Andrew Bolt and the Herald Sun on Trial

Andrew Bolt, of course, had a torrid time of it last week. He spent it in court. He’s being sued by nine Aboriginal people over some columns and blogs that the Melbourne Herald Sun published two years ago.

There’s no question that they would have been deeply offensive to those nine people–and indeed, to plenty of other folk too.

In brief, Bolt accused the nine, and others–political activists, academics, artists, all of them light-skinned people, of mixed ethnic descent–of “choosing” to identify as Aboriginal because that is “the one identity . . . that has political and career clout.”

He added that “this self-identification as Aboriginal strikes me as self-obsessed, and driven more by politics than by any racial reality.”

Andrew Bolt has admitted that he got some of his facts wrong. For example, in his original article he wrote of academic Larissa Behrendt that she “has also worked as a professional Aborigine ever since leaving Harvard Law School, despite looking almost as German as her father” (Herald Sun, 15th April, 2009) and in a typically snide Boltism, he wrote that Behrendt “is often interviewed demanding special rights for ‘my people’. But which people are ‘yours’, exactly, mein liebchen?” (Herald Sun, 15th April, 2009)

But Behrendt’s father was born in Australia to an Aboriginal mother, and her grandfather, despite his German name, came from England. If Behrendt had been suing Bolt for defamation, that mistake might have cost News Ltd a lot of money.

And it wasn’t the only inaccuracy by a long chalk.

But the nine aren’t suing for defamation. They’re suing under the provisions of the federal Racial Discrimination Act, which states in clause 18C that it’s unlawful to do something that “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” (Racial Discrimination Act 1975 clause 18C (1) (a)) and “is done because of the race, colour or national or ethnic origin”(Racial Discrimination Act 1975 clause 18C (1) (b)) of the people concerned.

That provision in the Act comes under the heading “Prohibition of offensive behaviour based on racial hatred” (Racial Discrimination Act 1975).

So for an offensive act to be unlawful, must it be motivated by, or likely to incite, racial hatred?

The Act doesn’t say so. In fact, other than in that heading, the word “hatred” doesn’t appear at all.

To my mind, to declare something unlawful just because it causes offence–on the grounds of race or anything else–is an unjustified curtailment of our freedom of speech.

Admittedly, the Act does exempt “a fair comment on any event or matter of public interest” (Racial Discrimination Act 1975 clause 18D (c) (ii)).

So far, as I understand it from people covering the case, neither side has had much to say about that exemption. But you’d have to think the argument is coming about whether or not it applies.

There’s an irony here. Many countries have a Bill of Rights or a Constitution that gives freedom of speech the status of a fundamental right; for example, there’s this famous clause in the American Constitution: “Congress shall make no law . .&nbsp. abridging the freedom of speech, or of the press” (First Amendment to the US Constitution).

Clause 18C of Australia’s Racial Discrimination Act would probably never have become law in the United States. And in the UK, a judge would have to weigh it in the balance against a legally-recognised right to free speech.

But in recent years, the push for a Bill or Charter of Rights in Australia has been rebuffed–not least, thanks to a chorus of News Ltd columnists like Andrew Bolt. Here’s what he wrote in 2007: “a Bill of Rights is actually a bid for power by an unelected elite that has about exactly enough of it right now” (Herald Sun online, 5th September, 2007).

By “unelected elite”, Bolt meant the judges. In this case, a judge will decide whether he’s breached an Act of Parliament, unconstrained by any need to give special weight to freedom of speech beyond what the Act itself says.

Much as I’d like to see Andrew Bolt apologise for his columns, I think it would be bad for our freedoms if he were told to do so by a court. But to some extent, he’s helped to make the bed he finds himself lying on.

In New South Wales, there’s another legal battle going on with even more profound implications for freedom of the press:

Subpoena to Produce

Plaintiff: New South Wales Crime Commission

Defendant: Police Integrity Commission

— NSW Supreme Court Subpoena served on Sydney Morning Herald, 16th March, 2011

Two of the state’s most powerful criminal watchdogs are at war with each other–and the Sydney Morning Herald is caught in the crossfire.

We’ll look at that issue, and the new federal shield law which the states ought to adopt, but so far haven’t, next week.

Until then, goodnight.