Beware the Trojan horse of hate speech laws
Hate crime legislation is intended to protect members of identified, vulnerable groups. Who could disagree with that? But the superficial attractiveness of such laws conceals potentially vast unintended consequences.
The usual structure of such laws is to create a generic prohibition, and then list a number of specific “protected categories”. Originally, these tended to be the those identified in the UN Covenant on Civil and Political Rights, such as race, religion, ethnicity, gender and sexuality. More recently, the number of protected categories has become much larger, to include, for instance, trade union membership or women exercising “reproductive rights”.
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At the time of writing, the draft text of the NSW amendment had not been published. But, even if the Minns bill is not so extensive, we well know from federal anti-discrimination law that the number of protected categories only ever increases. Will a priest preaching his church’s teaching against abortion be at risk of committing the crime of inciting hatred? A sportsman explaining his refusal to wear a Pride flag? A politician railing against the evils of the CFMEU?
Even if we confine ourselves to the immediate purpose of the amendments, the same provision which would capture antisemitism could equally capture condemnations of Islamist ideology. Jewish Australians who demand such laws should reflect that those laws protect their tormentors too, limiting their capacity to call out Islamofascism for what it is.
It is not the business of governments to tell people what they may or may not think. It is not the state’s role to regulate opinion on political, social, moral, religious or cultural questions – or to prohibit the passionate expression of such opinions. It is the role of the state to protect people from harm. And while we recognise that harm extends beyond physical harm – or the apprehension of it – to psychological harm, it cannot mean criminalising hostile attitudes.
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Yet hate speech laws have been used as a Trojan horse to prohibit – or even, now, criminalise – attitudes and beliefs of which society disapproves. The corollary is that society – through government and its agencies – claims a right to prescribe what attitudes and beliefs are acceptable. And so, in the name of a good cause, what may be said is policed by ever-more intrusive political censorship.
That is how free societies lose their freedoms.
John Stuart Mill, the 19th century’s greatest apostle of liberalism, wrote in On Liberty: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
Liberals and conservatives, in particular – the traditional defenders of freedom of speech – need to consult their first principles and ask: is this significant, and probably irreversible, expansion of the power of the state something which, because of the political exigencies of the moment, they should countenance?
George Brandis is a former high commissioner to the UK, and a former Liberal senator and federal attorney-general. He is now a professor at ANU.
