By JR on Saturday, October 01, 2011
Sometimes it takes an injustice to beget justice. So it may be with Andrew Bolt’s infringement of the Commonwealth Racial Discrimination Act 1975, as a result of articles he wrote in 2009 suggesting that some people claim ‘aboriginality’ for personal gain (a logical certainty at the very least).
Probably not many Australians knew the extent to which courts and government curtail freedom of expression. They do now.
Snuck into the Act by the Keating government in 1995, Section 18C outlaws expressing views in public that encompass ‘race’ and offend people of a particular ‘race.’ Australian courts are now spending valuable public resources inquiring into whether and to what extent people have been offended.
If that is not gratuitous and silly enough, Judge Bromberg’s interpretation appears sorely wanting. Section 18D allows exemptions for ‘fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.’
Judge Bromberg, a former Labor party pre-selection contender, ignored that part because ‘of the manner in which the articles were written [which included] inflammatory and provocative language’! It is not for the judge to pass judgment on the quality or tenor of a particular communication when such criteria are absent from the relevant law.
Moreover, he ignored the title of the relevant sections of the Act, which explicitly refer to ‘behaviour based on racial hatred.’
Bolt’s articles patently had nothing to do with racial hatred. Nevertheless, the judge believed the term had a ‘broader field of operation ... infused by the values of human dignity and equality.’ That’s a lovely sentiment, but it’s not what the law says.
It will be surprising if the High Court does not strike down this verdict.
This outcome is also a reminder of the inconsistency and hypocrisy such laws engender. It is quite OK, for instance, for Larissa Behrendt (one of the complainants in the case and NSW Australian of the Year) to claim in public that fellow Aborigine Bess Price is more offensive than a man having sex with a horse because of Price’s views on Aboriginal policy. But it is not OK for Bolt to highlight the perverse incentives created by well-meaning laws.
More generally, using laws to shape people’s morals is ineffective and wasteful. To paraphrase former High Court Justice Harry Gibbs, if we reach a point where we need to codify our morals, then there’s probably not much worth codifying.