Australia’s renewed push to strengthen hate‑speech laws, after the Bondi Massacre, has stirred up a familiar conversation across the Tasman. Whenever one democracy tightens the boundaries of acceptable speech, its neighbours inevitably ask themselves the same questions: What exactly are we trying to prevent? Do these laws work? And how do we avoid repeating the mistakes of the past?
To answer those questions, it helps to step back and look at the long, winding history of how societies have tried to regulate dangerous speech — from medieval blasphemy laws to modern hate‑speech statutes — and how New Zealand found itself wrestling with these issues in recent years.
Before “Hate Speech”: The Era of Proto‑Laws
Long before anyone coined the phrase “hate speech,” societies were already policing words. But the targets were very different from today.
Early speech restrictions were designed to protect the powerful, not the vulnerable. Medieval and early‑modern Europe punished blasphemy, heresy, and insults to monarchs. Sedition laws protected the state. Public‑order laws punished speech that threatened stability. These weren’t hate‑speech laws — but they were the ancestors of modern speech regulation. They recognised that words could inflame, destabilise, or provoke violence.
They were, in a sense, proto–hate speech laws: early attempts to control dangerous expression, but aimed at shielding institutions and dominant religions rather than minority communities.
Weimar Germany: A Warning From the Middle Ground
By the early 20th century, democracies began experimenting with laws that looked closer to what we recognise today. The Weimar Republic had statutes against inciting hatred, insulting religious communities, and spreading inflammatory propaganda. These laws were used — sporadically — against Hitler and the Nazi Party.
But they were weak, inconsistently enforced, and applied by courts often sympathetic to nationalist rhetoric. They failed not because the idea of regulating incitement was flawed, but because the state enforcing them was collapsing.
This failure became a turning point. After the war, the world understood that propaganda and dehumanising rhetoric weren’t abstract harms — they were precursors to genocide.
After the Holocaust: The Birth of Modern Hate‑Speech Law
Modern hate‑speech laws are a post‑WWII creation. Germany led the way with strict bans on Nazi symbols, Holocaust denial, and incitement against groups. These laws influenced the European Convention on Human Rights, UN anti‑racism conventions, and the frameworks adopted by Canada, the UK, and others.
For the first time, speech regulation was designed to protect vulnerable minorities, not the state or the dominant religion. The moral logic was clear: if hateful propaganda helped pave the road to genocide, democracies had a duty to intervene earlier.
But even with this moral clarity, the practical challenges remained.
The Drafting Dilemma: Why Hate‑Speech Laws Are So Hard to Get Right
Even supporters of hate‑speech laws acknowledge the same recurring problems.
Definitions are slippery.
Words like “hatred,” “insult,” and “hostility” are subjective. What one person sees as critique, another sees as bigotry.
Enforcement can become political.
Police and courts must interpret emotional concepts. That opens the door to inconsistency — or misuse.
Ideas are not people.
Laws should protect individuals from harm, not shield belief systems from criticism. When religion becomes a protected category, the line between hate‑speech law and blasphemy law can blur quickly.
Effectiveness is mixed.
Countries with strong hate‑speech laws still experience rising extremism. The laws can reduce public displays of hate, but they rarely change underlying prejudice.
These tensions are exactly what Australia is grappling with now — and what New Zealand confronted recently.
New Zealand’s High‑Threshold Approach
New Zealand has some of the narrowest hate‑speech laws in the democratic world. Under the Human Rights Act 1993, only racial incitement is covered. The threshold is high: the speech must be threatening, abusive, or insulting and likely to incite hostility or contempt.
Religion, gender, sexuality, disability, and political belief are not included. Most offensive or hateful speech is not illegal unless it crosses into threats, harassment, or incitement to violence — all of which are already covered by the Crimes Act and other statutes.
This approach reflects a strong cultural preference for free expression and a reluctance to criminalise attitudes rather than actions.
The Push to Add Religion — And Why It Backfired
After the Christchurch mosque attacks, the Royal Commission recommended expanding hate‑speech protections to include religion. The government proposed amending the Human Rights Act so that “insulting” or “hostile” speech about religious groups could become a criminal offence.
The reaction was swift and intense.
Critics warned that criminalising “insults” to religion risked creating a de facto blasphemy law — just two years after New Zealand had formally repealed its old blasphemy offence. The concern wasn’t abstract. Around the world, laws protecting religion from “insult” have been used to:
- Suppress theological disagreement
- Silence ex‑believers
- Chill academic study of comparative religion
- Shield harmful practices from scrutiny
- Protect ideas instead of people
Public submissions overwhelmingly argued that the proposal would undermine open debate, academic freedom, and the ability to challenge belief systems — all essential in a pluralistic society.
In the end, the Law Commission declined to include hate‑speech reform in its work programme, and the government withdrew the proposal entirely.
What Australia Can Learn From New Zealand’s Experience
Australia’s debate is unfolding in a global context where hate‑speech laws are common but their effectiveness is mixed. The New Zealand experience offers a quiet but important lesson: even well‑intentioned reforms can stumble when they risk suppressing legitimate debate, especially around religion.
The challenge is not whether to protect vulnerable communities — everyone agrees on that. The challenge is how to do it without sliding back into the old pattern of protecting belief systems from criticism, the very thing modern democracies have spent decades moving away from.
If Australia wants to avoid repeating history — both ancient and modern — it will need to draft with extraordinary care, clear thresholds, and a firm commitment to protecting people rather than ideas.
