It is hard to believe that this trial alleging ‘racially aggravated harassment’ against Sam Kerr is going on. 

I need hardly declare my bias, which will be shared by most Australians, and followers of sport.  Sam Kerr is one of the best footballers I have seen, and something of a national idol.

For a start, it had not occurred to me that Sam was of a different race to me.  If I had wondered about her complexion, I may have repeated the error I had made with Stan Grant about twenty years ago – until I was corrected, I thought he had spent too much time in a solarium.  But, then, in the 1950’s, when this nation’s traditional racism was at its peak, a federal MP asked whether Italians or Greeks – wogs or dagoes – were truly white. 

It all shows how careful we must be – it appears to be accepted that a reference to the colour of a person is a reference to that person’s race.

The accused was obviously drunk, and police are trained and paid to deal with problems that that condition might lead to.  It is remarkable that a whiter copper can be hurt actionably under the criminal law by a drunk referring to the colour of his skin while she abused him.  What if she had added that he was a ‘he’, and a straight one to boot?  Could he get some furlough to recover his composure and become whole again?  The copper could not claim to have been hurt as a member of an oppressed minority.

It gets worse.  The court has been told that the informant did not allege personal hurt when the charge was first formulated.  He only did so after he got knocked back by the officers of the Crown.  As a lawyer, I would feel uncomfortable in presenting such a case.  It had enough whiskers on it already.

Then the charge is one of ‘harassment’.  On my reading of the dictionaries – Oxford and Macquarie – that involves repetition or persistence.  I do not see that hear.

And all this is not being dealt with by a magistrate in a morning.  It is being heard by a judge and jury in a trial lasting more than a week. 

Yet I keep hearing on Sky News UK that the criminal justice system in the UK is hopelessly out of control.  Are real victims of sexual violence not getting the protection they desperately need because a drunken woman has ruffled the sensitivities of a male copper?

What politics could drive this oddity?  Surely at some stage there was a polite high-level phone call.  ‘Do your members really want this?  Is it good for their standing – what people call ‘optics’?  This could be seen as a ‘test case’ and front-page news here and elsewhere.  During the war, the trains carried a message: ‘Is this journey really necessary’?  Even the Palace might be interested.  A conviction would be a real shot in the arm for republicans in Australia.’

It is not hard to imagine at least some on the jury busting to ask the judge: ‘On the off chance we decide to pot this woman – and God knows I have done a lot worse with a skin full – can you give us an assurance you will not put her inside?’

This and the Federal Court case against the ABC arising from comments made about Gaza show how tricky and dicey it is to make laws about what we can and cannot say in public about issues we are wont to call ‘sensitive’.  If you push the law too far, you degrade it.

The one thing that is clear to me is that cases like that involving Sam Kerr are blood to a tiger to people like Nigel Farage, Peta Credlin, Donald Trump, Elon Musk, and Peter Dutton.  It’s hard to imagine a Queensland copper taking any of this seriously, but Pete will do what he can do for the team.

Put to one side all that bumpf about freedom of speech – making penal laws to enforce manners that you regard as appropriate demeans the law, and gives a free kick to vacuous, malicious, ideologues.