Last month, Joe Hockey took to the witness stand defending his reputation from allegations made by Fairfax Media. In 2011, Aboriginal activist Pat Eatock also stood in court defending her reputation from allegations made by News Corp columnist Andrew Bolt. One had parliamentary privilege to defend themselves, the other didn’t. One had the parliamentary press gallery itching on their every word, the other didn’t. Both stand in the way of a purist conception of free speech. But only one attracted the derision of the conservative commentariat.

Eatock and eight other fair-skinned Aboriginals smeared by Bolt’s column “It’s hip to be black” took the provocative commentator to court and won under provision 18C of the Racial Discrimination Act. And, if one read only News Corp publications, it would appear the sky consequently imploded. The expansive state and its judiciary accomplice were conspiring to infringe the citizen’s “right to be a bigot,” as Attorney-General George Brandis put it. Boiled down to less hyperbolic terms, the court found that Bolt had racially discriminated against Eatock and the other litigants, not because what he said was offensive (which it was, but could be defended on the basis of fair comment) but because he had played fast and loose with his facts. The state, therefore, was limiting the ability of the press to publish false information if it could give rise to racial discrimination.

Conversely, Hockey’s case seeks to limit the ability of the press to draw inference from undisputed facts, and to legally punish poor choices of words. The fact that Hockey had a relationship with the North Sydney Forum, as the Fairfax articles claimed, is not in dispute. Fairfax did make a factual error about Hockey repaying money to Australian Water Holdings (which he didn’t do), however Fairfax published an apology for this and it would hardly sustain a law suit on its own.

What is being disputed is how Fairfax portrayed the facts of his relationship with NSF, particularly whether the headline “Treasurer for sale” implied corruption. Surely those three words, no matter if they were poorly chosen, do not require a court action to discredit. Surely if journalists have the “right to be bigots” then they also have the right to print bad headlines, the right to generalize, the right to be somewhat sensationalist… But Liberal politicians, News Corp columnists and the IPA have been unwilling to defend these rights. If the libertarians don’t defend one’s ability to make mistakes which cause little to no serious damage then are they really libertarians? Or are they just racist Andrew Bolt fans looking for intellectual justification?

Abbott has derided 18C as a “hurt feelings test.” But, of course, now that his colleague has taken his hurt feelings to court, he is markedly silent. Perhaps some people’s feelings are worth more than others. More likely, Abbott is constrained politically from voicing his true opinion, as a former journalist, that a rich bloke with parliamentary privilege should not be whinging and seeking a pay-out over a few poorly chosen words, when he should be preparing the 2015 budget.

As for 18C, some outside of the conservative wolf-pack have voiced their concerns, such as former Media Watch host Jonathon Holmes. Some believe that the legislation, as it reads, too severely limits the ability of journalists to fairly comment on issues regarding race. This may be true. However, one can avoid the provision by proving they acted “in good faith,” which the Bolt case suggests means getting your facts straight. Presuming the court doesn’t expand its interpretation, is it such a bad thing to force pundits like Bolt to at least be truthful if they want to comment on racial issues?

If Hockey’s case were to succeed, the precedent set would be have a far more chilling effect on what the press can and can’t say. As Richard Ackland put it in The Guardian, “If a painstakingly researched article on a matter of clear public interest and importance can attract damages of the quantum sought by Hockey, then journalists may as well pack-up and go home.”

Defamation suits should be used by those without the power to counter a false allegation in the public arena. Hockey has this power in spades. Where Eatock’s case will go down in history as a victory for Indigenous Australians, Hockey will be lucky to regain an inch of his credibility from his current law suit – he lost most of that after his dismal 2014 budget. He may have the right to be a bigot, but Hockey has the responsibility to stop wasting our time.


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