Legal Essay: Balancing Freedom of Speech and Anti-Vilification Laws

This essay critically evaluates the statement that Australian law provides robust freedom of speech under the Commonwealth Constitution, despite restrictions on hate speech through anti-vilification laws. The essay begins by introducing the context of racial hatred and civil grievances in Australia, as well as the ongoing debate regarding modifications to current laws. It then explores the right to freedom of speech in Western Australia, referencing the Human Rights Act 2004 and the Charter of Human Rights and Responsibilities Act 2006. The essay examines the legal framework surrounding hate speech and anti-vilification laws, including the Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977. It analyzes the roles of human rights commissions and international human rights agreements, as well as the impact of anti-vilification laws on freedom of speech and the overall occurrence of hate speech. The essay concludes that while anti-vilification laws have had a positive impact on judicial discourse, there is no definitive evidence that they have effectively reduced hate speech. The essay highlights the importance of communicative rights within the general law tradition.

Running head: ESSAY 0
CIVIL LAW
JUNE 7, 2019
STUDENT DETAILS:

ESSAY 1
Introduction
In recent period, various examples stimulated the racial hatred as well as perception and
frightening physical harms to the individuals or the properties on centre of race has coursed
in Australia. This tendency is simply stated in a theatrical increment in civil grievances
lodged with the Human Rights Commission in Australia claiming racial hatred in the FY
2012-2013. Certain events related to the racial aggression have worsened to real attacks
depended on racial. The progress in the events of provocation to violence and racial hatred
has occurred against the background of extensive central argument on a value of present
commonwealth racial vilification laws1.
The worrying tendency to the racial prejudice as well as hostility, along with the central
argument over offered modifications to the present commonwealth laws handling the racial
vilification, takes in the significant focus various interconnected problems; how the cases are
presently dispensed with in judicial system of Australia at state level as well as central level.
The other question is that is Australia conforming to international judicial duties. The
following parts will argue that various elements validate indicting the functions as particular
hate offences under the federal criminal laws. This essay critically assesses the declaration ‘In
Australian law, there are the robust rights to freedom of speech pursuant to Commonwealth
Constitution, nevertheless restriction over hate speech as per anti-vilification law.’
Right to Freedom of Speech in Western Australia
The freedom of speech is an idea related to the intrinsic human right to voice the view of
someone openly without the threat of restriction and punishments. The speech is not
restricted to public language and is usually accepted to involve different methods of the
1 Gillia Whitlock.. Keloid Geography: The Year in Australia. (Oxford University press, 2017)

ESSAY 2
expression. The right is conserved in United Nations Universal announcement of Human
Rights as well as is provided official gratitude by the law of different countries. Nonetheless,
a level to that the right is supported in practices differs critically from one country to other
country. In various countries, specifically those with controlling methods of the government,
evident government restrictionis imposed. Restriction has also entitled to take place in
different methods and there are various strategies to the problems like hate
speech, defamation law, and offensiveness.
Section 16 of the Human Rights Act 2004 declares about freedom of expression. Section
16(1)2 of Human Rights Act 2004 addresses that all persons have rights to keep the opinion
without the interferences. Further, according to section 16(2) of the Human Rights Act 2004,
all people have right to freedom of expression. A right to freedom of expression involves
freedom for looking for, get, and communicate data as well as concepts of all the children,
irrespective of boarder, whether verbally, in script or in print, by the art’s manner, or within
different manner selected through her and him. Additionally, section 15 of the charter of
Human Rights and Responsibilities Act 2006 also addresses the freedom of expression.
According to section 15 (1) of the act all the individuals have right to keep the views without
intervention. As per the section 15(2) of Act3, every individual has right of freedom that the
freedom to pursue, attain, and convey data as well as all types of concepts, whether in or out
of Victoria and whether in print or writing, or by process of art, in oral or in some different
means selected by people. In addition, the particular obligations and accountabilities are
connected to right of freedom of expression as well as rights can be the matters of legal
prohibitions properly essential to respect the right and status of other people or to protect the
security of central protection, public health and order or general morality4.
2 The Human Rights Act 2004
3 The charter of Human Rights and Responsibilities Act 2006
4 Timothy Arnold-Moore. Protecting religious freedom under Australian law. (Springer, 2018)

