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VILIFICATION LAWS

Nov 12, 2018 | 0 comments

Nov 12, 2018 | Essays | 0 comments

VILIFICATION LAWS IN AUSTRALIA

Introduction

The Constitution of Australia does not protect the freedom of expression expressly, and in some situations, some limitations are inhibitory to creative freedom, including anti-vilification, defamation, censorship and classification laws, and urging violence and treason offenses. The freedom of expression right and the right to freedom of opinion is critical to Australian society. Freedom of expression according to HRLC[1] includes the freedom of imparting and receiving information and ideas of all forms, whether through art, in print, in writing, orally, or any other medium. On the other hand, created the need to ensure the production of safe, quality, and healthy products based on predetermined standards as indicated by Jaffee (2000). freedom of opinion is an individual’s right to holding opinions. These rights according to HRLC[2] agree enshrined in International Covenant on Civil and Political Rights (ICCPR), Article 9,[3] to which Australia as a country is a party. From the description by the UN Human Rights Committee, these rights are the stone for the foundation of every democratic and free society. Freedom of speech as a concept falls within them since speech is one way of conveying and write an essay that explores this topic of Buddhist thought. This can be any form of expression of opinion. The paper disagrees with the statement that Vilification laws in Australia are inappropriately limiting created the need to ensure the production of safe, quality, and healthy products based on predetermined standards as indicated by Jaffee (2000). freedom of speech. It will discuss and argue in support of its stand while giving reasons for its arguments.

The anti-vilification and discrimination laws were designed to encourage acceptance and tolerance, the coexistence of social diversity with freedom of art, and involve employing reason and intellectual in the artwork. Romanticism stressed the expression. These laws intended to set boundaries for conduct inciting serious contempt for, hatred, or ridiculing of groups of people or a person severely because of ethnicity and race, sexuality or religion which include HIV/AIDs status, gender identity, and homosexuality. The anti-vilification and discrimination laws at the Commonwealth level are contained in the: the Racial Discrimination Act 1975(RDA);[4] Disability Discrimination Act 1992 (DDA);[5] Sex Discrimination Act 1984 (SDA);[6] and Age Discrimination Act 2004 (ADA) (ALCA 2016).[7] The RDA, SDA, DDA, and ADA provide for the offenses of committing a victimization act against another individual about the advertisements breaching each statute. However, ALCA (2016) indicated that it is the RDA that bore the greatest potential to impact on the sph freedom. A significant purpose of RDA is to enable Australia to be compliant with her duties in agreement with the International Convention on the Elimination of All Forms of Racial Discrimination.[8] ALCA[9] pointed out that Article 4 of this convention condemns the philosophies that are established on racial dominance, racial vilifications, and racial discriminations that are institutionalized, in any form.

How Australian legislative framework have balanced rights to free speech with those of freedom from intimidation, racial hatred, and discrimination

Freedom of expression according to AHRC[10] can both enhance human rights and democracy and impeded on freedoms and rights of others. Racial vilification is a form of expression that is intended to intimidate, humiliate, insult, or offend other people because of their race. Of course, freedom of expression is the central tenet of democracy. According to AHRC,[11] freedom of expression is one of the freedoms defining whether a nation is termed as democratic or not. For instance, the freedom of criticizing politicians or government enables open and fair competition for the electrical positions and offices and ensures accountability for the government. Totalitarianism precisely crushes on the expression of freedoms because it promoted competition and political dissent. AHRC[12] stated that it is because of the significance of freedom of expression to a healthy democracy, that there exists free expression on government matters. Additionally, freedom of expression right is significant to human rights advocates. This freedom enables the defenders of Human rights to critique and reveals oppression, inequality, injustice, and corruption.

However, freedom of expression is not always a liberty instrument. Dissemination of racist propaganda, vilification, and racial abuse are forms of expression violating freedom and the rights of others. According to Patricia,[13] racial vilification can be in the form of written or spoken form or may take the form of images that intimidate, humiliate, insult or offend others because of their race. Patricia[14] also indicated that where these forms of expressions are extreme, they can generate so much fear to the point of even preventing others from working or living in some places, from traveling to work, from taking up certain jobs and other activities that many people assume. The psychological damage of vilification and racial abuse was described by Patricia[15] as a “spirit murder.”

