The Effects of Civil Hate Speech Laws: Lessons from Australia

Date01 September 2015
Published date01 September 2015
The Effects of Civil Hate Speech Laws: Lessons
from Australia
Katharine Gelber Luke McNamara
This article examines the effects of hate speech laws in Australia. Triangulat-
ing data from primary and secondary sources, we examine five hypothesized
effects: whether the laws provide a remedy to targets of hate speech, encour-
age more respectful speech, have an educative or symbolic effect, have a chill-
ing effect, or create “martyrs.” We find the laws provide a limited remedy in
the complaints mechanisms, provide a framework for direct community advo-
cacy, and that knowledge of the laws exists in public discourse. However, the
complaints mechanism imposes a significant enforcement burden on targeted
communities, who still regularly experience hate speech. We find a reduction
in the expression of prejudice in mediated outlets, but not on the street. We
find no evidence of a chilling effect and we find the risk of free speech martyrs
to be marginal. We draw out the implications of these findings for other
This article seeks to make a contribution to international
debate about the legitimacy and efficacy of hate speech laws, by
examining the effects of hate speech laws in practice. Hate speech
is condemned in the International Covenant on Civil and Political
Rights (Art. 19) and the International Convention on the Elimi-
nation of All Forms of Racial Discrimination (Art. 4). These
injunctions have been operationalized in many countries, and
studies have been conducted into the operation of hate speech
laws in countries including Canada (McNamara 2005a, 2005b;
McNamara 2007: 187–208; Sumner 2009), the United Kingdom
(McNamara 2007: 167–86; Williams 2009), France (Mbongo
2009; Suk 2012), Hungary (Molnar 2009), and Germany (Grimm
We acknowledge funding from the Australian Research Council (DP1096721), and eth-
ical clearance from the Univ. of Queensland (2011000341). We thank Jess Todhunter,
Dave Eden, Sorcha Tormey and Ellyse Fenton for research assistance, and acknowledge
the important work undertaken by Cultural and Indigenous Research Centre Australia
(CIRCA). We are grateful also for the assistance of the relevant authorities and community
organizations from whom we obtained data. Please direct all correspondence to Katharine
Gelber, School of Political Science and International Studies, University of Queensland,
Brisbane, Queensland; e-mail:
Law & Society Review, Volume 49, Number 3 (2015)
C2015 Law and Society Association. All rights reserved.
2009). In the United States hate speech laws do not exist due to
the protections afforded speech by the First Amendment (Hey-
man 2009; Weinstein 1999), however, there is an excellent litera-
ture examining the enforcement of hate crime laws that punish
bias-motivated crimes (e.g., Jacobs and Potter 1998; Jenness and
Grattet 2001; Lawrence 1999; Savelsberg and King 2005, 2011).
There have also been numerous philosophical contributions to
this field, which have focussed, for example, on the ways in which
hate speech can harm (Maitra and McGowan 2012a, 2012b; Wal-
dron 2012) or on debates for or against hate speech laws (e.g.,
Brown 2015; Heinze and Phillipson 2014).
Since the enactment of the first hate speech legislation in Aus-
tralia in 1989, research has focussed on their compatibility with
free speech principles (Flahvin 1995; Gelber 2002; Gelber and
Stone eds. 2007a; McNamara 2002) or the Constitution (Aroney
2006; Chesterman 2000; Meagher 2005). Research has also eval-
uated how the laws are applied and interpreted (Chapman 2004;
Chesterman 2000; Gelber 2000; McNamara 1997; Meagher
2004; Thampapillai 2010) or case studies (Hennessy and Smith
1994; Jessup 2001; McNamara 1998). This article aims to update
this literature by presenting the findings from a large, new study
into the impact of hate speech laws on public discourse in Aus-
tralia, from the enactment of the first hate speech laws in New
South Wales in 1989 to 2010.
We investigate the ways in which legislation might have
affected public discourse over time. We note that legislation in
Australia is drafted differently in different jurisdictions (see
below). This means there is no single legal definition of hate
speech in Australia. Further, we were concerned to assess the reg-
ulatory system’s effects on speech that may stylistically not be
challengeable under extant laws, but that nevertheless discur-
sively enacts discrimination or marginalization. We, therefore, use
the term “hate speech” to mean expression that is capable of
inciting prejudice toward, or effecting marginalization of, a per-
son or group of people on a specified ground (adapted from
Gelber and Stone 2007b: xii). We use it interchangeably with
“vilification,” the latter being used in the Australian regulatory
Our task is methodologically challenging, for connecting
changes in public discourse to the introduction or enforcement of
hate speech laws is fraught with difficulty. We take a measured
and careful approach where we make claims about the likely
influence of hate speech laws on public discourse. We also
acknowledge the need for caution in extrapolating our conclu-
sions about Australia’s regulatory scheme to other jurisdictions
where different models of hate speech laws have been enacted,
632 Effects of hate speech laws
and to the United States, where the First Amendment precludes
the statutory prohibition of hate speech. Nonetheless, we believe
a number of our findings have wider implications. These include
our insights about the possibility for instrumental and symbolic
benefits even in the absence of punitive sanctions for norm viola-
tion, and our reservations about the “uneven” protection
afforded by regulatory regimes that adopt a civil justice model,
where status as a “victim” is a precondition to commencing pro-
ceedings, and where the material conditions and organizational
capacity of communities targeted by hate speech can seriously
impact on their opportunity to access the law’s protection.
This research project triangulated data from a range of pri-
mary and secondary sources, to investigate the relationship
between hate speech laws and public discourse over time. Sources
include complaints data from, and interviews with, federal and
state/territory human rights authorities; tribunal and court deci-
sions; qualitative document analysis of letters to the editor pub-
lished in newspapers; data from community organizations
regarding their members’ experiences; and interviews conducted
with 101 members and representatives of target communities.
These latter interviews were conducted on our behalf by Cultural
and Indigenous Research Centre Australia (CIRCA). A total of 55
qualitative, semistructured, in-depth, paired (46) and individual
(9) interviews were conducted in urban (41), regional (6), and
remote (8) areas.
Interviews were conducted with the following
groups: Aboriginal and Torres Strait Islander, Afghani,
Australian-born Arabic-speaking Muslim, Australian-born Arabic-
speaking Christian, Chinese, Indian, Jewish, Lebanese-born
Christian, Lebanese-born Muslim, Sudanese, Turkish Alevi,
Turkish Muslim, and Vietnamese. The authors also conducted
qualitative, semistructured, in-depth interviews with newspaper
editors, and lawyers involved in vilification cases. Interviews were
conducted under conditions of confidentiality, therefore, no iden-
tifying information is provided for interviewees except where
they gave us express permission to do so. In each subsection of
this article, we provide further information about the method uti-
lised for that component of the data collection.
Australian Hate Speech Laws
Australia is a federation with six states and two self-governing
Territories. All jurisdictions except the Northern Territory have
Where necessary, interviews were conducted in a language other than English, and
English-language transcripts were provided to the authors.
Gelber & McNamara 633

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