Free speech and hate speech: when values collide

3 min read

Two bills are currently before the New South Wales Parliament that have the potential to alter the State’s approach to hate speech. Both are desirable: whether they go far enough is another question.

The Crimes (Display of Nazi and Terrorist Symbols) bill is a private member’s bill proposed by the Member for Wahroonga, which would make it a criminal offence to knowingly display in public a Nazi symbol or the symbol of a terrorist organisation. The Attorney-General has proposed the Crimes Legislation Amendment (Racial and Religious Hatred) bill, which would increase the penalties for displaying a Nazi symbol near a synagogue, a Jewish school or the Sydney Jewish Museum, and requires a court to take into account, in sentencing for other offences, whether unlawful conduct was motivated partially or wholly by hate or prejudice.

These bills, of course, have not arisen in a vacuum, but as a response to the disturbing increase in anti-Semitic language and conduct in New South Wales since the 7 October 2023 terrorist attacks. The legislative response to these events began in February 2024, when the Premier of New South Wales invited the Law Reform Commission to review and report on the effectiveness of s 93Z of the Crimes Act 1900 (NSW) in addressing serious racial and religious vilification in NSW.

A person commits an offence under s 93Z(1) if, by a public act, they intentionally or recklessly threaten or incite violence towards another person, or a group of persons, on various specified grounds, which include that person’s religion or race. Prosecutions under 93Z are rare; successful prosecutions, rarer still.

Three very distinguished commissioners (former Chief Justice TF Bathurst AC KC, Justice Anna Mitchelmore of the Court of Appeal, and Kate Eastman AM SC) delivered their very thorough report on 27 September 2024. They made only two recommendations: that the government should consider commissioning a review of the effectiveness of existing sentencing provisions, and that the government should consider measures to improve the collection of data on hate crimes. But the commissioners did not recommend any change in the law itself. In particular, they rejected the suggestion that the scope of 93Z should be expanded to criminalise hate speech – that is, speech that incites hatred or contempt based on religion or race.

One reason the Commissioners gave for rejecting the notion of a hate speech law was that hate is too vague and ambiguous a concept to prove in a criminal court. Another was that a hate speech law might upset the balance between competing rights, including the right to freedom of speech.

Certainly, freedom of speech is a desirable aim. But its existence as a legal right is, in Australia, surprisingly limited, and there has never been any principle of law that speech should be absolutely free. Otherwise, there would no law of defamation, or sedition, or obscenity, or contempt of court. Generally, the right to free speech is respected up to and until it infringes upon someone else’s rights and freedoms. And here, there’s a contest, not of laws, but of values. Which right do you value more: the right to vilify another person because of their race, or the right to live free from vilification based on identity? There should, in a civilised society, be only one answer to that question.

Hate speech laws exist in many other jurisdictions. Victoria has a Racial and Religious Tolerance Act, which prohibits serious racial and religious vilification. Racial vilification is a criminal offence in Western Australia and Queensland. In Ireland and Scotland, actions likely to stir up racial hatred are criminal; various public order offences exist in England. It’s impossible to argue against the pragmatic conclusion of the Law Reform Commission that such laws can be very difficult to apply. But they exist because the legislators in those places recognised that hatred is the soil in which violence grows. Once it becomes legitimate to vilify a section of the community simply for being what they were at birth, violence against them is the logical outcome. In contrast, in a week in which two New South Wales health workers gloated over their willingness to kill Jewish patients, the approach taken in our State so far is disappointingly timid, a couple of band aids at the edge of a gaping wound.