NSWCCL Statement: NSW cannot be prosecuted into social cohesion

We are deeply concerned that the Minns Labor Government has signalled their intention to remove the Director of Public Prosecution (“the DPP”) as a safeguard to prosecuting individuals pursuant to section 93Z of the Crimes Act 1900 in response to lobbyists from faith-based organisations.

We stand by our previous statements regarding the right for all Australians to enjoy their religious freedoms, as well as their right to not hold any religious beliefs at all.

Comments from Lydia Shelly, President, NSW Council for Civil Liberties

Last week the NSW Premier Chris Minns stated that he was “tightening laws against hate speech” based on lobbying undertaken by faith-based groups, in the absence of any legal or policy evidence.

In our previous press release issued on 14 November 2023, we called for the Minns Government to release any reports, minutes of meetings, correspondence and details of the faith-based organisations that have lobbied his government with respect to the removal of the DPP as a safeguard.

To date, the Minns Government has refused to make these details public.

The NSW public deserves a government that is transparent with respect to the information and advice they receive, as well as the lobbying pressure that they are under to change important polices and laws.

The Council recently requested a meeting with the Premier to discuss the concerns that civil liberty organisations have with respect to the Minns Government’s position on civil liberty issues, including the changes to “hate speech” and the right to protest. Unfortunately, the Premier has refused to meet with the Council.

Today, the Premier has announced that his intention is to introduce a bill which side steps the DPP, which will enable the police to prosecute a person under Section 93Z of the Crimes Act 1900 without approval by the DPP. This removes the safeguard of the DPP in refusing to prosecute cases that are without merit, without reasonable prospects of success and otherwise, are not in the public’s interests to pursue.

We are aware of the abhorrent “chants” that are alleged to have been said at a Sydney Opera Protest. If such chants were said, then that conduct would already be captured pursuant to section 93Z. As far as we are aware, NSW Police have not referred any cases to the DPP as their investigation has not identified any independent evidence or person that would support a prosecution.

If NSW police have evidence that would support a referral being made to the DPP as a result of alleged antisemitic chants being made at the Sydney Opera House Protest, then that should be made. If NSW police have evidence that as a result of their lengthy investigation, that they do not have any evidence to support a referral to the DPP, then they should immediately correct the public record.

The basis for any removal of the DPP is not supported by the current facts or by any deficiencies in the current legislation. It is a “knee jerk” reaction that risks “unintended consequences” occurring as a result. These unintended consequences may include the politicisation of police investigations and prosecutions, the misuse of police resources pursuing “inter-community” or “inter-religious” disputes against members of the same community, as well as a chilling effect on issues that should be debated in public. This includes issues such as the current conflict in Palestine and Israel, which is the subject of a number of protests in Australia.

Removing the DPP as a safeguard will not make faith communities any safer from a perceived risk of violence or the risk of actual violence occurring. Dragging people before the Courts will not make communities safer.

Speech that is controversial that falls short of the current legal threshold should not be criminalised. We already have criminal provisions outlawing the use of offensive language and prohibition against incitement to violence in New South Wales. Removing the DPP as a safeguard risk opening the “floodgates” for controversial speech to be investigated, risks further deteriorating social cohesion and risks charting a way forward for inter community and religious disputes to be the subject of police investigations and prosecutions.

This week we have the release of the latest Mapping Social Cohesion Report from Scanlon which puts the Scanlon-Monash Index of Social Cohesion at its lowest ebb since the survey began 16 years ago.

The Council has long been supportive of remedies for racial vilification. The Council supports educative models that deal with community tensions rather than the blunt instrument of criminal law which give the police power to criminalise.
The intended changes to remove the DPP is occurring in the context where NSW Police have a very limited number of serving officers. It is unrealistic that they have the capacity to investigate and prosecute every single complaint and we are concerned that it will result in NSW police allocating their resources in accordance with the political will of the day or in accordance with the individual beliefs or biases held by individual police officers.

Effective policing is only successful if the communities have faith and trust in NSW Police. These changes may result in a further deterioration between police and members of vulnerable communities, along with a loss of confidence. The Council looks forward to the statistics from NSW Police that sets out what investigations were carried out and whether their resources were allocated equally.

We call on the Minns Government to publicly reaffirm their understanding of the separation of powers and to reassure the public that our policy and laws have not been, and will not be, unduly influenced by faith-based organisations to the exclusion of civil liberty and legal experts.