According to Gordon,[16] vilification and racial abuse can result in more overt racism such as racial homicide, physical attacks, and discrimination. Racial prejudice is normally changed into some form of behavior, and as Brad[17] stated, the acceptability of racist speech cultivates racial actions. Therefore, limiting vilifications and racial abuse protects the victims from such kinds of behavior and also prevents the use of crimes that are racially motivated, and safeguard society’s long-term stability.

History has repeatedly shown that social conflict easily forms along the racial abuse and fault lines of race, and vilification is the tremors pointing to the potential shocks. The eleventh September terrorist attack illustrates how, the crisis of aftershock, especially the racial groups can become aggressive targets, even from their friends, colleagues, and fellow citizens. The Arabic communities in Australia reported a rise in attacks, especially against girls and women, in the weeks after the terrorist attack.

From the reasons discussed above and other reasons, the freedom of expression rights must be limited by other rights, and specifically the right to freedom from racial abuse and vilification. According to the Universal Declaration of Human Rights, the freedoms and rights of a person are limited by the “freedoms and rights of others” and the need for satisfying the impartial requirements of welfare, public order, and morality.[18] Additionally, International Covenant on Civil and Political Rights,[19] states that the expression of freedom can be limited where necessary by; law to respect the reputations or rights of others, or for the public order protection. Therefore, as can be seen, the international instruments for human rights do not assert the freedom of expression as a total right. Instead, these rights must be limited especially by the rights of other persons and accepted legal exceptions.

In reality, of course, the freedom of expression right is not always absolute. Like many other countries, in Australia, many types of speech are regarded as against the law such as blackmail, defamation, sexual harassment, and threats of violence among others.[20] All these types of expression have a common element that is the harm they can cause to those they are directed against. This necessitates the law protection against the harm so that the rights of other people place limits upon the expression of freedom in a wide range of various contexts

Additionally, AHRC[21] pointed out that the International Covenant on Civil and Political Rights obliges that racial discrimination incitements, violence, or hostility are outlawed by law. Moreover, the International Convention on the Elimination of All Forms of Racial Discrimination requires nations to prohibit hatred based on race, propaganda, and incitement.[22] Accordingly, the freedom from racial vilification right is one of the accepted rights limiting the right to freedom of expression.

How Australia protect freedom of expression, while also protecting its citizens from vilification and racial abuse.

The Racial Hatred Act 1995 was enacted by the Australian Commonwealth government in 1995 which made racial vilification unlawful.[23] Similarly, the Australian state parliaments enacted some laws. It is an offense to intimidate, offend, humiliate, or insult another group or person in public based on their race according to the Racial Hatred Act 1995. For the law to apply, such actions must have been done in public. This implies that a private action even if it’s a racist discussion is not unlawful in Australia.

For the freedom of expression to be protected, the legislation sets out some situations where laws on racial hatred are not applicable, provided that the individual has acted in good faith and reasonably. First, if the action of the person is a part of an artistic work then it is not laws on racial hatred. For instance, a play where there is an expression of racist attitudes by the play characters is not affected by the hatred laws. Secondly, debates and academic work that are in the interest of the public are not limited by the law on racial hatred. This allows a range of issues on public policy to be debated such as affirmative actions for the immigrants, multiculturalism among others.

Finally, within the third exception, the media in Australia are given considerable scope, which allows for accurate and fair reports and fair comments on public interest matters. These exceptions allow the media to fairly report on issues of the public such as racial offensive conduct or racial incitement. Also, it allows for editorial opinions, so long as they are done with no malice.

