While the specifics of the legalities are different, my view remains the same as in 2010: Bolt is a an ugly blot on the media landscape, but that doesn’t mean that anything he wrote in those articles deserves criminal or civil sanction.
It is of course possible that Bolt will appeal. But if the appeal fails, I urge the government to amend the RDA. I don’t want to have to waste another millisecond defending the likes of Bolt, and I imagine that neither do the likes of Liberty Victoria.
Update: [by MB] LP, as we know is not a hive mind, and I strongly disagree with the propositions that free speech is at issue here, and that Andrew Bolt ought not to be civilly sanctioned, and I have said why here.
There’s some discussion here.
http://blogs.crikey.com.au/purepoison/2011/09/28/bolt-guilty/
A press release from Anita Heiss, one of the complainants is here
http://anitaheissblog.blogspot.com/2011/09/my-statement-on-todays-in-in-federal.html?spref=tw
My personal view is that this should have been a defamation case but I did like this quote by Rosie Scott about the free speech arguement at the end of the Anita Heiss press release.
Maybe this is a spin item, but The Age has “Andrew Bolt found guilty” as a headline, and the Hun has “Bolt class action successful” and on clicking one gets “Class action against Andrew Bolt succeeds in Federal Court”. So the Age is unequivocal, and the Herald, … not able to put “Bolt” and “guilty” in the same sentence.
The RDA is a notorious toothless tiger so the successful prosecution of known racist Andrew Bolt under its provisions is a surprise and cause for celebration. This ruling has no serious implications for free speech, but it does give social weight to need for responsible, ethical behaviour by media workers.
As I wrote in Saturday Salon, free speech doesn’t include telling lies without there being a consequence to it.
I agree Fine but defamation would have fit it better to my untrained eyes. However my legal studies amount to taking Law in year 10 at school and not much more than that.
The verdict gives Bolt what he wants: The ability to claim that he is being silenced by “the left”.
It’s one of his favourite topics, despite it being transparent nonsense. The man has his own TV show for crissake.
Matt D – thats the danger – that it turns Bolt into a martyr among his followers. A bit similar to how Hinch gets lauded for intentionally breaking suppression orders.
The Federal Court of Australia is now “the left” is it, Matt D? Why not go the whole hog and call it Communist.
Bolt is a nasty piece of work and I’m going to enjoy his humiliation.
This ruling provides an important lesson to people who believe in the rule of law. Don’t fling around lies and nasty BS about indigenous Australians. It doesn’t help solve the problems they and we collectively face. It harms them, every last one and for that there is the possibility of some retribution, the court has ruled.
Hooray for common decency and social cohesion.
No, I don’t think it’s the left, but that’s what Bolt will say.
Wait for the articles from News limited about Justice Bromberg’s lefty union links. (He was an industrial lawyer who usually represented unionists before he was a Judge.)
Tempting though it is to gloat here (after all, it couldn’t have happened to a nicer bloke), I don’t agree with the law under which he was convicted. As others have said, defamation would have been more appropriate (and probably more satisfying).
dear Editor
i’m sure as heck not wringing my hands over this – i’m freaking ecstatic. bolt got nailed for “racism” & i hope it hurts.
and, as for “freedom of speech” issues, i’m sanguine. i reckon this country needs a bill of rights, for sure. but until that happens: (1) what bolt’s convicted of is a crime under current legislation, (2) there’s no bill of rights, (3) get used to it.
and (4) i hope it hurts.
happy, happy, happy, happy.
yours sincerely
alfred venison
@4 Fine
“As I wrote in Saturday Salon, free speech doesn’t include telling lies without there being a consequence to it”
What lie did he tell?
@ David Irving
“Tempting though it is to gloat here (after all, it couldn’t have happened to a nicer bloke), I don’t agree with the law under which he was convicted.”
People abandoning their principals willy nilly, I see it a lot.
“I do not agree with has happened here.
However as it is happening to someone I do not like I will make an exception and gloat.”
“The ability to claim that he is being silenced by the left.”
Of course he has been silenced by the Left. You’ve won, and are entitled to gloat. Given the current composition of the High Court, Bolt cannot have success there. Australia is now a totalitarian dictatorship. I say Vale Australia. You’ll say, of course, good riddance to the old Australia.
dear whyisitso
” Australia is now a totalitarian dictatorship. ”
oh, droll. give me a break.
are you behind a bill of rights now?
yours sincerely
alfred vension
At the very least this decision might give pause for thought for those on the right (and some on the left to be fair) who get outraged/offended by someone’s public or private stance and then try to get them sacked either by unmasking their online identity and linking it to their work place or by misrepresenting their background.
Anita Heiss goes into detail in her press release about the inaccuracies that were stated about her but due to media power and visability I’d be willing to bet that most still have the Bolt version of her career in their head.
