Everyone's free speech is important, no matter if you agree or disagree with Andrew Bolt
Last year, a number of plaintiffs commenced legal proceedings against Herald Sun columnist Andrew Bolt over two columns he wrote, which questioned their decision to identify as Indigenous when they were Caucasian in appearance, and had apparently suffered few if any of the disadvantages suffered by Australian Aboriginals.
There is no doubt that Bolt’s columns did embarrass and offend the plaintiffs. The columns suggested that each of the plaintiffs has embraced an Aboriginal identity in order to enter competitions and receive accolades they otherwise would not be eligible for, and/or because it is fashionable in the arts, academia and the political left generally.
It is also worth noting that the plaintiffs were not seeking financial compensation. The orders they sought included a declaration that Bolt’s offending columns were unlawful, and an order prohibiting Bolt from publishing similar columns in future.
Instead of suing for defamation, the plaintiff’s lawsuit against Bolt was made under Racial Discrimination Act 1975 (“the Act”). Section 18C of the Act provides that:
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Put simply, two of the main legal questions before the court were therefore whether the columns were likely to offend and humiliate the plaintiffs, and whether this was as a result of their race or ethnic origin (is racial identity substantially the same as “race” in s18C?).
In the end, Bromberg J held that Bolt has breached the Act. I believe that the court’s decision has resulted in an unacceptable encroachment on the right to free expression, as I will attempt to explain.
It should be obvious that banning speech simply because it offends or may offend others is not a sensible position. There are many views which offend others – Catherine Deveny’s Bondi Irwin tweet, Sheik Al-Hilali’s grossly inappropriate sermons which liken Australian women to cat food and the Green’s policy of boycotting Israel are examples which come to mind – but none of these controversial views resulted in anyone being sued or prosecuted, even though they may have offended many more than Bolt’s columns. To my mind, tolerating offensive views is a small price to pay for freedom of expression, particularly in light of the fact that any view may potentially offend those who do not share it.
It is equally apparent that speech should not be unlawful merely because it is wrong. Humans make mistakes, and in a free society others can respond by pointing out the errors. Indeed, at the hearing Bolt suffered the embarrassment of having to admit that he had made factual errors when writing the columns. Those mistakes could have been pointed out without having a trial.
However, the law of defamation does exist to protect individuals and corporations from untrue and unprovable allegations. If the plaintiffs felt they had been defamed by Bolt, they should have sued him and the Herald Sun for defamation instead.
Bolt’s offending columns touched on a taboo subject. No other notable commentators in Australia have really explored the issue of racial identity in the case of individuals who are only a fraction Aboriginal, and choose to identify as such, even though they may be ¾ Caucasian, or otherwise only part Aboriginal, yet raised by non-Indigenous relatives.
Why such individuals make such a choice is an interesting subject. Some of the plaintiffs claimed that they had no choice but to identify as Aboriginal. But did they, as Bolt suggests, because doing so is fashionable and leads to privileges and prizes which would otherwise not be available to them? Is it because they care deeply about Australia’s Indigenous peoples and want to help them by advocating on their behalf? Or are other motivations at play? Whatever your views on this issue, this is a legitimate topic of public discussion where people should be able to express their views.
More broadly, the question arises as to what qualifies one to speak on behalf of Indigenous Australians, or any other group. The plaintiffs who sued Bolt are quite urbane, and do not appear to live in public housing, or suffer from the same disadvantages as “average Aborigines”. Additionally, they do not even appear Aboriginal, indicating that their genetic connection to Indigenous Australians is quite tenuous in some cases.
It would also appear that in many cases the concerns of “Aboriginal Elites” are far removed from the Indigenous population as a whole. I note that whilst alcoholism, violence, sexual abuse and other crimes are out of control in some remote Indigenous communities, the chief concern of the Aborigines who attended the 2020 Summit in 2008 was the establishment of another ATSIC.
Furthermore, the question arises as to whether individuals whose claim to Aboriginality is weak should be entitled to enter competitions and win prizes and positions at the expense of Indigenous individuals who have suffered real disadvantage from being Indigenous. If the main reason we do offer such prizes and positions is that Aboriginals are a disadvantaged group, then broadening eligibility to the barely disadvantaged would appear to undermine that purpose.
Clearly there is utility in having a debate about racial identity. This is not a subject which should be prohibited from public discussion. However, as The Australian reports, there are many groups who would seek to use the Racial Discrimination Act to silence their critics. A win for the plaintiffs in the Bolt case could have resulted in any discussion on race related matters becoming potentially unlawful. It would have set a dangerous precedent. Submissions by the plaintiff’s Counsel that this case does not concern free speech are plainly wrong.
In the end, common sense prevailed. But things could be very different if the plaintiffs had prevailed. All supporters of free speech should celebrate, no matter what they might personally think of Bolt’s many controversial writings.
I remain an unrepentant rebel who is bravely fighting the evil Green establishment, standing for truth, good sense, and cautious action rather than wild economic cavorts with outrageous government run Ponzi schemes (AKA the Carbon Dioxide Tax) and other questionable nonsense propagated by the Profits of the Green religion.
