Those who value freedom of speech will be relieved that the Victorian government’s attempt to pass its anti-vilification legislation has been stymied in the state’s upper house – for now.
The reforms, pursued since 2019, sought to enshrine cancel culture in Victorian law. At the very moment when social cohesion is disintegrating across the nation, the Allan government’s proposed bill would have handed a sword to activists wanting to target those with whom they disagree.
Strange bedfellows came together to block the passage of the law that would have given some Victorians a special right to complain against others for speech they considered to be ‘hateful’ towards them based on certain traits, including gender identity and sexuality.
Groups across the political spectrum have spoken out against the bill. So too, many faith groups, Jews, Muslims, and Christians, LGBTQ advocates, and women’s rights groups. In Parliament, the state government was unable to secure the support of the Coalition, which took a principled stand against the bill on the grounds the changes went too far, and the Greens, which claimed it did not go far enough.
It should come as no surprise that the bill has proven so divisive. It was a dangerous and draconian proposal. The new standards of unlawful speech were subjective, and as ‘hateful’ was never defined in the legislation, it would have been open to endless (and expensive) interpretation by lawyers and bureaucrats. This would have seen people punished for breaching the law without their ever knowing such speech was illegal.
Liberal upper house MP, Evan Mulholland, made the point during the debate, ‘As analysis by the IPA has found, there is no way for a Victorian expressing a genuinely held political, religious or personal belief to know what a potential complaint could be considered “hateful” towards them.’
The Allan government amended the legislation in an attempt to gain sufficient support to get it through the upper house. Yet, much of the debate in recent weeks centred on the ‘political purpose defence’ which, while included in an earlier draft of the bill, was later removed due to the belief in many quarters that it would ‘green light’ antisemitism. While the Coalition fought to remove it, the Greens demanded it be put back in.
As Institute of Public Affairs’ research found, the political purpose defence was a minor part of the bill that was only applicable to the criminal vilification provisions. The more far-reaching provisions of the bill, namely the shockingly low threshold for unlawful speech in its civil provisions, remained untouched.
Similarly, amendments intended to allay concerns over limitations placed on religious expression were exposed as too weak to shield Victorians of faith from lawfare. They would still have been dragged before the courts to explain why their genuinely held beliefs were not ‘hateful’.
Both amendments would have done nothing to fix a bill that was rotten to the core. At the end of the day any Victorian politician hoping to ‘fix’ the Allan government’s anti-vilification bill needs to understand the proposed changes were – and are – an assault on freedom of speech, no matter how you present it.
Any legislation that endows certain individuals with the right to haul others before bodies such as the Victorian Equal Opportunity and Human Rights Commission for mere speech and opinion they disagree with is not salvageable.
That such a law made it before the parliament is concerning enough. The Allan government should abandon this legislation once and for all.
Margaret Chambers is a research fellow at the Institute of Public Affairs
