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The article by Simon Breheny contains at least seven false assertions, says Alan Austin.

The campaign to rehabilitate one of the most notorious racist liars in the English-speaking world grinds on. Alan Austin reports — and asks why.

THE AUSTRALIAN has joined the ABC and other tawdry news outlets in giving space to the Institute of Public Affairs (IPA) to continue its bizarre campaign against Australia’s moderate free speech laws. This continues the Murdoch media campaign to deny the offences of Australia’s racists. Multiple lies are advanced to argue their case.

The latest salvo in the long-running battle against Section 18C of the Racial Discrimination Act was last Friday’s opinion piece written in a tone of high dudgeon by director of the IPA’s legal rights project Simon Breheny.

Titled, ‘Repeal section 18C, the “Andrew Bolt” law: it stifles free speech’ , the article contains at least seven false assertions.

The hook for the piece is a complaint by a Queensland woman that seems unlikely to succeed if it even gets to trial — which it hasn’t yet.

This complaint, according to Breheny,

‘... demonstrated the ongoing danger of section 18C ... The case is an example of section 18C making day-to-day conversation unlawful, and dividing Australians rather than uniting them. The case is a sad indictment on the state of free and open debate in Australia.’

1. Demonstrated indictment?

Sheer nonsense. The matter has not been heard, let alone determined. Nothing has been ‘demonstrated’. It’s not an ‘indictment’ of anything.

On the face of it, the complaint seems doomed. To advance one feeble try-on as grounds for abolishing a law that has served well for 40 years is, well, a feeble try-on.

2. Making day-to-day conversation unlawful?

Section 18C (1) specifically says [IA emphasis]:

‘It is unlawful for a person to do an act, otherwise than in private ...’

Hence ‘making day-to-day conversation’ – which Breheny asserts is under threat – is explicitly excluded.

3. Section 18C used to silence respected columnist?

Section 18C, Breheny claims, is

‘... being used to silence a prominent and well-respected columnist in a mature liberal democracy such as Australia.’

He is referring to syndicated Murdoch blogger Andrew Bolt who copped a comprehensive shellacking when a racial vilification complaint was upheld in the now-famous Eatock v Bolt case. Bolt was found in the judgment to be a multiple liar (para 378) motivated by ‘racial hatred’ (para 458).

But it was not 18C that felled the 'well-respected' racist. It was section 18D and the fact that Bolt fabricated more than 19 malicious lies in the two articles in question.

Judge Mordecai Bromberg concluded in that matter [para 26]:

... that the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:

(i) it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) ... 

4. Unlawful to offend, insult, humiliate or intimidate?

Breheny asserts:

Section 18C makes it unlawful to “offend, insult, humiliate or intimidate” a person because of their “race, colour or national or ethnic origin”.

Bolt was found in 2011 by the Federal Court of Australia to have breached 18C in writing two articles published in 2009 in the Herald Sun.

Partly true. But Bolt’s offensive and insulting opinions were not why he was found guilty. The judge made it abundantly clear that s18D protects any publicly-expressed opinion, however obnoxious or offensive, provided it is in the public interest, or part of a fair and accurate media report, or in artistic or academic pursuits.

Bromberg reinforced this repeatedly [para 353]:

“Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion.” 

5. Misrepresentation NOT discrimination

The central issue in Bolt v Eatock was: Were the factual assertions accurate and genuine? That question occupied most of the court’s time and the greater part of the judgment.

Bromberg found in Bolt’s articles inferences which leave an “erroneous impression”, “gratuitous references” based on “a selective misrepresentation” and omissions which “meant that the facts were not truly stated”. [para 398]

He found assertions “shown to be factually erroneous”, comment “unsupported by any factual basis and erroneous”, asserted facts “untrue” and several contentions “incorrect” or “grossly incorrect”. [para 406]

His key finding was that “in relation to most of the individuals concerned, the facts asserted in the newspaper articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue”. [para 378]

Bromberg was emphatic [para 390]:

“Untruths are at the heart of racial prejudice and intolerance.” 

Bolt’s tawdry opinions were no problem. His blatant lies were. Any analysis of the judgment which omits this critical finding – as Breheny does – is deceptive.

6. Used by political activists?

Breheny writes.

‘Political activists and their lawyers have come to realise that section 18C can be used to aggressively pursue political goals.'

Nonsense. In four decades, only one case has caused widespread controversy. That furore arose entirely from the malevolent campaign by the Murdoch media, the IPA and elements within the Liberal Party to falsify the judgment.

7. Silences debate?

Breheny:

‘In silencing, or threatening to silence, opponents in a debate using legal means, complainants remove the possibility of debate. It’s unhealthy and it’s undemocratic.’

Completely wrong. Bolt has continued for more than four years to impugn Justice Bromberg’s decision and the judiciary in general.

He has not restrained his racist attacks against Aboriginal activists, refugees and others. He may be more prudent about telling lies which can be readily exposed. But no-one has been ‘silenced’.

Why is the IPA ramping up its campaign at this time?

Perhaps here’s the clue:

‘At a time when we are in the midst of a debate about recognising Aboriginal and Torres Strait Islander peoples in the constitution a provision which prevents discussion of these issues should be of concern to all Australians.’

Is it possible Murdoch and the IPA want to campaign against this without hindrances to deploying their usual half-truths, distortions, omissions and blatant lies?

We shall see.

Free speech is under no threat whatsoever in Australia. The fact that the IPA and the Murdoch media can subvert a court decision and lie about a sound law and the vulnerable groups it seeks to protect – with impunity – is abundant proof of that.

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