A question of principle rather than money THE Federal Court litigation against Herald Sun columnist Andrew Bolt is at risk of triggering a new "chilling effect" that could take debate on the issue of race out of the media and into the courts. The litigation against Bolt over columns about light-skinned Aborigines could also encourage greater use of the Racial Discrimination Act for "quasi-defamation" actions that might otherwise have foundered. Media lawyer Nic Pullen says that even if Bolt wins, the cost of defending the case will send a powerful signal to the media to avoid publishing anything contentious on the issue of race. This will have a tremendous chilling effect in relation to how anything is reported on matters of race. And we are not just talking about Aboriginal issues, we are talking about all the communities here in Australia, whether they are Middle-Eastern, Pacific Islanders or others," says Pullen, the media law partner at HWL Ebsworth. A victory for the Aborigines who brought the case might at first appear to be little more than pyrrhic. The legal costs incurred by both sides are believed to be about $1.5 million while the potential financial benefit for the Aborigines is trivial. "They have said they are not seeking damages and if that is the case they are in the right jurisdiction," discrimination lawyer Jacquie Seemann says. The remedies sought by the applicants, at least initially, are limited to a declaration that Bolt's columns about light-skinned Aborigines were unlawful, an injunction against their being republished and a court-ordered apology. Even if they win and launch secondary proceedings for damages (as flagged in court) the payouts for racial discrimination are generally just a few thousand dollars. The potential downside for the applicants is enormous. Their own lawyers are acting pro bono and will be paid only if they win. But if they lose, they face ruin if they are ordered to pay Bolt's costs. The legal team defending Bolt is led by Neil Young QC, one of Melbourne's finest lawyers whose daily fee is substantial. This case is clearly about something far more important than money. "The real significance is that this case will set the boundaries on free speech," says Seemann, a partner at Thomsons Lawyers. And it will do so by applying the Racial Discrimination Act, a body of law that many lawyers had long feared would eventually create problems for free speech. "And that is exactly what it has done," says Pullen, who describes the class action against Bolt as almost unique. "It is really a quasi-defamation action dressed up as a racial vilification claim," he says. But there is a critical difference. It might be easier for plaintiffs to win under the RDA than it is under the normal law of defamation. Legal academic Frank Zumbo says there is already a belief that it is easier to sue for some form of discrimination or vilification than to rely on defamation. "There is that perception that it's easier to bring these cases in that jurisdiction," says Zumbo, a professor of law at the University of Sydney. His view is in line with that of media lawyer Shane Simpson, who does not support Bolt's views and describes his columns as "right-wing orthodoxy." Simpson says that if he were advising the applicants in the class action he would have urged them to use the RDA because "they would never get up on defo." Whatever the outcome in the case, there is a growing view that it will provide a green light for an unusual type of litigant: those who are prepared to sacrifice the prospect of big damages in order to sue the media under a body of law that favours plaintiffs. But the case could have an even broader impact. Among those who might be taking an interest in the Bolt case are those community groups with historical grievances against other community groups. Instead of resolving their differences through federal and state mediation services, they might now be tempted to make their points in court. Pullen fears the impact of this case will lead to what he describes as a type of "granny state" in which an entire category of subjects will be taken off the agenda for public discussion and debate. He predicts it will not be long before the media begins deleting references to the race of some groups of people for fear of being hauled in court and subjected to the Bolt treatment: hours of hostile cross-examination in which every word of contentious articles is subjected to parsing and every imperfection subjected to ridicule. The Bolt case, in Pullen's view, squarely raises the question of whether people in modern Australia are free to express honestly held opinions that might offend some people. If Bolt loses, the repercussions of the decision will also affect the Federal Court. This court could find itself responsible for a new jurisdiction in which activists seek to use the Racial Discrimination Act to limit public debate. Will this case promote new actions? Absolutely," Pullen says. He adds some community groups have long been trying to use the Racial Discrimination Act "as a sword" against their perceived rivals and the Bolt litigation would encourage that trend. The impact on society could be the very reverse of what was intended by those who designed the Racial Discrimination Act. Instead of easing bigotry and racism, Pullen says, the rise of litigation seeking to silence debate on the issue of race would only fan resentment and bitterness. I really do think we are living in a cotton-wool granny state if any judge looking at Bolt's articles considers they are capable of inciting someone to hatred of the Aboriginal race. That's nonsense. Pullen says Bolt's columns had clearly offended the people who had been named. But the answer was to use the law of defamation, instead of asserting they had been racially vilified.