Submission to the Victorian State Government's proposed Anti-Vilification Protections
11 October 2024
The Libertarian Party, Victoria welcomes the opportunity to make another submission on the proposed changes to anti-vilification legislation in Victoria.
It has been more than 5 years since proposed changes to the Racial and Religious Tolerance Act (2001) and the Equal Opportunity Act (2010) were referred to a Parliamentary Committee. That Committee tabled its report on 3rd March 2021 and the Government formally responded on 2nd September 2021. The Government supported most of the recommendations either in full or in principle. Since this process began in 2019 there have been many changes and developments both domestically and internationally, with laws being proposed, withdrawn or implemented in several jurisdictions and prosecutions or investigations which provide insight into how these laws function in comparable jurisdictions.
NEW ZEALAND
In 2021 proposals for new “Hate Speech” laws were announced. This was a commitment in response to the Christchurch massacre and proposed expanding civil protections in a similar way to the laws proposed here in Victoria. In a public consultation over 19,000 submissions were received, mostly in opposition to the proposals. During face-to-face consultations there was more support for strengthening the laws. But there were also concerns expressed that definitions were too vague, that thresholds were too low and would capture the wrong behaviour, or that these kinds of laws aren’t the most effective way to combat harmful behaviour.
The Ardern Government referred the proposal to the Law Reform Commission for further consideration. Early this year Justice Minister Paul Goldsmith from the new Government instructed the Law Reform Commission to cease work on the “Hate Speech” Laws.
SCOTLAND
Scotland passed the Hate Crime Act in 2021 after a robust debate and public consultation period. During the ongoing debate and public consultation process of the bills passage through the Scottish Parliament it was significantly amended from the original proposal. This included a proposed section similar to the current proposal for a “reckless” provision for capturing behaviour that may be unintentional. Even after the passage of the Bill it took several years to commence operation, partly due to concerns about adequate police training on implementing complex laws.
The Act has been operational since early 2024 and at the time of writing 468 charges from April to September have resulted in some form of prosecutorial action, with 42 convictions recorded so far. There is still criticism however, with Police Scotland publicly committing to investigate all Hate Crime reports, while also announcing that they will no longer investigate low level crime, including some cases of theft.
IRELAND
In late September 2024 Irish Justice Minister Helen McEntee announced that the Government would not be proceeding with the “Hate Speech” element of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. Instead, the Government intends to proceed with laws that would create an aggravated offence for violent crime targeting people due to their race or origin. The laws were originally proposed to create an incitement offence for a range of characteristics with potential prison time of 5 years for serious offences similar to the ones proposed in Victoria. In announcing the changes, the Justice Minister stated that they had been unable to gain consensus for the legislation.
CANADA
The Canadian Parliament is currently considering Bill C-63, the Online Harms Act. While one section of the bill related to protecting children online is mostly uncontroversial, other sections of the Bill have created significant controversy and opposition. As with the Scottish laws, there is criticism that front line policing is under-resourced to deal with increases in crime, while the Parliamentary Budget Office has estimated that the new bureaucracy created by the laws will cost over $200 million.
While there are similar issues with parts of the Bill to other examples discussed, it also has a section related to creating “peace bonds” where a person can make an accusation that they reasonably believe that someone may commit a hate speech violation. The Bill would empower authorities to search a person’s computer and house and impose a sanction, such as house arrest, all without finding a person guilty of a crime. The opposition has pledged to repeal the legislation if it passes and they form the next government, and several legal scholars have expressed the opinion that they don’t believe it will have a strong deterrent effect on the targeted behaviour.
UNITED STATES OF AMERICA
The Foundation for Individual Rights and Expression (FIRE), a free speech advocacy organisation have commenced legal proceedings to halt the enforcement of New Yorks Online Hate Speech Act, arguing that it forces websites to serve as the state’s mouthpiece and stifles robust discussion on the internet about important political and cultural topics. Permitting this law to take effect would encourage New York and other states to demand websites engage in the systemic chilling of various protected viewpoints — including speech for or against religion, Black Lives Matter, trans rights, or any other topic. While the robust protections for speech and expression in the USA suggest that FIRE may be successful, it is indicative of a global trend towards limiting speech, particularly online speech.
These examples demonstrate that within all similar jurisdictions to Australia these kinds of laws have been controversial and, in some cases, have failed to gather the necessary support to be passed or implemented. In the countries where the laws have passed through their legislative process or they are likely to, in most examples they have been significantly amended through the public consultation or legislative process.
