Labor’s hate speech bill has alarmed free speech advocates, who say it could have unintended consequences because it was rushed through without enough consultation.
Labor says the bill, which would criminalise hate speech, create a new “hate group” listing, establish a gun buyback and create new grounds to reject or cancel visas, would strengthen national security and national unity.
But the pathway through parliament looks increasingly difficult, with the Liberals calling the bill “pretty unsalvageable” and the Greens warning they would not pass it “in its current form”. Labor would need either party to pass it through the Senate.
In a statement Greens deputy, Mehreen Faruqi, said the “legacy of the appalling violence at Bondi cannot be the undermining of civil and political rights”, objecting to laws that can be used to “weaponise” racism and hate against Australians.
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Here’s what you need to know.
Could the bill limit free speech?
Concerns have been raised around whether adding the concept of “hatred” in speech to criminal law could be too open to interpretation by the courts.
The new racial vilification law, in its current form, would require a court to find that an individual charged with that crime had “intent” to cause hatred, and that the conduct would cause a “reasonable” person from that targeted group to “fear harassment, intimidation or violence, or for their safety”.
Peter Kurti, a researcher at the Centre for Independent Studies, said that the second part could be problematic.
“This invites subjective or politicised judgments about emotional impact rather than objective harm,” he told the parliamentary inquiry examining the bill on Wednesday.
Human Rights Commissioner, Lorraine Finlay, also warned that the wording of the legislation needed to strike the right balance between protecting groups and protecting freedom of speech and expression.
“The Bathurst review did raise concerns around the introduction of concepts like hatred and whether that introduces imprecision and subjectivity to criminal law,” Finlay told the parliamentary committee on Wednesday.
The New South Wales Council for Civil Liberties has warned the bill will impose “significant limits” on free speech, with no guarantee they will improve social cohesion.
The council also warned the racial vilification offence and the hate group listing would give a minister extraordinary powers along with “a remarkable lack of accountability”.
“Criminalising speech in this way is potentially problematic in allowing for selective or biased enforcement by individual members of law enforcement agencies,” the group wrote in its submission to the parliamentary inquiry.
But University of NSW law professor, Luke McNamara, said there was some balance within the legislation between outlawing hate speech and protecting free speech, calling criminalisation in this scenario a “high bar”.
“I think it’s an important way of reassuring members of the community, the wider community, that the Australian government remains committed to the idea that there should be lots of room for people to express their political views but that there are certain legitimate limits.”
Who could be inadvertently effected?
Kurti also raised concern about the new listing for “hate groups”, which would criminalise membership or support of a designated organisation, suggesting it could capture academics and journalists.
“‘Support’ is so broad that it could capture academic analysis or journalistic inquiry. I think this moves us from criminalising acts to criminalising association and alignment, with heavy executive discretion and limited judicial oversight,” he said.
While the laws currently provide an exemption for the export or import of objectionable goods, for example banned symbols, for “a religious, academic, educational, artistic, literary or scientific purpose”, that same exemption does not exist for the racial vilification law.
In its submission to the parliamentary inquiry, Universities Australia called on the government to provide an exemption within the new racial vilification rules to allow academic teaching, research and debate to be done “in good faith”.
“Universities are required to facilitate rigorous examination of complex, contested, and at times, divisive issues and the provision may have a chilling effect on such debate, particularly given the lowered threshold for a determination that a communication is hate speech,” they wrote.
The Media, Entertainment & Arts Alliance said the bill could undermine “core principles of press freedom and freedom of artistic expression”, and said it poses a threat to Australia’s democracy.
What protections do we have?
Citizens have an implied right to the freedom of political communication, but not a constitutional right to free speech.
This is different to a country such as the United States that has protected freedom of speech and religion within amendments to their constitution.
Australians do have the right to “freedom of religion” within the constitution.
The human rights to freedom of expression, freedom of association and the right to peaceful assembly are protected under international law, under the International Covenant on Civil and Political Rights which Australia has agreed to comply with.
McNamara said that while critics might point to the free speech rights in the US, it is an “outlier” and most countries “recognise that there are legitimate reasons for restricting free speech in a variety of contexts”.
Did Labor give us enough time to consider the bill?
The Australian Human Rights Commission supports criminalising hate speech, but its president, Hugh de Krester, said allowing only three days to examine the bill was “insufficient”.
“These are complex issues and so, if they’re rushed, the risk is that you get unintended consequences or the law is not as effective as it should be in achieving its aim of promoting safety and addressing hate speech, while avoiding unnecessary limitations on other rights, like freedom of religion, freedom of expression, freedom of association and protest rights,” de Krester told the parliamentary inquiry on Wednesday.
Gemma Cafarella, President of Liberty Victoria, said not enough had been done to consult with and inform the wider public, and warned that the new powers which she described as “poorly considered and draconian measures” would probably be challenged by the high court.
“We are extremely concerned by the federal government’s rushed approach to these proposed laws … Laws that inappropriately limit freedom of speech, religion and association are only going to further drive division.”
But the the ECAJ co-chief executive, Peter Wertheim, has encouraged Ley to “not allow the perfect to be the enemy of the good” on the draft laws, saying the bill would offer urgent new protections, including through powers for legal designation of hate groups.
