… with respect to statements made by the serial trollumnist in published articles from 2009/2010 questioning whether the Aboriginality of certain pale-skinned indigenous people was genuine. [background on the case]
The nine complainants were activist Pat Eatock, former ATSIC member Geoff Clark, artist Bindi Cole, lawyer and academic Larissa Behrendt, author Anita Heiss, health worker Leeanne Enoch, native title expert Graham Atkinson, political scientist and academic Wayne Atkinson and lawyer and academic Mark McMillan.
Anita Heiss published this statement in response: My statement on today’s win in the Federal Court!
The defence argued that Bolt’s comments were exempt under the Act because Bolt was expressing genuinely held views on matters of public interest. This argument was not accepted by Justice Mordecai Bromberg as explained in the judgement:
7. Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression.
23. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.
Emphasis mine.
According to Anita Heiss’ statement, at least part of Bolt’s defence included a claim that he used a photo of her mother’s wedding day to judge whether she (and therefore Heiss) was “Aboriginal” enough by his standards, which apart from being an appallingly crass method by any yardstick would also have actually been impossible, given that he wrote the articles in 2009 but Heiss didn’t share that photo on her blog until February of 2011. Wow, talk about pants on fire. What a waste of neurons he is.
Evidence tendered for the complainants also showed that in every case they had been identified by the household and community around them as indigenous people since early childhood and raised always as indigenous people, so that their identification was not simply something they “chose” as adults. Bolt’s concept that anybody could or should just “choose” to cast off their non-White racial/cultural identity simply because some White people think that they could and therefore should just aim to “pass” as White was not ruled upon by the Federal Court, but I will hereby pronounce that in the Court of Hoyden Opinion this is gratuitously insensitive and offensive identity-policing.
There are predictably howls about how this judgement is an assault upon free speech. Should a perceived right to freedom of speech extend to being exempt from any consequences for writing blatant untruths about people? After all, those who use their speech to commit fraud are not exempt from prosecution due to their right to free speech; why should liars be able to hide behind such a shield?
Categories: culture wars, ethics & philosophy, indigenous, law & order, media
DUFC #69 
Hoyden About Town 
If it wasn’t so cold I would do a celebratory nudie run! I’ll just have to settle for a beer and a heart-felt WOOOOHOOOOO!!! And gratitude that the reasons for the judgment were expressed clearly – if you want to use the ‘good faith’ requirement you need to show some good faith. Lies and provocation do not equal good faith.
Yep Mr Bolt, you don’t get to decide who is Aboriginal and who isn’t. So there. *pokes tongue out in infantile yet highly satisfying way*
Excellent news. If only it didn’t need to be quite this obvious for a legal case to succeed.
”Should a perceived right to freedom of speech extend to being exempt from any consequences for writing blatant untruths about people?”
It does appear that there is a certain class of troll who, in their need to claim that their own hate speech should be subject to the full protections of the law and never forbidden or disapproved of in any way, will make arguments that there should be absolutely zero restrictions on speech, thereby claiming by implication that defamation laws, medical confidentiality requirements, megaphone usage restrictions, and so on are also wrong.
So glad for this outcome. I have had to have too many ‘discussion’ with people who will stand there and argue that my ‘fair skinned’ daughter cannot possibly be Aboriginal, that she is ‘part Aboriginal’ or ‘1/16th ‘ (or less) Aboriginal. I hope this outcome makes people sit up and take notice. I hope but I won’t hold my breath.
Bri, at least part of these arguments about “fair-skinned” indigenous folks not being truly really “Aboriginal” ignore something that actual truly really indigenous folks know all too well but those who would deny them their identity prefer to ignore: that the fair-skinned indigenous folks’ children could easily be dark-skinned, if that’s the way that the genetic dice roll.
Also that if one happens to be a fair-skinned person of indigenous descent who would otherwise “pass” as White, all it takes is for people to meet one’s parents/siblings who are not-White and one will find that one’s provisionally White status will be withdrawn by most people who consider themselves White. Indeed, the complainant Eatock recounted as part of evidence this part of her own history: when she first went to school she was placed in the section of the segregated school playground reserved for White children, because her mother was White. When her dark-skinned Aboriginal father returned from the war, she was sent to the Aboriginal section of the segregated school playground from that point on. Nothing at all had changed about her own appearance, but now everybody knew that her ancestry included a Touch Of The Tar, so that was where she was sent.
