Already in May, the federal government of Albania told us we should always expect strict latest hate speech laws.
However, within the draft bill presented to Parliament this week, the federal government has moved away from the plan to criminalise racist hate speech.
Instead, behavior is simply criminalized whether it is “Threat of violence or violence“.
This might be a disappointment to some, particularly those that have wanted stronger protections against racism – including anti-Semitism and Islamophobia – in Australia following the unrest sparked by events in Israel and Palestine.
However, when viewed within the context of the longer history of Australian hate speech laws, this recent development continues a consistent pattern of using civil remedies fairly than criminal sanctions to combat most types of group vilification.
A protracted-standing struggle
Since not less than the Seventies, the Australian government has been trying to find out what laws are needed to combat racism and in what form.
A certain consensus has been reached that racial discrimination must be illegal. It is now under the Racial Discrimination Act 1975and anti-discrimination laws in every state and territory.
Consensus on the legal regulation of racist slurs (sometimes known as racist “hate speech”) has been harder to realize.
Nevertheless, the Labour government 30 years ago managed to Hate Speech Provision (Section 18C) to the Racial Discrimination Act, when Parliament passed the Racial Hatred Act 1995.
States and territories even have their very own vilification laws (which relate to race and a spread of other grounds).
A daring approach, initially
When the federal government of Albania announced earlier this 12 months that it planned to introduce further laws against hate speech, the proposal so as to add latest criminal offenses caught the eye of many individuals, including academics like myself who’ve researched defamation laws. for the reason that Nineties.
We were surprised because a key feature of Australian legislative attempts on this area has been the emphasis on civil law – where an injured person can take private motion against those responsible – fairly than criminal law.
The application of criminal law was considered to be too great an intrusion into the Right to freedom of expression.
Although freedom of speech in Australia is patchy and comparatively weakly protected by law, it’s an influential force on this country's political debates.
Some politicians have also not shied away Armament For example, in 2018 the coalition government launched an investigation to find out whether freedom of expression was adequately protected on university campuses.
Against this backdrop, the Albanese government’s announcement in May set the stage for an additional heated debate about what laws can be best to combat hate speech. Coincidentally, it also got here ten years after a series of (unsuccessful) attempts by coalition governments to amend Section 18C or effectively cancel it overall.
But the Albanese government has now moved away from its original plan. Instead, the modified and latest offences will only apply to conduct that not only defames a bunch (or a member of a bunch) but additionally involves threats of violence or the usage of violence against that group.
This is a much less controversial type of criminalisation. And most Australian states and territories have already got offences of this sort – for instance, the offence of publicly threatening or inciting violence in the NSW Crimes Act.
What impact will it have?
We must be careful to not expect an excessive amount of from the proposed latest federal crimes.
Prosecutions and convictions for these “serious” types of insult are extremely rare in Australia. There aren’t any cases in NSW, although that state first criminalised insults accompanied by threats of bodily harm or damage to property 35 years ago.
The NSW Law Reform Commission is currently conducting a Inquiry why that is the case and whether further reforms are justified.
It is unlikely that this might be any different for brand spanking new Commonwealth offences. They have complex definitions and might be difficult to prove beyond reasonable doubt.
Of course, simply because a criminal offense will not be often prosecuted doesn’t mean that it’s pointless. Governments sometimes use criminalization for symbolic purposes and to convey messages.
And yes, sometimes this can be a cynical exercise in creating the impression of doing something without changing much. Whether this can be a fair characterization stays to be seen.
In the meantime, there’s more likely to be great disappointment amongst members of Australia's Muslim communities.
The latest criminal laws on threats of violence might be applicable to a big selection of identifying characteristics, including religion, race, gender, sexual orientation, gender identity, intersexuality, disability, nationality, national or ethnic origin or political opinion.
However, the bill doesn’t amend the more useful civil laws within the Racial Discrimination Act, which at the moment are prolonged to cover religious vilification.
Regardless of whether Islamophobia is appropriately characterised as a “religious” or “racist” vilification, it is evident that Australian Muslims usually are not protected on the federal level by section 18C of the Racial Discrimination Act in its current version.
In my previous research with Professor Katharine Gelber, we identified this as biggest gap in Australia's hate speech laws.
In contrast, anti-Semitism is legally considered a type of racism, and Section 18C of the Racial Discrimination Act has been used successfully by Jewish organizations and individuals against types of anti-Semitism, including Holocaust denial.
Since Hamas's attack on Israel on October 7, 2023, the Australian government has sought to convey to the general public that it’s equally concerned about all types of discrimination and hate speech, including each anti-Semitism and Islamophobia.
And yet, while a special envoy to combat anti-Semitism has been appointed, the promise of a special envoy for Islamophobia has to date did not materialise.
The latest hate speech bill introduced by the federal government does little to advertise a real commitment to multiculturalism and anti-racism. We expect the Albanese government to take more energetic steps on this direction.
image credit : theconversation.com