Model
Premier Minns has repeatedly invoked Victoria’s more stringent vilification laws as a potential model for NSW to emulate. Yet the Bathurst review explicitly cautioned against this approach, arguing that it would “introduce imprecision and subjectivity into the criminal law.” The NSWCCL echoes these reservations, with President Timothy Roberts declaring:
It is perplexing that the premier should look to Victoria as an example instead of listening to the considered views of Tom Bathurst. It is clear from recent events in that state that the so-called ‘tougher laws’ have not solved the issue the premier seeks to address.
– Timothy Roberts, President of the NSW Council for Civil Liberties
The Challenge of Balancing Priorities
Underpinning this heated debate is the age-old dilemma of how to balance the protection of vulnerable minorities with the preservation of civil liberties in a free and open society. Few would dispute that the state has a solemn duty to combat hatred and bigotry in all its forms. But history is replete with examples of well-intentioned laws that end up stifling free expression, entrenching state power, and eroding the very social fabric they were meant to safeguard.
As legislators grapple with this complex issue, they must weigh a range of competing imperatives:
- Sending a clear message that antisemitism and other forms of hate will not be tolerated
- Equipping law enforcement with the tools to swiftly investigate and prosecute cases of vilification
- Ensuring that any new laws are carefully crafted, proportionate, and minimally restrictive of civil liberties
- Investing in education, community outreach, and other “soft” measures to promote mutual understanding and combat bigotry at its roots
Ultimately, there are no easy answers. But one thing is clear: in the face of escalating hatred and fear, a “business as usual” approach is no longer tenable. The challenge for NSW authorities – and for all Australians of conscience – is to chart a path forward that is both principled and pragmatic, guided not by the raw emotions of the moment, but by an unwavering commitment to the values of a just, inclusive, and democratic society.
As the Minns government presses ahead with its proposed reforms, it is imperative that it engages in meaningful consultation with affected communities, civil society groups, legal experts, and the broader public. Only through such a deliberative, transparent, and inclusive process can NSW hope to craft hate speech laws that are fit for purpose – laws that strike a judicious balance between upholding civil liberties and providing real, tangible protection to the state’s most vulnerable residents.
The stakes could hardly be higher. In an increasingly polarized and turbulent world, the resilience of our democratic institutions will hinge, in no small measure, on our collective capacity to confront the specters of hatred and intolerance with moral clarity, unwavering resolve, and a bedrock commitment to the rule of law. The outcome of this fierce debate will send a powerful signal – not only to the Jewish community of New South Wales, but to all Australians – about the kind of society we aspire to be.
