Australia and the Limits of Free Speech: A Case for John Stuart Mill's Harm Principle, By James Reed

In an era where democratic societies grapple with balancing safety and the free exchange of ideas, Australia stands at a crossroads. Recent developments, from tightened protest regulations in Victoria to high-profile clashes between the eSafety Commissioner and Elon Musk's X platform, raise a critical question: are we witnessing the erosion of free speech under the guise of social cohesion? As an advocate for John Stuart Mill's harm principle, where speech should only be restricted if it directly incites harm, I argue that Australia's current laws and enforcement practices create a subtle chilling effect on controversial discourse. This stifles debate and risks undermining democracy itself, as seen in efforts to censor content on global platforms like X.

The Millian Foundation: Free Speech Unless It Harms

John Stuart Mill's harm principle, outlined in On Liberty (1859), remains a cornerstone for defending robust free expression. Mill argued that power should only restrict individuals to prevent harm to others. Speech, he believed, should be free unless it poses a clear and present danger, like inciting imminent violence. This approach fosters truth-seeking through open debate, where even extreme or offensive ideas can be tested and refuted. Suppressing opinions merely because they are unpopular, Mill warned, risks silencing potential truths and breeds intellectual stagnation.

Australia, lacking a bill of rights, relies on an implied freedom of political communication from the Constitution, affirmed in High Court cases like Lange v Australian Broadcasting Corporation (1997). This protects discourse on governmental matters but isn't absolute, balanced against public order and anti-discrimination. While echoing Mill in theory, practice shows a drift toward broader restrictions that chill speech without direct harm.

The Chilling Effect in Action: Victorian Protest Laws

Victoria's recent moves under Premier Jacinta Allan illustrate this drift. In response to far-Right rallies, the state has expanded anti-vilification laws (effective September 2025) to cover hate speech based on race, religion, gender, and more. Proposals included bans on face coverings at protests (later scaled back amid backlash) and restrictions near places of worship to curb extremism. Critics, including human rights groups, argue these measures disproportionately affect peaceful protesters, creating a chilling effect where individuals self-censor to avoid fines or legal scrutiny.

Nationally, hate speech laws and enhanced police powers, like those used during the August 2025 "March for Australia" rallies, allow warrantless searches and identity demands, framing dissent as a security threat. While aimed at preventing violence, such tools can intimidate non-violent extremists, Left or Right, from voicing views. As Mill might ask: without physical harm, what's the justification? The answer often lies in subjective interpretations of "hate" or "division," which governments wield to align with prevailing narratives.

Internet Censorship: The eSafety Saga and Musk's X

The chilling effect extends online, where Australia's eSafety Commissioner, Julie Inman Grant, has clashed with X over content removal orders. A 2024 dispute over footage of the Wakeley church stabbing saw eSafety demand X remove videos globally, not just in Australia, prompting Musk to label her the "Australian Censorship Commissar." X complied locally but fought globally, securing a court lift on the injunction in May 2024. eSafety dropped the case in June 2024, with X declaring "free speech has prevailed."

In July 2025, X and activist "Billboard Chris" won a landmark victory against eSafety's order to censor a post criticising a transgender WHO advisor as a woman, deemed "cyber abuse." The Administrative Appeals Tribunal ruled the post, while offensive, didn't constitute abuse, setting a precedent against overreach. eSafety's broad powers under the Online Safety Act 2021, with fines up to $782,500 for non-compliance, pressure platforms to err on the side of censorship. Critics, including the U.S. State Department, call this coercive, urging protection of online expression. On X, users decry eSafety as authoritarian, stifling debate on issues like gender and politics.

This isn't Mill's harm principle, it's pre-emptive silencing of "offensive" content, deterring users from controversial topics for fear of takedowns or geo-blocks.

Government Hypocrisy: Extremism Abroad, Restrictions at Home

Governments decry individual extremism while engaging in state-sanctioned actions, like military involvements in Ukraine or the Middle East, which involve loss of life. Mill would critique this double standard: if states can pursue "harmful" policies under "national interest," why restrict citizens' non-violent critiques? Australia's lack of a federal bill of rights exacerbates this, leaving speech vulnerable to ad hoc laws.

Toward a Millian Reset

Australia's trajectory risks a society where discourse is sanitised, not free. To counter the chilling effect, we should realign with Mill: restrict speech only for direct harm, not offense or division. This means scrutinising vilification laws, eSafety's scope, and protest restrictions through a proportionality lens. Enshrining stronger protections, perhaps a constitutional amendment or bill of rights, would safeguard debate.

Free speech isn't absolute, but its limits should be narrow and evidence-based. As Mill taught, suppressing ideas harms us all by denying the marketplace of ideas. In Australia, it's time to prioritise liberty over contrived safety, ensuring all voices, Left and Right, can challenge power without fear. If we don't, the real threat to democracy won't be extremists, but the censors.