Abstract
Australian debates about racial vilification legislation have been dominated by
mainstream American First Amendment jurisprudence and popular American notions of
'free speech' to the exclusion of alternative Europeans models. This can be seen from
notions of Australian racial vilification legislation as inconsistent with 'free speech' rights as well as the influence of some of the basic assumptions of First Amendment
jurisprudence on political speech cases in the Australian High Court.
Despite the widespread existence of legislation that penalises racial vilification at State
and Federal levels, there has been a rise in Australia over the past 10 years of divisive
'race' politics. Against that background, this thesis considers the scope and limits of
racial vilification legislation in Australia. It is argued that First Amendment jurisprudence
is inadequate in the Australian context, because it is heavily dependent upon economic
metaphors, individualistic notions of identity and outdated theories of communication. It
assumes that 'free speech' in terms of lack of government intervention is essential to
'democracy'. It ignores the content, context and effect of harmful speech, except in
extreme cases, with the result that socially harmful speech is protected in the name of
'free speech'. This has narrowed the parameters within which racial vilification is
understood and hindered the development of a broader discourse on the realities of racist
harms, and the mechanisms necessary for their redress.
The author calls for the development of an Australian jurisprudence of harmful speech.
Failing an Australian Bill of Rights, that jurisprudence would be grounded upon the
implied constitutional right of free political speech, informed by an awareness that
modern structures of public speech favour a very limited range of speech and speakers.
The jurisprudence would take advantage of the insights of Critical Race Theory into the
connections between racial vilification and racist behaviour, as well as the personal and
social harms of racial vilification. Finally, it is argued that the concepts of human dignity
and equality, which underpin European discrimination legislation and notions of justice,
provide a way forward for Australian jurisprudence in this area.