A ‘hate speech’ law for Victoria?
LGB Alliance Australia has written to Brad Battin, leader of the Victorian Opposition, concerning the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024.
The substance of our letter was as follows:
LGB Alliance Australia understands the Opposition is finalising its position on the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024.
We believe the Bill is not fit for purpose in its current form and urge several changes which we believe would deliver better outcomes for the Victorian community.
LGB Alliance Australia holds deep concerns about crimes and other anti-social behaviour directed towards Victorians on the basis of same-sex attraction. Many of our members have endured such experiences.
However, we do not support the Bill in its current form. We call upon the Coalition to champion the following steps:
Reject the current framing of the proposed amendment to the Crimes Act (195N) to create an incitement offence focused on ‘hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons’. Instead, investigate an alternative framing of ‘freedom-restricting harassment’ as advanced in the UK's Khan Review into Threats to Social Cohesion and Democratic Resilience.
Reject the proposed amendments to the Equal Opportunity Act pending further review. We believe a focus on harmful, measurable behaviours would make more sense than the current focus on subjective emotions. We also urge that the definitions of sexual orientation and sex in the EOA be corrected to reflect factual, biological reality.
Appropriately build the capacity of police, courts, and civil dispute-resolution mechanisms to respond promptly and adequately to offences under existing laws.
We make no objection to the proposed amendment to the Crimes Act (section 195O) to create an offence of threatening physical harm or property damage, which seems in line with community sentiment.
Proposals to criminalise ‘hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons’, or to subject such matters to civil disputes, are highly problematic as they revolve around subjective understandings of individuals’ emotions. The proposed changes to the EOA appear to be especially subjective: their definition of hate rests on the perspective of ‘a reasonable person with the protected attribute’.
It is very difficult to see how police, courts and tribunals could handle such cases consistently and fairly – especially given the serious shortages of resourcing evident in Victoria’s justice system at present.
Moreover, we think it is highly likely that such laws will be used by activists for gender self-ID to intimidate, harass and punish LGB people who speak about the reality and importance of biological sex to our own lives. ‘Hate’ laws and systems of ‘non-crime hate incidents’ have already been deployed in exactly this way in various overseas jurisdictions – see our original submission for examples.
It seems likely that the architects of this Bill were aware of such possibilities when they introduced it. The 2024 overview paper about the proposed reforms specified that the new civil measure proposed for the EOA could be deployed against someone for ‘Saying hateful things about a person's gender identity at a public gathering’, which we suspect was intended as a reference to the Let Women Speak rally of March 2023.
The research paper currently displayed on the Victorian Government's website reiterates a reference to ‘the Let Women Speak rally where a neo-Nazi group also attended’. Given the recent Federal Court findings in relation to that event, we find this persistent malicious misrepresentation quite extraordinary.
Rather than attempting to legislate against ‘hate’, we suggest an alternative approach might address widespread community concerns more effectively. In 2024, Dame Sara Khan DBE, Independent Adviser to the UK Government for Social Cohesion and Resilience, published her independent review into social cohesion and resilience in which she raised serious concerns about a rise in what she termed ‘freedom-restricting harassment’: ‘when people experience or witness threatening, intimidatory or abusive harassment online and/or offline which is intended to make people or institutions censor or self-censor out of fear.’ Dame Sara called for an action plan to prevent and address such harassment and improve support to victims.
We find this a highly interesting and useful framing. Unfortunately, it describes an experience many of our members have endured. We suggest a similar framing would make the current Bill more relevant to the many challenges faced by the Victorian community at present.