George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Yes, that is the case, Senator Leyonhjelm. This is the difference: incitement is a very ancient offence under the criminal law and there are various kinds of incitement. The most familiar one is incitement to violence or incitement to public disorder. Over the years and, indeed, centuries, the courts have interpreted the crime of incitement to require a direct relationship between an overt act, which can be words—it is usually words—or gestures, and a particular identified form of disorder, whether it be violence, riot or whatever.

The reason the government has decided to extend the prohibition in relation to genocide beyond incitement to advocacy is that advocacy is a broader concept. It does not have to be tied as directly to a specific outcome. If, for example, a hate preacher were to say, 'The Jews should be driven into the sea and exterminated,' that would not necessarily constitute the offence of incitement of genocide if the language were, as it were, merely offensive rhetoric, but it would constitute advocacy of genocide. So it is a much broader test and, we think, justified because there are no circumstances whatsoever in the government's view where the advocacy of the slaughter of a population—of genocide—should be anything other than a crime.