Andrew Bolt and free speech


Andrew BoltMelbourne Herald Sun columnist Andrew Bolt's appearance in the Federal Courts this week has posed questions about eugenics, identity, race, free speech and welfare fraud.

Nine Indigenous Australians are suing Bolt in a human rights file for breaching the Racial Vilification Act due to what they perceive as gratuitous insults based on race and skin colour that appeared in a number of columns published in 2009. They assert that Bolt's statements claim the fair-skinned Aboriginal Australians 'chose' their identity in order to access 'serious perks and Aboriginal-only benefits', and personally attacked the nine individuals.

Some voices in the media have presented the case as a challenge to free speech in Australia — political correctness gone crazy. However, this case is not about silencing critiques of the construction of race or ethnicity, nor Bolt himself.

Those who fear a breach of freedom of expression in this case need fear only if they intend to engage in personalised attacks based on the racial or ethnic character of their opponents.

Where freedom of expression is enshrined, it cannot reasonably be absolute; moderation is necessary to protect individuals from defamation, violence, and undue vilification. If we believe in liberal expression, it is not our duty to advocate in favour of hate speech and misrepresentation, but rather to understand and critique the political motivations that form the policy which moderates it.

As a high school student, my introduction to liberty ran along simplistic lines: you can do anything, anything at all (an exciting proposition for an adolescent), so long as your doing so does not infringe on anybody else's right to do their 'anything'. So, not really anything (less exciting, more adult).

In a healthy society, liberty is moderated and directed by a sense of some greater good, whether that is social, moral, or legal. Absolute liberty is dystopic, best avoided. Freedom of expression follows similar lines: Bolt can say anything he chooses, so long as his words do not infringe on a person's moral right to enjoy integrity and a reputation that befits her.

While it's conceivable that a person could disingenuously tick the Indigenous or Torres Straight Islander box for some imagined privilege, the real-world benefit in doing so is so minuscule it barely warrants concern. Shrill accusations against the poor of welfare fraud are ubiquitous. Their reality is far less threatening than is the cost of tax evasion by Australia's wealthy.

One of the many problems with Bolt's claims against the plaintiffs is the subtext of his argument: that these people choose, enjoy, and exploit benefits they receive on the basis of their race without paying their dues (i.e. without suffering from racism).

Bolt accused artist Danie Mellor, a 'white university lecturer, with his nice Canberra studio' of pushing aside 'real draw-in-the-dirt Aboriginal artists', seeming to imply that since Mellor neither draws in the dirt nor lives in it, he therefore has no right to enter competitions for indigenous artists.

To Bolt's understanding, affirmative action, or the 'significant benefits' awarded to Indigenous Australia, is payoff for the inevitable disadvantage and racism they experience due to racial appearance. Discrimination they might endure, then, is balanced out by enjoying, he says, 'more rights' than anyone else.

It is apparently inconceivable to Bolt that Indigenous-specific grants and opportunities might constitute coy reparations for the irrevocable damage and impoverishment wrought by settlement and more than a century of systemically stolen children.

The nine plaintiffs, including the leader Pat Eatock, are native title activist Graham Atkinson, academic Wayne Atkinson, professor of law and Indigenous studies and Australian of the Year 2005 Larissa Behrendt, former ATSIC member Geoff Clark, artist Bindi Cole, public health worker Leeanne Enoch, author Anita Heiss, and lawyer and academic Mark Macmillan.

All are accomplished professionals whose racial backgrounds, if that is important, are mixed. All nine have dedicated their careers to significantly advancing Indigenous affairs in the public sphere.

If their racial identity has given them any advantage, it is the advantage of having feet firmly placed in two nations. If anything can be said to have benefited from their professional and cultural contributions, it the idea that Australia could recognise and meaningfully reconcile with its history.

Bolt is accused of gratuitously and intentionally insulting and humiliating the nine plaintiffs quite simply due the colour of their skin. Their case argues that a legal provision enshrining racial equity — in a nation whose awakening from racist and racialised policies is ongoing — has been transgressed. The outcome to this complex case carries a great weight. 

Ellena SavageEllena Savage is a Melbourne writer and the immediate past editor of the Melbourne University student magazine, Farrago

Topic tags: Andrew Bolt, Pat Eatock, Graham Atkinson, Wayne Atkinson, Larissa Behrend, Geoff Clark, Bindi Cole



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Existing comments

The irony is that the Rights Nine could have sued Bolt for defamation under traditional common law, and won hefty damages that way. So the conservative opponents of vilification laws can't complain that "political correctness" is some novel threat to free speech. Threats have been there all along.