ESSAY 3
Additionally, in a case of Nationwide News Pty Ltd v Wills5, it was held by the court that the
Act was within the reconciliation as well as adjudication head of power, however that this
trespassed the indirect freedom of political communications. A ‘doctrine of representative
administration” is one of 3 principles in the Constitution. The other two are central
government and the power’s separation6.
Restriction over hate speech- anti vilification laws
In Australia, judicial reaction to hate speech is uncommon. A constitutional framework of
Australia is exclusive. The reason is that among the new western republics, only Australia
lacks the central bill related to right. As a substitute, the difficult and diverse governmental as
well as managerial regime has established. In Australia, most jurisdictions render for civil in
place of the criminal preparations and administrative bodies in place of courts repeatedly
apply them, in the first instance at least. These laws are available in most of the states and
centrally in the Racial Hatred Act 1995 (Cth)7. The latest adding to the judicial atmosphere is
Human Rights Act 2004 (initial bill of rights in Australia), the measure that is presently in
consideration in Western Australia as well as Victoria8.
Moreover, the racial discrimination takes place while the person is not considered or less
considered favourably, or not provided the similar chances, as others in the same condition,
due to the race, the nation where they took birth, their culturalorigin, or the colour of skin.
The Racial Discrimination Act 1975 creates this illegal to differentiate against the people
because of the colour, race, origin, national origin or ethnic origin, or immigrant status9.
Racial Discrimination Act 1975 secures individual from racial discernment in various fields
of common life, involving service, schooling, attaining or utilising service, purchasing or
5 (1992) 177 CLR 1
6 Sarah Soria. Hate speech and distorted communication: Rethinking the limits of incitement. (Cambridge
University press, 2015)
7 The Racial Hatred Act 1995 (Cth)
8 Kaz Ross. Hate speech, free speech: The challenges of the online world (Springer, 2018)
9 The Racial Discrimination Act 1975

ESSAY 4
renting the houses or units, and getting into the general places. The Racial Discrimination Act
1975 also creates racial hatred illegal. Moreover, Anti-Discrimination Act 1977 renders the
illegal racial, sex as well as different kinds of discrimination in various situations and to
encourage the opportunities of equality between all the people. Professor George Williams of
Goilbert as well as Tobin Centre for Public law at the University of New South Wales has
also made argument that the human rights records are relatively unfortunate10.
Human rights
The human rights are considered as the rights intrinsic in every human being, irrespective of
race, nationality, civilization, verbal, belief, or other status. The human rights cover a right to
life, right to freedom and liberty from oppression as well asanguish, freedom of opinions and
communication, and others. These rights are codified in the international treaty or agreement
amid governments, addressed as the convention or covenant. International human rights
agreements render the decided set of human rights norms and develop tools to review the
manner that the agreement is applied. Through correcting the agreement, the nation willingly
admits the judicial duties in the international law11.
Australia has the positive and solid past on the human rights. However, this record is not
ideal. It is not so good. Certain individual are rejected the basic rights, due to their colour,
sex, age, race, disability or certain other aspects of who they are. Furthermore, the Human
rights commission 2013 defined the human rights. According to its definition, the human
rights identify the intrinsic value of all the people irrespective of the status, wherever they
reside, how they appearalike, what the people do and what people think. The worldwide
announcement of Human Rights followed through UN on 10 December 1948 states the
10Adrienne Stone. Viewpoint discrimination, hate speech laws, and the double-sided nature of freedom of
speech. (Springer, 2017)
11 Ben Boer and Gruber Stefan. Legal Frameworks for World Heritage and Human Rights in Australia. (Oxford
university press, 2017)

