Senator Brandis will accuse former Federal Court judge Ray Finkelstein of explicitly seeking to restrict free speech and of adopting “the patronising tone towards public opinion which has become so wearily familiar among cultural elitists”.
He will use the conference keynote address to launch another salvo in what the Coalition has dubbed “the freedom wars”, accusing the government, the ABC and the intellectual Left of intolerance and attempting to impose “a very deliberate and sophisticated form of political censorship” on the media and public discourse.
There has been a lot of hysterical bedwetting since Tony Abbott promised to repeal 18C. Mind you he has given himself a lot of wiggle room but nonetheless the Liberals have come a long, long way since Abbott was talking about amending 18C earlier this year. One thing that I have noticed is that the left have been inclined to throw Mordy Bromberg to the wolves. Here is Neil Rees:
Because of the way the Bolt case was conducted, it is not a fair test of the continuing need for race-hatred laws. But it has drawn attention to some flaws in legislation that could ultimately be found to be unconstitutional unless changes are made, because it burdens free political discussion.
Here is the Attorney General of the Commonwealth:
Ms Roxon conceded that ”people can argue the toss about whether Andrew Bolt’s particular example should have been covered”.
So what exactly was the judge doing while this case with constitutional flaws that may not even be covered was going on? Why wasn’t the left saying so at the time? Now I understand that judges cannot be easily removed from office or have their pay docked – for good reason – but I cannot see why they shouldn’t be rebuked for poor performance. When even the sitting Attorney General thinks that a judgement against a political enemy may be dodgy then we know there is a serious problem.
George Brandis as the shadow Attorney General and very likely the incoming Attorney General after the next election has his work cut out for him and will have to lift his game.
Update: I wasn’t going to raise the issue, but since hammygar makes the point:
If Judge Bromberg was in error, Bolt and News Ltd would have been given advce that an appeal would have been likely to succeed.
It seems to me that the fact that News felt it best that political action was more appropriate than a legal appeal reflects very poorly on the judiciary.
In a statement released by HWT, the News Corporation (publisher of The Australian) company argued there were a number of grounds for appeal but it would not appeal.
“Instead, it is our view that section 18 of the Racial Discrimination Act overly detracts from free speech and should be revisited by the legislature,” the company said.
Let me spell this out: we cannot look to the legal system to protect constitutional rights to free speech – we need to look to the political system. Judges cannot be trusted with our freedoms – that means any proposal of an Australian bill of rights is dead in the water.
What utter rubbish. If Judge Bromberg was in error, Bolt and News Ltd would have been given advce that an appeal would have been likely to succeed. They obviously didn’t have such advice, so slunk around sulking with their tails between their legs, utterly and deservedly humiliated.
hammygar
17 Aug 12 at 10:59 am
Related:
Now why would they do that, keep it a secret? And does this mean they will now prevent announcements in the media of boat arrivals in the future…sometime after the government installs a media regulator?
Gab
17 Aug 12 at 11:11 am
Given the chance that a Labor policy will backfire and require a backflip, I’d say Roxon hinting that the Bolt decision wasn’t a slam dunk is the first steps to the point where, eventually, someone in the Labor party will go ‘this is a bad law and needs to be changed’.
Labor : bringing you unintended consequences, screwups and budget blowouts for over a hundred years.
brc
17 Aug 12 at 11:15 am
The case for Mordy disqualifying himself was strong.
An ex Labor lawyer, ex Labor candidate judging Labor’s #1 ideological enemy in the media?
Errr, what?
Alfonso
17 Aug 12 at 11:16 am
Don’t ever forget the utterly shameful role played in the Bolt case by ron ‘Godwin’ merkin.
The clown should be disbarred.
