Transcription
This week, the Australian government is rushing to pass a law that could criminalize the things you say in public, at work, and in private chats. Now, you might think that you're not a hateful person, and therefore this isn't going to affect you. But as a lawyer who's been a prosecutor and a police officer, I can tell you that this law is written in an extremely vague way. So vague that it's going to be dangerous. And it's being pushed through parliament with almost no public debate in response to Bondi's tragedy in December. But to see past the headlines, you have to understand the details. So, in the next few minutes, I'm going to break down what this law means for you, your job, and your freedom to speak. Showing you the risk in the fine print that most people are going to miss. This isn't just about stopping online trolls and violent extremists. It is a significant expansion of government power pushed through parliament at alarming speed.
And here's what I mean by alarming speed. The official committee that reviews this kind of legislation gave the public 48 hours to respond to it. 48 hours to review a long, complex document that will reshape our laws and our lives. And if you want to say something about it, it's already too late. Submissions were due by last Thursday. So a law that is going to criminalize speech will pass before most Australians know anything about it. So this raises an obvious, but a critical question. Is this how major laws impacting our fundamental rights should be made?
The government has framed this as a necessary response to the tragedy that took 15 lives at a Hanukkah event in Bondi. And while most people, if not everybody, agrees on the need to combat hatred and extremism, rushing legislation like this complicates things. It leads to mistakes. It leads to unintended consequences and a significant potential for government overreach. Now, you have to bear in mind, we don't have a bill of rights. We don't have a freedom of speech. So, once the law passes, that's the law. So, that's why people like me are sounding the alarm. The primary concern coming from a prosecutorial background is that this lowers the criminal threshold, or at least lowers the threshold to charge people, and that's really what matters. The focus shifts from your intentions and your actions to someone else's interpretation of what hatred is, which is going to have real consequences, not just for you personally, but also for your job, for people's ability to get a visa, and your freedom to discuss difficult topics openly.
So, let's look past the politics and examine what the bill actually does. This is what's called an omnibus bill. It bundles numerous charges into one package by amending five different areas of law. Conveniently, these are broken into schedules. So, let's go through them. Schedule one amends the criminal law. Schedule two alters visa law, granting pretty significant powers, and new ones at that, to grant or cancel visas. Schedule three addresses importation, which is meant to apparently ban hateful material, whatever that is. And schedule four introduces significant firearms reform, including the controversial national gun buyback scheme. And schedule five deals with what are called transitional rules, which allow for the implementation of the new system. But our focus is going to be on schedule one, at least at the beginning, as it creates what are called hate speech offenses. We already had hate speech offenses. These aren't new. They used to require intentional advocacy of violence, but the new law establishes an entirely new offense for publicly inciting or promoting hatred.
So, here's the key change. It will be a crime to publicly incite or promote hatred towards a person or group based on their race, color, national, or ethnic origin. The conviction carries up to 5 years in prison. None of this is overly controversial yet, but the term "publicly" is defined impossibly broadly, and it includes the internet, uh, covering social media posts, videos, blogs, and online comments. The law also creates a new mechanism for the government to formally prescribe prohibited hate groups. Now, the government says that this is a measure that will allow them to target organizations like the National Socialist Network, that have so far avoided being classified as a terrorist group. But once a group is prescribed, and remember, this can be any group that the government deems to be a group that can be prescribed, not just national socialists, it becomes a serious crime to even be a member of the group, and to recruit for them, or to even provide support.
So, let's get into the controversies of this. On the surface, it may sound reasonable. We all want to combat neo-Nazis and racial hatred. However, the details are deeply concerning, and this is why. First, there are obviously major free speech issues. The new offense hinges on this vague concept of inciting or promoting hatred. But who defines hatred? The bill states that the legal test that is going to be applied for this is whether a reasonable person from the targeted group, remember, this could be anyone who fits the definition, would feel intimidated or threatened. What it does not require is that somebody intended to promote hatred. This shifts, and this is really important, the accused's intent, which is a really common criminal standard, to another person's feelings. So, what is this going to mean for heated political debate, especially online, or a comedian telling an edgy joke, or somebody getting frustrated and posting something, or leaving a comment in a Facebook group? The risk is what lawyers call a chilling effect, where people become too scared to debate and discuss controversial topics at all, fearing that their words are going to be misinterpreted, or more likely still, maliciously reported. And remember, this isn't about what the the person who made the post intended. It's about what somebody in that group might feel in terms of being threatened or harassed or intimidated. So, there's a real risk here that people's words may be misinterpreted, but that may cause somebody from that group to feel as if they're the victim of hatred. That's the offense.
