Unpacking the Fatal Flaws in Labor's Proposed Hate Speech Bill: A Threat to Balanced Justice, By Ian Wilson LL.B
Following in the wake of the tragic terrorist attack at Bondi Beach on December 14, 2025, which claimed multiple lives and exposed deep-seated issues of racial hatred in Australia, the federal Labor government has moved swiftly to introduce new hate speech legislation. The bill aims to criminalise the promotion of racial hatred, a step many see as necessary to curb radicalisation and protect public safety. However, as legal expert Chris Merritt from the Rule of Law Institute of Australia argues, the proposed vilification offence is riddled with fatal flaws that could undermine its very purpose. In this blog essay, I'll examine the key issues highlighted by Merritt and uncover additional criticisms emerging from broader discussions. While the intent to combat hate is commendable, the bill's design risks creating more problems than it solves, potentially eroding free speech, enabling selective enforcement, and failing to hold true perpetrators accountable.
The Context: Why This Bill Matters
Australia's rule of law is built on principles like equality and protection from arbitrary power. The Bondi attack, motivated by racial and ethnic hatred, underscored the need for stronger measures against the public promotion of such ideologies. The bill's core provision in Part 5 targets speech that promotes racial hatred, with potential jail time for offenders. As Merritt notes, freedom of speech isn't absolute, and parliament must recalibrate rights when circumstances demand it, like after Bondi, where the death toll demands action against radicalisation sources.
Yet, this isn't a blanket endorsement of restricting speech. The bill focuses narrowly on racial hatred tied to events like Bondi, not broader categories like sexuality or gender. The goal is prevention, not censorship. But good intentions don't excuse poor drafting, and here lies the rub: the legislation's flaws could render it ineffective or even counterproductive.
Fatal Flaw #1: The Religious Text Defence — A Get-Out-of-Jail-Free Card for Hate Preachers
At the heart of Merritt's critique is the proposed defence that shields individuals from liability if their hateful statements include a quote from or reference to a religious text. This exemption, intended perhaps to protect religious freedom, instead creates a loophole so wide it could drive a truck through Australia's efforts to combat extremism.
Imagine a hate preacher inciting racial hatred against Jewish communities by invoking passages from religious scriptures. Under the current draft, simply reciting or referencing those texts could provide immunity. Merritt calls this a "guide for hate preachers," essentially instructing them on how to continue their toxic rhetoric with impunity. This isn't just theoretical — recent years have seen instances where religious leaders have linked anti-Semitic statements to textual readings, fuelling division without consequence.
Removing this defence is crucial, Merritt argues, to ensure the law applies equally to everyone. It would affirm that Australia isn't a theocracy; parliamentary laws trump conflicting religious mandates. He draws parallels to existing restrictions, like ignoring biblical calls for death penalties on homosexuality (e.g., Leviticus 20:13). Without this change, the bill betrays moderate members of communities, such as those in the Islamic faith who oppose radical leaders exploiting religion for hate. In essence, this flaw doesn't protect faith — it protects bigotry disguised as piety.
Fatal Flaw #2: A Subjective Test for Liability that Invites Abuse
Another glaring issue in the vilification offence is its test for criminal liability. Currently, it hinges on whether the speech would cause a "reasonable person who is the target or a member of the target group" to feel intimidated, fear harassment, violence, or harm to safety. This mirrors the subjective standard in Section 18C of the Racial Discrimination Act but escalates it to criminal penalties.
Merritt warns this is overly subjective, tied to the perceptions of the affected group rather than general community standards. Why does this matter? Criminal law demands certainty and objectivity to avoid arbitrary enforcement. A "standard reasonable person" test would provide clearer boundaries, evolving through case law to define prohibited speech without bias toward identity politics.
Critics like MP Tim Wilson echo this, calling for an objective test to ensure all Australians are equal before the law. Without it, the bill risks legislating emotional responses over facts, potentially chilling legitimate debate while failing to catch subtle incitements.
Additional Fatal Flaws: Vagueness, Overreach, and Threats to Free Speech
Beyond Merritt's points, scrutiny of the bill reveals more systemic problems. Drawing from parliamentary debates, expert analyses, and public critiques, here are other critical flaws that could doom this legislation:
1.Vagueness and Breadth Leading to Overreach
The offence criminalises speech that merely "promotes" hatred if it intimidates, a low bar that could ensnare everyday opinions rather than targeted extremism. Opponents, including MP Henry Pike, argue it's so vague it might jail Australians for comments making someone "feel intimidated," shielding extremists while punishing benign discourse. This echoes Victorian state bill concerns, where similar laws were slammed as a "direct assault on free speech."
2.Lowered Thresholds Without Safeguards
The shift to "recklessness" for urging violence is criticised as still too high or subjective, potentially ineffective against coded hate speech. The Islamic Council of Victoria suggests an objective test to make it prosecutable. Meanwhile, the absence of exemptions for political expression risks suppressing protests or debates.
