Tony Abbott should seize free speech as election issue

TONY Abbott has been gifted a new election issue that he should seize: a Labor Party ready to restrict political debate and valid expressions of view by the Australian people.

Labor's response to the Andrew Bolt case has been a wall of silence.

There is no doubt, however, this is a Labor law and the judge's decision that further represses political debate is seen as a Labor value.

Unless overturned on appeal (if there is an appeal) this law will haunt Labor and constitute another chapter in the degeneration of its culture, a process now dangerously advanced.

Indeed, it is hard to find a more perfect example of the trap of political correctness and the legal-human rights culture of legislating for good behaviour than this application of the Racial Discrimination Act. It plays into Abbott's favourite political crusade: Labor's capture by elite special interests that patronise the Australia people and insist on laws that restrict debate in a way most Australians will not accept.

There is one certainty. Labor will pay a political price. This has yet to dawn on caucus because of the range of more serious problems that Labor faces.

But Abbott and shadow attorney-general George Brandis have taken the decision that counts. They intend to punish Labor on free speech and punish it hard. In Abbott's hands, however, this assumes a lethal import.

In his oped on this page on September 30, Brandis said: "If the Bolt decision is not overturned on appeal, the provision in its present form should be repealed."

There is no shadow cabinet decision to this effect. But Abbott and Brandis have consulted and, in effect, have decided. It signals a new cultural attack on Labor on grounds of political correctness.

This penetrates to values and Abbott loves a clash over values. Imagine his message: Labor wants to gag ordinary Australians (yes, the outsiders) who speak out against the values prescribed by the insiders.

The split between Labor and the Coalition seems to be wide. Brandis told The Australian yesterday: "If I was to become attorney-general in an Abbott government I would make defence of freedom of speech one of my most important priorities."

Only a fool could mistake such signals. If the decision by Justice Mordecai Bromberg stands, then Julia Gillard as PM should commission a review of the 1995 amendments to the Racial Discrimination Act that were relevant in the Bolt case.

Such a review would signal Labor's willingness to rethink the act. But it is improbable because these were Labor amendments and for many the Bromberg decision is exactly what the law was designed to achieve. Labor, in effect, is trapped. The defeat of Bolt, one of its hate figures, is seen as a victory for Labor values, for human rights and against hate speech and racial intolerance.

There would be uproar if Gillard signalled she was unhappy with the law or its implications.

The issue here is not Bolt. His articles contained many mistakes. Indeed, there is a persuasive argument on journalistic grounds that they should not have been published and former editor of The Age Michael Gawenda has said he would not have published them.

Nor does the notion of Bolt as free-speech martyr have the slightest traction, given that few other people have enjoyed the benefits of free speech for so long.

If the law were merely limited to race hate there would be no issue. But it isn't. The heading on Part 11 A of the act refers to "racial hatred" but, as Justice Bromberg said, its provisions are not restricted to racial hatred or racial violence.

Any argument this law is necessary to protect Jewish, Aboriginal or Muslim communities from racial hatred is false because the law extends far beyond such purposes. It makes behaviour unlawful in a racial context when it is likely "to offend, insult, humiliate or intimidate". This is a conspicuously low threshold. Brandis describes it as a "grotesque limitation on ordinary political discourse".

Judge Bromberg sees the purpose of the act as being to promote tolerance in a multicultural society and he makes findings within this framework. In short, it is about respect in a multicultural society, a threshold lower than the defamation test. The certainty is that Australia's robust political discourse will sometimes fail this test.

Should Pauline Hanson have been subject to legal action for her comments about Aborigines? Or would this have only been counterproductive? How far should the state go as political censor?

The act has a series of exemptions on free-speech grounds including "fair comment" in the public interest. But Bromberg found Bolt failed to qualify because his articles were inaccurate (a completely valid call) and written in inflammatory language that used mockery, derision and cynicism.

This showed that Bolt "failed to honour the values asserted by the RDA" and that his articles reinforced "racially prejudiced views".

The core message is apparent. "Insufficient care and diligence" was displayed by Bolt in upholding the values of the act and, as a result, he was not entitled to exemption on free-speech grounds.

Prominent lions from the cultural industry are now cheering a finding that you can have free speech provided you meet the required standard of politeness.

Yes, they are a farce.

Nobody pretends free speech is unfettered. Yet the limitations revealed by this judgment are significant. So is the reaction. What counts in Australia today is politics and ideology: the wider debate increasingly reflects the view that "provided I agree with you I will support your free speech, but if I don't then I will oppose it".

This strange mood is driven, above all, by the failure of the progressive forces to carry the nation with public hostility to carbon pricing the prime exhibit. This was the policy enshrined by the progressive forces, yet it is the policy that has ruined Gillard. The upshot is a tide of anger and resentment that rises and falls within Labor and its cultural backers.

Labor has stumbled into a print media inquiry that may be toothless, constructive or hostile to print media operations. Who knows?

Frankly, not Labor. Meanwhile many of its cultural backers are irrational about Abbott and fan hostility to shock jocks, the so-called Murdoch media, while betraying their resentment of an Australian public that still backs Abbott.

It would be a disaster for Labor to become party to the new political correctness. Doesn't Labor see this is not about Bolt? Doesn't Labor grasp that this issue plays directly into Abbott's entire political narrative? Doesn't Labor grasp that stifling debate is a sure loser with the voters?

And when will Labor get some mainstream common sense into its values? If it doesn't, it faces greater electoral erosion.