On the other hand, saying "of course free speech isn't absolute" is also high-school-level trite. The real question is: what limits are acceptable, and who adjudicates them? Assume Bolt loses and the law gives the likes of Geoff Clark a handy legal weapon to quickly shut up journalists who might inquire too closely into their backgrounds. Is that going to help Aboriginal Australians? And why is it all right for critics to question whether Sally Morgan, Faith Bandler and Roberta Sykes had pre-1788 ancestors, but raaaaaaaaaaacist!!!! for other critics to raise similar questions, and for the distinction to be based on the critic's own ethnicity?

Rod Blaine | 01 April 2011  

Sorry to disagree - but Bolt has the right to express an opinion. He was commenting on a political process that could potentially be manipulated in the way he specified and he surely is allowed to express the view that it may have happened in certain cases. I am very pro Koori - but this case against Bolt is against free speech and has been a political attack on him from the start. He is a fine journalist as are many others in Australia all across the political spectrum and he has the right to express his view.

Skye | 01 April 2011  

At school you were told you "could do anything ..."
At school I was told I "could be anyone".
What's the difference when one is identified by what one does?
The point is Bolt was/is the aggressor on the offensive attacking a minority.
So the applicants are really the respondents; the defendants to Bolt's unjustifiable offence.

Greig WIlliams | 01 April 2011  

It is so hard to put principles before personalities, so I won't go there. I'll leave it to the court to decide if the Racial Vilification Act has been breached by Mr Bolt. That is what I like about freedom under the law as a sound principle for the behaviour of citizens in a democratic pluralistic (and in Australia's case multicultural) society.

Uncle Pat | 01 April 2011  

Interested readers may want to read what the PEN (Poets and Playwrights, Editors and Essayists, and Novelists) Charter asks of freedom of speech/expression.

Joyce | 01 April 2011  

Sure; free speech is desirable - and so is fairness. A balanced publication of various views should be the aim and action of our mass media.

Unfairly and unfortunately, some with less than balanced viewpoints,such as Bolt and Alan Jones, are given an unfair advantage. Figuratively, they are allowed to shout while others can only whisper.

Bob Corcoran | 01 April 2011  

So, Bob Corcoran, (putting aside the question of why more people pay attention to Andrew Bolt than to, say, Phillip Adams on Indigenous issues)... Do other people with opposing views enjoy this same right - to identify public figures who "shout while others whisper", take them to court and have them silenced for views they have expressed? Or is it only people you agree with?

It would be hard to deny, for example, that around 75-80% of journalists in Australia are not merely pro-abortion but openly sneer at the anti-abortion movement - they make no pretence of impartiality on the issue. Does the Bob Corcoran principle mean that, say, Right to Life can take its critics to court on the grounds that the pro-choice movement gets to "shout while others whisper"?

It's a good argument for a right of reply law. It's not a good argument for "Shut up, you horrible racist! You're hurting me deeply!" law.

PS: When Howard abolished ATSIC, there were screams from the usual quarters that this was a racist attack, neo-colonialism, etc. Then, once tempers had cooled, when Aboriginal leaders later took steps to create their own national Indigenous congress, they fell over themselves to assure everyone that this was not going to be "another ATSIC". Funny that...

Rod Blaine | 01 April 2011  

I feel for Andrew Bolt. I have some jewish ancestry, one grandparent was jewish however, the vast bulk of relatives were Irish Catholics. When I see schemes which offer some financial benefit for Jewish people I don't consider applying for them nor do I believe I am entitled to apply for them as I have no ties to the jewish culture, religion , and I never even met my jewish grandFther.

I certainly have encountered people who identify themselves as aboriginal when they have as much tie to that culture as I do with the jewish culture yet they are accessing special benefits which I believe should be reserved for people who can demonstrate more aboriginality

catherine | 01 April 2011  

I thought Bolt was being tried under the provisions of the Racial Vilification Act.
We have drifted a long way from the point Rod Blaine made first up.

As an Irish-Australian whose ancestors suffered under "John Bull's tyranny", I support the Racial Vilification Act, partly out of sympathy for the Aboriginal tribes who suffered under British colonialism. I admit my prejudice in favour of trying to redress the wrongs done since British settlement.

