Australia’s current debate about hate speech feels both urgent and strangely familiar. Urgent because violence motivated by hatred has again spilled into public space. Familiar because, for many of us, hatred was never something abstract, theoretical, or confined to the internet, writes Andrew Boe.
Andrew Boe
Content warning: This article contains language that may offend some readers.
Hatred was spoken aloud, to our faces, long before legislators discovered the phrase “social cohesion”.
I know this because I grew up inside it.
I was not born in this country. I was brought here as a child by my parents, migrants fleeing a totalitarian military regime in Burma, now Myanmar, in search of safety and dignity. We arrived with nothing. We were brown-skinned in a very white suburb, renamed with Anglo-Christian names in the hope that it might help us belong.
It did not.
From the schoolyard to the street, racial slurs were casual, relentless and unashamed. They were part of the air we breathe. They were accompanied by sexist, misogynistic and other intolerant slurs directed at anyone who was not white, male, outwardly masculine and heterosexual. Some of it was in jest – perhaps even most of it. Some of it was not. Few immigrants, other than those from the “mother country”, were spared.
Italians and other Europeans were berated as “wogs”. Irish jokes, invariably suggesting drunkenness, were considered sort of funny. “Jew” was a term used for anyone who did not share their lollies. I was called a “chog”, a “chink”, or a “gook”, even though I am neither Chinese nor Vietnamese. Some kids were clearly coming to terms with their homosexuality, and they did not stand a chance in the way they were spoken to: “faggots”, “poofs”, and “dykes”. Misogyny was also abundant: girls shamed for developing breasts or having menstrual periods – “she’s on the rags”.
It was awful.
The worst abuse was directed at First Nations people, though that term was not yet used. They were dismissed as lazy “boongs”, sometimes “niggered”. It was more than awful. It was denigrating and dehumanising.
There was no internet then. These slurs were said to our faces – and sometimes snickered just out of earshot.
We were barely teenagers and knew almost nothing beyond our own personal struggles to fit in.
I said nothing. I wanted desperately to be white, hairier, and look more “manly”.
Perhaps as pernicious as the slurs themselves was the likelihood that we were discriminated against without our knowing it – when trying to hail a taxi, when scanning a restaurant for a walk-in table, or when applying for jobs or places in institutions.
Now, more than half a century later, though I personally survived most of this othering, I feel sadness.
Yes, my cohort is treated a little better now. But not much.
I became a lawyer. I sought to interrogate and combat racism in the criminal justice system. I remember a judge once telling me that calling someone a racist was worse than being a racist.
I took one case to the High Court involving a magistrate who sentenced a young homeless woman to three weeks’ imprisonment for telling a police officer to “f--k off, you c--t” or words to that effect, as she was bundled into a paddy wagon at 3:00am. There was no apparent reason for her arrest other than that she was Indigenous and intoxicated. No one else was present. She’d served seven days before the remainder was quashed by an intermediary appeal court. The discussion in the appeal courts about what is offensive by reference to the identity of the people involved – First Nations speaker and female police officer being called a “c--t” – is germane to the present discussion of how different Jewish people view what is anti-Semitic and what is not.[1]
Australia, at least for as long as I have lived here, has been mired in its attempts to address racial discrimination. The hatred directed at First Nations people remains the most virulent and systemic.
It is with this personal history that I view the current conversation about “hate speech”, focused largely on anti-Semitism and, to a lesser extent, Islamophobia.
In this discussion, there is a dire need to separate the current political thirst for a specific offence of saying something hateful about another’s characteristic and the commission of an offence of violence motivated by a specific hate. This distinction must be premised on an evidentiary basis.
No one should seek to diminish the horrific impact of terrorists shooting Jews for being Jews, as occurred at Bondi Beach last month. I have felt its effects among friends. For those directly affected, their sense of safety and security will be permanently diminished. The question remains, however, whether these murders were committed because the two shooters were incited by specific hate speech in our community. Some specious attempts have been made by some in the media to allege this, yet none of the police and prosecuting agencies who are investigating and examining the evidence have yet found so. If evidence could be found that they were, then existing laws would make those who incited these murderers, criminally culpable for these murders.
As an aside, few have remarked on the utter futility of such acts in advancing any ideological or religious cause. The attacks on the Twin Towers in New York did nothing to benefit the Islamic cause in whose name they were committed. The murderous attacks by Hamas on 7 October achieved nothing for the Palestinian cause other than a response from Israel. Nor will the Bondi attacks advance ISIS or any other ideology claimed by the perpetrators.
