“Sticks and stones may break my bones, but words will never hurt me.”
How many of us were taught this rhyme by our parents in their attempt to minimise our distress when kids at school called us names? As children, we were taught to distinguish the hurt we felt when someone said something mean about us, from the harm of physical violence, with the latter treated much more seriously.
Referring to this simple, children’s rhyme as the theme for my column this week is not an exercise in nostalgia; rather, it’s helpful when trying to understand our anti-vilification laws and the recent government attempts to expand them.
If we look at the current landscape, our criminal anti-vilification laws have the effect of putting our little “sticks and stones” rhyme into effect, with a minor adjustment. The criminal law at a federal level and in NSW broadly agrees that “words can never hurt me,” with one exception; if your words encourage another person to pick up sticks and stones to hurt someone else, your words can get you into trouble. Put more formally, if you publicly urge threaten or incite violence towards another person or group on the basis of a protected attribute, you can be charged with a crime. The law is not going to shield someone who encourages others to use violence, simply because they were not violent themselves.
In NSW, public incitement of violence is punishable with a maximum fine of $11,000 and up to three years imprisonment.
Words deemed to be vilifying are also captured by our anti-discrimination laws, which prohibit inciting hatred, serious contempt or severe ridicule of a person or group. Under these laws, the “words can never hurt me” refrain is rejected, because these laws assert that words can be harmful in and of themselves without any reference to actual or threatened physical harm. However, these laws do not result in criminal penalties, but in the potential for compensation, apologies, retractions and the like.
The current debate is about whether we should expand the scope of these laws, both in terms of who they protect and the penalties that apply.
For example, there are already religious vilification provisions in the federal criminal law that prohibit intentionally urging violence against a person or group based on race, religion, nationality, national or ethnic origin or political opinion. The federal government had been hoping to expand these laws to also protect people on the basis of their sexual orientation and gender identity, and there is currently a parliamentary inquiry in process, with witnesses giving testimony this week. However, with no more parliamentary sittings before the end of the year and limited time before the next election, if any, it is unlikely these will go through during this term of parliament.
Meanwhile, the Victorian government has tabled a bill that will see criminal penalties apply to words alone. When passed, it will mean that a person who says something that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of a person or group will be liable to up to three years in prison.
Under this law, “Sticks and stones may break my bones, but words will never hurt me” no longer applies; a person can be imprisoned for three years for the “harm” caused by words alone.
While no one would advocate in favour of vilification of individuals or groups, there are good reasons to oppose the expansion of these laws.
As the ambit of “hate speech” appears to be constantly expanding in a way that sees any type of public criticism of a person or behaviour labelled as “hateful” or “harmful,” there is a risk that what one person could consider to be honest disagreement and reasoned debate (or even religious teaching) could be characterised as criminal speech, depending on how terms like “hatred,” “contempt,” “revulsion” or “ridicule” are interpreted by a judge or jury.
It is a matter of justice that our criminal laws, particularly those that could see you end up in prison, are abundantly clear so that everyone knows where the line is; otherwise, we are all just a few words away from a Victorian prison.