NSW government rejects own inquiry’s hate speech findings after months of delay

The Minns government will ignore the key recommendation of its own special inquiry into hate speech laws despite it finding that rushed changes made by Labor following a string of antisemitic incidents had created a hierarchical system of legal protections detrimental to social cohesion.

On Tuesday, Attorney-General Michael Daley released the findings of the review by Justice John Sackar, KC, into NSW hate speech laws, which found a person’s sexuality, religion or gender identity should enjoy the same protection as race under the law.

The 157-page report, which the government steadfastly refused to release for several months despite a parliamentary order, was published at the same time as Daley dismissed its findings.

Sackar’s report found Labor’s hurried changes to hate speech laws – made following a string of antisemitic incidents last year – had created the perception of a “hierarchical, two-tier model of protection” which was “detrimental to social cohesion”.

The government passed laws that made racial vilification an offence in February last year, arguing it needed to act urgently to combat antisemitism.

It established a new section, 93ZAA of the Crimes Act, which made it a crime to intentionally and publicly incite hatred towards another person, or group of people, on the grounds of race.

The change came on top of the existing 93Z laws, which make it a criminal offence to incite violence based on someone’s race, religion or sexuality.

The new laws came after the NSW Law Reform Commission had warned against such a change, and prompted criticism from legal bodies, which warned they were vague and too complex. Other groups argued the laws should provide equal protection for vulnerable communities vilified because of attributes such as religion, sexuality, and disability.

In his review, Sackar, who previously led the NSW Special Commission of Inquiry into LGBTIQ hate crimes, agreed, finding it was “difficult to dispute the principle that vulnerable groups should receive equal treatment under the criminal law”.

“I consider there should be uniformity between [hate speech laws] in terms of the groups they protect,” Sackar wrote.

“In my view, this is detrimental to social cohesion – both offences ought to protect the same groups to prevent any perception of a ‘hierarchical, two-tier model of protection’.”

The report noted a series of submissions had argued the government’s changes had created an implication that hatred towards other groups is less concerning, or that those groups were less deserving of protection, which may “further alienate communities who already feel under-protected”.

“Limiting section 93ZAA to race may result in unequal or arbitrary protection, covering some groups (such as Sikhs) but excluding others (such as Hindus), or prohibiting some anti-Muslim comments but not other Islamophobic comments,” the report stated.

“The current gaps in protection compromise the integrity of the law and leave substantial segments of the community vulnerable.”

But the government dismissed the recommendations. In a statement released at the same time as the report, Daley said the government “has decided not to expand the existing criminal offence of inciting racial hatred to apply to additional protected attributes”.

“There is no place for hatred in NSW. Everyone deserves to feel safe, respected and free from intimidation, regardless of their background, faith, sexuality or identity,” he said.

But the government’s view was that “expanding the racial hatred offence to cover other attributes raises complex questions about freedom of expression, freedom of religion, and the consistent application of the criminal law across the community”.

“The government recognises that there can be competing claims about freedom of expression, religion and identity. Criminal laws need to be clear, workable and capable of being applied consistently, regardless of who is involved.”

Sackar was commissioned to review hate speech laws and whether they should be widened to protect people against other forms of vilification in May last year.

He handed his report to Daley on November 5, but Labor refused to release the report for several months, arguing it was a cabinet document.

It refused repeated orders from the NSW upper house to release it, a decision which led to Labor’s deputy leader in the upper house, John Graham, being censured and ejected from parliament amid a broader stoush with the government over transparency.

At the time, the opposition transport spokeswoman, Natalie Ward, accused Labor of withholding the review until “a time of its choosing in the media cycle that might perhaps suit Premier Minns”.

“I am going to run a book on when that might be,” she said. “My bets are open for Melbourne Cup day or budget day or some other crisis when it might be convenient.”

But on Tuesday, with public attention captured by the Independent Commission Against Corruption’s Operation Rosny inquiry, the government released the report along with Daley’s statement.

Greens MP Amanda Cohn noted that despite previously refusing to release the report because it was under cabinet consideration, Daley said the government would continue to consider Sackar’s remaining findings.

“This report has been sitting on the government’s desk since November last year … the Minns Labor government ‘continuing to consider’ the remaining recommendations after seven months is kicking the can down the road on critical matters of safety and inclusion,” she said.

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