Laws

Video: Hate Speech Law: Is it a good law?

The challenge when making hate laws is balancing:

Freedom from discrimination versus Rights (right to speech, right to expression)

Where do we draw the line to balances these rights?

There is a spectrum of hate speech:

  • Incitement to Violence

  • Incitement to Hatred

  • Incitement to Discrimination

  • Provocation

  • Insult and Humiliations

  • Denial of Historical Attrocities

Different laws for hate speech depend on where they sit on the spectrum.

Some are

  • criminal offences such as Incitement to violence which is covered in legislation such as Federal Criminal Code Act (Cth) 1995 and Crimes Act (NSW) 1900; or

  • civil offences such as incitement, discrimination which is covered in legislation such as Racial Discrimination Act (Cth) 1975 or Antidiscrimination Act (NSW) 1977.

With the State discrimination legislation in Victoria, Queensland, Western Australia an South Australia containing both civil and criminal offences.

Why does it matter if it is Civil or Criminal Offense?

Criminal:

Hate Speech is criminalised when it poses a threat to public safety and order.

Given that punishments may include imprisonment, providing such offence requires a high standard of proof (beyond reasonable doubt).

Civil:

Hate Speech can also be treated as a civil liability for offences that are considered less severe on the hate speech spectrum.

The standard of proof is lower, on the balance of probabilities.

Things to consider when looking at hate speech laws?

  1. What is the purpose of the law?

  2. Is it clear? Are the terms and definitions clear enough? The need to be precise and not vague so as to avoid arbitrary application. Will the community understand what types of speech are covered by laws?

  3. Are they accepted? Are the boundaries of behaviour consistent with community standards? Or do they only reflect one group’s perspective?

  4. Are they fair? Does the punishment fit the crime? Or do they unjustly impact on other important rights? Will everyone be subject to the law and similar penalties applied for similar breaches?

  5. Are they enforceable? Are they clear enough so they can be effectively enforced? Are they broad enough to cover what the laws are intending to protect against?

  6. Do they protect human rights? Do they effectively balances the right to safety and security with the right to freedom of speech?

  7. Will they satisfy their purpose? Will they send a clear message about community expectations regarding certain behaviour?

By evaluating laws through these characteristics, we can form a critical understanding about whether a particular law achieves its purpose and aligns with the rule of law.

Our laws must protect and advance individual Australians. It is critical that Australians feel safe and free to go about their day to day lives.

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