Regarding the Australian racial hatred laws, there is no evidence pointing out that these laws have inappropriately limited the freedom of speech in the ways feared by this legislation opponents.[24] Also, it is not clear whether laws on racial hatred have reduced racial prejudice in Australia or have simply made it Australian more acceptable to express prejudice. However, this does not beat the key achievement of the legislation that was to give racial vilification victims an avenue of redress for the inflicted injustices.[25]

Conclusion

In summary, the paper has discussed and disagreed with the opinion that Vilification laws in Australia are inappropriately limiting freedom of speech. The essay discussed and affirmed the significance of freedom of expression, especially in the political arena, to both human rights and democracy. The paper has argued that freedom of expression should and can be limited by the freedoms and rights of others, and more particularly the right of living free from racial persecution. Australia has enacted several anti-vilification laws to reduce prejudice fueling racial vilification, and it remains a vital anti0racism strategy for the country’s struggle against racial injustices.

Reference List

Articles/Books

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

Fiona Kerr, “The Policy Implications of Enacting Legislation Prohibiting Racial Vilification”, Australian Law Students’ Association Academic Journal, 1998, p.61-69

Gordon Allport, The Nature of Prejudice, 1958. More recently, Luke McNamara, op. cit, p.42.

Luke McNamara and T Solomon, ‘The system review final report. [Canberra, A.C.T.?], Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?’ (1996) 18 Adelaide Law Review 259 as cited in Brad Jessup, op. cit, p.109

Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Finger-pointing as the Law’s Response to Racism (1987) 42 University of Miami Law Review, 127

Legislations

Age Discrimination Act 2004

Article 29(2) Universal Declaration of Human Rights.
ICCPR Article 19(3)

Disability Discrimination Act 1992

ICERD Article 4

Racial Discrimination Act 1975

Racial Hatred Act 1995

Sex Discrimination Act 1984

Others

AHRC, Racial Vilification And The Limits Of Free Expression | Australian Human Rights Commission (2002) Humanrights.gov.au

ALCA, Arts Law: Information Sheet: Freedom Of Expression (2016) Arts Law <http://www.artslaw.com.au/info-sheets/info-sheet/limitations-on-freedom-of-expression/>

HRLC, Fact Sheet: Australia’S Racial Vilification Laws (2016)

  1. HRLC, Fact Sheet: Australia’S Racial Vilification Laws (2016)
  2. Ibid
  3. ICCPR Article 19(3).
  4. Racial Discrimination Act 1975
  5. Disability Discrimination Act 1992
  6. Sex Discrimination Act 1984
  7. Age Discrimination Act 2004
  8. ICERD Article 4
  9. ALCA, Arts Law: Information Sheet: Freedom Of Expression (2016) Arts Law <http://www.artslaw.com.au/info-sheets/info-sheet/limitations-on-freedom-of-expression/>
  10. AHRC, Racial Vilification And The Limits Of Free Expression | Australian Human Rights Commission (2002) Humanrights.gov.au
  11. Ibid
  12. Ibid
  13. Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Finger-pointing as the Law’s Response to Racism (1987) 42 University of Miami Law Review, 127
  14. Ibid
  15. Ibid
  16. Gordon Allport, The Nature of Prejudice, 1958. More recently, Luke McNamara, op. cit, p.42.
  17. 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
  18. Article 29(2) Universal Declaration of Human Rights.
  19. ICCPR Article 19(3)
  20. Fiona Kerr, “The Policy Implications of Enacting Legislation Prohibiting Racial Vilification”, Australian Law Students’ Association Academic Journal, 1998, p.61-69
  21. AHRC, Racial Vilification And The Limits Of Free Expression | Australian Human Rights Commission (2002) Humanrights.gov.au  
  22. ICERD Article 4
  23. Racial Hatred Act 1995
  24. AHRC, Racial Vilification And The Limits Of Free Expression | Australian Human Rights Commission (2002) Humanrights.gov.au
  25. Luke McNamara and T Solomon, ‘The system review final report. [Canberra, A.C.T.?], Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?’ (1996) 18 Adelaide Law Review 259 as cited in Brad Jessup, op. cit, p.109
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