New bill to protect free speech after passing of tougher hate speech laws
A bill to enshrine freedom of speech in the Australian Constitution was tabled in the Senate on Wednesday after the passing of tough new hate speech laws just last week.
Based on the US First Amendment, the bill seeks to amend the Constitution to ensure that no law - state or federal - can limit freedom of speech, including freedom of the press and other media.
Right-wing provocateur and President Trump super-fan Senator Ralph Babet (United Australia Party) brought the bill, saying it is “urgently needed to protect a fundamental right that Australians assume they already have.”
"But that assumption is dangerously misplaced. The right to say what we think has been steadily eroded, with laws passed at both state and federal levels restricting speech rather than safeguarding it."
Unlike the US, Australia has no explicit constitutional protections for speech, although the High Court has recognised freedom of political communication.
The passing of tough new federal hate speech laws last week after minimal parliamentary debate stirred up strong misgivings, particularly amongst conservative free speech advocates.
Meanwhile advocates for the laws say that incitement to violence is currently too hard to prove under Australian law, and that a recent escalation in violent antisemitic attacks, including the firebombing of a Melbourne synagogue and an arson attack against a Sydney childcare centre, necessitate strong action.
Supported by both major parties, the new laws expand and strengthen existing prohibitions on incitement to violence and display of hate symbols.
This includes lowering the threshold for incitement convictions by reducing the bar from ‘intent’ to ‘recklessness,’ and broadening the list of protected attributes, with the addition of sex, sexual orientation, gender identity, intersex status, and disability to previously protected attributes of race and religion.
The laws will also see the bulking up the list of banned hate symbols, the disallowance of the ‘good faith’ argument, and the introduction of mandatory minimum sentencing for displaying hate symbols (12 months), funding terrorism (three years), and terror crimes (six years).
“No Australian should be targeted because of who they are or what they believe,” he said Attorney-General Mark Dreyfus, whose grandparents were victims of the Holocaust.
“We are sending a clear and unambiguous message that advocating or threatening violence is not acceptable. It is criminal behaviour and will be treated as such.”
But in a viral thread on X, Director of conservative community organising group CitizenGO George Christensen warned that Australians may soon be treated like criminals for much less.
“We’ve seen this in the UK. A mother was arrested while cooking dinner for her tweets. A man jailed for a meme. A teen arrested for a joke. That’s what’s coming,” he wrote.
Journalist Adam Creighton opined, “RIP stand up comedy in Australia.” Ironically, Senator Babet once called for the deportation of a comedian for joking that he wished the attempted assassination of Donald Trump had been successful.
The tougher federal hate speech laws are complemented by moves to clamp down on ‘hate’ at the state level. The New South Wales Government has introduced new laws to parliament aimed at protecting places of worship, increasing penalties for offenses "partially or wholly driven by hate," and further criminalising Nazi symbols.
Most controversially, the Minns government proposes to make it a criminal offence to intentionally incite racial hatred, but not other forms of hatred based on religion, sexuality, or gender.
Last year, the Victorian Government proposed new anti-vilification laws that could see Victorians go to prison for up to five years for threatening physical harm, and up to three years for ridicule.
The laws would make it an offence to “incite hatred against, serious contempt for, revulsion towards or severe ridicule” of a person or group based on their sex, gender identity, or race.
Even without these tougher hate speech laws in place, Australians have had cause for concern over the lack of practical protections for freedom of political communication in recent years, particularly on culture war issues.
Whether it’s being taken to a Queensland tribunal for raising concerns online about biological males trying to chest-feed newborn babies, being suspended from medical practice over social media posts, or having online content censored by an overzealous eSafety Commissioner, Australians on the less politically-favoured side of the culture wars have experienced varying levels of harm from such lack of protection.
Senator Babet acknowledges that freedom of expression is not absolute and may be restricted on very limited grounds, such as in the case of defamation and incitement to violence, as it is in the US.
However, his bill is intended to the intent of Article 19 of the International Convention on Civil and Political Rights (ICCPR), of which Australia is a party, which states,
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The bill will be debated in parliament at a future date. If passed, Australians will go to a referendum to vote on whether to enshrine free speech into the constitution. Senator Babet’s team advised that this would likely tie in with the 2028 federal election so as to streamline the process and minimise costs (last year’s failed Voice Referendum cost over $400 million).
Senator Babet is likely to see strong pushback in both the lower and upper houses, due to bipartisan support for Australia’s proliferating hate speech laws.
However Senator Babet, who is no stranger to controversy, appealed to the public for support.
"It is a brave person who, in today’s climate, publicly states that men cannot become women. Is this really the kind of country we want—where expressing biological truths can lead to interrogation by tribunals and potentially jail time?" he said.
"This Bill will give Australians the power to vote in a referendum and decide for themselves how important freedom of speech truly is. I believe they will vote overwhelmingly in favour, because Australians, despite their differences, believe in the right to speak freely."
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Link to Senator Babet’s bill https://parlwork.aph.gov.au/bills/s1447
Unfortunately I can't see anything like this getting major party support; they're in lockstep with each other. That said, I salute him for bringing it forward✅