With its new laws, the government is tackling hate speech quickly, but not properly

On Tuesday, in response to the Bondi terrorist attack and mounting pressure to take strong action, the Albanese government released draft legislation to counter hate crime and strengthen firearm controls.

The draft bill^[1] is 144 pages long. It contains wide-ranging amendments to criminal law, migration rules, customs regulations and more.

The legislation contains the most significant changes to Australia’s counter-terrorism laws since those introduced in 2014^[2] in response to Islamic State and the threat of foreign fighters^[3].

Public submissions on the laws are due to the Parliamentary Joint Committee on Intelligence and Security^[4] by Thursday afternoon. That leaves fewer than three days for public consultation.

This timeline is wholly inadequate to consider such significant changes. The government risks entrenching legislation that raises more questions than it answers, without building the public goodwill necessary for these sorts of laws to effectively address hate and violence.

What does the draft bill contain?

The draft legislation is too lengthy and complex to detail in its entirety here, but the main criminal law changes are a new federal offence for inciting racial hatred and a scheme for outlawing hate groups.

Under the new offence, anyone who incites or promotes racial hatred, or disseminates “ideas of racial superiority”, will be liable for five years in prison. The conduct must be such that a reasonable member of the “target” community would be intimidated, fear harassment or violence, or fear for their safety.

This is a reasonable person test. No one needs to have actually been intimidated or harassed for the offence to be triggered.

Under the hate groups scheme, a group that is involved in or advocates hate crime can be listed in regulations. The listing will trigger various offences, including being a member of a hate group, supporting a hate group, or up to 15 years imprisonment for directing a hate group’s activities.

Essentially, hate groups will be banned in the same way as terrorist organisations.

This is why neo-Nazi group the National Socialist Network announced they are formally disbanding^[5], though it’s doubtful their leaders will cease agitating or renounce their ideology.

Noble goal, flawed laws

On face value, laws that punish racial hatred and make a neo-Nazi group withdraw its public profile sound like a good thing. And it is difficult to criticise laws that respond to the terrorism and tragedy at Bondi.

But this shouldn’t detract from genuine inquiry into whether these laws are appropriately designed and unfairly reduce freedom of speech.

The concern is not for groups like the National Socialist Network, which pose a serious threat to social cohesion and are careful to stay within the bounds of existing laws^[6].

Instead, we must think about the full scope of these laws and how they might play out in months and years to come.

The home affairs minister flagged the National Socialist Network and Hizb-ut-Tahrir^[7] as two possible targets of the law, but we don’t yet know which organisations might qualify as hate groups and be listed down the track.

We must also consider whether the laws provide adequate protections for all groups experiencing hate crime. The government has responded to criticisms that the new offence targets only racial hatred^[8], indicating it may expand the laws to cover hate speech based on religion, sexuality or disability – but only after the first lot of laws are enacted.

This continues a well-worn pattern of enacting problematic terrorism laws urgently, often over holiday periods^[9] and on the promise they will be reviewed and improved later.

Since the September 11 attacks in 2001, more than 100 counter-terrorism laws^[10] amounting to more than 5,000 pages of complex rules^[11] have been passed by the federal parliament. The number since amended to improve their compliance with fundamental rights is negligible.

We should assume that these laws, once passed, will stay on the statute books in essentially the same form.

Unanswered questions

The laws raise too many complex questions to be passed on such an urgent timetable. Just one, already raised^[12], is about an exemption to the vilification offence for quoting from religious texts. This may provide legitimate protection in some cases, but why should quoting from scripture provide an excuse for conduct that otherwise constitutes hate crime?

And what counts as a religious text? The legislation does not specify, so a court would need to decide whether the protection applies only to quoting from the Bible, Quran and Torah – or any document that sets out religious beliefs.

There are masses of fundamentalist religious literature online, not to mention terrorist manifestos and the strict rules written by cults, which exploit religion^[13] to control their members.

Commonsense suggests these examples would not be exempt, but successful prosecutions may be difficult where someone quotes from a fringe religious text containing hateful views. We may see hate groups formalising their beliefs into “official” documents to seek such protection.

Legislating against hate

Outlawing hate in a democracy is a highly complex, contested task. It requires proper community consultation to build as much agreement and buy-in as possible before new laws are enacted.

The New South Wales Law Reform Commission recently reported^[14] that hatred is too imprecise and an “inappropriate standard for the criminal law” because there are significant “differences of opinion in the community about what hatred means”. It warned that expanding hate speech laws would have unintended consequences, and preferred other strategies, including civil schemes^[15] and wider efforts to promote social cohesion, over tougher laws.

NSW’s Minns government ignored this advice last year and rushed expanded hate crime laws^[16] through the NSW parliament. Albanese is following suit.

We can only hope that debates on these laws and the upcoming royal commission^[17] do not get so heated as to undermine the benefits they may provide.

References

1. ^{^} draft bill (www.ag.gov.au)
2. ^{^} those introduced in 2014 (lsj.com.au)
3. ^{^} foreign fighters (theconversation.com)
4. ^{^} Parliamentary Joint Committee on Intelligence and Security (www.aph.gov.au)
5. ^{^} formally disbanding (www.abc.net.au)
6. ^{^} within the bounds of existing laws (www.pm.gov.au)
7. ^{^} home affairs minister flagged the National Socialist Network and Hizb-ut-Tahrir (www.pm.gov.au)
8. ^{^} criticisms that the new offence targets only racial hatred (www.abc.net.au)
9. ^{^} often over holiday periods (classic.austlii.edu.au)
10. ^{^} more than 100 counter-terrorism laws (www.inslm.gov.au)
11. ^{^} more than 5,000 pages of complex rules (law.unimelb.edu.au)
12. ^{^} already raised (www.smh.com.au)
13. ^{^} cults, which exploit religion (www.parliament.vic.gov.au)
14. ^{^} New South Wales Law Reform Commission recently reported (lawreform.nsw.gov.au)
15. ^{^} civil schemes (classic.austlii.edu.au)
16. ^{^} rushed expanded hate crime laws (www.abc.net.au)
17. ^{^} upcoming royal commission (theconversation.com)