The New South Wales Council for Civil Liberties has consistently raised our concerns with respect to the proposed Crimes Amendment (Prosecution of Certain Offences) Bill 2023 (“the Bill”). We refer to our previous press release issued on 23 and 28 November 2023 on this issue.

We are aware that the Bill passed the Legislative Assembly last night and that the Opposition sought to have the DPP remain as a safeguard, as well as including police officers only of the rank of an Inspector be authorised to prosecute offences pursuant to s. 93Z of the Crimes Act 1900 (NSW).

We are also aware that the Greens sought to introduce a statutory review period of twelve months and that the Bill should be referred to the Standing Committee on Social issues.

We remain opposed to the removal of the DPP as a safeguard and remain concerned that there is a push for legislative amendments to be rammed through parliament without proper consideration, scrutiny and consultation by the Minns Government.

Comments from Lydia Shelly, President, NSW Council for Civil Liberties
We oppose the removal of the DPP as a safeguard and remain concerned that there is a push for legislative amendments to be rammed through parliament without proper consideration, scrutiny and consultation by the Minns Government. Ramming legislation through in these circumstances will likely result in legislation that does not protect people from vilification in a meaningful way and will likely have an adverse impact on vulnerable communities.

There has also been an absence of discussions regarding the potential chilling effect that this Bill may have on controversial, yet important public and political debates on a range of issues. The potential harm caused by removing the DPP as a safeguard was identified last night during the debate on the Bill by the Shadow Attorney-General, Mr. Alister Henskens MP:
“It has never been stated that the intention of the bill was to facilitate private members of the community, under section 14 of the Criminal Procedure Act, to commence prosecutions, but that is exactly what the bill does and that is the great problem with it.......Unfortunately, the bill does more than that, because it does not specify the level of police officer that must give the authority for a prosecution, and it allows, as has never been stated publicly, individuals to weaponise the section in order to attack other members of the community who they are not enamoured of. That means that the section could be used to achieve the very opposite of what it intends”.

We do not want a situation where anyone can bring prosecutions against anyone else for perceived threats or incitement to violence. That runs the risk of the provision being weaponised, and it could result in both social division and an undue extra burden on the court's time, especially where cases are brought which may have no merit from the beginning”.

We are relieved that the Opposition have identified that this Bill could create mischief and be weaponised against the public.

We further note that Ms. Jenny Leong MP identified that there has been a complete lack of consultation with the public and stakeholders and emphasised that we cannot legislate our way out of vilification.

“It is crucial that we stamp out vilification in this State, but The Greens cannot support the removal of the current check and balance of the DPP's involvement, without broader consultation. Shifting power to prosecute section 93Z offences from the DPP to the NSW Police Force alone will not achieve that. We cannot police our way out of the disgraceful behaviour of people when it comes to vilification and hatred in our society. We do that by holistic change, education, information and support. We must ensure that we do all we can to stop vilification, rather than attempt to change laws to make it easier for the police to wave a weapon at people, whether or not they will have any chance of a successful prosecution”.

The concerns that we have consistently raised with respect to the proposed amendments have been ventilated, albeit in a less than fulsome manner due to time restraints imposed by the Minns Government. It is our view that it is incumbent on members of the Legislative Council to refer the Bill to the Standing Committee for Social Issues.

Refusing to refer such an important Bill to the Standing Committee is an abrogation of the duties members of parliament owe to the public and seeks to usurp parliamentary processes.