Pauline Hanson’s recent remarks about Muslims dominated political debate last week – and federal police said it had received reports of a “crime” in relation to the Queensland senator’s comments.
As Hanson discussed the thwarted attempts by Australian women and children stuck in Syria to return home on Sky News on Monday last week, she said: “You say, ‘Well, there’s good Muslims out there’ – how can you tell me there are good Muslims?”
Hanson has not withdrawn the comments, though she has offered some further comments framed as a conditional apology. In one of the subsequent interviews, she also singled out Lakemba, a suburb in Sydney’s south-west, as somewhere people “feel unwanted” and do “not want to be”.
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Anthony Albanese linked Hanson’s remarks with a series of threats to the Lakemba mosque. Hanson’s own One Nation colleague Barnaby Joyce has not endorsed the inflammatory comments. Bilal El-Hayek, the mayor of Canterbury Bankstown, which includes Lakemba, said the senator should face charges over her “highly inflammatory” comments about Muslims.
On Friday, the Australian federal police said they were “aware of comments made during a media interview earlier this week” and had “received reports of a crime in relation to this matter”. The AFP did not say whether they had begun a criminal investigation, only that they would have more to say “at an appropriate time”.
But what charges could Hanson face?
Are there any federal offences Pauline Hanson could be charged with?
Prof Luke McNamara, a law professor at the University of New South Wales, said while people may have made reports to police, matching the remarks to a criminal offence was complex.
“The challenge for the police and the prosecution will be to establish that that conduct falls within the definition of one of the various hate speech criminal offences, and that might be a challenge,” he said.
The Albanese government, in response to the Bondi beach terror attack where 15 people were murdered at a Hanukah gathering, last month passed new hate speech laws which increased penalties for hate crime offences. But McNamara said the new laws did not make a standalone offence for inciting racial hatred.
Federal hate crime laws are limited to intentionally or recklessly advocating or threatening the use of force or violence against a group or a member of a group, distinguished by attributes including race, religion and sex.
“I imagine that one of the challenges for the police investigating Ms Hanson’s conduct will [be] the need to prove that she intended to advocate the use of violence or was reckless about her words having this effect,” McNamara said.
“Just because someone uses language that might be regarded as expressing ill-will or even hatred against a group, it still doesn’t mean that that person can be said to have intended to encourage violence against that group.”
What about state laws?
Alleged hate speech can be prosecuted in any jurisdiction where the comments have been broadcast.
In NSW, it is a criminal offence to publicly threaten or incite violence towards a person or group of people on numerous grounds, including religious beliefs and affiliations. Timothy Roberts, the president of the NSW Council for Civil Liberties, said Hanson’s comments did not incite violence.
Under NSW laws, which came into effect last year, it is also an offence to publicly incite hatred on the grounds of race. Under these laws, the definition of race includes a person’s ethno-religious background.
McNamara said for speech about Muslims to fall within this concept of ethno-religious, the speaker would need to specify a country of origin or ethnicity.
“In the many years that the concept of ‘race’ has been in Australian law, at the state or the federal level, it has been interpreted as including Jews and Sikhs, and not including Muslims or Christians,” he said.
“I think it would take a formal amendment of that concept of race to make it broader and more inclusive.”
Roberts said the state’s new laws “divided on issues of race and religion”.
“We’ve divided the community to a certain extent by only protecting one aspect of them,” he said.
Are there gaps in the hate speech laws?
McNamara said inadequate protection for Muslims was one of the “blind spots” in Australia’s hate speech laws.
“So long as we maintain quite a narrow definition of ethno-religious groups for the purpose of racial hate speech laws, the sorts of definition that includes Sikhs and Jews but not Muslims, we’re going to run into these problems,” he said.
“Muslims in this country do not have the same protections as persons who are Jewish or Sikh.”
McNamara said while all groups deserve equal protection, he was cautious about assuming that incremental expansion of criminal laws was necessarily the best way to respond to growing concern about hate speech.
Roberts said while hate speech is not “legitimate speech”, the legislative response needs to be balanced to avoid silencing “legitimate speech that otherwise is important for our democracy”.
• Adeshola Ore is Guardian Australia’s community affairs reporter