This is the elephant in the room that Bolt’s argument about “multiple identities available to them” ignores. Those multiple identities he claims that pale-skinned people of indigenous descent could “choose” simply are not available once other people become aware that one is related to darker-skinned obviously indigenous people. Because non-indigenous people will generally not allow it to be so. Should the pale-skinned indigenous people be required to reject/deny their darker-skinned relatives in order to pass? That appears to be what Bolt is suggesting. How fucking inhuman is that?
I’m glad I’m not the only one who feels that the judgement’s wording was chosen to put the phrase ‘liar, liar, pants on fire’ in the reader’s mind.
What makes me really grumpy about the people crying “free speech!” is reading the judgement and the list of people Bolt attacked who will never have the kind of public platform Andrew Bolt has had and will no doubt continue to have. Larissa Behrendt, for one, deserves a far bigger platform than she currently gets, but instead the column space goes to an incompetent, lying and now adjudicated racist. Like, speech in some ways is actually a totally quantifiable resource, one Andrew Bolt is in no danger of running out of, even if for one short moment in history he is actually made to be accountable for his actions.
Like I didn’t loathe Andrew Bolt before this point. When I saw his petulant “B-b-b-ut FREE SPEECH!” statement out the front of the courthouse, I wanted to vomit. I also wanted to high-five the woman who yelled at him. When I watched the footage for the first time, I shouted the same thing she did! LOL!
At that moment I so wished that I had been there, because I’ve had this argument so many times before online: I would have been immediately yelling ” AREN’T I ALLOWED TO HAVE FREE SPEECH AS WELL? DO YOU THINK YOUR FREE SPEECH IS BETTER THAN MY FREE SPEECH?”.
Fabulous!
First up, these nincompoops who are claiming that the Bolt decision is an impingement on the “right to freedom of speech” need to read their various state, territory and Commonwealth constitutions and legal codes again. In general, Australians don’t have a right to freedom of speech – it certainly isn’t in the Australian constitution. The only rights we have, in fact, are the right to freedom of association, the right to freedom of religious expression, and the right to own property. There is, to the best of my knowledge, one territory where the right to freedom of speech is both acknowledged and granted – the ACT.
So in an Australian context, those trolls who claim their hate speech is granted various legal protections are actually wrong, wrong, wrongitty, wrong. This includes Andrew Bolt.
A second minor point: at its best description in the US bill of rights, the whole “freedom of speech” business is about political speech – that is, speech regarding party politics, relationships to the ruling classes and so on, and the US bill of rights merely clarifies the position of the US federal government on the matter – US congress isn’t allowed to make laws infringing the right to freedom of speech. It isn’t the sort of blanket guarantee of both audience and platform that most ardent “defenders” appear to believe it is. And again, it doesn’t apply in Australia.
Exactly, Megpie71, we in Australia (apart from the ACT) do not have any right to free speech. What Australian citizens do have is mostly unrestricted speech as one of the many general freedoms that are understood to exist under our system of common law, where whatever behaviours are not explicitly prohibited are considered to be behaviours in which we are all free to engage.
Richard Ackland wrote an elegant summation back in March of both the facts of the case and why the free speech arguments are simply a diversionary tactic to deflect attention from Bolt’s gratuitously vicious untruths.
Also David Marr today: In black and white, Andrew Bolt trifled with the facts:
There is actually an implied right of *political* free speech in the Constitution.
And freedom of expression is also guaranteed in Victoria under the Charter of Human Rights Act 2006 (which the Liberal state government is trying to get rid of).
As Andrew Bolt lives and writes in Victoria, he’s not actually wrongity wrong wrong about having a right to freedom of expression (or as he puts it, speech) – he’s just wrongity wrong wrong about what that entails – i.e. he doesn’t have the right to make shit up about other people.
@Rebekka, our comments crossed! Interesting re Victoria. Ackland also makes the point that Bolt has continually campaigned against legislating any bill of rights.
The cry of the privileged: my rights are mine and are immutable; your rights do not exist, should not be created and sure as hell should not be enshrined in any kind of law!
Ha.
Bolt would probably justify his position to say that it’s not the legislature that has taken his rights away, but that horrible, mean, horrible judge. And everyone knows that bills of rights are all about giving those power-hungry courts more power! So it’s totally consistent to campaign against a bill of rights but whine about the “infringement” of his free speech! /sarcasm
Hmm, we can probably start a Bolt bingo card out of that. (Is there already a Bolt bingo card?)
