At present shock jocks’ statements and pontifications are rarely if ever scrutinised by the mainstream media, but instead shock jocks are the recipients of glowing praises (plus free publicity) and acknowledgment for their “derring-do”.
Recent news indicates that Andrew Bolt’s legal team are prepared to launch a constitutional challenge in the High Court to challenge the validity of judicial interpretation of the Racial Discrimination Act 1975 (Cth) Part IIA—Prohibition of offensive behaviour based on racial hatred.
This legal team is to base their case on what they believe is wrongful interpretation of this section of the Act; that Part IIA should refer only to “acts of extreme racist behaviour”.
An oft repeated claim is that the Bolt case is all about Freedom of Speech, and while this is a worthy value and many valid debates exist on both sides of the argument – censorship versus the freedom to express an opinion, with the contra being that freedom to say what you like should not include the right to intimidate and humiliate others – however from a purely legal point of view this is not guaranteed as the Australian Constitution does not have any express provision relating to freedom of speech.
Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights states: Everyone shall have the right to freedom of expression …
And while Australia is a signatory, in order to incorporate treaties and conventions into Australian law, a government must pass a specific Act of Parliament. Although some parts of the treaty have been implemented into law no government has implemented the free speech provisions and therefore these are not enforceable by Australian courts.
It can therefore be concluded that as the law stands at present Andrew Bolt cannot base his case on any perceived right of “freedom of speech”, hence the reason that his legal team are preparing to argue at High Court level by tackling Part IIA of the Racial Discrimination Act.
That is, Bolt’s legal team will demand that the High Court provide an interpretation of the word “act”; can it be any act or must it be an extreme act. However and following, their argument must be that Andrew Bolt’s statements cannot lead to an incitement of “acts of extreme racist behaviour” and this is only should the High Court rule in the first place that the act must be “extreme”.
I personally believe that any High Court challenge will fail as it is not feasible to be able to predict how any person or groups of people will react given X amount of justification and indeed advocacy, or provocation. And what is the criteria by which any act can be perceived as “extreme”, as this too relies on a value judgement.
Update as suggested by Patricia:
Andrew Bolt’s criteria as to Aboriginality is based on a person’s appearance.
One of the plaintiffs in the Bolt Case is NSW Australian of the Year Professor Larissa Behrendt.
Yes they’re BOTH of Larissa Behrendt, the woman that Andrew Bolt accused of being a blonde German and too white to be a ‘real’ Aboriginal. Guess what Andrew, she colored her hair…
And here is a little about Larissa..
Professor Larissa Behrendt is a Eualeyai and Kamillaroi woman who decided to become a lawyer at age 11 when her Indigenous father found his mother’s removal certificate.
But this of course wasn’t enough proof for Andrew Bolt, she looks white therefore she cheated the system. But of course if Andrew had bothered to look for other photos of Larissa he would have discovered that she does look somewhat indigenous..but who bothers to research. Andrew had his proof she was blonde, she was German, she was a cheat.
Update 18th April: Criticism of Behrendt hides political agenda