O'Donnell, Marcus --- "Hate Speech, Freedom, Rights and Political Cultures: An Analysis of Anti-Vilification Law in the Context of Traditional Freedom of Speech Values and an Emerging International Standard of Human Rights" [2003] UTSLawRw 2; (2003) 5 University of Technology Sydney Law Review 23

HATE SPEECH, FREEDOM, RIGHTS AND POLITICAL CULTURES: AN ANALYSIS OF ANTI-VILIFICATION LAW IN THE CONTEXT OF TRADITIONAL FREEDOM OF SPEECH VALUES AND AN EMERGING INTERNATIONAL STANDARD OF HUMAN RIGHTS

Marcus O’Donnell^[*]

_Iwant to begin with a few preliminary comments about the right to freedom of speech and the right to know. I will be talking below about the tensions in vilification law between free speech priorities and equal protection before the law. This tension is in a very simple way a tension between an 18th-century libertarian tradition and a contemporary human

rights tradition, although the distinction is not that easy.

In many ways that is my main point: any distinctions that we choose to draw when talking of these matters are not easily drawn. In a very real sense there is no free speech. There is no right to know. There is only ever speech which is more or less entrenched in this or that power structure. There is only speech which is being mediated through this or that myth, this or that narrative structure. Similarly there is nothing that is easily or readily known.

Jeff McMullen has spoken eloquently about “the big lie” at the heart of political power. He said:

Political leaders resort to lying in the same way that they resort to killing, be- cause it is the foundation of their real political power. Without lies, without killing, they have no lasting political power.

He pointed to the obfuscations, deflections and secrecy which constitute this “big lie”. For McMullen, George W. Bush’s “axis of evil” would be part of this big lie.

Although in some ways our concerns are similar, if I were conducting an analysis of this kind of language I would probably find it more useful to talk in terms of mythic structures. This would allow us to trace the various cultural resonances rather than just dismissing it as false. It is interesting in the context of McMullen’s comments to note that exactly

this mythological analysis has been performed by Richard Campbell on McMullen’s American colleagues at 60 Minutes. He found that the middle American dream of individualism was at the heart of each and every episode.

Now I am not just bringing this up to be contrary. But there is really only a difference of degree in Bush’s axis of evil and 60 Minutes’s rugged American individualism. Freedom of speech, objectivity, truth and the public right to know are all incredibly important ideals, but if we fetishize them as we often do as journalists, then we too often get lost in a mire of self-congratulatory pap. The big lie, as seductive a concept as it is, immediately sucks us into other easy dichotomies: politicians lie and we are lied to, good and evil, us and them.

Chris Nash has spoken of the way in which the remembrance of September 11 has been couched in the language of “us”, as if it happened in Australia. However, the deaths of the thousands of Afghani civilians in the war on terror are always reported, no matter how sympathetically, using the language of “them”. I think we are at a very profound point at the moment. The hyperbole that we have seen in the language of the media and in the language of world leaders represents language at a breaking point as we try to come to grips with a world that is reunderstanding itself. I don’t mean that in any simplistic sense. In a very real sense there is nothing new about the war on terror just as there is nothing new about the profound dissatisfaction in the Arab world with the west’s hubristic power. But all this is far more explicit than it has ever been and language has to come to terms with all these things in a new way.

If I have one caution to offer it is to avoid easy dichotomies. Freedom of speech is neither an absolute value nor is it a magic bullet for democracy—America at the moment is an example of how you can have all the constitutional guarantees in the world and absolutely no freedom of speech. This brings me to my main subject area: vilifi cation, equality and the checks, balances and responsibilities that come with free speech and the right to public knowing and public discussion.

Hate Speech, Free Speech

Much of the international debate about the regulation of hate speech has been dominated by American First Amendment jurisprudence. However, a broad human rights-focused approach, such as that emerging in Canada, allows due recognition to be awarded both to concerns regarding freedom of speech and the rights of minorities to live with full equality before the law.

Australian jurisprudence has neither a strong freedom of speech nor a strong general human rights tradition, although aspects of both have been developed in our common law. However, Australia does have a strong set of commonwealth and state statutory laws which proscribe hate-based

vilification of a range of minorities. Although the first of these laws is now over 20 years old there is still a simmering public debate that questions both the need and wisdom of these laws. Current developments in both Australian and international politics—a general move to the right and consequent scapegoating of minorities—point to the need for a particular clarity on these issues at this time.

The Current International Context

There is some evidence that we are currently witnessing a revival or expansion of hate-based crime inspired by racial and sexual characteristics. Recent newspaper reports have documented an increase in anti-Semitism in Europe, following the rise of the so-called “new right”. According to a recent report by Peter Fray,^[1] assaults range from the verbal to the extremely violent, and countries affected include France, Belgium, Britain, Holland and Germany. “What we are seeing is a daily poisoning of Jewish life,” says Serge Cwajgenbaum, the secretary-general of the Paris-based European Jewish Congress.^[2]

According to Fray, Jewish community leaders in Paris have recorded

900 separate incidents in the past 18 months. There were 350 attacks in France over a seven-week period in May–June of this year. The number of attacks in Britain is also the highest in 20 years. Fray records an incident in Antwerp, Belgium, where Eli Fallick recently told reporters about his assault by 20 Arab youths, who kicked him to the ground, chanting “dirty Jew”. Fray highlights several possible reasons for the current tensions, including the high media profile of the Israeli-Palestinian conflict, the rise of the European right and changing patterns of European migration. But neither he nor his informants believe that these obvious factors provide a

complete or compelling explanation for the tensions.

Professor Jonathan Sacks, the chief rabbi of Britain and the Com- monwealth, argues that Europe’s anti-Semitism is the product of insecurity,

“propelled by all sorts of stuff”. “It’s propelled by uncertainty, globalization, asylum seekers. In France, it’s high unemployment. A lot of turbulent weather conditions are coming together here,” he says.^[3]

It is not just Europe that seems to be in the grip of these turbulent new weather conditions. Canadian legal academic Jonathan Cohen has described what he calls a “third wave” of hate propaganda currently playing out in North America.

North America is undergoing a “third wave” of hate propaganda, the fi rst having been the rise of anti-Jewish and anti-Black hate propaganda in the

1960s, and the second the expansion and prosecution of those efforts in the

1970s and 1980s. The third wave is characterised by the dissemination of

cyberhate, the expansion of target groups, and the corresponding rise in hate crimes directed at women and members of minority groups.^[4]

The recent murder of a gay man in the Californian town of Riverside, just outside Los Angeles, was immediately labelled a hate crime by police, according to The Los Angeles Times:

Authorities said they are still looking for a group of apparent skinheads who instigated the melee by yelling homosexual slurs at the victims before stabbing them. “This is a hate crime, absolutely,” Riverside Police Chief Russell Leach said of [the] attack outside the Menagerie nightclub. “Here we are in 2002 and still such a long way off from acceptance.”

