By Berg, Chris
Review - Institute of Public Affairs , Vol. 63, No. 4
The Andrew Bolt case is just the latest example of the worrying campaign against free expression, says Chris Berg.
In the first editorial of the earliest independent newspaper The Australian (no relation to the current iteration), barrister turned media proprietor Robert Wardell wrote that:
'A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate such [individual] influence, frustrate the designs of tyranny, and restrain the arm of oppression.'
Contrast this with what Justice Mordecai Bromberg wrote in his September decision in the case of Pat Eatock v Andrew Bolt and the Herald and Weekly Times: 'the public deserve to be protected against irresponsible journalism'.
Protected by whom? And who decides what constitutes 'irresponsible'? The decision in the Bolt case, both the way it was made and the way it was received by those hostile to freedom of expression, is deeply concerning.
The case is doubly concerning because it is just one of many new challenges to freedom of speech. The last six months of Australian politics have underlined that freedom of speech is under threat. Greens Leader Bob Brown has called for licensing of newspapers, or, failing that, for journalists to be licensed individually Following the Greens' lead, the Gillard government has initiated a media inquiry with specific remit to increase regulatory oversight over newspaper ethics'- and largely because it is annoyed by the coverage it receives in News Limited papers. Various commentators now openly talk about the government forcing 'balance' on controversial political views like climate change.
For many on the left, it seems finding exceptions to freedom of speech is more important than defending the principle.
Freedom of speech is one of our great bulwarks against excessive state power. It is one of the basic individual liberties. Free expression is an essential human right. Considering how close to the heart freedom of speech is to liberty and liberalism, it is absolutely vital that threats against it are countered.
In September, Justice Mordecai Bromberg found that the columnist Andrew Bolt (who was profiled in the January edition of the IPA Review) had violated Section 18C of the Federal Racial Discrimination Act, which makes it unlawful to, offend, insult, humiliate or intimidate' on the basis of race, skin colour, or national or ethnic origin. The offending columns in question were published in 2009, and discussed the light-skinned individuals with part Aboriginal backgrounds who, Bolt claimed, had chosen to identify as indigenous out of a range of possible racial identities.
Justice Bromberg recognized that Aboriginality, and race more generally, is a social construct. Australian universities offer entire subjects in Aboriginal identity. Nevertheless, Bromberg found that it was, 'reasonably likely that the ordinary person within this group would have been offended and insulted by her perception that [Bolt's columns] were challenging the legitimacy of her identity and that of others like her.'
Certainly, Bolt made some errors, inaccurately tracing the lineage of some of the individuals in question. But they did not sue Bolt for defamation- an ancient common law right and limit to freedom of speech intended to redress reputation damage. They sued under an Act that both had different standards by which to judge the harm and, which uniquely related to offences held by a group.
Justice Bromberg used the existence of Bolt's errors and a (necessarily subjective) assessment of the 'inflammatory language' in some of those columns to bypass Section 18D of the Act- which offers some limited exceptions to 18C, including whether the comment is made in the public interest and in good faith. That legal judgment was his to make. But the Bromberg decision goes much further, explicitly endorsing not only the language and shape of the Act, but its intent:
In seeking to promote tolerance and protect against intolerance in a multicultural society, the [Racial Discrimination Act] must be taken to include in its objective tolerance for and acceptance of racial and ethnic diversity. …