But yes, Alfred is right. A bill of rights would really help clarify things.
“are you behind a bill of rights now?”
This is the obvious next step for the Left – thus facilitating the movement of power away from the great unwashed who unfortunately vote as the left doesn’t admire, to judges who share their “values”. Oh well, when you’re on a roll….
DINR@10, Pat Eatock and her friends could not remotely afford the cost of running a private defamation action against Andrew Bolt backed by News Ltd (unlike Tony Abbott and Peter Costello against Bob Ellis).
In this case, I suspect that Merkel et al ran the case pro bono as a public interest test case, to establish that the legislation has teeth even up against the some of the most powerful racist voices in the country. Merkel for the High Court next please.
In the wider scheme of things this a balancing of the ledger in the only practical way possible. Please gloat DINR, its time.
On the other hand, if you want the law repealed, so that Bolt et al can what the hell they like, true or not, then rest easy, the Vic Govt will probably soon oblige.
It would be interesting to hear from a lawyer why they went for this legislation rather than a defamation case. I know the basics of the defamation law, but not nearly enough to make that sort of judgement.
dear Chris (& Matt D)
“the danger – that it turns Bolt into a martyr among his followers”.
respectfully, so what? alternatively, he would have been a “hero” to his followers. but he wasn’t – so he’s a “martyr”. and good.
i’m pleased as punch his followers will have to be bellyaching about his “martyrdom”, rather than crowing about his “heroism”.
happy. hope it hurts. happy, happy, happy.
yours sincerely
alfred venison
Savvy @ 12. Read the judgement and all be revealed.
And here too, I agree. As ugly a blot on the mediascape as is the defendant here, I disagree with laws that prohibit vilification on the basis of ostensible ethnicity, sex, gender, ability etc …
On the other hand, if such vilification can be shown to be a material cause to a criminal offence or a tort, then let the pertinent parts of the legal superstructure descend like enraged avenging angels on the transgressor. Incitement to criminal conduct is rightly subject to sanction.
Equally, I see no problem with using judicial bodies pronouncing on the ethics of persons in public space. It might well be that a persistent vilifier of others on one of the bases above might be held by a court to have no reputation left to defend, making it impossible for him or her to raise a case against any party in defamation, since their standing could not be lowered in the eyes of “the reasonable man”.
oops {with
usingjudicial bodies}savvy, you should try to understand what you read in future.
dear Philomena @3
you write it well – cool, calm & collected. and sensible. when i come to reflect “dispassionately” on this, i’ll simmer down to something like what you said there. ta.
yours sincerely
alfred venison
p.s. – happy, happy, happy, hope it hurts. -a.v.
I laughed, I cried, I laughed … all this from the site that trashed Noel Pearson as an Uncle Tom amongst other things.
Yes, who cares what it will turn Bolt into to his followers.
To those misty eyed romantics he is already akin to a god among men, a powerhouse intellect whose every utterance drives a dagger into the heart of the Left (aka the bad guys, you know the ones that wear black hats).
dear dr venison @ 25
should you simmer down too much and wish to replenish yr level of faith in the average australian’s ability to expectorate their pacifiers, might i recommend a read of the comments of this news ltd. report.
hoping this finds you well &c.
yours sincerely
jess
@DI
“savvy, you should try to understand what you read in future.”
Oh it was clear.
“The end justifies the means.”
Given this case was a civil action (and Bolt’s actions weren’t criminal offences), I don’t think it’s correct to use the term “guilty”. If anything, I’d see using the term “guilty” as spin.
I don’t know how many of you actually read the Bolt articles in question and I doubt that doing so now will even be possible (at least not easily). He has essentially been found guilty of asking questions that offended some people. Poor petals. I don’t know if this verdict is the product of bad laws or a bad judgement but either way it is fundamentally wrong. The law should not be used to silence those with a dissenting opinion. And I don’t much care how many arseholes are offended. The racial discrimination act should not merely be reformed it should be scrapped. Instead we should enshrine basic universal rights including the right to free speech. If somebody says something that offends you then grow a backbone.
dear all
text of the judgement of bromberg j:-
http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html
press release of anita heiss:-
http://anitaheissblog.blogspot.com/2011/09/my-statement-on-todays-in-in-federal.html?spref=tw
courtesy of “pure poison”.
yours sincerely
alfred venison
This may be a bit of a semantic legal quibble, but the Hun appears to have the more accurate characterisation. The term “guilty” is generally only used in reference to criminal offences, and this wasn’t a criminal trial, but a civil one.
dear Jess
ha! thanks. even if i wanted to lose my faith in the “average australian’s ability to expectorate their pacifiers” i ‘m sure i couldn’t. but, thanks again for the thought, i might print a couple of pages of that (double-sided, two-pages to a side) for the bus trip this arvo, though.