Moreno Valley resident Jeffery Owens, 40, died of multiple stab wounds to the back. At the time of the attack, Owens was trying to come to the aid of friend Michael Bussee, 48, who had been slugged in the face and stabbed as he chatted with friends in the parking lot. “You want some trouble ... fag, here it is,” the attacker yelled at Owens before jabbing a knife into him, police said.^[5] The murder inspired vigils reminiscent of those which were held across America following the death of Wyoming student Matthew Shepherd in late 1998.

The Los Angeles Times reported there were 45 hate crimes in Riverside in

2001, up from 38 in 2000. A Riverside Police Department spokesperson said there have been 10 crimes reported against people of Middle Eastern descent since September 11, and five relating to sexual orientation.^[6]

After September 11, US President Bush made a number of efforts to stem a rising tide of anti-Muslim sentiment in the United States. He visited a mosque and repeatedly called for tolerance. These efforts appeared to pay off as opinion surveys showed that Americans’ views of Muslims actually became more positive in the weeks after the attacks, and incidents of anti-Muslim hate crimes decreased.^[7]

However, this attitude has not been universal nor, it would seem, long lasting. The Reverend Jerry Vines, former president of the Southern Baptist Convention, the country’s largest Protestant denomination with some 16 million members, recently told the Church’s annual conference that the prophet Mohammed was a “demon-possessed pedophile”. President Bush addressed this same conference the following day via satellite without making mention of Vines’s outburst and praised the Baptists for their

“religious tolerance”.^[8]

According to the Boston Globe, the Federal Department of Justice has investigated about 350 allegations of threats and violence against Muslim

or Middle Eastern people since the September 11 attacks and brought federal charges in 10 instances. State and local prosecutors across the country have brought 70 additional charges. One man has been convicted of setting fire to a Pakistani restaurant in Utah, another man was found guilty of shooting at worshippers at a mosque in Washington state, and four others have pleaded guilty to making threats.^[9]

The Australian Context

Although the Australian situation does not appear to be as volatile as that observed in Europe or in the United States, there are indications that the Australian ethos of tolerance is currently being severely challenged. Both the ongoing racial concerns over Aboriginal reconciliation and the more recent asylum seeker debate have contributed to a fraught political environment for racial minorities.

Chris Puplick, President of the NSW Anti-Discrimination Board, recently delivered a stirring speech to an anti-racism conference, stating that the “level of ignorance and fear that is manifested as racism towards the Arabic and Islamic communities at the moment is particularly frightening”.^[10] Puplick said that the Arab and Muslim communities had borne the brunt of successive waves of opprobrium:

• the debate about “boat people”, asylum seekers and “queue jumpers”

• the debate about the Tampa and the “children overboard” episodes

• the debate about Palestine and the Middle East

• the debate about the war in Afghanistan and the war in Iraq

• the debate about ethnic crime—“Lebanese gangs” and “Muslim rapists”

• the debate about Sharia punishments ordered in Nigeria and Pakistan

• the debate about responsibility for September 11.^[11]

In June, the South Australian Attorney-General called on the Director of Public Prosecutions to determine whether the mayor of Port Lincoln should be charged under the state’s racial vilification act following recent comments about asylum seekers. Mayor Peter Davis called for the shooting of asylum seekers who misbehaved in detention centres. “We’ll only have to shoot a few to get the message across,” he said, according to The Adelaide Advertiser.^[12] The DPP has subsequently referred the matter to police for investigation.

The case of a Hobart woman who is accused of racially vilifying Jewish people through the distribution of pamphlets is currently before the Federal Court. Olga Scully’s literature promotes all manner of conspiracy theories about Jewish people. She maintains amongst other claims that

Jews perpetrated the “myth of the Holocaust” during World War II to gain political control and make Western society feel guilty.^[13]

Jeremy Jones, president of the Executive Council of Australian Jewry

(ECAJ) has recently called Holocaust denial “a growth industry”. The ECAJ is seeking a summary decision from the Federal Court to enforce an earlier Human Rights and Equal Opportunity Commission ruling against Fredrick Toben and his Adelaide Institute website. The site has run a series of articles seeking to prove the Holocaust was grossly exaggerated, if it happened at all. The ECAJ is seeking a direction from the court that Toben remove his site on the grounds that it incites racial hatred.^[14] In another report, the chief executive of Victoria’s Equal Opportunity Commission, Diane Sisley, noted a recent rise in disability complaints and inquiries about racial vilification, particularly from Muslim groups.^[15]

In response to Senator Bill Heffernan’s recent attack on Justice Michael Kirby, Senator Brian Greig called for the introduction of federal anti- vilification laws aimed at protecting gay men and lesbians. Speaking in the Senate, Greig characterized the attack on Kirby as an attack on “all homosexual people”:

The anger felt across the nation by all gay and lesbian people over this incident is principally because the attack on Justice Kirby is seen as an attack on all homosexual people. The innuendo about “promoting causes to impressionable young men” is rooted in the “recruitment” mythology of antigay groups. Gay and lesbian people have heard all this nonsense before ... For as long as some gay and lesbian people pop their heads above the trenches to declare their sexu- ality, there will be homophobic thugs ready and willing to kick them.^[16]

Tasmania’s Anti-Discrimination Commissioner, Dr Jocelynne Scutt, has recently called upon other Australian states to follow Tasmania’s lead and introduce anti-vilification legislation which protects women. In an article for The Sydney Morning Herald, Scutt acknowledged that football clubs have at last started to address issues of racial vilification, but she argues that women remain targets of abuse in a sporting culture dominated by mateship:

No wonder women despair of ever being taken seriously. So long as women are seen as the legitimate targets of drunken sportsmen or a means of deny- ing opponents’ manhood in the sporting arena, we are all the losers. Tas- mania’s Anti-Discrimination Act does cover the vilification of women. It is the only law in Australia to do so. The act condemns inciting hatred to- wards, serious contempt for or severe ridicule of women as promiscuous, whores and dykes. When other states take similar action, women may be on the way to achieving equality.^[17]

Hate Crimes and Hate Speech

Scutt links the language of vilification and the language of mateship with derogatory actions such as the behaviour of one sporting hero who urinated on two women at a nightclub because they had refused to dance with him.^[18] In a number of the instances outlined above, there is a direct connection between hate speech and other action-based hate crime. The crimes against the Antwerp Jew and the Californian gay man are strikingly similar in structure, although one victim survived and one did not. Both victims are vilified as they are attacked, making the nature of the animosity very clear. One is attacked as a “dirty Jew”, the other as a “fag” looking for trouble.

Even when there is no direct connection between a particular speech act and a particular physical hate attack there are often environmental connections. In the current round of anti-Semitism in Europe and the post-September 11 attacks on Muslims in the United States, it is not necessary to argue that the verbal attacks lead to the physical attacks in order to propose a connection. While there is not necessarily a causative connection it would seem that the verbal abuse currently suffered by many Jews in Europe and many Muslims in America is at the least arising from the same simmering intolerance that drives the physical attacks and at worst, feeding it.