Rabz
17 Aug 12 at 11:34 am
http://www.watoday.com.au/wa-news/grave-fears-for-102-missing-boat-people-20100117-mdzh.html
Ivan Denisovich
17 Aug 12 at 11:59 am
Bromberg should have recused himself. As a former far left Labor preselection candidate, the idea that he should preside at a show trial against the country’s most read critic of Labor ‘governments’ was always a travesty. Indeed, the ‘trial’ was corrupt. The barrister for the white ‘Aborigines’ accused Bolt of being a Nazi and, for that, should have been thrown out of the profession.
The hidden blessing, however, is that a travesty will now lead to the destruction of the fascist law that brought on the bogus trial.
C.L.
17 Aug 12 at 12:10 pm
Why does Brandis have to lift his game, Sinclair? He has done very well in poiting out the idiocy of sec 18C.
Rococo Liberal
17 Aug 12 at 12:11 pm
Bolt’s trial couldn’t have been much worse if it had been run by the ABC’s Q&A team.
blogstrop
17 Aug 12 at 12:13 pm
RL, Brandis is a semi-luvvie beneath the bluster. Moreover, he and Abbott have soft-pedalled on the extent of their plans re ‘vilification.’
C.L.
17 Aug 12 at 12:18 pm
RL – he was dragged kicking and screaming to the current position.
Sinclair Davidson
17 Aug 12 at 12:22 pm
What a great idea. Maybe every second Friday, rather than publicly executing leftists we revive some ideas from our Roman friends?
Infidel Tiger
17 Aug 12 at 12:25 pm
Judge Bromberg is not at fault here. The legislation is at fault.
The test of any law is the extreme to which it can be applied… The object of legislation is the effect.
If we don’t want judges to hang offenders for stealing old rope, society designs the laws to define what is theft and then sets the limits on the punishments and sentences judges can pass.
It is quite obvious that the object of 18c was to muzzle critics of racial politics, rather than curbing racial vilification. Bromberg simply ruled within the boundaries of the legislation…. If the legislation is unconstitutional, then it has been unconstitutional for more than twenty years without comment…. and that really is more the problem than Brombergs ruling on this woefully dangerous legislation.
If a judge cannot interpret the object of a law.. then most assuredly, no one else can…. Which becomes a problem concidering that ignorance is no defense from the law…. Now there’s a catch 22 if there ever was one.
J.H.
17 Aug 12 at 12:29 pm
I agree a Bill of Rights will probably be useless. If drafted by the usual suspects it will leave out some of the most trashed and important rights (eg rights to private property) and not give people any power of independent enforcement. Somewhat like the tax payers charter, it will not be worth the paper it is written on. It will produce a politically correct smokescreen and nothing more.
Compare it with the ancient writ (order) of habeas corpus. A simple order to officials which put them on the back foot and ordered them to release someone if they could not justify continued imprisonment. Then look at the constitution of the former USSR which claimed to guarantee all kinds of rights. There was just the small problem of how to exercise them.
I had a quick and preliminary look at the Bolt judgement and gained the preliminary impression that it would not fare well under detailed scrutiny.
At the time I sent a supportive message to Andrew Bolt and if my memory is correct warned that there would a lot of pressure not to appeal. I also pointed out that News was the right company in the right place and at the right time to appeal the judgement and should do so on principle and irrespective of the likely outcome.
Sadly and as I feard News got wobbly at the knees. Having worked in large corporations I knew that taking a risk on a cause is very hard even when the organisation has the financial resources to be able to afford to risk loss.
However on balance I believe we badly need a bill of rights, but not unless it has some teeth that citizens have direct independent access to at a reasonable cost. I do not expect any government will give us that.
Penndragon
17 Aug 12 at 12:36 pm
Incredibly sad and true.
Judges in this country at all levels have the same mindset. It is that their role is to temper, stymie and ‘progressively’ improve the base instincts and desires of Australian everyman. They see themselves as a caste of moral policemen – above the population, above culture. Only the legislature can be used to put them in their place. Even then, they’ve invented the external affairs ‘power’ to get around even parliaments. We need to re-write and narrowly re-cast section 51 with a view to ending this latter tyranny.
