Balancing Freedom of Speech with Anti-Discrimination Laws in Australia

This essay provides a comprehensive analysis of freedom of speech within the Australian context, specifically addressing its limitations in relation to racial discrimination and hate speech. It examines the constitutional framework, relevant legislation like the Racial Discrimination Act 1975, and landmark court cases such as Jones v. Toben to illustrate the legal boundaries and societal implications. The essay explores the tension between protecting free speech and preventing racial vilification, highlighting the government's role in balancing these competing interests. It also discusses the impact of racial discrimination on various aspects of Australian society, including employment, customer service, and international perception. The essay emphasizes the importance of surveys and interviews to understand public attitudes towards racism and proposes measures to promote a more harmonious and equitable society, advocating for effective implementation of anti-discrimination policies and the protection of fundamental rights.

ESSAY

Freedom of speech is usually a right given to individuals from the very constitution of a
democratic nation. In a democracy, it is of paramount importance to make sure that rights of
general people to communicate freely among each other is not taken away from them. Australia
is country which was ruled by Britishers and has got its independence on 1st of January 1901.
Since then, But having a freedom to speech does not give a liberty to an individual for giving
speech and spreading hatred among people on the basis of caste, race etc. To counter balance,
there is a requirement to ban the hatred speech under which the individual should be punishable
for the activities such as graffiti, commercial fraud, perjury etc. as this can harm an individual on
the personal and professional level.
It is debatable that it shall not be allowed to spill venom through hate speeches among
general people in the name of free speech. The constitution of Australia has provided freedom of
speech to individuals within the country. If a country is ruled by another nation, then it is
obvious that the level of free speech is not going to be enough as compared to be in a
independent country. The term free speech would mean that an individual is not stopped from
speaking and communicating his views to others. But at the same time, this has to be made sure
that no undue advantage is derived of this right to expression. For example, in the name of free
speech, hatred is spread among people on the basis of gender, sex, race etc. This refers to racism
in law and any individual can not resort to racism in the name of free speech. The government of
Australia has laid down various kinds of rules and regulations to prevent such hatred to be spread
out among people through public speeches or gatherings etc.
For the purpose of gaining a better understanding of the issue in an efficient manner,
Various primary and secondary legal resources will be used, The primary resources include:
Constitution understood as an umbrella under which the Laws and acts are being framed. Laws
are made keeping in mind that constitutional rights are protected. Other is Court Cases cases
related with the topic can be assessed to get a better understanding of all the facts.
On the other side secondary resources includes legal periodicals i.e. quite helpful in
cases as well as provisions in a particular subject area. If the topic or the subjects are too
specialised then it can be easily found in periodicals. Legal directories can refer as directories
from which legal and government can be derived and has been used effectively for explaining
the topic and its legal aspects.

Racial Discrimination Act, 1975 has been introduced which aims at restricting the racial
discrimination on the basis of caste, colour, gender etc. The racial Discrimination act makes it
completely Unlawful to humiliate or insult someone on the basis of their race in any way
(Daniels, 2013). There are variety of acts that can be constituted as racial hatred like speaking,
singing, making gestures in public with an ultimate aim to humiliate or insult someone.
Under the commonwealth constitution, Australian people were given necessary freedom
to speech and this has created various benefits to the ultimate public in general. They are able to
communicate effectively without any restrictions. Also, there is a specific need to make sure that
no misuse of this act shall take place among people. Misuse would mean that in the name of
freedom of speech, hatred speeches, unnecessary remarks and all the other things which fuel
racism in society shall not be allowed in any way.
This racial vilification law in Australia makes hatred speeches, an unlawful act and thus
can not be used as a measure to insult other individual or people in any way. From past ages old
traditions and rituals is being followed by the older generations. As laid in the Social Infirmity
Report of Australian Government in September (2013), it has been the culture among families
and this has been told to youths and young people by older generations like family and friends
that race of an individual does matter and its fine to judge people on the basis of their religion,
race, caste etc. This has lead to creation of racial mindset among youths, which further fuels
racial discrimination among themselves applying the same in their life within college as well as
universities leading to many issues and problems in the longer run.
The important case of Racial Hatred within Australia was Jones Vs. Toben [September,
2002] will be studied to analyse the condition. Under which Mr. Toben posted some racial
content regarding Jews on internet which was contended by the executive council of Australian
Jewry in court and the same was accepted by the court and it decides to rule in favour of the
complainant that the material posted was in violation of Racial Discrimination Act, 1975 and the
court ordered to remove the same immediately from the internet (De Leeuw and Van Wichelen,
2012 ).
There are various kinds of penalties that are being laid down in the act, in case an
individual is found to be in violation of the racial discrimination act 1975. A maximum Penalty
of 10,000$ fine or 6 months of imprisonment for an individual and 1,00,000$ fine for
corporations is there within the act. The aim is to discourage people from passing racist

