The newly-passed federal hate speech laws in Australia represent one of the most consequential shifts in the regulation of public discourse in our nation’s history. These laws, enacted in response to the recent Bondi Beach shooting with the support of the Liberal Party, will supposedly serve as necessary tools to combat antisemitism and extremism. But a careful evaluation of the legislation reveals glaring problems of clarity, scope and political risk, problems that should unsettle any Australian who values freedom of speech and the rule of law.
From the outset, we must acknowledge shared concerns from across the political isle. There is no serious argument from the vast majority of Australians, regardless of political affiliation, in defence of racial violence, religious extremism or groups that advocate for hatred. However, the language and structure of the legislation demand a regulatory approach based entirely on subjective criteria rather than objective standards of criminal conduct.
The most prominent feature of the legislation lies in its capacity to declare organisations “hate groups” if they are suspected of engaging in or conspiring to commit “hate crime,” a term which extends beyond conduct currently classified as criminal. Under the new laws, “hate crimes” will comprise activities that would “cause a reasonable person…to be intimidated, to fear harassment or violence, or fear for their safety” on the basis of race or national origin. Interpretation of such language is inherently uncertain and highly susceptible to political influence.
Vague Definitions
Perhaps the most disconcerting element of Australia’s hate speech laws is its failure to provide unambiguous definitions of key concepts. Determining what constitutes intimidating speech calls for a normative judgment of emotional or psychological effect rather than the presence of objectively harmful conduct, and cannot possibly adhere to a straightforward or objective legal standard. Legislation predicated on vague concepts such as harm and intimidation face a high likelihood of litigation in constitutional courts.
Various critics from across the political isle have identified these risks, and political commentators from academic circles have been quick to warn that the success of such legislation should be evaluated not on the basis of intent but on the effect of its implementation. For instance, as observed by legal experts, the minister who designates a hate group relies entirely on the advice of ASIO and does not need to observe procedural fairness in doing so. The only formal check is the parliamentary disallowance mechanism, a blunt instrument that is largely trivial considering the government’s strength in parliament.
The Linguistic Problem
From the standpoint of linguistic analysis, Australia’s hate speech laws exemplify one of the most basic conflicts in linguistic theory: the classic tension between normative language and legal precision. Words such as hatred, fear, intimidation and harm carry emotional meaning but remain lexically unenclosed. They serve as useful terms in politics and media but are problematic in a legal context.
Once this legislation codifies psychologically construed harm as equivalent to objectively harmful conduct, it creates a legal environment in which context and subjective perception become the de facto standards of law. This relates to an argument that linguists make in regard to words such as ‘intimidation’, in that they do not carry an explicit denotative meaning, but instead a range of connotations that pertains to factors such as expectations and social settings.
Consequently, the legislation extends beyond abstract semantics to legal risk. Organisations which hold unpopular but peaceful views may find themselves operating under the shadow of potential prohibition, simply because a third party believes that their presence increases the risk of politically motivated violence.
Political Consequences
Legislative haste and rhetorical pace rarely produce well-made laws. Writing in a national newspaper shortly before the proposals were enacted, a senior academic commented that the legislative process took place before the newly-formed royal commission into antisemitism had even started its work. The consequence is reactionary legislation.
It is worth noting that the legislation was passed without the watered-down criminal incitement offence, which was removed following concerns from the Coalition that it violated freedom of speech and ultimately resulted in another split. These bitter divisions reflect the overarching concern that the legislation may shift its regulatory focus from violently condemnable actions towards potentially criminalising broad categories of group activity based on politically-motivated evaluations.
Fair Legislation For Real Harm
Australia has long had criminal laws targeting threats, intimidation and incitement of violence. These laws address conduct that result in demonstrable harm. Expanding the reach of state power to speculative emotional harm, determined by subjective linguistic interpretation, sets a dangerous precedent. It opens the way for the state to crack down un unfavourable political movements, regardless of whether they are peaceful.
Australia’s hate speech laws should aim to draw a clear distinction between speech which genuinely threatens the safety of others and that which is merely controversial. The haste of this legislation sacrificed this distinction on the altar of symbolic virtue-signalling. Australia’s free society is strong, but its strength lies in trusting its citizens to engage and rebut offensive speech, rather than shielding them from it. This view should guide efforts for reform.
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