As antisemitic attacks reach ‘disturbing’ levels, is strengthening hate crime laws the answer?

Mike Burgess, head of the Australian Security Intelligence Organisation, has issued a stark warning following the discovery of explosives in a caravan in northwest Sydney, alongside a note bearing the address of a Sydney synagogue.

We have seen a disturbing escalation in the targeting of Jewish interests, and a disturbing escalation in the severity and recklessness of the targeting.

In response to the recent spate of antisemitic incidents in Sydney – which include a childcare centre being set alight and graffitied – NSW Premier Chris Minns has also pledged to strengthen the state’s hate laws.

Changes to these laws would bring NSW in line with other states. However, they will have limited impact on a serious social problem. Both nationally and in the states, many existing laws can be used to prosecute people for these crimes, including incitement to violence on the basis of religion, race or ethnicity.

Responding quickly to the growing crisis around antisemitic attacks is understandable, but greater long-term investments must also be made to prevent extreme, hateful beliefs from developing in our communities in the first place.

What crimes are being committed?

Different laws can be triggered depending on the nature of a particular offence.

The firebombing of a Melbourne synagogue late last year was treated as an act of terrorism, while a joint counter-terrorism team is investigating the caravan explosives.

Other hateful acts can be charged as arson, property damage or serious vilification.

For conduct to be treated as terrorism, it must be done for the purpose of advancing a political, religious or ideological cause.

Extreme right-wing or neo-Nazi beliefs can certainly satisfy this. But whether an individual case will be treated as terrorism depends on whether there is enough evidence of an underlying ideological motive.

Serious vilification offences apply when someone incites others to cause harm on the basis of race, religion, sexuality or gender identity.

Both nationally and in the states, new offences also apply for displaying Nazi symbols. Neo-Nazis who were arrested after a march in Adelaide this month, for example, were charged with various offences, including failing to cease loitering and displaying a Nazi symbol.

Read more: Legal in one state, a crime in another: laws banning hate symbols are a mixed bag

What is NSW considering changing?

The biggest change would be to section 93Z of the NSW Crimes Act.

Section 93Z is a serious vilification offence, but it applies only to the incitement of violence. Equivalent offences in other states are broader because they also include incitement to hatred, serious contempt or severe ridicule.

In Queensland, this requires threats or inciting threats of physical harm. In Victoria, changes likely to pass in parliament soon would remove a similar harm requirement.

In NSW, vilification on broader grounds is still unlawful, but it falls under civil law. Complaints can be made to Anti-Discrimination NSW and this may lead to lawsuits and potential compensation – but not criminal prosecution.

It makes sense for NSW to match section 93Z to equivalent laws in other states. But this would go against the very recent recommendations of the NSW Law Reform Commission.

In its report last November, the commission concluded that strengthening laws is not always the best way to address underlying social issues. It said the low prosecution rate for section 93Z could be explained by police preferring other, more serious offences for these types of crimes.

Still, it appears Minns may go ahead with the reforms, saying an antisemitic attack “begins with hateful, racist language”.

If I can stop it at its source with changes to the law, that’s exactly what we’ll do.

Would these changes make a difference?

The proposed changes are quite technical and are unlikely to have a significant impact on the growing threat of antisemitism.

Widening section 93Z could generate some additional prosecutions for hate speech that falls below inciting violence. But in most cases, other, more serious offences are already available to prosecutors.

Ultimately, in addition to the ongoing investigations, there needs to be greater investment in efforts to understand extremism in Australian society. This includes developing clearer answers to these questions:

• why extreme, hateful beliefs are thriving in our communities
• who is most likely to develop these beliefs and act on them, and
• how extremist narratives can best be countered, in our communities and online.

Countering violent extremism programs are improving over time. These include interventions for at-risk youth and broader efforts to educate communities. But investments in these approaches have never kept pace with changes to the criminal law.

Antisemitism has no place in Australian society, and changing the law in NSW will send a quick message that the government is taking the problem seriously. But taking it seriously also means doing whatever else we can as a society to ensure no one experiences hate or violence for who they are or what they believe.