A move to overhaul the law criminalising hate speech in New South Wales following clashes across Sydney amid community tensions over the Israel-Hamas war has sparked debate over the limits of freedom of speech.
The NSW premier, Chris Minns, this week ordered a review of the 2018 law that made it a crime to threaten or incite violence based on race, religion, sexual orientation or gender identity, because to date crimes under the laws had never been successfully prosecuted.
Minns said he did not believe the racial vilification portion of the legislation went far enough despite already being “strict”.
“You can protest, but you can’t take it so far that you’re advocating for violence or hatred on city streets,” he told ABC radio on Tuesday morning. He said there was “no point” having the laws if they were not used.
“With a state as big as ours, there are going to be ratbags and bad-faith actors and if they go too far they need to be charged,” he said.
Religious organisations, including those representing Jewish communities, have complained that the laws are useless in policing hate speech and called for an overhaul. Faith NSW’s chief executive, Murray Norman, said the government needed to lower the bar for conviction.
“There is freedom of speech in NSW and we need to protect that but we also need to make sure that people aren’t inciting others to hatred and violence,” he said. “The bar [is] set too high.”
Two convictions under the laws have been annulled after it was revealed police did not have the permission of the Director of Public Prosecutions to launch the cases.
Lydia Shelly, the president of the NSW Council for Civil Liberties, said the government’s move to reform the hate speech law was concerning if it was being done based on lobbying from faith groups and “in the absence of any legal or policy evidence”.
“Speech that is controversial should be rightly challenged, debated or even ridiculed – including in an open and free press – and ought not be criminalised,” she said.
“This is a fundamental value we enjoy living in a democracy. We must not allow changes to our laws that will see our capacity to challenges ideas, positions and beliefs be taken away from us.”
She was worried about reports of increased Islamophobia and antisemitism and said people needed to resist “any curtailing of free speech that falls short of threatening or inciting violence” in NSW.
“If the legal threshold is lowered, it will not make faith communities any safer from a perceived risk of violence or the risk of actual violence occurring,” she said.
“Lowering the threshold will substantially alter the fabric of our democracy.”
‘Knee-jerk’ response
The Greens’ justice spokesperson, Sue Higginson, said reactive law-making was not good and urged the government to avoid “knee-jerk” lawmaking.
“We do need to take steps to respond to the increased hate that is occurring, but this is not something the government can arrest their way out of,” she said. “We need to focus on community building, addressing the root causes of hate – a law and order approach is clearly not working.”
The opposition leader, Mark Speakman, was open to considering any changes suggested but said the area of law was a “tricky balance” and the government needed to avoid overreach.
Speakman said flying a Palestinian flag was a matter of free speech even if some people were offended by it.
– with AAP
