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Racial Vilification and the Limits of Free Expression

Race Race Discrimination

Asia Pacific Forum of National
Human Rights Institutions - Regional Workshop on National Human Rights
Human Rights Education, Media and Racism

Racial Vilification and the
Limits of Free Expression

Address by Dr William Jonas AM,
Race Discrimination Commissioner and Aboriginal and Torres Strait Islander
Social Justice Commissioner,
Australian Human Rights and Equal Opportunity Commission

15 July 2002

One of the great
challenges that we face as national human rights institutions is that
we often perceived to be the arbiter of what is an appropriate
standard of conduct in society. We are often seen as stifling people's
freedoms by imposing 'political correctness' and deeming particular behavior
to be unlawful, offensive or inappropriate.

Tension about this role is no more difficult that when it relates to the
outlawing of hate speech or racial vilification. Balancing the right to
free speech and freedom from intimidation and racial hatred is a difficult
and complex role.

Attribution to us of such a weighty role as deciding community standards
is not an accurate description of our role - here in Australia, for example,
we operate within the legislative framework that our elected representatives
have endorsed rather than establishing the standards ourselves. But nevertheless,
our role is one of great importance and seriousness and one for which
we often face much opposition or resistance.

To give an example, in the lead up to the World Conference Against Racism
last year, HREOC undertook preparatory consultations with civil society
which included a national summit and youth summit on racism, 26 regional
consultations and focus groups across the country, as well as an internet
bulletin board for discussion on racism issues and an issues paper for
written submissions.

The records of our consultations were posted on our website and summarised
in a publication titled "I want respect and equality": A
Summary of Consultations with Civil Society on Racism in Australia.

The purpose of the booklet was very much to reflect the broader Australian
community's understanding and concerns about the state of racism in Australia.

One of the trends that came up throughout the consultation process was
the role of the media in inciting racism and alternatively in combating
it or challenging it through the reporting of issues. Many good examples
were cited of initiatives by media to promote tolerance and understanding
of different cultures, and to challenge race hate. But concerns were also
expressed about the media's role in perpetuating racism and the need for
a regulatory framework to ensure that media 'more accurately reflects
Australia's demographic and social reality and thus reduce(s) the perpetration
of negative stereotypes.'

On the issue of regulation, the booklet concluded that 'there were contrasting
views in terms of either providing a more prescriptive legislative response
to complaint handling in the media industry, or reinforcing the self-regulation
regime by including community members on review panels and opening up
the deliberations and process to public hearings'.

The booklet ultimately identified as a matter of broad consensus during
the consultations the proposal that the Federal Minister for Communications
require the development of a media code of conduct which positively promotes
cultural diversity, and includes community representation and transparent
complaint mechanisms and enforcement provisions.

That booklet was widely and I think mischievously misrepresented by some
media as a report which put forward HREOC recommendations. The Daily
editorialised, under the title "Democratic freedoms
threatened", accused the Commission of requiring a "sweeping
media code of conduct to prevent racial prejudice" and damning us

This small example illustrates the sensitivity of the environment in which
we perform this most difficult of roles. And what I want to discuss in
the next fifteen minutes, using the Australian legislative framework as
an example, is to look at how we have gone about balancing rights to free
speech with those of freedom from discrimination, racial hatred and intimidation.

Freedom of expression [1] can both enhance democracy
and human rights - and impede the rights and freedoms of others. Racial
vilification is a type of expression that is intended to offend, insult,
humiliate or intimidate others because of their race.

Freedom of expression
is, of course, a central tenet of democracy. It is one of the freedoms
which define whether a country is democratic. For example, the freedom
to criticise government or politicians enables open competition for elected
office, and ensures government accountability. Totalitarianism crushes
freedom of expression precisely because it promotes political dissent
and competition. Because of the importance of this freedom to a healthy
democracy, there is great scope for free expression on matters of government

Furthermore, freedom
of expression is of critical importance to those of us who work in the
field of human rights. This freedom enables human rights defenders to
reveal and critique corruption, injustice, inequality and oppression.

Yet freedom of expression
is not always an instrument of liberty. Racial abuse, vilification and
the dissemination of racist propaganda are forms of expression that violate
the rights and freedoms of others. Racial vilification can take spoken
or written form, and may also include images, which offend, insult, humiliate
or intimidate others because of their race. Where these expressions are
extreme, they can generate such fear as to prevent others from living
or working in certain places, from taking up employment, travelling to
work, and other activities that many take for granted. The psychological
damage of racial abuse and vilification has also been captured by one
writer, who described it as "spirit-murder". [3]

Racial abuse and
vilification can also lead to more overt racism, such as discrimination,
physical attacks and even racial homicide. [4] Racial
prejudice is usually converted into some form of behaviour [5]
and, as one writer put it, "Racist actions are cultivated by the
acceptability of racist speech…". [6] Therefore,
limiting racial abuse and vilification not only protects the victims from
such behaviour. It can also prevent the escalation of racially motivated
crime and safeguard the longer-term stability of society.

