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Mr. Abbott's misreading of the evidence

By Stephen Keim and Benedict Coyne - posted Tuesday, 4 September 2012

At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance. 

The Hon. Justice Bromberg, Eatock v Bolt [2011] FCA 1103at [22], 28 September 2011

The Opposition Leader, Mr. Abbott, misinterpreted the application of free speech principles to laws designed to assist in promoting racial tolerance. This appears from Mr. Abbott's address to the Institute of Public Affairs (IPA) on 6 August 2012. It seems, however, that Mr. Abbott's error is attributable to a more fundamental error in failing to look at the evidence on which he appears to have placed much weight.

The crucial aspect of Mr. Abbott's speech was his threat that a government led by him would repeal section 18C of the Racial Discrimination Act 1975 ("the RDA") in its current form.


Part IIA (the part that contains s. 18C) was inserted into the RDA in 1996 by way of an amendment under the Racial Hatred Act 1995 ("RHA") by the Keating Government, with significant support from the then Liberal Opposition. The Bill was drafted to give effect to Australia's international obligations under the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) to which Australia became a signatory in 1966 and ratified in 1975.

Section 18C and part IIA have been uncontroversial until very recently. They remained unchanged during the Howard years. The few reported cases included cases regarding dissemination of anti-Semitic literature, holocaust denial, vilification of Aboriginal people by newspapers in Western Australia and Queensland and an unsuccessful constitutional challenge. The effects have appeared to be salutary and the application moderate.

Pursuant to part IIA of the RDA, Australians may engage in unrestricted private acts of racism. Even the restrictions on race based public statements and actions carry a very high threshold before they come into play. Section 18Cis only triggered if the following objective requirements are met, namely, that the conduct complained of is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate …because of the race, colour or national or ethnic origin" (emphasis added) of a person or group of people.

However, that is not the end of the matter because subjective defences are available which prevent such conduct from being unlawful wherever serious discussion is taking place. Pursuant to section 18D, conduct which satisfies the threshold in section 18C is not unlawful if it has been "said or done reasonably and in good faith" (emphasis added) for particular purposes, including for academic and scientific pursuit; artistic endeavor; fair and accurate "fair comment" journalism; or any other genuine purpose in the public interest.

The terms of part IIA; its uncontroversial existence until recently; and its origins in a widely supported international treaty all indicate that the mild restrictions the provisions place on unrestricted speech are more than justified by the need and desire to prevent speech and conduct intended to publicly demean people because of their racial or ethnic inheritance. Events in the former Yugoslavia and in central east Africa in the 1990s reminded the world how dangerous such behaviour can turn out to be.

It seems that the current antipathy to the part IIA restrictions is linked to successful columnist, Andrew Bolt's, singularly unsuccessful defence of his journalism against a part IIA claim brought by a number of Aboriginal Australians who had been attacked by him in a series of articles. In the wake of the decision in that litigation, called Eatock v Bolt, in September 2011, a campaign has been waged for the repeal of Section 18C of the RDA including by Shadow Attorney, Mr. George Brandis, Mr. Abbott, himself, the Australian newspaper and the IPA.


That case concerned two articles published in the Herald Sun in 2009 entitled, "It's so hip to be black" (published online with the title "White is the New Black" and "White Fellas in the Black"). The articles made serious allegations against a number of high profile, pale-skinned Aboriginal Australians suggesting that each of the people named had played unreasonably on their Aboriginality to gain benefits and honours which they had not earned in the normal way.

A reading of Justice Bromberg's careful and lengthy decision is both surprising and informative. The fact that Justice Bromberg found against Mr. Bolt on the factual basis of his articles does not paint a favourable impression of Mr Bolt's journalistic skills. However, the greater surprise comes from the fact that Mr. Bolt, through his legal defence, made virtually no attempt to defend the truth of the allegations that he had made in the articles. It is difficult, on reading the judgment, to avoid the conclusion that Mr. Bolt made his most serious allegations without the slightest attempt to check his facts in the way that even cub reporters are trained and expected to do.

Justice Bromberg's experience with the sections in action was not that they were oppressive or that they swung the pendulum too far against the values of free speech. His Honour was convinced that Parliament, in its bipartisan mode, had sought to protect the important value of free speech: His Honour stated at [210]):

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About the Authors

Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.

Benedict Coyne is a National Committee Member and Queensland Convenor of Australian Lawyers for Human Rights (ALHR). He completed a graduate law degree at Southern Cross University graduating with first class Honours and the University Medal amongst other awards.

He had an incredibly interesting year in 2011 as Associate to the Hon Justice Bromberg at the Federal Court of Australia in Melbourne, including hearing (and substantially researching) the Eatock v Bolt case. He was admitted to practise in Victoria in November 2011 and is currently a lawyer in the new major projects and class actions department of Maurice Blackburn Lawyers in Brisbane.

He enjoys writing and performing poetry in his spare time.

Other articles by these Authors

All articles by Stephen Keim
All articles by Benedict Coyne

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