Major party impasse threatens to unravel proposed hate speech laws

An impasse between the Victorian government and opposition on the fine print of proposed hate speech laws has opened the door for the Greens and human rights groups to press for a fundamental change to the legislation.

Having secured the support of Jewish community groups for the legislation – and satisfied the opposition’s primary concern but not all of its concerns – by dropping a “genuine political defence” clause, the government has turned to the Greens to find a path through the parliament’s finely balanced upper house.

Greens MPs Sarah Mansfield, Aiv Puglielli, Katherine Copsey and Gabrielle de Vietri are among those the government is trying to convince to support its hate speech legislation.Credit: Jason South

The Greens’ asking price – one supported by a broad coalition of community and legal rights groups including the Federation of Community Legal Centres, the Islamic Council of Victoria, the Human Rights Law Centre and the Victorian Aboriginal Legal Service – is the inclusion of a public interest defence.

Greens MP Gabrielle de Vietri said that while her party supported extending protections against hate speech to a broader range of “protected attributes” including race, religion, gender identity, disability, sex and sexuality, she feared the legislation without this defence could be misused against already marginalised communities.

“We are really concerned about the changes Labor has made to appease conservative campaigns and the Liberals,” she said. “We are concerned they are going to make the bill worse.

“A public interest defence is well tested in case law, it has a very solid legal precedent and it is an appropriate defence to capture reasonable conduct done in good faith.″⁣

Human Rights Law Centre senior lawyer Arif Hussein said a public interest defence would balance the need to protect communities from hate speech with the right to free expression and participation in public debates, and make the legislation consistent with Commonwealth and state human rights law.

The latest legislative machinations, which will continue when parliament resumes next month, have recast the politics of complex reforms being debated against the backdrop of the Gaza war and deep social ructions the conflict is causing in Australia.

Greens MP Gabrielle de Vietri was ejected from parliament last year for wearing a keffiyeh.Credit: Getty Images

Attorney-General Sonya Kilkenny, after consulting at length with Jewish community leaders to secure their support for what the government is presenting as its legislative response to antisemitism, has now entered negotiations with a party in lockstep with the pro-Palestinian protest movement.

Jewish groups are urging the opposition to support the bill in its current form and believe the changes proposed by the Greens would take the legislation two steps back from where they started their consultations with the government.

Islamic Council of Victoria spokesman Adel Salman, a prominent supporter of the pro-Palestine movement, said the political defence should never have been dropped.

Islamic Council of Victoria president Adel Salman.Credit: Jason South

He welcomed the inclusion of a public interest carve-out if it meant people could not be prosecuted for engaging in legitimate protests about Gaza.

“The politicisation of antisemitism and weaponisation of it has impacted so many different areas of policymaking,” Salman said. “There has been almost a panicked response from our political leaders and law enforcement.

“These anti-vilification laws have been on the drawing board for a number of years. The government first commenced this review five years ago. I don’t want to take another five years to get it right, but we should not rush to pass a law that will ultimately be detrimental.”

On Thursday, Premier Jacinta Allan said she was opposed to any change that would weaken the legislation. “I am not up for watering down a bill that is about cracking down on hate and vilification,” she said.

Premier Jacinta Allan says she won’t support any changes that water down the anti-vilification legislation.Credit: Justin McManus

Gabi Kaltmann, a modern Orthodox rabbi well connected to both sides of politics, urged the parliament to work together to reach an outcome. “Of course all legislation must be thoroughly reviewed to prevent unintended consequences, but those involved cannot afford to play politics with laws that impact real lives,” he said. “Passing the legislation in its current form makes all Victorians safer.”

The government this week made two amendments that scrap the political defence and make more explicit a religious purpose exemption. The opposition, while welcoming the changes, voted against the bill in the lower house. The Greens abstained.

Prime Minister Anthony Albanese and Rabbi Shlomo Kohn after Adass Israel synagogue in Ripponlea was destroyed by arsonists.

The impasse between the major parties is centred on four words in a legal test that would be used to determine what constitutes unlawful vilification under civil law. According to the legislation as it currently reads, conduct is unlawful if it would “in all the circumstances, be likely to be considered by a reasonable person with the protected attribute to be hateful, or seriously contemptuous of, or reviling or severely ridiculing”.

The opposition wants to pare back this test to what a reasonable person would think, rather than a reasonable person with the protected attribute. Shadow attorney-general Michael O’Brien said these four words were all that separated the bill from bipartisan support.

The significance of the words is a matter of legal debate. Although the Commonwealth Racial Discrimination Act uses a straight “reasonable person” test found elsewhere in civil law, the Australian Human Rights Commission has noted that courts have interpreted it to mean a person from the targeted racial group.

Arif Hussein said the additional words were needed to clarify the intention of the Victorian legislation. “It is important to have that expressly in the laws, especially in the context we are in right now,” he said. “Hate crimes are experienced differently by different groups. The objective standard of a reasonable person with a protected attribute ensures vilification is considered within their experience of that hatred or speech.”

Hussein said that, as an example, the test as currently written would allow courts to consider the harm caused by antisemitic speech from the perspective of the Jewish experience shaped by the Holocaust.

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