It’s not hard to see why Michael O’Brien’s leadership of the Liberal party in Victoria had become so tenuous before his resignation earlier this month when you consider the party’s failure to take a stand on freedom of speech.
For 18 months the state government has exercised arbitrary and dictatorial powers in the total absence of parliamentary oversight or democratic accountability.
Not only has the opposition been ineffectual in calling attention to the destructive outcomes of the lockdowns or the most brutal attack on civil liberties in Australia’s living memory, it may now hand the government permanent powers to control how Victorians speak.
This month the Andrews Labor government tabled in the Victorian Legislative Assembly its response to the final report of a parliamentary inquiry into anti-vilification protections.
The report, written by the Legal and Social Issues Committee comprised of members from the Labor, Liberal, and National parties, made 36 recommendations to dramatically expand and rewrite the state’s anti-vilification legislation in Victoria, 34 of which were either supported or supported in principle by the Andrews government.
One recommendation to duplicate anti-vilification criminal offences in the Crimes Act required further consideration and another recommendation relating to the Victorian Equal Opportunity and Human Rights Commission was not addressed as it was ‘not directed to the Victorian government’. The VEOHRC is a statutory body controlled by the Victorian government which tells you something about how Labor governments view the untouchable nature of human rights bodies.
The recommendations that were supported either outright or in principle would remake the current Victorian law, which makes it unlawful to ‘incite’ hatred against, serious contempt for, or revulsion or severe ridicule of a person on the grounds of race or religion.
If you thought the concept of hatred was a notoriously difficult word to define legally, the recommendations accepted by the Andrews government would make it even more subjective. Rather than proving hatred was incited, a person would only need to prove that conduct was ‘likely to incite’.
The fields of potentially banned speech would also be expanded to include gender, sex, sexual orientation, gender identity, gender expression, sex characteristics, intersex status, disability, and HIV/AIDS status.
In addition to the incitement-based provisions, the recommendations also call for an entirely new prohibition on speech which ‘a reasonable person would consider hateful, seriously contemptuous, or reviling or seriously ridiculing of a person or class of persons’.
What amounts to something a reasonable person considers ‘hateful’ could not possibly be predicted. Victorians will have no idea of the legal boundaries of their speech. Perhaps that’s the point.
Courts and human rights officials would be given vast powers to decide what speech is unlawfully hateful and which speech is lawfully made for a ‘genuine purpose that is in the public interest’.
Practically anything that someone says could be subjectively interpreted as being ‘hateful’ meaning potentially anything could be unlawful. For example, expect to see complaints by atheists if someone says ‘Merry Christmas’, or anti-Australian activists using the courts to silence people who say ‘Australia Day should be celebrated on 26 January’.
This is confirmed by the proposal that it shouldn’t even be necessary that anyone even be harmed by the allegedly harmful conduct.
Recommendation 29 would remove the need for a victim to be identified. Unaffected third parties (read professional activists and moral busybodies) would be allowed to use the law as a weapon against other Victorians for language they consider hateful.
Consider recommendation 28 which would see legal aid organisations given extra government funding to ‘engage in strategic litigation’ to develop case law in this area. This is a more polite way of saying the courts will be used to make an example out of people.
The implementation of ‘community reporting mechanisms’ would mean non-government organisations would be given powers to harass other Victorians under a vaguely defined complaint handling role. This could mean activist groups like Extinction Rebellion or GetUp! could be appointed to surveil and harass anyone who criticises the government of the day.
The recommendations are unprecedented. If implemented the proposals would amount to being the most severe regime of censorship in our peacetime history.
The failure of the O’Brien era was to not recognise—or care—that these measures would not be used to protect Victorians, but to find and silence alleged perpetrators of ‘hateful’ speech as defined by the government.
Victorians will be forced to believe in and participate in Critical Race Theory and toxic identity politics, and organisations which fail to implement policies to prevent this radically broad version of vilification in the workplace would be in breach of their duties under the law. The outcome will be that what is hateful will be determined by those who hate the most, but whose hatred cannot be unlawful as their hatred will be based on political beliefs and affiliations, perhaps the only attribute that is not protected in the recommendations.
Whether the election of Matthew Guy as the new state Liberal party leader will mean a new policy remains to be seen. The opposition policy has until now been led by James Newbury, a key Guy supporter and deputy chairman of the parliamentary committee which authored the inquiry report. Also on that committee was David Southwick who was elected to be the deputy leader of the Victorian Liberals.
Without a change of direction the Liberals will sleepwalk into helping pass laws which would silence their own members. The leadership turmoil in the Liberals is a sign that its members are disillusioned by their representation in the parliament. On the basis of these proposals the Liberals helped write, those members have every reason to feel unrepresented.
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Morgan Begg is the director of the Legal Rights Program at the Institute of Public Affairs
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