The work of social psychologist Gordon Allport^[19] is often quoted in support of a continuum effect from hate speech to violence or even extermination.^[20] In his pioneering work The Nature of Prejudice,^[21] Allport outlines a five-stage model of racial prejudice: expression of prejudicial attitudes, avoidance, discrimination, principal attack and extermination. Using the rise of Hitler as an example, he has famously written:

It was Hitler’s antilocution that led Germans to avoid their Jewish neigh- bours and erstwhile friends. This preparation made it easier to enact the Nuremburg laws of discrimination, which in turn, made the subsequent burning of synagogues and street attacks on Jews seem natural. The fi nal step in the macabre progression was the ovens at Auschwitz.^[22]

There is now a wide body of scholarship in both the field of social psychology (see Letts and Giles 1997 for a review) and in the fi eld of jurisprudence (see Orville 2001 for a review) which documents the harms produced by hate speech or vilification. Mari Matsuda, one of the pioneers

of hate speech legal theory in the United States, sums up the harmful effects of racist speech as follows:

The negative effects of hate messages are real and immediate for the victims. Victims of vicious hate propaganda have experienced physiological symp- toms and emotional distress ranging from fear in the gut, rapid pulse rate and difficulty breathing, nightmares, post traumatic stress disorder, hyper- tension psychosis and suicide. Professor Patricia Williams has called the blow of racist messages “spirit murder” in recognition of the psychic destruction victims experience.^[23]

Melinda Jones has pointed out that the “psychic violence” of hate speech undermines “a victim’s right to subjective integrity and/or sense of self”. She points to the work of Alice Miller, who argues that

there is a parallel between child abuse, the treatment of women and racism in that all three involve massive external intrusion into the victim’s psyche such that the view the individual holds of herself is not self-referential, but is constructed from the perspective of the dominating power to such an extent that the victim becomes self-hating, believing that she is somehow deserving of the abuse she suffers.^[24]

Although they are prepared to delineate the distinct harms which derive from hate speech both Matsuda and Jones analyse hate speech from a model which sees the speech act as only one integrally linked part of a broader structural pattern. Words have both a history and a contemporary context:

Expressions of hatred, racial taunts and racist jokes go hand in hand with other discriminatory tools to keep victims in inferior positions. Racial vili- fication involves a ritual assertion of superiority, coupled with an arrogant comfort in the other’s inferiority. When words are spoken they impart mean- ings well beyond the conjoining of syllables. Words take their meaning from history and context, so that when a Jew is denied access because there is

“No entry”, it is quite different from the denial due to “No Jews”.^[25]

Racial slurs are part of the structure of racism just as is racial violence. “The claim that a legal response to racist speech is required,” argues Matsuda,

“stems from a recognition of the structural reality of racism.”^[26] Matsuda defines racism as “the ideology of racial supremacy and the mechanisms for keeping selected victim groups in subordinated positions.” Her implements of racism include:

1. violence and genocide;

2. racial hate messages, disparagement and threats;

3. overt disparate treatment; and

4. covert disparate treatment and sanitized racist comments.

In this structural model of racism, proscribing hate speech is not contingent on racist comments being identified as a first stage on a continuum which ends in genocide. Hate speech is identified as one interrelated part of a pattern of social behaviour that has immediate, intermediate and long term consequences.

Although much of the research and theory regarding hate speech has been done in the context of racial vilification, recent work^[27] has shown that it is applicable to other minority groups such as gays and lesbians. Cohen describes a model of homophobia structurally similar to Matsuda’s model of racism:

In addition to critical theorists, social psychologists offer a valuable per- spective on the structure of homophobia. Countless experts have discussed the way in which rigid gender roles create a culture of deviance, perpetuate sexism and patriarchy, and further an ideology of heterosexism. Most experts agree that homophobia is more than a visceral fear of lesbians and gay men; it is, for lack of a conclusive definition, an ideology of perceived sexual deviance that operates to silence, subordinate, and exploit anyone who violates traditional gender roles.^[28]

Cohen argues that the above phenomena—closetry, deviance, sexism, and supremacy—form the context of homophobia against which hate propaganda works its harms. As with racism the harms produced by homophobia are complex and interactive:

Among [these harms] is a range of physiological and psychological

traumas experienced by members of the targeted group, all of which exacer- bate existing feelings of vulnerability and isolation ... sexual orientation hate propaganda reinforces (and is reinforced by) the other tools of homophobia, which include harassment, gay bashing, overt and covert discrimination, extortion, stigmatization, murder, and genocide ... It is the individual and combined effect of these interconnected tools of homophobia, and not the mere pluralization of individual defamation or libel, that ultimately justifi es state sanction of anti-gay hate propaganda.^[29]

Hate Speech and Free Speech

In spite of the evidence of harm provoked by hate speech, many liberal critics still argue that the overriding importance of protecting free speech precludes any remedial regulation.^[30] This is an argument that is deeply rooted in American First Amendment jurisprudence, however it is not a set of arguments adopted exclusively by American legal theorists.^[31] Orville

has summed up the underlying arguments of First Amendment theory: The underlying warrants for First Amendment limitations on government intervention can be subsumed under the values of truth, democratic deliberation, and autonomy. According to the first warrant, the sphere of constitutionally protected speech is construed as a “marketplace of ideas” in which good ideas are assumed to drive out bad ideas. According to the

second warrant, speech is an essential mechanism of deliberative democracy. According to the third warrant, speech is construed to be intimately connected with the autonomy of the individual and the citizenry, based variously on the notion of self-governance, self-fulfilment, or the capacity to check the power of government offi cials.^[32]

Various counter-arguments have been mounted by theorists critical of an absolutist adherence to First Amendment principles. Such theorists begin by pointing to the “exclusion of ... social considerations” and a “striking absence of a theory of power related to speech” in such an absolute appeal to free speech.^[33] As Jones puts it:

It was long ago acknowledged that free markets assume level playing fi elds, and that without government intervention the distribution of power is skewed. This is true for ideas as well as trade. Proponents of the liberal conception of free speech fail to take account of the power imbalance and structural subordination of some members of society. The speech of the powerful is not countered by the voice of the victim.

That bad ideas will somehow whither in the face of free market exposure is seen as not only naive but dangerous by other critics:

To believe that all ugly ideas wither when aired is the height of naivete. It casts contempt upon history and ignores the most frightening paradox of our time: that Nazi philosophy was born as a legitimate expression of political thought ... and that it was embraced by the highly sophisticated German people.^[34]

Jones also takes issue with another of the fundamental assumptions underlying the free speech arguments:

The assumption that [the harms produced by hate speech are] a reason- able cost for the victim to bear depends on an unrealistic account of human nature which permeates liberal accounts of the free speech principle. This is the assumption that we are atomistic individuals for whom personal auton- omy is a fundamental aspect of personality. Yet the fictional nature of this sort of account has long been exposed. The works of Marx, Engels, Weber, Durkheim exploded the myth of separateness. Realist accounts of politi-

cal and social organization focus on the complexities of relationships and interdependence. Feminist scholarship, in particular, has demonstrated the interconnectedness of people and how our sense of who we are is, in part at least, determined by our location in and our relationship to society.^[35]

Such an analysis shows that the debate around this issue raises not only fundamental points of law but that the disagreements over the best way forward are rooted in radically different views of the world and the human condition. If, as Jones asserts, “the myth of separateness” and its counter-narratives is somehow at the heart of this dilemma, we are faced with issues which have been fundamental to any discussion of the postmodern condition. Indeed, for many of these theorists, the failure of traditional legal theory to come to grips with vilification points not to any weaknesses in arguments for remedial regulation of hate based harm but to the collapse of traditional categories in the face of new global human realities.