C.L.
17 Aug 12 at 12:37 pm
Maybe every second Friday, rather than publicly executing leftists we revive some ideas from our Roman friends?
Chariot races!
Gab
17 Aug 12 at 12:41 pm
Larry Pickering’s blog is down.
You can still read Chapter V on FB.
Ooh Honey Honey
17 Aug 12 at 12:48 pm
Hamhead makes two assertions, but they are unrelated:
“If Judge Bromberg was in error, Bolt and News Ltd would have been given advce that an appeal would have been likely to succeed. They obviously didn’t have such advice,”
Being likely to succeed is not the same thing as will succeed, but let’s assume that true.
“so slunk around sulking with their tails between their legs, utterly and deservedly humiliated.”
Not at all, if even Roxon is now expressing doubts about whether the law should have applied they clearly have not been humiliated and the real issue is the quality of the law.
“Judges cannot be trusted with our freedoms”
Well durr, nobody can be trusted with our freedoms, that’s why we’re supposed to have a balance of power. There’s nothing special about judges.
Pedro
17 Aug 12 at 1:03 pm
There are and have been many fine judges and I have been privileged enough to have met and even be taught by a few of them, but today many seem to have forgotten what their predecessors taught them. I keep handy a copy of part of a 1942 dissenting judgement of Lord Atkin which needs, even more than in the past, to be drilled in to some judges today:
“It has always been one of the pillars of freedom, one of the principles of liberty … that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.”
We just need a few more like that.
Something similar might be said about some of Nazi arguments put forth in the Bolt case.
Penndragon
17 Aug 12 at 1:05 pm
Precisely why they must now forfeit their security of tenure. Judges now, more than ever, are appointed because they can be relied upon to bend the law to suit the politics of their appointers, and not to uphold the rights of the common people. The rule of law is like free speech, it doesn’t exist unless it’s available to all.
Judges more than anyone should appreciate that if judges won’t enforce the rule of law without fear or favour then they too forfeit the protection of the rule of law.
larrikin
17 Aug 12 at 1:11 pm
iirc Bolt’s defence team objected, and Mordy overruled them, which is far worse imo.
Keith
17 Aug 12 at 1:20 pm
initially Mordy denied the Nazi slur had happened, then he said prove it, which it was via court transcript (Mordy had “lost” his copy) and then he overruled them.
Gab
17 Aug 12 at 1:26 pm
Mordy first claimed that he had no recollection of the Third Reich being mentioned in the previous day’s proceedings. This was clearly a lie.
C.L.
17 Aug 12 at 1:27 pm
SNAP.
C.L.
17 Aug 12 at 1:28 pm
One also has to wonder how a relatively junior judge was handed a particularly difficult high profile case. I forget how cases are allocated.
Penndragon
17 Aug 12 at 1:29 pm
The Liberals never play hard ball.
They should instigate a full inquiry into the trial, the political background of the presiding judge etc. These assholes ought to be humiliated in the dock. They should pay for what they did. Reputationally, they should be destroyed.
C.L.
17 Aug 12 at 1:38 pm
Yep, absolutely. They should put the fear of God in the fucker make sure the prick is humiliated in the public eye.
This would be a good lesson for the rest of them.
JC
17 Aug 12 at 1:43 pm
Some people here are at risk of being charged with contempt of court. Criticise a judgement or approach or what happened but urging coercion and name calling should be avoided. Judges can not join the debate and defend themselves.
Penndragon
17 Aug 12 at 1:48 pm
/em>
As we don’t have wolves in this fair country, I propose we offer our dogs to administer justice. Although in the case of my ‘wolf’ who appears to have a significant component of poodle if I am any judge, judgement would be by being licked to death, which I doubt would be sufficiently satisfying in a visual sense to any spectators.
Entropy
17 Aug 12 at 1:49 pm
Don’t be such a poof. Bromberg is scum.
