Governments can’t control people’s thoughts, but they must try to stamp out hate speech

Free speech is a cornerstone of a democracy. It is also one of its most vulnerable tenets to attack. At times in recent years legislators have often debated whether curbs on this essence of a citizen’s freedom are necessary to protect the greater good, that is, the social cohesion of the whole. It is no small thing to do. Nor is it a small thing to try to legislate against hate.

This is Australia, and Victoria, in 2025. On Tuesday, federal parliament debated a proposal by independent MP Allegra Spender to make it a criminal offence for a person to commit a public act with the intent to promote hatred towards another person or group. She put forward the proposal because she believed the government’s draft laws on vilification and hate speech were not strong enough.

Independent MP Allegra Spender in federal parliament on Tuesday.Credit: Alex Ellinghausen

“I’m a very big advocate for free speech, but if you are trying to vilify groups to drive hatred, I think Australians want to see a line drawn on that,” Spender said earlier this week. “I think we need to have laws against extreme expressions of words that can really create an environment where hatred and violence can flourish.”

Her proposal is the latest in a string of political moves over the years to tackle the issue of free speech and hate speech. As federal parliament showed on Tuesday, condemnation is the easy bit; it unanimously passed a motion condemning antisemitism. Legislation is another matter.

More than a decade ago, the Coalition first tried to overhaul section 18C of the Racial Discrimination Act after its MPs believed it went too far, but then backed down with a “leadership call” from prime minister Tony Abbott, and much public backlash. Then attorney-general George Brandis had led the government’s bid to wind back 18C, famously proclaiming that people had the “right to be a bigot”.

As chief political correspondent David Crowe reported this week, the Albanese government had initially promised early last year to outlaw serious vilification but dropped this from its draft legislation because Christian and Islamic groups, in particular, could not agree on a balance between free speech and protections for religious beliefs.

In Victoria, parliament has before it the Justice Legislation Amendment (Anti-Vilification and Social Cohesion) Bill 2024. This expands Victoria’s anti-vilification laws from the present protections in law of race and religion to include “disability, gender identity, sex, sex characteristics, sexual orientation and personal association with a person who is identified by reference to any of the previous”. It also lowers the threshold from conduct inciting vilification to “likely to incite vilification”.

Premier Jacinta Allan has said the bill will “strengthen police powers against hate. This is a bill that is making hate a crime – addressing hate like the cancer of antisemitism that we are seeing spread throughout our communities.”

This aligns with the briefing paper for the proposed legislation, which notes that events in Australia and overseas in recent years have led to an increase in reports of vilification. It cites the Victorian Legislative Council’s legal and social issues committee reporting that since 2015 there has been a resurgence of far-right extremism in Victoria, specifically a rise in racism, Islamophobia, antisemitism and an increased threat to LGBTQ communities. But quantifying vilification in Victoria was problematic as few had been charged or convicted.

However, the October 7, 2023, massacre by Hamas of Israelis and the consequent war in Gaza in which Israel has killed more than 45,000 Palestinians, has inflamed tensions locally and forced governments to act.

The state government’s proposed changes have brought praise and criticism across the political and societal spectrum, which indicates the complexity of the issue. The government has included a broad political defence clause in the proposed legislation. It is needed to “protect political communication and allow everyone to engage in genuine and robust debate”.

However, the Zionist Federation of Australia, Zionism Victoria, the Jewish Community Council of Victoria and the Rabbinical Council of Victoria will meet state Attorney-General Sonya Kilkenny on Thursday to seek the removal of the clause. Liberal frontbencher David Southwick, the state’s most prominent Jewish MP, does not believe the bill offers any protection against serious vilification. “The genuine political purpose defence is so broad it almost makes the proposed laws meaningless. If anything, passing this bill without amendments could make a bad situation worse and green-light some of the recent hate that we have seen against the Jewish community.”

This goes to the nub of the problem in using legislation to set a balance. While the state cannot control people’s thoughts of love or hate towards others (we are not at George Orwell’s thoughtcrime scenario), it can try, must try, to stomp out hatred towards others.

That it is a challenge of almost Sisyphean dimensions shouldn’t be a reason not to keep trying.

Legislation alone will not stamp out hate. Meaningful progress on social cohesion will also require leadership, tolerance and moral fortitude from those in positions of influence across the community.

All actions start with words. All speech starts with responsibility.

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