History repeatedly
shows us that social conflict readily forms along the 'fault lines' of
race, and racial abuse and vilification are the tremors that point to
these potential shocks. September the eleventh illustrates how, in the
after-shock of a crisis, particular racial groups can become the targets
of aggression, even from their own fellow citizens. In Australia, Arabic
communities reported an escalation of attacks - especially against women
and girls - in the weeks following the September crisis.

For these and other
reasons, the right to freedom of expression must be limited by the rights
of others, and particularly the right to freedom from racial vilification
and abuse. The Universal Declaration of Human Rights states that the rights
and freedoms of the individual are limited by "the rights
and freedoms of others" and the need to meet the just requirements
of morality, public order and welfare.[7] In addition,
the International Covenant on Civil and Political Rights, like
the Declaration, states that freedom of expression can be limited by law
where this is necessary to respect the rights or reputations of others,
or for the protection of public order, and so on. [8]
Therefore, international human rights instruments do not assert freedom
of expression as an absolute right. Rather, this right must be limited
by accepted legal exceptions, and particularly the rights of other individuals.

Of course, in reality,
the right to freedom of expression is never absolute. In Australia, as
in many other countries, many types of speech are against the law, such
as threats of violence, sexual harassment, defamation, blackmail and so
on. [9] What is a common element to all of these types
of expression is the harm they can inflict upon those they are directed
against. This harm necessitates the protection of the law. So we see that
the rights of others place limits upon freedom of expression in a range
of different contexts.

As many of you know,
the International Convention on the Elimination of All Forms of Racial
obliges states to prohibit racial hatred, [10]
incitement and propaganda. In addition, the International Covenant
on Civil and Political Rights
requires that incitements to racial
discrimination, hostility or violence are prohibited by law. [11]
Accordingly, the right to freedom from racial vilification is one of the
accepted rights that can limit freedom of expression.

I will now consider
how Australia tries to protect freedom of expression, while also protecting
its citizens from racial abuse and vilification. In 1995, the Australian
Commonwealth government enacted the Racial Hatred Act 1995 and
this national legislation made racial vilification unlawful. Similar,
and in some cases better, laws have also been enacted by the Australian
state parliaments, but today we shall focus on the federal Racial Hatred

In 1991 the Human
Rights and Equal Opportunity Commission conducted a National Inquiry
into Racist Violence
. This Inquiry found that, while racial violence
was not as serious in Australia as in many other countries, it still occurred
at unacceptably high levels. In the same year, there was a Royal Commission
into Aboriginal Deaths in Custody
, and in 1992 the Australian Law
Reform Commission released a report into Multiculturalism and the Law.
Each of these three initiatives found that racial abuse existed in Australia,
and recommended an extension of Commonwealth laws to prohibit racial vilification
and abuse. Consequently, the federal Racial Hatred Act 1995 was

It is important to note that this Commonwealth legislation does not fully
meet Australia's obligations under the International Convention on the
Elimination of All Forms of Racial Discrimination. [12]
For example, Article 4 of the Convention requires the prohibition of organisations
which incite racial discrimination, [13] and this obligation
has not been enacted domestically. Physical violence and other serious
offences are currently prohibited under Australian criminal law, however,
it is argued that criminal legislation should be specifically tailored
to the problem of racism. [14] Currently the civil remedies
of the Racial Hatred Act are the only Commonwealth provisions specifically
directed against racist behaviour. So, whist the Racial Hatred Act
moves Australia closer to meeting our international obligations, it does
not fully meet the standard required.

Let us now consider
this law in more detail. Under the Racial Hatred Act it is an offence
to insult, humiliate, offend or intimidate another person or group in
public on the basis of their race. Such action must be done in public
in order for the law to apply. This can include racist abuse yelled from
one person's house to their neighbor's house, for example. On the other
hand, a private action, for example, a conversation between two individuals,
is not unlawful in Australia - even if the discussion is racist.

In order to protect
freedom of expression, the legislation sets out certain circumstances
in which the racial hatred laws will not apply, providing the person has
acted reasonably and in good faith. Firstly, if the action is part of
an artistic work it is not limited by the racial hatred law. For example,
a play where racist attitudes are expressed by a character is not affected.
Secondly, academic work and debates which are in the public interest are
not limited by the racial hatred law. This permits a range of public policy
issues to be debated such as multiculturalism, affirmative action for
migrants and so on.

