The proposed hate speech bill by the federal government has raised increasing concern among civil liberties organizations and lawyers, as well as the media, who fear that the bill could undermine freedom of speech following its rushed passage through parliament.
According to Labor, the bill is required in order to enhance national security and social cohesion. The proposed legislation will make hate speech a crime, introduce a new system of labeling “hate groups,” implement a national gun buyback scheme, and give the government expanded powers of visa cancellation or denial. Nevertheless, the proposed legislation has been criticized for its scope and pace, which has raised concerns about the potential for unintended consequences and the undermining of civil and political rights.
The parliamentary prospects of the bill are becoming increasingly uncertain. The Coalition has labeled the bill “pretty unsalvageable,” while the Greens have indicated that they will not support the bill as it stands. Since Labor does not have a majority in the Senate, it would need the support of at least one of these parties, which is now in doubt.
Greens deputy leader Mehreen Faruqi said that the political reaction to the Bondi attack should not be at the cost of basic rights. She said that “poorly crafted” hate speech legislation could end up being used to “weaponise” racism and discrimination rather than preventing it, especially against already marginalized groups.
Free Speech and the Risk of Legal Ambiguity
At the center of the debate is the worry that the inclusion of “hatred” as a criminal term might bring subjectivity into the law. According to the proposed legislation, the courts would have to decide whether the accused intended to incite hatred and whether a “reasonable” member of the targeted group would fear harassment, intimidation, or violence.
Critics say that this standard is perilously elastic. Peter Kurti of the Centre for Independent Studies told parliamentary hearings that this test might encourage politicized assessments of emotional harm rather than objective harm. He said that this could confuse the line between offensive speech and criminal behavior, leaving citizens unclear about what speech is still legal.
These sentiments were echoed by Human Rights Commissioner Lorraine Finlay, who pointed out that the Bathurst Review had already identified the risks of broadening criminal law by incorporating emotive ideas. Finlay emphasized that a hate speech policy must be careful to strike the right balance between protecting people and upholding freedom of speech.
The New South Wales Council for Civil Liberties took it a step further by saying that the bill would create “significant limits” on freedom of speech without sufficient evidence that it would lead to greater social cohesion. The council also expressed concern about the sweeping powers that the bill would grant to ministers, especially in regards to the listing of hate groups.
However, proponents of the bill insist that there are safeguards in place. University of New South Wales law professor Luke McNamara said that the law has a high threshold for criminalization and that there is still ample room for political expression. According to McNamara, the bill is intended to reassure communities that while robust debate is guaranteed, there are limits when speech becomes intimidation or incitement.
Hate Group Listings and the Chilling Effect on Journalism and Academia
Another significant area of disagreement is the proposed hate group designation scheme, which would make it illegal to be a member of or to support designated groups. It has been argued that the term “support” is so broad that it could accidentally include academics, journalists, and researchers who are carrying out legitimate research.
Kurti’s warning is that the bill may move Australia from a system of criminalising conduct to criminalising association, which would give the executive branch of government a broad discretion with very limited judicial review. The media and academic communities have also expressed similar concerns.
Universities Australia has urged that specific exemptions be made to ensure that good faith teaching, research, and discussion are not affected. Although there are exemptions for academic or journalistic treatment of prohibited symbols under existing laws, there is no such provision in the proposed offense of racial vilification. This could have the effect of stifling critical analysis of contentious or extremist ideologies, which are exactly the kind of analysis that helps societies understand and resist radicalization.
The Media, Entertainment & Arts Alliance has also pointed out that the proposed legislation threatens press freedom and artistic expression, since democracy itself relies on the right to interrogate, expose, and challenge damaging ideas without the threat of criminal prosecution.
Limited Constitutional Safeguards in Australia
Australia’s legal system provides less protection of speech than some other democracies. Although there is an implied freedom of political communication, there is no constitutional right to free speech. This is different from the United States, although lawyers do not recommend the US system as a model.
Australians are safeguarded by international human rights obligations, such as the International Covenant on Civil and Political Rights, which enshrines the right to freedom of expression, association, and peaceful assembly. Nevertheless, it is argued that the use of international human rights standards offers less protection than a domestic safety net, especially in the creation of new criminal offenses.
McNamara recognised these concerns but pointed out that most democracies understand the need for speech to be constrained in some way. The problem, he said, is in making sure that these constraints are carefully circumscribed.
A Rushed Process and Growing Legal Risk
In addition to the content of the proposed legislation, the process of legislation has come under intense criticism. The Australian Human Rights Commission favors making hate speech illegal, but its president, Hugh de Krester, said that three days was not sufficient time for a bill of this magnitude.
He warned that
“hastened legislation is more likely to produce unintended consequences, loopholes in the law, and poor enforcement,”
which could have a negative impact on both public security and freedoms.
Liberty Victoria president Gemma Cafarella said the new powers in the bill were “poorly considered and draconian,” and that the lack of consultation and clarity means that a challenge in the High Court is likely. Cafarella said that laws that limit freedoms of speech, religion, and association could end up exacerbating division in society rather than healing it.
However, supporters of the bill, such as the co-chief executive of the Executive Council of Australian Jewry, Peter Wertheim, have called on lawmakers not to delay the passage of the bill, which is urgently needed. Wertheim said that while the bill is not perfect, it deals with real threats and provides a long-overdue means to combat organized hate.