meanwhile, there’s a thread at the abc, too, here:-
http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918
cheers to you.
yours sincerely
alfred venison
dear TerjeP
“I don’t know how many of you actually read the Bolt articles in question and I doubt that doing so now will even be possible (at least not easily).”
well i cant speak for others, but i sure as heck did read ‘em & that’s why i’m upset by them & cheered by this judgement. and as for the suggestion that it is presently not possible to read them, the articles bolt wrote are contained within the judgement of bromberg j., which is the appropriate place for them, now.
yours sincerely
alfred venison
terjep, given that he got to say what he said and got it published in a national newspaper, what he said was trotted out repeatedly in the court case, he has his own TV show that almost certainly won’t be cancelled after this, and he is a major columnist in several newspapers(?) as well as an invited ranter on various tv shows, how exactly has Bolt been “silenced” by this judgment? Please do share.
@ TerjeP, Robert and others regarding whether defamation laws should have been used here if at all.
This is not a case about Bolt simply holding an opinion which was offensive to others. He has been found guilty because in arguing for his opinion he put forward a series of falsehoods concerning the complainants which (from the judge’s previous comments) “offended, insulted, humiliated or intimidated” a group of people in a manner “plainly calculated to convey a message about race, ethnicity or colour” and “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.”
So it’s not really about whether Bolt offended or defamed the complainants personally (as it would be in a defamation suit), but whether he used a public platform to denigrate a section of the population – white Aboriginals – on the basis of race. Section 18C of the Racial discrimination Act is entirely appropriate in this case.
Sorry – I’m having trouble closing my em tags. Only the word not should be in italics.
I found this part of the judgement particularly interesting:
I’m impressed. I’ve seen such ‘exculpatory devices’ in various articles and wondered how effective they are. It seems that, in this regard at least, the law is not an ass.
SG – you don’t think it has a chilling effect to be dragged through the courts for months as a consequence of public statements of opinion? To be ordered by a court to retract your words and apologize? Do you think that just because you are allowed to say X, Y and Z loudly there is hence no free speech issue if you are prevented from saying A, B and C?
Jenny – you’re impressed that judges judge commentary instead of leaving it to the public to judge commentary? Sick.
Jess – the judgement may be correct in law. However the law is an ass and must be abolished.
“There is a war between the ones who say there is a war
and the ones who say there isn’t. ” – Cohen
“A revolution is not a bed of roses … a revolution is a struggle to the death between the future and the past. ” – Castro
Does anybody but a libertarian (Bolt, for example) really believe in rights? Surely there is only the struggle to build a better society.
“The brain worker is from the physical standpoint incomparably freer. The writer does not have to get up when the hooter sounds, behind the doctor’s back stands no supervisor, the lawyer’s pockets are not searched when he leaves the court. But in return, he is compelled to sell not his mere labour-power, not just the tension of his muscles, but his entire personality as a human being – and not through fear but through conscientiousness. As a result, these people don’t want to see and cannot see that their professional frock-coat is nothing but a prisoner’s uniform of better cut than ordinary.” – Trotsky, The Intelligentsia and Socialism.
Free speech, like free labour, is a myth of the right. An individual can no more express herself than individually negotiate a fair wage. Workers in knowledge are attracted to the ideal of free speech and forget that all public discourse is part of the struggle.
I agree with TerjeP that laws like this can have a chilling effect. But I think there is a problem where people with powerful backing (such as large media organisations) are capable of broadcasting their views and people subject to what they say then struggle to have a response heard.
Perhaps a compromise to anti villification laws would would be a right of reply (managed by some public entity that could make judgements quickly and cheaply). So if Bolt writes a 300 word article that the entity believes villifies someone (and they don’t want to take the defamation route), then that person would be able to write a 300 word response and have it published as prominently and widely as the first.
This sort of system gives people much wider latitude to say what they think even if some people are going to be offended by it. And at the same time give people the opportunity to respond. This is more likely to actually change people’s minds. IMO a much better solution than trying to suppress speech we don’t like which just helps fuel conspiracy theories.
TerjeP: Bolt has the right to spew his filth via a widely circulated newspaper. His targets have no similar right of reply to ensure fair comment except through the courts. I think that asking for an apology in this manner is entirely justified, and has nothing to do with free speech at all.
TerrjeP said:
Equivocatioin fallacy. Puytting in the qualifier “essentially” doesn’t give you carte blanche to say that one thing equals another. The case must be argued.
In context, this is petitio principii. You imply that this has occurred in this case, but Mr Blot has not been silenced, or denied the right to utter a dissenting opinion, whatever that might amount to here. I agree that the RDA should not have been used in this way. It would have been better if those who felt that they had a case in defamation had been given the resources they needed to prosecute the case.
