Aboriginal leaders sue Andrew Bolt

Andrew Bolt

Chris Peterson, Melbourne April 10, 2011

Nine Aboriginal people have sued Herald Sun columnist Andrew Bolt in Melbourne over four articles he wrote in 2009.

The court has heard the articles questioned the motives of "light" or "white-skinned" people who identified as Aboriginal.

The people taking the action under the Racial Vilification Act include activist Pat Eatock, former ATSIC chairperson Geoff Clark, artist Bindi Cole, academic Larissa Behrendt, author Anita Heiss, health worker Leeanne Enoch, native title expert Graham Atkinson, academic Wayne Atkinson and lawyer Mark McMillan.

In Bolt's 2009 article, "White is the new Black", he said identifying as Indigenous was "divisive, feeding a new movement to stress pointless or even invented racial differences we once swore to overcome. What happened to wanting us all to become colour blind?"

He accused those mentioned in articles of being "Aboriginal bureaucrats", "professional Aborigines" and argued that they referred to themselves as Aboriginal despite "not looking Aboriginal". Bolt further implied they did this for personal gain, at the expense of "darker skinned" Aboriginal people.
Ron Merkel, QC, told the court that Bolt relied on outdated notions of racial identity, dating to the eugenics movement of the 1930s the March 29 Age reported.

Defending herself in The Age, Eatock said: "From when I was eight, and I started skipping school because of the taunting until I was 14, when I left school, [my Aboriginal heritage] became a concrete aspect of my view of myself."
From the age of 14, she said, she publicly identified as Aboriginal

According to The Age: "Her time in the workforce was marked, she said, by short-term jobs and long periods of ill health and joblessness. 'I would say in fact a reasonable person looking at [my CV] would say it's a failed career, six years' employment in 34 years or something. That's a lot of unemployment. Where's my mansion? Where's my car? I live in a one-bedroom flat, Department of Housing. That's not a significant achievement.' "

According to The Age: "Larissa Behrendt Behrendt said she was stunned that Bolt referred to her as a "a professional Aborigine ", referred to her as 'mein liebchen', highlighted an unknown German background and that a photo was used with the column where she had dyed blond hair."

This is not new territory for Bolt, who claimed in a February 2004 Herald Sun article: "The stolen generations was a dangerous myth."
The Stolen Generations (also known as Stolen children) is a term used to describe children of Aboriginal and Torres Strait Islander descent who were removed from their families by Australian government agencies and church missions. The removals continued until the 1970s.
Bolt's articles also ignore the real causes of Aboriginal disadvantage - the dispossession of their lands.

Despite common racist myths, there is no extra benefit - financial or social incentives - to be gained from identifying as Aboriginal. In reality, federal government funding for Aboriginal programs are greatly under funded in comparison with non-Aboriginal programs.

The only serious way to end disadvantage for Aboriginal people is for the government to redress the historical injustices: pay the rent, pay the stolen wages and compensate Indigenous people for unfair policies of genocide and assimilation since colonisation.


Free speech has limits in the law

Maybe it is a left-brain-right-brain thing, but I have always been bemused why public interest limitations on freedom of speech for economic benefit are quietly accepted, while limits designed to protect our collective human rights attract vocal debate. The recent Federal Court hearing concerning a complaint of racial vilification against voluble multimedia commentator Andrew Bolt brings this dichotomy clearly into focus.

Bolt has been asked by nine complainants relying on provisions in the federal Racial Discrimination Act to account for a series of articles published in the Herald Sun.

These provisions came into law in 1995 and were introduced by me as attorney-general in the Keating government. The bill I took to the parliament was substantially amended in the Senate with only civil, as opposed to criminal, sanctions for racial vilification making it into the law.

Then, as now, the provisions raise questions about the place of racial vilification laws within a society committed both to an individual's right to free speech and the maintenance of a truly civil society.

Free speech is the oxygen of a liberal democracy and market economy. But like oxygen, it is recognised that it is possible to get the mix wrong, and this has the potential to cause great harm to individuals, groups and the entire community. That is why we accept restrictions on unfettered free speech for social and economic policy reasons.

In the economic sphere, the essence of a functioning market is the free flow of information.

But this form of expression is also heavily regulated with some rules demanding that information be given, such as the continuous disclosure regime required of public companies, and, in other cases, restrictions on unfettered expression such as the Trade Practices Act provisions on deceptive and misleading conduct.

