The Totalitarian Underpinnings of Hate Crime Laws

In Australia, there are many “bad laws” that seek to criminalise, rather than promote, free speech. For example, at the state level, we have the states’ Change or Suppression (Conversion) Practices Prohibition Acts, which criminalise any advocacy of conversion practices, including any encouragement of teenagers to reverse their gender alteration treatments. Another example is the adoption, by state lawmakers, of hate speech legislation, such as the banning of the swastika, and the Nazi salute, to stem the resurgence of neo-Nazis.

Of course, the behaviour displayed by neo-Nazis (and fanatical Palestine-friendly terrorists), who deface Jewish property and threaten their safety, is despicable and needs to be dealt with firmly by the criminal law. But the question which we want to discuss is whether it also justifies the adoption of speech-restricting laws for the purpose of protecting vulnerable groups in society.

At the federal level, we have recently witnessed the adoption of a “hate speech” law that seeks to protect “groups” and, in the process, demonises an individual’s right to free speech. The continuing demonisation of, and attacks on, Jewish people, property and interests undoubtedly accelerated the adoption by the Parliament of the Criminal Code Amendment (Hate Crimes) Act 2025. The legislation, in addition to criminalising threatening force or violence against groups, also criminalises the advocacy of damage to, or destruction of, real property or motor vehicles of targeted groups. The legislation adopts the recklessness test, meaning that the advocate’s intention is irrelevant, and a court has the authority to decide whether the advocate should have realised that their statements could cause distress to a protected targeted group, “distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.”

Our argument is that, whilst these speech-restricting laws on the surface appear reasonable, they actually contain the seeds of the destruction of free speech in Australia, for several reasons.

Seeds of destruction

First, they legitimise the division of the country into “groups,” thereby balkanising the country. At first sight this may not seem such a problem, but over time the allocation of rights to people based on their group membership – if group membership can be defined satisfactorily – becomes problematic since it involves the distribution of rights based on characteristics over which people have no control.

This is profoundly dangerous because, even if the legislator’s intentions are laudable, it replaces individual rights with group rights.

Second, these laws perpetuate the perception that groups, such as Indigenous Australians or Jewish people, etc, are perpetual victims unable to look after themselves. If so, this victim mentality is destructive of societal harmony and stability.

Third, these laws detrimentally affect free speech which is the focus of this opinion piece.

Those who want to protect free speech against intrusive government interference often rely on utilitarian arguments, namely that the benefits derived from free speech outweigh the benefits of regulation and prohibition. In this context, Professor James Allan recently stated: “The cost-benefit calculation shows that giving government agencies the power to suppress speech is pretty much always a greater long-term evil than suffering any short-term harms of allowing the speech.”

However, whilst those who value free speech will not likely disagree with the utilitarian argument that the benefits of free speech outweigh its disadvantages, it is not possible to avoid the conclusion that the argument also contains the seeds destructive of free speech. Indeed, if a cost-benefit assessment reveals that the benefits of regulation and prohibition of free speech outweigh its benefits, then utilitarian considerations would justify the adoption of speech-unfriendly legislation.

Article 19 of the International Covenant on Civil and Political Rights, according to which the right to freedom of expression is subject to “certain restrictions” for the protection of national security or of public health or morals, supports this conclusion. Opponents of free speech have relied on this provision to justify the adoption of the speech-restricting laws during the Covid-19 pandemic. In Australia, they sacrificed free speech on the ground that the protection of public health and safety takes precedence over doctors’ free speech objections.

Hostility to free speech is also seen in the federal government’s unsuccessful attempt to regulate social media by imposing upon them an obligation to police the internet, removing posts that are critical of government policies and priorities, Although the Coalition belatedly, but courageously, opposed this proposed law, it did support a law banning teenagers under 16 from accessing the social media. It is also supportive of the adoption of hate-speech laws.

