Democracy is not a tea party where everyone makes polite conversation – it's messy and confrontational, sometimes even offensive – if we cannot handle that, then we should stop pretending to be a free society, writes James Stekhoven.
THE AUSTRALIAN PARLIAMENT has just passed the strongest hate speech laws in our nation’s history. Citizens now face up to seven years in prison for publicly inciting hatred against groups based on race or ethnicity. Religious and community leaders who abuse their position face up to ten years.
Yet as I write this, our political leaders continue to make statements about foreign conflicts that would land any ordinary citizen in legal jeopardy. The double standard is astonishing.
Let me be clear: I am not defending hate speech. Racist vilification has no place in a civilised society. The Combatting Antisemitism, Hate and Extremism Act 2026 was rushed through Parliament after the Bondi terrorist attack, but its stated intention – protecting communities from hatred that can incite violence – is legitimate.
But here’s the hypocrisy the political class doesn’t want us to consider: the same laws that muzzle ordinary Australians leave politicians untouched.
Two sets of rules
The new legislation creates an offence of publicly promoting or inciting hatred against a person or group on grounds of race, colour, or national or ethnic origin.
It targets:
'Spreading ideas of racial superiority' and 'serious forms of antisemitic rhetoric, as well as white supremacy and other racist rhetoric'
The test is partly subjective — if a member of the target group feels threatened, fears harassment or violence, or fears for their safety, the law can be activated, regardless of the speaker’s intention.
Yet, when our Prime Minister, Anthony Albanese, endorses foreign military actions that kill children, when he aligns Australia with policies that will almost certainly inflame Muslim communities worldwide, his words are treated as legitimate policy debate, not incitement.
Greens Senator Mehreen Faruqi put it bluntly recently:
“Islamophobia and anti-Muslim hate has become more normalised, more emboldened, and more dangerous. Instead of confronting this hate, politicians and the media continue to inflame and legitimise it”.
The Constitutional fiction
Our Australian Constitution contains no right to freedom of expression. Instead, the High Court has found an 'implied freedom of political communication' arising from sections 7 and 24 — the provisions establishing representative government. This freedom is not a right of citizens, but a limit on legislative power. It exists to protect the process of politics, not the person expressing themselves.
Notice the hierarchy: representatives and represented. But in practice, the representatives enjoy near-total immunity for their speech, while the represented walk on eggshells.
What political speech is actually protected?
The implied freedom protects communication about political matters. When a citizen argues that supporting foreign military action will inflame Australian Muslim communities, that is a political prediction about the consequences of government policy.
Yet under the new laws, such statements could theoretically be investigated if a “reasonable person” from a target group felt intimidated. The law does not require intent to intimidate — only that a reasonable person would feel intimidated.
The immunity of power
The Parliamentary Joint Committee on Intelligence and Security noted that the proposed racial vilification offence will not proceed. But the framework remains concerning.
When political leaders describe entire nations or movements in dehumanising terms, do they not create the conditions for hatred to flourish?
Yet political speech is exempt — not legally, but practically. No politician will ever be charged under these laws for statements made in their official capacity, no matter how inflammatory the predictable consequences.
The chilling effect
The practical result is a chilling effect on political debate. Citizens who might otherwise speak out will now hesitate. They fear that their words could be interpreted as “inciting hatred” if a member of some group takes offence.
As The Spectator Australia observed:
'The more a group might deserve to be criticised, the more protection it receives from such legislation... intolerant people tend to feel more easily offended. In this way, the more radical or extreme the person is, the more opportunities he or she will have to use the legislation as an instrument of persecution against those who dare to disagree.'
The Justice and Equity Centre noted in its submission that protections should be expanded to include other vulnerable communities, but the principle of protecting speech from criminalisation remains vital.
What democracy requires
In genuine democracies, citizens can speak publicly about their convictions — even when those convictions offend others. As Salman Rushdie adroitly observed:
“The defence of free speech begins at the point where people say something you can’t stand. If you can’t defend their right to say it, then you don’t believe in free speech. You only believe in free speech as long as it doesn’t get up your nose”.
The European Court of Human Rights has noted that:
“Those who choose to exercise the freedom to manifest their religion... cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”.
This principle applies equally to political beliefs.
The question that remains
So I return to my original question: Why do politicians get to inflame, but citizens don’t?
If the new hate speech laws are genuinely about protecting communities from hatred that leads to violence, they must apply to all — including those in power.
If they are instead about controlling the speech of ordinary Australians while leaving the political class untouched, they are not anti-hate laws at all. They are instruments of authoritarian control dressed in the language of compassion.
The implied freedom of political communication was meant to protect democratic debate. But when citizens fear speaking while politicians speak freely, that freedom has become a one-way street.
We must demand either that our leaders be held to the same standards as the rest of us — or that the laws be reformed to protect genuine political communication, no matter how uncomfortable it makes the powerful.
Democracy is not a tea party where everyone makes polite conversation. It is messy, confrontational, and often offensive. If we cannot handle that reality, we should stop pretending to be a free society.
The choice is ours — but we must make it before the silencing is complete.
Dr James Schuurmans-Stekhoven has a career defined by high-level academic rigour, a polymathic approach to research and a commitment to strategic optimisation across multiple disciplines.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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