In accepting that existing racial vilification laws are a fixture on the Australian legal landscape and taking them as the starting point of my analysis, I am not suggesting that philosophical issues are now foreclosed for discussion. On the contrary, free speech considerations, for example, are a continuing focus of this article. This recognises the inextricable link and possible conflict between racial vilification laws and speech and communication interests and the ongoing dialogue that must necessarily occur between them. 2004 A Critical Evaluation of Racial Vilification Laws in Australia 227 ____________________________________________________________________________________ to proscribe racial vilification. Since the passage of that landmark law all Australian jurisdictions, with the exception of the Northern Territory, have followed suit, albeit employing a range of divergent regulatory mechanisms. 9 Secondly, the continuing controversy in Australia surrounding the dissemination of holocaust-denial material through the internet, pamphlets, books and videos brings into sharp relief the pervasive tension between racial vilification laws and freedom of speech. 10 This tension was recently highlighted by the storm that surrounded the ultimately unsuccessful attempt by the Melbourne Underground Film Festival to screen the David Irving film The Search for Truth in History. 11 Thirdly, we have already witnessed an upsurge in racial vilification against Australian Muslims, Arabs and Jews since the September 11 attacks on the World Trade Center in New York City and the ongoing 'war against terrorism' that they triggered. 12 (b) The problem with current Australian racial vilification laws Whilst there is a need for effective racial vilification laws in Australia, the current laws lack sufficient precision and clarity in key respects. Of particular concern are the amendments made by the Racial Hatred Act 1995 (Cth) ('RHA') to the Racial Discrimination Act 1975 (Cth) ('RDA') and the 'free speech/public interest' exemptions found in the RDA and the racial vilification laws of New South Wales, South Australia, Australian Capital Territory, Queensland, Victoria and Tasmania. 13 An incoherent body of case law has developed as a consequence, where too much is left open to the decision-maker in each individual case. Many judgments are often little more than a series of findings of fact rather than reasoned pronouncements of the law. It has left the law in a state of unprincipled fluidity, where the good faith but ad-hoc assessment by individual judges and administrators of subjective, value-laden concepts determines _____________________________________________________________________________________ 9
In our steadfast faith in responsible government and in plenary legislative powers distributed, but not controlled, you as Americans may perceive nothing better than a willful refusal to see the light and an obstinate adherence to heresies; but we remain impenitent. Yet, in most other respects our constitution makers followed with remarkable fidelity the model of the American instrument of government. Indeed it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions. 1
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