The Bill to Combat Antisemitism, Hate and Extremism risks undermining rights, due process and democratic accountability. These are the first stages of tyranny, says human rights lawyer Greg Barns.
The Bill was rushed through federal parliament last week with minimal scrutiny and major rule-of-law flaws, including vague definitions, retrospective reach and expanded executive powers.
The ever-relevant English politician, lawyer and political philosopher Edmund Burke told his constituents in Bristol, nearly 250 years ago, “Bad laws are the worst sort of tyranny.” How right he was then and how right he is now.
And tyranny is not too strong a word to use about this shoddy, appallingly drafted, and dangerous piece of legislation. Legislation that has all the hallmarks of being dictated by power-hungry, desperate politicians to overworked parliamentary drafters.
It is posturing by politicians who want to be seen to be ‘doing something’ in the wake of the Bondi massacre, no matter how ill thought out.
You do not undermine the rule of law, create inherently unfair and uncertain laws as a means of enhancing social cohesion and creating a safer society. The opposite occurs.
Fundamentally flawed legislation
Much is problematic with this new law, but let’s focus on the concept of banning organisations, prohibited hate symbol offences, and contentious and elliptical language.
The legislation allows the minister who is responsible for the Australian Federal Police to recommend to the Governor-General that he or she label an organisation a prohibited hate group.
The minister has to be satisfied on reasonable grounds that the organisation proposed to be banned has engaged in, assisted, planned, or advocated in conduct that is a hate crime.
And what is a hate crime? Not only does it include Commonwealth offences, but state offences too. Confused yet?
What is especially troubling is that no conviction for a hate crime is required, and the minister can take into account conduct before this law came into force.
Lack of procedural fairness
But the most troubling aspect is that the minister does not have to accord procedural fairness to the organisation (which, by the way, can be a group that plays social soccer or a formal group with officer holders) he or she proposes to ban.
As the late leading UK judge Tom Bingham put it in his gem of a book, The Rule of Law, one of the elements of procedural fairness is that the person whose interests are affected shall have the right to be heard – a principle that Bingham rightly observed is of great importance.
The powers of executive government in this law are a recipe for the tyranny about which Bourke spoke.
One can imagine ministers with authoritarian or fanatical tendencies (erstwhile Liberal leaders Peter Dutton and Scott Morrison come to mind) misusing this power. Executive government that is unchecked is inherently dangerous.
What is hate speech?
This law says it’s conduct that “involves publicly inciting hatred of another person (the target group) because of the race or national or ethnic origin of the target or target group.”
In many cases, that will not be an issue, but there are examples of where, on one view, it could be said to be a ‘hate’ crime, but on another, not so.
An interesting example is found in the South African context. The song Kill the Boer has been the subject of a number of court decisions over the past couple of decades.
It is a song that Julius Malema and his Economic Freedom Fighters use at rallies. Mr Malema and his supporters point to the fact that the song is an anti-apartheid liberation song and that it speaks to land dispossession. It is not to be taken literally. The Afrikaners see it as hate speech.
In recent years, courts have ruled in Malema’s favour. The latest ruling in 2024 by the Supreme Court of Appeal found that a “reasonably well-informed person” would not view the chant and song literally but as a provocative political chant.
There are many other examples of such contentious phrases.
Prohibited symbols
Then there are the prohibited symbols provisions – designed, no doubt, to attack the highly successful pro-Palestinian protests post October 7.
The Commonwealth Criminal Code already contains offences for displaying prohibited symbols – a swastika is an obvious case in point. However, the new law removes the element of intent. You can now be convicted and jailed for possessing or displaying a prohibited symbol even if you had no knowledge it was prohibited! It is enough that you were reckless.
One can imagine in the heat of a demonstration or rally, you hold a flag with others, or are given a flag to wave for a moment.
Worse still,
the offence reverses the onus of proof.
It is up to the person charged – contrary to the usual rule that you are not obliged to say anything because the onus is on the prosecution to prove its case beyond reasonable doubt – to prove that they are not guilty of the offence by adducing evidence the display or possession was for academic, religious, educational, artistic literary or scientific purposes, and that it was in the public interest.
What public interest?
The addition of the ‘public interest’ is bizarre.
The other purpose that is legitimate is if the display or possession is for a media purpose and in the public interest. This is chilling stuff. One can imagine police raiding journalists or charging them and their editors for
airing stories that police say were not in the public interest.
As equally dangerous is that the media defence only applies to those working in a “professional journalist’s capacity”. Was this inserted by News Limited, the ABC or another media organisation? Why exclude bloggers, Substackers, or those who break stories on social media?
Sacrificing human rights
It is utterly shameful that MPs of the major parties, and some ‘Teals’, supported the process surrounding this law and the law itself. They have shown themselves to be prepared to sacrifice human rights, the rule of law and democracy in
a rush to impose tyrannical laws on the community.
What has happened in this obscene and frightening process over the past week is exactly what the great US Supreme Court judge William O Douglas described.
“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged, and it is in such a twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of darkness.”
This week, we showed that we are in the twilight.
A version of this story originally published by Pearls&Irritations.
Greg Barns is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019).
Greg graduated BA LLB from Monash University in 1984. He has been a member of the Tasmanian Bar since 2003. He is the former National Chair of the Australian Republican Movement and a director of human rights group, Rights Australia. He has written three books on Australian politics, is a Director of the Australian Lawyers Alliance, and a member of the Australian Defence Lawyers Alliance.