Why hate speech laws are so hard

Why hate speech laws are so hard

The Albanese Government has recalled parliament this week to try to push through new laws on hate speech and guns in the wake of the Bondi terror attack. But it's been a messy few days - the proposed laws have been widely criticised, and the government has already had to abandon key parts of the package. So in this Squiz Shortcut, we'll take a look at:

• what was actually proposed

• whether it would make a difference

• and why it's all come unstuck politically

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Listen to Larissa Moore and Andrew Williams cover this topic in this Squiz Shortcut podcast episode, or check it out on YouTube - and hit subscribe while you’re at it.

Listen/watch time: 11 minutes

Squiz the Shortcut

Tell me about the new federal laws…
They’ve been drafted in a hurry following the Bondi terror attack on 14 December last year, in which 15 people were killed in the deadliest terror attack on Australian soil. It was an attack targeting Jewish Australians, and in the aftermath there were immediate calls for the government to do more to tackle antisemitism. 

What type of action was being called for?
Jewish groups, community leaders, and politicians across the spectrum all said that existing laws weren't strong enough. That saw PM Anthony Albanese put under a lot of pressure, first for his response to the attack itself, then for resisting calls for a royal commission before eventually agreeing to one. Part of his response was to recall parliament early - they’ve come back for a special sitting this week - to pass what it called the "Combatting Antisemitism, Hate and Extremism Bill."

What was in the original bill?
It was a big package that bundled together hate speech laws, gun reforms, and powers to ban hate groups - all in one bill. And that bundling is one of the reasons this became so messy. Different parties had different issues with different sections. 

Can you break it down for me?
Let’s start with the hate speech part - that's where most of the debate has been. But before we get into what the government was proposing, it's worth stepping back to explain why legislating in this space is genuinely difficult. 

Yes, why is it so tricky?
Defining hate speech and defining free speech is difficult because lots of people see them differently - what one person might see as hate speech, another might see as free speech. With that in mind, where exactly do you draw the line between protecting communities from harmful rhetoric and allowing people to express views that others might find offensive? Democracies have been wrestling with this question for a long time.

Got it… What does the law currently say about hate speech?
Federal law makes it illegal to incite violence against a group based on race. The threshold is pretty high - you have to be advocating for actual violence. The idea is that you can say offensive things, but once you're calling for violence against a group, that's where the law steps in.

OK, so how does the government want to change it up?
It wants to lower that threshold. The new law would have made it an offence to publicly promote or incite racial hatred - not violence specifically, but hatred - where the conduct would cause a reasonable person to feel intimidated, harassed, or fear violence. And it's specific groups that this would apply to - hatred targeted on race, colour, national or ethnic origin.

What was the reasoning behind that?
Home Affairs Minister Tony Burke said groups like Hizb ut-Tahrir and the National Socialist Network - that's a neo-Nazi group - have been spreading hate but staying just below the current legal threshold. They create what he called "a pathway for others to engage in violence" without explicitly calling for it themselves.

What’s Hizb ut-Tahrir?
It’s an Islamist organisation that believes Muslim-majority countries should be governed under strict Islamic law. It’s been accused of spreading antisemitic views, and it’s already banned in countries like Germany and the UK, but not currently in Australia.

What were the proposed penalties?
They were serious too - up to 5 years imprisonment, with higher sentences if a religious official was involved or if someone was trying to radicalise children. 

What did critics say about lowering the threshold?
They said it would be difficult to prove someone was promoting hatred. Who decides what counts as promoting hatred? Constitutional law expert Anne Twomey raised concerns that the laws as drafted might end up being used in ways that weren't anticipated, even though the government included some safeguards like quoting religious texts for teaching or discussion. That too was criticised by Jewish groups who said it provided a loophole that hate preachers could exploit.

Would laws like this actually prevent a terror attack like Bondi?
The honest answer is... it's complicated. These laws are more about addressing the broader ecosystem of hate - the rhetoric, the radicalisation, the normalisation of hatred towards particular groups - rather than directly stopping someone who's already decided to commit violence. 

Where did the Coalition stand?
After calling for urgent action from the government in the wake of Bondi, the Coalition said the legislation was rushed and wouldn’t support the bill as it stood. Leader Sussan Ley called it "unsalvageable." She said it was "half-baked" because it failed to specifically name radical Islam, and potentially infringed on free speech. 

Was the Coalition aligned in its position?
There were some splits. Andrew Hastie raised concerns about free speech, while the Nationals were opposed to the gun reform parts. So yet again, Ley was trying to hold together a fractured position. The government was also criticised for bundling gun laws with hate speech laws  - which some commentators said was a political wedge designed to make the Coalition look bad if they voted against it. The PM's line was that the Bondi attackers "had hatred in their minds but guns in their hands," so you needed to deal with both.

Who else criticised the bill?
Where to start… Jewish groups wanted stronger protections. Muslim groups felt they hadn't been consulted and worried the laws would be used against them. The Greens said the laws didn't go far enough in protecting other groups - people with disabilities, the LGBTQIA+ community. They wanted the scope expanded beyond race and ethnicity. And free speech advocates said the laws went too far.

Yikes… So where does that leave things?
The PM backed down and the bill was overhauled. The government is now proceeding with 2 separate bills. One on gun reforms, which is set to pass with Greens support. And one giving the Home Affairs Minister powers to ban hate groups like Hizb ut-Tahrir and neo-Nazi organisations, and to deport people who spread hate. That second one needs Coalition support, and while they're still working through it, reports say there are positive signs.

What about the hate speech part?
The hate speech provisions - the ones that would have lowered the threshold from inciting violence to promoting hatred - they’ve been shelved for now. The PM says he doesn't want division on the floor of parliament, so if the Coalition won't agree, it won't proceed. 

When will we know if the new bills have passed into law?
They’re before the Senate today - stay tuned…

Onto our Recommendations

Reading: The issue of social cohesion has been raised a lot in the aftermath of the Bondi terror attack. With that in mind, this piece in The Conversation looks at some key areas to be examined by the upcoming royal commission into antisemitism.

Listening: This episode of The Front by the team at The Australian discusses the position the Albanese Government finds itself in post-Bondi…

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