This comment is ill-considered if your objection is on the basis of the desirability of permissive attitudes by the state to public utterance. The character of those offended simply isn’t germane. They could all be fine folk, with robust ethics and unusual insight into the human condition, but this would be moot. All this remark does is make you sound ill-disposed to those offended — i.e. the vast majority of people. How this helps your claim remains unclear.
Here again, I sharply disagree. Discriminating against people on the basis of ethnicity, real or imagined, should continue to be a crime, regardless of one’s attitude to public utterance.
I agree with enshrining basic universal rights, but if one of those rights isn’t freedom from dicriminatiion on the basis of ostensible ethnicity then you and I have a radically different view on what basic universal rights amount to. You should also take this argument over to your friends on the right, like Greg Craven, who doesn’t like such an idea one little bit. It should be noted too that there is no country in which utterance is unfettered — and that for very good reason. There would therefore be a problem with counting “free speech” amongst such rights. The right to make good faith utterances in public without criminal prosecution seems fair enough, subject to rulings of courts on due process, witness tampering, insider trading, industrial espionage, intellectual property, incitement to criminal activity, issues of bona fide national security and so forth.
One must be accountable for one’s public utterances and in some contexts, even one’s private utterances. That is settled law.
Fran:
When should one use the RDA then? As I stated upthread, at its core this is a case about discriminatory comments about a sector of society on the basis of race, not about defamation of the complainants per se.
Chris @ 41 – seems like a good idea.
Sigh,
I had to pick at the scab and come here and have a look at the response.
The issue is, freedom of speech is an all or nothing kind of thing. If you don’t support the right of your bitterest enemy to express themselves freely then you don’t support in freedom of speech at all.
Whether you approve of what Bolt said, and what you think of the man himself, is simply not a factor that a supporter of the principle of free speech will take into account, and to say that “as it is Bolt being done down then it is all ok” simply demonstrates no commitment to the single central core principle of a free and democratic society.
A democratic decision is valid only if the people are informed, and people can only be informed if all are able to speak freely. If free speech is abandoned then any claim to support democracy is a sham, and this decision has just devalued our democracy that bit more. There is now a whole area of political discussion, Australias existing race classification laws, which have now been removed from public discussion.
I am disgusted with the crowing on the part of some here. This decision may have been in accordance with the law, but that demonstrates nothing bar that the law is unutterably vile.
Stuff the principle of free speech. If it harms people, I don’t want it. And Bolt’s ramblings did exactly that.
Philomena @ 3
This ruling has no serious implications for free speech, but it does give social weight to need for responsible, ethical behaviour by media workers.
If you think this has no implications for free speech then you are living in a fantasy world. It does, get used to it.
As far as social weight being given to responsible and ethical behaviour goes, well, yes, that is a good idea, but the law has no role in dictating what is ethical or responsible, merely in what is legal and illegal.
I certainly would not want to be subject to a law promulgated by you dictating my ethics. Nor, I suspect, would you wish to be subjected to such a law promulgated by me, or Bolt.
Not that we would want to promulgate any such law, which is sort of the whole point of the difference between you and me.
Tosh. Bolt’s argument boiled down to “I don’t think they look enough like blackfellas, so therefore they are rorting the system.” As if a person’s racial heritage can be adequately determined solely by the melanin levels in their skin.
I’ve mentioned this before: I know a woman of Aboriginal heritage who basically looks Irish, because the part of her genetic heritage that happened to derive from Europeans apparently all lined up for her in terms of external appearance. However, her parents, her grandparents and her siblings are all much more typically Koori in skin colour, although the facial resemblance is quite striking for some of them. So is she not an Aboriginal just because she has pale skin and blue eyes? Even though she grew up in an Aboriginal family?
Who are any of us to tell this woman that she is not Aboriginal just because we don’t think she looks “right”?
Jess asked:
As I understand the matter, there were some quite specific remarks that would have been actionable under defamation law. More broadly though, the RDA, ought to be used to restrain people from discrimination on the basis of ostensible ethnicity in housing, employment, education etc … Someone has to suffer loss of a good or service or advantage which they would possibly, but for the offending act. have received as a result of such discrimination.
As things stand, Blot will be required to apologise, which seems hardly to be a sanction at all when nobody, I daresay, will believe it to be sincere. The chap is IMO, humbug on stilts but there are better ways of addressing the matters raised than this.