A Human Rights Perspective

If some of the arguments around hate speech legislation have been couched in distinctly postmodern terms, it is also undoubtedly true that the impetus for regulation stems from the project of human rights, a project which emerged at the juncture of the modern and postmodern worlds.

While the birth of the post-World War II human rights movement was certainly deeply influenced by American constitutional values, the model which has now emerged is quite different to the 18th-century libertarian model which still dominates much mainstream American jurisprudence. Although much of the language of civil liberties and human rights is similar, in operational terms the objectives of, for example, freedom on the one hand and social justice on the other are very different.

Although the language of human rights has not been immune from criticism (Miller 2000), it has evolved from a simple universalism to a more sophisticated instrument which accounts—at least to some extent—for both economic and cultural power differentials and, importantly, the emergence of identity politics.

The Universal Declaration of Human Rights of 1948 has been com- plemented by a range of other conventions and covenants, notably the International Covenant on Civil and Political Rights (ICCPR, 1966), the Convention on the Elimination of all forms of Racial Discrimination

(CERD, 1969) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW, 1985). Together, this body of customary international law can be seen as an evolving standard that recognizes the essential rights of every individual as well as the needs and rights of oppressed minorities.

This body of international law has led to the development of a range of charters adopted by individual states and groups of states. The Canadian Charter of Rights and Freedoms which was adopted into Canada’s Constitution in 1982 is one such document. Lorraine Weinrib (1995) argues that the Canadian system’s roots in the human rights tradition is critical to the different outcomes for hate speech regulation in the United States and Canada:

The Canadian rights system, embodied in the Canadian Charter of Rights and Freedoms, 1982 is not the creature of 18th century ideas of natural law revolution but of Canada’s adoption of the international postwar and post- Holocaust idea of human rights. If [the United States] were going to adopt a Bill of Rights now, instead of when [it] did, it would likely be a different document. [Canada’s charter] reflects its time-frame by expressing the post-

war idea of respect for equal human dignity in the multicultural, liberal state. This is the reason that Keegstra [Canada’s most famous hate speech case] marks such a contrast to US speech doctrine.^[36]

Weinrib goes on to point out that the Canadian system ought not be regarded as a “natural rights based negation on government power” similar to the American model. The Charter’s institutional structure does not merely negate state power; its three main features are:

rights guarantees and express grounds for justifi able limitation on these guarantees, both mediated in the courts and a limited, temporary legislative override. This is a more complex institutional arrangement than a statement of negation of government powers.

A nuanced complex model of human rights regulation such as that offered by the Canadian Charter provides a more viable framework for hate speech regulation than that offered by a model of liberty based on individual autonomy and negation of state powers.

Australian Vilifi cation Laws

Although there is a popular belief that Australia has demonstrated a strong commitment to human rights, the widespread and sophisticated debate which led to the adoption of the Canadian Charter has never been conducted in this country. Indeed, many commentators have suggested that our historic and current commitment to human rights has been very limited. Professor George Williams, director of the Gilbert and Tobin Centre for Public Law at the University of New South Wales, has recently argued that our human rights record is in fact quite poor:

Today, our human rights record is far from “magnificent”. While middle class Australia has little to fear from oppressive laws, this is not the right

indicator. What matters is how we treat the vulnerable and weak in the com- munity, such as the poor with little or no economic power, or people living

in rural areas with little political clout and dwindling access to basic services. Examined from this angle, our human rights record is poor. Moreover, we have not put the structures in place to reduce the chances of such events happening again. As Brian Burdekin, a former Australian Human Rights Commissioner, has stated: “It is beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community”.^[37]

In making such an argument, Williams refers to a number of historic episodes such as the debate around the Communist Party dissolution act of 1950 as well as highlighting more current failings such as the treatment of refugees and issues of mandatory sentencing. Primarily Williams points to the absence of any kind of Australian bill of rights.

Professor Larissa Behrendt^[38] has recently pointed out that a non- discrimination/ rights clause proposed by the Tasmanian government was explicitly rejected by the original framers of the Australian Constitution. According to Behrendt, it was rejected because it was thought to be

“unnecessary” and “it was considered desirable to ensure that the Australian States would have the power to continue to enact laws that discriminate against people on the basis of their race”.

The Racial Discrimination Act (1975) which was drafted in response to Australia’s international obligations under the Convention on the Elimination of all forms of Racial Discrimination (CERD) can certainly be read as a partial antidote to this omission but it is also instructive to note how at odds these recent provisions are to the explicit values of our original constitutional tradition. It is somewhat ironic in this context to note that in spite of the absence of a strong tradition of enshrined rights, Australia has one of the most comprehensive systems of hate speech regulation of any Western democracy. All states and the Commonwealth have legislation that proscribes racial vilification. Queensland and Victoria also proscribe vilifi cation on the basis of religion. New South Wales also proscribes vilification on the grounds of HIV status, homosexuality and transgender status. Tasmania includes proscription of vilification on all proscribed grounds of discrimination as defined by their act.

The NSW Anti-Discrimination Act, which was the first to proscribe racial vilification, through an amendment passed in 1989, also has one of the more extensive bodies of case law. Most of the other state laws are reasonably closely modelled on the NSW legislation. The NSW act states:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

There are defences for:

• a fair report of a public act;

• communications which would normally have absolute privilege in defamation proceedings; and

• a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest.

A public act is defined broadly as:

(a) any form of communication to the public, including speaking,

writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

The South Australian legislation includes the additional specifi cation that the incitement must “threaten physical harm”. While most of the acts allow any citizen to initiate complaints, the South Australian legislation requires the approval of the Attorney-General. These provisions are similar to those which regulate the separate criminal breach defined by the NSW act of “serious racial vilifi cation”.

Victorian legislation is phrased similarly to the NSW act but adds

“revulsion” to contempt and ridicule. It also explicitly states that the proscribed conduct “may be constituted by a single occasion or by a number of occasions over a period of time” and that covers “use of the internet or email to publish or transmit statements or other material”.

