The Greens have warned Labor’s newly passed hate speech bill could criminalise reasonable expressions of contempt or ridicule by individuals and groups, and see critics of the government of Israel targeted for prosecution.
The Greens justice spokesperson, David Shoebridge, said rushed amendments – agreed between Labor and the Coalition in the wake of the Bondi terror attacks – represent an unprecedented expansion of political power to ban organisations and criminalise speech based on vague standards.
The prime minister, Anthony Albanese, and the home affairs minister, Tony Burke, rejected the claims on Wednesday, insisting the laws were needed to protect Australians, including members of the Jewish community.
Shoebridge said legitimate criticism of Israel or the country’s prime minister, Benjamin Netanyahu, may be offences, if they cause psychological harm and prompt warnings to the government from intelligence agencies.
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“People don’t realise that the Coalition cut a deal with Labor yesterday that didn’t narrow the scope of this legislation to groups that are promoting violence or breaching the law,” he said.
“The deal the Coalition cut with Labor in the last 24 hours massively expanded it.
“It roped in seven different state laws and said conduct that breaches any of those seven state laws, which includes tests like ‘ridicule’ and ‘contempt’, that can lead to the banning of organisations, the criminalisation of being an informal member of those organisations, and people going to jail for five, 10 or 15 years.”
Constitutional expert Prof Anne Twomey said ambiguity about the laws, including over the conduct that would be covered, risked having a chilling effect on free speech.
“It seems that the implication is criticism of Israel, and the Israeli government, and suggesting it is engaged in genocide or something of that kind, would be enough to at least trigger the start of the process, by satisfying the provisions about inciting racial hatred,” she said.
“At least this is in play. But we don’t know if a minister, in making this kind of decision, would take that view. Equally we don’t know if it was challenged whether a court would take a different view.”
The progressive Jewish Council of Australia accused Labor of a “Trumpian repression of our democratic rights” after the attorney general, Michelle Rowland, confirmed new hate group laws could theoretically affect groups who accuse Israel of genocide.
But Rowland told ABC TV other criteria, including breaching relevant state laws dealing with racial vilification, would also have to be met.
The council said in a statement the laws were “an attempt to slander and intimidate hundreds of 1000s of Australians who have been protesting against Israel’s genocide and egregious human rights abuses”.
The Palestine Action Group spokesperson Josh Lees warned the changes should be “deeply disturbing to everyone in this country”.
“Our politicians and our ministers cannot be trusted with such powers.”
Rowland said groups such as the neo-Nazi organisation the National Socialist Network and the Islamist group Hizb ut-Tahrir would be the focus of the new laws.
A group of independent senators, including David Pocock, sought to amend the bill to clarify that the new aggravated sentencing provisions did not apply to instances involving criticism of the policies, actions or institutions of a foreign state, or discussion of matters of international law.
The amendment was unsuccessful.
The Australian Human Rights Commission president, Hugh de Kretser, said the new laws around banning hate organisations need stronger safeguards, including on the grounds of procedural fairness.
He welcomed the laws to prohibit hate groups, describing them as part of Australia’s international treaty obligations.
“Procedural fairness is a standard requirement when government officials are making decisions that affect the interests of people and broadly it requires that you give the affected person an opportunity to be heard about the issue that is being decided,” he said.
“That means they have a chance to explain, if relevant, why they think the decision shouldn’t be made.
“That is a real safeguard against inappropriate decisions being made and helping to ensure the law is being applied properly and for its intended purpose.”
Burke told ABC radio any action under the new laws required a recommendation from the Australian Security Intelligence Organisation (Asio).
“There’s a first step from Asio and if they don’t open the door, there is nothing for a minister to do,” he said.
“It is important that no minister, whether it is me or anyone into the future, is able to start using powers like this to try to make things difficult for political opponents and start playing legal games.”
Albanese defended the amended laws, which he said included appropriate protections.
“You will see it in operation, what it does,” he said. “I’m not going to pre-empt those processes.”
Albanese pointed out the home affairs minister could not predetermine which groups would be formally designated as extremist organisations.
“People will have tried to draw all sorts of analogies around this legislation, both on guns and on hate. None of them are based on reality. This is sensible reform.”
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