Winston Churchill’s observation that democracy was “the worst form of government, except for all those other forms that have been tried” couldn’t be more relevant as the federal parliament considers whether to commit the greatest assault on free speech and free association in the nation’s history.
The Combating Antisemitism, Hate and Extremism Bill would see Australians democratically impose on themselves “hate speech” laws potentially more vague than those in China, the alleged archetype of 21st-century totalitarianism. China outlaws hate speech against racial minorities too. “Whoever incites ethnic hatred or discrimination, if the circumstances are serious, shall be sentenced to fixed-term imprisonment” or lesser penalties such as deprivation of political rights, section 249 of the Chinese Criminal Code says.
The circumstances don’t need to be “serious” to face imprisonment, according to the government’s bill. Indeed, unlike in China, no hatred or harm even need to have been incited for individuals to face prison. “It is immaterial whether the (hateful) conduct actually results in hatred … or actually results in any person feeling intimidated, fearing harassment or violence, or fearing for their safety,” the bill reads.
The threshold for criminality and at least five years in prison rests on whether a hypothetical “reasonable person” believed the allegedly hateful conduct “could incite another person or a group of persons to offend, insult, humiliate or intimidate”.
So this bill isn’t only about legislating to stop hurt feelings, but the mere possibility of hurt feelings. Hateful conduct even includes “disseminating ideas of superiority over another person, or a group of persons, because of their race, colour or national or ethnic origin”.
In outlawing supposed “hate groups”, mere membership of which would attract imprisonment, the bill even says the minister is “not required to observe any requirements of procedural fairness”, eviscerating cherished legal principles going back to the Magna Carta. Where does all this leave Australians protesting foreign ownership, or against excessive immigration? Rhetoric in the heat of public debate could easily see charges laid against ordinary law-abiding Australians who would never dream of causing physical or even emotional harm.
When a society is pondering whether to introduce laws that would put individuals in prison for many years for conduct or comments that could possibly be construed as hateful by a hypothetical third person, it’s fair to ask if it has lost its way.
To be clear, inciting violence against ethnic or religious minority groups is already highly illegal at state and federal level. States already have tough laws against hateful conduct. NSW police arrested a 36-year-old man in December for allegedly having a Nazi tattoo on his leg. Victoria last year made it illegal to “severely ridicule” certain groups based on “race, religion, disability, gender identity, sex, sexual orientation”.
The proposed additional federal hate law would lower the bar of criminality even further. It’s bound to massively chill political speech and pave the way for vexatious and politicised charges that will drag individuals through the courts even if they ultimately avoid conviction. Comedy and artistic expression will become all the more difficult.
Let’s be frank: this 144-page monstrosity of a bill cobbled together in a few days is one far-left groups would have wanted to pass long before the Bondi tragedy, which is now being used for political purposes.
At a minimum, the government should wait until the findings of the recently announced royal commission before legislating. Laws drafted as an emotional response to a tragedy, out of a desire to “just do something”, are bound to be riven with unintended consequences.
Two legal scholars from the US and Europe, Jacob Mchangama and Samantha Barbas, recently warned that governments tend to rush to expand hate speech laws in a way that does lasting damage to democratic freedoms, without stopping violence. “When governments criminalise speech that is merely offensive and ambiguous – rather than incitement to imminent violence – there are serious second-order consequences,” they wrote in MS Now on January 11.
Threatening to imprison people for expressing their opinions could even make violence more likely in the future by fomenting grievance. Letting people speak their mind should underpin, not undermine, social cohesion.
The Scanlon Foundation’s latest Mapping Social Cohesion report found 29 per cent of Australians in 2025 had a positive attitude toward Jews, a higher share than for Hindus, Sikhs and Muslims. More Australians had a negative attitude toward Christians (18 per cent) than Jews (15 per cent), suggesting antisemitism is concentrated among a hateful minority, not the broader Australian population.
Bondi is far more likely due to a failure of the intelligence and national security agencies, or of a reckless immigration policy that has allowed radical Islam to become entrenched, than it is of any shortcoming in hate speech laws.
It’s a sad indictment of the Labor Party’s respect for the fundamental human rights of ordinary Australians that even the Greens appear to be baulking at supporting the bill in its current form.
Unfortunately, Australia appears poised to head down the same totalitarian path as the UK, where police are already making about 12,000 arrests a year for supposedly hateful online posts.
The new social media ban, the government’s appetite for misinformation laws, and the Greens’ desire to expand hate speech laws beyond race and nationality point to a grim future for individual rights.
Great thinkers, from Aristotle to John Stuart Mill, worried democracy would ultimately produce elected tyranny. Increasingly, it appears they were right.
