Criminalising racist hatred is a big step, but it will neither end free speech nor ‘fix’ racism in Australia
- Written by The Conversation
Given the large number of changes proposed by the Albanese government’s hate speech bill, it’s not easy to decide which is the most significant. However, Australia’s first ever national criminal offence of inciting racial hatred is certainly a contender.
As others have noted, criminal law-making on this scale should not be undertaken in a rush and without calm and fulsome consultation. However, the government seems determined to move swiftly on this in response to growing pressure in the wake of the Bondi terror attack.
It is significant this bill proposes to criminalise the incitement of racial hatred. For more than 30 years, the Australian consensus has been that racist hate speech (and other forms of hate speech) is most appropriately regulated primarily through civil laws such as section 18C of the Racial Discrimination Act. Criminal law has been reserved for hate speech that urges or threatens violence.
Few would argue about the appropriateness of criminalising behaviour of this sort. The criminalisation of racist hate speech that does not incite violence, however, is more contentious.
This new bill will make it a criminal offence to intentionally incite hatred of a person or group because of their racial identity. It’s important to note that, as a matter of law, Jews are regarded as a racial (ethno-religious) group. This is relevant because it is clear the main motivation for this round of law-making is the government’s determination to make a strong response to the horror of the Bondi terror attack, and to address concerns about rising antisemitism.
This new federal offence will not be the first racist incitement offence in Australia (Western Australia created such an offence in 1990, and New South Wales and Victoria followed suit in 2025). But its enactment would nonetheless signify a significant shift in the national balance between the right to free speech and the right not to be subjected to racial hatred.
Even though the right to freedom of expression is not expressly protected in the Australian Constitution (as it is in many countries, often through a bill of rights), the principle of free speech is important in Australia’s democratic political system.
It is also a right all Australians enjoy under international law. Since the 1990s, the High Court has recognised that a limited type of free speech protection is found in the Australian Constitution in the form of the implied freedom of political communication.
So how is the new crime defined?
Under the proposed new law, a person commits an offence if they engage in conduct in a public place intending to either:
- “promote or incite hatred of another person or a group of persons” because of their race; or
- “disseminate ideas of superiority over or hatred of another person or persons” because of their race.
In addition, the prosecution will need to establish 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”.
On face value, this offence might appear to significantly restrict free speech. But it is important to note there is a high threshold for conviction. The prosecution will need to prove not simply that the conduct was experienced by the target group as intimidating, harassing or fear-inducing, but that the speaker intended to promote or incite hatred, or disseminate ideas of superiority or hatred.
This represents an important constraint on the sort of conduct that will be criminalised by this new offence.
Will this curtail free speech?
The concern often raised about laws of this sort is that they have a chilling effect on free speech, and that this is undesirable in a liberal democracy.
However, much will depend on how the offence is put into operation by police and prosecutors. The intention of the proposed new offence is to only “chill” particular types of speech: harmful hate speech that is seriously inconsistent with Australia’s commitments to multiculturalism and cultural diversity.
That may upset free speech absolutists, but Australia’s approach to free speech has always been more qualified and pragmatic, recognising the need to balance competing interests and rights.
It will take some time before we can make a full assessment of the significance of this new offence if it is introduced. But it would be a mistake to expect too much of the criminal law as a tool for changing attitudes and behaviours.
Criminal laws can play an important symbolic and educational role. They offer some capacity to deter harmful behaviour, and they facilitate punishment where the conduct is detected and prosecuted. But such laws are rarely a panacea for social disharmony, and they should never be used as a tool for restricting legitimate political expression.