I love your sentiment Alfred
I’m also very happy
There was a lovely tweet by @maryannmartinek
“I’d like to thank a brave group of Australian aboriginals who took-on Murdoch, the Herald&WeeklyTimes & 1 journo~THEY WON NB case”
YES
Goooooo YOU LITTLE RIPPERS
They took on Murdoch, took on HWT, took on Gina Reinhart’s mouthpiece .. and WON
And yes, I know, the “victims” who have “no voice” (other than newspapers, radio and TV, the poor oppressed dears) are going to squeal freedom of speech as if they don’t have enough avenues to spray their rot around the place. And we’re going to get the usual “free market makes facts” idjits moaning and mourning the passing of something or other /wave to TerjeP and Wozza
also happy, happy, happy
Tim Macknay said:
I’m as uninterested in semantic quibbling as the next person. Sadly, she’s obsessed …
I suspect the point being made was that ellipsis had been used in the initial headline so as to create the impression that Blot had achieved a victory when the reverse was the case.
There seems to be a bit of confusion here. The decision is an application of an existing law that has been in force for over a decade. So the implications for freedom of speech, if any, arose when the particular provisions were inserted into the Act in the 1990s. This decision doesn’t change anything.
This is also deeply confused. A great many laws reflect ethics and questions of responsibility. Most criminal laws prohibit actions which are regarded as unethical or immoral. The law of negligence is largely based on a concept of responsibility for the consequences of one’s actions.
Had a quick skim of the judgement and it’s quite nuanced on the issue of freedom of speech in a way I have no problem accepting. And I’m of left libertarian persuasion, unlike right pretenders to that nomenclature who themselves ooze totalitarian tendencies in their defence of the rule of capital and their hostility to genuine economic and social freedom and democracy (among the most important things).
As the judgement patiently explains, underpinning the bourgeois democratic notion of freedom of expression (e.g. Locke) are the notions of self-autonomy, democratic governance, and of relevance here, *honesty*, i.e. the individual and especially *institutional* responsibility not to tell lies or suggest that something is other than it is for the purposes of fomenting racial discrimination and disharmony, when the evidence, as in this case, in all instances, was always clearly otherwise. Or at least was easily ascertained by an honest journalist and media publisher, to be otherwise.
“Free speech, like free labour, is a myth of the right.”
At last some honesty from the Left. Free speech is bad, immoral etc and it’s only the bad, immoral Right that values it. Orwell is likewise bad.
Fran – I have never heard of anybody called Greg Craven let alone met anybody of that name. So referring to him as a friend of mine is presumptuous at best, deceitful at worst.
Freedom from discrimination isn’t a basic right in my view. Equality before the law ought to be but if you don’t like men or Buddists or Italians and you decide not to employ them that is not something the law should remedy. A good public shaming should be sufficient.
“The issue is, freedom of speech is an all or nothing kind of thing. If you don’t support the right of your bitterest enemy to express themselves freely then you don’t support in freedom of speech at all.”
Stuff and nonsense. I take it you think the defamation laws should be removed too?
dear Jess @47 & 50
onya!
yours sincerely
alfred venison
Very pleasing judgement by an esteemed & intelligent Judge.
The judgement made much of the “bad faith” of Bolt. As if anyone could be in any doubt about that. It is his entire MO. He has no interest in truth and has no interest in the right of oppressed minorities, or their representatives, to tell the truth and have their words accepted.
It also made the interesting point that identity (and it was established in all nine cases that Aboriginal identity had not been adopted for reason of profit as adults, but was familial in origins and dated to each person’s earliest memories and experiences) is a component of freedom of expression, something which Bolt himself had in fact first explicitly attacked by his gutter “journalism”.
Terje if you’re comfortable telling people villified on the basis of race to grow a backbone, I’m comfortable telling you that if you’re chilled put a bloody jumper on.
Honestly, you’d think this decision is plunging Australia into a cultural landscape akin to East Germany the way libertarians and the like are going on about it.
Call me crazy, but I don’t think *not enough racism* is really a problem Australia is suffering from, and I trust the courts to reach a just, mature and discerning judgment in this case, and others.
I didn’t say that Greg Craven was a friend of yours. You have friends on the right. Mr Craven is on the right and opposes a Bill of Rights. The “like” made him an exemplar of right-wingers who take this view (as opposed to those who don’t) rather than including him in the category of your friends. I accept that this formulation was open to misinterpretation and apologise for that.
I find your assertion that racial discrimination ought to be legal to be at odds with the notion of universal rights that you ostensibly support. To permit that taints the whole notion of human rights that has developed since WW2.
Bolt is a nasty piece of work and I’m going to enjoy his humiliation.
I would be a little cautious with the popcorn there pal. I think Mr Bolt and NewsCorp intended to do this and must have known they would likely lose the first round. They are fighting this law. Whether in the name of free speech or ‘neo-racism’ – well you guys duke it out ‘ey.
Ain’t over yet.
@25 Thanks for the compliment, Alfred. Moderation in all things is my motto. I share your elation. To our collective amazing good fortune to feel so good on a cold September day.
