Victorians could go to prison for up to five years for hate speech under new anti-vilification laws proposed by the Victorian Government.

Under the proposed laws, it would be 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.

It would also be illegal to “threaten physical harm or property damage on the ground of a protected attribute”.

The new laws would lower the legal threshold for prosecuting people for vilification and would add gender identity, sex, sex characteristics, sexual orientation and disability to the list of protected attributes alongside race and religion, which are already protected.

Online, these laws will apply to anyone, anywhere who vilifies a person in Victoria, although the government acknowledges that this may be difficult to enforce.

Offline, these laws will apply to both public and private interactions.

The changes, which amount to a heavy rewrite of the Racial and Religious Tolerance Act, are intended to “reduce the harm caused by vilification, protect more people, reflect the seriousness of hateful conduct, and ensure those who experience vilification can easily seek help.”

The proposed hate speech laws have been welcomed by human rights groups, including the Victorian Equal Opportunity and Human Rights Commission.

“We need to shift the burden of responding to hate from individual victims and instead create a system that can drive change,” said the Commission, which has played an active role in advocating for stronger legal protections to protect Victorians from hate conduct.

A parliamentary inquiry into anti-vilification protections in 2020 drew strong expressions of support for expanding the anti-vilification legal framework from diverse groups including the Australia/Israel & Jewish Affairs Council, the Islamic Council of Victoria, the Law Institute of Victoria, the Online Hate Prevention Institute, Victoria Legal Aid, Equality Australia and the Victorian Pride Lobby.

However, the proposed anti-vilification laws have not been welcomed in all corners.

“Victoria has a new fight on its hands,” said Victorian MP David Limbrick in a video posted to X. The Libertarian and free speech advocate shared his concerns and called on followers to voice their dissent.

“This is really serious stuff. You can go to jail for three years for ridicule!” he said.

“The government’s definition of public conduct is so broad that it includes private property – does that include your backyard barbeque?

“And how weird is this – they want to include behaviour that incites hatred or other serious emotions. But the government’s actions incite serious emotions in me all the time!”

Indeed, under the proposed reforms, you could be criminally prosecuted for incitement of “severe ridicule” on the ground of a protected attribute, with a maximum penalty of three years prison time.

Threatening physical harm or property damage would carry a maximum penalty of five years imprisonment.

Currently, the threshold for prosecution is higher and the maximum penalty is lower – both incitement and threat must be proven to prosecute for vilification, and the maximum penalty is six months imprisonment, a fine of up to $11,855.40, or both.

And, it is certainly possible that Victorians could be prosecuted or sued for things said at a backyard barbeque. The proposed criminal incitement offences apply to both public and private conduct, which means that, “regardless of whether hate speech or conduct occurs in public or in private, it can be a crime.”

An additional set of civil protections apply only to public conduct, but as pointed out by Limbrick, this includes, “conduct might be considered public even if it occurs on private property or at a place not open to the general public,” such as neighbours calling across the fence, or interactions that occur at a school or workplace.

Also under the modified civil protections is the clarification that the legal test for incitement would be “conduct that is likely to incite hatred or other serious emotions in another person.”

Limbrick jokes that the government’s actions incite serious emotions in him all the time, but this provision would be no joking matter for the accused, who could face legal action for inciting serious emotions in relation to someone’s race, gender identity or disability.

During parliamentary debate last year, Limbrick attempted to secure assurances from Victoria Attorney-General Jaclyn Symes that the new laws would not prevent Australians from speaking plainly on important issues.

For example, “Can the Attorney-General provide reassurances that the dictionary definition of ‘woman’ – that is, an adult human female – will not be considered hate speech under the proposed anti-vilification laws?” asked Limbrick.

“That is a bit of a stretch,” said Symes.

But Limbrick’s scenario is not hypothetical. Victorian breastfeeding counsellor Jasmine Sussex is currently being taken to a Queensland tribunal over a vilification claim by trans-woman Jennifer Buckley, after Sussex raised concerns online about biological males trying to chest-feed newborn babies.

The difference under Victoria’s proposed laws is that Sussex could be liable for criminal prosecution, not just civil legal action.

As Victoria works to extend and strengthen its anti-vilification laws, a federal hate speech bill is already moving through the Australian Parliament, targeting speech and conduct that recklessly incites violence against people because of their race, religion and other protected attributes.

The federal bill is less extreme than the laws proposed by the Victorian Government, and has drawn criticism from some special interest groups for not going far enough.

The bill will strengthen existing offences to reduce the fault element to ‘recklessness’, will remove the “good faith” defence, will expand the list of prohibited hate symbols, and will create new criminal offences for threatening force or violence against targeted groups.

A spokesperson for the Human Rights Law Alliance (HRLA), which is representing Jasmine Sussex in the Queensland legal action, said that the HRLA does not support the proposed changes to Victorian or federal anti-vilification or “hate speech” laws.

“Too often these laws are used to shut down free speech and silence those who hold opinions contrary to a radical ideological narrative.

“Expanding the scope of these laws will further silence public debate on important topics, particularly where they cover contentious matters of strongly held beliefs.”

The HRLA also expressed concerns that proposed changes to hate speech laws may increase the financial and emotional burden on ordinary Australians who may be dragged through lengthy and expensive court processes for voicing genuinely held beliefs on important topics.

“The proposed changes will likely result in more of these punishing cases, even where no unlawful activity has occurred,” said the HRLA.

Consultation on the Victorian Government’s proposed hate speech laws is open until Friday 11 October.

Consultation on the federal Criminal Code Amendment (Hate Crimes) Bill 2024 is open until Thursday 7 November.