Rupert Murdoch, George Brandis, and others v The Blackfellas


Under the law as it is in Victoria and elsewhere, a blackfella, among others, is liable to be prosecuted for using insulting language in public, and Mr Rupert Murdoch, and others, are liable to be sued for insulting blackfellas because of their race. The federal Attorney General had been seeking to change the law, until a week or so ago. The first law is a state law, and the second law is federal. The Attorney can only seek to change the latter through his office and the federal parliament. No one has been heard to want to change the former. There has been not a murmur. Under the changes that had been sought by the Attorney, blackfellas would have remained liable for insulting language in public, but Mr Murdoch may have ceased to be liable for insulting blackfellas because of their race.

Both of the current laws would seem to be right to protect the peace even for a medieval people based on caste. They look to be inevitable for a modern people who proclaim equality and tolerance. If you can be liable for insulting language, is the case not stronger if the insulting language is racist?

What was the federal government trying to do? The Attorney, it seems, and others in positions of political pull, and who have the same ideological objective and drive, say that the second law unduly restricts what is called ‘freedom of speech’. This term has no defined legal effect. If you look at our law as a whole, the term ‘freedom of speech’ standing alone is at best a sad myth. It means even less than the ‘chilling effect’ that the press successfully invoked to persuade every state government to change all the state libel laws and make them uniformly better for the press – and uniformly worse for everyone else, except possibly the politicians who did their bidding. (As it happens, every culprit was a Labor Party government.)

The Attorney says that because it is unlawful to insult blackfellas on the ground of their race, ‘freedom of speech’ is eroded or restricted. In truth, the Attorney has been talking bullshit. I use that word in the sense used by Professor Harry G Frankfurt of Princeton University in his book On Bullshit: ‘It is just this lack of connection to a concern with truth – this indifference to how things really are – that I regard as of the essence of bullshit.’ An indifference to how things really are defines our politics in Australia precisely.

Our law of libel makes people strictly responsible for publications that harm people by making others think less of them. If this happens in political discussion, there is no defence under an implied constitutional right unless the publisher has been reasonable or if the publisher has been shown not to be honest. The Attorney cannot ask the Commonwealth to change those laws – they are subject to state legislation or are laws made by the High Court. Those laws are part of the protection that people have against being hurt by the press.

When people talk about increasing freedom of speech, they are also talking about reducing our protection against our being hurt by the press. ‘Freedom of the press’ is curtailed by legal restraint; those restraints are there for our protection and benefit; if you increase the freedom of the press – under the label of freedom of speech – you are curtailing our rights to protection. The real issue is not about freedom of speech, but the power of the press. The first is illusory. The latter is sadly real.

If your constitution protects freedom of speech by stopping laws from interfering with it, the phrase has real content. The same phrase seems to give a kind of charge to those who cherish the patina of a university education, but who cannot hold down a real job. Otherwise it is, I am afraid, just bullshit.

Whether he knows this or not, the Attorney has been seeking to increase the power of Mr Murdoch and others in the press at the expense of the blackfellas and others who are less able to protect themselves. We ought to be very worried when politicians in power seek to make real people bend under some abstract precept that the politicians and their mates have ken a shine to. The Attorney and those who direct or sponsor him and those who are his acolytes should be ashamed of themselves. Instead, they are just sulking.

The reasoning is set out in the attached: click here FREE SPEECH

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