Hate speech laws must not impinge on free speech

The Federal Government has announced its intention to table hate speech laws as a matter of urgency in response to growing concerns about antisemitism in Australia.

Deputy Prime Minister Richard Marles, speaking outside one of Australia’s largest Jewish schools which was vandalised with antisemitic graffiti last week, indicated that a hate speech bill would be introduced to the Parliament in August this year.

Media reports have indicated that the new 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”:

“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.”

The Federal Opposition has indicated it supports measures to combat antisemitism; however it is concerned about the scope of the proposed laws, which, according to the government’s statements, will extend far beyond race-based discrimination.

Shadow Attorney-General Michaela Cash has questioned why existing criminal laws are not being utilised currently:

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

Ms Cash has also called for details of the proposals to be released, saying the Attorney-General has questions to answer about the new laws:

“The Fair Work Act treats ‘political opinion’ as a protected attribute. Will it now be an offence to criticise someone’s political views on the grounds that doing so is hate speech?

Will Mr Dreyfus’ bill now make it an offence to use the phrase ‘from the river to the sea’, or to use incorrect pronouns, on the grounds that ethnic origin, religion and gender identity are all protected attributes?”

The Nationals leader David Littleproud has also called on the government to explain why existing laws are not being used:

“The government needs to articulate why they aren’t satisfactory and why they haven’t been used.

If they do believe there needs to be a strengthening of those, then we’ll work through the details. But I’m obviously reticent to give carte blanche support to Mark Dreyfus without seeing those details … it’s important we see the detail around getting the balance right and protecting free speech but making sure that comes with responsibility and respect”.

In 2021, HRLA client Lyle Shelton was sued by two Brisbane drag queens after writing a blog article saying that drag queens are a bad role model for children and criticising a “drag queen story time” event for children hosted by a public library.

The drag queens alleged that Lyle had breached section 124A of the Anti-Discrimination Act 1991 (Qld) which prohibits public acts that incite “hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of … sexuality or gender”.

HRLA represented Lyle in the Queensland Civil and Administrative Tribunal, which ruled that his comments were made “in good faith” and did not amount to vilification.

The drag queens have since appealed the ruling.

Lyle’s case highlights the lack of clarity around vilification laws in different states, and demonstrates the threat that such laws can have on public discourse about controversial issues.

In practice, these laws are often used to silence dissenting views on controversial topics, or to make people hesitate to express these views in the first place.

The government has yet to release any details regarding the legislation.