Australia’s dangerous new hate speech bill

In the wake of the Bondi Beach terror attack, the government has responded in the predictable way.

Restrictions on freedom of speech are often perceived as the magical solution to society’s ills. After the horrific murder of the toddler James Bulger in 1993, there were parliamentary debates about the need for tighter controls on violent movies and video games. More recently, the murder of Sir David Amess in 2021 prompted politicians in the UK to argue that further online censorship was necessary to prevent similar atrocities in the future. The problem of crazed Islamists living in our country was somehow overlooked.

The Australian government is now following the same predictable pattern. It has published a draft of its new ‘Combatting Antisemitism, Hate and Extremism Bill’ as a response to the antisemitic terror attack at Bondi Beach last month. As ever, the intentions are good. That road to Hell is always tempting, not least because politicians – like the rest of us – struggle to make sense of the inexplicable. We do not understand what could possibly motivate our fellow human beings to commit such appalling acts of violence. And so we tend to seek easy answers, such as the belief that controlling language will limit real-world harm. Unfortunately, it isn’t true.

Even if it were, the threats to liberty in the new Bill are severe, and all law-abiding Australian citizens should be very concerned. At the centre of the Bill is a new ‘racial vilification offence’ inserted into the Criminal Code. This will mean that a person commits an offence if they engage in public conduct ‘with the intention of promoting or inciting hatred of another person or a group of persons’.

As with all such laws, ‘hatred’ is not satisfactorily defined, leaving it wide open to exploitation. The closest we get to a definition is that ‘the offence is motivated by hatred if, at the time of the conduct, or immediately before or immediately after the conduct, the person demonstrated, or expressed, hostility, malice or ill-will’. But hostility, malice and ill-will are – like hatred – human emotions that cannot be wished away by the statute books.

Nor should they be criminal in any free society. Laws against inciting violence are justifiable, because violence impinges directly on the human rights of others. But laws against inciting negative human emotions veer directly into the territory of the Thought Police.

This Bill makes clear that nobody actually needs to be harmed for someone to have committed a crime. Rather, it is sufficient that the conduct would ‘cause a reasonable person who is the target, or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety’. In other words, incitement to violence (which is already illegal) is conflated with intimidation based on the perception of a theoretical ‘target’ (whether they exist or not), an impossibly subjective standard. The penalty is five years in prison.

Once emotional response has become the threshold for criminality, free speech protections inevitably collapse. Almost any robust political, religious or cultural disagreement can be framed as causing fear to some ‘reasonable’ member of a group. But the Bill takes this even further by criminalising the intention ‘to disseminate ideas of superiority over or hatred of another person, or a group of persons’. So unpalatable ideas are to be included under the same bracket as incitement to violence, a direct repudiation of the values of a liberal democracy.

It gets worse. For the full chilling effect, I’ll quote this section in full:

‘For the purposes of subsection (1), it is immaterial whether:

(a) the target, or members of the target group, actually are distinguished by the particular race, colour or national or ethnic origin; or

(b) the conduct actually results in hatred of another person or group of persons; or

(c) the conduct actually results in any person feeling intimidated, fearing harassment or violence, or fearing for their safety.’

Under these guidelines, even if no-one felt intimidated, and no hatred was actually incited, the accused could still be found guilty with a maximum penalty of five years.

This doesn’t simply apply to racist bigots shouting in the street. You can fall foul of the law by inciting hatred through the means of ‘speaking, writing, displaying notices, graffiti, playing of recorded material, broadcasting and communicating through social media and other electronic methods’ or via ‘actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia’. Every conceivable means of expression appears to be covered.

Laws against ‘hate speech’ have no place on the statute books. They are an affront to our basic human rights, and a sure sign that a government has turned authoritarian. They have the effect of chilling mainstream views as well as controversial ones, depending on who is in power at any given time and where the Overton Window happens to be situated. The vagueness of the language is particularly troubling in a country like Australia, where even to acknowledge that sex is binary and immutable is often characterised as ‘hatred’ by members of the political and media class.

The Australian government wants to jail people not for their actions, but for how their words might make other people feel. If this strikes you as harmless, you might want to brush up on your history.

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