CASES AND EXAMPLES
While it commenced well before the Victorian Government began consideration of anti-vilification legislation the case of Canadian comedian Mike Ward concluded in late 2021. This case relates to jokes that referenced child singer Jeremy Gabriel’s disability. In a split 5-4 decision in the Canadian Supreme Court, they found that Mr Ward had not breached the Quebec Charter of Human Rights. It took 11 years and three courts to determine that jokes, especially when told on stage by professional comedians, are indeed simply jokes. The close decision also demonstrates that neither politicians nor courts can easily navigate where the line is between distasteful or unlawful speech.
Here in Australia comedian and Youtuber Isaac Butterfield faced a similar situation with the Queensland Human Rights Commission dropping their complaint earlier this year over jokes that Mr Butterfield told on stage and shared a video of to TikTok. The Queensland Human Rights Commission commenced an investigation based on the complaint of one person, who was not in the audience at the show.
Acting on the recommendations from the Inquiry into anti-vilification protections the Victorian Government implemented a ban on the Nazi Hakenkreuz in 2022 and a ban on Nazi gestures, or the “Nazi Salute/Roman Salute” in 2023. During debate David Limbrick MLC from the Libertarian Party predicted that the laws would be ineffective as they would either lead to no prosecutions, or more likely, that they would create a martyr, while not doing anything to combat Nazi ideology or promote community cohesion.
This week Jacob Hersant was found guilty of performing the banned salute within weeks of the law coming into effect with the Magistrate indicating that he will likely spend time in prison. Far from deterring self-described nazis, they are actively using it as a recruitment tool and have simply adapted different symbols and methods. Quoted upon passage of the laws Dvir Abramovich, chair of the Anti-Defamation Commission who had pushed for the laws stated, “Tomorrow Victorians will now wake up to a better, stronger and more tolerant state and should be proud of their efforts in stemming the rising tide of neo-nazism.” Suggesting that Victoria has become a more tolerant state, or that antisemitism has reduced over the past year would be a very curious assertion to make given the weekly protests and cultural tensions regularly displayed on the streets over the past year.
The federal Government implemented similar laws, which were slightly broader and recently referenced in regard to people flying the flag of proscribed terrorist organisation Hizballah. While publicity surrounding investigations of people for flying the flag may have reduced or prevented people flying the flag, it had no impact at all on people marching with images of former leader Hassan Nasrallah, or flags that resembled the colours or imagery of the Hizballah flag.
This week Sydney restaurateur Alan Yazbek has been charged with knowingly displaying a Nazi symbol in public after attending a pro-Palestine rally with a sign that had a swastika in place of the Star of David and the words “Stop Nazi Israel”. While people will likely have strong views about this display, it’s hard to see how a prosecution will limit or prevent hateful conduct or promote community cohesion.
The UK also provides useful insights into the challenges of legislating and enforcing restrictions on speech and expression. This is evident from the dystopian examples of people being investigated for “non-crime hate incidents” where many examples show police approaching people for posting sarcastic jokes, images or mildly controversial comments. While it is from 6 years ago, a teenager who posted rap lyrics in tribute to a boy who died in a car crash was dragged before court and given a community order. Other examples highlight people expressing genuine political beliefs, or jokes and being visited by police and put on a list despite not being found guilty of any crime.
The recent protests have led to some people being convicted and receiving prison sentences for public comments that may be considered legitimate incitement to violence. Others have received prison sentences for what might be described as “robust political speech”. Determining where this line is will always be a challenge and it may be close to impossible to detach the implementation from the political and cultural biases of the day, or reactive prosecutions related to heightened sensitivities during a crisis or disruptive event.
PROPOSED CHANGES TO ANTI-VILIFICATION PROTECTIONS IN VICTORIA
While the Libertarian Party Victoria is opposed to the changes in general and holds free speech and free expression to be the cornerstone of a healthy democracy, we will make comment on some of the specific elements of the proposed changes.
SERIOUS VILIFICATION
In the proposed wording for the serious vilification offences, it lists, serious contempt, revulsion towards or severe ridicule of a group on the grounds of a protected attribute, such as race, sex, gender identity etc. In many circumstances this simply amounts to an updated version of old blasphemy laws which incorporates what some consider the new “secular religion” of modern identity politics. Given the proposed exemptions this will likely result in a tangled mess for courts and other authorities to interpret and in the instance of a criminal case, will likely have the result of amplifying the conduct and initiating a public debate on the appropriateness. Rather than achieving the intended outcome it may actually result in the opposite.
