Introduction

The laws in Australia regarding freedom of speech is given to people who are the

victim of discrimination, vilification, or injury on grounds that differ from one

jurisdiction to another. All Australian jurisdictions address when a person is

victimised on account of race. Some jurisdictions give redress when a person is

victimised on account of colour, ethnic origin, religion, disability, or sexual

orientation. Freedom of speech is a notion of inherent human rights to voice one’s

opinion publicly without fear of censorship or punishment. Australia’s law on

freedom of speech differs very differently from state and commonwealth law. State

law is based on Anti-vilification laws, which are not exclusive on the grounds of race;

they have become an accepted and normal part of the Australian anti-discrimination

policy framework. Each state and territory have their own version of these laws and

they are important as they generally, create an offence of vilification, which holds the

standard of behavior which recognises what the community as a whole finds

vilification unacceptable. The ideology in today’s society supports the argument that

vilification is more than simply hurting someone’s feelings. Rather, vilification is

constructed as an act of discrimination. However, Australia does not have an first

amendment equal protection of freedom of speech in our constitution. In 1992 the

issue of freedom of speech was dealt with in the case of Nationwide News Pty Ltd v

Wills where the high court held that implied freedom of political communication

exists as an incident of the system of representative government established by the

Constitution. The government and our communities view hate speech as an

unacceptable form of expression warranting state intervention to minimise its harms

and/or its occurrence.

As an example of Vilification law by state the New South Wales Government

justified the introduction of Australia’s first anti- vilification law in 1989, they argued

that the legislation was necessary. Now how is it necessary? The argument was that

the laws would be introduced for the ‘right to a dignified and peaceful existence free

from racist harassment and vilification’ and ‘its attendant harms’. However, in

Victoria, a government Discussion Paper released prior to the enactment of racial and

religious anti-vilification laws stated that ‘expressions of racial and religious

vilification not only undermine people living in our community, they also threaten the

fairness and tolerance of our society’ and that ‘serious harm is inflicted on people by’

hate speech. In Queensland, Explanatory Notes were released in 2001 Bill, which

introduced anti-vilification provisions in that state argued that the provisions would

‘reinforce the social unacceptability of such conduct’.

In the ACTV case the High Court considered if there was an implied Constitutional

right to free speech in regards to governmental and political affairs. Majority of the

High Court held there was this was the implied freedom of political communication in

the Constitution, we may not have an amendment like America does but, but our

freedom comes from the representative nature of our democracy. Thus, this gave rise

for the Commonwealth to legislate against the implied freedom of communication

became limited.

Federal Law
At a federal level the Racial Discrimination Act 1975 prohibits hate speech on several

grounds. Firstly the act has made it "unlawful for a person to do an act, otherwise than

in private, if the act is reasonably likely, in all the circumstances, to offend, insult,

humiliate or intimidate another person or a group of people; and the act is done

because of the race, colour or national or ethnic origin of the other person, or of some

or all of the people in the group. A person who has experienced hate speech can make

a complaint to the Australian Human Rights Commission. If the complaint is

validated, the Commission will attempt to conciliate the matter. If the Commission

cannot negotiate an agreement that is acceptable to the complainant, the complainant's

only redress is through the Federal Court or through the Federal Magistrates Service.

In Western Australia the law imposes criminal but not civil sanctions against racial

vilification. In Western Australia, the Criminal Code was amended in 1989 to

criminalise the possession, publication and display of written or pictorial material that

is threatening or abusive with the intention of inciting racial hatred or of harassing a

racial group.

RELIGION


All the jurisdictions of Australia have anti-vilification laws; vilification on the ground

of race/ethnicity is prohibited. We need to look at the concept of ‘race’ in federal anti-

discrimination law as it is taken from the International Convention on the Elimination

of All Forms of Racial Discrimination, this is an convention which came into place to

ensure everyone was free from all forms of racial discriminations, thus, is a basic

human right. This Convention uses the conceptualisation, ‘race, colour, descent or

national or ethnic origin’.

There are three Australian states who include ‘religion’ or ‘religious belief’ as a

protected category under anti-vilification laws: Queensland, Tasmania and Victoria.

In all other states, the racial anti-vilification provisions protect some religious groups

such as the Sikhs and the Jews. In New South Wales, a 1994 amendment to the

vilification provisions in the Anti-Discrimination Act 1977 (NSW) added the term

‘ethno-religious’ in order to clarify the position on this issue, this is because they has

an intention to include Jews, Sikhs and Muslims as ethno-religious groups was clearly

stated.

We also need to consider vilification against Muslims and people of Arab descent has

increased in recent years, this is because of the recent uprising of certain Muslim

extremist groups. There was a recent report which argues whether the media reporting

on the war on terror, asylum seekers and crime have led to a ‘damaging environment

of anti-Arabic and anti-Muslim sentiment’, and a ‘heightened level of racial

vilification and discrimination’. The Human Rights and Equal Opportunity

Commission has also seen an increase in the levels of discrimination and intimidation

against Islamic communities since September 11, 2001. Some people suggest that

Muslims should be protected from vilification as other vulnerable groups in society.

Yet anti-vilification laws explicitly on the ground of religion have produced greater

levels of opposition than their predecessor laws. 







What does the Constitution say?

In the matter of Theophanous v Herald & Weekly Times (1994) 182 CLR 104 which

question whether the implied freedom of political communication was truly turned on

its head, the High Court allowed a more conventional “constitutional defense” to be

put forward regarding an action of defamation.

