If ‘hate speech’ laws go too far, we will lose essential freedoms

Ever since Australia’s antisemitism crisis began, on the evil night two days after the October 7 massacres when pro-Palestinian demonstrators assembled on the Opera House steps, chanting anti-Jewish slogans and displaying solidarity with Hamas terrorists, the reaction of Chris Minns has been noticeably stronger than that of Anthony Albanese.

In the face of escalating antisemitic outrages, Minns has been passionate and furious. Albanese’s reaction, including the refusal to condemn antisemitism without including gratuitous references to Islamophobia, has been passionless. There has been nothing like Minns’ visceral anger.

Penny Wong’s condemnations have seemed like formulaic recitations of talking points as, meanwhile, she sold Israel down the river in the United Nations. Mark Dreyfus, Australia’s most senior Jewish politician, has been missing in action.

NSW Premier Chris Minns and Prime Minister Anthony Albanese have taken a different approach to hate speech legislation amid a spike in antisemitism.Credit: Graphic illustration by Aresna Villanueva

However, when in recent days both federal and state parliaments have had to calibrate the correct legislative response, it is Minns who has over-reached, while Albanese – under pressure from Peter Dutton – has made the right call on amendments to “hate speech” laws.

Minns has announced that, against the recommendation of the Law Reform Commission, he will amend s. 93Z of the Crimes Act by extending the existing offence of incitement to violence against various defined groups, to incitement to hatred. The NSW Opposition will meet on Monday afternoon to finalise its position.

Minns’ amendment is similar to that moved in the House of Representatives last Thursday by the Member for Wentworth, Allegra Spender. Her amendment was not supported by either the government or opposition. They were right not to do so.

Liberal societies have always recognised the fundamental difference between conduct which causes harm to others and that which merely gives offence. Acts which fall within the former category, such as incitement of violence, intimidation, harassment or causing fear, should be – and in the case of inciting violence, always have been – crimes. There is a powerful case that, when that conduct is directed against a particular vulnerable group, a higher degree of criminality is involved, warranting a specific offence and higher penalties.

But the expression of hostility – even hate – has, in itself, never been a crime. If it were, a great deal of public discussion about passionately contested issues would be against the law.

Independent Allegra Spender’s amendment to the new hate speech legislation failed to win the support of the government or the opposition.Credit: Alex Ellinghausen

Hate is a vague and plastic concept, with no clear legal meaning. Like love, it is a human emotion which all of us can feel. Although usually a pejorative, it is not always so: virtuous people loudly proclaim their hatred of oppression or injustice. The scriptures contain many injunctions to hate sin. People who have never opened a Bible have probably heard the words of Ecclesiastes – the inspiration of many a folk song – which tells us there is a time for everything under the sun, including “a time to love and a time to hate”. (This is generally understood to mean hatred of evildoing.)

Hate crime legislation is intended to protect members of identified, vulnerable groups. Who could disagree with that? But the superficial attractiveness of such laws conceals potentially vast unintended consequences.

The usual structure of such laws is to create a generic prohibition and then list a number of specific “protected categories”. Originally, these tended to be the those identified in the UN Covenant on Civil and Political Rights, such as race, religion, ethnicity, gender and sexuality. More recently, the number of protected categories has become much larger, to include, for instance, trade union membership or women exercising “reproductive rights”.

At the time of writing, the draft text of the NSW amendment had not been published. But, even if the Minns bill is not so extensive, we well know from federal anti-discrimination law that the number of protected categories only ever increases. Will a priest preaching his church’s teaching against abortion be at risk of committing the crime of inciting hatred? A sportsman explaining his refusal to wear a Pride flag? A politician railing against the evils of the CFMEU?

Even if we confine ourselves to the immediate purpose of the amendments, the same provision which would capture antisemitism could equally capture condemnations of Islamist ideology. Jewish Australians who demand such laws should reflect that those laws protect their tormentors too, limiting their capacity to call out Islamofascism for what it is.

It is not the business of governments to tell people what they may or may not think. It is not the state’s role to regulate opinion on political, social, moral, religious or cultural questions – or to prohibit the passionate expression of such opinions. It is the role of the state to protect people from harm. And while we recognise that harm extends beyond physical harm – or the apprehension of it – to psychological harm, it cannot mean criminalising hostile attitudes.

Yet hate speech laws have been used as a Trojan horse to prohibit – or even, now, criminalise – attitudes and beliefs of which society disapproves. The corollary is that society – through government and its agencies – claims a right to prescribe what attitudes and beliefs are acceptable. And so, in the name of a good cause, what may be said is policed by ever-more intrusive political censorship.

That is how free societies lose their freedoms.

John Stuart Mill, the 19th century’s greatest apostle of liberalism, wrote in On Liberty: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

Liberals and conservatives, in particular – the traditional defenders of freedom of speech – need to consult their first principles and ask: is this significant, and probably irreversible, expansion of the power of the state something which, because of the political exigencies of the moment, they should countenance?

George Brandis is a former high commissioner to the UK, and a former Liberal senator and federal attorney-general. He is now a professor at ANU.