Australia’s patch-work vilification laws are allowing hate to spread

The hideous One Nation video vilifying people with disabilities was entirely predictable. It was predictable because it is on-brand with the kind of hate One Nation spreads about other communities. It was predictable because of the way people with a disability have been mistreated by our community. But it is also predictable, because it is completely lawful.

Australia’s federated system of government means that each state and territory, as well as the Commonwealth, are able to make laws against vilification. Rather than undermine one another, the differences between Commonwealth and state and territory laws mean that people who have been harmed can choose the appropriate “forum” to deal with their dispute. This allows flexibility.

Patchy vilification protections

But it also results in fragmentation. Australia has a patchwork of anti-vilification laws that protect different communities to differing levels. For example, only Tasmania and the ACT protect people against vilification based on disability, with few knowing that this also extends to mental health vilification. For the vast majority of Australians with a disability, the hate directed at them was lawful. That should concern all of us.

Speaking about the lack of vilification protections against disability-based vilification, Nicole Lee, President of People with Disabilities Australia tells me that ‘hate speech upholds negative attitudes to people with disabilities and mental illness, justifying the discrimination many encounter daily.’  ‘Without adequate protections’ she notes, ‘harmful instances such as the One Nation video will continue happen.’

Unfortunately, vilification and hate speech is impacting other communities. Almost at the same time Australia’s borders re-opened, it began importing US-style culture wars over the rights of trans women.

While some jurisdictions, such as the ACT, Queensland, Tasmania and New South Wales provide protection against vilification based on gender identity (protecting trans and gender diverse folk), the other jurisdictions do not.

Moreover, each of these states have differing legal tests for constitutes vilification. In Victoria, the tests have been so high that the practical protection provided to communities has been so low.

This patchwork of vilification protections means that, notwithstanding a defamation claim, One Nation’s ableist piece was probably lawful.

Putting some predictable guard rails around civic debate

As culture wars are being used as vehicles for polarisation and political wedges, the time is right for a national conversation on appropriate civic debate. Free speech is an important component any thriving democracy. But hate speech silences marginalised groups from the public square by reiterating to them that they have no right to be safe. Some consistent guard rails can help us move in the right direction.

Where does the line between ‘free’ and ‘hate’ speech begin and end? This is a grey area. Where we draw that line should a negotiation based on our community values. But in reflecting on and affirming those values, we should concentrate our empathy on those who have been harmed by hate. We should seriously consider their calls for change.

These calls for change will be legislative, but they will go beyond that. Law in the books is not law on the streets. The recent Nazi salutes in Melbourne raise the question why existing vilification provisions under the Racial and Religious Tolerance Act 2001 were not upheld by Victoria Police. Lee reminds us that ‘laws are only as useful at protecting us as they are enforceable’. Moreover, our underfunded human rights agencies may be struggling to keep up with demand to resolve these civil disputes out of court.

Is law and law enforcement the answer?

It's fair to question whether we should turn to the law to solve all manner of social problems. Especially when doing so sometimes relies on institutions like police and courts. Institutions that have, and continue to, harm the very communities that new legislation would aim to protect.

It is also equally true that hate is spreading swiftly in a low accountability environment. While civic dialogue and organising is crucial, there are few incentives to encourage those spreading hate to stop, and for some communities, there are no rights around which they can organise.

The use of civil law protections that avoid the need for police may be a compromise. Taking such an approach enables individuals to seek resolution through conciliation or through civil courts. That compromise may enable us to enhance laws so that there are equal rights for all, while avoiding an over-reliance on ineffective or harmful institutions.

People with disabilities and mental health issues, intersex people, women, and trans and gender diverse people are just some of the communities that desperately need protection against vilification. The events of recent weeks should motivate us to press for new laws, not accept symbolic press releases.