Australia’s newest authoritarian approach to controlling its political climate has been manufactured through the enactment of Federal and State hate speech laws. These Orwellian laws make it an offence to threaten force against groups or associates of groups. At the forefront of the Criminal Code Amendment (Hate Crimes) Bill 2025 (Cth) (hate speech laws), a targeted group, and associates of the group, can be distinguished by ‘nationality, national or ethnic origin or political opinion’. In essence, any political opinion that ‘threatens’ these protected groups, and any members of the group, involves feeling threatened or ‘fear[ing] that the threat will be carried out’. As a consequence, an ‘offender’ can face imprisonment for up to five years.
Although the threat of violence is a serious criminal offence and can constitute assault, feeling ‘threatened’ or ‘fear[ing] that the threat will be carried out’ would not normally satisfy the fault element of ‘intention’ required to prosecute an individual for a threat of violence. However, the ‘hate speech laws’ effectively remove an important fault element that is required under the Criminal Code Act 1995 (Cth) (Criminal Code), with most Commonwealth offences requiring proof of one or more fault elements. The Federal amendments remove the higher burden threshold, namely ‘intention’, and substitute it for the fault element of ‘recklessness’. One may ask, why is this issue important? Well, the difference between ‘intention’ and ‘recklessness’ under the Criminal Code are quite substantial. ‘Intention’ requires an individual to be engaged in the conduct, as well as the person being aware of what will occur as a result of their actions. In contrast, ‘recklessness’ refers to a possible offender being aware of risks that may eventuate from their conduct, even if the harm never eventuates. With the difference between the two fault elements established, it becomes blatantly obvious as to how the ‘hate speech laws’ can capture a much wider net of ‘offenders’ than its prior protections that required ‘intention’ to be present.
Of course, there are circumstances where genuine threats of violence, that demonstrate ‘intention’, are important tools in protecting the safety of groups within Australia. However, these protections were already established under the prior iteration of the Criminal Code. The ‘hate speech laws’ amendments now remove this element and allow for the possible persecution for ‘urging violence’ as opposed to ‘threatening violence’. With the element of ‘recklessness’ needed to establish an offence under the ‘hate speech laws’, there has never been a lower threshold to establish a criminal offence against an Australian for speaking on topics that are most often linked to political issues within the country.
The ‘hate speech laws’ have been amended to include ‘sex, sexual orientation, gender identity, intersex status, disability’ as protected groups under law. In addition, a person commits an offence under these laws if ‘a reasonable member of the targeted group would fear that the threat will be carried out’. Thus, if a ‘reasonable member’ under these laws feel they have been ‘threatened’ by a political opinion of someone who does not share the same ideologies as them, there is room for such discourse to be weaponised against that individual, which could result in imprisonment. A problem arises with regard to the meaning of a ‘reasonable member’ under these ‘hate speech laws’. Who determines who a ‘reasonable member’ is and what are the tests applied to determine that such people will not be weaponising this, seemingly intentionally, broad term as a means to silence their political or ideological opponents?
In this context, it is always important to consider that the Australian Constitution contains fundamental freedoms that the High Court has declared to exist even if they are not specifically stated in the document. For example, the Court has recognised an implied freedom of political communication as a means of invalidating legislation. This freedom operates as an immunity of the citizen from powers which are not reasonably appropriate and adapted to some other legitimate end. The existence of this implied freedom is derived from the text and structure of the Constitution, and particularly its established system of representative government, which gives rise to an implication that there must be a constitutionally protected freedom to discuss any political matter freely and robustly.
In addition, the courts in Australia have also referred to the notion of popular sovereignty in landmark decisions regarding this constitutionally implied freedom of political communication, in contradiction to authoritarian suggestions that politicians can legislate even on the suppression of freedom of speech. Any protection from strong political criticism is not a legitimate end compatible with democratic participation, because political communication is critical to hold government accountable to the people. In Attorney-General (SA) v Corporation of the City of Adelaide (2013) Chief Justice French stated:
Freedom of speech is a long-established common law freedom … linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information.
To exercise their sovereign role as derived from our system of representative government, Australians must be constitutionally protected in their freedom of political communication. That being so, no law in this country should prevent anyone from expressing strong political opinions freely and comfortably, as this would be incompatible with the democratic ideal of representative government. As the American founder James Madison so properly argued a few centuries ago, a logical consequence of a commitment to popular sovereignty is that ‘the censorial power is in the people over the government and not in the government over the people’.