ESSAY 5
fundamental rights and liberty, which implement to every person. The government of
Australia has decided to support and respect the various rights. Australia has continued the
follower of human rights throughthe international treaty negotiation. The human rights law
involves the two main international treaties: one on political rights as well as civil rights (for
an instance, freedom from torture, and freedom of speech) and one on financial rights,
general rights along with traditional rights, (for instance, a right to health or right of
education). International law identifies the rights of particular group of individuals, involving
females, various racial communities, kids, disabled persons and employees. The government
of Australia has decided to sustain and respect various basic human rights. These
commitments are stated in federal laws, and the programmes and strategies developed
throughthe government. The nation has authorised almost all of major international human
rights tools12.
Analysis of anti-vilification laws regarding freedom of speech as well as hate speech
The anti-vilification law plays the very significant part in influencing these changes;
however, certain different elements have been significant, also, involving altering social
characteristics. Unfortunately, as the research settles, there have been no modifications in the
occurrence of vilification in general place such as in streets, in bus, in trains or in shopping
malls. The only shift that has occurred is in who is objected, with latest sprays of refugees
recently aimed. There have the shifts, for an instance, to the persons of African legacy and
from a middle east. As per this stage, the anti-vilification law does not appear to have
decreased the total occurrence of hate speech13.
The other manner of assessing the achievement of anti-vilification laws is in general
attitude. It is stated by opinion polls that solid general assistancefor the concept that the
12 Damien Short. Reconciliation and colonial power: Indigenous rights in Australia. (Routledge, 2016)
13 Iginio Gagliardone. Countering online hate speech. (Unesco Publishing, 2015).

ESSAY 6
administration must sketch the line in a sand; one that states that prejudiced hate speech as
well as other methods of group vilification are intolerable. In Australia, it is perhaps the most
important legacy of thirty years of anti-vilification laws14. The commonwealth anti-
discrimination laws can obstruct with freedom of speech through conducting illegal definite
manners of discrimination, extortion, and persecution, which may be established in a speech
and different methods of the countenance. At the similar period, these laws can secure the
freedom of speech, through controlling the people from being mistreated or separated against
by the reason of stating, for instance, some political opinions and religious standpoints.
Conclusion
As per the above analysis, it can be concluded that the anti-vilification laws of Australia have
the fundamentally positive experimentation, there is no clear evidence that the presence of
thelaws has made the changes in a scope andrange of the section’s vilification.
Inappropriately, there is no evidence that the requirements have made proper corrective
outcomes for the offenders of wrong conduct. Incongruously, provided the solid freedom of
speech value stating much of the hostility to anti-vilification law, the most outstanding
contribution of wider judicial discourse made through the anti-vilification choices is in fact
the significant contribution to the national jurisprudence over communicative rights. The
latest decision of the New South Wales Administrative Decisions Tribunal as well as
Commonwealth Human Rights and Equal Opportunity Commission have made focus on the
significance of communicative right in the general law tradition and setting new norms for
propercareful limitations of the human rights15.
In this way, In the community still heavily affected through the populist knowledge of the
liberal traditions in America, for permitting the commitments to republic (and whole
14 Peter Molnár. Free Speech and Censorship Around the Globe. (Central European University Press, 2015).
15 Katharine Gelber and McNamara Luke. Evidencing the harms of hate speech. (Routledge, 2016)

ESSAY 7
equality) would at periods temper the commitments to free speech is considered as difficult
and is so habitually discharged as awarding the specific rights for subgroups. The new
developing standards being followed through a range of international jurisdiction, covering
Australia is rendering the essential counter-narrative to the custom. In relation to the
constitutional past of Australia, the development of this description of human rights
throughout the application of anti-vilification law can be considered as the significant
involvement to the unused custom in the jurisprudence.

ESSAY 8
Bibliography
A. Articles/Books/Journals
Arnold-Moore, T. Protecting religious freedom under Australian law. (Springer,
2018)
Boer, B, and Stefan, G. Legal Frameworks for World Heritage and Human Rights in
Australia. (Oxford university press, 2017)
Gagliardone, I. Countering online hate speech. (Unesco Publishing, 2015).
Gelber, K, and Luke M. Evidencing the harms of hate speech. (Routledge, 2016)
Molnár, P. Free Speech and Censorship Around the Globe. (Central European
University Press, 2015).
Ross, K. Hate speech, free speech: The challenges of the online world (Springer,
2018)
Short, D. Reconciliation and colonial power: Indigenous rights in Australia.
(Routledge, 2016)
Sorial, S. Hate speech and distorted communication: Rethinking the limits of
incitement. (Cambridge University press, 2015)
Stone, A. Viewpoint discrimination, hate speech laws, and the double-sided nature of
freedom of speech. (Springer, 2017)
Whitlock, G. Keloid Geography: The Year in Australia. (Oxford University press,
2017)
B. Cases
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
C. Legislations

ESSAY 9
The charter of Human Rights and Responsibilities Act 2006
The Human Rights Act 2004
The Racial Hatred Act 1995 (Cth)
The Racial Discrimination Act 1975