ECAJ statement on legislation to combat antisemitism, hate and extremism.

The Executive Council of Aus­trali­an Jewry (ECAJ), today welcomed, with qual­i­fic­a­tions, the tabling of draft legis­la­tion to combat antisemitism, hatred and extremism announced by Prime Minister Anthony Albanese and Attorney-General Michelle Rowland aimed at creating a safer, more unified Australia through more robust anti-hate legis­la­tion.

“The need for such legis­la­tion has been high­lighted not only by the dreadful antisemitic terrorist attack that occurred last month, but also the climate of hatred that preceded it”, said ECAJ co-CEO Peter Wertheim.

For more than 15 years, spurious civil liberties arguments have been used to justify burdening hate speech laws with unne­ces­sary addi­tion­al elements that for all practical purposes have been impossible to prove.

The result has been that people engaged in notorious examples of hate speech have not been held to account. With some of the existing offences, there have been no pro­sec­u­tions at all, let alone con­vic­tions. It is plain that the current hate speech laws are not fit for purpose, and social cohesion has been damaged as a con­sequence.

Overall, the draft legis­la­tion is a sig­ni­fic­ant step in the right direction, but it still suffers some sig­ni­fic­ant short­com­ings which will limit its effect­ive­ness.

A most important and welcome reform is the new serious vili­fic­a­tion offence. A pro­sec­utor will now only need to prove that an accused person has knowingly promoted racial hatred, rather than be required to prove incite­ment of an audience. Many previous hate speech cases failed to result in pro­sec­u­tions because of the impossib­il­ity of proving incite­ment beyond reas­on­able doubt.

However, there are four serious short­com­ings in the way the new serious vili­fic­a­tion offence has been drafted.

Firstly, the offence is limited to the promotion of hatred of others on the basis of their race. Promoting hatred on the basis of other inherent attrib­utes such as gender identity, sexual ori­ent­a­tion, age or dis­ab­il­ity will not be pro­scribed. People who are targeted for hatred on the basis of these other attrib­utes are equally entitled to pro­tec­tion.

Secondly, the proposed offence does not cover instances where a person reck­lessly promotes racial hatred. Past exper­i­ence has shown that requiring proof of intention beyond reas­on­able doubt might be setting the bar too high.

Thirdly, the proposed offence would exempt quoting or ref­er­en­cing religious texts for the purposes of religious teaching. The entire concept of a religious exemption for racial hatred is a relic of outdated thinking. None of the world’s recog­nised religions promotes racial hatred knowingly and delib­er­ately, and to the extent that any religion were to do so, it would be thor­oughly shameful. Invoking religion as an excuse to dehu­man­ise and mistreat others simply on the basis of who they are, must surely be a thing of the past. Religions are at their best when they promote love, under­stand­ing and mutual respect, con­sist­ent with their teachings about the sanctity of human life and the invi­ol­ab­il­ity of human dignity.

Fourthly, the serious vili­fic­a­tion offence will only be estab­lished if a pro­sec­utor can prove that the conduct would put a reas­on­able member of the targeted group in fear for their safety. This require­ment goes beyond what is stip­u­lated in the Inter­na­tion­al Con­ven­tion for the Elim­in­a­tion of All Forms of Racial Dis­crim­in­a­tion, on which the offence is based. Guilt or innocence should be decided solely on the basis of the conduct of the offender; the impact on the victim should be relevant only in determ­in­ing the sentence.

We also commend the Gov­ern­ment for taking action to constrain hate groups, which seek to exploit the freedoms of our demo­crat­ic society in order to undo them. However, the legis­la­tion still has some way to go in recog­nising how such groups currently operate – using informal struc­tures and inter­me­di­ar­ies, and exploit­ing char­it­able, pro­fes­sion­al, digital, financial and community infra­struc­tures and loopholes, to spread hate and sow the seeds of violence. Where such conduct is carried out by those in positions of influence, it must be viewed espe­cially seriously.

We hope that the new laws will be passed and strengthened, and that the scourge of antisemitism, hate and extremism in our society will be neut­ral­ised.