The influence of defamation law on the interpretation of Australia’s racial vilification laws

This article examines the influence of defamation law on the interpretation and application of Australia’s racial vilification laws. First, it highlights the significant overlap between the types of conduct sanctioned by s 18C of the Racial Discrimination Act 1975 (Cth), and the definition of defamatory matter. Both laws create liability for public communications that are insulting or abusive (even if they are satirical). Second, this article argues that both racial vilification laws and defamation law seek to protect individual dignity and autonomy. This is because public denigration of a person (including on a racial basis) effects how that person, and others similarly situated, are perceived and treated by others. Third, this article argues that not all conduct covered by Australia’s racial vilification laws can be characterised as valuable ‘political’ discussion. Rather, these laws impose liability for conduct that causes serious personal and communal harms. Finally, this article examines the exemptions to liability in Australia’s racial vilification laws. Drawing on defamation law, it articulates certain factors that are relevant to determining whether particular conduct is done ‘reasonably and in good faith’ and is therefore exempt from liability. In particular, it highlights the importance of factual accuracy, where publications are made to large audiences on public interest topics. The article argues that inaccurate and exaggerated publications are not supported by the truth-seeking rationale for protecting speech, and the harm they cause to members of target groups may be greater than the public interest in receiving such communications.