A Peculiarly Australian Cause Celebre
Protecting freedom of speech – supporting an open media
We will protect the media from over-regulation; support an open and accountable media; and protect the freedom of speech to strengthen our vibrant democracy…
- We will support freedom of speech, particularly in relation to anti-discrimination legislation. Prohibitions on inciting racial hatred or intimidation of particular groups should be focused on offences of incitement and causing fear but not a prohibition on causing offence.
At the April 4 IPA shindig where Rupert Murdoch preached his sermon on the morality of the market, Abbott made the promise quite explicit; Section 18C of the Racial Discrimination Act (S18C) would be repealed and once more Andy will be free to write whatever he likes, about whomever he likes, regardless of race, creed, colour or a conspicuous and unseemly lack thereof.
The cause celebre which has inspired this passion for freedom of speech – especially on Andrew Bolt’s part – is that Bolt was ‘convicted’ by Justice Mordecai Bromberg in the Federal Court of having ‘committed’ an unlawful act under S18C. As causes celebre go it’s a peculiarly Australian one, as shonky as a Liberal Commission of Audit reportii. Bolt is certainly no Alfred Dreyfus He’s no John Proctor either – if you want a literary archetype, Bolt’s more your Archie Costello.
L’Affaire Bolt is the product of misunderstanding, misrepresentation and self-aggrandisement. John Birmingham – no fan of Bolt – provides a good example of the widespread misunderstanding of the case in this article published shortly after Justice Bromberg made his judgement in the case:
…The conviction of Andrew Bolt under racial vilification laws. Everyone assumed, rightly, I’d be champing at the bit to hook into the issue of m’unlearned colleague. But probably not in the way you’d expect.
I don’t see the conviction of Bolt as a triumph.
Because Bolt is the sort of oxygen thief I revel in vilifying…
…Bringing the full force of the state to bear on the likes of Bolt does not change his opinions or the opinions of the cretins who cheer him on. Decisions like last week’s simply feed into their persecution complexes…
In fact, the full force of the state wasn’t brought to bear on Bolt – the action against Bolt was a civil action, brought by Pat Eatock – not the executive government or any arm of Federal law enforcement. The various media reports that Bolt had been found ‘guilty’ of racial vilification and the commentary based on such reporting – such as Birmingham’s – bought into the persecution complexes of Bolt and his supporters who rallied to him like a gaggle of geese flocking to the war-honk of their alpha gander.
The hearing before Bromberg J was not a criminal trial and so didn’t warrant news coverage – or partisan commentary – using terms such as ‘convicted’, ‘guilty’ and so on. The only criminal offences created by the Racial Discrimination Act – in part IV – relate to the administration of the Act. S27 defines a range of offences to protect complainants under the act from harassment, intimidation, and coercion; S27F makes it an offence for Human Rights Commissioners and their staff to divulge private information about members of the public. The status of all the other unlawful acts created by the RDA is spelt out in S26 of the Act:
Unlawful acts not offences unless expressly so provided
Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Part II or Part IIA.
And that’s it – the whole of S26 of the act. While Bolt’s actions were deemed unlawful under S18C of the act, he committed no criminal offence.
The effect of S18C (according to some seriously expert legal advice I obtained on 27 May) is to create a statutory tort. Which is what landed Bolt in the Federal Court – not government suppression of his right to free speech but action by a private citizen seeking legal redress for a breach of civil duty.
What Bolt is defending, with the complicity of his allies isn’t freedom of speech; it’s a set of special, personal freedoms described very accurately by John Birmingham:
His freedom to insult. His freedom to slander. His freedom to wound and belittle. His freedom to do all this in the face of facts and truths he cannot be bothered getting off his soft, white, privileged arse to verify in the first placeiii.
Not your freedom of speech, or my freedom of speech; not our freedom of speech but Andrew Bolt’s freedom to slander others in the secure knowledge that, at worst, he might get a bit of a ticking off if he lands his employer with a defamation claim that can’t be settled out of the legal department’s petty cash tin. That’s a special kind of freedom – you’ll find it listed in the dictionary as privilege – a right, advantage, or immunity belonging to a person, class or office.
Deprived of that particular privilege, Bolt has cultivated an air of martyrdom, with frequent posts on his blog about a certain subject he’d like to discuss but can’t, because of legal advice. My guessiv is that the legal advice comes from the most junior member of The Hun’s legal department who’s been given the thankless task of doing for Andrew what Andrew ought to be capable of doing for himself with the help of a little common decency and personal integrity.
Bolt’s complaints remind me of nothing so much as the peevish whining of an adolescent boy whose 3G mobile phone has been confiscated after his parents were informed that he’d been posting malicious rumours about his schoolmates on Facebook. A behaviour that’s the subject of another promise in the Liberal Party manifesto:
Delivering better cyber safety for families
We will work together with social media operators, schools, parents and children to tackle cyber bullying and other harmful material and behaviour targeted at children online.
It’s not a promise that amounts to much more than lip service but it’s a clear indication of
the a familiar old double standard that’s in play here. It’s not acceptable for the kiddies to use the internet to bully their schoolmates but it is acceptable for a News Limited journalist to use the methods of the cyberbully on his political enemies.
The Liberal Party’s manifesto, Tony Abbott’s promise to Bolt, his employer Rupert Murdoch and his patron Gina Rinehart in his IPA speech and the hectoring conduct of Shadow Attorney General, Senator George Brandis, towards Professor Gillian Triggs, President of the Human Rights Commission, in Senate Estimates are all signs of the kind of governance we can expect if Tony Abbott succeeds in selling himself as the very model of modern Aussie Prime Minister. It’s an ugly prospect.
Postscript: it’s very unlikely, in my opinion, that any attempt to change to Racial Discrimination Act to make racial vilification of the kind practiced by Bolt an actual criminal offence would survive a High Court challenge.
iThe PDF version of the Liberal’s election manifesto I downloaded off their site a few weeks ago was created as a very secure document indeed. The security settings prohibit copying the document’s contents and pasting them into another application. Much as I’m disinclined to embrace conspiracy theories that’s just too damn weird to accept as a cock-up. It suggests that the Libs know just how ridiculous their policy platform is and have done all they can to protect it from on-line ridicule.
iiPlease refrain from commenting on the ‘scare quotes’ until you’ve finished reading the next eight paragraphs.
iiiI figure this is safe to quote since it must have been ‘legalled’ by Fairfax before it was published.
ivLet’s be quite clear – this is not in any way an assertion of fact. It’s pure speculation and not entirely unreasonable.
Appendix: A Bleg This post is attracting a lot of traffic – enough to cause problems for the Ozblogistan server and interfere with other Ozblogistan sites. If your blog isn’t hosted at Ozblogistan please feel free to syndicate this post under a Creative Commons Licence. It might lift enough of the load so I can stop worrying about any the mutterings of ‘Bloody Gummo – let him onto your blog and what does he do – just pulls down the bloody server, that’s all!’
Oops! Bad brain day with 100% chance of early afternoon loss of perspective. Outlook for tomorrow – improved.