Keeping Andrew Bolt in business

By insisting this week that sections 18C and 18D of the Racial Discrimination Act will be repealed in accordance with Liberal Party policy, Prime Minister Tony Abbott has sent a tricky message to the electorate. It seems that he has hardened his position, and it is now this: removing these provisions that have prohibited racial vilification since they were introduced in 1995 is necessary to ensure “freedom of speech”, and that journalist and blogger Andrew Bolt should not have been prosecuted under the Racial Discrimination Act. He also insisted, it was reported, that everybody in the party room was opposed to racism. The problem with these clashing policy positions is the underlying assumption that, contrary to the findings of a Federal Court judge, Andrew Bolt should be able to write about nine Aboriginal people in such a way as to cause offence to them on the grounds of race. 

Breaches of sections 18C and 18D do not result in criminal charges. Costs are not awarded, as they are in defamation cases. The act allows people to make complaints to the Australian Human Rights Commission about unlawful acts involving “offensive behaviour because of race, colour or national or ethnic origin”. This might involve conciliation leading to an apology. 

We can assume, then, that the only recourse in future for people offended on the grounds of race will be expensive defamation litigation, if the statements are untrue and defamatory. 

But the repeal has powerful supporters. The right-wing think tank the Institute of Public Affairs maintains that the Racial Discrimination Act is an “excessive limitation on freedom of speech”. Its director of development and communications, James Paterson, has warned the government that this is a key issue for supporters: “They definitely left their supporters who are very passionate about this issue with the impression that they would deal with this and they would repeal it … If they don’t live up to that, I think that will amount to a broken promise.”

Tim Wilson, who left the IPA to take up a position as human rights commissioner, firmly backs the repeal. “These issues aren’t just about Andrew Bolt, they’re about a principle that we universally share,” he told ABC News Breakfast. “We need an open contest of ideas, we need free speech. The only way to challenge and tackle offensive speech is to have more speech and for people to openly mock and ridicule things that people say they find offensive.”

On Q&A, Attorney-General George Brandis was asked by Anna Egerton about his plans to repeal section 18C. Brandis replied, “You are right when you say that we made a commitment to repeal section 18C in its current form and we are going to do that. And you’re right to identify the Bolt case as the episode that, as it were, catalysed this debate nearly two years ago. Regardless of whether you agree with what Mr Bolt said, whether you were offended by it ... our view is that it’s not the role of the government to tell people what they are allowed to think … what opinions they are allowed to express …that’s a matter for civil society to make that judgement. It’s not a matter of the government passing laws to censor the expression of opinions that are unpopular or offensive to mainstream society.”

I pointed out that people like myself – people of colour – will feel relatively safe from racial abuse only at AFL or NRL games because of their codes of conduct. These codes, established in accordance with community expectations, will set the bar higher than the new Racial Discrimination Act with sections 18C and D repealed. 

Brandis’s view is that there is a distinction between racial vilification and opinions that might cause offence to members of a particular racial group – “they’re not the same things”. Racial vilification, he said, is the “utterance of abusive or threatening words”. Yet, this is exactly what judge Mordecai Bromberg found in the case of Eatock v Bolt: “Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.” I also said that I felt the articles Bolt wrote about several Aboriginal people were far from the subject of politics and were simply abusive. I discussed a particular case of an accomplished young woman, and said it was racial abuse. Bolt had argued that she had no right to claim she was Aboriginal; in other words, that we are expected to deny our parents and our grandparents to satisfy someone else’s views on race.

It is this statement that Bolt purports offended him, so much so that he was unable to go to work the next day. He wrote that he had watched Q&A “in horror” and felt “bruised”. On 2GB, I apologised for hurting his feelings, and my expanded views are expressed in a statement on the Q&A website.