Speech that ‘harms’

The utilitarian cost-benefit analysis draws its inspiration from John Stuart Mill’s well-known “harm” principle found in his essay On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

The problem with Mill’s argument is that “harm” is an illusory concept, the meaning of which depends on people”s subjective perception of what constitutes “harm.” For him, speech-restricting laws are only apposite in cases involving harm caused by the impugned speech. But as such decision is necessarily subjective, in relying on the harm principle to contribute to the perceived “common good,” the principle unavoidably involves harm-shopping to justify the imposition of speech-unfriendly legislation. As such, a subjective evaluation of competing claims of harm is inevitably involved in the harm-shopping process which, in turn, has the capacity to eviscerate a person’s right to “individual autonomy.” Thus, any argument in favour of free speech should be based on non-utilitarian considerations and, therefore, should focus on the basic and fundamental nature of free speech.

The ancient Greeks considered free speech (parrhêsia) a fundamental right of the citizen. They thought this was an unnegotiable right of the citizen; only slaves had no free speech. A slave could not speak his mind but a free person could. Hence, what made the trial of Socrates so notorious is that it “is the only case in which we can be certain that an Athenian was legally prosecuted not for an overt act that directly harmed the public or some individual – such as treason, corruption or slander – but for alleged harm indirectly caused by the expression and teaching or ideas”.

Legislated silence

A discussion of all ideas, good or bad, should be allowed in “the marketplace of ideas.” This is because the truth will emerge from the competition of ideas in free, transparent public discourse. The “marketplace of ideas” is a phrase prominently promoted by the American Supreme Court in the 1950s and 60s – a major achievement of the First Amendment to the American Constitution, which guarantees the right to free speech. Accordingly, in Brandenburg v Ohio (1969) the Supreme Court held that a statute may not “permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”. The court adopted a stringent standard of punishment of speech likely to encourage criminal action.

Of course, legislated silence will never change the hearts and minds of people. Instead, conversation and education are far more effective tools for the establishment of a tolerant and harmonious society than trying to ban racist speech. When ideas are forcibly repressed, they cease being exposed and challenged during public debate. Hence, broad legal prohibitions on offensive speech will never alone be successful in eliminating hatred from our society. They may even be counterproductive. This is, therefore, not a debate about whether hate speech is socially acceptable or not. It is about the role that law should play in this context and the fact that there will always be racists amongst us who make bigoted statements. This is the price of living in a free and democratic society. Accordingly, as noted by the late U.S. Supreme Court Justice, Louis Brandeis, “the remedy to be applied is more speech, not enforced silence.”

What about ‘hate speech’?

In this sense, amongst the most controversial questions about free speech is the legal treatment of “hate speech.” Many insults use coarse language in a highly derogatory way. Such insults contain language that can be deeply offensive and have a negative public effect by endangering the civility of discourse. However, the civility of discourse does not comprise sufficient constitutional grounds for general restrictions. An authentic democracy, as law professor Kent Greenawalt puts it, “may forbid uncivil remarks in formal settings like the courtroom, but expression in open public settings may not be curtailed on that basis.”

The High Court of Australia has rightly found that at the very foundation of our system of representative democracy lies a constitutionally implied freedom to speak freely on political matters. In Coleman v Power (2004) for example, standing in the majority, Justice Michael McHugh held that “insults are a legitimate part of the political discussion protected by the Constitution”. Justice McHugh also stated that, insofar as the insulting words are used in the course of political discussion, “an unqualified prohibition on their use cannot be justified as compatible with the implied freedom”. Justices William Gummow and Kenneth Hayne concurred by reminding us that “insults and invective have been employed in political communication since the time of Demosthenes”. Justice Kirby concurred by reminding us that Australia’s politics have always included “insult and emotion, calumny and invective”, and that the implied freedom must allow for all this.

The High Court of Australia has decided that at the foundation of our nation’s democracy is a freedom of the citizen to speak freely and robustly on every political and/or social matter. Assuming this implies that government can suppress only speech that is likely to cause immediate violence, the underlying notion is that Australians are constitutionally allowed to manifest whatever facts and values they strongly believe in, provided the assessment is not defamatory.

