5. Andrew Bolt and the Racial Discrimination Act

The background

In the “bad old days”, Australians distinguished between “full blood” Aboriginals and “half-castes” (and quarter-castes, or whatever). This distinction was part of the background of the Stolen Generation, in which light-skinned children were removed from their parents and indigenous communities. The distinction was absurd, because there is no biological basis for discrete racial categories. We are all on a continuum, of skin colour and whether our noses are long and straight, or flat and wide, and other characteristics. Racial categories are cultural, not biological. So classifying people by “blood” was replaced by allowing people to choose their cultural identity. This has led to people with some indigenous ancestry, and a lot of European ancestry, identifying themselves as indigenous. In some cases this may be valid, as children tended to be raised in indigenous communities, by their mothers, despite having “white” fathers.

In 2011, an action against Andrew Bolt and the Herald and Weekly Times for supposed offences against Articles 18C and 18D of the Racial Discrimination Act was brought by Pat Eatock, one of the women mentioned in the articles, and by the time it began eight other prominent indigenous Australians had become associated with the class action: Geoff Clark, Bindi Cole, Larissa Behrendt, Anita Heiss, Leeanne Enoch, Graham Atkinson, Wayne Atkinson and Mark McMillan.

The complainants asked that these articles be removed from the internet, not republished by the Herald Sun, and that the newspaper be banned from publishing any material with “substantially similar content”.

Lawyer Joel Zyngier from Holding Redlich, who took on the case pro bono, said: “We’re not seeking to make this a case about freedom of speech, because it’s not. The issue is essentially about whether or not other people can define identity, and in particular Aboriginal identity, based on how you look.”

“The prosecutors wanted to argue about Aboriginality, and not freedom of speech; the defence wanted to argue freedom of speech, and not Aboriginality.”

See:  “http://www.quadrant.org.au/magazine/issue/2011/5/andrew-bolt-on-trial”

On the 28th of September 2011, Federal Court Judge Mordy Bromberg found Andrew Bolt and his publisher Herald & Weekly Times guilty of a serious breach of the Racial Discrimination Act.

Bolt’s legal team, led by Neil Young QC, had relied on part 18D of the Act, which attempts to balance fair comment with the previous section, 18C, dealing with racial offensiveness.

In a summary of his 57,000 word judgment, Justice Bromberg said: “I am satisfied that fair-skinned Aboriginal people (or some of them) were likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles …

“People should be free to full identify with their race without fear of public disdain or loss of esteem for so identifying …”

See:  “http://www.crikey.com.au/2011/09/28/bolt-decision-guilty-of-discrimination-judge-declares/

So, Andrew Bolt was convicted racial vilification under the Act. Last I heard, Bolt and HWT were considering an appeal to the High Court.

Related articles
The following link discusses the case, highlghting especially the book recently published by one of the plaintiffs, Anits Heiss, Am I Black Enough For You?, in which she argues that no-one, especially a Westerner, has the right to define cultural identity of indigenous people. She says that race is a social construct, not an objective fact, and I totally agree with her about this. It seems to me though that she puts on Andrew Bolt’s shoulders the weight of history. He comes to represent all the power that white settlers have wielded over indigenous people since 1788. I understand that his words had that symbolic impact, but isn’t this giving him too much power? Anita Heiss also talks about children being intimidated. Isn’t Kennedy’s comment, that it hasn’t served young black people well to be taught to feel mortally wounded by racist or offensive remarks, relevant here? Anita Heiss is critical of the cries for free specch. She says the right to free speech has to be balanced against her right not to be vilified. But question whether it is necessary to charge someone with racial vilification for publishing comments that offend some people. I am no supporter of Andrew Bolt’s views – but isn’t that the point? Free speech should be extended to those we disagree with. We should fight Bolt’s racism and his hostility to Australian multiculturalism and to refugees, but can’t we fight his views politically, rather than by resorting to racial vilification laws?
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