What is in the government’s new hate speech laws?

The federal government’s hate speech laws, urgently written following the Bondi Beach attack in December and covering a complex and contentious area of law, have been met with immediate criticism over their scope, structure and timing.

MPs and key stakeholders have been given one week to scrutinise the legislation that Prime Minister Anthony Albanese is pushing to pass through parliament on Tuesday, which would among other things ban hate groups and punish hate preachers.

So what is in the Combatting Antisemitism, Hate and Extremism Bill, and what challenges does it face?

What is in the hate speech laws?

The new laws will crack down on “hate preachers” – religious or spiritual leaders who advocate or threaten violence, including while giving speeches or sermons in religious institutions. A new aggravated offence will be created for such preachers, and for adults who try to radicalise children.

The maximum penalty for hate preachers will be 12 years, and courts will have to consider more seriously the sentences for offenders who are motivated by extremism.

The penalties for hate speech more broadly will also be increased, as will the punishment for sending harassing letters or messages – from two to five years.

The laws would make it illegal to advocate racial supremacy or promote hatred of people because of their race, colour or national or ethnic origin, but would not apply to people directly quoting from religious texts for the purposes of teaching.

The ban on hate symbols will be strengthened, including by requiring a person caught displaying a symbol to prove that it was legitimate - a reversal of the burden of proof requiring prosecutors to prove a crime occurred.

The home affairs minister will also be given the power to ban “hate groups”. Hate group leaders and recruiters will face a maximum of 15 years in prison, as will people caught training or donating to them. Members could be jailed for 7 years.

Minister for Home Affairs Tony Burke has said groups such as the Nationalist Socialist Network and Hizb ut-Tahrir are being targeted and could be outlawed.

Changes to migration law will allow the immigration minister to refuse or cancel visas if a person has associated with hate groups or made hateful comments, including online.

What is the religious text carve-out?

The new racial vilification offence does not apply to conduct “that consists only of directly quoting from, or otherwise referencing, a religious text for the purpose of religious teaching or discussion”.

Certain translations of religious texts may otherwise have been deemed hate speech, including a controversial section of the Koran which has sometimes been translated to label Jews and Christians as “the worst of all beings”.

Asked about the carve-out on Tuesday, Albanese said: “I encourage you to read the Old Testament and see what’s there, and see if you outlaw that what would occur. So we need to be careful. We consulted with faith groups, not just with the Jewish community.”

Some interpretations of the Old Testament have been used to discriminate against people of colour through an interpretation of wording in the Book of Genesis about Canaanites, whose genetic descendants include Palestinian, Syrian and Jordanian communities.

Attorney-General’s Department deputy secretary Sarah Chigdey said in a parliamentary inquiry into the draft laws on Tuesday that the exemption for religious texts was “very narrow”, and would only apply to direct quotes of texts. It would not protect people who used religious text to incite hatred or vilification.

What legal hurdles do the laws face?

Home Affair Minister Tony Burke has repeatedly said the hate speech crackdown would push the law to the “constitutional limit”, and the government has acknowledged the potential for the legislation to face High Court challenges.

Section 116 of the Constitution does expressly prohibit the Commonwealth from making any laws that could be seen as “prohibiting the free exercise of any religion”, meaning any bans on religious texts could face a challenge in the highest court.

Several High Court judgments have found the Constitution has implied rights to freedom of association and political communication.

Greg Barns, SC, of the Australian Lawyers Alliance, said rushing the laws through without adequate consultation was dangerous, and he urged caution because of the risks to civil liberties.

“Hastily drafted laws may overlook critical details, fail to anticipate unintended consequences, or inadequately balance competing interests,” he said.

Barns pointed to vague language and a failure to define key concepts, including what the phrase “unacceptable risk” means, and who decides.

He said the law contradicted longstanding practice to only consider criminal acts committed after a law was introduced, and failed to observe procedural fairness when listing prohibited organisations, meaning those accused would not have a clear opportunity to respond to allegations.

What have the reactions been?

Conservative Liberals including Andrew Hastie have questioned whether the bill impedes religious freedom, while Coalition frontbencher Michaelia Cash and Hastie-backer Ben Small said the religious exemption could allow Islamic extremists to keep preaching hate. If they fight the bill, it complicates Opposition Leader Sussan Ley’s decision-making if she is inclined to back Labor’s changes in the name of national unity.

Australian National Imams Council president Shadi Alsuleiman said the crackdown would disproportionately affect the Muslim community because of its targeting of religious leaders, while not protecting against Islamophobia. He said the religious text exemption should also protect faith leaders in expressing and explaining scripture.

He called for the debate, scheduled for Tuesday, to be delayed, saying the current timeline was unreasonable for proper consideration of the implications of the laws.

“We are calling for explicit protections for religious instructions and teachings,” he told a snap parliamentary inquiry into the reforms on Wednesday.

“This includes quoting and interpretation of texts from sacred books and scriptures, the recognition of Islamophobia within vilification laws and genuine consultation with faith communities.”

Independent MP Allegra Spender, whose electorate includes Bondi and who has previously pushed to strengthen hate laws, has championed an extension of the laws to protect other diverse communities.

“Neo-Nazis, for example, target Jews, Muslims, LGBTIQ+ Australians and people living with disability,” Spender said.

“And though Jewish Australians are rightly at the centre of concern right now, Jewish community leaders publicly support legislation that protects more than just race.”

Labor has flagged a potential extension of the protections to other groups once the laws pass.

Executive Council of Australian Jewry co-chief executive Peter Wertheim – and Albanese’s closest Jewish ally – called for the laws to be expanded to include other minority groups. He criticised the religious text exemption because invoking religion as an excuse to “dehumanise and mistreat others simply on the basis of who they are must surely be a thing of the past.

“None of the world’s recognised religions promotes racial hatred knowingly and deliberately, and to the extent that any religion were to do so, it would be thoroughly shameful,” he said.

Anglican bishop of South Sydney and Freedom for Faith chair Michael Stead said the bar is set too low on what could be considered racial vilification.

“If my conduct would make a reasonable member of a target group apprehensive of facing harassment, then I am within the scope of [the new law],” he told the parliamentary inquiry on Wednesday.

“This is an unwarranted limitation of freedom of thought, conscience and belief, and also of freedom of expression.”

William Redmond, speaking on behalf of the Australian Catholic Bishops Conference, expressed concern over the potential for race-based hate speech to be expanded to other minority groups.

“Once a broad, harm-based model is established in criminal law, expansion becomes far easier,” he said.

Federation of Islamic Councils president Rateb Jneid said he had not been consulted on the laws, and was concerned that the proposed racial vilification offence did not also include religious discrimination.

“It is simply not tenable for laws designed to combat hate to exclude religion,” he said. “Hatred fuelled by religious bigotry can be just as dangerous and damaging as that based on race. Any serious attempt to address hate speech must recognise that.”

Australia’s biggest neo-Nazi group, the Nationalist Socialist Network, announced to members on Tuesday it would disband by the end of the week to avoid lengthy jail sentences.

Leaders labelled the laws “draconian” and discussed plans for a replacement organisation that could continue under the guise of a political party.

Opposition home affairs spokesman Jonno Duniam expressed concern that the crackdown would drive the group to go underground or rebrand. ASIO boss Mike Burgess acknowledged the risk but said the spy agency was “good at” tracking people hiding from the law.

The Greens have reserved taking a public position on the laws as government briefings continue, but have a longstanding position of supporting the strengthening of hate speech laws.

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