Victoria's New Anti-Vilification Laws: One More Step Toward Total Censorship, By Paul Walker

Victoria's expanded anti-vilification laws, which will take effect for criminal provisions on September 20, 2025, with civil provisions slated for June 2026, mark a significant shift in how the state tackles hate speech. Framed as a response to rising incidents of racism, antisemitism, and discrimination against marginalised groups, these laws overhaul the Racial and Religious Tolerance Act 2001, promising stronger protections but sparking fierce debate. As someone sceptical of laws that risk curbing free expression, I argue that these reforms, while well-intentioned, lean too heavily on subjective definitions and broad enforcement powers, creating a chilling effect on controversial discourse. In the spirit of John Stuart Mill's harm principle, where only speech causing direct harm should face restriction, Victoria's approach threatens to stifle dissent under the guise of social cohesion and control.

The Push for Reform: Context and Intent

The laws stem from a 2019–2021 parliamentary inquiry that found Victoria's old anti-vilification framework outdated and ineffective, with hate incidents surging against diverse communities, people with disabilities, and LGBTQIA+ groups. High-profile events, like the 2024 firebombing of a Melbourne synagogue, fuelled calls for action. After years of consultation, the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2024 emerged, aiming to protect vulnerable groups while navigating the delicate balance between safety and free speech. Supporters, including multicultural and LGBTQIA+ organisations, praise the laws for addressing real harms, but critics see a dangerous overreach.

What's New in the Laws?

The expanded laws broaden the scope of protections and penalties, reshaping how vilification is addressed:

Protected Attributes: Beyond race and religion, the laws now cover disability, gender identity, sex, sex characteristics, sexual orientation, and personal association with these traits, like a parent of a trans child. This aims to shield groups like drag performers, or those with mental health conditions but risks casting a wide net over subjective grievances.

Criminal Offences: Two new crimes under the Crimes Act 1958 carry heavy penalties: inciting hatred, contempt, revulsion, or ridicule based on protected attributes (up to three years' imprisonment) and threatening harm or property damage (up to five years). Unlike the 2001 Act, prosecutors don't need to prove both incitement and threat, lowering the bar for convictions.

Civil Protections: Amendments to the Equal Opportunity Act 2010 introduce a "reasonable person with the protected attribute" test, centring the perspective of targeted groups. Complaints can go to the Victorian Equal Opportunity and Human Rights Commission or VCAT for remedies like compensation, but the subjective standard raises concerns about frivolous claims.

Safeguards are weak: Exceptions for religious, academic, artistic, scientific, or public interest purposes aim to protect free expression, but this is uncertain in practice given the chilling effect of the Act. A "Sam Kerr clause" considers social and historical context to prevent misuse against marginalised groups, but narrowed religious exemptions worry faith communities.

Timeline: Criminal provisions started September 2025, with civil provisions delayed to June 2026. Police need approval from the Director of Public Prosecutions for serious charges, but enforcement capacity remains a concern.

A Chilling Effect on Free Speech

While the laws target genuine harms, like neo-Nazi rallies or targeted harassment, their broad scope and subjective enforcement invite misuse. The "reasonable person with the protected attribute" test, for instance, hinges on how a hypothetical individual perceives offence, not on objective harm. This could lead to lawsuits over honest opinions, as critics like the Liberal-National Coalition argue, warning Victorians might face legal action for views a small group finds offensive. MP David Limbrick's point about Victoria Police's strained resources further questions whether these laws will be enforced consistently or selectively against unpopular voices.

The laws' focus on "incitement" to contempt or ridicule, not just violence, strays from Mill's harm principle. Without a clear link to physical harm, as Mill advocated, restrictions risk silencing controversial discourse, whether it's debate on immigration, gender, or religion. The chilling effect is already evident in Victoria's recent protest restrictions, like proposed face-mask bans and limits near places of worship, which critics say deter peaceful activism. Combined with these laws, the message is clear: express at your own risk.

Community Divide and Double Standards

Supporters, including groups like Transgender Victoria and the Australian Multicultural Foundation, argue the laws are essential for protecting vulnerable communities, citing rising hate crimes. Yet the same laws could be weaponised against those communities, as the Victorian Aboriginal Legal Service noted, without robust safeguards like the Sam Kerr clause. Meanwhile, the government's own actions, supporting military engagements abroad while policing domestic speech, highlight a hypocrisy Mill would decry. If states can justify harm under "national interest," why punish citizens for non-violent expression?

A Millian Critique: Where's the Harm?

Mill's harm principle demands a high bar for restricting speech: direct, imminent harm. Victoria's laws, with their vague definitions and expansive reach, fall short of this standard. Labelling speech as "hateful" or "divisive" risks conflating offense with harm, empowering authorities to pick and choose what's acceptable. This isn't just a legal issue, it's a cultural shift toward sanitising debate, where dissenters, Left or Right, self-censor to avoid prosecution.

Victoria's anti-vilification laws aim to foster inclusion, but risk becoming tools of censorship. To align with Mill's principles, they need narrower definitions tied to tangible harm, not subjective offence, and stronger protections for political expression. Without a federal bill of rights, Victoria must tread carefully to avoid eroding the implied freedom of political communication. The real danger isn't just hate, it's a once-democracy where voices are silenced for fear of crossing an ill-defined line.