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The problems with Eatock v Bolt

By Graham Young - posted Monday, 3 October 2011


Viewed from outside Wonderland, the decision in Eatock and Bolt is bizarre. Unless and until there is a successful appeal, or the legislation is repealed or amended, you can breach the Racial Discrimination Act without actually racially discriminating against anyone, or being motivated by racial hatred.

Read the judgement and the convolutions to allow this to happen are obvious and painful. Bromberg J looks at a line of cases, and the way in which the act was negotiated through parliament and concludes that to come within the ambit of the act you must have made a statement for reasons which include race and offended someone of that race, but that the plaintiffs do not have to demonstrate racial hatred.

This is against a plain reading of the words of the act, particularly the applicable parts of Section 18 which has as its heading: "PART IIA- PROHIBITION OF OFFENSIVE BEHAVIOUR BASED ON RACIAL HATRED"

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What is even more concerning is that the judge also determines that despite the plain meaning of what you have said or written it is possible to decide whether you genuinely hold those beliefs or not, and to judge you on the basis of what you are presumed to actually believe, not what you said.

Predictably, because this is Bolt, many are rejoicing and putting in the boot without actually thinking through the consequences to themselves in their occupations or their political agendas.

From the point of view of the left this judgement ought to be viewed as a disaster. The Coalition is odds on to win the next election. If they do, and as a result of this controversy, they will probably have a mandate to dismantle the Racial Discrimination Act. They may even be able to extend that to some of the other instruments of the human rights apparatus.

While the chattering class elites welcome the decision as a blow against racism – which it is not – the blue collar conservatives are likely to hear it as a blow against the right to speak out against corruption in race matters – which it is not.

Blue collar conservatives determine election results, while the cultural elites don't, and the conservatives are likely to be outraged. It's pretty common to hear weary sermonising on worksites and around bars about the hypocrisy of barely-black activists demanding compensation for long past wrongs.

From the Coalition's point of view Eatock et al have handed them a very loud dog whistle which will sound whether they blow on it or not.

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And then there are the problems it creates for those of us in the business of fostering and disseminating debate – the highest responsibility of the fourth estate..

My approach to freedom of speech is the classic liberal one. Speech cannot ever be entirely free, but it must be very substantially free. It cannot be free if it can be regulated for being wrong, or offensive. It can be free if it can be regulated for doing significant damage to reputation or to the rules under which the state operates, or national security.

So I have no problem with defamation laws or laws dealing with things like sedition. And at the moment those laws seem to work pretty well to regulate what is and what isn't permissible as free speech.

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About the Author

Graham Young is chief editor and the publisher of On Line Opinion. He is executive director of the Australian Institute for Progress, an Australian think tank based in Brisbane, and the publisher of On Line Opinion.

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