An examination of the constitutional and legal frameworks for the regulation of racial vilification in Australia

Abstract

This thesis involves an analysis of the constitutional and legal frameworks for the regulation of racial vilification in Australia. In doing so, it has two aims. First, I wish to discern the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated. The High Court has recognised that the Australian Constitution contains an implied right to freedom of political communication (‘implied freedom’). It operates to invalidate legislative and executive action which impairs the effective operation of our system of constitutional government. The scope of the implied freedom remains unclear, however. There is no consensus on the High Court as to what constitutes ‘political communication’ or when a law can be said to impair constitutional government. I will seek to answer these open constitutional questions and in doing so outline a methodology to determine whether racial vilification may count as political communication. If so, I will then consider whether this, consequently, imperils the validity of existing Australian racial vilification laws. And second, I want to critically evaluate the normative legitimacy of Australian racial vilification laws and propose legislative reform in the event that my analysis reveals any serious flaws in the current legal framework. The methodology outlined in the first part of the thesis provides the relevant constitutional parameters within which any proposed legislative reform must fall. In the result, I conclude that racial vilification can amount to political communication but that most Australian racial vilification laws are, nevertheless, compatible with the implied freedom and valid as a consequence. However, my evaluation of Australian civil and criminal racial vilification laws reveals that most are seriously flawed. Consequently, a detailed reform program is outlined to remedy the major legislative deficiencies. It is my view that the law has an important but limited role to play in the regulation of racial vilification in Australia. It is certainly reasonable and prudent to have precise and well-targeted laws to proscribe and punish racial vilification but policy and law-makers should not overstate or overestimate the ability of the law to effect grass roots attitudinal and behavioural changes on matters of race.