One word makes proposed race hate law changes problematic

1 month ago 17

Opinion

January 14, 2026 — 7.30pm

In 1995, the Keating government tried to enact a criminal offence of inciting racial hatred, with a maximum penalty of one year’s prison. It was rejected in the Senate by a combination of the Coalition and the Western Australian Greens.

The Coalition criticised it as social engineering that unnecessarily limited freedom of speech by preventing people from expressing what they felt. It instead proposed a criminal offence for hate speech that incites violence. It considered it necessary to retain that link between what was said and the criminal consequence of violence.

Prime Minister Anthony Albanese at Parliament House in Canberra on Monday.

The Greens, while accepting a concern that the proposed law crossed a threshold into the realm of thought police, were worried it would create a more racist and less tolerant society. They saw it as creating division and singling out groups by labelling them unacceptable. It would separate people rather than produce a positive sense of belonging in the community.

The criminal provision was defeated, but section 18C of the Racial Discrimination Act was passed. It made it a civil offence for a person to do a public act that is reasonably likely to offend, insult, humiliate or intimidate a person or group on the ground of race, colour or national or ethnic origin.

That section continues to operate today, so it is difficult to understand why a criminal offence, which has a higher standard of proof, is needed to supplement it.

The proposed new section of the federal government’s hate speech legislation says it’s an offence to engage in conduct in public (including online) “intending to promote or incite hatred” of a person or group because of their race, colour or national or ethnic origin. The conduct must cause a reasonable person who was targeted to be intimidated, fear harassment or violence, or fear for their safety. The maximum penalty is five years’ imprisonment.

Under the proposed laws there would be no artistic defence for displaying artworks such as Guernica by Pablo Picasso.

The explanatory memorandum says “promote” is intended to mean conduct that encourages, advocates or endorses hatred even if it does not directly urge others to act. Promotion, it says, would include normalising or legitimising hateful attitudes in public discourse. This is extremely broad. The normalisation of hateful attitudes can be found in a significant portion of the literary canon, simply because such attitudes were normal in the past.

Is the extension of this offence to promoting racial hatred problematic from a constitutional point of view? Yes. There are two reasons.

First, the Commonwealth parliament can only legislate within the scope of powers conferred upon it by the Constitution. In this case, it is relying on the “external affairs power” on the ground that it is implementing treaty obligations in the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination.

But both treaties try to balance racial hatred laws against freedom of speech, and neither goes as far as requiring the criminalisation of “promoting” racial hatred. They deal with disseminating ideas based on racial superiority and inciting racial discrimination, hostility or violence. The proposed new offence uses promoting racial hatred as something less demanding to establish than inciting racial hatred. Whether this part of the provision is constitutionally valid will depend upon how strict the High Court is about implementing treaty obligations.

The second problem is the implied freedom of political communication. Not all statements promoting or inciting racial hatred would be regarded as political communication, but many potentially could be. If challenged, the fight would come down to balancing the breadth of the burden on political communication against the benefit achieved by protecting people from harm.

The most contentious area is where people communicate publicly, such as on social media or in public demonstrations, about acts of violence, terrorism, war crimes or atrocities that have been perpetrated by people of a particular race, national or ethnic origin. Any communication of what happened, even if completely accurate, is likely to promote or incite hatred against that group, causing them fear for their safety.

While the proposed offence requires that the person “intends” to promote or incite racial hatred, the explanatory memorandum says this extends to where the person does not personally want such hatred to occur but “is aware that this will occur in the ordinary course of events”.

This is where the defences are important. It is no defence that the statement is true. There is a defence if a person “publishes in good faith a report or commentary about a matter of public interest”. This might help protect the media, but is unlikely to protect people discussing such events on social media.

The defence is not absolute. A court, in deciding whether it applies, may take into account negative factors, such as the intention to promote racial hatred, and positive factors, such as it being an artistic work. But these factors are irrelevant unless an act falls within a listed defence. So there would be no artistic defence for displaying a painting, such as Picasso’s Guernica, if it were deemed to promote or incite hatred against the group that perpetrated a depicted war crime because a painting is not a published report or commentary.

The validity of s18C of the Racial Discrimination Act was recently upheld partly on the basis that there are many defences that limit its burden on the implied freedom. This new criminal provision will be far more difficult to defend because its burden on freedom of political communication is greater, and the defences are limited and uncertain in their application.

Anne Twomey is a Professor Emerita in Constitutional Law at the University of Sydney.