Snapshot
- Over a remarkably short period, Australia’s patchwork of state and federal racial hatred laws have undergone a sweeping expansion.
- In this special essay, Anne Twomey argues that many of these reforms rest on uncertain foundations — introducing subjectivity, inconsistency and constitutional risk into the criminal law.
- Twomey ultimately questions whether the consequences of the new laws may be more complex and problematic than intended.
Across Australian jurisdictions, the last few years have seen a revolution in laws directed at hatred, including racial hatred. This has included the enactment of criminal offences for vilification and inciting hatred, the banning of symbols, slogans and gestures, and the prohibition of hate groups. The laws have commonly been enacted in reaction to particular events, without serious assessment of whether they are likely to be effective in curbing such conduct or, instead, counter-productive by exacerbating division and hatred. They are also notable for being more subjective in nature, broad and vague in their application, constitutionally dubious, and raising inter-jurisdictional problems.
The shift from civil to criminal law
In the past, racial hatred was primarily dealt with at the civil level, by way of conciliation by human rights bodies (see, e.g., section 18C of the Racial Discrimination Act 1975 (Cth) (‘RD Act’) and section 20C of the Anti-Discrimination Act 1977 (NSW) (‘AD Act’)). This was seen as a better way of supporting and achieving social cohesion. The criminal law was regarded as a blunt instrument, the use of which would be more likely to exacerbate social divisions and aggravate existing enmities. Conciliation was considered a better way to ensure perpetrators understand the impact of racial hatred on others and encourage their development of empathy and regret.