Fran:
I agree, but I thought that group defamation actions like this aren’t possible in Australia (happy to be corrected otherwise), because Bolt would have to make defamatory comments about each and every white Aboriginal person. Given that the complainants wanted to represent white Aboriginals, rather then themselves as individuals, the RDA seems to be the only way to go.
Nevertheles Jess, the conduct of such a case would inevitably have allowed the plaintiffs to introduce contextual material from external sources, in order to make clear the full scope of the damage they had suffered. Inevitably, there would have been wide reporting of the matters in conflict and damages would almost certainly have followed.
“Honestly, you’d think this decision is plunging Australia into a cultural landscape akin to East Germany”
Yes it is. Well spotted.
@Terje
I agree. I don’t think that’s necessarily what has happened here, though.
I agree, and I’m relieved that you don’t share whyisitso’s opinion on that point. It’s worth noting that the High Court has taken the view that Australians do have a constitutional right to free political speech. I haven’t followed this case so I don’t know if Bolt’s lawyers ran the argument that section 18D of the Racial Discrimination Act violated that principle. If they had it would probably turn on the question of whether the content of Bolt’s article was “political speech” or not.
Hyperbole – the last refuge of the [ableist slur redacted].
Yes I’m looking at you whyisitso, you [ableist slur redacted].
You remind me of a Dylan song, and it’s not Sad Eyed Lady of the Lowlands.
That should be 18C. The exceptions in 18D might be enough to prevent it from violating the implied constitutional right of free political speech.
@69
“”"”Hyperbole – the last refuge of the [ableist slur redacted].
Yes I’m looking at you whyisitso, you [ableist slur redacted].”"”"”
Nope, “hyperbole” is second last, “name calling” is last.
No, not hyperbowl adie. you lose any claim to a valid argument when you resort to personal abuse. The great weakness of the Left.
As I understand it the plaintiffs were given no right of reply to the Bolt articles and so were forced into a court action to get some redress. As I understand it they did not go down the defamation path because all they were seeking was a forum where their case could be heard. They are not seeking any financial damages. They have had a win because they have shown that what was claimed against them is untrue. There is no absolute right of free speech and comments in columns can be robust but they must be founded on facts. That is what led to Bolt not winning. The judge clearly states he had based his claims on lies. I don’t see any threat to free speech in this and I would ignore the journalists who seem to be claiming absolute freedom. Can I be controversial here and ask what would have happened if someone had written a column about “professional Jews” profiting from the holocaust. Can’t see an editor ever letting it run but if it did I can see an editor giving complete right of reply to the aggrieved parties.
The parties have had their day in court we know that Bolt told egregious lies about them. Sadly he is now putting the cloak of free speech around his grubby shoulders.
‘And please ignore Tony Abbott about the absolute right of free speech. Really? Will he allow Nazi web sites to flourish? Euthanasia sites? The list goes on. Will he do away with the film classification board and ACMA
Really. This from the man who sued Bob Ellis for defamation and won a financial settlement.
fine @ 60
There is always someone who raises the defamation laws, smiling smugly, as if they somehow invalidate the basic principle.
They don’t.
A demonstrable untruth is not a free opinion.
If I were to say “Fine, you are an idiot”, that could conceivably be defamatory if untrue, and I would have an obligation, both moral and legal, even under a free speech regime, to establish its truth.
If I were to say “Fine, I think you are an idiot”, that would be an expression of opinion, and thus protected under free speech. Although you would still be justified in asking me to explain my opinion. That is called free discussion, and it is an emergent property of a free speech regime.
I find your logic lacking. There is nothing inconsistent between universal rights to which people of all races are eligible and the freedom for private people to discriminate in private affairs. If you choose not to employ men in your business that is sexist. However it does not deny me the right to free speech. It does not deny me the right to property. It does not deny me freedom of association. All it denies me is a job working for you.
Obviously there is a problem if government jobs are not allocated free of racial bias. However that is a separate matter.
Fran @ 46 – perhaps there is some confusion here between the racial and religious tolerance act and the laws related to discrimination of which race is one aspect. I believe the court action related to the former which is essentially all about speech, not actions like refusal of housing/employment on the basis of race which the latter covers.
Liked Clark’s line..we cut the head off a serpent..hope it doesn’t grow two more.
That should be 18C. The exceptions in 18D might be enough to prevent it from violating the implied constitutional right of free political speech.
There are those who would say that it obviously does not.
The problem with 18C is it makes it unlawful to say or write something in public that offends, humiliates or intimidates. This are subjective emotional conditions and all individuals would bear differing threshholds over which they’d declare themselves to be thus injured. Now apart from the fact that this section says you can’t offend people (on the basis of race) it is also asking courts to decide whether someone was genuinely offended or otherwise injured.
What plaintiff would say they were not? And how could you disprove them? Moreover some people get offended by the most innocuous racial references. I’ve know people to suspect anti-Semitism when discussing Sumerian mythology (I’m not kidding).