I also support anyone in Australia, who identifies as an Aborignal and is accepted by the aboriginal community as one of their own,applying for any government assistance reserved for people of Aboriginal descent.

In my book any such person is entitled to what he or she can prove themselves worthy of - no matter the colour of their skin.

Uncle Pat | 01 April 2011  

"Free" speech does have its limits: e.g. maliciously causing panic in a packed theatre by calling out "Fire" is one example.

As for Bolt, by wrongly claiming that "non-Black" Australians falsely claim what VERY little is available for "Black" Australians, he is effectively calling anyone who does not meet his own idea of the "correct" shade, a thief.

I can't think of anyone of any colour who would find that acceptable.

As Rod Blaine pointed out, the complainants are/would have been entitled to sue Bolt under long-standing common-law provisions. Good luck to them!

Patricia | 01 April 2011  

Ever since I saw Andrew Bolt vilified and derided while a member of a TV panel interview I have admired his calm, courageous and reasoned debate with his opposition. I can't imagine a man of this calibre stooping to racist vilification.

Obviously, he has been misinterpreted and misunderstood. I believe that we are lucky to have people like him in the public arena.

millie | 01 April 2011  

Patricia - umm, thanks but I should have made my point clearer. The traditional common law of defamation was far too repressive and needed to be liberalised, in particular by making truth a near-complete defence when the plaintiff is a public figure. I don't consider it progress to liberalise defamation laws but then replace them with over-expansive definitions of "racial discrimination" that have the same censoring effect (has Bolt denied a Aboriginal person a job, or excluded them from a pub?), just as I don't consider it progress for Victoria to repeal its blasphemy laws but then replace them with "religious vilification" laws that in effect put Islam on the same pedestal that Anglicanism used to occupy.

I am still trying to work out how "Any person who claims to be Aboriginal shall be irrebuttably deemed Aboriginal and it is defamatory and/or discriminatory to question their claim" is going to materially help Australia's Indigenous peoples, especially with (as noted) a limited pot of funds set aside to assist them.

Rod Blaine | 02 April 2011  

Thankyou Ellena for your article above. I have grown tired of listening to Andrew's one-eyed political opinions given and affirmed weekly on our National Nine's morning TV show; never questioned or critiqued by any other main stream media.

He should be held to account for his actions by our socity' laws based on ideals perhaps already lost by many; and our judicial system will take its course. Ironically, Andrew himself has arrogantly tried and sentenced many people (except Liberals) daily in the public media according to himself, for years.

Michelle | 02 April 2011  

Whilst I appreciate the thrust of the author's comment, I do worry that in all the emotion of this altercation of perceptions and perceived rights, we may not see the bush for the trees! The matter of ethnic identity is not an issue to me, but the misuse of resources by any group is a concern. Further, if we are naive enough to believe it isn't occurring we are most deluded!

RonW | 02 April 2011  

People of all nationalities come in a wide range of colours, shapes and sizes. This has nothing to do with funding reserved for Aboriginal people as a means of acknowledging past(and present)injustices and helping to redress the balance.

The Racial Vilification Act needs to be enforced when people like Andrew Bolt believe that Aboriginal people don't deserve assistance unless they are dark skinned and therefore wearing their suffering and politics on ther backs.

Annabel | 02 April 2011  

For about 48 hours there I was hopeful that the media circus surrounding Fiona "Boycott Israel" Byrne might have been a teaching moment for some of the more censorious people on the Left - a lesson that stretching the definition of "racism/ racial vilification" so far that it criminalise people for expressing their opinions about matters of public policy can boomerang, and might catch people other than those ghastly right-wingers who deserve whatever they get.

Unfortunately it doesn't seem this lesson has sunk in yet, and the natural human impulse to say "I detest them, therefore their rights don't matter" is still widespread.

Rod Blaine | 02 April 2011  

Catherine your religious background has nothing to do with it.

Marilyn Shepherd | 03 April 2011  

I wonder if those whining about the BDS against some Israeli companies even know when and how it started and who started it.

I agree with it, so does Desmond Tutu.