Infidel Tiger
17 Aug 12 at 1:52 pm
We have a labradoodle. It’s about as vicious as a wet sock and highly neurotic too.
At one stage wifey had the idiot on doggie Prozac to calm down his mental illness.
JC
17 Aug 12 at 1:55 pm
hammyfuckinggar has raised the issue of why Bolt and his employer did not appeal; it is a good point because while Bromberg J. did interpret Section 18C correctly that Section was not sustained by the facts.
There were the 2 actionable components of the litigants award about which the following can be said:
Bolt tried to impugn the right of the litigants to claim aboriginal status by mixing that up with their claimed right to compensation; the 2 issues are distinct; Bolt got that wrong but so did the Judgement.
The Judgement’s mistake makes the errors of fact in regard to upbringing etc red herrings. They are irrelevant because the litigants were of equivalent aboriginality but were distinguished by their ability to achieve with and without compensation.
That is, some got to where they wanted to be on their own while others got compensation. That is the only relevant fact. And it defeats the litigants. It defeats them because racism and the fact of racism as understood by Section 18C must cover not all the members of the race but all the members of the group litigating. If some are not affected then those who claim to be affected by racism must instead be disadvantaged by some personal attribute which is not a factor of racial imputation against the group.
This is the point Bolt was trying to get at; namely whether personal attributes should be compensable. He made a mess of it by mixing it with the right to claim aboriginal status.
Whether this misapplication of the Section to the facts could be disentangled from the undipsuted right to claim aboriginal status obviously played a part in the decision to appeal; to that extent the troll is right; but that does not mean the Judgement was a good one; it wasn’t.
cohenite
17 Aug 12 at 1:55 pm
Cohenite
As afar s I understand the decision, the judicial leftist troll (mordy) didn’t find Bolt had made racist based comments about the the white nine. He found that he had made errors in fact which supposedly created the wrong impression. That’s what Bolt was hammered for. In this situation it would be very hard to appeal.
The white 9 really didn’t get what they were asking for.
JC
17 Aug 12 at 2:00 pm
Yes – sorry.
Sinclair Davidson
17 Aug 12 at 2:12 pm
[Let's have none of that. Sinc]
Baldrick
17 Aug 12 at 2:36 pm
Query for Ooh Honey Honey @12.48 – what is the FB, so that I can find it?
andy
17 Aug 12 at 2:44 pm
http://www.realclearpolitics.com/video/2012/08/16/john_sununu_vs_juan_williams_on_dirty_campaigning.html
JC
17 Aug 12 at 2:48 pm
oops wrong fred.
JC
17 Aug 12 at 2:49 pm
What a load of crap. How many times do you hear judges making statements on the record which can’t be contested?
No other citizen in our society is so protected as those cloistered princesses in black.
Just reference the racially objectional statement made by Pat O’Shane to many people who appear in front of her and see how hard it was to get any action for a magistrate who was/is not fit for the position.
Token
17 Aug 12 at 3:03 pm
Oh fuck off, that’s not what this is about, you lowrent moron.
JC
17 Aug 12 at 3:09 pm
JC; the facts [sic] were irrelevant; the Judgement said this:
Take this part out:
and you have something which is still subject to Section 18C but which is appeallable on the basis of the inconsistencies with the litigants’ position as I explain above.
But that line is in the Judgement because Bolt had erroneously mixed his valid point about “white aboriginals” getting unjustified compensation with the unjustified point about people being able to claim aboriginal status regardless of how they look.
The appeal was still doable but Bolt had shot himself in the foot and allowed a specious point to dominate the Judegement.
cohenite
17 Aug 12 at 3:26 pm
Andy, “FaceBook”.
Here’s his blog but not the one they’ve attacked.
And here he is on FaceBook.
Ooh Honey Honey
17 Aug 12 at 4:13 pm
I expect Baldrick is trying to get you in trouble, but either way I’d delete that offensive comment.
