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“We have people like John Howard and other Coalition party members who spent 40 years in parliament arguing against hate speech laws, on the grounds of free speech, now arguing that the Albanese government hasn’t done enough,” she says.
“This is despite the Albanese government passing more speech-limiting legislation to protect minorities than any previous government. Antisemitism has been on the rise and is a scourge that needs to be addressed, but I spent my career arguing against people who used free speech to prevent these laws. The hypocrisy of what is happening now is extraordinary.”
It’s clear that febrile debate over the war in Gaza, and now Sunday’s attack, have tipped the scales when it comes to what Australia will tolerate as it strives for a harmonious society.
“I think the climate has shifted,” Gelber says. “Context matters, and what happened at Bondi matters … The fact that somebody took a gun to a Hanukkah celebration changes the context. Even regarding the phrase ‘intifada’, which many use to mean resistance against marginalisation, that event changes how you would understand it.”
That’s the point Burke has been making this week. “We are no longer the nation where we had the government of the day a decade ago claiming that the right that mattered was the right to be a bigot. The right that matters is the right for people to be able to be free, to have a celebration at the beach and to do so safely,” he said.
It’s easy to see new criminal penalties for hate preachers attracting community support. To date, radical sermons that promote hatred have not crossed the legal threshold into criminal activity.
Western Sydney preacher Wissam Haddad, for example, was found to have perpetuated “age-old tropes against Jewish people that are fundamentally racist and antisemitic” in the federal court earlier this year. The court ruled he breached the Racial Discrimination Act – a piece of civil law. The consequence? He deleted the lectures online and paid legal costs.
Laws will put protest chants to the test
The vilification law will be more complex. Central to the concerns of many Jewish Australians were the antisemitic slogans chanted at the Sydney Opera House protest in October 2023 – as well as the use of more disputed phrases such as “globalise the intifada” and “from the river to the sea” in pro-Palestinian protests since.
“Right now, there are significant differences of opinion on whether things like accusing Israel of genocide or being a settler-colonial state cross the line into antisemitism,” Gelber says. In Britain, police have arrested two pro-Palestine protesters for calling for an “intifada”, which refers to a Palestinian uprising against Israel. On Thursday, NSW Treasurer Daniel Mookhey said he considered “globalise the intifada” an example of hate speech.
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Burke said the legal threshold for hate speech will be lowered as much as it could be under the Constitution. “What I can’t do is play the game of this sentence will be in, this sentence will be out, these words will be in, these words will be out,” he said on Friday.
That will be for the courts to decide. But first, the laws must be drafted. Gelber says the threshold they set will be important. For example, will they require a demonstrated intent to incite racial animosity? Will it be a case of whether the words were likely to do so? Or will recklessness be sufficient? “We don’t know yet which standard will appear, and it matters for how broadly applicable the provision will be,” she says.
When it comes to phrases such as “river to the sea”, context will be essential. “If someone uses that phrase in a context with other hate speech or banners suggesting Israel should cease to exist, that bolsters the argument that it crosses the line. However, if used in the context of supporting Palestinian human rights and ending suffering, while acknowledging Hamas is a terrible organisation, that would not cross the line,” she says.
And Gelber says it’s not just a matter of having the right laws – it’s understanding when they should be applied. “When the Nazi protest happened outside NSW Parliament recently, the police gave permission for that march to go ahead even though NSW has this inciting racial hatred provision. It was their view that the march didn’t breach that provision because the banner said ‘abolish the Jewish lobby’,” she says.
“The whole concept of a ‘Jewish lobby’ is antisemitic. That decision was unfathomable.”
Decade-long debate about vilification
Jewish groups have been demanding stronger vilification laws for years. As have Muslims, Sikhs and LGBTQ+ Australians. Former attorney-general Mark Dreyfus tried to land one last year, proposing criminal penalties for serious examples of vilification targeting people based on race, sexuality, gender, disability or religion.
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It was intended as a compromise to faith groups, who were dismayed after Labor ditched its election promise to introduce a civil anti-vilification law through a now-abandoned religious discrimination act.
But at the final stages, it was dropped. There was too much contention among stakeholders at odds over the balance between free speech and making the protections strong enough to win prosecutions.
Chief among them was the Australian Christian Lobby, which has historically pushed back on laws that would criminalise the legitimate exercise of freedom of speech or religion. Hence the “Israel Folau clause” that former prime minister Scott Morrison proposed in his attempt at a religious discrimination act years earlier, to protect people whose statements of religious faith might be considered discriminatory against others (in the Folau example, because of sexuality).
That never made it into law, either.
The government will skirt around the debate, this time, by restricting the vilification law to race and racial supremacy.
Case law has determined that race applies to Jewish people, whose Jewishness is regarded as both an ethnicity and a faith. It has not applied to Muslims, whose religious identity is not tied to race. Muslims and Sikhs have joined Jews in seeking stronger protections for years, given their expression of religious identity – wearing hijabs or turbans, for example – singles them out for abuse. They have cause to demand better protections.
Ditto for LGBTQ+ Australians, who are still campaigning for law reform that protects them from discrimination on religious grounds, such as expulsion or sacking from religious schools. But again, any attempt to tackle that will revive a thorny battle with Christian groups, which the government has made clear it wants to avoid.
More coverage on the Bondi terror attack
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