THEY have lined up in an utterly predictable way in the week since the Federal Court brought down its judgment that Andrew Bolt breached the Racial Discrimination Act. 
The Murdoch punditocracy and the Federal Opposition to a man and a woman declared it to be an outrageous infringement of freedom of speech. The left, including Fairfax’s usually sound and always funny Mike Carlton, declared it a victory against racism and bigoted journalism.
The queue of those who appeared to have read the judgment seems to be a much shorter one.
Whatever the legal position, in the past week we have seen some practical fallout which suggests the law is not working.
For a start, many, many more people appear to have read the Bolt articles than would otherwise have been the case.
Further, the case has made him a free-speech martyr.
And it has given succour to a “cheer-squad” of crypto-racists who now have further “proof” that the system is geared to providing for the “Aboriginal industry”.
The law has been quite self-defeating. Parliament should take a good look at it, especially comparing it with the NSW equivalent provisions.
There is nothing like the strict enforcing of a faulty law to get it changed.
Bolt’s articles suggest that a dozen named Aborigines with fairly pale skin are abusing their identification as Aborigines to scoop up various prizes, government subsidies and the like which should have been reserved for “genuine” (very black) Aborigines.
It is an ill-informed, but, alas, popular misconception (pardon the pun). Put crudely, in 1788 all Aborigines were very black. Whites arrived, and with them, rape, seduction, enticement and misrepresentation by white males. The result was pregnancies and, typically, mum doing the bringing up of the “half-caste” who was paler but still brought up Aboriginal.
In subsequent generations, more rape, seduction, enticement and misrepresentation by white males resulted in more pregnancies (including those of half- and quarter-caste women) and more off-spring being brought up by Aboriginal mothers.
It did not take very many generations before quite a few fairly white people were brought up by Aboriginal mothers and identified themselves as Aborigines.
So Bolt got it wrong. But that is not the issue.
Under the Racial Discrimination Act, truth is not the test. The test is offensiveness, insult, humiliation or intimidation.
If you call someone a “white bastard” it does not matter if he is white and his parents unmarried. What matters is would making the statement be “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”.
That test of unlawfulness is fairly easy to establish. It is fairly easy to offend someone – even on the test held in this case that the making of the statement must be likely to offend a “reasonable member of that group”, not just anyone who might take any slight offence.
People were offended by Bolt’s statements and, the judge held, reasonable members of that group could have been offended.
But there is a defence. Its aim is to balance the interests of free speech. Artistic and scientific work is excluded and the media gets an exemption for reporting and commenting on events and for original statements like those of Bolt’s.
Under the Act, Bolt had to show his statements were “said reasonably and in good faith . . . for any other genuine purpose in the public interest”.
The judge said it would be in the public interest to discuss matters of racial self-identification, but he held that Bolt’s statement had not been said “reasonably” or “in good faith” because his articles had not been written with care and diligence, and they contained inaccuracies and provocative language.
But if care, diligence, accuracy, unprovocative language, good faith and reasonableness are to be the ingredients of the defence, the defence is worthless. This is because any accurate, unprovocative, carefully and diligently written piece would not offend anyone in the first place, let alone insult, humiliate or intimidate them.
Surely the defence has got to mean something. This might be an appeal point.
But the law aside, any protection for free speech must be to protect the speech we don’t like and opinions which are unreasonable, provocative and wrong-headed.
The judge directed the parties to confer about relief. Recognising that Bolt would not apologise he said he would be prepared to order the Herald-Sun to publish an apology adjacent to Bolt’s regular column and that it not republish the Bolt articles. And he said he would be prepared to make a declaration that Bolt contravened the Racial Discrimination Act.
Again, the weakness of the Commonwealth law is revealed. It makes it too easy for a complainant to win, but having won the law provides virtually no remedy – just for the complainant to feel good that the publisher is to be hit over the wrist with a wet lettuce leaf.
The NSW law is far superior. It recognises the need to criminalise racial vilification, and provides penalties. But proof of the vilification is put at a higher level.
The NSW Act requires incitement of “hatred towards, serious contempt for, or severe ridicule of” a person or a group on the ground of race.
It does not permit the mere taking of offence to be the basis of unlawfulness.
Its defence provision, however, is similar to the Commonwealth and might benefit from the removal of the self-defeating “reasonable” requirement.
In all, it would be better to allow offensive material like Bolt’s to be published so that it could be tested, ridiculed and rebutted. That would not mean that open-slather racism would be permitted. The NSW law captures the mischief better – incitement to racial hatred based on an objective test, not, as under Commonwealth law on whether a reasonable member of a group might be offended.
Individuals who take offence should use the law of defamation or media-complaints procedures (which admittedly need a few teeth, but that’s another story).
CRISPIN HULL
This article first appeared in The Canberra Times on 7 October 2011.