Cohenite, I’m not sure even you know what you are trying to say. But it’s rubbish. You don’t have to go far into the judgement to see what the case was about
“Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about her and people like her, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from HWT. She calls in aid the Racial Discrimination Act 1975 (Cth) (“the RDA”). She claims that by their conduct, Mr Bolt and HWT have contravened s 18C of the RDA.
In order to succeed in her claim, Ms Eatock needs to establish that:
It was reasonably likely that she and the people like her (or some of them) were offended, insulted, humiliated or intimidated by the conduct; and
That the conduct was done by Mr Bolt and HWT including because of the race, colour or ethnic origin of Ms Eatock or of the people like her.
Mr Bolt and HWT dispute that the messages Ms Eatock claims were conveyed by the articles, were in fact conveyed. They deny that any offence was reasonably likely to be caused and also that race, colour or ethnic origin had anything to do with Mr Bolt writing the articles or HWT publishing them. They also say that if Ms Eatock should establish those elements which she needs to satisfy the Court about, their conduct should not be rendered unlawful, because it should be exempted or excused. For that purpose, they rely on s 18D of the RDA.
Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of s 18C with the need to protect justifiable freedom of expression. “
Pedro
17 Aug 12 at 4:53 pm
I can’t believe the idiocy on display here.
Someone is even saying that judges shouldn’t have guaranteed tenure, when that is one of the major bulwarks of freedom that was won in the Glorious Revolution and the Bill of Rights which forms the backbone of our law.
How can a judge dispense fair justice when his or her tenure is at the whim of the Executive? Judicial independence from the executive is vital for freedom and justice.
One judge makes what you think is a bad decision, so we get wankers telling us that this means that all judges are somehow diminishers of freedom. You don’t think about the thousands of other judgments that are handed down each year and are perfectly fair and proper. Every day judges are defending the liberty of the subject in all sorts of cases by applying rules of law or equity that none of you even know about; yet you want to make stupid statements about the unreliability of our judicial officers based upon one judgment.
And I’d love CL to explain what mechanism he thinks is available for the Liberals to investigate the decision in the Bolt case? Unless they can prove misconduct by the judge, there is no way for politicians to re-open a case. Ever heard of the doctrine of the separation of powers?
Can you imagine what sort of justice system we’d have if politicians could turn over decisions to please some imaginary constituency.
Of course Bromberg’s decision was wrong, but Bolt and News took the position that it would suit them better to be mrtyrs than to appeal. And doesn’t Mr Bolt use the decision at every opportunity to blast the law.
You guys are sounding like a pack of useless lefty shiteheads. Shame
Rococo Liberal
17 Aug 12 at 5:33 pm
Yeah, I have. It’s mostly bullshit. Judges are appointed by politicians for political reasons.
I wasn’t talking about re-opening the case. I was talking about a parliamentary inquiry into the whole episode. Parliament can do this; indeed, it can do whatever it likes.
I agree.
?
But if they change the (lefty bad) law in response to a travesty, it’s more or less the same thing. They’re turning it over for a constituency – and not an imaginary one.
I tend to agree and have always said so.
No no. Whenever liberty clashes with the lawyers’ union, you always sing Solidarity Forever, my dear RL.
C.L.
17 Aug 12 at 5:50 pm
Speaking of censorship some has torpedoed the Pickering Post….
Another
17 Aug 12 at 6:04 pm
I get an “account suspended” when I go to the URL for the Pickering Post
oil shrill
17 Aug 12 at 9:15 pm
By making it an elected office?
Zatara
18 Aug 12 at 6:10 am
“By making it an elected office?”
So then it is at the whim of the people. Like that will lead to good decisions.
“Whenever liberty clashes with the lawyers’ union, you always sing Solidarity Forever, my dear RL.”
Rubbish, you’re not understanding liberty, but that can’t be a surprise for a grouper. The disciples of dear old Bob have only ever been for the Pope’s version of liberty.
