Sussan Ley remains ‘surprisingly strong’ in stance against Labor’s hate speech laws

Key Concepts

• Hate Speech Laws (Albanese Government): Proposed federal legislation aiming to suppress hate speech, particularly targeting race and Jew hatred.
• Religious Text Defense/Carveout: A provision within the proposed bill allowing religious leaders to potentially justify hate speech by referencing religious texts.
• Incitement to Hate vs. Incitement to Violence: The debate over the legal criterion for defining hate speech – whether it should be based on inciting hatred or inciting violence.
• Section 18C of the Racial Discrimination Act: Existing legislation concerning racial vilification, used as a point of comparison for the proposed hate speech laws.
• Villification: The act of speaking or writing abusively about someone or something.
• Subjective vs. Objective Standards: The discussion around whether the test for liability should be based on the perception of the targeted group (subjective) or the general community (objective).

Flaws in the Proposed Hate Speech Legislation

Chris Merritt outlines significant concerns regarding the Albanese government’s proposed hate speech laws, arguing that the inclusion of a “religious text defense” will ultimately undermine the bill’s intended purpose. He contends that rather than suppressing hate speech, the defense will effectively validate the actions of religious leaders who promote racial hatred, specifically targeting Jews, by providing a legal justification rooted in religious texts. He states, “unless the so-called religious text defense is dropped… it will undermine the overall legitimate purpose of the bill, which is to suppress the promotion of hate speech.”

The Religious Carveout as a "How-To Guide"

Merritt argues the religious carveout will function as a “how-to guide” for hate preachers. By allowing religious leaders to cite texts as justification, the government would be implicitly endorsing such behavior. This, he believes, would hinder efforts by reasonable members of the Muslim community to challenge extremist views within their own communities, removing a potential avenue for internal pressure. He emphasizes that removing the defense would dramatically alter the bill’s effectiveness, stating, “without the defense a completely different story.”

Copying a Flawed NSW Model

The current bill, according to Merritt, is a rushed and problematic replication of a New South Wales law enacted in February of the previous year. He points to warnings from former Chief Justice of New South Wales, Tom Bathurst, who cautioned against using “incitement to hate” as the criterion for criminal law. Bathurst advocated for a more traditional approach based on “incitement to violence.” The NSW government disregarded these concerns, and the federal government has seemingly repeated this mistake. Merritt has previously expressed his misgivings about the NSW approach in The Australian, predicting the current issues with the federal bill.

Concerns Regarding the Test for Liability (Villification)

Beyond the religious carveout, Merritt raises separate concerns about the test for determining liability for vilification. He believes the proposed test is too similar to Section 18C of the Racial Discrimination Act, which relies on the assessment of a “reasonable member of the group” targeted by the hate speech. He argues this is overly subjective. He advocates for a test based on the standards of the “general community,” asserting that criminal law should not be determined by the perceptions of a specific group, but rather by broader societal norms. He states the current test is “problematic.”

Susan Lee’s Remarks and the Bill’s Future

Merritt notes the surprisingly strong criticism leveled by Susan Lee regarding the bill, indicating a growing awareness of its flaws. He believes the bill requires significant redrafting and acknowledges that its swift enactment is unlikely. He suggests the only potential path forward lies in a deal with the Greens, but warns that such a compromise could potentially worsen the legislation, stating, “God forbid, it could make it even worse if that were to happen.”

Incitement to Hate vs. Incitement to Violence – A Core Debate

The discussion highlights a fundamental debate in legal definitions of harmful speech. The NSW and now federal government’s approach focuses on incitement to hate, while Bathurst argued for the more established legal principle of incitement to violence. Merritt implicitly supports Bathurst’s position, suggesting that focusing on violence provides a clearer and more legally sound basis for criminal prosecution.

Synthesis/Conclusion

The proposed hate speech laws, as currently drafted, are deeply flawed according to Chris Merritt. The inclusion of the religious text defense is seen as counterproductive, potentially legitimizing hate speech rather than suppressing it. Furthermore, the bill’s reliance on a subjective standard for determining liability and its origins in a problematic NSW law raise serious concerns about its effectiveness and potential for unintended consequences. A significant redrafting, and the removal of the religious carveout, are deemed essential for the legislation to achieve its stated goals.