Why Hate Crimes Bill falls short of the target

Prime Minister Anthony Albanese leaves Melbourne’s Adass Israel Synagogue after it was targeted in a firebombing in December. Picture AAP

If you believe Labor and the Coalition, the Hate Crimes Bill that is about to become law is one of the toughest possible statutes. If only that were true.

This scheme is definitely a step in the right direction. But it could have been so much better.

It fills gaps in the Commonwealth Criminal Code and makes it clear that those who incite violence based on race or religion will go to prison.

This is a real threat to hate preachers and others who have been inciting violence against Jews for 15 months. But with only a slight change, that threat would have been more effective.

As things stand, there is a risk the reformed law will be applied by police and the justice system in a strict or pedantic manner that allows some hate preachers to avoid conviction.

There is nothing novel or wrong about strict application of criminal law. It ensures judges do not go beyond the intent of parliament.

Because parliament chose to criminalise incitement of violence using narrow terms, judges can be expected to approach this law in the belief that parliament did not want to punish some hate preachers – those whose exhortations fall just outside those strict terms.

So while this law will probably catch some of those who have been stirring up violence against Jews and their property, others will almost certainly continue to spew bile with impunity. All they need to do is encourage violence with oblique language that still gets the message across.

Here’s what Labor and the Coalition should have been done:

Instead of outlawing mere “incitement” of violence based on race or religion, this bill should have used words of broader scope in order to capture every possible attempt to drum up violence.

A better approach would have been to outlaw speech that “promotes, advocates or glorifies” the use of force or violence.

If this change had been in force 15 months ago, police would have been better equipped to crack down on those who shamed this country by glorifying the murder and rape of Jews after the terror attack on Israel.

That suggested form of words, from the Executive Council of Australian Jewry, would make it impossible for hate preachers to avoid conviction by using oblique language.

In October, the ECAJ told a Senate inquiry that instructions to engage in violence were most often conveyed by verbal signals or symbolism “employing vague language and allusions to a particular cultural, religious or ideological context where the message is subliminally suggested but is not stated expressly”.

This bill is a compromise. In return for Coalition support, the government has dropped its previous opposition and has accepted that certain terrorism offences in the Criminal Code will attract mandatory minimum sentences. Surrendering to the Coalition would not have been easy. But it was worth it – not because mandatory sentencing is a good thing, but because the deal demanded by the Coalition was infinitely better than the other deal on offer.

By locking in Coalition support, this bill will sail through parliament without some truly perverse additions that were being pushed by teal independent Allegra Spender.

Had Labor been forced to deal with Spender, the Hate Crimes Bill would have gone beyond punishing incitement of violence and would have introduced criminal penalties for racial or religious vilification.

Vilification, while despicable, is at the lower end of the hate speech spectrum. It is already covered by a body of civil law that is the responsibility of bodies like the Australian Human Rights Commission.

The deal that now assures passage of the Hate Crimes Bill shows that the main players in federal parliament have considered and rejected Spender’s idea.

But it’s not dead. This entire issue is about to resurface in the NSW parliament after Premier Chris Minns announced his own plan to crack down on hate speech.

Before NSW finalises its plans, Minns needs to consider what the Spender approach to law reform would mean.

Demolishing the boundary between criminal and civil hate speech – as proposed by Spender – would have meant jailing people for language that, while offensive, ignorant and wrongheaded, would fall short of encouraging violence.

If all hate speech were to be assessed at the criminal standard of proof, which is higher than the civil standard, the result would not be pretty. Some hate speech that currently attracts civil penalties might go unpunished.

Spender and those who have made similar suggestions might have the best of intentions. But they may not realise the consequences of their suggestion.

Spender’s proposal would amount to supercharging section 18C of the Racial Discrimination Act, which already imposes civil penalties for speech that offends, insults, humiliates and intimidates on the basis of race, colour, nationality or ethnic origin.

If racial and religious vilification were to become criminal offences, it would come very close to a form of blasphemy law.

And if the case law on “hatred” is any guide, people could be jailed for speech that incites not just hatred but severe dislike and ridicule of aspects of any religion, regardless of whether that criticism is justified.

Consider the consequences: if NSW were to criminalise religious vilification, there is a clear possibility that people would eventually be jailed for criticising aspects of Islam, to take but one example.

Blasphemy laws might be the norm in Iran. But not here.

The safest way of strengthening hate speech laws is to adopt the broader test for inciting violence that has been proposed by the Executive Council of Australian Jewry.

Chris Merritt is vice-president of the Rule of Law Institute of Australia