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September 30th 2011 print

John Dawson

It’s the Act that’s racist

There’s no use blaming the plaintiffs, why shouldn’t they take advantage of the perks and weapons handed to them? Or the lawyers, or the judge. It’s that unjust and malignant law that is the villain.


In a clear cut violation of the right to freedom of speech, the Federal Court of Australia found journalist Andrew Bolt guilty of breaching the Racial Discrimination Act.


Bolt’s crime was comments he made that “offended, insulted, humiliated or intimidated” people, the said comments being made “because of the race, colour or ethnic origin of [those] fair-skinned Aboriginal people”. The offending comments were made in Bolt’s column in the Herald Sun on April 15 and August 21, 2009. In those columns Bolt questioned why some fair skinned people identify themselves as Aborigines and implied it was because "it’s so hip to be black" and because there were material advantages in being black.   
 
Contrary to the attempts of some left-wing commentators to obfuscate the crucial issue of freedom of speech, the judgment against Bolt was not made because of some inconsequential inaccuracies in his columns. Reference to these errors was made in relation to a peripheral (section 18D) issue, the judgment itself was based on the (section 18C) prohibition of acts that are “reasonably likely” to “offend, insult, humiliate or intimidate” people in a manner related to their race.

A right to freedom of speech that doesn’t offend anybody is not a right to anything meaningful at all. No one anywhere ever needs to defend his right to say what everyone likes to hear. It is precisely comments that offend, insult or humiliate someone that must be defended by the right to freedom of speech. Offended people have every right to avoid listening to or reading offending comments, but they have no legitimate right to use the force of law to stop such comments being said or written, or to stop other people listening to or reading them.
 
As far as words that intimidate are concerned, the law should get involved only if and to the extent that they imply the use of force, but in such a case it is the threat of physical harm that is at issue rather than the words per se. As far as words such as shouting “fire” in a crowded theatre or inciting a lynch mob or suicide bomber are concerned, the law should protect potential victims from the dangers so caused, but here too it is the physical harm that is at issue rather than the words per se. As far as demonstrably false statements are concerned defamation and libel laws should protect an injured party from material damage that could result, but again this is an issue of the physical harm rather than the words per se or the feelings they may hurt. In any event, no such complications were involved in the Bolt case; he was convicted for violating Section 18C of the Act, which prohibits any comment that:

is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; [where the comment is made] because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

This prohibition clearly violates a fundamental right of citizens of any self respecting country that holds liberty as a supreme value. The right to express an opinion; be it deemed true or false, laudable or reprehensible, objective or prejudiced, nice or offensive, must be protected by the law, not violated by it. People who consider a journalist untrustworthy,  reprehensible, prejudiced or offensive don’t have to read what he has to say, they can persuade others not to read him, they can write words that are likely to offend the journalist, as an army of Bolt’s critics routinely do – what they have no legitimate right to do is to shut him up. But that is exactly the legal right bestowed on them by the Racial Discrimination Act.

As Justice Bromberg’s 30 point summary of his judgment makes clear, no opinions expressed in public about a person or group that has anything to do with their race is lawful if it is “reasonably likely” to offend them. Judging what’s “reasonably likely” to offend "calls for an objective assessment of the likely reaction" of the people concerned “by reference to an ordinary and reasonable member of the group of people concerned and the values and circumstances of those people. General community standards are relevant but only to an extent.” In short, the onus is on he who expresses an opinion that refers to people of a particular race to assess their reaction and if they are likely to be offended he must shut up. What could possibly justify a “shut-up law” in a supposedly free country? Justice Bromberg explains that:

The Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.

At the core of Western culture is the idea that people may identify with and express their heritage of liberty, including the right to freedom of speech, should that cultural heritage not be “free from pressure”? Should Australians not be allowed to “fully identify with” their traditional right “without fear of public disdain or loss of esteem for so identifying”? Apparently not! The Western value of freedom of speech has been sacrificed in the interests of non Western values that may not be judged or even discussed by Westerners if such discussion is likely to offend members of the culture concerned, for reasons that must not be judged or discussed, if such is likely to offend.

Ironically, it is the cultural apartheid enshrined in this Racial Discrimination Act that has injected racism back into Australia’s legal system. It divides Australians into racial groups and hands each the means of censoring what anyone from any other group may say about them – by warning that they may be “reasonably likely” to be offended by speech they want to censor. Under this law feelings trump reality; multiculturalism trumps liberty, and race trumps individual rights.

Tragically it is the members of the race that most desperately needs to recognize the reality of their collective situation and the opportunities of their individual rights that are damaged most by this multicultural law. It was because no one dared to say anything that might offend some Aborigines or their proclaimed representatives that the desperate plight of outback Aborigines remained unacknowledged for so long. Whatever Justice Bromberg states the intent of his judgment to be, its effect will be to inhibit enquiry into real solutions to the intractable plight of tribal Aborigines and the legitimacy of their proclaimed spokespeople. Inconvenient realities and illegitimate representations are less likely to be exposed, and if there are none to be exposed, subterraneous suspicions will multiply if they can’t be discussed.
 
The Bolt conviction warns all Australians (very few of us with the abilities resources and intestinal fortitude Bolt is endowed with) that frank discussions of issues of race risk prosecution, because frank discussion is “reasonably likely … to offend.” Such is just one of the insidious effects of censorship. But there’s no use blaming the plaintiffs, why shouldn’t they take advantage of the perks and weapons handed to them? Or the lawyers, they have a job to do for their clients. Or the judge, he has a law to enforce for the purpose it was intended – to outlaw descent from the multicultural anti-ideology. It’s that unjust and malignant law that is the villain. The infringement of free speech that nests in racial discrimination and vilification laws has already spread to infect our freedom to discuss issues of religion, sexual orientation and disability, and they will keep spreading and impoverishing what was once a proudly open society of robust free speech in which anyone could vilify and be vilified for vilifying.
 
Offended feelings are a small price to pay for freedom of speech, because without it no other freedom can be protected. In the name of equality before the law, justice, and liberty, the deceptively named Racial Discrimination Act must be repealed.

For background to the Case, trial reports, and links to Justice Bromberg’s decision see  Quadrant & the Bolt Trial.


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