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.  

See the Human Rights Law Centre’s case note here for a report on the decision and the full text of the decision here.