Everything you need to know about Victoria’s proposed hate speech laws
The Allan government is pushing ahead with its plan to crack down on anti-Semitism but some fear the new hate speech laws could harm freedom of speech. Here’s what you need to know.
Victoria
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The Allan government is pushing ahead with its plan to strengthen hate speech laws amid a rise in anti-Semitism across the state.
The plan includes instilling tougher penalties for those who vilify and threaten others, as well as equipping police officers with new prosecution powers.
But there are fears that flaws in the proposed reforms could seriously harm freedom of speech, and that a proposed defence would undermine the intention of stamping out discrimination.
Here’s everything you need to know before the Bill is voted on in parliament this week.
What hate-speech laws are in place in Victoria?
Victorians are protected from vilification on the basis of their race and religion under the Racial and Religious Tolerance Act 2001.
Under this law, a person can be convicted of serious vilification if there is proof they both incited hatred as well as threatened physical harm or property damage on the basis of someone’s race or religion.
The government said the need to prove both incitement and threat had “made the offences difficult to successfully prosecute”.
If convicted, a person can face six months jail time and/or 60 penalty units (an $11,855.40 fine) under these laws.
Victorians are also protected from discrimination, sexual harassment and victimisation under the Equal Opportunity Act.
What are the proposed changes?
The Allan government introduced a new Bill — the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024 — to parliament in November last year in a move to bolster protection against hate speech.
The Bill was proposed as a replacement for the Racial and Religious Tolerance Act.
If passed, the Bill wouldbroaden protections from race and religious belief or activity to also include disability (including people with HIV/AIDS or mental illness), gender identity (including drag performers), sex, sex characteristics and sexual orientation.
The Bill would also protect people with a personal association with — including being a relative of — someone with a protected attribute.
The proposed changes would also broaden the present laws to includereckless behaviour, not just intentional behaviour.
What are the new criminal offences?
The Bill would introduce two new criminal offences:the incitement offence and the threat offence.
Under the current laws, a victim of hate speech must prove a person both incited hatred and threatened physical harm or property damage on the basis of their personal attributes. The new Bill would split the two, meaning someone could be convicted of hate speech and charged with incitement without needing to prove they were physically threatened.
The incitement offence would carry a maximum penalty of three years’ jail time, while the threat offence would carry a maximum of five years’ jail time.
Will the laws apply to hate speech on social media?
The newly proposed laws would apply to online behaviour — just as existing laws do.
The Allan government has also proposed that someone outside of Victoria could be prosecuted under the new law if they vilified a person in Victoria online.
The existing and newly proposed criminal laws will also apply to behaviour conducted both in public and private settings.
What defences would those accused have?
In the case of the criminal incitement offence, a “political purpose defence” would be introduced.
“This defence would protect freedom of expression and political communication,” the state government said.
“It would allow all Victorians to engage in legitimate political debate.”
“Additionally, existing statutory and common law defences, including self-defence, duress and the defence of mental impairment, would apply to both the incitement and threat offences.”
What extra powers would Victoria Police have?
The new hate speech laws would give police officers additional powersto lay charges for vilification.
Under existing laws, the Director of Public Prosecutions must give Victoria Police consent before they can prosecute someone for serious vilification.
Victoria Police would still need to obtain consent from the DPP if prosecuting someone under the age of 18.
What about civil anti-vilification protections?
Civil laws allow victims of hate speech to seek a resolution through VCAT or VEOHRC if they are vilified in a public space.
This could include an apology, removal of online material or compensation, among other things.
The Bill would lower the legal test under the incitement-based protectionto “prohibit conduct that is likely to incite hatred against, serious contempt for, revulsion” — meaning it does not have to be proven that a behaviour actually incited hatred
It would also introduce a new harm-based protection that would “restrict people from saying or doing things in public that harms others”.
What about freedom of expression under civil laws?
In regard to civil protections, the government plans to uphold exceptions to protect freedom of expression and religion “for conduct that is reasonable and done in good faith”.
This includes performance, genuine religious or scientific conduct or reports on matters of public interest.
The government narrowed its definition of “religious purpose” in the new Bill to clarify which types of conduct should be considered “genuine”.
What has the response been?
Four of Victoria’s most prominent Jewish organisations wrote an urgent letter to state MPs and government ministers to call for a major change to the proposed new hate speech laws.
Leaders from the Jewish Community Council of Victoria, Zionism Victoria, Zionist Federation of Australia and the Executive Council of Australian Jewry urged government leaders to scrap the “genuine political purpose” defence, fearing it could make “very serious hatred” legal.
“It should be no excuse, and there is no need, for a person to engage in this conduct for a ‘political purpose’,” they wrote.
“If legislated, this will become a catch-all defence that leaves aspects of these laws unworkable and ineffective. It seriously weakens these reforms.”
The opposition on Tuesday revealed that they did not support the Bill in its current form, fearing it would stifle freedom of speech.
Research Fellow at conservative think tank the Institute of Public Affairs Margaret Chambers said the new laws would “enshrine cancel culture in the law” and “hand a sword to activists”.
Meanwhile, Australian Christian Lobby Victorian State Director Jasmine Yuen launched a billboard truck campaign against the laws, plastered with the phrase “Allan’s Anti-vilification Bill = Community Division”.
Originally published as Everything you need to know about Victoria’s proposed hate speech laws
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