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This article reviews the decision of the Federal Court in Eatock v Bolt and then turns to its aftermath - the campaign to amend the Racial Discrimination Act 1975 (Cth). The campaign to amend s 18C, like any public debate of a complex legal issue, was at times unsatisfactory. However, in this article it is argued that there were deeper flaws in the campaign against s 18C that undermined the very commitment to freedom of speech on which the campaign was based.
I INTRODUCTION
The last two years have seen an unusually vigorous public debate about freedom of speech, triggered by a successful action against columnist Andrew Bolt and the publisher of the Herald Sun (the respondents) under s 18C of the Racial Discrimination Act 1975 (Cth) ('RDA').1 The finding produced an immediate outcry2 and a pledge by the Opposition to amend or repeal the law.3 The debate intensified after the 2013 federal election when the new government proposed to make good on its promise, a debate that continued until the government abandoned its plan in 2014.4
This article will reflect on the Federal Court's decision in Eatock v Bolt5 and the subsequent debate. Rather than re-agitate the well-worn debate about whether the restrictions imposed by s 18C are consistent with freedom of expression, this article will outline the decision with careful attention to the true basis for the decision against the respondents. In this light, I analyse the subsequent public debate with special reference to the way that the campaign against s 18C mischaracterised the decision in Eatock v Bolt and its effect.6 While it is not surprising that the public debate did not adequately reflect the detail of the legislation or the nuances of the judicial reasoning, in my view the public debate displayed some unusually serious inadequacies. Indeed, I will argue that some participants in the debate - especially those seeking to amend or repeal s 18C - often mischaracterised the provision, and the interpretation given to it in Eatock v Bolt, to the point that they overlooked or even contradicted important free speech values, which were the purported motivation for criticism of s 18C itself.7
II THE CASE: SECTIONS 18C AND 18D OF THE RACIAL DISCRIMINATION ACT
In Eatock...