3.Potential for Selective Enforcement and Chilling Effects
Legal groups like Liberty Victoria warn the bill imbalances free expression and anti-vilification, potentially deterring legitimate speech. The Free Speech Union highlights risks of arrests for low-reach online comments, fostering selective prosecution based on who offends whom. This could turn Australia into a censorship hub, as feared in Victorian debates, and seen now in the UK.
Inadequate Protection Against Broader Harms:
While focused on race, the bill ignores calls for wider protections (e.g., against gendered hate), yet its narrowness doesn't prevent overapplication. Security experts note it's "overdue" but may "constrict" preachers without addressing root causes like online radicalisation.
These flaws aren't abstract — they stem from real inquiries, like the Senate's on hate crimes, which flagged human rights concerns and ineffective thresholds.
Conclusion: Time for Parliament to Fix or Ditch This Flawed Framework
Labor's hate speech bill responds to a genuine crisis, but its execution is fatally compromised. The religious defence invites exploitation, the subjective liability test breeds uncertainty, and broader vagueness threatens core freedoms. As Merritt urges, parliament must prioritise public safety without eroding the rule of law — starting by axing the defence and adopting objective standards.
If unamended, this legislation won't prevent another Bondi; it might even embolden dividers while silencing dissenters. Australians deserve better: laws that target hate without hating on liberty. As debates rage in parliament, let's hope cooler heads prevail and rework this bill into something truly protective. Or, simply abandon it as Australia already has adequate legal protections.
Proposed vilification offence in Labor's hate speech bill has a fatal flawThe rule of law consists of principles of governance and lawmaking that enable free societies like ours to protect themselves against the arbitrary exercise of power.
It gives effect to ideas that go to the heart of what this country is all about: equality before the law and equal protection by the law. This helps explain why the Rule of Law Institute supports the need to change aspects of federal criminal law in order to properly respond to the terrorist attack at Bondi Beach on December 14 last year.
That attack demonstrated that there is a clear need to address the culture of Jew hatred that has taken hold in parts of the community. This is why the most important part of the proposed changes is the provision criminalising the promotion of racial hatred. This provision, in part 5 of the bill, would result in people being jailed for public statements.
Freedom of communication is a fundamental right of citizenship. But none of our rights is absolute and parliament has a responsibility to ensure the balance between different rights remains appropriate when circumstances change.
After Bondi, change is clearly needed. Public safety requires a measured but necessary move against one clearly defined form of speech.
The death toll from Bondi is the most compelling argument in favour of abolishing the freedom to promote racial hatred.
If the goal is to prevent further radicalisation – and therefore more terrorist attacks – it is entirely appropriate to target the source of radicalisation, which is the public promotion of Jew hatred. This, however, should not be viewed as a green light for criminalising other categories of speech.
The terror attack at Bondi was based on race and ethnic origin – not on sexuality, gender preference or any other criterion.
The new vilification offence is clearly targeted at those who promote racial hatred. But it has a fatal flaw. Its legitimate goal is at risk of being undermined by the proposed defence which protects those who include a quote from a religious text or even a mere reference.
Unless this defence is removed, it would amount to a betrayal of members of the Islamic community who might oppose religious leaders using their position to promote Jew hatred.
It would be seen as encouragement for hate preachers who have promoted Jew hatred in recent years by linking their statements to the reading of religious texts. This cannot be what parliament seeks to achieve.
The defence amounts to a guide for hate preachers. It tells them exactly what they need to do in order to continue promoting racial hatred with impunity.
Removing this defence would mean that the new offence of promoting racial hatred would apply to everyone. It would be impossible to avoid liability by the simple method of reciting a few words.
This requires parliament to accept that religious freedom, like free speech generally, can be restricted in order to place greater emphasis on public safety.
This should not be seen as contentious. The law already prevails over passages in the Bible such a Leviticus 20:13 which seeks to impose the death penalty for homosexuality.
The point here is that we do not live in a theocratic society. Laws made by parliament prevail to the exclusion of any conflicting mandate in any religious text. That principle should not be eroded.
I am also concerned that the test for liability in subsection (c) of the vilification offence has been drafted in a way that does not invoke the standards of the general community.
Instead, it would impose criminal liability using a test for liability that seems overly subjective and closely related to section 18C of the Racial Discrimination Act. Under section 18C, civil liability is imposed when a reasonable person in the position of those complaining, would be offended, insulted, humiliated or intimidated.
Under the proposed vilification offence, criminal liability would be imposed when the conduct in question causes a reasonable person "who is the target or a member of the target group" to be intimidated, to fear harassment or violence, or to fear for their safety.
Because the vilification offence will impose criminal liability, not civil liability, it seems logical that the test for liability should invoke general community standards, not those of the individual or group that is the target of the speech in question.
That would mean changing the test for liability to a standard reasonable person test which, over time, would provide a more certain guide about the sort of speech that incurs criminal liability.
