eLaw Journal: Murdoch University Electronic Journal of Law, Vol 17, No 1 (2010)

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Managing Dissent Under Part IIA of the Racial Discrimination Act

Dilan Thampapillai


Freedom of speech is a universally lauded concept but it is widely recognised as being subject to curtailment when countervailing human rights considerations arise. One area of curtailment for free speech has been that of racial vilification law. This area of the law highlights the conflict between freedom and restraint and the largely unresolved nature of the public debates on regulating racist speech. There are strong differences not just on whether to restrain racist hate speech but also on how it should be regulated. There are also intense difficulties surrounding the crucial task of defining racist speech in such a way that a clear and workable division emerges between racist ‘hate’ speech, as opposed to the milder forms of racist speech. Under Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) Australia relies on a civil complaints system to regulate racist speech. Moreover, it does so without a statutory definition of racist hate speech. This article makes the argument that balance under the Part IIA scheme can be achieved by confining hate speech cases to the Federal Court and by allowing to Human Rights Commission to provide advisory opinions on all other matters.

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