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Essay on Laws Prohibiting Vilification in Australia
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Laws prohibiting vilification in Australia are in need of reform. Discuss.
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Laws prohibiting vilification in Australia are in need of reform. Discuss.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
Australian laws prohibiting vilification require widespread reform to provide greater protection to
the rights and freedoms of individuals. Anti-vilification laws establish standards of conduct which
discourage people from vilifying others, constraining the spread of prejudice motivated violence in
society and encouraging individuals to speak out against discrimination. Such laws recognise the
unique and pervasive role of hate speech and conduct to threaten both a person’s safety and their
ability to fully participate in a democratic society. However, laws prohibiting vilification entail a
conflict against the right to freedom of expression. In considering the pivotal role of freedom of
speech throughout democratic societies, it is necessary to ensure that anti-vilification laws do not
entirely infringe the right to freedom of speech whilst simultaneously providing strong protections
for those individuals who possess the identified characteristics which might make them vulnerable
to hate speech and conduct. By examining the tensions between freedom of speech and freedom
from discrimination, particularly in relation to 18C of the Racial Discrimination Act 1975 (Cth),2
and the inadequate protections in the Anti-Discrimination Act 1977 (NSW),3 the need for reform,
both in favour of and against freedom of expression, to laws prohibiting vilification can be better
understood.
Freedom of expression is identified as a fundamental human right in international law pursuant to
Article 19 of the Universal Declaration of Human Rights.4 It is of intrinsic value and is necessary
for the proper function of a democratic civil society. 5 Freedom of expression is foundational to the
achievement of other human rights such as the administration of justice, human dignity and
freedom, and the right of women and other minorities. 6 Greenawalt argues that freedom of
expression arose from the need to protect members of society from governmental corruption and
1Martin 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.
2 Racial Discrimination Act 1975 (Cth) s 18C.
3 Anti-Discrimination Act 1977 (NSW).
4 Universal Declaration of Human Rights 1948.
5Eric Barendt, Freedom of Speech (Oxford University Press, 2007); Mark Richards, The Politics of Freedom of
Expression: The Decisions of the Supreme Court of the United States (Palgrave Macmillian, 2013).
6 Ibid.
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, tyranny.7 Under democratic frameworks, governments should not interfere with rights to freedom of
expression as it suppresses political communication and other forms of expression such as religion
and may:
Subvert the review of ordinary political processes which might serve as a check on other unwarranted
suppression.8
Subsequently, tensions arise when governments attempt to introduce anti-vilification laws which
seemingly infringe on the rights to freedom of expression. The issue with hate speech is that it sets
two fundamental principles of democratic societies against each other.9 Whilst it is of fundamental
importance to protect all persons against speech which either incites or conveys hatred on the basis
of a particular characteristic, such as race, religion or sexual orientation, it is of equal fundamental
importance to protect freedom of expression.10 Our commitment to freedoms of expression and
political communication11 seemingly requires us to tolerate hate speech.12
However, whilst freedom of expression is paramount to democratic society, vilification on the basis
of race, sexual orientation, religion, gender identity or other characteristics diminishes the self-
worth, dignity and integration of people from diverse backgrounds into the community and has
wide ranging consequences.13 Hate speech and vilification profoundly impacts individuals, affecting
their ability to participate in public life and exercise their freedoms. Vilifying acts undermine the
rights of every person to equal treatment and freedom from hatred, discrimination, violence, abuse
or intimidation. Unchallenged, perceived tolerance or acceptance of vilification serves to encourage
or embolden discrimination by creating an environment which seemingly authorises, or at least does
not disapprove of, an escalation of violence and hatred.14 The Human Rights Law Centre’s
submission15 to the 2013 NSW inquiry into racial vilification laws argues that whilst the right to
7 Kent Greenawalt, Speech, Crime, and the Uses of Language (Oxford University Press, 1992).
8 Ibid 28.
9 Adrienne Stone, How to Think about the Problem of Hate Speech: Understanding a Comparative Debate (Federation
Press, 2007).
10 Ibid.
11 Commonwealth of Australia Constitution Act ss 7, 24.
12 Stone (n 9).
13 Greenawalt (n 7).
14Stepan Kerkyasharian AO, Report on Consultation: Serious Vilification Laws in NSW (May 2017); Human Rights
Law Centre, Submission to the 2017 New South Wales Inquiry into Vilification Laws (21 March 2017)
15Human Rights Law Centre, Striking the right balance – freedom of speech and hate speech: Submission to the inquiry
into racial vilification law in New South Wales (19 March 2013).
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