Human Rights Law and Racial Hate Speech Regulation in Australia: Reform and Replace?

There are numerous reasons justifying the creation of specific hate crime offenses under federal criminal laws to address serious racial vilification. Racial hate speech undercuts the basic principles of equality and non-discrimination that underpin international human rights law. Human rights are intended to co-exist with and supplement the right to freedom of expression. Restrictions on racial hate speech facilitate rather than impede freedom of expression by disallowing speech that is likely to silence the free speech rights of the targeted group. The UNHRC has consistently recognized that racial hate speech is not protected by Article 19 of the ICCPR. Indeed, domestic laws prohibiting the communication of racist ideas likely to expose a person to discrimination, hostility or violence are required by Article 20(2) of the ICCPR. The ICERD further requires states to pass domestic legislation criminalizing the dissemination of ideas based on racial superiority or hatred, incitement to racial hatred, contempt or discrimination, threats or incitement to violence as well as prohibiting assistance to racist activities (including financing). Beyond establishing criminal offenses for these activities, Australia will have an on-going duty to effectively enforce such criminal legislation. It is apparent that under international treaty obligations and fundamental human rights principles, including the right to dignity and equality, there is a significant void in the Australian criminal law in relation to severe forms of racial hate speech. The main justifications put forward in support of freedom of speech do not actually justify protecting speech that incites racial discrimination, hatred, and violence. To empower racial minorities to live in the Australian community free from the fear of hostility and severe forms of violence, there must be specific criminal offenses in relation to racial hate speech alongside the existing civil complaint mechanisms through anti-discrimination legislation. It is important that federal legislation grades criminal offenses in a hierarchy of seriousness, analogous to the way in which anti-terrorism offenses are graded in the Commonwealth Criminal Code. This would give national prominence to the issue of racially motivated hate speech and reflect the seriousness with which it is viewed by the Australian community. Australia prides itself as a multicultural democratic society tolerant and understanding of cultural diversity. Consequently, legal reform is both long overdue and urgently needed.