Lessons from 1995: Why Federal Criminal Racial Hatred Laws Failed

Reflecting on the history of Section 18C and the failed attempt to criminalize offensive speech.

As the Federal Government proposes new criminal laws for racial hatred in January 2026, we examine the legal precedent of 1995 to understand why previous attempts were struck down.

In the early 1990s, major inquiries—including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody—uncovered disturbing levels of racial abuse in Australia. However, as Professor Anne Twomey explains, none of these inquiries recommended criminal sanctions. They favored civil remedies, fearing that criminalizing words would be counterproductive and infringe on free speech.

The Three Proposed (and Rejected) Offences

The Keating Government’s Racial Hatred Bill 1994 originally contained three criminal clauses intended for the Crimes Act:

• Threatening Physical Harm (Max 2 years jail): Targeted threats against persons based on race. [00:06:23]
• Threatening Property Damage (Max 1 year jail): Threats to destroy property based on race. [00:06:39]
• Inciting Racial Hatred (Max 1 year jail): Public acts intended to incite hatred that were objectively likely to cause it. [00:07:34]

The Legal Hurdle: Government officials admitted that the first two offences were already crimes under state law. Adding a "racial element" actually made it harder for police to prosecute, as they would have to prove a specific motive that wasn't required for standard assault or property damage charges. [00:06:54]

The Philosophical Standoff

The criminal provisions were defeated by an "unusual alliance" between the Coalition and the Greens, who both saw the bill as a step too far for the state:

• The Coalition's Free Speech Defense: Senator Amanda Vanstone famously described the attempt to criminalize non-violent speech as "social engineering at its worst." The Coalition argued that people should be free to be "obnoxious" or "unpleasant" as long as they didn't incite violence. [00:10:24]
• The Greens' "Them and Us" Warning: The WA Greens, led by Senator Christabel Chamarette, argued that criminalization creates an adversarial mindset. They believed that labeling people as "criminals" for their words would mirror the same intolerance the bill sought to fix, rather than building a tolerant society. [00:12:30]

"The inquiries found that the law should focus on conciliation and compensation. Criminalizing words creates martyrs and drives hatred underground rather than resolving it." [00:11:14]

Impact on the 2026 Debate

The 1995 defeat resulted in the civil-only provision we know today as Section 18C. As the government again moves toward criminal sanctions in 2026, we must consider if the redundant nature of these laws—and the risk of polarizing society further—remains the same as it was 30 years ago.

Educational Resource: This post features insights from Constitutional Clarion, hosted by Professor Emerita Anne Twomey. Use this historical context to inform your perspective on current federal legislative proposals.