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Victoria Enacts Tougher Hate Speech Laws with “Sam Kerr Clause”
The state of Victoria in Australia has enacted legislation designed to address hate speech, incorporating a provision known as the “Sam Kerr clause” to ensure that the enhanced penalties are not misapplied against the very individuals they aim to protect. These sweeping changes to anti-vilification laws are intended to foster social cohesion across the state.
Increased Penalties for Serious Vilification
Under the new legislation, individuals found culpable of severe vilification offenses, such as promoting animosity or issuing threats of violence, could face imprisonment for up to five years. This marks a considerable rise from previous penalties for vilification offenses, which were seldom prosecuted and carried a maximum sentence of only six months. The updated laws also broaden the scope of protection against hate speech, extending it beyond race and religion to encompass disability, gender identity, sex, and sexual orientation.
Safeguards and the “Sam Kerr Clause”
To secure parliamentary approval for the bill, the Victorian Labor government reached an agreement with the Greens to incorporate several protections. These include a requirement for law enforcement and the judiciary to consider the “social, historical, and cultural context” when evaluating vilification allegations in both civil and criminal proceedings.
Animal Justice party MP Georgie Purcell, a supporter of the amendment, noted that this contextual consideration was colloquially termed the “Sam Kerr clause” during parliamentary discussions.
Contextual Background: The Sam Kerr Case
The clause gained prominence following the case of Sam Kerr, a celebrated Australian national women’s football team player and Chelsea FC striker. Kerr was acquitted in a London court on charges of racially aggravated harassment in February after referring to a Metropolitan police officer as “fucking stupid and white.”
Kerr’s remarks, made in January 2023 after officers questioned her claims of being “held hostage” in a taxi, ignited debate surrounding freedom of expression and race. This was particularly relevant in the UK, where several high-profile cases involved people of colour being charged with racially aggravated offenses.
Preventing Misuse of Hate Speech Laws
“We recently witnessed in the Sam Kerr trial how laws intended to prevent vilification and discrimination can be misused against their intended purpose,” Purcell stated.
“It was crucial to many crossbench members that these new laws be implemented in a manner accessible to communities in need, while simultaneously preventing their abuse.”
Protecting Marginalized Communities
Greens MP Gabrielle de Vietri explained that the clause aims to address power imbalances and prevent misapplication against over-policed communities.
“We are aware that First Nations and marginalized communities are disproportionately and unfairly targeted by law enforcement,” she stated.
“This is why we advocated strongly for these critical modifications that protect individuals facing systemic injustice and shield these laws from being misused to criminalize those already subjected to excessive policing.”
Concerns from the Victorian Aboriginal Legal Service
The Victorian Aboriginal Legal Service (Vals) had cautioned that without such safeguards, the state’s new hate speech laws could lead to the criminalization of Aboriginal people for actions “that challenge oppressive systems and those in positions of power.”
Vals clarified that the Greens amendment would codify principles from existing federal case law, specifically McLeod v Power. In this 2003 case, a federal court dismissed a racial vilification claim filed by a white prison officer after an Aboriginal woman called him “white.”
“Victoria’s new anti-vilification laws, when properly applied, should protect our people from further criminalization when speaking out against injustice,” asserted Vals’ chief executive, Nerita Waight.
“As demonstrated in both the Sam Kerr case and McLeod v Power, their experiences of racialized power imbalances that dehumanized them and their needs prompted them to speak out.”
Additional Safeguards and Opposition
The Greens also successfully negotiated for third-party oversight of convictions, mandating that police secure consent from the Director of Public Prosecutions before proceeding with charges.
Furthermore, religious exemptions within the bill were narrowed to “prevent the vilification of LGBTQIA+ and other vulnerable communities.”
The Coalition opposed the bill, disagreeing with the legal standard applied to civil laws. This standard assesses whether a “reasonable person with the protected attribute” would deem the conduct hateful. Shadow attorney general, Michael O’Brien, contended that the test should simply be whether a “reasonable person” would consider the conduct hateful.
O’Brien cautioned that Victorians are now “at risk of being sued for expressing sincerely held beliefs that a very small group may find severely ridiculing or seriously contemptuous.”
Conclusion and Implementation Timeline
The bill’s passage concludes a five-year process involving a parliamentary inquiry and community consultation. The issue re-emerged prominently amidst rising antisemitism and the firebombing of the Adass Israel synagogue in Melbourne suburb of Ripponlea last year.
Victorian state premier, Jacinta Allan, stated that the changes are supported by Jewish, Muslim, Hindu, and Sikh groups, as well as advocates for women, people with disabilities, and LGBTQ+ individuals.
“We want Victoria to remain a place where everyone feels safe and free from hate, regardless of who they love, who they pray to, or how they identify,” she affirmed.
“If there is any indication of hate, police now have enhanced authority to address it as a crime.”
The criminal provisions of the bill will take effect in September, with civil aspects following in June 2026.