About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, September 29, 2011

Currently reading - Eatock v. Bolt

I'm currently reading this (very long) Federal Court judgment handed down yesterday by Justice Bromberg. It relates to - essentially - a finding of racial vilification by right-wing journalist Andrew Bolt.

Most of my friends despise Andrew Bolt, and I've got to say that I don't have a high opinion of him either. I disagree with almost everything that he says, week by week. However, that is not the issue here. The issues are (1) did his conduct in this case breach the law (even after any statutory defences are taken into account); and (2) irrespective of that, should the law be written in such terms as to make this conduct unlawful?

Although I've entered into some preminary debate about this case with others elsewhere, I want to discuss it more rigorously here. I don't propose to go off half cocked. However, I can't offer a properly considered answer to the questions until I've had a chance to study the entire judgment, which runs to 470 numbered paragraphs (or, apparently 57,000 words - making it the length of a short novel).

The federal law that Bolt was found to have breached (section 18C of the Racial Discrimination Act 1975) seems to be in rather different terms from the state statutes on racial and religious vilification that I'm more familiar with, so that's another reason to be cautious.

However, I must stress that we should not be making up our minds on the basis of whether we like or dislike Andrew Bolt, or on the basis of whether we agree with his views in the relevant op.ed pieces that he wrote. Even if we find his views in those specific publications wrong or nasty or ugly, it doesn't follow that they should fall outside the protection of freedom of speech. (Conversely, even if you agree with them there is more work to be done to show either that the case has been wrongly decided or that the law has been framed too broadly and should not catch speech of this kind.)

So, I'll be returning to this in the coming few days. I do have a pretty good sense of what the case is all about, and one thing that I can say with some confidence is that the outcome will be appealed - though that is some time away because no orders have yet been made by the court. I don't believe an appeal will be possible until orders have been issued. Whether any appeal is likely to succeed is another matter. Prima facie, though, it appears to me that Bolt has a strong argument that what he said in the specific op.eds fell under one or more of the defences in the legislation. That being so, there is a real possibility that this case will be overturned on appeal.

Whatever discussion we enter into should not be about whether we agree with Bolt's views, whether we consider them wrong or nasty or ugly, or even whether they appear to be defamatory (he was not sued for defamation, the elements of which are rather different from those relating to racial vilification, at least not in these proceedings), let alone what we think of Bolt generally or of other things that he has said. The issues that I'm interested in relate to the correct application of the law as it stands, and, secondly, how much the enactment of such laws should be controlled by ethico-legal concepts such as freedom of speech.


March Hare said...

Just read the "White is the new black" article. Can't see anything in it that would warrant a lawsuit.

Russell Blackford said...

Some of the things he said about individuals were (apparently) false, as well as damaging to their good reputations, so he may have been vulnerable, prima facie, to a suit for libel (which this wasn't, though).

March Hare said...

He insinuated that they chose Aboriginal as their race as a career move despite having tenuous associations with the native Australians.

He may have got the family backstory wrong, and his words were no doubt coming from a dark place, but I didn't read anything particularly libellous - although this may not have been the story that they prosecuted him for.

Since they didn't go down the libel route there is a much lower bar to clear for prosecution, kind of strange given the 'offence' is a much more serious one. Can anyone explain that to me?

I await your summary of the ruling since my patience, interest and knowledge of Australian law is inadequate to read the thing for myself, let alone understand it.