The commonwealth legislation is much broader than the state acts. It does not include the notion of “incitement”. The Racial Discrimination Act states:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The NSW Law Reform Commission, in its recent review of the state’s anti-discrimination legislation,^[39] considered bringing the NSW legislation into line with the federal law but concluded there was no compelling evidence for doing so. The Commission makes the following distinctions in considering state and federal legislation:

The rationale for including a public element [in the NSW legislation] is that the prohibition is not directed against conduct causing personal offence or humiliation, but against conduct which may incite third parties to act. So long as that rationale remains, the element of public activity is necessary.

In contrast the [Federal] provisions are aimed at empowering the victims of offensive, insulting, humiliating or intimidating conduct, not merely

prohibiting the incitement of hatred. As such the evaluation of such conduct is based on what is offensive to the “reasonable victim”. By insisting on “in- citement”, the [NSW legislation] draws a basic distinction between “giving offence” and “inciting or encouraging racism in others.” Thus the immediate impact on the victim is likely to be ignored.

While this is generally true, it ought be noted that the Commonwealth legislation also includes a public clause and thus must be determined as proscribing only public insult even if this does not extend to incitement. The NSW Anti-Discrimination Board in its submission to the Com- mission suggested that the state legislation be amended to allow for it to remedy offence to the individual as well as the potential for incitement of others. Although the scope of the Commonwealth law may seem broader than the state laws the wording of its exemption section is also very broad.

The legislation exempts:

anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

It is also severely limited in that it is administered by the Human Rights and Equal Opportunity Commission, which has no coercive power to enforce its findings. Parties must apply to the Federal Court to have the HREOC decision enforced.

Contentious and Fragile

In spite of such limitations, Sir Maurice Byers QC argued at the time of its passing in 1994 that the federal law was in breach of the implied right to freedom of speech as defined by the Australian High Court, and suggested that the law would be struck down if it were ever challenged in the courts. However other scholars have argued that the law has the necessary checks, balances and proportionality to survive a court battle. As discussed below, in 2000, the NSW Administrative Appeals Tribunal rejected such arguments in regard to the NSW provisions.^[40]

This highlights how contentious and fragile Australia’s anti-vilifi cation laws remain. Some resistance emanates from surprising quarters such as from liberal journalists Phillip Adams and David Marr, who argue against vilification legislation on free speech grounds.^[41] The passing of the most

recent legislation—Victoria’s Religious and Racial Tolerance Act (2001)—

caused heated community debate.^[42]

After nearly 20 years of operation of its vilification provisions, the recent Law Reform Commission review of the NSW Anti-Discrimination Act (1999) received a number of submissions arguing for the removal of vilification regulation, even though this was not a question raised in the initial discussion papers which framed the areas for review. The Commision obviously felt the issue was still contentious as it devoted considerable space to dissecting anti-regulation arguments. Noting that there are “many arguments against regulating vilification”, the Commission goes on to highlight the free speech arguments. It quotes Flavin^[43] to the effect that the regulation of vilification is “arguably the most diffi cult free speech question to resolve, at least in a culture where the traditional liberal theory still holds sway”. However, the Commission is of the opinion that there are models which achieve a balance between both free speech and anti-vilification objectives. It points to the three-part test developed by the Canadian courts when determining restrictions on free speech. This test requires that:

• there is a rational connection between the measure (for example hate speech regulation) in question and the objective (in this case the right to live free from racial hatred);

• the measure impairs the right to freedom of expression as little as possible in order to achieve its objective; and

• the effects of the measure are not so severe as to represent an unac- ceptable abridgment of the right to free speech.

These principles of rationality, minimal intervention and proportionality have been key to both Canadian and European courts upholding the validity of hate speech regulation. Although the bulk of the Australian High Court’s deliberations on an “implied” free speech has focused on defining notions such as “political communication”, in the end they have effectively adopted similar standards of proportionality to those outlined above.^[44]

A key to understanding the Canadian experience of rights under the Charter is, as noted earlier, an awareness that it creates both a framework for the upholding and for the appropriate limitation of guaranteed rights. This is articulated in the very first sentence of the Charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Weinrib notes that the basic approach in the Court’s interpretation of this section is “encapsulated in the words ‘free and democratic society’, with the emphasis on the word ‘and’”.^[45] Rights and freedoms are not singular, they are mediated, guaranteed, and, where necessary, limited by democratic communitarian processes.

Because Australia does not have any similar overarching structure through which to view the checks and balances on such freedoms and regulations, discussion and practice in Australian jurisprudence on these issues has had to be implied from basic common law assumptions. As noted above, there is now a body of constitutional law developed by the High Court which sets some parameters on an implied freedom of political speech. However, earlier decisions which seemed to have interpreted this broadly have been narrowed in later decisions.^[46] In spite of its lack of codification, this particular body of case law as well as general perceptions and general common law principles regarding freedom of expression have all been influential in determining the outcome of recent vilifi cation cases.

Free Speech Doctrine in Australian Vilifi cation Decisions

A number of studies^[47] have concluded that, although there are points of law that still need to be clarified, current anti-vilification laws, particularly those in NSW, have been a largely successful experiment and an appropriate balance between competing rights has been struck.

A number of recent judgements in both Commonwealth and NSW jurisdictions indicate that concerns over the free speech implications of vilification actions have played a decisive role in the outcome of several cases. In Corunna v West Australian Newspapers,^[48] Commissioner Innes, commenting on the defence under the Racial Discrimination Act for works of art, notes that it would not be appropriate for the court to make a distinction between “real artistic works” and “pseudo artistic works” and that this was particularly the case “in this jurisdiction where freedom of expression is at issue as much as racial vilifi cation.”

Innes devotes a substantial section of his judgement to reviewing arguments relating to free speech and vilification. In this review he not only cites relevant case law but also draws heavily on a range of academic papers which have debated this issue. He concludes that “in crafting that legislative response, the Commonwealth Parliament appears to have intended to strike a balance between two rights: the right to freely express or communicate certain matters and ideas and the right to live free from

vilification”. He also concludes that it is “the structure of the legislation”

which provides the framework for the achievement of this balance: The general protection for individuals or groups from harassment or fear because of their race, colour, national or ethnic origin is set out in s.18C. Section 18D then sets out what can be viewed as a protection of freedom

of particular forms of expression, by outlining certain exemptions to which the general prohibition of s.18C will not apply. The exemptions, which are discussed further below, aim at preventing the stifling of activities which, although likely to offend etc are done reasonably and in good faith.^[49]

However, the tension between the two competing principles which underline this type of legislation is well summed up by Deputy President Hennessy of the NSW Administrative Decisions Tribunal in Kazak v John Fairfax Publications Limited:

There is some authority for the proposition that a statutory provision which purports to make incursions into principles of free speech should be inter- preted narrowly.^[50] These cases are readily distinguishable from the present case because they do not relate to racial vilification provisions. The Second Reading Speech makes it perfectly clear that the balance between the right

to be free from racial vilification and free speech principles has been carefully struck in the legislative provisions. Moreover, an abundance of authority exists that anti-discrimination legislation should be regarded as benefi cial

and remedial legislation and should be given a liberal construction, as long as that construction is not unreasonable or unnatural.^[51]

In detailing his approach to the application of the exemptions provisions Innes in the Corunna case develops a similar argument to Hennessy. In general he determines that given they are the part of the legislation which seeks to guard freedom of expression they ought to be “read broadly rather than narrowly”. He concurs with Commissioner Johnston, who in an earlier case had written that a broad rather than narrow interpretation of the exemptions:

is consistent with the presumption that a fundamental tenet of the common law is freedom of expression (Attorney-General v Guardian Newspapers Ltd

[1990] 1 AC 109 at 283; Brown v Classification Review Board (1998) 154 ALR

67 at 76-77). Incursions by statute into freedom of expression should not be lightly assumed. A statutory provision that purports to have that effect should be strictly construed (Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437).

