AN EXAMINATION OF THE CONSTITUTIONAL AND LEGAL FRAMEWORKS FOR THE REGULATION OF RACIAL VILIFICATION IN AUSTRALIA Daniel Meagher A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law University of New South Wales November 2006 ABSTRACT This thesis involves an analysis of the constitutional and legal frameworks for the regulation of racial vilification in Australia. In doing so, it has two aims. First, I wish to discern the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated. The High Court has recognised that the Australian Constitution contains an implied right to freedom of political communication (‘implied freedom’). It operates to invalidate legislative and executive action which impairs the effective operation of our system of constitutional government. The scope of the implied freedom remains unclear, however. There is no consensus on the High Court as to what constitutes ‘political communication’ or when a law can be said to impair constitutional government. I will seek to answer these open constitutional questions and in doing so outline a methodology to determine whether racial vilification may count as political communication. If so, I will then consider whether this, consequently, imperils the validity of existing Australian racial vilification laws. And second, I want to critically evaluate the normative legitimacy of Australian racial vilification laws and propose legislative reform in the event that my analysis reveals any serious flaws in the current legal framework. The methodology outlined in the first part of the thesis provides the relevant constitutional parameters within which any proposed legislative reform must fall. In the result, I conclude that racial vilification can amount to political communication but that most Australian racial vilification laws are, nevertheless, compatible with the implied freedom and valid as a consequence. However, my evaluation of Australian civil and criminal racial vilification laws reveals that most are seriously flawed. i Consequently, a detailed reform program is outlined to remedy the major legislative deficiencies. It is my view that the law has an important but limited role to play in the regulation of racial vilification in Australia. It is certainly reasonable and prudent to have precise and well-targeted laws to proscribe and punish racial vilification but policy and law- makers should not overstate or overestimate the ability of the law to effect grass roots attitudinal and behavioural changes on matters of race. ii 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.” Signed . iii COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.’ Signed . Date . iv AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed . Date . v ACKNOWLEDGMENTS I wish to thank my supervisor – Professor George Williams – for his judicious guidance and unwavering support of my thesis. George stimulated my interest in this area and, most importantly, gave me the confidence to pursue it. I would like to thank the following institutions for giving me the opportunity to research and write in such comfortable and supportive surrounds: The University of Cape Town and the Centre for Comparative Constitutional Studies at the University of Melbourne. And especially to my friends at the Gilbert + Tobin Centre of Public Law at the University of New South Wales for being my home away from home during the writing of my thesis. I am also eternally grateful to the following people for their encouragement, conversation and friendship: Simon Bronitt, Scott Johns, Andrew Lynch, Lawrence McNamara, Luke McNamara, Irene Nemes, Luke O’Sullivan, Greg Peele, Alex Reilly, Philippa Spark, Adrienne Stone, Garry Wall, Val and Ernie Watkins, John Williams and George Winterton. Finally, to my family – Mum and Dad, Susie, Ben and John – for your loyalty, values and interest. I love you dearly. This thesis is dedicated to Fi and Spencer, the two people who make me happy every single day. And to Chris Nolan, an old friend who shares my three passions: constitutional law, red wine and rock n’ roll! vi TABLE OF CONTENTS ABSTRACT .............................................................................................................................. i ORIGINALITY STATEMENT ............................................................................................iii COPYRIGHT STATEMENT ............................................................................................... iv AUTHENTICITY STATEMENT.......................................................................................... v ACKNOWLEDGMENTS...................................................................................................... vi TABLE OF CONTENTS...................................................................................................... vii INTRODUCTION................................................................................................................... 1 CHAPTER ONE WHAT IS ‘POLITICAL COMMUNICATION’? THE RATIONALE AND SCOPE OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION....................................................................................... 6 I INTRODUCTION ........................................................................................................... 6 II THE RATIONALE OF THE IMPLIED FREEDOM UNDER THE AUSTRALIAN CONSTITUTION .............................................................................. 9 A LOCATING THE RATIONALE: THE INADEQUACY OF CONSTITUTIONAL TEXT AND STRUCTURE............................................... 9 B THE ‘CLASSIC TRIO’ OF COMMUNICATION RATIONALES .................. 11 1 The trio’s influence on the implied freedom jurisprudence of the High Court .... 11 2 Why the ‘classic trio’ are not the primary rationales of the implied freedom...... 17 C A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR SOVEREIGNTY: THE RATIONALE OF THE IMPLIED FREEDOM........... 27 1 Constitutional history and logic ........................................................................... 29 2 The tradition of freedom of communication protection in Australia ................... 32 3 The limited institutional capacity of the judiciary................................................ 40 D PROVISIONAL CONCLUSION ....................................................................... 42 III WHAT COUNTS AS ‘POLITICAL COMMUNICATION’ AFTER LANGE?......... 43 A THE SCOPE OF THE LANGE DECISION ....................................................... 43 vii B A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR SOVEREIGNTY AND THE SCOPE OF ‘POLITICAL COMMUNICATION’ ................................................................. 47 C HOW STRONG MUST THE NEXUS REQUIREMENT BE TO COUNT AS ‘POLITICAL COMMUNICATION’?........................................... 48 D A TEST FOR DETERMINING WHEN A COMMUNICATION IS ‘POLITICAL’ ..................................................................................................... 53 1 The ‘likely audience’ test ..................................................................................... 53 2 The application of the ‘likely audience’ test ........................................................ 57 E PROVISIONAL CONCLUSION ....................................................................... 61 IV CONCLUSION........................................................................................................... 62 CHAPTER TWO THE PROTECTION OF POLITICAL COMMUNICATION UNDER THE AUSTRALIAN CONSTITUTION.............................................................. 65 I INTRODUCTION ........................................................................................................