Speech acts : is racial vilification a form of racial discrimination? / Bill Swannie.

Adelaide : Adelaide Law Review Association, Law School, University of Adelaide, 2020.

200054

Australia. -- Modern Slavery Act 2018.

Great Britain. -- Modern Slavery Act 2015.

Human rights Australia.

Freedom of speech.

Race discrimination Law and legislation.

Race discrimination Law and legislation Australia.

Abstract

I. IntroductIon

II. Does pt. IIA overlap with pt. II of the RDA?

A. The international and constitutional significance of the RDA

B. The RDA prohibits racial discrimination in two ways

III. Is protection from racial vilification part of racial discrimination law?

A. Laws prohibiting racial discrimination and vilification are based on similar values

B. Australian multiculturalism and substantive equality

IV. Can a distinction be maintained between acts and words?

A. The speech–conduct distinction is not tenable

B. Implications of Gelber's approach to racial vilification

C. The proper interpretation of 'because of race'

V. Conclusion.

This article examines three issues concerning the relationship between racially offensive speech and laws prohibiting racial discrimination. First, it examines whether there is an overlap between the provisions of pt II of the Racial Discrimination Act 1975 (Cth) ('RDA') (which prohibits various forms of racial discrimination), and pt IIA (which prohibits racial vilification). It examines two decisions of the Federal Court of Australia, in which the Court held that racially offensive speech may, in certain circumstances, infringe pt II of the RDA. Second, it examines whether prohibitions on racial vilification are underpinned by the same values as laws prohibiting racial discrimination. The article determines that respect for individual autonomy and dignity underpins both sets of laws, and that racial vilification laws can be regarded as an aspect of the prohibition on racial discrimination. Third, the article argues that the distinction between conduct and speech is not tenable, and that racial vilification can simply be regarded as a form of harmful conduct. Therefore, courts should focus on the effects of such conduct, particularly on its targets, rather than the motives of respondents or the importance of disseminating 'ideas'. - Abstract.

Includes bibliographical references.

1 online resource (pages 179-216) : digital, PDF