Hate speech laws: NSW Premier Chris Minns has a challenge to outlaw ‘globalise the intifada’ chants

After the Bondi Beach massacre, New South Wales Premier Chris Minns promised to ban anti-Israel protesters from uttering the phrase “globalise the intifada” and other terms Jewish leaders say advocate violence.

He faces a problem: the constitution.

Any law that prohibits the use of political slogans or chants will undermine the right to political communication the High Court has ruled exists in the 125-year-old document that created Australia, according to a top constitutional scholar, Anne Twomey.

“It seems that there is a desire to ban these slogans and make it a criminal act to chant them, without needing to establish any intention to cause harm, such as inciting violence or inciting hatred,” she told a parliamentary committee.

The law could mark a turning point in the history of free speech. Until the massacre on Bondi Beach, modern Australian governments have never tried to ban phrases so popular they are almost political slogans.

The NSW Government and parliament is working on the law right now. On Thursday a Labor-controlled parliamentary committee is expected to propose a list of prohibited phrases that may be submitted to parliament as soon as next week for approval.

The Jewish community hopes they will include chants heard almost every weekend since the start of the Israel-Hamas war in 2023, including “long live the intifada”; “there is only one solution, intifada, revolution”; “resistance by any means necessary”; “from the river to the sea” and “death to the IDF”.

Chants in Arabic could make the list too, including “Khaybar, Khaybar, oh Jews, the army of Muhammad will return” and “water to water, Palestine is Arab”.

The shores of Bondi

Mr Minns has drawn a connection between the chants and Australia’s worst terrorist attack, even though no evidence has emerged that Sajid and Naveed Akram attended a pro-Palestinian rally.

“We just saw what ‘globalise the intifada’ is: 15 dead people on the shores of Bondi Beach,” Mr Minns said two weeks ago.

With an attempt to criminalise racial vilification at the federal government level having been vetoed by the Liberal Party, NSW is now the front line in Jewish groups’ campaign to stamp out what they see as anti-Semitic rhetoric from opponents of Israel.

If the High Court rules NSW’s slogan ban is unconstitutional, the Government could use a criminal law that already prohibits racial vilification and incitement of hatred, Professor Twomey said.

That law has advantages and disadvantages. It is considered constitutionally safe, but would require judges to be convinced what the Premier and Jewish groups believe: “Globalise the intifada” and other similar chants aren’t mere political statements. They’re calls to violence.

The existing racial vilification law includes a common safeguard that is not planned for the banned-slogan law: the requirement to prove the speaker had hate in their heart.

Leaked assessment

Which may help explain why, according to a leaked assessment of the racial vilification law by the Department of Communities and Justice, it is rarely used despite being toughened last year.

Only four people have been convicted under the state’s vilification law since 2019, and none were extremist Islamic preachers or anti-Jewish agitators, according to the official tally.

Two of the offenders made anti-LGBTQ slurs. Another was a female teacher who attacked a Muslim woman in a department store car park. The most recent successful prosecution was against a man who painted swastikas in the town of Orange and posted nazi symbols online last year.

“Four convictions show you the law looks tough on paper but completely fails in practice,” said Paul Toole, a Nationals MP and former police minister.

(The leaked document was first reported by 7NEWS journalist Sarina Andaloro on Monday.)

But events at Bondi have changed the police’s approach. On Tuesday a protestor who said “Jews are the greatest enemy to this nation” at an Australia Day anti-immigration rally in Sydney appeared in court, charged under the law.

“They are an enemy to Western civilisation, and for thousands of years, Christians and Anglos, the white man has known that the Jew is our greatest enemy,” Brandan Koschel reportedly told a rally on Monday.

In court, after the police alleged Mr Koschel was seen with members of the neo-nazi National Socialist Network, he was denied bail.

Attorney General Michael Daley told The Nightly: “The Minns Labor Government has strengthened laws to curb racial hatred which is unacceptable and has no place in our community. A new offence of inciting racial hatred, which came into effect in August, has given police more tools to protect the community.”

No charges

Well before the Bondi attack, Jewish leaders complained about anti-Jewish hatred from neo-nazis and Islamic extremists, including Wassim Haddad, a Western Sydney preacher who may have proselytised to Naveed Akram in 2019.

After the war began in Gaza, Mr Haddad told his followers: “Towards the end of time Muslims will fight Jews and the Jews should and will then be killed.”

He has never been charged.

On Monday, Mr Minns suggested the slogan ban could be followed by or include new prohibitions on street protests. He has given the NSW Police force the power to outlaw marches for two-week periods anywhere in the state, a law that has ended anti-Israel marches that used to take place every Sunday.

“I do believe we’re going to have to confront this idea that the centre of Sydney can be dominated weekend after weekend after weekend by the same protests,” he said.

“People have got a right to protest, but other Australians have a right to enjoy the city, go to mass or go to church or go to synagogue through Hyde Park free from trying to navigate a protest every weekend.”