Free Speech, Hate Speech and an Australian Bill of Rights

Katharine Gelber, University of New South Wales


This paper asks the very specific question of what provisions could be included in an Australian Bill of Rights, if Australia were to institute one in either a statutory or constitutional form, to preserve free speech and also to respond to hate speech? First an overview of convincing and important arguments in favour of free speech is provided. Then an outline of statutory provisions already adopted at both federal and state level in Australia which seek to respond to hate speech is provided, which demonstrates Australia’s existing commitment to both free speech and hate speech policies. In this context, the attempt in South Africa to incorporate a response to hate speech in their Bill of Rights is examined in comparative perspective. I conclude by arguing for the inclusion of a qualified free speech clause in any Australian Bill of Rights, should one be instituted. Such a clause could take one of two forms: either a general limitation clause or a hate-speech-specific limitation on the free speech right.

Dr Katharine Gelber lectures in the School of Politics and International Relations at the University of New South Wales. Her research interest is in Australian politics and human rights. She has recently published Speaking Back: the Free Speech Versus Hate Speech Debate (John Benjamins Ltd), and has published on human rights and hate crimes issues in the Australian Journal of Politics and History, the Australian Journal of Political Science, and the Journal of Australian Studies.

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