In case you missed it: Andrew Bolt and the Herald and Weekly Times have been taken to court by nine high profile Indigenous Australians for offence caused by a series of articles published in Melbourne’s Herald Sun. The articles got stuck into light-skinned Aboriginal people and alleged they’d received favours and benefits thanks to their self-identification as Aboriginal. The title of one "White Is The New Black" gives you a fairly good idea of the tone of the articles in question. Read Shakira Hussein’s analysis of the articles for New Matilda here.
The suit was brought under the Commonwealth Racial Discrimination Act — and not the defamation laws. Initially the plaintiffs were seeking not damages but apologies from both Bolt and his publisher. The demand for an apology from Bolt has been dropped and now the plaintiffs seek an apology only from his publisher. The case is being covered in some detail by Crikey and you can read their daily dispatches from the trial here.
Bolt is not popular with those on the progressive side of politics — but many have leapt to his defence. Bernard Keane in Crikey described the proceedings last week as "an extraordinary assault on free speech". Jonathan Holmes declared himself "gobsmacked" by the Bolt trial, writing:
"Offending, insulting or humiliating people on the grounds of their race or ethnicity is undoubtedly a bad thing to do, especially if there are no reasonable grounds for doing it. But an unlawful act? Come on. We don’t have an Act of Parliament that says it’s unlawful to offend people on the grounds of their religion, or their sexual orientation, or their hairstyle, or their profession. Nor should we. The law of defamation is restrictive enough without piling more restrictions on freedom of speech."
Some pointier questions about free speech were posed by Richard Ackland: "But, is my right to free speech indelibly tied to Bolt’s right to free speech? Not if he makes grievous errors, it isn’t. Is it acceptable to whip up vilification on a newspaper’s website? What is the responsibility of journalists and publishers in this situation? Where is the ground for honest argument?"
The law in question is the Commonwealth Racial Discrimination Act 1975 (Read it in full here). It’s a piece of legislation with wide application: under John Howard, the act was suspended to allow the Northern Territory Intervention to be enforced. Many commentators nationally and internationally were highly critical of this. The Law Council of Australia provides some useful context in a backgrounder on the law around the Intervention: "The Racial Discrimination Act 1975 (the RDA) is the embodiment in domestic law of Australia’s obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination."
The federal provisions dealing with racial hatred were introduced in 1995 in the last years of the Keating government. All states and the ACT have similar laws which make it unlawful to incite hatred on the grounds of race. (NSW was the first Australian jurisdiction in which racial vilification laws were introduced — in 1989.) Complaints under the federal laws are made to HREOC and to various boards under the state laws. Complaints are made frequently but generally are resolved by conciliation — corrections and apologies. It is highly unusual for a case to reach the court.
HREOC provides some guidance to interpreting the provisions of the RDA:
"A variety of acts can constitute racial hatred, including speaking, singing and making gestures in public, as well as drawings, images, and written publications such as newspapers, leaflets and websites. The act must be done in public, it must be reasonably likely to offend, and it ‘must be done because of the race, colour or national or ethnic origin of the group against whom it is directed’."
There are exemptions for artistic work, scientific works, and comment on matters of public interest. HREOC adds: "The media are given considerable scope in a third exception which permits fair and accurate reporting on any matter of public interest. This last exception enables the media to report on public issues, such as racial incitement or racially offensive conduct. It also allows editorial opinions and the like, providing they are published without malice." There’s a good faith element which is required to qualify for this last exception.
(The programming guidelines in the various broadcasting codes of practice also contain provisions with regard to race and ethnicity. Under Section 1.9.6 of the Commercial Television Industry Code of Practice licencees may not broadcast material which may "provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference." Complaints can be made to ACMA if these codes are violated.)
As the court deliberates on whether or not to extract an apology from the Herald and Weekly Times, it’s instructive to review other instances where racial vilification complaints have actually made it to court.
A complaint of racial vilification against Alan Jones and 2GB was upheld under the NSW laws in 2009, over comments he made about Lebanese youth in the lead up to the Cronulla riots. As Margaret Simons and others have noted, the incitement to violence differentiates Jones’ spray from Bolt’s columns.
Jones was also brought before the court for his commentary on a discrimination case that had been decided in favour of an Aboriginal woman from Dubbo against a real estate agent. The woman had been awarded a $6000 settlement, which Jones called "a joke". The case was brought by the Western Aboriginal Legal Service. Jones was ordered to broadcast an apology.
Earlier this year, Perth man Brendon Lee O’Connell became the first person to be convicted under WA discrimination laws and was sentenced to three years jail for posting a racist video online. The 15-minute video showed O’Connell insulting a Jewish man outside a shopping centre and telling Jews that their days were numbered. (Although there are no laws against religious vilification, Jewish people are generally considered a race under anti-discrimination laws.)
In Jones v Toben [2002], Frederick Toben published material that denied the Holocaust and alleged that Jewish people had exaggerated the historical record for financial gain. The publication was found to be unlawful under the federal anti-discrimination laws and the judge ordered the offending material removed from the website.
The racial vilification laws may be broadly drafted but they are rarely tested. Indeed, legal scholar Dan Meagher’s assessment of the situation in 2004 still rings true:
"An incoherent body of case law has developed as a consequence, where too much is left open to the decision-maker in each individual case. Many judgments are often little more than a series of findings of fact rather than reasoned pronouncements of the law. It has left the law in a state of unprincipled fluidity, where the good faith but ad-hoc assessment by individual judges and administrators of subjective, value-laden concepts determines controversies not the application of reasonably precise and knowable legal standards."
If, however, the Bolt case does prompt a public discussion about the effectiveness of the racial vilification laws, that can’t be a bad thing. Nor can a little public reflection on how the media conducts itself in the course of discussions about race.
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