Marilyn Shepherd | 03 April 2011  

... And this, kids, is why Australia has not adopted, and probably never will adopt, a Bill of Rights:


(a) the great unwashed object that "A Bill of Rights would help bikies/ convicted criminals/ Muslim refugees/ Scientologists/ etc, and we don't like those sorts!"); and then

(b) the progressive folks who support a Bill of Rights reply that "No matter how much you dislike bikies/ convicted criminals/ Muslim refugees/ Scientologists/ etc, they still have rights that must be respected"; but

(c) in turn, the progressive folks who support a Bill of Rights have an unimpressive record when it comes to sticking up for the rights of their own ideological opponents.

Rod Blaine | 03 April 2011  

I worked as a doctor for an aboriginal health service and whenever I heard complaints about favoured treatment for our patients my response was simply to ask who would want to change places with any one of them for one day. The silence was, as they say, deafening.

graham patison | 03 April 2011  

"4—Racial vilification

A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by—

(a)threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or

(b)inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group".

Whilst no fan of Andrew Bolt, I will await to see how his uterances will be judged by the courts on this matter.

Chris P | 04 April 2011  

Let's get back to Ellena's first few paragraphs where she suggests, as I read her, that the case is firstly about whether Bolt 'intend[ed] to engage in personalised attacks based on the racial or ethnic character of [his] opponents'.

The question will in due course be determined by a judge according to law. If Bolt looses, it won't change him. He will still continue with the nasty personalised attacks which are at the same time the hallmark of his style of journalism and what makes him so valuable to his employers. If he wins, it will not mean that he is morally right or that that his style of journalism is socially acceptable, let alone useful, positive and productive. It will just mean that he has not broken the law.

Bolt is obviously intelligent, articulate, shrewd, and street-wise. He knows what sells, and he knows the limits of how far he can goad. He may even believe that he is contributing to the good of society. But he is not the sort of person I would want as a friend.

Ginger Meggs | 04 April 2011  

There are more than half a million Indigenous people across Australia. More than twenty six thousand of those have university degrees and diplomas, around three thousand at post-graduate level. By 2020, those numbers could double. How many scholarships, bursaries, stipends, grants, fellowships, etc. would have been available over the past ten years specifically for indigenous people ? Perhaps a thouand, ten thousand ? So how strange it is that some of the one thousand Indigenous academics and others have been the beneficiaries of half a dozen and more of these awards ? How many of the beneficiaries have sat on selection panels for the next round of beneficiaries ? Now, THAT would be interesting Indigenous Research - if it could get past the Indigenous Ethics Committees :) There is no need to fuss over some tiny elite, some favoured few, some precious Exceptions. Around 15-20 % of all young Indigenous people can expect to graduate from university these days: it has become truly a mass enterprise, and it will never be for just some tiny elite ever again. Spread the awards around: nobody should be getting more than their share, no matter what significant advance they may have made, or are about to make, in Indigenous affairs.

Joe Lane | 04 April 2011  

Imagine for a moment that Bolt does end up giving in, apologising, admitting that he was mistaken in assuming the Nine were merely whitefellas, and assuring the court that - now that he is aware they do in fact have actual Indigenous ancestry - he withdraws his harsh words about them being undeserving. That's one way Bolt can avoid the label of being a racist who considers Aborigines inferior to non-Aborigines. Ironic really.

Rod Blaine | 04 April 2011  

Rod Blaine ... Um, I suppose you must mean 'ironic' in the Alanis Morissette sense of the word.

Charles Boy | 04 April 2011  

No, I meant it more in the "What? A government headed by Paul Keating, of all people, passing laws against 'hatred'?" sense of "ironic".

Rod Blaine | 04 April 2011  

We each have four grand-parents, eight great-grand-parents, sixteen gt-gt-grand-parents, and so on. As i understand Andrew Bolt's interpretation of that fact, he is making no more than the mundane suggestion that we can all choose from those ancestors what our preferred ancestry might be; Irish, Welsh, Scottish are favourites amongst peopole who have all of those as well as English.

In other words, we don't have to take on all or even most of our ancestors' ancestry - we can pick and choose. I've always claimed to be Irish and Scottish, on the strength of a rumour about my father, but it appears he may have had English ancestry; and my Scottish grand-father may also have had predominantly English ancestry. Sigh. But I'm still Irish and Scottish. That's my choice :) And there's not a cadetship or scholarship or accolade in sight !

