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.

For example, where interactive websites are concerned, why should a website such as Online Opinion bear liability for the racist remarks made by a forum user where the website does not have adequate resources to monitor every thread and has not been made aware of offensive remarks? It would be an injustice to hold a website liable where it has not had a reasonable opportunity to examine and remove offensive remarks.

There have been some curious decisions under Part IIA of the RDA. In one case racist insults directed at a white prison officer was held by a Federal Magistrate to not constitute vilification.

One would hope that this was an error of law. Nothing in the text of Part IIA compelled this finding by the Federal Magistrate. It is profoundly contradictory for laws which are designed to provide redress for racial vilification to deny protection to any race. Either we are all equal or we are not. Anything other than the former is intolerable.

There is a great significance which must attach to the youth of racial vilification laws. Traditionally, the doctrines of the common law had been developed over centuries in the courts of England, Australia and other Commonwealth jurisdictions. This has allowed deficiencies to be remedied over time by either statute or judicial innovation.

Part IIA has not yet had the time to go through this process. Yet, abandoning it now would be to do an injustice to the greater good that it serves and to ignore the occasions on which it has delivered real justice.

Part IIA has stood up to Holocaust denial speech. It has come to the aid of an Aboriginal woman who suffered a series of racist verbal assaults from an intransigent neighbour. It has stopped a decidedly odd woman from distributing Holocaust denial material in Tasmania. Her activities included placing anti-Semitic material in the mailboxes of elderly Jewish residents.

It has now told the mainstream media that you can't exploit prejudice for profit whilst getting your facts wrong at the same time.

The intrusion on free speech is no more devastating than when the Trade Practices laws take issue with false advertising.

Despite the hysteria from the feckless right controversial topics can still be discussed. That one must express oneself reasonably and act in good faith is not a heavy burden. Unless, of course, your business model depends upon being unreasonable and playing off misconceptions.

Some right wing commentators have played up the relevance of the Bolt decision to Indigenous affairs. Yet the Bolt decision is concerned with solid legal principles and not arguments between the left and the right. The Bolt decision and the RDA are matters of black letter law. The troubled field of Indigenous affairs is a matter of social policy.

As a discipline the law is aware of the big picture but it is not guided by it. That the Bolt case has relevance in Indigenous affairs and the culture wars does not weigh upon the application of the law. Nor should it control the development of these laws. That Part IIA might have become an unwitting foot soldier in the culture wars between the left and the right does not do the law itself a disservice.

On a technical level racial vilification laws are akin to defamation laws. Drawing imputations from speech to determine whether a legally recognisable injury has been occasioned is not a precise art. Determining whether a writer has acted 'reasonably' and in 'good faith' requires having regard to their motives, their expressions and any reasonably available alternatives to their chosen words. These are all necessary steps and processes by which the law can balance a person's right to not be subjected to racial vilification on the one hand against the needs of free speech in a democracy on the other.

At paragraph 19 of Justice Bromberg's decision his Honour explains the reasons and principles by which imputations are drawn from impugned speech. These principles are the same in racial vilification law as they are in defamation law.

Regrettably, many of the pro-free speech commentators appear not to have paid heed to these principles. For example, writing in The Australian, Chris Kenny described Justice Bromberg's consideration of Bolt's words as 'Orwellian'. And with that a sound body of considered jurisprudence is dispatched!

If you consider that taking care to avoid errors is crucial to acting reasonably and in good faith on controversial matters then the factual errors in Bolt's article are of great import. Some of the pro-free speech commentators have chosen to overlook or forgive these errors. Kenny suggests that "what Bromberg cites as factual error is more a matter of emphasis." Forgive me, but how is getting the race of Larissa Behrendt's father wrong a matter of 'emphasis'?

From the point of view of an academic who researches and writes in this field of the law some of the pro-free speech articles have been amusing. Had they been student assignments there would scarcely have been enough red ink in the land to do them justice.

Having campaigned against the plaintiffs the culture warriors of the right appear to have now turned their eyes to the laws that brought Andrew Bolt undone. The next chapter in the Bolt saga is yet to be written.