Freedom of expression is not, of course, absolute. It is, when viewed in relation to a provision like section 18D, a consideration to be taken into account when determining whether conduct is exempt, even if it otherwise would contravene section 18C. Section 18D is a corrective provision to

prevent government from stifling non-conformity or ideas that may dis- please, or which some fi nd offensive.^[52]

In both the Bryl and the Corunna cases these concerns that incursions against freedom of speech not be “lightly assumed” were decisive in what seemed reluctant decisions that found in both cases for the respondents. Although the concept of freedom of speech also played a decisive role in the Kazak case it was found in favour of the complainant. The NSW Administrative Decisions Tribunal found that an opinion piece published in the Australian Financial Review had vilified Palestinian people with assertions which included: “the Palestinians cannot be trusted in the peace process”, the Palestinians “are the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank”, and “Palestinians remain vicious thugs who show no serious willingness to comply with

agreements.”

Unlike the Administrative Decisions Tribunal, the Press Council, which also heard a complaint brought by Kazak against this publication, dismissed the complaint, concluding that although the “article was certainly vituperative” it was clearly marked as an opinion piece and “adequate balance” had been achieved by giving the Australian Arabic Council a right of reply a week later and by publishing a letter from Kazak.^[53] The Press Council later put out a press release expressing “grave concerns” about the Tribunal’s Kazak decision.

Should the Tribunal continue to follow the approach taken in this recent decision, it could stifle debate on contentious issues. In this case the issue was one of the most important continuing international disputes. It will force newspapers into bland reporting of, and comment on, issues in a manner that may offend no-one—but will not inform them either.

The Council ended its press release with the hyperbolic warning:

“Totalitarian governments come to power on the back of organizations that do not permit unfashionable or politically incorrect opinion to be aired.” While the concerns of the Council to protect the freedom of the press is commendable, its assertions in this case seem to be somewhat overblown. Although it is bound to be controversial (it is currently under appeal), the decision is in fact a very carefully argued and balanced one.

The Tribunal makes it clear that:

it is certainly not unreasonable for the Australian Financial Review to provide a forum for vigorous opinions about an important issue in international politics. But publication of the Switzer article cannot be considered reasonable merely because it expresses an extreme view on a matter of international politics.

The Tribunal concluded that the article paints an extremely negative picture of the Palestinians as a whole, makes no attempt to distinguish

between the actions of the Palestinian government and the Palestinian people and uses language which is “constantly demeaning”.

While the Bryl and Corunna cases essentially failed because the respondents could argue that they had acted “reasonably and in good faith”, the Tribunal did not believe this to be the case in regard to the publication of the article in The Australian Financial Review. It rejected three arguments by Fairfax in deciding the reasonableness of the publication. The fact that it was clearly marked as “opinion” does not in the mind of the Tribunal therefore make the publication reasonable. Neither does the fact that a response was published some time later provide for adequate balance:

Whether or not Fairfax Publications subsequently published letters or articles which provided some balance to the views expressed in the Switzer article is not relevant to the question of whether publication of the Switzer article itself was reasonable. Reasonableness must be assessed at the time of publication, not at some unstated future time, depending on what else ap- pears in the paper.

Most decisively, the Tribunal decided that the article was one-sided:

[Fairfax] submitted, and we accept, that one indication of reasonableness is whether the comment is based on facts or alleged facts which are clearly

presented. He submitted that the facts, though short, are presented to justify the comment. The “facts” presented in this case, even if accepted at face value, are totally one sided. No mention is made of any facts which may reflect poorly on the Israelis. Furthermore the opinions expressed on the basis of the facts are extreme and paint a consistently negative and deroga- tory picture of the Palestinian people as a whole. Support by brief, one sided

“facts” does not make publication of the article reasonable.

Most significantly in terms of the overall free speech debate, the Tribunal rejected an argument by Fairfax lawyers that the anti-vilifi cation legislation was in contravention of the implied freedom of political communication guaranteed under the Constitution. The decision on this point is worth quoting at length:

In [Fairfax’s] submission s20C [anti-vilification provisions of the NSW

anti-discrimination act] is invalid because of the constitutional requirement of freedom of communication. The test to be applied is that a law will be invalid if it effectively burdens freedom of communication about govern- ment or political matters either in its terms, operation or effect and the

law is not reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitution- ally prescribed system of representative and responsible government. (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567-568.)

In response to the first part of the test, s 20C effectively burdens freedom of communication about government or political matters in its terms. Any pub- lication, including those which amount to a communication about govern- ment or political matters, are unlawful if they incite racial hatred and are not covered by the exceptions in s 20C(2).

The second part of the test is whether s 20C is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. In our view it is. The legitimate end that the racial vilification provisions are designed to fulfil are set out in the second reading speech, quoted above in paragraph 15. One of those ends is to bal- ance the right to a dignified and peaceful existence free from racist harass- ment and vilification with the right to freedom of speech. The balance has been struck by the legislature in a careful manner which is consistent with international conventions, such as ICCPR and CERD.^[54]

The differences between the Press Council’s views on this case as expressed in their press release and the Tribunal’s decision point to a difference of opinion not on the fundamental value of free speech but to a difference of opinion on how this right might be read. As noted earlier, this type of disagreement is indicative of a liberal autonomous model of civil liberties versus a more nuanced contemporary model of human rights.

Conclusion

Although studies already cited^[55] argue that Australia’s anti-vilifi cation laws have been a largely successful experiment, there is no clear evidence that the existence of these laws has produced a change in the nature or extent of vilification of minorities.

Nor is there evidence, unfortunately, that the provisions have produced appropriate remedial results for victims of offensive behaviour. In the Corunna case, for example, the Commission found that although the cartoon in question had breached the appropriate standards of vilifi cation its publication was exempt because of its status as both an artistic work and as fair comment. In remarks typical of such judgements, Commissioner Innes concludes:

In so doing [dismissing the complaint] I am conscious of the distress caused by this cartoon to the complainants, and I am satisfied that the evidence was a genuine expression of that hurt. I am also cognisant of the commitment of the editor [of The West Australian] to fairly report and comment on Aborigi- nal issues ... In the process of public debate the balancing of the sensitivities of the non-dominant racial group against the importance of commenting ap- propriately on issues of the day is a fine one. While this cartoon crossed that line, and made inappropriate references to Nyungar ancestors and beliefs, it did not breach Part IIA of the Racial Discrimination Act.^[56]

In the context of Matsuda’s systemic model of racial vilifi cation referred to earlier, such a response to a situation which even the Commission judged to have “crossed the line” may seem to point to a failure of the legislation.

