© Provided by The GuardianPhotograph: Jenny Evans/Getty Images
New South Wales police botched the only two race hate prosecutions attempted in the three years since new laws were introduced, causing both convictions to collapse, state MPs have been told.
The NSW government has faced persistent criticism about its failure to prosecute racially motivated violence under laws introduced in mid-2018, but not used for more than two years.
On Tuesday, it emerged police had recently attempted two prosecutions under the new laws, one for a racist tirade on a bus. Both prosecutions initially secured convictions and the offenders were placed on an intensive corrections order and community corrections order.
Related: NSW race hate laws not used in two years since introduction
But NSW budget estimates heard that both convictions were being annulled, due to a police error. The state's attorney general, Mark Speakman, told the hearing police had failed to get the consent of the director of public prosecutions before proceeding with the cases, something required by law.
© Photograph: Jenny Evans/Getty ImagesNSW police are having the two race hate prosecutions under the state's new laws annulled due to procedural errors.
"So police are having those convictions annulled. It's a matter for police but I expect they will reprosecute those cases," Speakman said.
Speakman said the errors had only come to light in recent days and that police were in the process of contacting the defendants.
He acknowledged it was "a very unfortunate mistake".
"Of course it's concerning that it's occurred. We're all human, we all make mistakes," he said. "It's a very unfortunate mistake, I imagine now that the police will want to reprosecute and seek the consent of the DPP.
Labor's Rose Jackson, who led questioning on the issue on Tuesday, told Guardian Australia it was "a monumental and embarrassing stuff-up".
"The first two successful prosecutions under hate speech crimes have to be annulled because they didn't follow the proper process," she said.
"Imagine being the victim of this hate speech? Having to go through this whole process again. The government owes these people a massive apology."
The law was reformed in mid-2018 after a concerted lobbying effort by an alliance of 31 groups, who warned the previous laws were allowing threats of racially-motivated violence to go unpunished.
Related: Anti-Asian racism surges in NSW during coronavirus pandemic
The reforms introduced a single new indictable offence for public threats or incitements to violence made on the basis of race, religion, sexuality or HIV/Aids status. The offence carried a potential three-year prison sentence and $11,000 fine.
The shadow attorney general, Paul Lynch, said the government had to be dragged into updating the law and had never taken the issue seriously.
"They didn't use it for a couple of years. And now when they use it, they can't use it properly," he said. "It's not just incompetence, they just don't take the scourge of racist hate speech properly."
The government gave a grant of $200,000 to Legal Aid to help raise awareness of the new laws. But it waited more than a year after the reforms passed to hand it the money and the campaign only rolled out last year.
Enforcement has long been a problem with racial vilification laws. The previous offence, which existed from 1989 until the 2018 reforms, had never been used to secure a successful prosecution.
The NSW police have been contacted for comment.