Tuesday, 18 February 2025

Bills

Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

And Michael O’Brien’s amendment:

That all the words after ‘That’ be omitted and replaced with the words ‘this house refuses to read this bill a second time until the Allan Labor government:

(a) urgently considers additional options, including those available to Victoria Police, as a practical means of tackling antisocial and vilifying behaviours; and

(b) consults further with Victoria’s faith groups, including the Jewish and Islamic communities, who have warned the government that the proposed ‘genuine political purpose’ defence to incitement will damage social cohesion in this state.’

And Will Fowles’s amendment to Michael O’Brien’s amendment:

That all the words after ‘until’ be omitted and replaced with the words ‘the government conducts community consultation on the ‘genuine political purpose’ defence.’

Danny O’BRIEN (Gippsland South) (13:49): I am pleased to rise to speak on the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024. I commend the government for attempting to do some things that will reduce vilification in our community, but I think the government has found that legislating to address these issues is harder than it looks. As with all, I would think, right-thinking people in this place, I have been appalled at the rise in particularly antisemitic behaviour over the past couple of years, particularly since the 7 October attacks in Israel. It is not our country, it is not our state. It has been absolutely appalling that we have seen that increase in people targeting Jewish people, targeting those with strong views supporting the Israeli state, and it is very often, in my humble opinion, racism dressed up as concern for the people of Palestine.

I would have thought that perhaps the members of the Greens might have realised that their campaigning on Gaza over the past couple of years has been counterproductive, after the Prahran by-election where their vote did not move despite the fact there was no Labor candidate at all, indicating that people have started to see them as the extremists that they are, yet we still had the member for Richmond standing up today raising this issue again. I must say, as an aside, if I spent as much time on issues that are not relevant to my electorate but are relevant to somewhere overseas as the Greens do, I reckon I would lose my seat pretty quickly. It astounds me that the Greens spend so much time advocating on issues in the Middle East – a long, long way away from Richmond or Brunswick or Melbourne – and so far have got away with it. But as I said, I think they should perhaps wake up to the fact that what has happened in Prahran is a suggestion that perhaps they should be focused on what is happening in their electorates, not what is happening on the other side of the world.

It is not to say that we cannot and we do not all have views about what is happening over there, but as local members of the Victorian Parliament our ability to impact what is happening in the Middle East is pretty minimal. And I say that to the councils who think that they can pass resolutions for a ceasefire or for peace in the Middle East and somehow Hamas and Benjamin Netanyahu are going to pay attention to what is happening at local councils in Victoria. The notion is absurd, and I think again it highlights that much of this is antisemitic opinion dressed up as concern for others.

As I said, I acknowledge the government’s attempt to try and stamp out some of this vilifying behaviour, whether it is for Jewish people or whether it is for Islamic people. The member for Thomastown just raised a terrible case of two Muslim women being attacked in the street. This is not something that we should be tolerating for anyone, and I absolutely condemn any of those attacks, particularly those on the Jewish community over the last 18 months or so. But as the member for Malvern has indicated, we on this side do not think that the government has got this legislation right. They have no doubt come to it with noble intentions, but I think they have seriously misjudged the legislation as it is.

In particular there are a couple of aspects of the legislation that we have concerns about. One is the introduction of a ‘genuine political purpose’ defence to the incitement offence – that is to say that someone can incite conduct against a person with a particular protected attribute, whether that is their race, their religion, their sexual orientation or the other protected attributes – if I can quickly find them – gender identity, disability, sex characteristics, sexual orientation and personal association. We do not have any issue with those being introduced to this realm, but the political defence – ‘genuine political purpose’ – we think actually counterintuitively gives a green light to some of this behaviour.

As the member for Malvern has indicated, in particular when it comes to antisemitic conduct, it would seem to us that those who wish to attack Jews will simply change their language to ‘Israel’ or to ‘Zionists’ and therefore say that this is genuinely protected political content. To that end we have seen a quote from the federal Attorney-General Mark Dreyfus, who said:

The label Zionist is used, not in any way, accurately. When critics use that word, they actually mean Jew. They’re not really saying Zionist, they’re saying Jew because they know that they cannot say Jew, so they say Zionist or words [such as] Zeo or Zio.

I think that highlights what our concern about this legislation is – that if the genuine political defence is actually introduced, it will be a green light for people to continue to vilify Jews and indeed potentially others; there are many other examples that could be used. That is one of the concerns that we have about this legislation.

There are a number of others indeed on the ‘genuine political purpose’ aspect of this legislation. I understand, or we have been hearing, that perhaps the government may move to amend this bill. As the first speaker since this bill was debated last sitting week, we are yet to hear whether the government is actually going to do that. I think that would be a good thing. However, it does not necessarily address our concerns with the broader bill. They go to other matters with regard to the anti-vilification protections. One of those is that currently criminal offence has an obligation to prove that a person’s actions both incited hatred and threatened physical harm or property damage, and under this bill that would change to either of those, not necessarily both, and particularly it introduces the word ‘likely’, so if someone’s actions or words are likely to incite hatred et cetera rather than actually doing so, and I think that is certainly a lower threshold.

The other aspect that is of concern to us goes to the question of what becomes a highly subjective element, and that is to actually change the test of what vilification is. It is usually – and we see this term in law a lot – what a reasonable person would think. In this case we are talking about what a reasonable person would find to be hateful or would incite hatred against that person. The test in this case under the bill would be what a reasonable person with the protected attribute would be reasonably likely to find hateful. That is a concern because that makes it a far more narrow test as to what might be considered vilification. What might be considered vilification by you, Deputy Speaker, or me or someone else on the street is very different to someone in perhaps a minority group, perhaps in a very minor sect of a religion, so it is not necessarily what a reasonable person finds. It is not what a reasonable person who is a Muslim might find. It may well be that the person with the protected attribute is a Shia Muslim or a Sunni Muslim or a Greek Orthodox Christian, as opposed to just a Christian.

The point I make is that these are very, very narrow definitions, and it therefore opens the prospect that people may take offence and feel vilified and the person saying those things would have no idea what is offensive to a particular group. We have seen that with the Charlie Hebdo attacks in France and many others over the years that are a concern. I do strongly condemn any vilification particularly on race or religion and it needs to be stamped out, but I do not think the government has got this particular legislation right. The ‘political purpose’ defence, that ‘likely to incite’ and that lower threshold of reasonables are issues that need to be addressed, and that is why I support the member for Malvern’s reasoned amendment.

Business interrupted under sessional orders.