Page 820 - Week 03 - Wednesday, 9 April 2014
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is an exaggeration for George Brandis and others to suggest that the laws prevent us from offending anyone’s sensibilities.
The court also made it clear that it is not unlawful to publish articles that deal with racial identity or challenge the genuineness of someone’s racial identity. The problem was specifically the way in which Andrew Bolt wrote the articles. The court found that Andrew Bolt’s articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language.
It is also important to note that Andrew Bolt was not prosecuted. This is not a criminal law as some people have suggested. All that happens is the court issues a statement that the conduct is unlawful, and it can make orders such as the removal of material from websites or orders that the offending person pay compensation. In Bolt’s case, Andrew Bolt merely had to apologise, remove the articles from websites and not re-publish them.
It is not like our free speech is really curtailed; it is just that we do not have the right to do the kind of thing that Andrew Bolt tried to do in a published article that had multiple errors of material fact, distortions of the truth, inflammatory and provocative language and, as the court found in this case, was likely to intimidate fair-skinned Aboriginal people, reinforce or encourage racial stereotyping and be destructive of racial tolerance. That is fair enough. It is hardly a restriction on free speech. It is certainly not a restriction on the type of speech that 99 per cent of Australians would ever think of making.
This is evidenced by the fact that the federal racial hatred laws have only ever been used on a few occasions. One was the Andrew Bolt case, as I have discussed. Another was a case that required the taking down of a website which denied the Holocaust and vilified Jewish people. It suggested that homicidal gas chambers at Auschwitz were unlikely and that some Jewish people, for improper purposes, including financial gain, had exaggerated the number of Jews killed during World War II. The publisher of the site, Frederick Toben, had been imprisoned in Germany for publishing similar material, so the order to remove the website in Australia was comparatively light. My interpretation of Senator Brandis’s proposals for the Racial Discrimination Act is that a holocaust denial will once again be permitted in Australia.
I note that law professor Simon Rice also suggested that the Brandis proposals may not even capture the type of outrageous racial abuse that was recently seen on public transport in Melbourne and Sydney. Mr Abbott’s response to the suggestion that the proposals would allow holocaust denial was to say:
… the best antidote to folly is commonsense and the best way to refute a bad argument is with a good argument.
This completely ignores the reality that people who are the subject of racial hatred frequently do not have the opportunity to respond. They are commonly minorities, there may be a language or other cultural barrier and, of course, they simply might not get the same platform that someone like a newspaper columnist gets.
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