The decision of Theophanous has been held to be significant, it started a new personal

right to free speech, but it was short lived, with the judgment of Lange v Australian

Broadcasting Corporation (1997) 189 CLR 520 categorically providing certainty to

the position of the right in Australia. In Lange former Prime Minister of New Zealand

initiated action against the ABC for defamatory imputations during an episode of

Four Corners, however, the ABC relied on the Theophanous ‘constitutional defence’,

where the High Court unanimously held that Theophanous was no longer good law,

and instead extended the notion of qualified privilege. The Justices in Lange placed

focused on on ss 7 and 24 of the Constitution which provide:

Section 7: “The Senate shall be composed of senators for each State, directly chosen

by the people of the State, voting, until the Parliament otherwise provides, as one

electorate.”

Section 24: “The House of Representatives shall be composed of members directly

chosen by the people of the Commonwealth, and the number of such members shall

be, as nearly as practicable, twice the number of the senators.”

The High Court in Lange noted that ss 7 and 24, as well as the other related sections

of the Constitution, protect the freedom of communication allowing people to

exercise a free and informed choice as electors. However, “those sections do not

confer personal rights on individuals, they preclude the curtailment of the protected

freedom by the exercise of legislative or executive power.”

The problem with current Australian racial vilification laws

There is a greater need for Australian laws to change in regards to racial vilification
laws, the current laws lack sufficient precision and clarity in certain areas. We need

to look at the amendments made by the Racial Hatred Act 1995 (Cth) ('RHA') to the

Racial Discrimination Act 1975 (Cth) ('RDA') and the 'free speech/public interest'

exemptions found in the RDA and the racial vilification laws of New South Wales,

South Australia, Australian Capital Territory, Queensland, Victoria and Tasmania.

Most Jurisdictions have now started to use case law that has developed as a

consequence, where too much is left open to the decision-maker in each individual

case. Many judgments are often little more than a series of findings of fact rather than

reasoned pronouncements of the law. It has left the law in a state of unprincipled

fluidity, where the good faith but ad-hoc assessment by individual judges and

administrators of subjective, value-laden concepts determines

CONCLUSION


Racial vilification laws in Australia
play a very important role. The purpose of this

essay is to prove that racial vilification laws have no place on the Australian legal

landscape. These are important because they do not represent laws, which seem to be

clear and consistent. Both laws do not simultaneously work together. It is however

importance of freedom of expression. There needs to be a massive change in the

political arena, to both democracy and to human rights. The idea of freedom of speech

comes from the human rights thus our laws need to consistent at both state and

commonwealth leveI. Many people have argued that the freedom of expression can,

and should, be limited by the rights and freedoms of others, and particularly the right

to live free from racial persecution. There is a need to continue to improve anit-

racisim education in order to reduce the prejudice that fuels racial vilification.

Nevertheless, racial hatred laws remain an important anti-racism strategy in our

struggle against racial injustice. Legislative clarification is also required as to the

scope of the defences, in particular, the meaning of 'reasonably and in good faith'. The

language of the ‘free speech/public interest defenses’ and the indeterminacy they

engender compounds the RDA harm threshold problem. There must therefore be, at

minimum, legislative clarification of the meaning of 'reasonably' and, inferentially,

the precise content of the 'reasonably and good faith' requirement. Once there is

clarity on the laws consistency will follow. Which means there will be more clarity

when in comes to defining when a person can have freedom of speech and expression,

thus both the laws need to be consistent. In our current state we are using case law to

define certain cases rather then legislative law. When there is a reform of this things

will start to be clearer. However in law nothing is ever clear when it comes to

defining certain terms. We need to make sure that everything including the

conventions and international law that are present can be incorporated in our

legislations, which should be the same for every state and territory of Australia. I

believe that there needs to be a major reform when it comes to certain laws which

govern freedom of speech as freedom of speech is not always the best idea. We can

see this by what is happening in America.

Bibliography

1. Acts Interpretation Act 1901 (Cth) s 15AA. In R v L (1994) 122 ALR 464,
468–9
2. Commonwealth, Parliamentary Debates, House of Representatives, 15
November 1994, 3336– 7, 3342 (Michael Lavarch, Attorney-General).
3. Defamation Act 1957 (Tas)
4. Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 10–11 (emphasis
added).
Commonwealth, Parliamentary Debates, House of Representatives,
15 November 1994, 3337

5. Hellenic Council No 1 [1997] NSWEOT 9–11 of 1995 (Judicial Member

Biddulph)

6. In Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54, 63
144 meaning produces a more reasonable result.
7. Jones [2000] NSWADT 102 [122] (Judicial Member Rees and Member
Silva). This definition
or close approximations thereof have been endorsed
in Corunna [2001] EOC ¶93–146, 75447, 75470; Bryl [1999] HREOCA 11
[4.3] (Commissioner Johnston); Wanjurri [2001] EOC¶93–147, 75488–9
(Commissioner Innes); Deen [2001] QADT 20 MIS01/109, 2

8. John Fleming, The Law of Torts (9th ed, 1998) 637.

9. Nicholas Wolfson, Hate Speech, Sex Speech, Free Speech (1997) 48.

10. Rugema v J Gadsten Pty Ltd [1997] EOC ¶92–887 ('Rugema'); Combined
Housing Organisation Ltd v Hanson [1997] HREOCA 58 ('Combined
Housing'); Feghaly [2000] EOC ¶93–090; McMahon v Bowman [2000]
FMCA 3 (Raphael FM) ('McMahon'); Horman v Distribution Group [2001]
FMCA 52 (Raphael FM) ('Horman').