Journalism, 'Hate Speech' and Consolidation
On 28 September 2011, the Federal Court of Australia handed down a high profile decision which found that comments made by Andrew Bolt in two 2009 articles published by the Herald and Weekly Times breached provisions of the Racial Discrimination Act which prohibit racially offensive conduct. The articles targeted a group of highly successful Aboriginal people as exemplifying the ‘trend’ of so-called ‘fair-skinned Aboriginal people’ choosing to identify as Aboriginal to gain access to personal and professional benefits and entitlements. The case raises interesting questions around balancing the right to be free from racial discrimination against the right to freedom of expression. Issues of censorship, free speech, political correctness and the scope and constitutionality of Part IIA of the Act have also been canvassed in the extensive commentary on the decision.
Section 18C of the RDA prohibits conduct which is likely to offend, insult, humiliate or intimidate others on the basis of their race or ethnicity. To be unlawful, the conduct must be committed in public and not fall within one of the exemptions in the Act. Lawyers for Bolt argued that his comments should fall within the exemption for freedom of expression on matters of public interest. Justice Bromberg rejected this argument due to, among other things, Bolt’s inaccurate depiction of facts to suit his message.
In the wake of the decision, then Attorney-General Robert McClelland noted the important balance required to be struck between the fundamental rights and freedoms in a democracy such as ours; in this case, between freedom of speech and protection from discrimination. Shadow Attorney-General George Brandis labeled the relevant provisions of the RDA “terrible” and an “unacceptable limitation of freedom of political communication” and warned against using the case to reignite calls for a Bill of Rights.
In the consolidation of Commonwealth anti-discrimination law, the Australian Government will need to consider whether the provisions of the RDA should be extended to other protected attributes or grounds such as disability and sexual orientation and/or amended to increase their effectiveness. Such changes would respond to increasing calls from many advocacy organisations to expand protections from 'hate speech' to other vulnerable communities.
In July 2011 the HRLC convened a conference to encourage and inform debate on the Commonwealth Government's consolidation of its anti-discrimination laws. Check out this page for a wrap-up of the conference, speakers presentations and materials and video footage and photos from the day.