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The government has abandoned a push to create new offences for inciting racial hatred as part of its planned reforms in the wake of the Bondi terror attack.
An omnibus bill, to be debated in parliament this week, initially proposed criminalising the incitement of hatred towards another person or group on the grounds of race, colour, or national or ethnic origin.
But on Saturday, Prime Minister Anthony Albanese announced that the racial vilification measures had been dropped from the bill as it was clear they did not have the support needed to pass the Senate.
Both the Coalition and the Greens raised objections to the bill last week, including the racial vilification provisions, foreshadowing an uphill battle the government would have faced to get them over the line.
Measures still to be debated when the bill is introduced include strengthening penalties against people who threaten violence against protected groups, proscribing hate groups, and giving the home affairs minister more powers to cancel or refuse visas.
A leading constitutional expert, Anne Twomey, drew a parallel last week between Albanese’s bid to pass the racial vilification provisions and former Labor prime minister Paul Keating’s failed attempt over 30 years ago, outlining the opposition it faced from the Coalition and the Western Australian Greens at the time.
Albanese has continued “constructive negotiations” and has urged the Coalition to list its demands as he tries to secure bipartisan support for the measures.
“The parties of government should be supporting this across the board, and we’ve said that if you have ideas for changes, please put them forward,” he told reporters on Friday.
Albanese also used the weekend press conference to confirm that the sweeping bill would be split into two, with reforms to gun laws — including extra security checks for people obtaining firearms, and establishing a national gun buyback scheme — being introduced as their own separate bill.
The Greens announced on Saturday their willingness to back the proposed gun law changes, though they remain opposed to other segments of the bill as it stands.
The suite of laws is a response to the Bondi terror attack last month, when two gunmen — who police allege were father and son Sajid and Naveed Akram — opened fire near a Hanukkah event, killing 15 people.
Since the draft was released last week, the government has faced backlash about potential unintended consequences of the complex legislation, including criticisms from the Greens that visas could be rejected without “even the pretence of fair process” and the expansion of the criminal code could stifle protest and debate.
Luke McNamara, professor in the Faculty of Law and Justice at the University of NSW, said he thought the making of new laws “should be the end of an investigation process, not the beginning”.
Experts have advised caution regarding swift alterations to criminal legislation, emphasizing the risk these may pose to free speech.
Back in 1995, the Keating Labor administration attempted to pass a law aimed at criminalizing the incitement of racial hatred. However, this measure was thwarted in the Senate by a coalition of the Liberal party and the Western Australian Greens.
“In reality, it would likely create more division than it would resolve, which was the primary reason the Greens resisted it at the time,” explained a spokesperson.
Twomey, one of Australia’s leading constitutional experts, said the abandoned racial incitement offences were not unprecedented, and had been rejected in a similar form before.
In 1995, the Keating government tried to introduce a criminal provision about racial hatred, but was “knocked down” by both the Coalition and Western Australian Greens in the Senate, who objected on free speech grounds.
“That kind of legislation was not going to be effective in terms of supporting social cohesion,” Twomey told SBS News last week, before Albanese announced that the provision was dropped.
“In fact, it would actually make more division than it would heal division, and that was the reason the Greens were particularly opposed to it back then.”
Stop hate speech or harm free speech?
Twomey said the now-abandoned criminal offence could have restricted communication about “things that may be absolutely true and correct”.
“It’s not clear to me why criminal charges and putting people in jail is actually needed, and whether or not that would be better in terms of trying to get rid of racial hatred and create community cohesion,” she said.
“We do need to discuss events that happen in the community, even if they do potentially cause some people wrongly to be prejudiced or express hatred against particular groups.”
McNamara believes “we overstate the capacity of the criminal law to solve social problems, including questions of racism and social cohesion”.
While law plays an important role, to deter as well as educate, McNamara doesn’t think reaching for criminal law is always “the right tool”, as he says it fails to address underlying issues.
“I don’t think we can expect … the creation of a new criminal offence to somehow, you know, magically do away with racism or indeed, other forms of bias, including Islamophobia or transphobia,” he said last week.
He also highlighted that the offence would have carried a very high threshold for prosecution.
“So in criminal law terms, that’s a subjective fault element, you must prove that person actually intended to have that effect,” he said.
Keiran Hardy, a professor of criminology at Griffith University, said he understood community concerns about how these laws could have been used, given that the legislation provided no examples.
He told SBS News last week that we were already “seeing the temperature rising”, particularly as people debate the regulation of speech.
“These laws, fundamentally designed to reduce the temperature of racial hatred and debate … are contributing to a very heightened threat environment,” he said.
Government urged to pause and reset
McNamara argued the government should take its time when considering moving forward.
He said Victoria provided a blueprint, after revamping civil and criminal hate speech laws in 2024, following years of evidence-seeking, committees and expert consultation.
“We need to address all forms of hatred, whether it’s based on race, religion, disability, sexuality, or gender; we should be concerned about the relationship between hate speech and harm,” he said.
“I think there’s an opportunity here for the government to pause and engage in a wide-ranging, calm, measured evidence-gathering and consultation process,” McNamara said.
“We have deep concerns about the bill’s impact on religious freedom and freedom of expression,” they wrote on Friday.
Michael Stead, an Anglican bishop from south Sydney who headed the letter, said it’s important faith leaders come together to protect religious freedom.
“These kinds of overreaching hate speech laws end up pitting communities against each other because it ends up becoming a criminal offence to make truth claims of my religion against your religion,” he told SBS News.
“But this isn’t how we build social cohesion by asking the law to be a policeman on whose religion is better, whose religion is right.”
The Executive Council of Australian Jewry, however, said it was disappointed at the removal of the vilification offence, arguing it sent a message that “deliberate promotion of racial hatred is not considered serious enough to be criminalised”.
“We exhort the major parties to work together to get legislation passed now that will advance us further down the road towards having effective laws against the deliberate promotion of racial hatred,” co-chief executive Peter Wertheim said.
Despite Labor’s backdown on racial vilification offences, the Opposition has yet to lend its support to the rest of the hate speech measures. Last week, Opposition leader Sussan Ley called the bill “unsalvageable”.
What about preventing another Bondi?
McNamara said until the royal commission into antisemitism wraps up, it is “very premature to make any assumption that our existing hate speech laws were inadequate”, and were related to the actions of the two men in Bondi.
Hardy, a counter-terrorism expert, said the hate speech laws would have addressed “the climate in which” attacks like the Bondi terror attack took place.
He praised proposed firearms controls and the Richardson review into federal agencies’ response, saying such measures would be more directly relevant to preventing another attack like the Bondi massacre.
He said criminal offences had historically dominated the approach to counter-terrorism, but he would like to see community-based programs, which often play second fiddle, take prominence.
“I do think that prevention in the non-legal space, by the education programs and grants programs for improving social cohesion, all that kind of stuff is crucial.”
— With additional reporting by Naveen Razik and the Australian Associated Press.