Legal answer for incitement to violence not hard

Tom Bathurst, the former chief justice of NSW, has been handed a task that has proved to be beyond the capacity of the best brains in the NSW parliament.

He has been asked to review a law that is incapable of dealing with the worst of the anti-Semitic bile that has given Sydney a global reputation for racial hatred.

This law has already been tweaked. But it has not been used against those who have been inciting violence against Jews.

The test will be whether Bathurst’s review can remain focused on the core issue instead of becoming bogged down in an irrelevant public debate about freedom of speech.

Let’s be clear about this. The problem here is the failure of NSW to deal with race-based incitement to violence – a criminal offence that is supposed to attract jail time under section 93Z of the Crimes Act.

This failure may well have fostered a sense of impunity among those who, in a rational world, should have been brought before a court.

Incitement to violence is a crime, not a legitimate exercise of free speech.

That remains the case regardless of whether it happens on the steps of the Sydney Opera House, at a religious gathering or some other public place.

Incitement falls into a completely different category to the far less serious question of whether someone has been offended, insulted, humiliated or intimidated.

That already attracts civil penalties under section 18C of the federal Racial Discrimination Act.

Parts of the Islamic community have reportedly expressed concern about this review. Those concerns are misplaced.

This project is not aimed at stifling their freedom of speech. It is aimed at stopping crime and saving lives – something that serves the interests of all vulnerable minorities, including Muslims.

Bathurst’s task will not be easy. He is under pressure from the NSW Council of Civil Liberties to not lower the criminal threshold to secure convictions.

There is, however, a ready-made solution. And it is to be found in a 2016 book on section 18C that was co-authored by Lorraine Finlay before she was appointed Australian Human Rights Commissioner.

Finlay and her co-authors, Joshua Forrester and Augusto Zimmermann, have drafted a proposed criminal provision dealing with the wrongdoing that prompted NSW Premier Chris Minns to call in Bathurst.

Their test would not turn on the vague question of whether someone was offended, but on whether violence or an imminent danger of violence had been incited against people by reason of their racial identity, colour, ethnicity or nationality.

Their drafting is tight and specific – something that should satisfy the Council of Civil Liberties. It can be found in chapter six of their book, “No offence intended – why 18C is wrong”.

Champion of justice

In a turbulent world, the defenders of the principles underpinning democracy and the rule of law are sometimes found in surprising of places.

One of the greatest champions of these ideas is to be found not in parliament but on the bench of the NSW Local Court – the first rung on the hierarchy of courts – and the busiest court in the nation.

Deputy Chief Magistrate Theo Tsavdaridis, who is the recipient of this year’s Protector of the Law award, helps lead a court that deals with about 420,000 matters annually.

“Often, it feels like we are drinking from a fire hose with legal work and complex disputes coming at us from every angle at enormous speed,” he told a dinner last year.

Tsavdaridis was presented with his award on Thursday by the Rule of Law Education Centre, which has been working with him on school tours of the courts.

The award was created by the Education Centre to recognise those who have made significant contributions towards upholding and protecting the principles of the rule of law which have their origin in Magna Carta.

It recognises the major role Tsavdaridis has played in supporting open justice and legal education by briefing school students during tours of the courts organised by the Education Centre.

Last year the Education Centre arranged tours for 2860 students, 201 teachers and 119 schools.

The centre’s education manager, Justice Hanks, said the Deputy Chief Magistrate had helped students develop trust in Australia’s system of governance and confidence in the judiciary’s independence and impartiality.

In major speeches last year Tsavdaridis explained how equality before the law took root in this country and how courts were sometimes required to make unpopular decisions in order to adhere to the law.

“Judges and magistrates are not making decisions based on how we think the next Newspoll will go,” he told a dinner in October hosted by the Parramatta and Regional Law Society.

“For a judicial officer who likes every outcome, he or she might well be a bad judge, stretching for policy results he or she prefers rather than those the law compels.

“Courts do not have armies or police forces. All they have is trust, respect and credibility.

“Judicial legitimacy depends on the public maintaining a level of confidence that cases would be decided by a competent and impartial judiciary according to law without fear or favour … ”

In November, at the NSW Justices Association conference, he outlined how equality before the law was established in Australia in 1788 by the first civil case which involved two convicts from the First Fleet – Henry and Susannah Kable.

But it took almost a century before the courts were allowed to accept evidence from Indigenous people, including evidence of massacres, he told that conference.