In this sense, any legislation in Australia which takes away our freedom of political communication should be declared constitutionally invalid. Hence, we contend that it is absolutely essential that a proper inquiry into the compatibility of the ‘hate speech laws’ to our implied political freedom of communication under the Constitution be conducted to ensure that Australians can continue to participate in the politics of the nation without fear of persecution. If this does not occur, then it may be the case that ordinary Australians find themselves as ‘criminals’ when they seek to exercise their constitutionally authorised freedom.
On March 10, 2025, the Australian Federal Police (AFP) announced that a presumed ‘terrorist plot’ in early 2025 was allegedly ‘fabricated’. The Deputy Commissioner of National Security, Krissy Barrett for the AFP, in addressing the media, stated: ‘Almost immediately, experienced investigators within the joint counter-terrorism team believed that the caravan was part of a fabricated terrorist plot.’ Almost two months after the attack, even though there were immediate concerns surrounding the legitimacy of the threat in January, the AFP decided to enlighten the public of this conclusion.
Between the nation-wide coverage of the ‘terrorist plot’ (Google search included almost 30,000 forms of media in relation to this incident from January 19 – March 8), from January 19 onwards to the admission of the AFP this week, we have witnessed the introduction of the ‘hate speech laws’ and the New South Wales amendments under the Crimes Amendment (Inciting Racial Hatred) Bill 2025. Both of these amendments passed through their respective Parliament in February 2025, at the height of the rising ‘hatred’ in Australia.
The New South Wales amendments under the Crimes Amendment (Inciting Racial Hatred) Bill 2025 (NSW bill) provide even lower thresholds to commit an offence as opposed to the Federal legislative amendments. Similarly to the ‘hate speech laws’, the NSW Bill makes it an offence if a ‘reasonable person’, similar to a ‘reasonable member’ discussed above, would fear for their safety or fear harassment, intimidation or violence. Again, the utilisation of entirely subjective language is used here that could be misused as a means to block out political opposition. What does fear mean? Well, to one person it could mean something entirely different to another. Hence, the NSW Bill contains entirely ambiguous and subjective terms that can subsequently be used to weaponise political dissent.
In a commentary on the political climate surrounding the push for hate speech protections, Chief Justice of the NSW Supreme Court, Andrew Bell, recently commented on the high levels of racial hatred and ‘misinformation’ in Australia in a speech to the Law Society of NSW on February 6, 2025 (days before the ‘hate speech laws’ passed in Federal parliament and weeks before the NSW bill passed). In the speech, his honour focused on Elon Musk’s recent behaviour on social media as well as Meta’s recent removal of its ‘fact-checkers’ program.
It is our opinion that the main agent of misinformation in Australia has always been its own government. For example, the Australian government effectively treated any reasonable concern about the safety of mRNA mandatory vaccines as a form of misinformation. From 2017-22, the Department of Home Affairs petitioned social media sites to censor all information about these matters no less than 13,646 times. This included suppressed Covid posts from doctors who disagreed with or even questioned official public health and vaccine information.
Of course, when it comes to suppressing ‘hate speech’, legislated silence will never change the hearts and minds of the people. Naturally, we are not denying here the potential harm of hate speech, but the gains from hate-speech legislation are tenuous. Under democratic theory, open discourse is better conductive of the truth than is government selection of what the public hears. In a real democracy, of course, citizens must have the right to choose the words that best reflect their feelings, and strong words may better convey to listeners the intensity of feelings than more conventional language. 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 US Supreme Court Justice, Louis Brandeis, ‘The remedy to be applied is more speech, not enforced silence.’
Above all, an important question arises: are the ‘hate speech laws’ a justified response to a rise in ‘hate’ or are they pieces of legislation rushed through parliament to try and put a band-aid on the response? Well, we believe it is more likely to be the latter. The ‘hate speech laws’ were ‘sprung on Parliament with no warning’ and were not subjected to human rights scrutiny, which is necessitated under the Human Rights (Parliamentary Scrutiny) Act 2011 and the Parliamentary Joint Committee on Human Rights that is meant to scrutinise all bills and legislative instruments for their compatibility with human rights in Australia. In New South Wales, for example, the amendments to the NSW Bill were rushed through Parliament in less than three days and were passed at 4am in the morning without parliamentary inquiry.
Conversely, the views incompatible with the government’s preferred narrative may be deemed ‘hate speech’ by the legislation. Of course, Australian governments have a long and notorious history of unduly suppressing political speech that is critical of the moral values of the ruling classes. In our present political environment, censorship is rampant and concerned citizens can easily find themselves at the receiving end of expensive litigation when they simply dare to stand by moral values that are no longer accepted. This is why this most recent attack on freedom of speech is so obnoxious, for many reasons.
Alexander Hatzikalimnios is a lawyer, legal academic and PhD Candidate with a passion for human rights issues.
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