For the threat offence this behaviour is already sufficiently covered by sections 80.2a and section 80.2b of the Australian Criminal Code and other legal mechanisms.
Under section 5.2.4 of the consultation document, it states; “It is proposed that the law would also clarify that when a person outside of Victoria vilifies a person in Victoria, the person making the threat can be investigated and prosecuted for the offence.”
This seems to mirror the embarrassing legal failure of the Australian E-Safety Commissioner in attempting to become the global internet police. It also reveals both the challenge and likely the futility of these laws. If passed, Victoria’s anti-vilification laws won’t stop someone from experiencing exactly the same kind of content posted online from anywhere else in the world.
“GENUINE” PUBLIC INTEREST
It is proposed that the defence be amended to incorporate the word “genuine” into the public interest defence. This is a very vague and problematic definition. Who is to determine what is “genuine”? Many libertarians would consider it in the public interest to incite severe revulsion, contempt and ridicule of socialists, indeed some may consider it a moral duty.
We note that in the previously published consultation report included a suggestion from a participant that an additional exemption be added for conduct in opposition to fascism and Nazism. As we consider socialism and communism to be equally destructive collectivist ideologies, we would also include them. While this is one narrow example, these kinds of ideological divisions exist all throughout society in many areas. One person’s genuine public interest is another person’s harmful hate speech. This is what robust public discussion and politics is for.
Of the proposed remedies at VCAT, removing the public apology and implementing policy or training provisions should be reconsidered. A Maoist struggle session is not likely to lead to a genuine outcome. There could be nothing more disingenuous than a court ordered apology, and if a person has reflected on behaviour and wishes to change it they wouldn’t need a court to force this action on them. It’s equally likely that any court ordered training may be recorded and leaked to ridicule the experience as has happened in Canada and the UK for either compelled or voluntary training related to diversity, equity, and inclusion.
SUMMARY
Since the initial parliamentary inquiry there have been many international developments, including several countries that have shelved plans for similar laws. Here in Victoria, we have experienced more than weekly protests in support of Gaza and Palestine. Some groups that cooperated, or at least were unified in their calls for these legal protections will no longer be present in the same room with each other, let alone cooperate on any plans for community cohesion or de-escalation of tensions. It’s likely that they will utilise the first opportunity to make accusations of vilification of the other side.
Will the common chants of “all Zionists are terrorists” or “there is only one solution, intifada revolution” be considered vilification? Would an Australian Jew who expressed enthusiastic support for the IDF operations in Gaza or Lebanon be in trouble? Whether or not they crossed the line under the proposed new laws, it is almost certain that many accusations and reports will be made. Any prosecutions, particularly under the proposed criminal offences are hardly likely to reduce tensions or decrease the behaviour.
There are always complex questions that people consider about how our country and society is structured, what behaviour and actions should be considered immoral or illegal and what ideas are worthy of respect. This necessarily involves robust public discussion. A neutral application of these proposed laws is likely impossible, but if it were to occur, men’s rights activists could make applications that they had been vilified by certain feminists, white supremacists may make complaints that certain progressive activists or academics had vilified them on the basis of race. It is a recipe for chaos.
It is also likely to be counterproductive. Marcus Meechan, known online as Count Dankula was found guilty of committing a “grossly offensive” act under the Communications Act 2003 by a Scottish court in 2018. This resulted from a video he posted to YouTube to a small following in 2016 where he taught his girlfriends small dog to do a nazi salute. While many Jewish people reasonably found this to be incredibly offensive, the result of the prosecution was Meechan raising almost £186,000 for his legal defence, the case receiving global coverage, discussions in UK parliament and millions more people seeing the video. Rather than any kind of reflection, Meechan was elevated into prominence and gained enough popularity to become a professional Youtuber.
PREDICTIONS
As the laws seem likely to pass, we will conclude by making a few predictions:
- The laws will be used against people that supported their implementation and they will be surprised by this.
- There will be at least one case similar to Meechan’s where the “Streisand” effect amplifies the behaviour to more people who support the person, creating a “sympathetic martyr”.
- Victoria Police will struggle with enforcement and cases may be dismissed due to challenges proving subjective elements.
- The implementation of the laws will spur growth of a more robust free speech movement in Victoria/Australia (thanks 😊)