When it comes to individuals, we accept that a person's reputation is of value and that remedies should be provided for defamation. Equally, the flow and use of personal information gathered by governments and corporations on each of us is extensively regulated, with restrictions on the use of information imposed by privacy laws.

Probably the most clear-cut example of the public accepting a limitation on free speech is in the field of censorship, particularly in laws criminalising the dissemination of objectionable material, such as child pornography.

The common theme in each of these cases is that, while free expression may be the starting point, some level of regulation is accepted as furthering the wider public interest.

This equally applies in Australia's human rights regime, which is based on an amalgam of a high-level constitutional skeleton and of flesh supplied by parliaments in various laws, particularly anti-discrimination legislation, and maintained by our courts through common law traditions and decision-making under statutory provisions.

Freedom of political expression has been constitutionally endorsed by the High Court but our laws and our judges equally accept that freedom of speech is not absolute.

The provisions relied on in the Bolt case have been in place nationally for 16 years, with similar laws operating within some states prior to this.

If the laws were going to "chill" free speech or shut down robust public debate about potentially sensitive issues surrounding race, then it is likely that evidence of this would have emerged long before now.

Yet no shock jock has been taken off the air or newspaper columnist closed down.

What has happened is that many thousands of complaints under the laws have been dealt with through the confidential conciliation processes of the Human Rights Commission, with scores of determinations made initially by the commission and now by federal magistrates.

And in a handful of cases that have not been settled or resolved at an earlier stage, a judgment has been delivered by the Federal Court. This means that the scheme of the law, as intended by the Keating government, has largely come to pass.

In 2009-2010 the Human Rights Commission fielded 632 inquiries and 166 formal complaints about racial hatred. About a quarter of the complaints dealt with items in the mainstream media. Most were conciliated or ultimately withdrawn, with only a small number going before a federal magistrate for a ruling.

Simply resolving the issue through bringing the parties together is the principal aim of the commission's complaint-handling function.

There is varying opinion as to the success of the laws. Some academics argue that the laws place too great a weight on the maintenance of free speech to effectively target racial hatred.

The lack of criminal provisions about the incitement of racial violence is criticised by international reviewers of Australia's human rights regime.

My greatest concern about anti-discrimination laws generally is that the remedies provided are more likely attempted by those with access to reasonable support and advice, while the most disempowered in the community are least likely to understand their rights and access the commission.

Whatever the validity of these criticisms the one thing that is entirely clear after 16 years' experience is that the law does not stifle free speech.

The true value of racial vilification laws is not in turning the heart of the racist, as no law can do this.

The intent is not to stop unpopular or contentious matters about race being raised. The design of the laws both envisages and then expressly provides for public interest debate and fair comment.

Rather, the value of the law is to require those engaged in contentious debates to reflect on the accuracy of their arguments and the supporting facts before these are used.

For history tells us that overblown rhetoric on race fosters damaging racial stereotyping and this in turn can contribute to societal harm well beyond any deeply felt personal offence.

Michael Lavarch is executive dean, Queensland University of Technology faculty of law, and a former commonwealth attorney-general. He wishes to disclose that he is the partner of Larissa Behrendt, one of the complainants in the case against Andrew Bolt.

Comments

Race and Identity

At the end of the day, no one has the right to determine my identity. Bolt's flippant remarks, which are offensive and racist, only reflect the ignorance of many Australians. Those Australians who condemn Aboriginal children in the street as thieves, who pass over my mother while she patiently waits to be served, who sit comfortably at home and pontificate on the merits of Aboriginal communities without actually ever seeing one. The Andrew Bolts and Howard Sattlers of Australia who happily waffle on about 'rights' and 'unity', while ignoring the long historical record of the denying of 'rights' and 'unity' to Aboriginal Australians.

I have been told to go back to my own country, to get a job that is 'useful', to shut up and to work for my people, as if somehow I lack the intelligence to determine how I want to live my life.

For those who talk about my 'free ride' as an Aboriginal Australian, my free car, my free education, my free housing and all the other freebies that Im supposed to get based on my race, please show me where I can gain these freebies, because Im sick of paying rent, taxes/hecs, sick of paying for utilities and I'd really like a car too.

I have always identified as Aboriginal and always have been accepted as such by other Aboriginal people. The fairness of my skin was always a problem for white people, not Aboriginal people. When some white person referred to me (particularly as a child) as a 'half caste' or 'half breed', it was always with contempt.

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