AAP FactCheck - Australians can't be jailed for a supposedly "incorrect" political opinion merely if a protected group perceives it as a threat under a new law, despite claims being shared online.
Experts say the law created two offences involving threatening violence or the use of force against particular groups, and multiple legal thresholds must be met to result in a conviction.
The federal government updated hate crime laws in February amid a spike in anti-Semitic attacks in Australia, including imposing mandatory minimum jail terms for public Nazi salutes.
In an X post, former Liberal MP Craig Kelly claims the amendments are a "Trojan horse" that could see people jailed for up to seven years simply because a group "believes" their comments threaten the use of force.
"With the passing of the Trojan horse 'Hate Speech' laws (passed by Labor, Liberal & Greens - with One Nation abstaining) where you can be arrested and jailed (for up to 7 years) for expressing an 'incorrect' political opinion," Mr Kelly wrote.
"Under this new law, it doesn't matter if you made the comment in genuine 'good faith' engaging in debate about a matter of public interest, or pointing out (with the view of reforming) errors or defects in government policy or the administration of law - you can still be arrested and jailed.
"All that is required is for some "group" (including groups distinguished by political opinion) to take offence at your comments and say they believe that your comments "threaten the use of force" (whatever that means) and you'll face arrest and 7 years imprisonment."
The post by Mr Kelly, who's running as a Senate candidate in the 2025 federal election, has also been widely shared on Facebook.
However, legal experts said it was false that the only requirement for someone to be jailed over their comments was for a targeted group to say they perceived the comments as a threat to use force.
Katharine Gelber, a free speech and law expert at the University of Queensland, said amendments focus on criminal conduct, not political speech.
She said the bill added two offences using the term "threaten" (Sections 80.2BA and 80.2BB) to the Criminal Code Act 1995.
Those offences contained a number of components, she said, including a threat to use force or violence targeting a group based on their race, religion, gender identity or political opinion, or targeting group members or associates.
The offences require that a "reasonable member of the targeted group would fear that the threat will be carried out" as well as recklessness by the person making the threat, she said.
"Since the advocacy of violence or force against marginalised groups or members of groups cannot be justified on free speech grounds, since it clearly crosses the line into incitement which has long been a basis for criminal offences, this claim does not stand up to scrutiny," she told AAP FactCheck.
Bill Swannie, a law lecturer at the Australian Catholic University, said the law targeted speech that advocated or threatened force against specific groups.
"It is incorrect to state that the Bill prohibits expressing an 'incorrect' political opinion," Dr Swannie told AAP FactCheck.
"This claim suggests that the Bill sets a very low threshold for what is prohibited 'hate speech'. In fact, advocating or threatening force or violence against a group is quite a high threshold, compared for example to NSW [laws]."
He said in a legal sense, "a threat" was a communication indicating an intention to harm others.
Dr Swannie agreed there were high thresholds for both offences, including that "a reasonable member" of the group would fear the threat to use force being carried out.
He said "reasonable" meant an objective rather than a subjective standard applied.
"Irrational or disproportionate responses would not be considered reasonable," Dr Swannie said.
He pointed out that the offences also required a threat to use force against a group, if carried out, to also threaten "the peace, order and good government of the Commonwealth".
"This means that the threat must essentially endanger Australia's national security," Dr Swannie said.
"This is a very high threshold."
Mr Kelly's post also claimed that: "In the USA, such law would be unconstitutional thanks to the provision of the 1st Amendment protecting free speech - but with no such specific provision in the Australian Constitution, Australians will face up to 7 years in jail for saying something that would they'd be free to say in the USA".
That implied the bill could restrict the free expression of "political opinion" because the Australian Constitution had no free speech provision.
While it's true there's no specific provision, Dr Swannie said the High Court has held that the Constitution grants an implied freedom of political communication, which applies to matters of politics and government.
He said the court ruled this implied freedom could be limited, but only "so that the restriction is no more than reasonably necessary".
"Therefore, the Act may be challenged on the grounds that it is inconsistent with the Constitution," Dr Swannie said.
"Therefore, the Act restricts speech, but it does so proportionately and no more than is reasonably justified."
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