The problems with Eatock v Bolt

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 Unless and until there is a successful appeal, or the legislation is repealed or amended, you can breach the Racial Discrimination Act without actually racially discriminating against anyone, or being motivated by racial hatred.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"

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.

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.

What this case does is to create what you might call "affirmative action" defamation law which is available to minorities (or perhaps majorities as well if someone who is "white" whatever that might mean wants to bring a test case) and operates on the basis not of demonstrating damage to a person's reputation but offense to them or other members of their group.

This much lower standard of proof doesn't make it impossible to discuss matters pertaining to race, but it makes it much more difficult, particularly for those who are less skilled in research and logical analysis and for those who publish them.

In evidence I'd advance this thread that I started on the On Line Opinion forum asking whether we can discuss matters of race on the site anymore. My concern is not so much that it is impossible, but that the resources that I would have to bring to bear to fact check, and to double-guess what might be the "hidden" motive of someone for saying something might mean it is not worth being vicariously liable for the discussion.

It is obvious from the thread that only the most diligent of the commenters had actually read the judgement, and that without legal training many just fell back on their prejudices.

When you apply complaint moderation as we do, you rely to a certain extent on the intelligence and skill of commenters not to break laws in the first place, or to notify you if they do see a breach by another.

My experience says that rules of defamation are sufficiently commonsense that you will have a good margin of safety. But this new form of defamation is not commonsense and commenters are unlikely to understand the issues.

There are a couple of examples in the thread where matters of race arise which might come under the new offence. In one case I raise Larissa Behrendt's testimony to the court and suggest that it might have been shaded to suit her case. This is something to which the good professor, who is a solicitor admitted to the supreme court, could quite clearly and legitimately take offence. As a servant of the court it would be a very serious matter if she had misled it.

In my case however, I referenced the judge's account of Behrendt's testimony (see paras 117 to 131) and an interview she gave to the Sydney Morning Herald with virtually no additional comment. I'm pretty confident that this does not offend the act.

However, I had less confidence in others and had to demand supporting information for claims made by others. Later in the thread "Antiseptic" makes this statement:

At the risk of opening still another can of worms, I have to wonder whether the Judge's own religio-ethnic heritage might have played a part in his judgement. Some parts of the Jewish community have become very adept at claiming offence to silence opposition.

And then "Jay of Melbourne" says:

Bolt is an avowed Zionist and we can presume from Mr Bromberg's associations with Zionist groups, such as Chabad that he shares that viewpoint.

Bolt's pro Zionist stance goes beyond the political, he's publicly suggested that in order to better serve the interests of Israel Jewish Australians might want to reconsider their support for Racial and Religious tolerance laws.

What Bolt was saying in effect was that in order for non Jewish Zionists to show effective support for the Jewish state they needed a full range of expression, to be "let off the leash" to deal with Muslims, Leftists and other undesirable viewpoints in order that Jews might be spared any backlash or other indignity.

Both of these comments would come under the racial discrimination act, because they mention race. That is all it requires. In Jay's comment, if he had stopped at the first paragraph and only mentioned Zionism, it probably wouldn't have, as Zionist is not a racial term, but as soon as he uses "Jewish" it does. (Unless you argue that "Jewish" refers to religion rather than race, in which case it wouldn't, but I think that is too long a bow).

So in both these cases I now need to assure myself that the commenters have done their research, and aren't just spouting unsupported opinions, but I also have to determine whether they really mean what they say. In the case of Jay this could be quite difficult. He's in a minority of one on the site, but he's a segregationist and believes that races shouldn't mix. So even though he can back-up his assertion that Bromberg has been associated with Chabad, I'm not sure that this is enough. I may need to try to determine what a judge might think, given his past utterances, he is really saying.

So the upshot of this is that I will be much less enthusiastic about publishing any articles that deal with race, not so much because of the articles, but because of the difficulty in actually allowing discussion on them.

I've deliberately chosen a passage where two commenters are discussing Israeli matters because while it is fashionable for many on the left to stigmatise any non-PC discussion relating to aboriginal identity and policy, it is also fashionable to be pro-Palestinian.

Now, because of Eatock v Bolt, I'm going to have to look more closely at work by Antony Loewenstein, for example, not just to check Antony's work, but to consider what sort of discussion might arise from it. And on the other side of the argument I'm going to have to be more careful about David Singer.

In the end it's going to lead to a lot less legitimate discussion and fewer opportunities to change the course of policy.

This is no time for journalists or those in public debate to be rejoicing in the martyrdom of Andrew Bolt. It's a time to be actually reading the case material and then combing our archives and records to ensure that in any of the matters we do not offend.

Then we might all have a better appreciation of the threat that the judgement poses to free speech in any matter which might pertain to race, and hence the threat that it poses to a proper functioning democratic society.