Now that Bolt has lost is the law itself on trial?

From within the confines of their chosen field, many within the legal profession often look on in askance at the mainstream media whenever the latter ventures to play with the delicately crafted rules that the former considers their sole dominion.

This is a folly.

A failure to engage in the public debate leaves uninformed opinions unchallenged. It allows writers who have ignored the nuance and detail of rules and cases to misrepresent the true state of the law. What is more as such writers form part of the mainstream media their errors are presented as truth to an audience that literally numbers in the millions.

The plaintiffs in the Bolt case took a powerful figure from the mainstream media and brought him to account in the Federal Court. They took issue with the untruths that were written about them and the clear imputation in Bolt's articles that they were too 'white' to be Aboriginals.

The aftermath has been fascinating. There is a culture clash going on here but it is not just between the left wing and right wing cultural warriors who use the troubled field of Indigenous affairs as their stomping ground. It is between the legal profession, with its concepts, rules and principles as represented by Justice Bromberg's judgment, and the mainstream media, with its implacable need to package and sell information often in a fairly sensational manner.

There can be no denying that the racial vilification laws contained in Part IIA of the Racial Discrimination Act reduce free speech. This is the very purpose of such laws. They balance the right to equality by limiting racist speech against the need for free speech within a democracy. It is a balancing act that relies upon proportionality. To understand the true nature of the balance you must understand the relationship between section 18C and 18D. If the twin conditions of reasonableness and good faith are met then the former is subservient to the latter.

We must also understand that section 18C sets out a harm threshold that is not dependent simply upon whether someone has been offended. That actual offence has happened is not determinative or even required under section 18C. The test is whether the speech act in question is reasonably likely to offend, insult, humiliate or intimidate. This puts the emphasis upon the speech act itself and the purposes for which it was employed. So in actual fact a person cannot just claim to have been offended and suggest that the harm threshold has been satisfied.

Perhaps it is a subtle concept. But, misstating it gives an impression that section 18C intrudes further into speech than it really does. Many right wing commentators have made much of the fact that free speech should support the right to offend. For example, James Paterson writing in The Drum stated, "the Racial Discrimination Act led a court to elevate the right not to be offended above the right to freedom of speech." Paterson's article also makes reference to the Government "policing opinions" and seeking "the power to decide what can be discussed."

This is simply wrong. Part IIA, vests the right of action in individuals but rests the question of whether vilification has occurred upon the contested speech itself. The Government does not police opinions. Other than having passed the laws, the Parliament, has left the use of Part IIA of the RDA to private individuals. The same is true of the defamation laws.

Some commentators have argued that Bolt's writings did not constitute 'hate'. However, racial vilification is not confined to racial hatred. If you consider that one of the primary purposes of speech is to persuade, then a compelling message that might do significant damage to the reputation of a group or an individual might be conveyed in a manner other than that which is hateful. Accordingly, racial vilification, which is concerned with the type of injury to esteem and standing with which defamation is concerned, encompasses more than just 'hate'. Nevertheless, more than mere dislike or minor insults are required to reach the level of racial vilification.

Some of the commentators appear also to not fully appreciate the concept that is at play. Writing in The Australian, both Chris Kenny and Gary Johns have used the term "cultural identity" in relation to the Bolt case. Yet, cultural identity was not in dispute. At issue was the matter of 'racial identity.' The conflation of race and culture is a curious slip in the context of the Bolt case. These are two separate concepts.

As a legal concept, racial vilification is in its infancy. These laws have only been on the books since 1995 and only a moderate amount of jurisprudence has emerged under them. What is more, these laws were crafted before the internet era really took off and there are certainly some unaddressed questions within this area of the law.