Some are More Equal than Others? Dignity, Difference and Vilification

Bruce Baer Arnold, Wendy Bonython

Abstract


Vilification is expression that objectifies a group and serves to harm, most saliently through reducing the participation in public life by members of that group. This article critiques the Australian anti-vilification regime, arguing that it is both appropriate and feasible for governments to foster individual and collective flourishing through coherent restrictions on hate speech. The article suggests that such restriction are founded on a respect for human dignity rather than merely a concern for public order. This respect invokes both statements by politicians that signal the community’s disdain for vilification on the basis of gender and sexual orientation rather than merely traditional restrictions regarding vilification in relation to ethnicity and religious affiliation. Australia can develop a progressive and coherent regime that provides consistency across jurisdictions whilst accommodating concerns regarding free speech.


Full Text:

PDF

References


REFERENCE LIST

A Articles/Books/Reports

Ahdar, Rex Tauati, ‘Religious vilification: confused policy, unsound principle and unfortunate law’ (2007) 26 University of Queensland Law Journal 293

Aroney, Nicholas, ‘The constitutional (in)validity of religious vilification laws: implications for their interpretation’ (2006) 34(2) Federal Law Review 287

Australian Competition and Consumer Commission, Digital Platforms (Final Report, 2019)

Australian Human Rights Commission, Protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity (Consultation Report, 2011)

Barlow, John, ‘A Declaration of the Independence of Cyberspace’ in Peter Ludlow (ed), Crypto Anarchy, Cyberstates, and Pirate Utopias (MIT Press, 2001)

Bonython, Wendy and Bruce Baer Arnold, ‘Freedom of Speech under the Southern Cross—It Arrived and Departed by Sea?’ (2018) 107(2) The Round Table 203

Bonython, Wendy, ‘Power Failure? The Distracting Effect of Legislation on Common Law Torts’ in Kit Barker, Karen Fairweather and Ross Grantham (eds), Private Law in the 21st Century (Hart, 2017)

Cameron, Sarah and Ian McAllister, The 2019 Australian Federal Election: Results From The Australian Electoral Study (Australian National University, 2019)

Council of the European Union, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (28 November 2008)

Department of Justice and Community Safety, Government response to the 2015 review of the Charter of Human Rights and Responsibilities Act (2015)

D'Souza, Tanya et al, ‘Harming women with words: The failure of Australian law to prohibit gendered hate speech’ (2018) 41(3) University of New South Wales 939

European Commission, Information note - Progress on combating hate speech online through the EU Code of conduct 2016-2019 (27 September 2019)

Fineman, Martha Albertson, ‘The Vulnerable Subject and the Responsive State’ (2010) 60 Emory Law Journal 251

Fineman, Martha Albertson, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1

Fineman, Martha Albertson, ‘Vulnerability and Inevitable Inequality’ (2017) 4(3) Oslo Law Review 133

Fish, Stanley, There’s No Such Thing As Free Speech … And It’s A Good Thing Too (Oxford University Press, 1994)

Galloway, Kate, ‘Alan Jones and contempt for women in the public sphere: vilification?’ (2012) 3 Women's Agenda (3 September 2012)

Gelber, Katharine and Luke McNamara, ‘Anti-Vilification Laws and Public Racism in Australia: Mapping the Gaps between the Harms Occasioned and the Remedies Provided’ (2016) 39(2) University of New South Wales Law Journal 488

Lea, Toby, John de Wit and Robert Reynolds, ‘Minority stress in lesbian, gay, and bisexual young adults in Australia: Associations with psychological distress, suicidality, and substance use’ (2014) 43(8) Archives of Sexual Behavior 1571

Leonard, William, Anthony Lyons and Emily Bariola, ‘A closer look at private lives 2: addressing the mental health and wellbeing of lesbian, gay, bisexual, and transgender (LGBT) Australians’, (Australian Research Centre in Sex, Health & Society, La Trobe University 2015)

Matamoros-Fernández, Ariadna, ‘Platformed racism: The mediation and circulation of an Australian race-based controversy on Twitter, Facebook and YouTube’ (2017) 20(6) Information, Communication & Society 930

McNamara, Luke, Regulating Racism: Racial Vilification Laws in Australia (Sydney Institute of Criminology, 2002)

Meagher, Dan, 'Is There a Common Law 'Right' to Freedom of Speech?' (2019) 43(1) Melbourne University Law Review 269

Mefford, Aron, ‘Lex informatica: Foundations of Law on the Internet’ (1997) 5(1) Indiana Journal of Global Legal Studies 211

Middleton, Chris, ‘Wrestling with the sacking of Israel Folau’ (2019) 29(9) Eureka Street 41

Streeter, Thomas, ‘That Deep Romantic Chasm: Libertarianism, Neoliberalism and the Computer Culture’ in Andrew Calabrese and Jean-Claude Burgelman (eds), Communication, Citizenship and Social Policy: Rethinking the Limits of the Welfare State (Rowman & Littlefield, 1999) 49

Young, Michael Brett, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (Final Report, 2015)

B Cases

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Beizaras and Levickas v Lithuania (application no. 41288/15) ECHR

Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284

Cottrell v Ross [2019] VCC 2142

Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48

Eatock v Bolt [2011] FCA 1103

Executive Council of Australian Jewry v Scully [1998] FCR 537

Google Inc v Duffy [2017] SASCFC 130

Gutnick v Dow Jones & Co Inc (2002] 210 CLR 575

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Owen v Menzies (2012) 293 ALR 571

Schenck v United States, 249 US 47 (1919)

Sunol v Collier (No 2) (2012) 289 ALR 128

Toben v Jones [2002] FCAFC 158

C Legislation

Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (NSW)

Australian Constitution

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Crimes Act 1900 (NSW)

Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth)

Health Legislation Amendment Act 2020 (Qld)

Human Rights Act 2004 (ACT)

Human Rights Act 2019 (Qld)

Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (Cth)

Racial Discrimination Act 1975 (Cth)

Racial and Religious Tolerance Act 2001 (Vic)

Racial and Religious Tolerance Amendment Bill 2019 (Vic)

Religious Discrimination Bill 2019 (Cth)

Religious Discrimination (Consequential Amendments) Bill 2019 (Cth)

Sexuality and Gender Identity Conversion Practices Act 2020 (ACT)

D Treaties

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19(3)(b)

E Other

Victoria, Parliamentary Debates, Legislative Assembly, 5 June 2001

Victoria, Parliamentary Debates, Legislative Council, 7 June 2001

Victoria, Parliamentary Debates, Legislative Assembly, 24 May 2016, 1937

Victoria, Parliamentary Debates, Legislative Council, 28 August 2019