And finally, the
media are given considerable scope within the third exception, which permits
fair and accurate reports, and 'fair comment', on matters of public interest.
This last exception enables the media to report on public issues, such
as racial incitement or racially offensive conduct. It also allows editorial
opinions and the like, providing they are done without malice.

It is important to
note, however, that evidence must support the application of these exceptions.
For example, in one Australian case, a Holocaust Revisionist website was
found to contravene the Act, despite the respondent's claim that that
Revisionism was part of genuine academic enquiry. No evidence was available
to support this claim, and so the material on the website was found to
contravene that Act, and the Commission ordered that it be removed.

You will note that,
again, freedom of expression is given great scope in matters of public
and political concern. There are many people, and I am one of them, who
believe that the exceptions to the Racial Hatred Act are sometimes
too wide to prevent racial injustice. Yet this is the balance that the
Australian legislation has attempted to achieve between freedom of expression
and protection against racial abuse and vilification.

As to the effects
of the racial hatred laws in Australia, there is no evidence that these
laws have diminished freedom of expression in the ways feared by opponents
of the legislation. [15] Furthermore, it is unclear
whether racial hatred laws have reduced racial prejudice, or have simply
made it more unacceptable to express this prejudice. [16]
Yet this does not defeat the principal achievement of the legislation,
which has been to give the victims of racial vilification an avenue of
redress for their injustice. [17]

In conclusion, Ladies
and Gentlemen, I have affirmed today the importance of freedom of expression,
particularly in the political arena, to both democracy and to human rights.
I have argued that 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.

1. The
right to "freedom of expression" includes the "freedom to
seek, receive and impart information and ideas of all kinds…either
orally, in writing or in print, in the form of art, or through any other
media…": International Covenant on Civil and Political Rights,
Article 19(2).
2. Sections 7 and 24 of the Commonwealth Constitution contain
an implied protection to freedom of expression in this regard. See the so-called
"free-speech cases": Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous
v Herald & Weekly Times (1994) 182 CLR 104; Cunliffe v Commonwealth
(1994) 182 CLR 272.
3. Patricia Williams, "Spirit-Murdering the Messenger:
The Discourse of Fingerpointing as the Law's Response to Racism" (1987)
42 University of Miami Law Review, 127 as cited in Luke McNamara, "The
Merits of Racial Hatred Laws: Beyond Free Speech" in Griffith Law Review
(1995), vol.4, No.1, p.50
4. Gordon Allport, The Nature of Prejudice, 1958. More recently,
Luke McNamara, op.cit, p.42.
5. What McNamara calls 'pre-violent conduct' which perhaps
distorts the violence involved in verbal abuse: Luke McNamara, ibid, p.42.
6. Brad Jessup, "Five Years on: A Critical Evaluation
of the Racial Hatred Act 1995" in Deakin Law Review, Vol.6., No.1,
2001, p.93
7. Article 29(2) Universal Declaration of Human Rights.

8. ICCPR Article 19(3).
9. Fiona Kerr, "The Policy Implications of Enacting
Legislation Prohibiting Racial Vilification", Australian Law Students'
Association Academic Journal, 1998, p.61-69
10. ICERD Article 4. This must be done in a way that is
consistent with a democratic, constitutional system of government. Specifically,
the Convention states that due regard must be had to the Universal Declaration
of Human Rights and Article 5 of the Race Convention.
11. Article 20 of the International Covenant on Civil and
Political Rights requires any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence
to be prohibited by law.
12. It is well known that Australia noted reservations
to the International Convention on the Elimination of All Forms of Racial
Discrimination (Article 4(a) and the International Covenant on Civil and
Political Rights (Article 20), postponing the fulfillment of the obligation
to prohibit racial hatred, incitement and propaganda.
13. Article 4(b)
14. Saku Akmeemana and Melinda Jones, "Fighting Racial
Hatred" in Race Discrimination Commissioner, Racial Discrimination
Act 1975: A Review, AGPS, Canberra, December 1995, p.139
15. Brad Jessup, op.cit, p.110; Luke McNamara, op.cit.
16. Brad Jessup, ibid, p.109
17. Luke McNamara and T Solomon, 'The Commonwealth Racial
Hatred Act 1995: Achievement or Disappointment?' (1996) 18 Adelaide Law
Review 259 as cited in Brad Jessup, op.cit, p.109
updated 19 September 2002