Section 18D then excuses any such discourse if it is made in the genuine public interest, if it’s artistic or if it is:
This is the bit that applies to Bolt. Essentially they found him guilty because his work was shoddy. 18D(ii) doesn’t get him off which is interesting, wonder why?
No matter. The law is attempting to do two things here: 1. It is limiting speech if it’s found to offend someone and 2. It is deciding what is legitimately entitled to offend someone because of a certain sincerity or quality. These are the sort of controls on speech and thought that the Inquisition used to exercise. It enables, even compels courts to dispense the exercise of speech as a privilege that is selectively given. You can’t say if it offends them unless it’s somehow ‘worthy’.
In a way I’m reminded of the Hicks case and all those who didn;t understand what killing habeas corpus in the name of ‘our way of life’ was profoundly ironic.
The name’s adrian to you son.
Besides which I’m not from the Left, whatever that is, and I’m just exercising my right to unfettered free speech which you seem to value so highly.
Should I call you a hypocrite as well, since you seem to be defending the Dolt’s right to be as abusive and misleading as he likes in the name of free speech?
Terjep,
Absolutley.
The Congressional Black Caucus, the NAAPC and La Raza are examples of people freely choosing to associate, which means, of necessity, choosing not to associate with others who don’t meet the prescribed criteria. In other words, they discriminate.
Freedom of Expression, Freedom of Association, are not rights conferred by the state, they are freedoms we possess unless the state interferes.
The bemusing thing is, the more rights we seem to have foisted on us by the state, the more our core freedoms are circumscribed, and the greater the powers of the state to interfere in personal interaction.
Chris @ 44. When talking about uneven power distribution in the media one only has to look at Robert Manne where in response to his critique of them responded with free sppech in quantity (and also after printing 8000 words declared the debate closed.)
I am pleased that the “I’m not saying” defense has been recognised by the courts as bullshit where one could state the most outrageous bullshit provided you preceded it with “I’m not saying that…”
As some people said at http://blogs.crikey.com.au/purepoison/2011/09/28/im-not-saying-im-not-saying-because-apparently-its-no-longer-worth-saying/
“that kind of ‘free speech’ ”
Yes the only free speech that ought to be allowed is that of the Left when they vilify libertarians.
You mean glibertarians whysitso.
You still remind me of a Dylan song and it isn’t Blowing In The Wind.
Terje said:
Well there’s your problem. Employment and housing aren’t private affairs. If you offer premises at large for lease, you may discriminate between tenants in many ways but none of them can derive from ostensible ethnicity. You can discriminate on that basis when choosing friends, because that is a private matter.
You advocate small government, which in practice means that you think that not just most but nearly all service provision should be carried on by the private sector. In your ideal world they could discriminate on race (and presumably on other arbitrary bases) as they pleased. So what would be “universal” would be liability to arbitrary discrimination. That would be an ugly caricature of human rights.
whyisitso. Not going to defend what you say but I defend your right to say it even as you (successfully) try to derail the topic.
BTW, does anyone else hate the way that the word absolutely is used these days to imply that no dissent could be possibly be entertained to the user’s usually half-baked opinion?
@Chris Harper
Is that how you think defamation law works?
@Adrien
Naturally. I wasn’t implying that it necessarily did, I was just musing about it, really. You’d need a court decision on it to know for sure.
That said, when you say:
you seem to have misread section 18C. it actually imposes an objective test based on what would be reasonably likely to offend, insult, humiliate or intimidate a group of people, and is done for racial reasons.
I’m ambivalent about whether it represents an unreasonable restriction on freedom of speech, but it’s quite clear that it’s not based merely on a subjective claim to be offended.
Tell me I’m wrong. Please. The Geoff Clark who was “humiliated” by the writings of Bolt is the same Geoff Clark who had $20000 odd awarded against him in a civil claim of rape and refuses to pay up? That can’t be right.
Fran @ 66: I still think it would be difficult for ‘white Aboriginal people’ to prosecute a libel case against Bolt, even though his thesis that ‘white Aborigines identify with their Aboriginal heritage solely to further their careers etc’ is pretty damaging in terms of any white Aboriginal person’s reputation.
This is especially since they aren’t legally recognised as an entity, except under the RDA. Furthermore, if the complainants were suing for damages, how would those damages be allocated? It’s a pretty nasty legal situation to get into. I think the prosecution took the right line here.
At least this decision should put paid to the notion that further controls or limits to the freedon of the press are needed. As I have pointed out here previously, there are already plenty of controls in place.
The IPA is now raising funds to run a full page advert in the Australian.
“reasonably likely” This is an objective test? Only to Lefty lawyers. The word “reasonable” is manifestly (to use a lawyer word) SUBJECTIVE.
Tssk – I gave them $50. This law needs to be rolled. Watch this space.