Joe Lane | 04 April 2011  

You miss the point of this whole legal exercise, which is to criminalise expression of opinions, something not yet happening in British Common Law where free expression is not yet split into free speech and hate speech, the latter category enabling individuals to pursue defamation action on the cheap because of a non-existing proof-threshhold. Anything that is 'likely to offend' is actionable, and that is the injustice of it all.

The first to go along this path of using the RDA in Australia were Jewish interests aiming to criminalise the Holocaust-Shoah debate.

My legal persecution began in 1996 and ended on 12 November 2009 when I emerged after a 3-month stint in prison.
And still I refuse to believe in the official Holocaust view that Germans during World War two exterminated six million Jews in homicidal gas chambers.

Dr Fredrick Toben | 05 April 2011  

It is great to read a more nuanced take on this case, particularly now that Bolt has admitted that he is not bothered by the errors of fact in the offending article.
Bolt is the man yelling 'Theatre' in a burning building.

Shane Maloney | 05 April 2011  

Dr Toben was imprisoned for 3 months not because of any conviction under the Racial Discrimination Act, but because he was found guilty of contempt of court. There is a difference.

Ginger Meggs | 06 April 2011  

Given more the recent revelations that have emerged about what Professor Bahrendt considers an acceptable standard of public discourse, perhaps Eureka Street could discreetly remove this article and re-post it in another week or so, so that everyone who has waxed eloquent above about the very deep and very real injury that Aboriginal women suffer when people hurt their feelings can re-post with comments about how free speech in a democracy must be robust and authentic even if it seems offensive to some. Oh, and Michael Lavarch thinks that laws he drafted as Attorney-General in 1995, which might help his current girlfriend win a lawsuit in 2011, are just great. Hold the presses.

Rod Blaine | 16 April 2011  

In reply to Rob Blaine, Sally Morgan's mother was 50% black, her grandmother who lived with them, 100%. Both disinherited and dispossessed of their homeland and culture and lived as "Indians' in fear of losing Sally and her siblings to the orphanage. Careful who you categorise.

Danny Rose | 27 May 2011  

As I understand things, our society wishes to help parts of it that are in need, and many aboriginal people and communities fall into this category and should be helped.

We should not ignore the fact that there are people who identify with the aboriginal community who are NOT in need, and I fail to see why, for instance, their kids should get greatly subsidised university education when their neighbours' kid don't.

It looks to me as if the ATSIC leadership contained people who had received public support as if their were in need when in fact they were no more needy than many Australian who have to make their own way. A just system would target the support at those who need it, not those who simply claim it based on ethnicity, real or imaginary.

Eric George | 06 June 2011  

As an aboriginal youth I constantly find my self confused as to why its ok to offend anyone. I state facts that are true and dont target anyone but just because i'm an aboriginal they are denounced as black arm band.

This isnt a free country, I ask mayors, councils,state and federal MPs, politions and anyone in a position of power these questions with no answer. Due to Australia not having a treaty, terra nullius has been proven wrong, the crown never declared war all leads to a false claim to this country. with a lack of bill of rights for Indigenous peoples and no acknowledgement in the constitution and able to change the law when it suits, choose when its ok to discriminate on the basis of race.

Should I even bother to interact with society, these are the questions aboriginal people face every day and society ignores every day? I feel main stream australia are condoning this low life way of ignorance.

Instead of commenting about aboriginals first get to know one, if you want to help address some of the issues that affect us every day. wheres the effort from your side. aboriginal people are now focused on going international, aussies dont care.

PS you can only get funding if you have proof of aboriginality (community endosement) which they had. you can find this stuff out for your self if you try

traditional owner | 22 June 2011  

graham patison has a clue

you couldnt walk in my shoes

lets swap and see who has the options

traditional owner | 22 June 2011  

Look at the title of the stories he wrote then say it's not a race issue, As an Aboriginal youth I expect my elders to fight for our rights and I'd like to say thank you to the strong and very smart people that exposed his lie's. The ignorance of this tool to think he knows the law well my people know the law better then him. your not very smart or he would have won. My people didn't sign our land away so you could give it back. It takes one drop of Aboriginal blood to be part of the Australian race. Australia is a nation not a race. England have their own stolen generations ( who got compo) so why wouldn't it happen here. pay land tax to Aboriginal people and their would be no disadvantage. if you're worried about so called advantages you could pay us compensation then abolish any programs. to fair for your liking, ignorance is bliss.

Sam | 12 October 2011  


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