Unfortunately, however, the federal election campaign of 2025, now unfolding in Australia, has already shown intolerance towards unpopular or dissenting ideas. Now, proponents of free speech are treated with hostility if they disagree with the prevailing orthodoxy and any manifestation of dissent may well result in attempts to cancel their contributions to societal debates. If Australians (and Americans) submit to this trend, which is still reversible, their freedoms, once taken for granted, will be irretrievably restricted, and regulated. It will inevitably be difficult to recapture the right to free speech which, however, is necessary to return Australia (and the free world) to the stable, free, egalitarian, prosperous country it once was. In this context, it is encouraging that President Donald Trump, in his inaugural address, indicated his unconditional support of free speech.

It could be argued that Australia would become a more harmonious society if politicians were to avoid the adoption of speech-unfriendly legislation. Consistent with this view, people deserve to live in a society where discussion of sensitive and controversial issues is not lethal, and well-meaning citizens are not punished for the peaceful expression of views, even if they are patently wrong, disingenuous, appalling and incompatible with the views of society’s policymakers, trendsetters, and woke elites.

Naturally, absolute free speech under all circumstances can never be a possibility. There are situations where reasonable limits to speech may provide greater service to freedom than open discourse. The test should require an actual present danger that explicitly urges the commission of a crime. Such speech should only be criminally punishable if it poses a real threat to a high degree and in a short future.

In Australia, whenever a Jewish site is desecrated, or potentially catastrophic attacks are averted, for example by the timely discovery of the caravan laden with explosives in Dural, the political elites tend to make existing laws stronger or introduce new laws, even (reluctantly) adopting mandatory sentencing for their violations. Such an approach stifles the free expression of views and the development of reasonable arguments. Moreover, it does not solve the problems addressed by the legislation because the prohibited speech will simply go underground where it will fester, ready to explode later.

Free speech in the Weimar Republic

The most compelling evidence for this point is pre-Nazi Germany. The Weimar Republic of the 1930s had several laws against “insulting religious communities” and these laws were fully applied to prosecute hundreds of Nazi agitators, including Joseph Goebbels. Far from halting National Socialist ideology, those laws helped the Nazis achieve broader public support and recognition and assisted the dissemination of racist ideas. As Brendan O’Neill explains:

The Nazis turned their prosecutions for hate speech to their advantage, presenting themselves as political victims and whipping up public support among aggrieved sections of German society, their future social base. Far from halting Nazism, hate speech legislation assisted it.

While the idea of inciting violence links the expression of thoughts to actions, hate crime laws link the expression of thoughts to no more than simply thoughts. This amounts to the fabrication of a new crime of opinion analogous to the crime that used to be committed by “enemies of the people” during the former Soviet Union. This basic historical fact underlines the importance of the debates prior to the draft of human-rights declarations and covenants in the United Nations, on whether there should be, when it comes to protection of freedom of expression, an exception for “incitement for violent” or, more broadly, an exception for “incitement to hatred” as the Soviet Union and its totalitarian bloc of communist nations maintained. As Chris Berg points out, the drafting history of the protection of the freedom of expression in these declarations:

… does not leave any doubt that the dominant force behind the attempt to adopt an obligation to resist freedom of speech under human rights law was the Soviet Union … When it came to draft the binding International Covenant on Civil and Political Rights, this was not the ascendant view. The Soviet Union proposed extending those restraints to “incitement to hatred” … Suddenly, States were responsible for the elimination of intolerance and discrimination.

Bad laws, recently adopted by the Federal Parliament, exemplify that Australia is on the way to attuning people to a totalitarian mindset that is uncritically supportive of the suppression of free speech. By contrast, a true democracy requires that citizens be strong enough to tolerate robust expressions of disagreement. In a real democracy, citizens have the right to choose the words that best reflect their personal feelings, and strong words may better convey to listeners the intensity of feeling than more conventional language.

To conclude, the Australian government has no right to enact hate crime legislation which results in a general prohibition of certain forms of speech simply because they are thought to be highly offensive. The totalitarians who occupy our parliaments may not appreciate this basic democratic fact, but to the extent that hate speech laws compromise our freedom of political communication such laws are constitutionally invalid. They amount to a gross violation of the constitutionally implied freedom of political communication derived from our system of representative government.

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AUTHORS

Gabriël Moens

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.

Augusto Zimmermann

Augusto Zimmermann is a professor of law and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.

Zimmermann & Moens are the authors of The Unlucky Country (Locke Press, 2024).

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