Some complainants have made it quite clear that they believe the legislation has both failed them and has failed to live up to its objectives of offering protection and recourse to minorities. Gary Burns, who instigated one of the few cases heard by the Tribunal under the homosexual vilifi cation provisions of the NSW act, has indicated both his intention to appeal the decision and his dissatisfaction with the process. ^[57]

However important, consideration of the satisfaction or otherwise of the complainants is certainly not a complete or sufficient standard to judge the operation of the legislation. If a systemic model of vilifi cation begs us look beyond singular individual effects then such a model demands that in any evaluation of anti-vilifi cation provisions we also look at their contribution to broader social discourse.

There is certainly an argument to be made that on a symbolic and educative level the legislation at both state and commonwealth level has been at least a modest success. Cases have now been prosecuted across a range of institutional settings including those involving police, local councillors, politicians, arts organizations and a range of media outlets. While not all actions have resulted in an actionable offence, the diversity of cases has effectively put such institutions on notice regarding potentially offensive behaviour.

The prosecution of a range of cases has introduced the notion of unacceptable vilification, particularly racial vilification, into public discourse through media reporting and analysis of many of these cases. The various commissions and boards charged with responsibility for the legislation have also used the existence of the provisions to engage in public education around the issue of vilification and incitement to hatred.

The immediate public political response to the recent case of the Port Lincoln mayor’s comments that asylum seekers ought to be shot is indicative of anti-vilification legislation’s potential symbolic power. As noted earlier, these comments have brought initial investigations to determine whether there has been a breach of the South Australian act. Whatever the outcome of such investigations, the prompt action of the state Attorney-General, the Director of Public Prosecutions and the Police Prosecutor in concert sends a powerful symbolic message about the offensive nature of such comments and the political will to counter them.

In concluding his decision on a case concerning the play Miss Bosnia,^[58]

Commissioner Johnston indicates his belief in the process of the hearing as much as the outcome in terms of setting standards for racial tolerance. He also seems to indicate that in judging their overall effectiveness in influencing community standards, prosecutions under the act ought not to be looked at in isolation:

Nor does the fact that this complaint cannot succeed mean that the com- plainants are left without any mode of redressing the balance. Their concerns about what they see as the de-sensitising and the de-humanising effects of

the play have led them to express their opposition to its performance in a number of forums and media besides the present proceedings. If members of the Australian community are callously indifferent to the complainants’ endeavours the RDA does not intrude to save them from themselves.

Ironically, given the strong freedom of speech values underlying much of the opposition to anti-vilification legislation, one of the most striking contributions of the broader legal discourse created by anti-vilifi cation decisions is in fact a significant contribution to an Australian jurisprudence on expressive rights. Recent decisions of both the NSW Administrative Decisions Tribunal and the Commonwealth Human Rights and Equal Opportunity Commission have highlighted the importance of expressive rights in our common law tradition as well as setting new standards for appropriate cautious limitation of such rights. These standards are in line with those developed in other jurisdictions such as Canada and are based on a commitment to an evolving international human rights standard which balances expressive rights with an over arching commitment to a free and democratic society.

In a society still heavily influenced by a populist understanding of the American liberal tradition, to allow that a commitment to democracy (or full equality) will at times temper a commitment to free speech is still regarded as problematic and is too often dismissed as awarding “special rights” for minorities. The new emerging standard being adopted across a range of international jurisdictions, including Australia, is providing a necessary counter-narrative to this tradition. In the context of Australia’s constitutional history, the development of such a narrative of human rights through the implementation of anti-vilification law may be viewed as an important contribution to an underdeveloped tradition in our jurisprudence.

Bibliography

Adelaide Advertiser, 22.06.02.

Allport, Gordon, 1954, The Nature of Prejudice, Addison-Wesley.

Behrendt, Larissa, 2002, “It’s Broke so Fix it and Quit Getting Us to Pay the Highest Price for its Faults: Arguments for a Bill of Rights”, Australian Bill of Rights Conference, NSW Parliament House, 21.06.02.

Burke, Kelly, 2002, “The Enemy Within”, The Sydney Morning Herald,

29.04.02.

Cambanis, Thanassis, 2002, “Threat to Arab-American Admitted”, The Boston

Globe, 07.06.02.

Cohen, Jonathan, 2000, “More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives”, McGill Law Journal 46, 69–104.

Commonwealth of Australia Senate Hansard, 20.03.02.

Dirmann, Tina, 2002, “Slaying at Gay Bar Probed as Hate Crime”, Los

Angeles Times, 10.06.02.

Flavin, A., “Can Legislation Prohibiting Hate Speech Be Justified in Light of

Free Speech Principles?”, University of NSW Law Journal 18 (2).

Fray, Peter, 2002, “Europe Cultivates the Ugly Flower of Prejudice”, The Age,

22.06.02, Insight section, 3.

Hennessy, Nancy and Smith, Paula, 1994, “Have We Got It Right? NSW Racial Vilification Laws Five Years On”, Australian Journal of Human Rights

1.

Jones, Melinda, 1994, “Empowering Victims of Racism by Outlawing Spirit- Murder”, Australian Journal of Human Rights 1.

Jones, Melinda, 1997, “Free Speech Revisited: The Implications of Lange and

Levy”, Australian Journal of Human Rights 4 (1).

Lasson, Kenneth, 1985, “Racial Defamation as Free Speech: Abusing the

First Amendment”, Columbia Human Rights Law Review 11.

Leets, Laura, 2002, “Experiencing Hate Speech: Perceptions and Responses to Anti-Semitism and Antigay Speech”, Journal of Social Issues 58 (2). Mahoney, Kathleen, 1994, “Hate Vilification Legislation and Freedom of

Expression—Where is the Balance?”, Australian Journal of Human Rights 1. Marr, David, 2000, “How Can We Square Freedom with Anti-Vilifi cation

Laws”, Australian Gay and Lesbian Law Journal 9.

Matsuda, Mari J., 1993, Words That Wound: Critical Race Theory, Assaultive

Speech, and the First Amendment, Westview Press, Boulder, 2336.

The Mercury, 12.06.02.

Minow, Martha, 2000, “Regulating Hatred: Whose Speech, Whose Crimes, Whose Power? An Essay for Kenneth Karst”, UCLA Law Review 47 (5). NSW Law Reform Commission, 1992, Report No. 92, “Review of the Anti

Discrimination Act 1977 (NSW)”.

Orville, Lee, 2001, “Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society”, Law and Social Inquiry 26 (4).

Puplick, Chris, 2000, “Achieving an Equilibrium: A Reply to David Marr”,

Australian Gay and Lesbian Law Journal 9.

———, 2002, Anti-Racism Forum, University of Sydney, 04.09.02.

