Labor’s hate speech bill to outlaw vilification

Attorney-General Mark Dreyfus is drafting new hate speech laws that will impose criminal penalties for serious instances of vilification based on a person’s race, sexuality, gender, disability or religion.

Labor’s hate speech bill, which is still being finalised, will enhance the federal protections that exist for minority groups in Australia and stems from the government’s view that existing laws have not been enforced and are not effective.

Exclusive polling from the Resolve Political Monitor shows about half of Australians firmly back the case for stronger hate speech laws to protect people of faith.Credit: iStock

“The Albanese government is committed to promoting and supporting respect, acceptance and understanding across the Australian community,” Dreyfus told this masthead. “We are committed to protecting the community from those who promote extremism, hatred or seek to incite violence.”

The new hate speech bill would strengthen existing laws while creating new offences carrying criminal rather than civil penalties, and is likely to cover deliberate acts that intend to incite violence or cause harm, according to government sources speaking anonymously to discuss confidential matters.

The laws will be introduced into a highly charged political context, in which the war in Gaza has escalated concerns about antisemitism and Islamophobia in Australia while student protests have spurred confusion over the legal lines between free speech and discrimination.

Exclusive polling for this masthead from the Resolve Political Monitor shows about half of Australians firmly back stronger hate speech laws to protect people of faith, compared to the quarter of voters who are against them.

Labor went to the election with a pledge to protect religious groups, but details reveal that the hate speech legislation will extend safeguards in federal criminal law to all protected attributes including race, gender, sexuality and disability.

Prime Minister Anthony Albanese put the issue on the agenda in February when he promised to fast-track hate speech laws. He guaranteed they would be introduced to parliament when he split them from the government’s planned religious discrimination package, which could be shelved if Labor doesn’t get bipartisan support from the Coalition.

Recent student protests supporting Palestine have heightened unease about the lines between free speech and discrimination in Australia, and prompted university heads to seek clarity from Dreyfus about whether certain phrases such as “intifada” and “from the river to the sea” are permissible.

Opposition Leader Peter Dutton has also joined the political push for stronger hate speech protections, citing rising antisemitism. The reforms will force the Coalition to clarify its position on free speech laws, given long-held opposition in its ranks to existing anti-vilification measures in racial discrimination laws.

Shadow attorney-general Michaelia Cash has signalled concern about relying on civil discrimination law to address vilification, but said existing criminal laws should be the first recourse.

“Why haven’t these laws been enforced? If our criminal laws are not fit for purpose, they should be updated,” she said.

Labor has consulted widely on its hate speech bill, involving women’s groups, disability advocates, ethnic communities, LGBTQ advocates and Aboriginal and Torres Strait Islander representatives, in addition to religious groups.

Dreyfus wrote to these parties in February and March to say the bill would seek to strengthen protections for minority groups when it came to the most serious instances of vilification.

The laws will add to existing Commonwealth protections against discrimination and hate speech, which the government believes are insufficient. Several states and territories have their own laws, while under federal communications law it is illegal to use the internet to intentionally disseminate material that results in a person being menaced or harassed.

The most significant protections exist in the Racial Discrimination Act, in which section 18C makes it unlawful for someone to publicly “offend, insult, humiliate or intimidate a person or group of people” because of race, with a raft of free-speech exemptions. Case law has determined this can apply to Jewish people, but it has not been applied to Muslims, whose identity is not tied to race.

Existing sections in the criminal code that prohibit urging violence against groups and members of groups have not led to prosecution, and minority faiths, including Muslim, Sikh and Jewish groups, have for years sought stronger anti-vilification measures.

The Resolve Political Monitor poll from May shows 49 per cent of voters agree the government should introduce new measures to protect people of faith from hate speech based on their religion, including 57 per cent of Labor voters, 52 per cent of Coalition voter and 41 per cent of Greens voters.

Those findings reveal voter support has softened since March, when 56 per cent of people said they wanted tougher protections for minority groups, including 61 per cent of Labor voters, 62 per cent of Coalition voters and 52 per cent of Greens voters.

Just under a quarter of people said they were unsure in both polls, but the proportion of voters who thought the government should not act to protect faith groups against hate speech rose from 19 per cent in March to 28 per cent in May. The poll has a 2.4 per cent margin of error.

“Half of Australians still want stricter rules on hate speech, which has always been a balancing act with the default right to free speech and, to be quite frank, the avoidance of political correctness,” said Resolve pollster Jim Reed.

Politics professor Katharine Gelber said there had typically been strong public support for anti-vilification laws to protect vulnerable communities from harm, particularly on the grounds of race.

“There has not been the same support for [those laws] on the grounds of religion. It’s been a much more contested terrain. It’s much more difficult to meaningfully differentiate, in practice, between a genuinely religiously held belief and something that crosses a line,” she said.

But recent events had shown the public was looking for clarity. “There’s obviously a very heated global debate going on about what’s happening in Gaza, and in the context of that debate, people are struggling with the complexities of where to draw the lines on what is legitimate democratic protest, and what crosses the line into unacceptable speech,” she said.

“I think there is confusion about what constitutes hate speech. Part of the reason is that the term ‘hate’ is an emotional term, but legally and philosophically hate speech is speech that harms people... Any law, for it to be helpful, would need to be narrowly drawn and carefully drawn, and they would need to consult meaningfully, not treat it like a political football.”

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