Should the pale-skinned indigenous people be required to reject/deny their darker-skinned relatives in order to pass? That appears to be what Bolt is suggesting.
I’m sure he’d tell you, if you asked him, that he’s just saying they could, and heaven forfend anyone think he was saying they should. If you didn’t ask him, I’m not sure he’d even think of it at all – as if choosing to pass as white would essentially make those darker-skinned relatives disappear.
Sunless Nick @ 16 – Well, Mr Bolt is saying we should “put aside racial and ethnic divisions” in his Herald Sun article. Or in other words, all those people who don’t have the good fortune to be born as white, Anglo-Celtic Australians should stop making a fuss about it, and try harder to pretend to fit in. I suspect he feels the same way about class and gender divisions as well…
Or in other words, Mr Bolt is a representative of the kyriarchal class being faced with the sad reality that not everyone is like him (a fact which I suspect he’s secretly pleased about, since it gives him folks to look down on) and his reaction to this sad truth is basically to want everyone different to shut up and go away. As per bloody usual.
Typically, Andrew Bolt is now whining about his poor speech being repressed in a
front page screed in the Herald Sun.
In other unrelated news, sometimes I go to roll my eyes to find that they have already been rolled, the result of which is mildly painful and disorienting.
The implied freedom in the Constitution isn’t a personal right – it’s the right to a freedom from laws being enacted which unduly restrict political communication. It’s subject to validly enacted laws which are reasonable and proportionate (ie/ it’s subject to the Racial Discrimination Act of 1975). So Bolt is wrong when he claims it’s a terrible day for ‘freedom of speech’ as the ‘freedom’ such as it is is subject to the Racial Discrimination Act (and other acts and restrictions). The Charter also makes it clear that the right is or may be subject to lawful restrictions. While the scope of the areas which might validly restrict it don’t appear to include the RDA (unless you could argue that that was a law made for the protection of public order/public morality), the RDA is a national law – I’m not sure if the charter has the force of law, but even if it did, if it clashed with a national law, the national law would prevail is my understanding.
Well clearly he’s just deliberately choosing to identify with the oppressor class in order to reap the benefits reserved for members of that class. He could choose to identify with a more progressive group but there’d be nothing in it for him.
I keep reading that this judgement will have a ‘chilling’ effect on this issue and that people say they won’t be able to discuss it. As a white Australian my opinion is so friggin what? I don’t see what someone’s Aboriginality has got to do with anyone else and I trust Aboriginal and government organisations advertising positions for people of Aboriginal background to be able to effectively police those things. As a country we need to get over this idea that somehow people from ‘non white’ backgrounds are somehow getting an easy ride because of EEO provisions. EEO were brought in to try and level a still very uneven playing field. No one is saying Bolt can’t air his horrible opinions, just that he can’t lie and get away with it when it is designed to damage someone’s reputation and the standing of a section of the community, in this case pale skinned Aboriginal people, and expect to get away with it.
If I may take a moment for a little whinge about libertarians. I wonder how long they would be libertarian when they realise that they are not actually part of the ruling elite and that actually life sucks without all the little things that they want to do away with that actually protect a lot of us little people.
Mindy @ 21 – I saw an interesting bit in one of the various articles about it (this one was on Crikey – one of the free ones they let the plebs see without paying for it) where it was pointed out that the test the judge used in Bolt’s case was “could the plaintiffs have won a defamation case against him, given what he said?” The answer was “yes” – so clearly, even though the plaintiffs had chosen to have their cases aired in the context of a discrimination hearing, if they’d chosen to go the whole hog and push their cases through Australia’s (incredibly tough) defamation law instead, they would most likely have won there – and Mr Bolt (and the newspaper he wrote for at the time) would probably be in for an even greater financial and career related penalty as a result. I’m almost tempted to hope they’ll do so, just to kick the point home harder, since it appears not to have sunk in just yet.
Of course journalists around Australia are worried by this case (that’s why it’s getting all this airtime). It means they might actually have to do things like check their facts, pay attention to the libel and slander laws, and think about what they’re writing. In these days of the 24-hour news cycle, and the constant push for more and more content, it adds more pressure to their job, and makes it harder to do their job well. But that pressure isn’t something which is going to be removed by allowing journalists a free ride with the truth. The fact is, people do still subconsciously look to the media for truth and honesty (despite multiple decades of living with Messrs Packer, Murdoch and Fairfax controlling most of it, and the resultant cartel environment this has produced).