The Andrew Bolt judgment will throttle any discussion of race and multiculturalism. Previously political correctness ensured that timid fear of offending someone muted discussion. Now PC is legally enforceable.
The Racial Discrimination Act is bad law. It is open to subjective interpretation and judicial activism comes into play in the absence of a jury. In other words, which judge hears the case.
It is widely published that the judge, Mordecai Bromberg, was an ex-Labor candidate, ex-Industrial lawyer, founding President of the Australian Institute of Employment Rights, president of the International Centre for Trade Union Rights, Labor appointed judge. If so, no doubt he put all that behind him.
The absence of a jury is particularly relevant to this quote from the judgment summary;
‘Whether conduct is reasonably likely to offend, insult, humiliate or intimidate a group of people calls for an objective assessment of the likely reaction of those people. I have concluded that the assessment is to be made by reference to an ordinary and reasonable member of the group of people concerned and the values and circumstances of those people. General community standards are relevant but only to an extent.’
So the Act says that if you feel offended by a comment, you can succeed in the judge only Court, never mind if everybody else doesn’t think that it is offensive.
Bromberg found that Bolt was guilty of sloppy journalism. However, if that was significant then it was open for plaintiffs to take defamation proceedings in a proper court.
As Jonathan Holmes of Media Watch points out in online The Drum, if Bolt had his facts right he would still have been in trouble. Under defamation law one defence is fair comment, which does not have to be reasonable or in good faith. But not under the Racial Discrimination Act, must be reasonable and in good faith.
Holmes goes on:
‘On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because "insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice."
And he specifically mentions, not just the wrong facts, but "the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides."
In other words, if you want the protection of section 18D of the act when writing about race in a way that's likely to offend, you need to be polite, not derisive, calm and moderate rather than provocative and inflammatory, and you must eschew 'gratuitous asides'.
If you did all that, of course, you'd be unlikely to offend anyone in the first place.
It creates one particular area of public life where speech is regulated by tests that simply don't apply anywhere else, and in which judges - never, for all their pontifications, friends of free speech - get to do the regulating.
Well said by a journalist sometimes held to have leftish views. What more can one say?
There are two good things to come out of the case so far. One is that Bolt (and others) will research more thoroughly before publication. The second is that a tide of concern will be stirred up which will make the Government think carefully about further muzzling the media after their inquiry into it is completed.