Katharine Gelber

Freedom of speech and racial vilification in Australia: ‘The Bolt case’ in public discourse

This article examines the public discourse that emerged in the aftermath of the 2011 decision of the Federal Court of Australia in Eatock v Bolt. We characterise the narrative of ‘the Bolt case’ as a ‘mobilising discourse’ that countered rather than echoed the decision itself. This discourse had three main messages: encouraging scepticism about the authenticity of fair-skinned Aboriginal persons and judgment by non-Aboriginal persons about the legitimacy of Aboriginal identity according to skin colour; questioning the legitimacy of racial vilification laws and strengthening a libertarian conception of freedom of speech. We explain how such a contrary discourse became dominant in the wake of a successful racial vilification action and consider the implications of these events. 本文研究了2011年澳大利亚联邦法庭就伊脱克诉博尔特案做出判决后的公众议论。博尔特案的叙事属于“动员话语”，是对判决的反弹而非反响。该话语主要包括三个信息：鼓励对浅肤色原住人士的真实性的质疑，鼓励由非原住人士根据肤色判定原住民身份的合法性；质疑种族诽谤法的合理性；支持言论自由的观念。笔者解释了何以这种矛盾的话语盛行于一次成功的种族诽谤行动之后，并讨论了这些事件的影响。

High Court review 2003: the centenary year

2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Courts ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal of Political Science.

Arguing matters: the responsibility to protect and the case of Libya

This article analyses international negotiations over the 2011 Libyan crisis during the short weeks between the start of the uprising and the passage and implementation of un Security Council Resolution 1973. We make two arguments: first, following Risse, we demonstrate how and when argumentation around the humanitarian norm of protecting civilians mattered in these debates; second, we show that failure on the part of the supporters of the intervention on humanitarian grounds to maintain consistent and genuine argumentation in relation to that mandate is a key factor in explaining the subsequent lack of agreement about collective action inside the Security Council. We conclude that the lesson that arguing mattered in relation to Libya has been insufficiently appreciated, but needs to be better understood in order to facilitate the future traction of the RtoP norm in international negotiations.

Ethics and exclusion: representations of sovereignty in Australia’s approach to asylum-seekers

From 2001, the Australian government has justified a hard-line approach to asylum-seekers on the basis of the need to preserve its sovereignty. This article critically evaluates this justification, arguing that the conception of sovereignty as the ‘right to exclude’ involves a denial of responsibility to the most vulnerable in global politics. We particularly focus here on the ways in which the Australian government has attempted to create support for this conception of sovereignty and ethical responsibility at the domestic level, through marginalising alternative voices and emphasising the ‘otherness’ of asylum-seekers and refugees. We conclude by suggesting what this might mean for the treatment of asylum-seekers in global politics and for statist approaches to global ethics.

High Court Review 2004: Limits on the Judicial Protection of Rights

The High Courts role of judicial review has often been examined for its impact on rights protection, an area of particular interest in Australia due to the historical lack of an explicit bill of rights in either statutory or constitutional form. In 2004 rights issues were presented in particularly stark relief in several key cases, demonstrating the difficulties of the role of judicial review in the Australian constitutional framework. The cases analysed here produce compelling evidence of the limitations of relying on judicial review for rights protection within the Australian system of government. They demonstrate that in the absence of a clearer framework for the protection of rights the judiciary can uphold unambiguous decisions of the legislature enshrined in statute, even where and when those provisions are considered to override the rule of law, international standards and human rights principles.

High court review 2005: The manifestation of separation of powers in Australia

In 2005 questions were raised in public debate regarding the scope, meaning and manifestation of the constitutional separation of powers and the role of the High Court in interpreting these. In particular, the issue of the efficacy of checks and balances within the system of government against potential abuses of executive powers was raised, due to the dominance of the legislature by the executive for the first time in 24 years. This Review argues that while the High Court staunchly defended its independence and the role of the judiciary in a division of powers, it demonstrated a simultaneous reluctance to curb executive powers. This has implications for the manifestation of separation of powers in the Australian context, both in terms of its philosophical foundations and in so far as it signals a trend away from the likely realisation of public expectations of its role as expressed in appeals made to it.

High Court Review 2006: Australian federalism - implications of the WorkChoices decision

This years High Court Review focuses exclusively on the WorkChoices decision, in which the federal governments new industrial relations regime was upheld by the High Court as within the Commonwealths powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Courts preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.

Evidencing the harms of hate speech

ABSTRACT The ways in which targeted communities experience hate speech is an important, but often neglected, component of the debate over the legitimacy of hate speech laws. This article reports on data drawn from interviews conducted with 101 members of Indigenous and minority ethnic communities in Australia regarding their experiences of hate speech. We give voice to targets’ experiences of face-to-face and more widely broadcast hate speech, and outline the constitutive and consequential harms they claim to have suffered. We assess these against the alleged harms of hate speech in the literature, finding a close correlation between targets’ reports and the literature.

High Court review 2010: The resurgence of rights?

In 2010 the High Court delivered several judgments with potentially significant implications for the protection of human rights in Australia. It invoked the doctrine of the implied constitutional freedom of communication in Aid/Watch; found that offshore processing of asylum seekers must comply with procedural fairness and natural justice; invalidated elements of the SA governments control order scheme as it encroached on the independence of the judiciary; and invalidated amendments to electoral laws that shortened the period for enrolment. In this review we evaluate the implications of these decisions in the wider context of the protection of human rights in Australia. We argue that while these decisions have made an important contribution to restating the boundaries of rights protection, there are significant limitations in relying on judicial review as a mechanism of rights protection within the Australian constitutional framework.

Political Speech Practice in Australia: a study in local government powers

This paper seeks to remedy in part the lack of empirical studies on practices of.political speech in Australia by investigating local governments’ powers and perceptions of their role in regulating practices of political speech. It reports on the results of an empirical study conducted in 2003–04 of local government (that is, council) regulation of political speech within the public space constituted by pedestrian malls. Regulatory provisions are considered in the context of attitudes towards, and experiences of, practices of political speech within these arenas. I argue that local governments possess wide ranging powers to regulate political speech in pedestrian malls, but further and more importantly that those powers are mediated via their inconsistent and at times arbitrary application, combined with a cultural hostility to political speech. We therefore see a precarious level of protection of opportunities for political communication, as well as an important politico-cultural component in determining the fate of political speech in Australia. I conclude by outlining an alternative ‘enabling principle’ against which local governments may reconsider and reconfigure their regulatory practices in relation to this important political freedom.