The referral of Senator Pauline Hanson to the Australian Federal Police (AFP) over her comments about Muslims is politically explosive — but legally uncertain. While outrage, condemnation, and symbolic gestures move quickly in politics, criminal prosecution moves slowly and requires precise statutory thresholds. The key question is not whether Hanson's remarks were offensive, inflammatory, or irresponsible. It is whether they were criminal. The distinction is decisive.
What Actually Happened: A Referral, Not a Charge
The AFP has confirmed it received "reports of a crime" relating to Hanson's comments questioning whether there are "good Muslims," but it has not announced any formal investigation or charges.
This distinction matters. A referral is merely the beginning of a process. Anyone may report an alleged offence. The AFP must then assess whether:
1.The alleged conduct falls within a criminal statute; and
2.There is sufficient evidence to prosecute; and
3.A prosecution would be in the public interest.
At present, the matter remains at stage one.
Legal experts have already indicated that prosecution would likely be difficult, and that civil complaints — rather than criminal charges — are the more plausible outcome.
The Legal Framework: What is Actually Criminal in Australia?
Australia does not have a general criminal offence of "hate speech" in the broad American or European sense. Instead, criminal liability arises only in specific circumstances.
1. Federal criminal law: advocacy or threats of violence
Under Division 80 of the Commonwealth Criminal Code, it is a criminal offence to advocate or threaten violence against a group distinguished by religion or ethnicity.
To convict, prosecutors must prove that the accused:
Intentionally encouraged or promoted violence; and
Was reckless as to whether violence might occur; and
Targeted a protected group.
Maximum penalties can reach 5–7 years imprisonment depending on circumstances.
Crucially, offensive or insulting speech alone is not enough. The law targets violence advocacy, not mere hostility.
There is no publicly reported evidence that Hanson explicitly advocated violence.
That alone makes criminal prosecution under Division 80 unlikely.
2. New racial vilification offences (2026 reforms)
Recent federal reforms introduced offences for publicly promoting hatred where it causes fear of harassment or violence, with penalties up to 5 years imprisonment.
However, these offences still require proof of:
Intent to promote hatred or superiority; and
That the conduct would cause a reasonable member of the group to fear harassment or violence.
Intent is the hardest element to prove.
Political speech — even extreme political speech — often falls short of this legal threshold.
3. Civil liability: the far more likely legal pathway
The Racial Discrimination Act 1975 makes racially offensive conduct unlawful — but not criminal. Complaints are handled by the Australian Human Rights Commission, and remedies are typically civil (apology, damages, or settlement), not imprisonment.
This pathway is historically far more common than criminal prosecution.
The Core Legal issue: Offensive Speech is Usually Legal
The legal reality — often misunderstood — is that offensive speech is generally lawful unless it crosses into one of three categories:
Direct threats of violence
Advocacy of violence
Intentional incitement of violence or fear
Australia's laws, despite recent expansion, remain relatively narrow.
As one analysis noted, current hate speech laws may not apply unless there is provable intent to incite hatred or violence meeting a strict legal threshold.
Political rhetoric — even inflammatory rhetoric — often falls outside this definition.
Likelihood of Criminal Charges: Low
Based on current facts, the probability of criminal prosecution appears low.
There are several reasons.
1. No explicit call for violence
The central legal element — advocacy of violence — appears absent.
Without that, Division 80 cannot be used.
2. High burden of proof for intent
Prosecutors must prove beyond reasonable doubt that Hanson intended to incite hatred or violence.
Political commentary, even sweeping generalisations, can be framed as political opinion rather than incitement.
3. Political speech receives implicit legal caution
Courts are traditionally cautious about criminalising political speech because of democratic implications.
Convicting a sitting senator for political speech would be legally and constitutionally sensitive.
4. Legal precedent suggests rarity of prosecution
Australia has historically seen very few criminal prosecutions for speech alone under hate crime provisions.
Civil complaints are far more common.
If She Were Convicted: Possible Penalties
If, hypothetically, Hanson were convicted under federal hate crime or vilification provisions, penalties could include:
Up to 5 years imprisonment for advocating violence or vilification
Or fines and civil damages under discrimination law
However, imprisonment for political speech without direct violence advocacy would be unprecedented in modern Australia.
A more realistic outcome — even in the unlikely event of liability — would be:
Civil penalty
Formal warning
Apology
Or no action at all
Likely Legal Defence Strategies
Hanson's legal team would have several strong defence avenues.
Defence 1: No advocacy of violence
The most powerful defence.
They would argue:
Hanson expressed opinion, not encouragement of violence
No reasonable interpretation of her words constitutes urging violence
This alone may defeat criminal charges.
Defence 2: Political communication protection
While Australia lacks a US-style First Amendment, the High Court recognises an implied constitutional freedom of political communication.
Her lawyers would argue that:
Her statements were political commentary on national security, immigration, and public policy
Criminalising political speech undermines democratic debate
This argument is often persuasive.
Defence 3: Lack of intent
Intent is essential.
Her lawyers would argue she:
Did not intend to incite hatred or violence
Intended to express concern about radicalisation or national security
Intent is notoriously difficult to prove beyond reasonable doubt.
Defence 4: Context defence
Statements are interpreted in context, not isolation.
Her lawyers would argue her remarks occurred within a broader policy discussion about ISIS returnees and security risks.
This weakens the incitement argument.
Defence 5: Religious criticism is lawful
Criticism of religion — even harsh criticism — is generally lawful.
Courts distinguish between:
Criticism of belief systems (legal)
Incitement of violence against believers (illegal)
This distinction may protect her.
Political Consequences vs Legal Consequences
The greatest risk Hanson faces is political, not legal.
These include:
Damage to reputation (may do the opposite)
Parliamentary censure
Electoral backlash (may do the opposite)
Increased scrutiny
Legal consequences remain unlikely.
Conclusion: Political Storm, Legal Calm
The referral of Pauline Hanson to the AFP reflects the political sensitivity of her remarks, not necessarily their criminality.
The legal threshold for criminal speech offences in Australia still remains high. Offensive, inflammatory, or even reckless speech does not automatically become criminal.
Based on current law and available facts, the most likely outcomes are:
No criminal charges; or
Civil complaint proceedings; or
No legal action at all.
The case illustrates a central tension in liberal democracies: the balance between protecting vulnerable communities and preserving political speech.
In practice, Australian law still strongly favours the latter. For now.