Drawing the line on hate: Are Australia’s new laws the answer, or an overreach?

With the spate of antisemitic attacks in New South Wales and Victoria over the last few months, Australia is grappling with this complex issue. Both the Federal and NSW governments have proposed sweeping changes to hate speech laws. But are they a necessary step or a dangerous overreach?

The urgency of this issue is undeniable. Recent incidents, like the disturbing case of two NSW nurses verbally abusing a social media influencer with violent threats and appalling antisemitic comments, highlight the real-world consequences of digital hate. This begs the question: If someone commits violence after seeing such posts or comments, could the original poster be held responsible for incitement?

Doubts cast on the Federal government’s bill

The Federal government’s Criminal Code Amendment (Hate Crimes) Bill 2024 attempts to tackle the issue of hate speech head-on. It creates new offences targeting those who advocate or threaten violence against groups (defined by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin, or political opinion) or a place of worship. This bill complements existing laws criminalising the public display of Nazi and terrorist symbols, and the Nazi salute.

“We are sending a clear and unambiguous message that advocating or threatening violence is not acceptable,” declares Attorney-General Mark Dreyfus. There’s no questioning that the issue needs to be addressed, but are these changes backed by necessity?

UNSW Law Professor Luke McNamara isn’t so sure. He argues that much of the targeted behaviour is already illegal.

“We didn’t need a new provision in the criminal code to make arson or firebombing a criminal offence; it already was,” McNamara points out.

The only innovation in the laws that he can identify is that it criminalises actions that might lead to violence. Still, he’s yet to see a real-world example of speech demonstrably urging violence against a group that wasn’t already illegal, questioning the need for new offences.

He believes that while the new laws technically broaden the scope of offences, he questions whether this will translate into meaningful real-world change. According to McNamara, the effectiveness hinges on police and prosecutors being able to identify and successfully prosecute conduct that fits the new, expanded definitions – a significant “if.”

“It’s in the nature of the conduct … it’s not an easy conduct to detect, and I hope it’s also the fact that it doesn’t occur all that often in the Australian context,” McNamara says.

“There’s been kind of an assumption that each of these acts … have been precipitated by some urging behaviour by someone else … that may or may not be true, but it’s just speculation. Even if it’s happened, clearly the people responsible for that urging haven’t been detected.”

McNamara believes the changes are more about signalling concern and reassuring communities, particularly the Jewish community: “Understandably, many sections of the Jewish community feel under siege, and so there’s an understandable urge to respond.” But he questions if new criminal laws are the best solution.

NSW Government’s response criticised as kneejerk reaction  

Following the wave of antisemitic attacks in Sydney, the NSW Government is proposing its own set of strict measures:

• Intentional Incitement: up to 2 years in jail for intentionally inciting racial hatred.
• Nazi Symbols Near Synagogues: increased penalties (up to 2 years) and clarification that graffiti is a “public act.”
• Blocking/Harassing at Places of Worship: up to 2 years in prison.
• Expanded Hate Crime Definitions: more crimes will be considered hate motivated.

But the Council for Civil Liberties warns against “reactionary” responses, suggesting the NSW Government is ignoring its 2024 review of hate speech laws led by Tom Bathurst KC, where the NSW Law Reform Commission recommended that the current criminal vilification offences in the NSW Crimes Act be maintained. The Council for Civil Liberties says, “You cannot arrest your way into social cohesion.”

The Human Rights Law Centre echoes this concern. Sarah Schwartz labels the changes “rushed, kneejerk laws” without proof that they address the issues. She states, “Governments should be prioritising investigating the nature of these incidents before passing rushed and punitive laws, without proper community consultation.”

“More police powers will not address the rise in antisemitism, racism and far-right extremism that is harming our communities. A clear line must be drawn between preventing acts of violent racism, and intimidation on the basis of religion and protecting the right to peacefully protest,” Schwartz says.

McNamara also questions whether recent incidents justify a shift that could chill legitimate dissent. He says there need to be clear legal boundaries, defining criminal racial hatred versus protected speech.

“[T]his bill will need to be really clear about which forms of conduct qualify as criminal racial hatred or, more specifically, criminal antisemitism, and which forms of conduct are going to be recognised as legitimate expressions of people’s right to protest,” McNamara says.

There is also a concern that the new laws disregard vulnerable and marginalised groups such as the LGBTIQ+ community. Alastair Lawrie, Director of Policy and Advocacy at the Justice and Equity Centre, sharply criticises the NSW Government for dangerously overlooking anti-LGBTIQ+ hatred while prioritising legislation against religious vilification.

“By introducing a new criminal offence of ‘intentionally inciting racial hatred’ – but only racial hatred – the Government is effectively saying that other forms of hatred are less serious, and do not deserve the same legal response,” Lawie stated.

He urges the NSW Government to treat anti-LGBTIQ+ hate with the same seriousness and implement necessary protections.

This perceived neglect has deeply alarmed Equality Australia and LGBTIQ+ advocates, who argue the government is dismissing the rising threat and lived experiences of the LGBTIQ+ community, especially transgender individuals, who face increasing hate speech and discrimination.

“There is no reason why this further offence couldn’t be applied to all attributes currently protected by the law,” said Equality Australia CEO Anna Brown.

Brown argues that the government needs to prioritise preventing hate from escalating into violence, rather than weighing the suffering of one group against another. Citing recent reports of LGBTIQ+ people being targeted with accusations of paedophilia and online hate, she warned that without stronger protective laws, abusers are essentially given permission to continue their harassment, increasing the risk of physical violence.

The free speech tightrope: Where’s the balance?

Freedom of expression is a cornerstone of democracy, but it’s not absolute. International law does allow limits to protect others’ rights and prevent incitement to discrimination, hostility, or violence. However, defining “hate speech” is tricky, and there’s no consistent universal agreement.

McNamara believes the federal government’s changes maintain the balance between free speech and protection from discrimination. He reiterates the 35-year legal distinction between criminal penalties for threats of violence/property damage and civil remedies for other forms of racism. He states, “I think the new laws leave in place the status quo when it comes to the balance between free speech and the right to be free from discrimination and vilification.” He notes that a recent proposed amendment by Wentworth MP Allegra Spender to criminalise vilification without proof of incitement or threats was not supported by parliament, reinforcing his view that the balance remains.

McNamara reiterates that lawmakers should be specific about what they’re targeting. He worries about the “slightly vague spectre of criminalising what people choose to say, and contemplating criminally punishing someone who engages in behaviour which may already be unlawful under civil laws, but which may not involve any threats of violence or damage to property.”

Ultimately, the success of these new laws hinges not only on their legal provisions but also on their societal impact. Will they foster a more inclusive and tolerant society or inadvertently stifle legitimate expression and exacerbate existing divisions? Continued monitoring of the law’s implementation and its effects on free speech will be essential to ensure that it serves its intended purpose without undermining fundamental democratic values.