Hate speech law review no excuse to criminalise 18C

Anthony Albanese has suffered a humiliating defeat in being forced to adopt mandatory minimum sentences for convicted terrorists after speaking out publicly against the proposal. The measure is a win for Peter Dutton, who has been capitalising on the Prime Minister’s perceived lack of leadership authority as a result of the despicable outbreak of anti-Semitic actions since the October 7, 2023 terrorist attack by Hamas on Israel.

Already under pressure for not being properly briefed on the discovery of a potential caravan-bomb terrorist plot, Mr Albanese moved on mandatory sentencing provisions in defiance of the Labor Party platform, which views them as an undue interference in the judicial process. Mr Dutton has shown himself to be better at reading the room on the issue.

The mandatory sentencing laws were introduced by Tony Burke as an amendment to the government’s hate crimes bill.

They helped to ensure bipartisan support for the changes, avoiding having to deal with independents and a bigger political row over religious freedoms.

As Chris Merritt writes on Friday, proposals put by teal independent Allegra Spender and others would have meant jailing people for language that, while offensive, ignorant and wrongheaded, would fall short of encouraging violence.

Ms Spender’s proposal would have amounted 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.

Merritt said that if serious racial and religious vilification were to become criminal offences it would come very close to a form of blasphemy law in which people could be jailed for speech that incites not just hatred, but even severe dislike and ridicule of aspects of any religion, regardless of whether that criticism is justified.

The current debate was directed towards finding ways to prevent hate preachers and others from drumming up violence against Jews.

The final result that passed through the Senate on Thursday will go some way towards this. This newspaper has been a leading force in exposing publicly the hateful sermons and incitements issued by preachers and terrorist sympathisers, notably in western Sydney.

The inclusion of an incitement-to-violence provision in the hate speech laws will give authorities powers to bring them to account.

This has been achieved without having to extend the reach of the 18C provisions to criminal sanctions. As a paper, we have been open in our objection to the overreach of 18C.

Much of our opposition reflects a lack of confidence in the impartiality and competence of the Australian Human Rights Commission to administer it. Many of these concerns would extend to the judiciary as well.

In debate in October 2016 over the repeal of 18C, we argued that two cases had robbed the provision of credibility.

One was the pursuit of Queensland University of Technology students over Facebook posts; the other concerned cartoonist Bill Leak and this newspaper over a cartoon provoking people to consider the plight of Aboriginal children in dysfunctional families.

We said section 18C goes beyond the normal left/right political divide and is a threat to those who would share provocative ideas, regardless of where they sit on the political spectrum.

“The practical application of this law has provided two great lessons: the first is that the law itself is rigged in favour of those who complain; the second is that the government cannot rely upon the AHRC to defend freedom of expression,” we said.

Criminalising these provisions would only make things worse.

NSW Premier Chris Minns must be careful not to fall into the trap of extending 18C into criminal sanctions in his review of state hate speech laws.

Our concerns were shared by many in the religious community who warned that proposed amendments to the laws would limit religious speech if incitement of “force or violence” against protected groups includes psychological harm.

There was never any doubt greater efforts were needed to squash the outbreak of anti-Semitism that has shamed the nation and brought fear to members of the Jewish community. The initial opportunity for our political leaders to stand firm at the outset unfortunately was lost.

Thankfully, political co-operation was able to stare down pressure to extend the remit of the law to criminalise religious vilification in a way that could lead to people being jailed for criticising aspects of religions they simply do not agree with.