Next week the Albanese government will have a chance to strike a decisive blow against exploding levels of anti-Semitism when the Hate Crimes Bill comes before parliament.
Much has changed in the five months since Mark Dreyfus introduced this bill.
At the time, the Attorney-General’s scheme was a major step in the right direction. It marked a turning point for a body of law that had been shown to be useless in the face of surging racial hatred.
But this bill has been overtaken by events.
When Dreyfus finalised his Hate Crimes Bill, nobody had firebombed a synagogue or loaded a caravan with explosives with the apparent intention of killing Jews.
Nobody had launched an arson attack on a childcare centre in a Jewish neighbourhood or tried to burn down the former home of Jewish leader Alex Ryvchin.
Dreyfus introduced his Criminal Code Amendment (Hate Crimes) Bill on September 12, almost three months before the Addas Israel Synagogue went up in smoke on December 6.
The caravan loaded with explosives was only found at Dural this month, two days after Ryvchin’s former home was firebombed and a day before the childcare centre was firebombed.
Despite its strengths, the Attorney-General’s bill is a creature of the past that needs to be brought up to date.
His department began working on this scheme one year ago when anti-Semitic hate speech, while present, had not yet given rise to the violence that now plagues Sydney and Melbourne.
Dreyfus was right to focus on the most serious end of the hate-speech spectrum: language that incites violence. The case for maintaining that tight focus is now stronger than ever.
But if this scheme is to criminalise all attempts to encourage violence based on race or religion, some parts of the bill need to be strengthened.
Members of parliament who are uncertain about that should take a quick look at the Hansard record of what Peter Wertheim told a Senate inquiry on December 2.
Wertheim, who is co-chief executive of the Executive Council of Australian Jewry, suggested that the bill should drop the term incitement and use broader terms to ensure hate preachers and street toughs can no longer slip through the gaps in the law.
If Wertheim’s suggestion were implemented, the Commonwealth Criminal Code would no longer narrowly target “incitement”, but would broaden the focus to criminalise those who “promote, advocate or glorify” the use of force or violence.
In October, Wertheim’s organisation told a Senate inquiry that instructions to engage in violence were most often conveyed by verbal signals or symbolism “employing vague language and allusions to a particular cultural, religious or ideological context where the message is subliminally suggested but is not stated expressly”.
That is one of the reasons why the current incitement provisions in the Criminal Code are not being used against those who have glorified the attacks on Israel on October 7 by declaring their elation and pride in the murders and rapes.
Switching to a broader form of words would probably ease the burden for police, prosecutors and judges, but the reverse would be true for another of ECAJ’s suggestions: criminalising serious racial vilification.
Criminalising speech that offends or vilifies would mean introducing a degree of vagueness to criminal law – which would undermine one of the key principles of the rule of law.
If we are to criminalise any form of speech – and that is what the Dreyfus bill does – the law should be clear so the people concerned will know exactly what will send them to prison.
The restrictions on speech in the Dreyfus bill give effect to the principle that nobody has the freedom to encourage violence based on race, religion or a range of other factors.
To move beyond that and criminalise speech that falls short of encouraging violence but which encourages hate and vilification would inject an uncertain standard into criminal law. Language that promotes racial antagonism should not escape punishment. But that punishment should remain a matter for civil law.
When the NSW Law Reform Commission considered this recently it concluded that vilification offences such as racial hatred, animosity, contempt and ridicule would introduce imprecision and subjectivity into the criminal law.
One of the great strengths of the Dreyfus bill is that it has resisted pressure to criminalise more speech than is necessary in order to address the rise in race-based violence.
Criminalising vilification would not just erode the rigour of criminal law, it would mean the Australian Human Rights Commission would avoid accountability for its questionable performance on anti-Semitism.
In March last year, the Liberal Party’s Julian Leeser accused the commission of being “frozen by political paralysis” in failing to address anti-Semitism.
Compare this to the approach taken by the commission under former race discrimination commissioner Tim Soutphommasane. He tried to drum up complaints about a perfectly reasonable cartoon by the late Bill Leak that the commissioner did not like.
Leak served the public interest by drawing attention to a serious social problem – the neglect of Indigenous children. For that he was pilloried.
How many anti-Semitic hate preachers has the commission pilloried?
Next week, when members of parliament assemble, they will be presented with the report of a Senate committee inquiry into the Hate Crimes Bill that calls for only minor changes. That needs to be set aside.
The rapid growth in violence means the Hate Crimes Bill needs surgery to ensure it becomes a truly effective response to the current threat level, not that of the past.
