Bad laws will not stop hate speech, but invoke tyranny

The Combating Antisemitism, Hate and Extremism Bill risks undermining rights, due process and democratic accountability. These are the first stages of persecution, human rights lawyer says Greg Barns.

The bill was rushed through the federal parliament last week with minimal scrutiny and major rule of law flaws, including vague definitions, retroactive access and expanded executive powers.

Edmund Burke, the ever-relevant English politician, lawyer and political philosopher, told his constituents in Bristol nearly 250 years ago: “Bad laws are the worst kind of tyranny.” How right he was then, how right he is now.

And tyranny is not a strong enough word to use about this shoddy, terribly drafted and dangerous legislation. The legislation has all the hallmarks of being dictated to overworked parliamentary drafters by power-hungry and desperate politicians.

This is the attitude of politicians who want to appear to be ‘doing something’ in the wake of the Bondi massacre, no matter how ill-conceived it may have been.

You do not undermine the rule of law and create inherently unjust and unclear laws as a means of increasing social cohesion and creating a safer society. The exact opposite occurs.

Fundamentally flawed legislation

There are many problems with this new law, but let’s focus on the banning of organizations, banned hate symbol crimes, and the concept of contentious and elliptical language.

The legislation allows the minister responsible for the Australian Federal Police to recommend to the Governor-General that he label an organization as a proscribed hate group.

The Minister must be satisfied on reasonable grounds that the organization proposed to be banned has committed, aided, planned or advocated conduct that constitutes a hate crime.

So what is a hate crime? This includes not only Commonwealth offences, but also state offences. Confused yet?

What is particularly troubling is that no conviction is required for hate crime and the minister can take into account behavior before this law came into force.

Lack of procedural fairness

But the most troubling aspect is that the minister is not obliged to provide procedural fairness to the organization he proposes to ban (which, by the way, could be a social football-playing group or an official group with civil servants).

As Tom Bingham, one of the UK’s leading judges, puts it in his valuable book: Rule of LawOne element of procedural justice is that the person whose interests are affected has the right to be heard; This is a principle that Bingham rightly observed.

The powers of the executive government in this law are the recipe for the tyranny that Bourke speaks of.

We can imagine ministers with authoritarian or fanatic tendencies (former Liberal leaders Peter Dutton and Scott Morrison come to mind) abusing this power. Unchecked executive government is inherently dangerous.

What is hate speech?

This law refers to conduct that “involves public incitement of hatred against another person (target group) because of the race or national or ethnic origin of the target or target group.”

In most cases this will not be a problem, but there are examples where in one view it could be said to be a ‘hate’ crime, but in another view it is not.

An interesting example appears in the South African context. song kill the Boer It has been the subject of numerous court decisions over the last few decades.

A song used by Julius Malema and the Economic Freedom Fighters at rallies. Mr. Malema and his supporters point out that the song is an anti-apartheid liberation song and touches on the dispossession of land. It should not be taken literally. Afrikaners see this as hate speech.

In recent years, courts have ruled in Malema’s favor. The Supreme Court of Appeal’s final ruling in 2024 found that a “reasonably informed person” would view the hymn and song as an inflammatory political hymn rather than literally.

There are many other examples of such controversial statements.

“Globalize the intifada.” Banning words is not the way to stop hate

Prohibited symbols

There are also banned symbol provisions, no doubt designed to attack the hugely successful post-October 7 pro-Palestinian protests.

The Commonwealth Criminal Code already includes offenses relating to the display of prohibited symbols; The swastika is a clear example of this. However, the element of intent is eliminated in the new law. You can now be convicted and imprisoned for possessing or displaying a prohibited symbol, even if you don’t know it’s prohibited! Just being careless is enough.

In the heat of a demonstration or rally, you may imagine yourself holding a flag with others or being given a flag to wave for a moment.

Even worse,

crime eliminates the burden of proof.

Contrary to the general rule that you don’t have to say anything, the onus is on the prosecution to prove the case beyond a reasonable doubt – it is up to the accused to prove their innocence by proving that the display or possession was for academic, religious, educational, artistic, literary or scientific purposes and is in the public interest.

What public interest?

It is strange that “public interest” is added to this.

Another legitimate purpose is if the display or possession is for a media purpose and is in the public interest. This is creepy stuff. You can imagine police raiding journalists or charging them and their editors.

publishing stories that police say are not in the public interest.

It is equally dangerous that the media defense is only valid for those working “in the capacity of professional journalists”. Was this added by News Limited, the ABC or another media organisation? Why exclude bloggers, Substackers, or those who share stories on social media?

sacrificing human rights

It is extremely shameful that MPs from major parties and some ‘Teals’ support this legislation and the process surrounding it. They have shown that they are ready to sacrifice human rights, the rule of law and democracy.

rush to impose draconian laws on society.

What happened in this obscene and frightening process last week was exactly what William O Douglas, the great judge of the US Supreme Court, described.

“Since dusk does not come suddenly, pressure does not come. In both cases, there is a twilight in which everything remains seemingly unchanged, and it is such a twilight that we must be most aware of the change in the weather – no matter how small – so that we do not unknowingly become victims of the darkness.”

This week we showed that we are in the twilight.

An originally published version of this story Pearls and Irritations.

Fighting for the right to hate | West Report