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Racism, Pluralism and Democracy in Australia

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Racism, Pluralism and Democracy in Australia RACISM, PLURALISM AND DEMOCRACY IN AUSTRALIA Re-conceptualising racial vilification legislation TAMSIN CLARKE A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law University of N.S.W. February 2005 ACKNOWLEDGEMENTS This thesis took me many years to complete, partly because it opened my eyes to a different view of the world from that which I had held as a practising solicitor in the area of trusts and funds management. I then needed to explain these new perceptions to myself before I could put them on paper, and needed to find a new style of writing to do it in. I thank my supervisors along the way for their patience and assistance in helping me attempt this. The resulting failings are mine, not theirs: looking back on the result, I agree with my husband that I may have made a hard job of it. I am grateful to Justice Margaret Stone who encouraged my first steps many years ago when she was still teaching at University of New South Wales, and to my subsequent supervisors: Professor Arthur Glass, Melinda Jones, and Kathy Bowrey, each of whom challenged and inspired me with their different perspectives. Co-supervisor Professor Colin Tatz, formerly Professor of Politics and Head of the Genocide Centre at Macquarie University, now of the Australian National University, Canberra, taught me to consider legal issues from a political perspective, encouraged me to publish my early writings, and motivated me to learn more about the Jewish side of my heritage. Kerrie Daley of the University of New South Wales Law Faculty was wonderfully helpful and David Dixon, Associate Dean (Research) Faculty of Law, was unfailingly supportive, even when he must have despaired of the thesis being completed. Natalie Fowell provided invaluable and rigorous editorial assistance. Ruth and Richard Peir let me have a quiet ‘place of my own’ to write the first full draft, affectionate concern, and many cups of tea. The partners at Blake Dawson Waldron and then Minter Ellison were most sympathetic and accommodating to the demands of research and writing over the years. Many thanks indeed to Kathy for her friendship, wisdom and fine critical skills. And of course my love and thanks to my friends and family for their support and particularly to my husband and son, Phillip and Nathanael, without whom this thesis would never have been written, and without whom it would have been finished a lot sooner. Originality Statement I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged. …………………………………………. Signature 21 February 2005 Abstract Australian debates about racial vilification legislation have been dominated by mainstream American First Amendment jurisprudence and popular American notions of ‘free speech’ to the exclusion of alternative Europeans models. This can be seen from notions of Australian racial vilification legislation as inconsistent with ‘free speech’ rights as well as the influence of some of the basic assumptions of First Amendment jurisprudence on political speech cases in the Australian High Court. Despite the widespread existence of legislation that penalises racial vilification at State and Federal levels, there has been a rise in Australia over the past 10 years of divisive ‘race’ politics. Against that background, this thesis considers the scope and limits of racial vilification legislation in Australia. It is argued that First Amendment jurisprudence is inadequate in the Australian context, because it is heavily dependent upon economic metaphors, individualistic notions of identity and outdated theories of communication. It assumes that ‘free speech’ in terms of lack of government intervention is essential to ‘democracy’. It ignores the content, context and effect of harmful speech, except in extreme cases, with the result that socially harmful speech is protected in the name of ‘free speech’. This has narrowed the parameters within which racial vilification is understood and hindered the development of a broader discourse on the realities of racist harms, and the mechanisms necessary for their redress. The author calls for the development of an Australian jurisprudence of harmful speech. Failing an Australian Bill of Rights, that jurisprudence would be grounded upon the implied constitutional right of free political speech, informed by an awareness that modern structures of public speech favour a very limited range of speech and speakers. The jurisprudence would take advantage of the insights of Critical Race Theory into the connections between racial vilification and racist behaviour, as well as the personal and social harms of racial vilification. Finally, it is argued that the concepts of human dignity and equality, which underpin European discrimination legislation and notions of justice, provide a way forward for Australian jurisprudence in this area. TABLE OF CONTENTS INTRODUCTION..........................................................................................................................................1 BACKGROUND – THE INTRODUCTION OF RACIAL VILIFICATION LEGISLATION ..............................................1 THE IMPACT IN AUSTRALIA OF FIRST AMENDMENT NOTIONS OF FREE SPEECH ............................................7 WHY IT IS ESSENTIAL TO OPPOSE RACISM AND RACIAL VILIFICATION ..........................................................8 OVERVIEW .................................................................................................................................................12 METHODOLOGY AND THEORY-TESTING .....................................................................................................19 CONCLUSION..............................................................................................................................................25 CHAPTER 1: THE BACKGROUND TO CURRENT DISCUSSIONS ABOUT REGULATING RACIST SPEECH IN AUSTRALIA..........................................................................................................27 AUSTRALIA’S RACIST HERITAGE ................................................................................................................27 Treatment of Aborigines .......................................................................................................................28 Treatment of immigrants.......................................................................................................................33 Multiculturalism ...................................................................................................................................37 The push for racial vilification legislation............................................................................................40 Attacks on pluralism .............................................................................................................................44 POPULAR POLITICS OF RACE AND IDENTITY IN THE HOWARD ERA..............................................................49 Reactionary Modernisation ..................................................................................................................53 Denial of past racism............................................................................................................................54 Institutional and policy changes...........................................................................................................56 CONCLUSION..............................................................................................................................................58 CHAPTER 2: THE TROUBLE WITH ‘RACE’.......................................................................................61 TRADITIONAL CONCEPTS OF ‘RACE’...........................................................................................................62 SCIENCE AND ‘RACE’..................................................................................................................................66 ‘NEW’ OR NEO-RACISM ..............................................................................................................................72 THE MYTHOLOGY OF RACISM .....................................................................................................................76 Features of racism................................................................................................................................80 CONCLUSION..............................................................................................................................................99 CHAPTER 3: HOW RACISM IS REPRODUCED THROUGH CULTURAL INFLUENCES AND EXTREMIST SPEECH.............................................................................................................................100 INTRODUCTION.........................................................................................................................................100
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