Speech acts : Is racial vilification a form of racial discrimination?

This article examines three issues concerning the relationship between racially offensive speech and laws prohibiting racial discrimination. First, it examines whether there is an overlap between the provisions of pt II of the Racial Discrimination Act 1975 (Cth) (‘RDA’) (which prohibits various forms of racial discrimination), and pt IIA (which prohibits racial vilification). It examines two decisions of the Federal Court of Australia, in which the Court held that racially offensive speech may, in certain circumstances, infringe pt II of the RDA. Second, it examines whether prohibitions on racial vilification are underpinned by the same values as laws prohibiting racial discrimination. The article determines that respect for individual autonomy and dignity underpins both sets of laws, and that racial vilification laws can be regarded as an aspect of the prohibition on racial discrimination. Third, the article argues that the distinction between conduct and speech is not tenable, and that racial vilification can simply be regarded as a form of harmful conduct. Therefore, courts should focus on the effects of such conduct, particularly on its targets, rather than the motives of respondents or the importance of disseminating ‘ideas’.