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Protecting minorities does not require sacrificing free speech

By Monica Wilkie - posted Tuesday, 24 September 2019

Flawed ‘hate speech’ laws are a threat to free speech. The bill introduced by Victorian MP Fiona Patten - which would make statements deemed ‘likely to incite’ vilification of racial and other minorities illegal -  is an example of legislation that threatens free speech by significantly weakening the vilification threshold. 

In addition to Victoria, most Australian states and territories are reviewing their vilification laws, in the belief current protections are inadequate and require ‘modernising.’

Criminal vilification laws make it unlawful to incite or threaten violence against a group or individual because they have a protected attribute. Whereas, civil vilification laws target less serious instances of vilification, such as insulting or offensive speech.  


The best way to protect minorities - while also properly protecting free speech - is to ensure the criminal laws prohibiting incitements and threats of violence are effective.

Inciting and threatening violence has long been against the law. Liberal democracies such as Australia, that have strong traditions of valuing free speech, accept speech that endangers the safety of others should be illegal.

However, there has been a push to expand legislation to ban anything deemed ‘hate speech.’ The United Nations has said they want to “scale up [their] response to hate speech.” Although wanting to stop hatred and bigotry is admirable, such statements should be viewed with caution.

‘Hate speech’ is a broad, vague, and ill-defined notion that would simply catch in the legal net the kinds of contentious speech that some people find offensive or hurtful - or simply do not like.

This is the problem with the Patten bill’s proposal to lower the test of vilification to ‘likely to incite’ - it would become easier to bring trivial complaints because the focus is no longer on the speaker’s intention but on how a listener interprets what was said

The vagueness of laws prohibiting ‘hate speech’ or words ‘likely to incite’ could make people fearful of speaking, lest they fall victim to a time consuming and costly legal process.


Australians have the right to express their disagreement with the beliefs of a religion, or identity politics issues - even if this expression is offensive or hurtful.

This is the process of democratic debate. Although uncomfortable, hurtful speech falls short of the physical danger that inciting and threatening violence poses to an individual or group. As author Flemming Rose wrote, “Words might offend or shock, but they can be countered in kind.”

There is a fundamental difference between speech that criticises ideas and threats of violence.

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Monica Wilkie is the author of Criminalising Hate Speech: Australia’s Crusade Against Vilification published 19th September 2019.

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About the Author

Monica Wilkie is a policy analyst at the Centre for Independent Studies.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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