Government’s pursuit of a hate speech law could take it down another cul-de-sac

Attorney-General Mark Dreyfus and his “shadow”, Michaelia Cash, are both volatile characters. When they met this week to discuss the government’s draft religious discrimination bill, an incendiary issue in the best of circumstances, sparks flew.

After a few minutes, Cash stormed out. The version from her side is that Dreyfus told her to “take a breath”, leaned across the desk and raised his voice. The Dreyfus side says she was the aggressive one doing the shouting.

Whatever the truth of this unedifying “she said, he said” dispute, the more important point is that the religious discrimination legislation looks near-dead, albeit not yet cremated.

Anthony Albanese promised it at the election, for political purposes, but has since said the government will not proceed without Coalition support.

The Coalition hasn’t given a definite yes or no, but is stringing out the issue for its own advantage. If Albanese wants to try a salvage operation, he’ll need to undertake it himself, directly with Opposition Leader Peter Dutton. (The Greens have offered to deal themselves into the play, but that could be an even more difficult route for the government. Their support seldom comes cheap.)

From the government’s point of view, there’s little to be gained by attempting to breathe fresh life into this legislation. At next year’s election, the PM can tell the faith communities “well, I tried, but the Coalition wouldn’t agree”.

Meanwhile, the government is embarking on another, equally fraught, legislative journey – trying to turn the PM’s promise of action against “hate speech” into law.

Albanese said in February he’d asked Dreyfus “to develop proposals to strengthen laws against hate speech, which we will be doing”.

The proposed law would cover speech that incites hatred in relation to sex, sexuality, gender, race, and religion. The government claims it would strengthen existing Commonwealth laws. We already have provisions that prohibit urging violence against groups and members of groups – in section 80.2A and 80.2B of the Criminal Code. New offences would be created.

The government expects its legislation to be ready for introducing in August.

The opposition says it will wait for the details before it declares its position. However, Dutton – who a few months ago said the government should investigate whether stronger laws were needed – was cautious about the issue at this week’s Coalition parties meeting. There would be resistance to the move within the opposition.

There are several threshold questions about the pursuit of federal hate speech legislation. Is it necessary? Is it desirable? How practical is it? Is it worth the potentially divisive debate it will bring?

A driver behind the legislation is the desire to send signals (of both support and warning) in the present fractured domestic climate, after the Israel-Hamas war has fuelled antisemitism (which was already rising in Australia before the conflict) and Islamophobia.

Although there have been calls for new anti-hate speech legislation from Jewish and Muslim communities for several years, the widening of social divisions in the wake of this war has given impetus to these calls.

On the other hand, there is not a legal vacuum – there are existing state criminal laws that could be used against, for example, hate preaching, although they haven’t been invoked. The NSW Law Reform Commission, under former NSW Chief Justice Tom Bathurst, is currently inquiring into Section 93Z of the NSW Crimes Act to assess its efficacy. That section proscribes threatening or inciting violence on the basis of race or other attributes.

When we consider the desirability of federal hate speech legislation, we quickly run into the freedom-of-speech conundrum.

Reasonable people agree the right to freedom of speech is not absolute. Where it intersects with incitement to violence, a clear line has been crossed.

But the issues become murky when we examine, for example, the chants “from the river to the sea” and “intifada”. What is actually being said when they are chanted?

Education Minister Jason Clare said recently: “I’ve seen people say that those words mean the annihilation of Israel. I’ve seen people say that it means the opposite. I’ve seen people say that they’re slogans that Israeli political parties have used too.”

He got a mild put-down from his prime minister, who sees “from the river to the sea” as denying a two-state solution. But Clare is right; the words have different meanings to different people. Also, and importantly, it’s a matter of context. It’s one thing if the words are used to stir up a potentially violent crowd (incitement); it’s another when they’re used by protesters at a peaceful demonstration (free speech).

Earlier this month, the Group of Eight Universities asked Dreyfus for advice, in relation to federal law, on intifada and “from the river to the sea”.

Dreyfus replied he did not provide legal advice. He then referred them to Section 18C of the Racial Discrimination Act, that provides a civil remedy for a public act found likely to offend, insult, humiliate or intimidate on the ground of race.

The Executive Council of Australian Jewry has lodged two complaints, under 18C, with the Australian Human Rights Commission over inflammatory speeches by two Sydney preachers.

The Senate this month passed a motion with bipartisan support that declared “the slogan ‘from the river to the sea, Palestine will be free’ opposes Israel’s right to exist and is frequently used by those who seek to intimidate Jewish Australians via acts of antisemitism”. The Australian Muslim Advocacy Network immediately claimed, in an open letter to senators, the motion “infringes on the right to freedom of expression by Palestinian Australians and their allies in criticising Israel”.

Katharine Gelber, professor of politics and public policy at the University of Queensland, has written extensively on hate speech.

She says the existing federal criminal code sections were originally introduced as counter-terrorism measures. “If what the government means to do is remove those provisions and instead have a criminal hate speech law, that might be helpful. Otherwise they might be introducing more confusion,” she says.

Gelber is not convinced the phrase “from the river to the sea” would automatically be caught by 18C, let alone by a new criminal provision. “It would be very hard to define a criminal law to include that”.

She does believe, however, that a vilification law would be useful in an educative sense - a “line in the sand as much as for prosecution – important even if there was no enforcement”. She says that, in principle, anti-vilification laws in both civil and criminal form have an appropriate role to play in drawing those lines in democratic debate, to ensure people engaged in free speech exercise it in ways that don’t harm others.

“One could expect that the prime minister wants to make a symbolic gesture,” she says.

In political terms, however, the attempted gesture could bog down in arguments on multiple fronts that pleased none of the major stakeholders in the debate and left the rest of the public thinking the government had, once again, got itself into a cul-de-sac.