New South Wales police will be handed the power to lay charges for threats and incitement to violence based on race and religion in a reform introduced to state parliament amid rising tensions over the conflict in Gaza.
The premier, Chris Minns, said the laws governing hate speech needed to “have teeth” when he announced the change, after a swift review of the legislation.
Leading legal minds have spoken out against the change, insisting safeguards are important and the changes would “risk opening the floodgates for controversial speech to be investigated”.
As it stands, police need to seek approval to use the laws from the director of public prosecutions (DPP) to charge anyone for making threats or inciting violence. Under the proposed change, the DPP would be sidestepped and the power would rest with police.
The 2018 law was reviewed after weeks of pro-Palestine protests and a string of alleged antisemitic incidents across Sydney.
The attorney general, Michael Daley, said he was making the change because “recent dynamic events” had shown him the law was no longer “fit” for NSW.
“Some of the alleged behaviour that was seen on the streets has caused us within government to have a look at this provision and then to come to the conclusion that it could be better improved,” he said.
Despite the law having been available to police and the DPP for five years, just 12 charges have been laid using the legislation as it stands. Of those, 10 were withdrawn and two convictions were being appealed in the high court, Daley said.
According to the attorney general, the administrative burden added by the referral of possible cases to the DPP meant police had been less likely to opt for the provision and he hoped to remove it would see it used more.
An individual found guilty under the laws would face a fine of up to $11,000 or up to three years in jail, or both.
Daley has said the change would bring the process in line with that available to police charging someone for displaying a Nazi symbol, but legal groups have said the two offences should not be compared due to the complex difference between the charges.
Greg Barns, criminal justice spokesperson at the Australian Lawyers Alliance, said the law, which was “only introduced in 2018”, needed to be applied carefully and as such needed DPP oversight.
“It requires careful consideration before charging anyone with this offence because it is broad and it applies in the context of it being a curtailment of freedom of speech,” he said.
“It is important to have DPP oversight in those circumstances.”
Lydia Shelly, the president of the NSW Council for Civil Liberties, said the changes risked unintended consequences.
“These … may include the politicisation of police investigations and prosecutions, the misuse of police resources … as well as a chilling effect on issues that should be debated in public,” she said.
Shelly said the alleged abhorrent chants at the Opera House should already be captured under the legislation and any controversial speech that falls short of the current legal threshold should not be criminalised.
“Removing the DPP as a safeguard risk opening the floodgates for controversial speech to be investigated, risks further deteriorating social cohesion,” she said.
The NSW Greens MP Jenny Leong said the changes would not make the state a safer place.
“Rushing through changes that give police more powers without oversight on complex issues at the intersection between freedom of speech and vilification will not make our community any safer.
“As much as NSW Labor might want a quick and easy solution, you can’t police your way out of this complex issue.”
The opposition is expected to support the bill and it will be considered when the shadow cabinet meets this week.
