A Bolt of white lightening

DOUG PORTEOUS

Bromberg J in Eatock v Bolt [2011] FCA 1103 found that Andrew Bolt and the Herald and Weekly Times Pty Ltd (“HWT”) had contravened s 18C of the Racial Discrimination Act 1975 (Cth) (“RDA”). In two newspaper columns and a number of blog posts, Mr Bolt argued (essentially) that fair-skinned aborigines had no legitimate claim to aboriginal identity and had merely pretended to be aboriginal to exact financial or career benefits. Following something of an outcry, the Coalition promised to repeal s 18C if elected. Last week, the Exposure Draft of the repeal legislation was released and the raucous debate returned.

The RDA in its present form recognises the blindingly obvious point that certain fundamental rights can conflict, and where that happens we need a balancing exercise. This is from the Explanatory Memorandum to the Racial Hatred Act 1995 (Cth), which introduced Part IIA of the RDA:

There is no unrestricted right to say or publish anything regardless of the harm that can be caused. A whole range of laws protect people’s rights by prohibiting some forms of publication or comment, such as child pornography and censorship laws, criminal laws about counselling others to commit a crime, and Trade Practices prohibitions on misleading and false advertising or representations.

Section 18D exists as part of that balancing exercise. Bolt and HWT relied upon 18D(c)(ii) in their defence, which allows for fair comment on matters of public interest made reasonably and in good faith.

In rejecting that defence, Bromberg J cited a few of Bolt’s mishaps which indicated a lack of good faith and reasonableness (and decency), including:

• Inflammatory and provocative language;
  
  
• Gratuitous references to colour and sexuality;
  
  
• Quoting people out of context.
  
  

Following the Federal Court decision, Bolt declared, “This is a terrible day for freedom of speech in this country.” Was it? Did the decision have a chilling effect on the free speech of even Bolt himself? It’s certainly a difficult argument to make: Bolt’s articles can still be accessed on the Herald Sun’s website; Bolt still has ‘Australia’s most read political blog’ and hosts his own television program; and Bolt himself has participated in the vigorous debate about his case and the laws themselves. Put simply, it would be hard to imagine a worse example of the RDA having a chilling effect on the freedom of speech than the Bolt case.

This outcome may have been different had Bromberg J ordered that the articles be prohibited, but as His Honour noted, “in the age in which we live, any attempt made to restrict access to an internet publication is likely to be circumvented…”

The things which led to the finding against Bolt and HWT were the sort of things that would ordinarily get you pinged for defamation. Quoth His Honour at [423]:

The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.

So, what are we really arguing about?

There are many legitimate arguments about the possible overreach of s 18C.  It’s certainly arguable that the government has no role in adjudicating the “hurt feelings” of citizens. Likewise, it’s arguable that no legislative provision can have a significant impact upon the man on the Frankston omnibus. But if these were the genuine concerns behind the opposition to s 18C, then surely the appropriate response would be to redraw the balance between rights, and not to water down the provisions to the point that they provide no protection at all.

Even if the amendment is led by a genuine belief in the paramount importance of the freedom of expression, a quick perusal of the Bolt case itself demonstrates why repealing the provisions won’t necessarily result in a greater protection of that right. This is Bromberg J at [423]:

Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued.

It is also instructive to consider the debate around s 18C in its broader context. For example, the Victorian Government recently passed the Summary Offences and Sentencing Amendment Act 2014 (Vic), which expands upon the police’s powers to direct people to ‘move on’ from public places. The powers are awkwardly drafted, and appear to give police an incredibly wide discretion to order people, upon pain of 5 penalty units, to leave a public place. Is anyone really surprised that the Attorney-General hasn’t defended the rights of protesters to be bigots too?   Andrew Bolt does not need to take to the streets to have his voice heard by those in powerful positions. But perhaps the residents of Tecoma, for example, have no other avenue open to them. Likewise, one need only whisper the words ‘asylum seekers’ to see that whatever conception of freedom of expression is at play here, it’s not in universal form.

One could be forgiven for asking, gently: whose freedom of speech?

The freedom of speech of the most widely read columnist in Australia: important. The freedom of speech of the most powerless in the community: less important. This inequality is part of the reason the RDA exists in the first place — the RDA is premised on the assumption that we aren’t all on a level playing field when it comes to our ability to speak and be heard.

So it seems this isn’t a debate about absolute nature of free speech itself. If that were the case, there would be much more attention to the nature of the right, and there would be bigger fish to fry than s 18C. Rather, it seems a court said to the guy with one of the biggest public voices in the country, ‘What you did was naughty’. And he didn’t like that. Perhaps then the great irony of the debate is that it really started when a judge’s verdict hurt the feelings of Andrew Bolt.