“The hidden blessing, however, is that a travesty will now lead to the destruction of the fascist law that brought on the bogus trial.”
In fact, do you know what fascist means?
“They should instigate a full inquiry into the trial, the political background of the presiding judge etc. These assholes ought to be humiliated in the dock. They should pay for what they did. Reputationally, they should be destroyed.”
Spoken like a true son of liberty. Fuckwit.
Pedro
18 Aug 12 at 8:56 am
And the serious problem is the Attorney General whose low opinion of the Opposition Leader is well known – to her own shame.
I am not sure what to make of these crocodile tears but, based on past form, I would suspect a political, back-saving motivation, rather than an epiphany of understanding of the fundamental problem with the RDA, which is (quoting from teh judgement as quoted above):
The RDA enshrines infantile responses to offensive language – that’s the problem.
John A
18 Aug 12 at 9:13 am
No Pedro, so that they are accountable to the people for their actions.
Do we agree that the legitimate authority of a government or a court derives from the consent of the people?
Liberty – the right to choose. Freedom from arbitrary or despotic government or control. There are few better examples of arbitrariness or despotism than a government appointed judge. Particularly one appointed for his political views.
Zatara
18 Aug 12 at 9:14 am
Did Voltaire say this?
Sinclair Davidson
18 Aug 12 at 9:17 am
“Judge Bromberg is not at fault here. The legislation is at fault.”
What rubbish!
Given his background one must ask whether he was deliberately appointed to the case to ensure the required verdict.
kevin
18 Aug 12 at 9:37 am
“Some people here are at risk of being charged with contempt of court.”
How could one NOT hold the courts in contempt when we see so many decisions based on ideology of the judges?
Just look at the libertarian judges appointed in Victoria and what a mess they have made of justice.
The courts seldom dispense justice, rather the judges’
law.
kevin
18 Aug 12 at 9:43 am
Z, the point is to strike a balance. Despite all the bleating, we don’t have a big problem of rogue judges. We don’t even have a small problem. Also, the authority of the Courts derives from the constitution and the Crown. It’s a bit of a mix.
The starting point in Eatlock is a bad law and Bromberg pushed it. I don’t think it a good judgement, but we have lots of laws made in parliament that are not good laws and don’t seem to reflect any majority expectations of the public either. I certainly don’t think you could say Bromberg was clearly wrong and was twisting the Act.
I think that if we had elected judges then we would have a less accountable parliament and we sure would have a big mess. What do you think would have happened with the bank nationalisation case if the high court had been elected along with the labor govt?
Kevin, why don’t you give us a list of all the decisions that you’re fretting about.
Sinclair, I don’t know if it was Voltaire (or if you just made it up
), but who said you can’t criticize judges? It happens all the time. The stuff pendragon was referring to is beyond criticism it was a call for a witch hunt.
Pedro
18 Aug 12 at 12:07 pm
The Mordy affair is a reminder of the value of juries.
Bolta’s case would have been 30 minutes,a cup of tea and not guilty via jury nullification if necessary, regardless of Mordy’s inclinations.
Alfonso
18 Aug 12 at 2:09 pm
this is not about the judiciarty and the executive, this is about the judiciary and the people. Just as the executive and the legislature must be accountable to the people, so too the judges.
the Parliament is not elected by the people on a whim, unless you call an election for a fixed term a whim. sure, Parliament’s may dissapoint the electorate (this one sure does), but there will be an election to correct the error. why shouldn’t the people have the opportunity to correct a poor judicial appointment? what is so threatening to judges in being held to account to the people (rather than their mates) for their actions?
these objections sound like opinions founded on untested assumptions – judges are not above the law, nor should they be beyond the people
larrikin
18 Aug 12 at 3:10 pm
Ya think? I guess if there are a lot of rogues decisions it would tend to towards becoming the mean and therefore you could safely say it doesn’t appear to be much of a problem.
I think we do have a leftwing politicized judiciary.
JC
18 Aug 12 at 3:20 pm