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

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.