A ‘Sam Kerr clause' and long jail terms: Victoria passes tough new anti-vilification and social cohesion laws
The Australian state of Victoria has passed laws to crack down on hate speech, which include a so-called 'Sam Kerr clause' to prevent the harsh new penalties from being used to punish the people they are intended to protect.
Those found guilty of serious vilification offences, such as inciting hatred or making physical threats, will face up to five years in prison after the 'anti-vilification and social cohesion' bill passed state parliament on Wednesday.
Its a significant increase from previous vilification offences, which were rarely prosecuted and carried a maximum penalty of just six months. The laws also expand existing protection against hate speech – previously limited to race and religion – to include disability, gender identity, sex and sexual orientation.
To secure the bill's passage through parliament, the Victorian Labor government struck a deal with the Greens to add several safeguards, including requiring police and the courts to consider the 'social, historical, and cultural context' when making decisions about vilification in both civil and criminal cases.
It was referred to as the 'Sam Kerr clause' during the debate, said Animal Justice party MP Georgie Purcell, who supported the amendment.
Kerr, a star of Australia's national women's football team and striker for Chelsea FC, was found not guilty of racially aggravated harassment by a London court in February after calling Metropolitan police officer 'fucking stupid and white'.
Kerr's comments, made in January 2023, came after officers doubted her claims of being 'held hostage' in a taxi, sparked debate about free speech and race, especially in the UK where there have been several high-profile cases involving people of colour being charged with racially aggravated offences.
'We recently saw in the Sam Kerr trial the way that laws designed to prevent vilification and discrimination can be weaponised against their intended purpose,' Purcell said.
'It was important to many of us on the crossbench that these new laws were implemented to be accessible for the communities who need them while also not being exploited.'
Greens MP Gabrielle de Vietri said the clause will capture power imbalances and prevent misuse against over-policed communities.
'We know that First Nations and marginalised communities are disproportionately and unfairly targeted by police,' she said.
'That's why we fought really hard for these critical changes that protect people experiencing systemic injustice and safeguard these laws from being misused to criminalise people who are already overpoliced.'
The Victorian Aboriginal Legal Service (Vals) had warned that without safeguards, the state's new hate speech laws could result in an Aboriginal person being criminalised for actions 'that challenge oppressive systems and those in positions of power'.
Vals said the Greens amendment would codify the principles from existing federal case law established in McLeod v Power, where a federal court in 2003 dismissed a racial vilification claim made by a white prison officer after an Aboriginal woman called him 'white'.
'Victoria's new anti-vilification laws, when implemented correctly, should protect our people from further criminalisation when speaking up against injustice,' Vals' chief executive, Nerita Waight, said.
'As we saw in both the case of Sam Kerr and also McLeod v Power, their experiences of racialised power imbalances that dehumanised them and their needs caused them to speak out.'
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The Greens also successfully negotiated to ensure there was third-party oversight of convictions, with police required to obtain consent from the Director of Public Prosecutions before proceeding with charges.
Religious exceptions contained in the bill were also narrowed to 'prevent the vilification of LGBTQIA+ and other marginalised groups'.
The Coalition opposed the bill, disagreeing with the legal test applied to the civil laws, which asks whether a 'reasonable person with the protected attribute' would consider the conduct hateful. Shadow attorney general, Michael O'Brien, argued that the test should simply be whether a 'reasonable person' would consider the conduct hateful.
O'Brien warned that Victorians were now 'at risk of being sued for expressing honestly held views that a very small group may find severely ridiculing or seriously contemptuous'.
The bill's passage marks the conclusion of a five-year process that included a parliamentary inquiry and community consultation. The issue gained renewed prominence amid rising antisemitism and the firebombing of the Adass Israel synagogue in Melbourne suburb of Ripponlea last year.
The Victorian state premier, Jacinta Allan, said the changes had the support of Jewish, Muslim, Hindu and Sikh groups as well as advocates for women, people with disabilities and LGBTQ+ people.
'We want to see Victoria continue to be a place where you are safe, a place where you are free from hate, no matter who you love, whoever you pray to, however you identify,' she said.
'If there is any hint of that, then police have strengthened powers to crack down on hate as a crime.'
The criminal provisions of the bill will come into effect in September with civil aspects to follow in June 2026.
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