Ryan, Denise, 2002, “Creating a No-Names Workplace”, The Age, 25.05.02.

Scutt, Jocelynne A., “It’s Time Women Scored Against Vilifi cation”, The

Sydney Morning Herald, 26.03.02.

Sydney Star Observer, 14.03.02, 3.

Tibbey, Mandy, 2001, “Developments in Anti-Vilifi cation Law”, Australian

Bar Review 08.08.01.

Washington Post, 22.06.02, News.

Weinrib, Lorraine, 1995, “Comparison of Rights Protection Under the US Constitution and Under the Canadian Charter of Rights and Freedoms”, Touro International Law Review 6 (1).

Williams, George, 2000, “Legislating for a Bill of Rights Now”, lecture in the

Department of the Senate Occasional Lecture Series at Parliament House,

17.03.00.

Wilson, Janet, 2002, “4 Held in Killing of Man Stabbed at Club”, Los Angeles

Times, 21.06.02.

* Journalist, Sydney Star Observer

[1] Fray, P.,“Europe Cultivates the Ugly Flower of Prejudice”, Age, 22.06.02, Insight section, 3.

[2]Ibid.

[3]Ibid.

[4] Cohen, J., “More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives”, (2000) 46 McGill Law Journal, 69–104.

[5] Dirmann, T., “Slaying at Gay Bar Probed as Hate Crime”, Los Angeles Times, 10.06.02.

[6] Wilson, J., “4 Held in Killing of Man Stabbed at Club”, Los Angeles Times, 21.06.02.

[7]Washington Post, 22.06.02, News.

[8]Ibid.

[9] Cambanis, T., “Threat to Arab-American Admitted”, Boston Globe, 07.06.02.

[10] Puplick, C., Anti-Racism Forum, University of Sydney, 04.09.02.

[11]Ibid.

[12]Adelaide Advertiser, 22.06.02.

[13]Mercury, 12.06.02.

[14] Burke, K., “The Enemy Within”, Sydney Morning Herald, 29.04.02.

[15] Ryan, D., “Creating a No-Names Workplace”, Age, 25.05.02.

[16] Commonwealth of Australia Senate Hansard, 20.03.02.

[17] Scutt, J. A., “It’s Time Women Scored Against Vilifi cation”, Sydney Morning Herald,

[26].03.02.

[18]Ibid.

[19] Allport, G., The Nature of Prejudice, Addison-Wesley, 1954.

[20] Mahoney, K.,“Hate Vilification Legislation and Freedom of Expression—Where is the Balance?”[1994] AUJlHRights 1; , (1994) 1 Australian Journal of Human Rights 1; Jones, M., “Empowering Victims of Racism by Outlawing Spirit-Murder”, (1994) 1 Australian Journal of Human Rights; Puplick, C., “Achieving an Equilibrium: A Reply to David Marr”, (2000) 9 Australian Gay and Lesbian Law Journal.

[21] Allport, op. cit

[22]Ibid., 14–15.

[23] Matsuda, M., J., Words That Wound: Critical Race Theory, Assaultive Speech, and the First

Amendment, Westview Press, Boulder, 1993, 2336.

[24] Jones, infra, (1994).

[25]Ibid.

[26] Matsuda, op. cit., 2332.

[27] Leets, L., “Experiencing Hate Speech: Perceptions and Responses to Anti-Semitism and

Antigay Speech”, (2002) 58 Journal of Social Issues (2); Cohen, op. cit.

[28] Cohen, ibid., 74

[29]Ibid., 74–75.

[30] For a very balanced analysis of both sides of this argument see Minow, M., “Regulating

Hatred: Whose Speech, Whose Crimes, Whose Power? An Essay for Kenneth Karst”,

(2000) 47 UCLA Law Review (5).

[31] See Marr, D., “How Can We Square Freedom with Anti-Vilification Laws”, (2000) 9

Australian Gay and Lesbian Law Journal.

[32] Orville, L., “Legal Weapons for the Weak? Democratizing the Force of Words in an

Uncivil Society”, (2001) Law and Social Inquiry 26 (4).

[33]Ibid.

[34] Lasson, K., “Racial Defamation as Free Speech: Abusing the First Amendment”,

(1985) 11 Columbia Human Rights Law Review 17.

[35]Ibid.

[36] Weinrib, L., “Comparison of Rights Protection Under the US Constitution and Under the Canadian Charter of Rights and Freedoms”, (1993) 6 (1) Touro International Law Review.

[37] Williams, G., “Legislating for a Bill of Rights Now”, lecture in the Department of the

Senate Occasional Lecture Series at Parliament House, 17.03.00.

[38] Behrendt, L., “It’s Broke so Fix it and Quit Getting Us to Pay the Highest Price for its Faults: Arguments for a Bill of Rights”, Australian Bill of Rights Conference, NSW Parliament House, 21.06.02.

[39] NSW Law Reform Commission, 1999.

[40]Kazak v John Fairfax Publications Limited [2000] NSWADT 77.

[41] Marr, op. cit.

[42] Tibbey, M., “Developments in Anti-Vilifi cation Law”, (2001) Australian Bar Review

[08].08.01.

[43] Flavin, A., “Can Legislation Prohibiting Hate Speech Be Justified in Light of Free Speech

Principles?”, University of NSW Law Journal 18 (2).

[44] Jones, M., “Free Speech Revisited: The Implications of Lange and Levy”, (1997) 4

Australian Journal of Human Rights 4 (1), 1997.

[45] Weinrib, op. cit.

[46] Jones, 1997, op. cit.

[47] Hennessy, N. and Smith, P., “Have We Got It Right? NSW Racial Vilification Laws Five

Years On”, (1994) 1 Australian Journal of Human Rights; NSW Law Reform Commission,

[1992], Report No. 92, “Review of the Anti Discrimination Act 1977 (NSW)”; Tibbey,

op. cit.

[48]Corunna v West Australian Newspapers 2001 HREOC 8.7.3.1.

[49]Ibid., 8.1.4.

[50]Brown v Classification Review Board (1998) 154 ALR 67 at 76–78; Coco v The Queen (1994)

[179] CLR 427 at 437.

[51]IW v The City of Perth [1997] HCA 30; (1997) EOC 92-892 at 77,288–77,289 per Brennan CJ and

McHugh J; Kazak v John Fairfax Publications Limited [2000] NSWADT para 22.

[52]Bryl and Kovacevic v Louis Nowra and Melbourne Theatre Company 1999 HREOC.

[53] APC Adjudication 1016 March 1999.

[54]Kazak v John Fairfax Publications Limited [2000] NSWADT paras 94–96.

[55] Hennessy and Smith, op. cit.; NSW Law Reform Commission, op. cit.; Tibbey, op. cit.

[56]Corunna v West Australian Newspapers 2001 HREOC 9.

[57]Sydney Star Observer, 14.03.02, 3.

[58]Bryl and Kovacevic v Louis Nowra and Melbourne Theatre Company 1999 HREOCA.