Vanderbilt Journal of Transnational Law


David Partlett

First Page



This Article addresses, against the backdrop of possible legislative reforms in Australia, the tension between the desire to eliminate racial defamation and the need to protect freedom of speech. In an historical overview, Mr. Partlett notes an increasing sensitivity to racial issues in Australia in the face of an assumed but nebulously stated value of free speech. Mr. Partlett analyzes theoretical and legal approaches to free speech from Commonwealth and United States perspectives, and analysis of recent legal and social developments in civil rights in the United States makes this Article relevant for both Commonwealth and United States reformers in this area of the law. He concludes that the interest served by free speech is the individual's interest of autonomy. Thus, the aim to promote individual autonomy, accompanied by a presumption favoring free speech and a healthy suspicion of government, legitimates cautious governmental regulation of speech. Government action in this area is best expressed through government's role as a speaker on moral matters and through the institutional competence of the courts. Mr. Partlett then analyzes the recommendations of the Australian Human Rights Commission to amend Australia's 1975 Racial Discrimination Act and finds that its attempts to outlaw racial defamation and incitement to racial hatred neglect the value of free speech. Mr. Partlett proposes two alternatives for achieving a more comfortable balance--alternatives through which government may symbolically condemn incidents of racial defamation yet give sufficient ambit to the exercise of free speech.