Court takes stand on decency in Bolt Racial Discrimination Case

The Federal Court recently found Andrew Bolt, one of Australia’s shock jocks of the written word, guilty of violating the Racial Discrimination Act.

As the court’s summary of the issues in Eatock v Bolt shows, violations of the Racial Discrimination Act are difficult to prove. Even where successful, the consequences for offenders rarely amount to much. In this case there were no damages awarded, no apologies or gag orders. Instead, the paper had to twice print a correction notice and refrain from publishing such material again.

Reams of illogical and self-serving rubbish has been written since the case was brought. The upshot of the bleating is that in a free society, speech cannot be restricted in any way. Some commentators have even painted themselves as noble for defending the rights of a man whose political views they abhor and who may have baselessly attacked them in print. They have attacked those who’ve sought to use the law to defend their rights and the Australian Parliament for creating such rights.

You can’t shout fire in a crowded cinema or use speech to incite violence. Australia also has defamation laws that demand those exercising free speech rights accept the responsibility of getting their facts right.

Few decrying the Racial Discrimination Act are up in arms about any of these long-standing speech restrictions. This suggests their problem isn’t with limits per se, but rather those in the act.

To oppose additional limits without knowing what they are, what they would do and how they are justified is silly. This leaves us with specific objections to the act.

It renders unlawful public acts that are ‘'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’‘ a person or group of people and is done ’‘because of the race, colour, national or ethnic origin’‘ of the person or the group.

For a case to succeed, an objective assessment of how an ordinary and reasonable member of the racial group in question would respond to the utterances must be presented, as must evidence that goes to the motives of the journalist or publisher (in the Bolt case, it had to be demonstrated that the offending text was ‘'plainly calculated to convey a message about’‘ light-skinned Aborigines). The assertion by Bolt and his paper that he wrote what he did reasonably and in good faith must also be addressed.

None of this is easy, nor should it be. As Judge Bromberg said, the act seeks to balance objectives of promoting acceptance of diversity with the need to protect ‘'justifiable freedom of expression’‘.

I struggle to see anything but good arising from this decision. Perhaps it will ensure that next time important discussions of race are had, someone will get the facts right and ensure the debate is conducted in good faith. The implication of some media practitioners' defence of Bolt is that they see such basic conditions as optional – a claim that suggests a lack of journalistic ethics.

Perhaps if the profession had sanctioned Bolt years ago, this case may never have happened.

Maybe because the offending columns would never have been published or because the complainants wouldn’t have felt basic standards of decency and accountability had been thrown to the wind, and they’d have to seek redress on their own.

Publication history

Court Takes Bolted-on Stance for Decency  The Sunday Sun-Herald (Sydney)