These events have revived debate about whether there is a relationship between what is loosely called “hate speech” and acts of violence. This is a difficult discussion, and the certainty displayed by some on both sides is misplaced. Opinion pieces abound – some advocating draconian laws to suppress political or free speech, others asserting an unfettered right to spew hatred so long as it targets states or institutions rather than people. The evidentiary basis for any causal relationship – or lack of one – remains unclear.
The current political response in Australia appears conflated with weighted bias, depending on perceived electoral consequences. This is hardly a recipe for addressing the needs of the community as a whole. If the proposed legislation seeks to put a hierarchy into the hate crimes that elevates a particular characteristic over others, then that would be a very unfortunate and retrograde step.
The project of increasing or improving social cohesion is worthy. But in a country with Australia’s history – including an unresolved and shameful legacy of systemic racism against First Nations peoples – it may be better advanced not by creating new hate-speech offences focused narrowly on anti-Semitism or Islamophobia, but by empowering courts to impose more severe penalties and alternative measures on those who commit acts of violence, or incite them, where those acts are motivated by hate on the basis of a person’s characteristics.
This could be achieved through legislation providing that proven “hate motivation” aggravates existing criminal offences at both state and Commonwealth levels.
Such legislation might include:
• A definition of “protected characteristics” applying equally to all, whether actual or perceived, including:
(a) race; (b) colour; (c) ethnicity; (d) nationality; (e) religious belief or lack of religious belief; (f) sex; (g) sexual orientation; (h) gender identity or intersex status; (i) disability; (j) age; and (k) political belief or lawful political association. (The finalisation of this list should be calmly debated).
• A definition of “hate motivation” as “hostility, prejudice, or bias against or towards a protected characteristic that materially motivates or aggravates the commission of an offence”.
• Provision for an offence to be treated as aggravated where the court is satisfied beyond reasonable doubt that the offender:
(a) acted with hate motivation;
(b) intended to incite violence against a person or group because of a protected characteristic; or
(c) was reckless as to whether violence would be incited for that reason.
For these purposes, recklessness would mean awareness of a substantial risk that violence would be incited, where taking that risk was unjustifiable in the circumstances.
These are just some suggestions. Those more skilled in parliamentary drafting could refine them so they seamlessly integrate into existing legislation. This is an op-ed piece, not a legal submission; it is intended to promote caution and wider consideration of how to enhance social cohesion in a nation that has found it difficult to see itself.
Such an approach would allow courts to treat hate-motivated violence as an aggravating factor warranting stronger punishment and permitting the ordering of protective measures, without throwing the baby out with the bathwater by eroding fundamental rights – including freedom of speech, the “right” to protest, and religious freedoms.
Courts could adopt a disciplined approach to identifying protected characteristics, drawing on existing jurisprudence. An example is Stewart J’s recent analysis of anti-Semitism under s 18C of the Racial Discrimination Act in Wertheim v Haddad [2025] FCA 720, where His Honour observed:
[107] I do not consider that the ordinary, reasonable listener would understand Mr Haddad in these passages, either in isolation or in the context of the sermon as a whole, to be saying anything about Jews generally or about all Jews. He is quite specific in the sermon. He is critical of Israel, the IDF and Zionists. (…)The ordinary, reasonable listener would understand that not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group. Needless to say, political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity: see South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Masuku [2022] ZACC 5; 2022 (4) SA 1 (CC) at [4]-[6] and [161]-[166] per Khampepe J for the Court. Indeed, the applicants did not submit that it is. The conclusion that it is not anti-Semitic to criticise Israel is the corollary of the conclusion that to blame Jews for the actions of Israel is anti-Semitic; the one flows from the other.
The proof of the nexus – the hate motivation – then becomes a disciplined and independent forensic exercise. That may be the most workable starting point for this project. One that increases social cohesion without resorting to social coercion. And one that leaves politicians to confront, at last, the gun lobby and place real restrictions on our access to weapons used to commit violent crimes – whether motivated by hate or not.
This perhaps interim measure will allow the royal commission to focus on its essential remit: to gather evidence and make recommendations to assist politicians to frame any specific hate crime offence only after unravelling the complexity and history of the centuries-long disagreements between those exploiting the conflicting ideologies in Judaism and Islam, which is preoccupying the current conversation.
Andrew Boe is an Australian barrister. He provided a written advice to Jewish groups in the aftermath of the pro-Palestine march at the Opera House seeking prosecution for alleged “hate speech”, an advice tabled in the NSW parliament. Section 93Z of the Crimes Act (NSW) was subsequently amended. He also appeared for the Islamic preacher accused of hate speech in Wertheim v Haddad, the case referred to above. His children identify as First Nations through their mother.
1: Del Vecchio v Couchy [2002] QCA 9; Couchy v Del Vecchio [2004] HCATrans 520
