Building Tolerance into Hate Speech Laws: State and Territory Anti-Vilification Legislation Reviewed Against International Law Standards

Abstract

UN monitoring bodies frequently pose questions about Australia’s compliance with the hate speech mandates of key UN conventions. Recently, the Human Rights Committee enquired about inconsistencies across Australian state and territory anti-vilification legislation, as raising issues under the International Covenant on Civil and Political Rights (‘ICCPR’). This article examines the implications of those inconsistencies, both legal and practical, for Australia’s ICCPR compliance. At a time when hate speech is not abating but becoming a common feature of an increasingly fragmented society, this article asks the following questions: Are the settings for anti-vilification legislation at state and territory levels appropriate in the balance achieved between applicable human rights? Can Australian state and territory legislation be better targeted to distinguish between prohibited and preserved free speech? Do Australian state and territory laws conform to the requirements of the ICCPR and other UN instruments? The article concludes that the inconsistencies are problematic and lead to public uncertainty, exacerbated by the unpredictable application by some competent authorities. It proposes legislative solutions that focus less on the scope of prohibition (which is dependent on terminology lacking definitional precision) and more on bringing clarity to the scope of excluded conduct, in conformity with ICCPR demands protecting freedom of expression.