The four words blocking the government’s hate speech laws

Victorian Opposition Leader Brad Battin has offered Premier Jacinta Allan bipartisan support for proposed hate laws currently before parliament if she agrees to remove four words from the legislation.

Battin wrote to the premier on Wednesday urging her to alter the test used to determine civil vilification offences. He promised that if the government agreed to this change, Coalition MPs would vote to support the bill without further amendment.

The letter was co-signed by Nationals Leader Danny O’Brien, shadow attorney-general Michael O’Brien and opposition police spokesperson David Southwick.

Brad Battin says he will support the government’s legislation, with one key change.Credit: Justin McManus

Under the government’s expanded anti-vilification framework being debated this week, it would become unlawful to vilify anyone on the basis of a series of “protected attributes”, including disability, gender identity, race, religion, sex and sexual orientation.

The proposed test for this is whether a “reasonable person with the protected attribute” would consider the conduct hateful.

The opposition is asking the government to simplify this test to what a reasonable person would think, rather than a person with the same protected attribute.

In his letter to Allan, Battin warns that unless this change is made, the law will apply differently to different communities and create subjectivity and uncertainty about what speech is unlawful. “Such a law will foment dispute and discord, not social cohesion,” he wrote.

“While we have some concerns with other aspects of the bill, we can confirm that in the interests of improving legal protections for vulnerable Victorians, your agreement to such an amendment will facilitate the prompt passage of the bill with the support of the opposition.”

Allan did not respond to the letter. She has accused the Liberal Party of “discovering a new reason to oppose the bill”.

This is the first time since taking the Liberal leadership that Battin has petitioned the premier about a piece of legislation. It reflects the political discomfort felt within the Liberal Party, which is currently opposed to legislation that Jewish organisations want passed as a matter of urgency to stop hate speech.

The Zionist Federation of Australia, Zionism Victoria, the Executive Council of Australian Jewry and the Jewish Community Council of Victoria have urged the opposition to back the legislation in its current form.

Michael O’Brien said the offer was a sincere attempt to reach bipartisan consensus. “Four words is all that is standing between us voting for this bill,” he said. “We are absolutely genuine about it.”

David Southwick, the most senior Jewish member of the opposition team, said passage of the legislation with bipartisan support would offer his community greater protection. “We just want to get it done,” he said.

The government is also under pressure to pass the bill, which it has publicly sold as its legislative response to the rise in antisemitism that last year culminated in the firebombing of the Adass Israel synagogue in Ripponlea.

The government this week dropped a “genuine political purpose” defence against criminal vilification from the legislation and clarified a religious exemption from civil offences to address the concerns of Jewish and other faith groups.

The Australian Christian Lobby, while irrevocably opposed to the legislation, said the reinstatement of a simple, reasonable person test would improve it. “That is one of our main concerns,” ACL state director Jasmine Yuen said. “It would make a huge difference.”

The test used in anti-vilification and anti-discrimination laws varies across Australian jurisdictions. According to the Human Rights Commission, case law on the contentious, 18C provision of the Commonwealth’s Racial Discrimination Act has interpreted the reasonable person test to mean someone from the ethic or racial group being targeted.

Michael O’Brien offered an example to illustrate the difference between the Victorian legislation as it is now drafted and what the opposition is proposing.

If the laws were passed in their current form, a cartoonist who depicted the prophet Muhammad could potentially be found guilty of unlawful vilification, not on the basis of what a reasonable person or a reasonable Muslim person would think, but a Muslim person from a branch of Islam that takes a particularly hardline view against depictions of the prophet.

“We believe that the test of harm should be viewed through the eyes of a reasonable person, not the person of a group that may have unreasonable views,” he said.

If the government refuses the opposition’s terms, it will be left to negotiate with the Greens and other upper house crossbench MPs. Greens MP Tim Read on Tuesday flagged his party’s intention to add a list of further protected attributes and make other changes to the legislation.

The opposition’s proposed changes would be limited to the civil provisions within the legislation, which are not due to come into force until 2027. If the legislation passes, new criminal offences for serious vilification will be established with immediate effect.