The Bolt saga detracts from RDA reform

If I understand this correctly, Andrew Bolt was offended by what Marcia Langton said about him on Q & A. Andrew Bolt was so offended that he did not go to work on the Tuesday after the show. Bolt is a journalist and presumably he can work from home, but let's not quibble on the details. His feelings were hurt. He demanded an apology. Marcia Langton apologised. So did the ABC.

The melodrama got slightly more complicated when Bolt suggested he was unhappy with the ABC's apology and Langton helpfully offered a 19-page 'clarification' of her apology.

The plaintiffs in Eatock v Bolt were also after an apology. It is a shame that in the absence of a gracious apology that they had to sue to get court-ordered corrective notice.

Still, it's great to see 'free speech' in action.

As amusing as the Bolt-Langton saga has been, it really is a sideshow that distracts from the real issues around free speech.

There are two key issues that are currently in play. The first is whether it is worthwhile for our society to remove any legal restrictions on racist hate speech. The second concerns the nature of any amendments to the Part IIA scheme in the Racial Discrimination Act.

If section 18C is repealed then the victims of racist hate speech will be without legal redress.

It is important to understand the true purpose of the RDA scheme. Section 18C does not stop racism, any more than criminal laws stop crime, but it does provide a remedy in certain situations. The laws have proved useful in instances of Holocaust denial speech and direct racist verbal assaults.

At present the existence of the laws protects the victims of racist abuse. Removing the laws will tacitly shift the protection towards those who engage in racist hate speech.

Yet, if we consider the two parties most likely to be affected by any repeal of the current laws, namely, racists and their victims, it is easy to see who is more deserving of legal protection.

In all the successful cases under the RDA the victims have been law-abiding citizens who have been minding their own business. The perpetrators have in some form or another subjected them to unwarranted racist hate speech.

The RDA remains relevant because there continues to be regular reports of serious racial abuse. The somewhat recent attack by two young women on an elderly gentleman on a Queensland bus is just one such case.

It is worth considering the type of message that any repeal would send to the attackers and to people like them. Would we then see situations where such people feel that they are at liberty to subject others to direct racist verbal assaults? Would they feel that they can say whatever they want, provided that their verbal assault does not stray into a physical assault?

The racist behaviour of the two young women in Queensland, and those like them, is aberrant and concerning. People who engage in direct racist verbal assaults are clearly less deserving of political and legal support because by their actions they deliberately seek to harm others. These people are maliciously divisive. Society does not gain anything from racist attacks. Racist verbal assaults offer nothing to the development of our liberal democracy. They provide only an outlet for maladjusted individuals to abuse others.

On the other side, we would see law-abiding citizens suffering a diminution of their liberty if the RDA laws were repealed. These people would bear the cost and burden of unbridled 'free speech'.

There does seem to be very little sense in freeing up one group of people to go out and deliberately harm another group of people and then saying that this somehow supports democracy when the end result is that the well-being and liberty of the latter group is greatly circumscribed.

To its credit the Coalition now seems to have accepted this point. The Attorney-General's language has now shifted to suggesting a repeal of 18C 'in its current form'. The Australian has suggested that this might mean excising the terms 'offend, insult and humiliate' from 18C.

That would leave 'intimidate' as the relevant threshold test in 18C. In effect, this would mean that direct racist verbal assaults would be captured by s 18C.

Whether this would also capture Holocaust denial speech and other similar instances of non-direct hate speech is debatable. At the very least Holocaust denial speech should be proscribed even if other forms of non-direct racism are comparatively less regulated.

It was of course Andrew Bolt and his error-ridden articles that kicked off the debate over section 18C of the Racial Discrimination Act. While they may have been distasteful and poorly written, Bolt's articles did not contain extreme racist views. Nor did he go and directly racially abuse anyone. He very carelessly put together two articles that offended the racial sensitivities of a number of people. In doing so he fell afoul of section 18C.

However, section 18C cannot be detached from 18D. They work together within a defined statutory scheme. That means that speech that might be 'saved' by the 18D exemption is speech that belongs within our democracy, even if it is slightly offensive.

The errors of fact that Bolt made meant that he failed to get the benefit of the defence set out in section 18D. Had he not made those errors he might well have been able to avoid liability. Accordingly, Bolt's views would have been publicly debated, as they have been over the past few years, with little ill effect to our society.

Whether it is worth amending the laws simply to protect Andrew Bolt is doubtful. There has been much speculation by Langton and others as to why Bolt displays a rather undue interest in lighter-skinned Aboriginals. There has been much criticism of Bolt and his views, and some comments offered in his defence. Yet, if you consider how the Bolt-Langton saga has played out in the last week, it does seem that the proper place for the exchange of views in these matters is in the media rather than the Federal Court. The more serious racist matters must remain the business of the courts.