Low Level Racist Speech: Beyond Law's Reach?

Abstract

The nature of racist speech is changing as social mores on matters of race and multiculturalism evolve. However, the underlying intent of the disseminators of racist speech – to divide and subjugate – remains much the same. Part IIA of the Racial Discrimination Act appears to lack the capacity to deal with racist speech that is sophisticated and not profane. This presents a problem, particularly when a racist message can effectively be conveyed with subtlety and without crudity. The effect of this failure on the part of Australia’s racial vilification laws is to effectively privilege the speech of mainstream commentators. Part IIA of the RDA appears to have been drafted with a view to preventing the harms that arise from extreme racist speech and speech encouraging violence. But such speech is rare or is quarantined to the margin of Australian life. The type of racism that is problematic is that which is more insidious, sophisticated, yet visible and divisive and exclusionary in its operation. This is the type of speech that Part IIA needs to engage with if it is to have any meaning in broader Australian life. Further, it is possible for Part IIA to play a role in educating and challenging racist speech without undermining Australian democracy and the general freedom of speech.