So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia

Date01 June 2004
Published date01 June 2004
Subject MatterArticle
Dan Meagher*
It may be true that morality cannot be legislated, but behaviour can be regulated. The law
may not change the heart, but it can restrain the heartless.1
There is a range of meritorious reasons why Parliaments enact laws to regulate racial
vilification. These include but are not limited to the following:
• The need to provide a remedy to persons who suffer the often extremely harmful
psychological and physical effects resulting from racial vilification.
• To nip in the bud racist words or conduct that if left unchecked may fester and
sprout as serious or even deadly violence at a later time.
• To further the value of legal equality through substantive and meaningful legal
• To send a strong state-sanctioned message that, in a pluralist society politically
committed to multiculturalism, racist words and conduct are unacceptable,
harmful, dangerous and will not therefore be tolerated.
• To fulfil our international law obligations.
• To provide an environment where information and ideas can be proffered and
exchanged in a civil and respectful manner. Such societal conditions are more
conducive to personal development, meaningful democracy and a tolerant
The law is, however, just one of the tools available to combat racial vilification. Others
include primary and secondary school education programs, government-sponsored
advertising campaigns, affirmative action policies and opportunities for counter-
School of Law, Deakin University. My thanks are due to Professor George Williams and the
anonymous referees for providing valuable comments and suggestions on earlier drafts of
this article. I would also like to thank Lawrence McNamara for assisting with the
defamation-related issues and the Gilbert and Tobin Centre of Public Law for providing
such a friendly and supportive environment in which to write this article.
1 Martin Luther King, 'An Address Before the National Press Club' in James Melville
Washington (ed), A Testament of Hope: The Essential Writings of Martin Luther King Jr (1986)
99, 100.

Federal Law Review Volume
speech either in conjunction with or in the alternative to legal measures.2 However, as
Luke McNamara correctly points out, racial vilification laws are now a fixture on the
Australian legal and political landscape.3 More importantly, the time has long gone
where dogmatic assertions of the need for free speech absolutism can or ought to carry
the day. Three landmark reports on racist violence and race relations in Australia more
generally written during the 1990s and the work of the critical race theorists and other
American scholars have documented in stark and often disturbing detail the very real
harms caused by racist words and conduct.4 Whilst I do not share the view of some
scholars that free speech concerns and arguments in the area are no more than
'philosophical meanderings'5 and 'superficial talk'6 about 'traditional abstract values',7
they should neither presumptively trump other relevant values and interests nor stifle
appropriate legislative initiatives to combat racial vilification. Therefore, a more
constructive approach and contribution to the debate is to accept the (most likely)
long-term legal and political reality of racial vilification laws in Australia and consider
how these laws might be further refined and improved.8 This article is offered in that
Moreover, for the following three reasons, the time is ripe to reflect on our laws —
on the clarity of their content, on the coherence of the cases they have generated and
ultimately on their long-term utility. Firstly, it is 15 years since the passage of the Anti-
Discrimination (Racial Vilification) Amendment Act 1989 (NSW), the first Australian law
For a detailed account of using counter-speech as a method for addressing race hate speech
see Katharine Gelber, Speaking Back: The Free Speech Versus Hate Speech Debate (2002).
Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 3–4 where the
author writes that
[b]ecause racial vilification laws are a feature of the Australian legal system,
scholarly analysis need not be limited to the conventional threshold question
regarding the philosophical compatibility of racial vilification legislation with
philosophical, political or legal commitments to free speech. Indeed, the existence of
racial vilification laws in Australia demands that additional lines of research inquiry
be pursued.
The three reports were: Human Rights and Equal Opportunity Commission, Racist Violence:
Report of National Inquiry into Racist Violence in Australia (1991), Australian Law Reform
Commission, Multiculturalism and the Law, Report No 57 (1992), Human Rights and Equal
Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from their Families (1997). A selection of Critical
Race Theory writings are contained in Mari Matsuda, Charles Lawrence, Richard Delgado
and Kimberle Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the
First Amendment (1993).
5 Melinda Jones, 'Empowering Victims of Racial Hatred by Outlawing Spirit-Murder' (1994)
1 Australian Journal of Human Rights 299, 302.
6 Luke McNamara, 'The Merits of Racial Hatred Laws: Beyond Free Speech' (1995) 4 Griffith
Law Review 29, 29.
7 Kathleen Mahoney, 'Hate Vilification Legislation and Freedom of Expression: Where is the
Balance?' (1994) 1 Australian Journal of Human Rights 353, 369.
8 In accepting that existing racial vilification laws are a fixture on the Australian legal
landscape and taking them as the starting point of my analysis, I am not suggesting that
philosophical issues are now foreclosed for discussion. On the contrary, free speech
considerations, for example, are a continuing focus of this article. This recognises the
inextricable link and possible conflict between racial vilification laws and speech and
communication interests and the ongoing dialogue that must necessarily occur between

A Critical Evaluation of Racial Vilification Laws in Australia 227
to proscribe racial vilification. Since the passage of that landmark law all Australian
jurisdictions, with the exception of the Northern Territory, have followed suit, albeit
employing a range of divergent regulatory mechanisms.9 Secondly, the continuing
controversy in Australia surrounding the dissemination of holocaust-denial material
through the internet, pamphlets, books and videos brings into sharp relief the
pervasive tension between racial vilification laws and freedom of speech.10 This
tension was recently highlighted by the storm that surrounded the ultimately
unsuccessful attempt by the Melbourne Underground Film Festival to screen the
David Irving film The Search for Truth in History.11 Thirdly, we have already witnessed
an upsurge in racial vilification against Australian Muslims, Arabs and Jews since the
September 11 attacks on the World Trade Center in New York City and the ongoing
'war against terrorism' that they triggered.12
The problem with current Australian racial vilification laws
Whilst there is a need for effective racial vilification laws in Australia, the current laws
lack sufficient precision and clarity in key respects. Of particular concern are 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.13 An incoherent
body of case law 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
Criminal Code (WA) ss 76–80; Racial Vilification Act 1996 (SA) ss 4, 6; Wrongs Act 1936 (SA)
s 37; Discrimination Act 1991 (ACT) ss 65–7; Anti-Discrimination Act 1991 (Qld) ss 124A,
131A; Racial and Religious Tolerance Act 2001 (Vic) ss 7–12, 24–5; Anti-Discrimination Act 1998
(Tas) ss 17, 19. For a detailed account of the different types of regulatory mechanisms
implemented in Australian racial vilification laws see McNamara, above n 3.
10 The Australian holocaust-denial cases are examined below in Part III(c)(2)(ii).
11 In Lipshutz v Melbourne Underground Film Festival (Unreported, Victorian Civil and
Administrative Tribunal, Higgins J, 7 July 2003) the applicant unsuccessfully sought an
injunction to prevent the...

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