While the federal Misinformation and Disinformation Bill has been abandoned, planned new Victorian anti-hate speech laws will widen the net of draconian federal, state, and territory laws crushing freedom of speech in Australia.
After a massive outcry and much lobbying – of Coalition, independent, minor party and Greens’ senators – federal Communications Minister Michelle Rowland confirmed on November 24 that the Misinformation and Disinformation Bill was dead.
The bill represented the fourth failure by Federal Labor to tighten the screws on freedom of speech and freedom of religion during the term of the Albanese government.
Earlier, radical changes to the Sex Discrimination Act to remove exemptions for faith-based schools failed to gain the support from either party.
Those exemptions are the most important shield protecting the right of religious schools to teach their moral and religious principles on the nature of sex, sexual behaviour, and the natural family. Without those exemptions, religious schools would be forced to employ staff and enrol students who actively oppose the ethical principles of the school.
At the same time, support failed for the accompanying religious anti-discrimination legislation.
There was also a promised new federal anti-vilification legislation. As there was widespread scepticism, concern, and opposition from the start, no such bill eventuated.
Instead, an anti-vilification clause was inserted into the Misinformation and Disinformation Bill, which is now also dead.
The bill had no definition of vilification. Instead, the bill’s explanatory memorandum said that the meaning of vilification would be drawn from existing federal, state and territory legislation. Those definitions are set out below represent grotesque limitations on freedom of speech.
Expanding matrix
These form an expanding matrix of state and territory anti-vilification laws operating in four ways to cut away at freedom of speech and freedom of religion.
First, the range of protected attributes has been expanding well beyond race to include sexual orientation and gender identity (SOGI).
Most controversial are the laws giving protected attribute status to a person’s gender identity, which is based on the highly contested idea that sex and gender are fluid and changeable.
These laws bring the sex-based rights of girls (that is, their right to access female-only sports, showers, change rooms, toilets, schools, etc.) into conflict with the transgender-based rights of biological males who identify as female and claim the right to access female sports and safe spaces.
More widely, these SOGI laws bring the state into conflict with those who hold to the biological worldview of sex being immutable and natural marriage being between a man and a woman. In particular, these laws attack the inherent right of religious people and faith-based organisations to express and manifest their religious beliefs (and scientific understanding) about the nature of sex.
Second, these conflicts are amplified when a low bar is set for a discrimination or vilification complaint.
The lowest bar for vilification (until now) was set in 1975 in the Racial Discrimination Act (RDA). For an offence, it only had to be shown that a person was ‘reasonably likely’ to have offended or insulted the person because of their race. All three terms – ‘reasonably likely’, ‘offend’, ‘insult’– are highly subjective. In contrast, other vilification laws are set at a higher bar, at threats of force or incitement to hatred or violence.
Yet the RDA became the ‘gold standard’ for activists determined to expand anti-discrimination and anti-hate speech laws to impose on society their worldview on human sexuality. This ‘gold standard’ definition of vilification appears in Tasmanian and Northern Territory legislation.
Third, in the recently amended Queensland law, and in proposed new Victoria legislation, determining whether an offence has occurred will be based on how ‘a reasonable person’ with the protected attribute would judge and act in the case of possible vilification.
Incredibly, ‘a reasonable person’ is narrowed down to being a person from the same identity group (that is, persons with the same protected attribute as the aggrieved person). So, presumably, drag queens will in some way determine whether a drag queen has been offended or insulted by another person; or Catholics only will somehow determine whether Catholics have suffered religious vilification. Is that not a very subjective test to establish grounds for a complaint?
Fourth, increasingly, it is not required to show that harm actually occurred, as demonstrate in the RDA and NT Anti-Discrimination Act 1992. Victoria’s new anti-vilification bill only requires that an act is ‘reasonably likely … to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the other person or group of persons’ not that an accused person’s conduct actually incites hate, contempt or sever ridicule.
While the federal Misinformation and Disinformation Bill is now dead, state and territory governments are using ‘salami’ tactics to amend laws such that they undermine basic human freedoms.
These laws invite endless lawfare, and the fear of prosecution exerts a crushing and silencing effect on freedom of speech and religion, which are the foundation stones of a true democracy.
It could be asked: why are current laws against incitement to or threats of violence, assault, property damage, and disturbance of public order not being enforced rather than a plethora of new laws being introduced?
Patrick J. Byrne is a former national president of the National Civic Council
