Does the Albanese government’s proposed ‘hate speech’ law give us what we need?

Back in May, the Albanese government told us to expect strict new hate speech laws.

In its bill introduced to parliament this week, though, the government has stepped back from the plan to criminalise racist hate speech.

Instead, conduct will be criminalised only where it involves “threats of force or violence”.

This will be disappointing to some, particularly those who were looking for stronger protections against racism – including antisemitism and Islamophobia – in the wake of the ructions caused in Australia by the events in Israel and Palestine.

But when this latest development is placed in the longer history of the development of hate speech laws in Australia, we see it continues a consistent pattern of preferring civil remedies over criminal penalties to address most forms of group vilification.

A long-standing battle

Since at least the 1970s, Australian governments have been trying to work out what laws, and in what form, are required to address racism.

Something close to consensus was reached on the idea that racial discrimination should be unlawful. It now is under the Racial Discrimination Act 1975, as well as anti-discrimination statutes in every state and territory.

Consensus on the legal regulation of racial vilification (sometimes referred to as racist “hate speech”) has been more elusive.

Nonetheless, 30 years ago, the then-Labor government did manage to add a hate speech provision (section 18C) to the Racial Discrimination Act when parliament enacted the Racial Hatred Act 1995.

The states and territories also have their own versions of vilification laws (addressing race and a range of other grounds).

A bold approach, initially

When the Albanese government announced this year it was planning to legislate further on hate speech, the suggestion it would include new criminal offences caught the attention of lots of people. This included academics like me who have researched vilification laws since the 1990s.

We raised our eyebrows because a defining feature of Australia’s attempts to legislate in this area has been a preference for civil laws – where an aggrieved person can take private action against those responsible – over criminal laws.

The use of criminal laws has been seen as too great an infringement of the right to freedom of expression.

Even though it receives only patchy and relatively weak legal protection in Australia, free speech “sensitivity” has been a powerful force in political debates in this country.

Some politicians have also not been shy about weaponising it, such as when the Coalition government established an inquiry in 2018 into whether free speech was being adequately protected on university campuses.

Given this history, the Albanese government’s announcement in May set the stage for another fiery debate about what laws were best suited to addressing hate speech. As it happens, this also came ten years on from a succession of (unsuccessful) efforts by Coalition governments to curtail section 18C or effectively repeal it altogether.

But the Albanese government has now stepped back from its initial plan. Instead, the modified and new criminal offences will only apply to conduct that not only vilifies, but also involves threats of violence or force against a group (or a member of a group).

This is a much less controversial form of criminalisation. And most Australian states and territories already have offences of this sort – for example, the offence of publicly threatening or inciting violence in the NSW Crimes Act.

What will the impact be?

We should be cautious about expecting too much from the proposed new federal criminal offences.

Prosecutions and convictions for these “aggravated” forms of vilification are extremely rare in Australia. The tally in NSW is zero, some 35 years after that state pioneered the criminalisation of vilification involving threat of physical harm or property damage.

The NSW Law Reform Commission is currently conducting an inquiry into why this is and whether further reforms are warranted.

It seems unlikely things will be different with new Commonwealth offences. They have complex definitions and will be challenging to prove beyond reasonable doubt.

Of course, just because a criminal offence is not regularly prosecuted doesn’t mean it has served no purpose. Sometimes, governments turn to criminalisation for its symbolic and “message-sending” powers.

And yes, sometimes this is a cynical exercise in being seen to be doing something without changing much at all. Whether this is a fair characterisation remains to be seen.

In the meantime, perhaps the great disappointment will be felt by members of Australia’s Muslim communities.

The new criminal laws on threats of violence will apply to a wide variety of identifying characteristics. They include religion, race, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.

However, the bill will not amend the more useful civil laws in the Racial Discrimination Act to extend to religious vilification.

Whether Islamophobia is correctly characterised as “religious” or “racial” vilification, it is clear that, at the federal level, Australian Muslims are not protected by the section 18C of the Racial Discrimination Act in its current form.

In my previous research with Professor Katharine Gelber, we identified this as the biggest gap in Australia’s hate speech laws.

By contrast, antisemitism is legally regarded as a form of racism, and section 18C of the Racial Discrimination Act has been effectively engaged by Jewish organisations and individuals against forms of antisemitism, including Holocaust denial.

Since the Hamas attack on Israel on October 7 2023, the Australian government has attempted to hold the public position that it is equally concerned about all forms of discrimination and hate speech, including both antisemitism and Islamophobia.

And yet, while a special envoy to combat antisemitism has been appointed, the promise of a special envoy on Islamophobia has yet to materialise.

The new hate speech bill introduced by the government does little to deliver on a true commitment to multiculturalism and anti-racism. We await the Albanese government’s more active steps in that direction.