Now, the second major problem is a glaring omission in the law. And this is why bills shouldn't be rushed. They need to be taken very seriously because once something's a law, it's a law. While the bill criminalizes hatred based on race, it fails to extend to people being targeted for their religion, which is extremely odd, considering the basis the government has given us for these laws. This has been highlighted by numerous organizations. But the response that the government ministers have given to this very reasonable question as to why it's been left out was that they are open to extending the protections, but not until after this bill passes, and they're not going to include it for now. And even more controversially, the bill contains a specific exemption for quoting religious texts. The draft states that the laws don't apply if you're directly quoting from or otherwise referencing a religious text for the purpose of religious teaching or discussion. Government officials describe this as a very narrow and specific defense. But critics, including the Executive Council of Australian Jewry, warned that this is an outdated concept that could provide a loophole for extremists to legally discriminate and hate, which again, this bill was meant to stop. Could a professor be investigated for controversial speech on race, while someone using ancient text to promote division is legally protected? And if so, why are we doing this at all?
So, let's translate this into real-world impacts on you, your career, and potentially your visa. First, your online life. We all say things in the heat of the moment. Everyone does. Imagine you're in an online debate about a sensitive political topic. You post an angry, sarcastic comment, and someone reports it because they're annoyed with you for having a different view, which again, is the chilling effect. Under these new laws, that comment could be investigated as a Commonwealth crime. Meaning, no matter where you are in the country, it's a crime. And you got to remember that there are other forms of liability that may arise, too. Social media companies will feel compelled to over-censor their content to avoid liability. Meaning, it is entirely possible that your post will be referred to the authorities, if not by the person that disagrees with you, by the social media company.
Second, your job. A casual remark at work, a joke in a team chat, or sharing a political opinion that a colleague finds offensive, if it touches on race or ethnic origin, it could be interpreted as promoting hatred. And an accusation under this new Commonwealth legislation is significantly more serious than HR. In fact, HR may even trigger a police investigation. So you got to remember, this isn't just like person by person. This is organization, person, company, work, online. It is everywhere, and it affects all Australians because it's a Commonwealth offense.
And third, if you're watching this and you're not a citizen, the stakes are even higher. As if that was possible, but they are. Schedule two of the bill expands the government's power to refuse or cancel a visa. The Home Affairs Minister, Tony Burke, indicated the law means that racial bigotry alone is grounds for visa refusal or cancellation, suggesting that a criminal conviction isn't even necessary. And it's entirely possible that a few old, controversial social media posts may be enough to have you removed from the country or denied entry. We all thought the US was going mad when they were denying entry over what people posted online. And now we're doing the same thing.
And finally, let's talk about the National Gun Buyback and stricter background checks directly impacting legal firearm ownership. Now, one of the big things that people don't realize is, before any of this new legislation came into effect, and this is already in effect what I'm about to talk about, if the firearms registry, which is run by the New South Wales Police Force in New South Wales, says that they aren't of the view that you are safe to have a firearm, then they revoke it, and you don't have a firearm. But you could appeal it to ENCAT, which was an independent body that sat on top of the decision the firearms registry made. Not now. So, the police can now refuse anybody, uh, or remove anybody's ability to have firearms, even if they've had them for 18 years. And there's nothing you can do. You can't go to somebody else and say that's unreasonable. You have to go to the original decision maker and say, "This is unreasonable." And how do you think that's going to work? Well, I can tell you, because I've had this happen to five clients in the last two weeks. It works like this. They say, "You had the SADs uh six months ago, and we think that you are mentally unstable. We don't have any evidence for that, but we don't need it because you can't appeal the decision." And guess what? That's it. You know what else? They can't appeal it. We've tried. We we lodged it before the beginning of this year, and ENCAT removed it. They withdrew it for us. So, these are real effects. But I digress. We get back to the National Gun Buyback. Again, the big issue here is that there's been no chance for people to discuss this or put submissions on. 48 hours for a document like this is just insulting to people who are affected by it. And the people who are affected by it are all of us.
So, when you put all the pieces together, we have a law born from a real tragedy, but being pushed through Parliament at lightning speed. It uses vague language that could stifle important public debate. And it creates new federal crimes that have significant penalties. It also contains questionable exemptions that somewhere will protect the very extremists that it claims to target. Again, this is why you don't rush things. The government is calling these the toughest hate speech laws Australia has ever seen. But tough is not the same thing as smart or fair. In fact, often it's the opposite. The best defense against a bad set of laws is an informed public. And you now understand what's actually in the bill beyond the news sound bites. But unfortunately, the window for public debate is closed. Parliament's being recalled early to pass it. So realistically, there's nothing any of us can do at this point. But if you believe it's vital for people to understand the full scope of these changes, and it is, because if you don't know what the law says, you can still commit an offense, and you can't rely on ignorance. Share this video, send it to a friend, post it in a group chat, get the message out so people know what's coming. The more people who understand what is at stake, the more pressure there will be on our leaders to get this right. The government says this is about making Australia safer, but we have to ask. And they must answer, "Where do we draw the line between safety and silence?"