"It's fundamental, I think, to note that last point, that (the judge is) saying this area is not a no-go area, the sort of issues that Andrew Bolt referred to; it's only that in the judge's view he didn't do it in a way that complies with the Racial Discrimination Act," he said. "And I think there would be a very clear and worrying risk for free speech, and I think also to eventual social cohesion, if this issue or this case was seen as establishing a no-go area."
Justice Bromberg said his judgment did not ban debate on racial identity issues if it were done "reasonably and in good faith in the making or publishing of a fair comment". "Nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people," he said.
"Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism."
Freedom of expression
Justice Bromberg outlined and explained the state of the law regarding freedom of expression at some length [227-239]-it's place in international instruments , in Australian constitutional law  and as a fundamental common law right [231-234]. However "the fact that the right is not unqualified is also unequivocally the case in each sphere [235[.
238. The right of freedom of expression at common law is, by definition, qualified by those exceptions otherwise provided by law. The law of defamation imposes significant limitations on freedom of expression. Other laws imposing limitations include laws dealing with blasphemy, contempt of court and of Parliament, confidential information, the torts of negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions dealing with obscenity, public order, copyright, censorship and consumer protection place restrictions on the exercise of the right to freedom of expression. These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression.Breach of RDA
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
Eatock also relied upon a number of principles taken from a “Statement of
Principles” issued by the Australian Press
Council. Those principles
include the following:
- Publications should take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately mislead or misinform readers either by omission or commission.
- Where individuals or groups are a major focus of news reports or commentary, the publication should ensure fairness and balance in the original article. Failing that, it should provide a reasonable and swift opportunity for a balancing response in an appropriate section of the publication.
- News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.
- Publications are free to advocate their own views and publish the bylined opinions of others, as long as readers can recognise what is fact and what is opinion. Relevant facts should not be misrepresented or suppressed, headlines and captions should fairly reflect the tenor of an article and readers should be advised of any manipulation of images and potential conflicts of interest.
- Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.
- Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas.
- Ms Eatock contended and I accept, that the Australian Press Council’s Principles can be regarded as an industry standard. There was evidence that those principles are consistent with those adopted by HWT. She argued that the failure of Mr Bolt and HWT to comply with those principles is demonstrative of a lack of reasonableness and good faith. I need not assess the conduct in that way. It is however of some comfort to the ultimate conclusions I have reached to note that the normative standards of the industry in question recognise that freedom of expression is to be utilised fairly and with reasonable sensitivity.