comments and posting any unethical or racist posts either on newspaper, television or in social
media etc. The commonwealth constitution is based on equality among people and any act of
racism is discouraged and is not tolerable among the society. Henceforth, this is essential to
restrict hatred speech under anti-vilification laws that is considered as an obligation of freedom
of speech. This is still argued by individuals of country that they have entire right to express their
views in relation over such topics and issue. Henceforth, this is creating tension in Australia.
Usually, it is fine to have disagreement within people in a vibrant democracy that will
enable effective discussion and various types of conclusions can be drawn which further boosts
the intellectual level of society in general. But parliament usually have to intervene by making
necessary laws in this regard to prevent disagreement or hatred which basically causes actual
harm to groups of individuals in general. The United Nation has also come up with various kinds
of norms as laid down in the 'Report of UN on Racial discrimination, 2006' that tries to prevent
any sort of racial discrimination among countries and between individuals residing there. The
government has to effectively implement these norms in order to maintain effective as well as
efficient relation among people residing there.
Thus, it is essential to make sure that racial discrimination is reduced to an extent and
hatred speech is discouraged by penalising the people who do so intentionally. A racial
discrimination is a black spot on the reputation of a country and its culture as well as its society
because it will make the whole country appear as a racist to outsiders like tourists, investors etc.
and various issues can take place which will ultimately hurt the economy as well like, lack of
tourism demand, Lack of Investments from foreign countries that further creates problem for the
country over longer period of time. There are various other problems that a country may face
through racial discrimination like lack of harmony within society, violence and many other
issues that hurts economic and political situation of a country over longer period of time (Jones,
2013). Thus, it is of paramount importance to the government of Australia to implement right
kind of policies and procedures that will reduce the level of racism and discrimination among
adults and youths going forward.
As per the views of Ben Westcott (2018), it is also important for the government to make
sure that while implementing stringent rules for hate speech and discrimination, the fundamental
right of 'Freedom to speech' is not violated which have been awarded to the citizens of Australia
by the constitution of the commonwealth. Thus, there always remains these tension regarding to

what extent freedom of speech is right and after what limit it can be regarded as discriminatory
and thus a punishment shall be given for the same in order to avoid the future cases of such kind.
For the purpose of getting better knowledge about what people and individual thinks regarding
racism and how developed their mindset is, it is necessary to know their knowledge regarding
this issue. For this purpose, government shall consider to conduct right kind of surveys and
interviews of people. It will allow effective understanding of their mindset so that necessary
rules can be framed and racial discrimination can be prevented at the earliest (Singer, 2015).
Various examples of racial discrimination within employment is also seen which has
further created many problems as well as issues over longer period of time. Some of the cases of
racial discrimination in employment can be asking employees to speak in English all the time,
even in their lunch or tea breaks as the case of Eatock v Bolt [2011]. Not hiring or employing a
specific group of people because they belong to a specific group or caste is regarded as
'unreliable' by them. Unfair treatment to them during work in terms of promotion, pay etc.
Employers are involved in giving favours to white people within the country, for example, the
report of Bloomberg on payment of wages to black and white people by Australian Employers
has suggested a wide gap and those shall be addressed by the regulators in an efficient way.
There has been cases where Black People in Australia has been called as people who does not
contribute for the economy of Australia and rather a liability for the society thus posing problems
for the social life of white residents within the country. This kind of racist behaviour has made
Australia as one of the most Racist country in the world and has maligned the image of country
in most of the nations and the people of foreign nations has not been choosing this country as a
desirable location for the purpose of study or work and this is a negative for Australia in the
longer run (Keskinen, 2012).
It is not the case that racial discrimination exist only between employer and employees or
between two individuals etc. as this also exist between customers and organisation. There have
been cases of mistreatment of customers by not allowing them goods, services as well as
necessary facilities or providing them with goods and services with less favourable terms and
conditions because of racial discrimination etc. which occur in the case of Wellington Vs. State
of Southwales [2006]. Thus, there is need to manage the business in an ethical way by taking
care of all the customers and treating them on an equal footings over period of time.

For the purpose of gaining understanding about what people think and know about
racism, it is necessary to conduct an interview from a random group of people that will lead to
better understanding of the topic in an effective way.
Australian and outsiders believed that Racism is a very serious issue which shall be dealt
with all seriousness by the government and necessary action needs to be taken in this regard over
period of time. Racism maligns image of their country as well. Hence, they do not want that
activity of racism shall take place within the country and this would lead to various kind of
issues over period of time (Maitra, 2012).
Thus, there is a need to prevent the cases of racial discrimination among people, in order
to maintain harmonious environment within the society that will lead to better growth as well as
prosperity of the nation over period of time. There are certain cases as mentioned above, in
which the court has categorically laid down that discrimination is an intolerable offense and strict
actions are to be taken in those cases which can be presented as an example among people. But
still there is a need of more stringent regulations that will lead to better and effective redressal of
the issue of racism within Australia (Curtis, 2014).
Thus, from the above discussion it can be said that right kind of policies and procedures
shall be introduced by the government in order to reduce the level of racism and racial
discrimination within the country. Racial discrimination poses various types of problems within
the society and it also destroys the image of country and its culture on international forum, which
makes it an unattractive destination for most of the people around the world. There is a thin line
between freedom to speech and that speech is turning out into hatred, thus it is essential to
maintain a fine balance between the two and it is not possible to let any individual misuse the
right of Freedom of speech in an undue manner. This has become requisite to seek proper
solution to remove issue of discrimination from the country and reframe their recognition
globally.

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Online
Hatred speech and Free speech. 2017. [Online]. Available through:
<http://www.hrmonline.com.au/section/legal/hate-speech-freedom-speech-australia/>.