Victoria could protect drag queens from Nazi hate. Why won’t the government act now?

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The City of Monash last week became the latest Victorian council to cancel an LGBTIQ+ event under the weight of a barrage of abuse, vilification and threats of violence.

The council will no longer be running a drag story-time event planned for the International Day Against Homophobia, Biphobia, Intersex discrimination and Transphobia on May 17.

This is the latest chapter in a worrying trend, imported from the United States and disrupting at least 15 Victorian councils in recent months, of far-right groups intimidating local LGBTIQ+ communities. While the safety of local communities should always be paramount, giving in to the demands of extremists has clearly only emboldened them further.

Councils have been put in a difficult position and need greater support to address these threats. There needs to be a co-ordinated effort across state government, councils and law enforcement, working with local communities to stop hate in its tracks.

But, they are missing a major tool in their potential arsenal: vilification laws.

For more than 20 years in Victoria, it has been unlawful to vilify people on the basis of their race or religion. Quite rightly, this means action can be taken against white supremacist speech, or hate speech which targets, for example, the Jewish or Muslim communities.

People in the public gallery in the Monash Council meeting, in which complaints were raised about a drag story-time event.Credit: Facebook/Real Rukshan

But other communities in Victoria have no such protection. It is lawful to vilify people on the basis of their sex, sexual orientation, gender identity or sex characteristics.

In 2019, then-Victorian MP Fiona Patten put a bill to parliament that would rectify this gap, extending Victoria’s vilification to apply to sex, sexual orientation, gender identity, sex characteristics and disability.

The Victorian government sent the bill to a parliamentary inquiry, which I gave evidence to in early 2020 and which released its report a year later.

The report provided bipartisan support for extending Victorian hate speech protections to the LGBTIQ+ community – and to women and people with disability. In September 2021, the Victorian government declared their in-principle support for 34 of the 36 recommendations.

Importantly, the government announced it “will also extend the state’s anti-vilification protections beyond race and religion to cover areas such as sex, gender identity, sexual orientation, disability and HIV/AIDS status”.

Almost two years later, the Victorian government has still not produced a bill to legislate that commitment. In response to a question in parliament last week, the Attorney-General Jaclyn Symes re-committed to the reforms – but only “within the next 18 months”.

There is no doubt the attorney-general and her department have a stacked legislative agenda this year. But these delays are unacceptable.

While we wait, LGBTIQ+ people remain unprotected against an ever-growing barrage of abuse, threats and hate speech.

Many had hoped that the horrific scenes at the anti-trans rights protest outside Victorian parliament on March 18, where far-right figures made Nazi salutes and held up hateful anti-trans signs, would lead to greater urgency on anti-vilification reform. Instead, the government responded by announcing it would ban the Nazi salute.

While that is an important step, it does little to stop abuse targeted at the LGBTIQ+ community – or, indeed, at women or people with disability.

Extending Victoria’s hate speech protections to the LGBTIQ+ community would do far more in helping respond to events like those we saw on March 18, and to the threats being levelled at councils and other LGBTIQ+ community events.

First, these protections would allow LGBTIQ+ people to bring legal action against individuals engaging in hate speech and, if they are successful, receive damages for the harm caused.

Secondly, they would provide criminal offences for “serious” vilification, as we already have for race and religion. This would mean Victoria Police has stronger powers to investigate, arrest and charge offenders.

And thirdly, we should not underestimate the societal impact of our parliament publicly marking LGBTIQ+ hate speech as wrong by passing laws to that effect. Our laws have long had a moralising effect in marking certain conduct as wrongful and deterring actions which are against the standards set down by our society.

Prohibiting LGBTIQ+ hate speech will not stop all vilification overnight. But it will undoubtedly have a chilling effect on those who are abusing the current gap in our hate speech laws.

This is not about stifling the kind of rigorous debate and free speech we should all expect to see protected in a liberal democracy such as ours. It is about stamping out that which crosses the line into hate speech.

The parliamentary inquiry into hate speech deemed this to be speech which is likely to incite hatred against, serious contempt for, or revulsion or serious ridicule of a particular person or group – or speech which a reasonable person would consider hateful, seriously contemptuous, or reviling or seriously ridiculing.

This still sets a high bar to meet. It would not include the sort of everyday raising of concerns or disagreement that has long been a feature of local government meetings.

In Victoria, we have banned vilification based on race and religion for over two decades without the sky falling in. Many other jurisdictions in Australia go further and protect various other groups.

Fiona Patten’s bill, which gets the balance right, is still sitting on a shelf and ready to be implemented. So, too, the parliamentary inquiry report into anti-vilification.

How much longer is the Victorian government going to allow these extremist threats and abuse to continue? It’s well and truly time Victoria protected its LGBTIQ+ community from hate.

Liam Elphick is a discrimination law expert at Monash University.

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