Andrew Bolt is a very successful businessman. Across his newspaper column, radio commentary, blog and television show, his business model uses the shock jock practice of alarming the audience on a matter that causes resentment among ordinary Australians with an instance of a particular outrage against their standards of decency. The claims that he makes need not be true, but they need to cause anger among his audience and identify the enemy presenting a threat to the norms of this audience. The audience is also assisted to understand these norms. He reports that his audience size is estimated at 300,000. Bolt presents himself as a fearless truth-teller, defying the state, the judiciary and, most important, the purveyors of politically correctness in defence of common sense. Offence is at the core part of his business model. The Racial Discrimination Act as it stands curtails his ability to trade.

While this is a lucrative model, reeling in the audience numbers and advertising dollars, it has incurred considerable legal costs for him and the Herald Sun, such as in the defamation case brought against him and his newspaper by magistrate Jelena Popovic in 2002. She was awarded $246,000 for his defaming her, claiming she had “hugged” two offenders, and that in commenting on government and political matters, he and the newspaper had not been “unreasonable” or “malicious”. 

He then said outside the court that this decision had been a “victory for free speech” and that his column had been accurate. This defamation ruling was upheld against him in the Court of Appeal in the case Herald & Weekly Times Ltd & Bolt v Popovic. The judge described his defiant statements outside the court and the Herald Sun’s reporting of the jury decision as “at worst, dishonest and misleading and at best grossly careless. It reflects upon him as a journalist.”

Further, the judge ruled that “by claiming that that verdict was a ‘victory for free speech’, Mr Bolt misrepresented the true situation. He misrepresented the situation to such a degree that his conduct can be characterised as being in contumelious disregard of the plaintiff’s right, not only to be not further damaged by the original libel, but also her right to have the public vindication of any ultimate judgement in her favour unobscured by such misleading remarks.”

Bolt found himself in the Federal Court in 2010 in relation to a string of posts entitled “It’s so hip to be black”, “White is the New Black” and “White Fellas in the Black”. In this case, brought by nine Aboriginal people, Bolt was found to have contravened section 18C of the Racial Discrimination Act (Eatock v Bolt [2011] FCA 1103). The plaintiffs sought an apology, legal costs and an order that the articles not be republished. They did not seek damages.

It is this case that is deemed by Coalition policy to limit freedom of speech. 

If this is the case, and the act is amended to remove the present clauses (18C and 18D) that prohibit racial vilification, I assume the new and unspecified provisions will have two effects: their intent will be to reject Justice Bromberg’s findings in the Bolt case, and the new provisions will not be able to be used to prosecute any similar case in the future. That this law is being repealed means there will be no legal protection against “offensive behaviour because of race, colour or national or ethnic origin” in public. Andrew Bolt will be free to continue to publish untrue statements, unless those offended have the money to pursue a defamation case against him.

I believe that Bolt, whether deliberately or deceptively, conflates two problems, and that there are very serious consequences of this conflation. He has suggested repeatedly that the insistence by most Aboriginal people on our right to identify as such and to maintain our cultural heritage is merely a ruse to obtain welfare and other benefits from the taxpayer. The issue of identification as Aboriginal must be separated from the question of what welfare and other benefits ought to flow to people who identify as Aboriginal. There are thousands of Aboriginal people who do not qualify for any of the special Aboriginal benefits (such as Abstudy, which is means tested, like most government social security and related payments) and yet proudly identify as Aboriginal. There is no financial benefit in doing so, and often there are disadvantages, such as racism in the workplace and various forms of racial discrimination, all of which Aboriginal people, whatever their skin colour, are prepared to endure in order to maintain their identity. 

In the future, each case of the kind Bolt lost in the Federal Court would need to be litigated. 

The victims of this retrograde step, of the repeal of sections 18C and 18D, would be those without the resources to mount a defamation case – vulnerable people without the resources to defend themselves, such as young Aboriginal people, or those who do not speak English.

This is not just about the right to offend, it is about access to the law. And it is about Andrew Bolt’s business model.

This article was first published in the print edition of The Saturday Paper on March 22, 2014 as "Keeping Bolt in business".

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Marcia Langton is an Aboriginal writer, a descendant of the Yiman people of Queensland. She is professor of Australian Indigenous studies at the University of Melbourne.

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