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“When Intent Doesn’t Matter The New Frontier of Hate Speech Law” · The Slippery Slope

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  Hi, I'm Jay Fallon and thanks for listening to The Slippery
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  Slope. So today we're going to have a
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  look at one of the most consequential shifts in
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  Australian criminal law in years, the move from intense
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  based hate speech offences to impact based ones.
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  So this isn't just a technical tweak, it changes who can be
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  prosecuted, what counts as criminal speech and how everyday
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  online expression might be interpreted under the law.
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  Let's go with the red light on. I'm just waiting for the.
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  Change. So you've got what the old world
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  was Intent was everything. For decades, Australia's federal
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  hate speech framework was built around a simple idea.
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  You had to mean it. If prosecutors wanted to charge
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  someone, they had to prove the person intended to incite
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  violence. Not that someone felt offended,
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  but that the Speaker wanted violence to occur or knew it was
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  likely. That's a high bar, and
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  intentionally so. Criminal law traditionally
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  punishes deliberate wrongdoing, but the new legislation changes
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  that. Under the new federal offence,
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  the threshold drops dramatically.
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  Now it's a crime to publicly incite or promote hatred toward
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  a group based on race, colour, national origin or ethnic
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  origin. The maximum penalty is five
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  years in prison. But the real shift isn't the
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  penalty, it's the mental element, Or rather, the lack of
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  1. The law no longer asks what did
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  the speaker intend? Instead, it asks what would a
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  reasonable person in the targeted group feel?
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  That's a profound change. So let's we've got to unpack the
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  reasonable person test a little. The new standard is based on
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  whether a hypothetical reasonable member of the
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  targeted group would feel intimidated, threatened, or
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  hated. Not the speaker's mindset, the
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  speaker's motive, the speaker's awareness, but the impact of the
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  speech. Viewed objectively.
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  This is a familiar test and civil anti vilification law, but
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  applying it to criminal offenses is a major escalation.
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  So the shift raises several big questions.
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  You've got to look at what happens to heated political
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  debate. Political speech is often sharp,
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  emotional, confrontational, under an impact.
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  By standard, the line between strong criticism and promoting
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  hatred becomes harder to predict.
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  You also have to look at what about comedy, satire, or
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  academic discussion. Context always matters, but
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  context is also subjective. A joke in a comedy club might be
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  fine, but you might take the same joke, clip it and post it
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  online and it might not be. Then you've got to look at what
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  about online frustration? We've seen that over the last
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  couple of years. There was plenty of that going
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  on while the dreaded flu was going around.
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  You know, a late night rants. We remember people getting on
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  late at night ranting about the behaviours of different people.
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  So you might have a late night rant, a sarcastic comment or a
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  poorly phrased post could be interpreted very differently by
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  different audiences. You'd have to ask yourself, is
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  this going to create a chilling effect?
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  When I say that, I mean people. People don't know.
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  When the people don't know where the line is, they tend to stay
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  far away from it. That's the classic chilling
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  effect. You have self censorship.
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  Censorship driven by legal uncertainty.
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  So let's look at how courts will likely approach it.
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  Courts won't treat this like a feelings based offence.
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  They'll apply structured reasoning, or at least they
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  should. So they'll look at context,
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  tone, audience, platform. Whether the speech was
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  political, artistic, comedic, or academic, they won't consider,
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  or at least they shouldn't be considering the reactions of
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  unusually sensitive individuals, the speaker's personal intent,
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  and less the statute requires it.
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  Still, the shift from intent to impact means more speech falls
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  within the zone of potential criminality.
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  Australia isn't alone in wrestling with this.
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  Canada usually requires intent or knowledge.
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  The UK often requires intent or recklessness.
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  Germany criminalizes certain forms of hate speech without
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  requiring intent. But the categories are narrower
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  and historically specific. So Australia's new approach is
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  unusual, but it applies an impact based standard to a broad
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  category of hatred, not just historically defined harms.
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  So the bottom line is this, this is one of the most significant
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  shifts in Australia's speech laws, speech law in decades.
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  The new offence lowers the threshold from violence to
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  hatred, removes the need to prove intent, relies on an
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  impact based reasonable person test, applies to online speech
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  including posts, comments and videos, which I think is
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  probably going to be one of the most problematic areas of this
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  new piece of legislation. Supporters say this is necessary
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  to combat rising hate and extremism.
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  Critics warn it risks overreach and could chill legitimate
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  debates. That's where I think it's going.
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  Both sides agree on one thing. This is a major change and it's
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  real world impact will depend on our prosecutors and courts
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  choose to apply it, which is where I believe we are going to
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  get into some real trouble in the very near future given the
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  attitude and the let's say the beliefs of some of our
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  politicians and judges and people within law enforcement.
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  Anyway, this is just my update for you all my opinion that last
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  little bits. Thank you for listening to The
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  Slippery Slope. My name is Jay Fallon.
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  And nothing's going to stop me now.
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  And nothing's going to hold me down.
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  Got my eye on the eyes, got my style and the drives, it seems.
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  Don't say nothing's going to things go down, doubt me.
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  Nothing's going to stop me now. Just to focus on the goal.