Australians face up to five years in jail for “hate speech” after Victoria’s Labor government teamed up with the far-left Greens to pass new anti-vilification laws.
The Coalition voted against the expansion of existing “hate speech” legislation, which passed both houses of parliament on Wednesday, but only after earlier this year forcing Labor to drop a “genuine political purpose” defence as a result of lobbying from Jewish groups.
That defence was not re-added to the final version of the bill amended by Labor and the Greens, and the new laws therefore appear to violate the implied right of Australians to freedom of political communication under the Constitution.
The legislation was originally proposed to combat “islamophobia”, but was then altered to cover anti-Semitism and the vilification of homosexuals and people with gender delusions before being expanded again to a longer list of protected attributes.
The protected attributes now cover disability, “gender identity”, race, religious belief or activity, sex, sex characteristics, sexual orientation, and “personal association with a person who is identified by reference to any of the above attributes”.
Premier Jacinta Allan said the five-year jail terms would “hold perpetrators to account for their actions” and gave examples of “posting photos on social media that severely ridicule a person with disability or expressing hateful comments about a group’s race at a public meeting”.
“It’s another strengthening of the laws, the strengthening of police powers, and doing it in a really powerful way. It’s about saying this is the sort of society we want to see here in Victoria, where you can be free from hate,” she said.
The amendments from the Greens included requirements to consider “social, historical and cultural context” and for police to obtain approval from the Director of Public Prosecution before they can press charges.
Animal Justice Party MP Georgie Purcell said the context amendment was referred to as the “Sam Kerr clause” during the debate on the bill’s passage, referring to the half-Indian homosexual female soccer player who was charged and cleared of racially vilifying a White police officer in London.
“We recently saw in the Sam Kerr trial the way that laws designed to prevent vilification and discrimination can be weaponised against their intended purpose,” Ms Purcell told The Guardian.
“It was important to many of us on the crossbench that these new laws were implemented to be accessible for the communities who need them while also not being exploited.”
Greens MP Gabrielle de Vietri confirmed that the clause was intended to stop the laws being used against minority groups, including aboriginals, claiming they were “over-policed” already.
The Victorian Aboriginal Legal Service, which had argued for safeguards to prevent indigenous people being charged for action “that challenge oppressive systems and those in positions of power” said the amendment would “protect our people from further criminalisation when speaking up against injustice”.
Before the Greens’ amendments the Coalition had supported all elements of the bill except for the legal test for the civil laws which allows a “reasonable person with the protected attribute” to determine whether conduct is hateful, as opposed to a “reasonable person” in general.
Shadow Attorney-General Michael O’Brien said last month the legal test would open the public up to prosecution as a result of offending members of minority groups with unreasonable views, and gave the example of radical Islamists upset by cartoons depicting Muhammad.
Opposition leader Brad Battin wrote to Ms Allan in February promising to support the legislation if the words “with the protected attribute” were removed from the civil provision, but on Wednesday claimed that the Coalition had opposed it “the whole way through”.
“This bill is a bad bill for Victorians, it will create issues, clogging up the courts, seeing people pursue each other, rather than working together to educate each other to actually create the society we want going forward,” he said.
Jewish bodies celebrated the new laws, and Philip Zajac, President of the Jewish Community Council of Victoria, said his community had been advocating for free speech restrictions for years.
“The passage of these new laws hopefully signals a new era in Victoria where those who are undermining our social cohesion face consequences for their destructive actions,” Mr Zajac said.
“The JCCV will work with our Jewish community and with police to ensure the laws help Jews and other minorities to live in safety and peace in Victoria.”
The Zionist Federation of Australia and Zionism Victoria released a joint statement of support from respective presidents Jeremy Leibler and Elyse Schachna.
“The Jewish community leadership unites in support of these hate laws, because those who perpetrate the most extreme acts of hatred must be held to account,” they said.
“We have been facing an explosion of hatred in Australia at a time when Victoria’s hate speech laws have been broken – with one successful prosecution for serious vilification in over 20 years.”
The new laws create two new criminal offences, one that makes it an offence to “incite hatred, serious contempt, revulsion or severe ridicule against another person or group based on their protected attribute”, and another that makes it an offence to “threaten physical harm or property damage against a person or a group based on their protected attribute”.
The incitement offence carries a maximum penalty of three years’ imprisonment, and the threat offence has maximum penalty of five years’ imprisonment.
Two additional civil protections have also been added to the Equal Opportunity Act – a modified incitement-based protection and a harm-based protection, both intended to “capture public conduct (including online) that is hateful or incites hate”.
Public conduct includes any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public; actions and gestures, and the wearing or display of clothing, signs, flags, emblems and insignia, observable by the public; and the distribution or dissemination of any matter to the public.
Exceptions remain in the bill to protect activities done reasonably and in good faith for artistic, academic, public interest, religious (including worship, observance, practice, teaching, preaching and proselytising), and scientific purposes, as well as the making or publishing of a fair report of any event or matter in the public interest.
The criminal elements of the bill come into effect in September, followed by the civil provisions in June next year.
NSW also passed tough new hate speech laws this year in order to combat anti-Semitism, with Labor Premier Chris Minns rejecting calls to repeal them after it was revealed that a series of alleged attacks and a bomb plot were carried out by criminals for personal gain.
But last month the Northern Territory government said it would reverse controversial anti-discrimination laws, saying residents should not have their speech policed by bureaucrats.
The Country Liberal Party confirmed it is planning to scrap two key elements of the laws, which were brought in by the previous Labor government in 2022.
The changes will repeal a section making it unlawful to “offend, insult, humiliate or intimidate” on the basis of a personal characteristic such as race or gender, and restore the right of religious schools to refuse to hire people who don’t share their faith.
Header image: Left, Jacinta Allan meets with Jewish leaders calling for tougher laws on anti-Semitism. Right, Ms Allan with a drag queen at a Pride parade in February (Facebook).
