Colin Rubenstein has an op-ed in The Australian defending race-based laws.
Nonetheless, some commentators believe that all racial hatred laws should be eliminated altogether, usually on purist “free speech” grounds. Free speech is fundamentally important to the functioning of a modern democracy, but this right has never been absolute. There have always been legitimate limits placed on it — from defamation, or incitement, false advertising, perjury and lying to authorities, to shouting “fire” in a crowded theatre.
One small problem – Andrew Bolt did none of those things.
Rubenstein then tells us:
However, the value of 18C’s provisions in combatting genuine hate speech has been demonstrated and uncontroversial.
That may even be true, if you believe that such things can be true.
But here is the thing. The Bolt case is a travesty. The arguments used in that case were disgraceful and offensive. As far as I’m aware Rubenstein did not speak out then. It is very clear that 18C is bad law and cannot be reformed – as George Brandis had wanted – it must be repealed.
At best Rubenstein’s argument can be described as implying that some injustice must be tolerated for the greater good; that some individuals must the sacrificed for the group. To that I say, “No”.
Update: A lurker emails:
If you actually read the Bromberg judgment you can see at para 358 both sides accepted that the defence Bolt & HWT ran of “fair comment” under section 18D of the RDA invoked the requirements of the common law Defamation defence of fair comment.
So Defamation was essentially in play.
Then at para423:
Ihave taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.