Australia’s spy boss will be given powers to recommend an organisation be proscribed as a hate group under the Labor government’s new religious vilification protections.
The draft bill, which the government released on Tuesday, includes new hate speech and anti-vilification laws, powers to formally designate groups as proscribed organisations, and provisions for the largest gun buy-back scheme since the 1996 Port Arthur massacre.
The neo-Nazi group the National Socialist Network posted to Telegram on Tuesday claiming it will disband before 11.59pm on 18 January, the day before the legislation will be introduced to parliament.
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The prime minister, Anthony Albanese, promised a new listing of hate groups, which would have a lower threshold than the current terrorist organisation list, and would make it a crime to associate with, recruit, train, or provide support for a designated group.
An individual found guilty of “intentionally” directing the activities of a listed hate group could face up to 15 years in jail.
According to the draft bill, the director general of security, who is also the head of the Australian Security Intelligence Organisation (Asio), would make a recommendation to the home affairs minister to designate an organisation as a hate group. The minister would then take that recommendation to the governor general for listing.
Asio director general, Mike Burgess, appeared in front of a parliamentary committee examining the legislation on Tuesday, and said it was “useful safeguard”.
“It has to be Asio that forms the view and has the opinion that these thresholds on communal violence [are] met ... We have to go through our rigorous assessment process and actually determine that we think this should be considered for listing. So I think that is a useful safeguard here.”
Listing would also require the attorney general’s written agreement and a brief provided to the opposition leader.
The minister would need to be satisfied on reasonable grounds that “the organisation has directly engaged in, prepared or planned to engage in, or assisted the engagement in, conduct constituting a hate crime targeted at a person or persons distinguished by race or national or ethnic origin”.
Consideration would also be given to whether the organisation “advocated engaging in conduct constituting such a hate crime” and that listing the organisation is “reasonably necessary to prevent social, economic, psychological and physical harm”.
This is a lower threshold than the current listing of terror organisations, which specifies that a group must be directly or indirectly engaged in preparing, planning or assisting in the doing of a terrorist act, and advocates the doing of a terrorist act.
Under the bill it would become a crime for an individual to direct the activities of a prohibited hate group, and to be a member of, recruit for, train or provide support or funds to the group – the same restrictions that apply to groups currently registered under the higher threshold terrorist listing.
The bill states an individual can be deemed a member of a designated hate group if they are connected to and support the organisation, even if it does not have formal membership arrangement or is based outside Australia.
An individual “intentionally” directing the activities of a designated group faces a penalty of 15 years’ jail, but a person who directs activities of a group while “reckless” to the fact that it is listed, faces up to 10 years. An individual who is found to intentionally be a member of a hate group will face up to a seven-year jail term.
The bill provides a defence if a person proves “they took all reasonable steps to cease to be a member of the organisation as soon as practicable” after knowing the organisation was listed. The bill also proposes a jail term of up to 15 years if an individual intentionally recruits another person to join an outlawed group.
While a minister will be able to consider conduct constituting a hate crime in listing an organisation, the law will not apply retrospectively to groups.
The minister will also have the power to de-list organisations, in consultation with the attorney general, to ensure “organisations are only specified so long as is reasonably necessary to prevent social, economic, psychological or physical harm to the Australian community”.
The National Socialist Network (NSN) said on Telegram that it will “fully disband” along with its co-projects, including the White Australia Party.
Burgess has singled out NSN and Islamist group Hizb ut-Tahrir as two concerning groups that he said “know how to stay on the right side of the law as the laws currently are”, and do not currently meet the higher terrorist listing threshold.
Asked during the parliamentary hearing whether the NSN disbanding would lead to it going underground, Burgess said it was a possibility.
“Yes there is a risk they go underground, but our job is to find the people who are hiding themselves in society, and we’re good at that … Of course, individuals don’t cease to exist, they’re still there in society and obviously the problematic ones we will continue to watch if they continue to be problematic,” Burgess said.
The opposition’s home affairs spokesperson, Jonathon Duniam, welcomed the announcement that NSN would disband, and called on the government to ensure “this group won’t simply recreate themselves through another means … to circumvent these changes and escape prosecution.”
On Tuesday, the Executive Council of Australian Jewry welcomed the bill, calling the draft a “significant step in the right direction”, but warned there were several key outstanding issues.
The co-CEO, Peter Wertheim, said the new offence for the promotion of hatred should be expanded to protect other groups including LGBTQ+ and disability communities, that the legislation should also criminalise the “reckless” promotion of racial hatred, and criticised the current exemption for quoting religious texts.
“The entire concept of a religious exemption for racial hatred is a relic of outdated thinking … invoking religion as an excuse to dehumanise and mistreat others simply on the basis of who they are, must surely be a thing of the past,” Wertheim said.