Not LeftyLawyers!!! They’re coming to get you, and it won’t be pleasant as they subjectively insert an objectively blunt object into your appropriately objectively tested orifice.
whyistso you’re reminding me more and more of a Dylan song and it isn’t quite Tangled Up In Blue.
Fran – you may not agree with me and your spin is negative but otherwise you have summarised my view fairly accurately. People should be free.
Seriously now, have any of the sundry nutjobs commenting on this judgement as though it was the end of civilisation as we know it actually bothered to read it? I thought not.
whyisitso @ 71
I’m not arguing that free speech is bad. I’m arguing that it isn’t a right, that there are no such things as rights. That the ends justify the means, you might put it. In this case, that one ill (racist hate speech published by a near-monopoly commercial news service) outweighs another (displeasure for Bolt and his followers). Rights are for libertarians. Freedom is the jungle.
Mentioning Orwell and Bolt in the same breath is a bit sad don’t you think? Just hold an image of Orwell and Bolt together in your mind. Orwell … Bolt. On the left, antifascist anarchist genius who gave, spent, risked his life to tell the stories of the downtrodden … on the right, smug attack dog of the same repressive reality-manipulators that Orwell describes so well in his writing. If Bolt was in Spain you can bet he would have been writing his ugly prose for a Franco paper.
adrian, you’re reminding me more and more of the FBI guys in a Arlo song – and it isn’t Alice’s Restaurant
Can I ask a question of those saying our free speech rights are under threat.
What should the plantiffs have done?
If you were in their shoes, what would the right course of action be?
Should they have just worn it? Not complained? Resigned? Allow themselves to get sacked?
I’m all for the tearing down of the corrupt and the criminal. But when innocent people get accused of acting improperly in such a way that it’s going to effect their real life should they just deal with it?
Fran – Employment and housing aren’t private affairs.
That’s an ideological supposition. It’s fair enough to make it but I don’t think Terje feels the same way. Most employment and housing is actually a private affair as in it manifests as a private contract.
@whyisitso
And also to conservative lawyers, liberal lawyers and, presumably, Objectivist lawyers (I don’t know any personally).
Is this another example of how the right has embraced postmodernism? It wasn’t so long ago that liberals and conservatives, at least, thought reason was a good thing.
whyisitso, I’m a little mystified at how you can claim to be a libertarian in favour of free speech while simultaneously opposing the idea of constitutionally enshrined rights. As your fellow Libertarian Terje has pointed out, constitutional rights are one way of restraining Parliaments from passing laws that diminish free speech. If you’re against entrenched rights, then you shouldn’t be surpised or upset by the logical consequence that, from time to time, democratically elected Parliaments are going to make laws that restrict those rights in various ways.
I wonder what they expect that to achieve. It doesn’t sound like a particularly sensible use of their sponsor’s money to me. But hey, it’s not my money.
Tim – you seem to have misread section 18C. it actually imposes an objective test based on what would be reasonably likely to offend, insult, humiliate or intimidate a group of people, and is done for racial reasons.
I understand that the courts are always being compelled to consider what is reasonable certainly. But I don’t think one can be entirely objective about ‘offensiveness’. I don;t think it’s possible.
I’m ambivalent about whether it represents an unreasonable restriction on freedom of speech, but it’s quite clear that it’s not based merely on a subjective claim to be offended.
But what else can such a claim be? And how does one ascertain what is a reasonable taking of offense versus an unreasonable one? How also can one evaluate good faith? The difficulty it seems to me is that the courts are being asked to deliberate on matters concealed in the human heart. According to what objective criteria did the court decide that Bolt wasn’t making a ‘fair comment’.
Well he probably played twister with the facts. But how does one decide this is intentional and not the result of ignorance? I don’t agree with this part of the law because I don’t think people would be able to shut you up because they are offended. That would deprive me of some of my favourite things.
I’m not a fan of Bolt and I think he stirs up a crowd and all that but using the law to shut him up can have serious consequences. These are indicated by the uncertainty of the ‘objective’ standards by which legitimacy is decided and the questions an inquiry into same never stops producing.
What should the plantiffs have done?
It’s a bit like minimising tax, isn’t it? If there is a law that allows it, go for it.
I have no quibble with the plaintiffs taking action at law. It is the basis this actual racist piece of law that seems to be questionable.
What should the plantiffs have done?
There is no general right in law, covering everyone, not to be offended. Nor would it be possible in any but the most totalitarian hell hole to have any such right.
This being the case I see no reason why any favoured group should have such a right. Equality before the law and all that…..
The plaintiffs should have done what the rest of us have to do when we hear a claim, assertion or intent to act which offends or infuriates us. Grow a thick skin and accept this is part of the hurly burly and the price of living in a free society.
With these kinds of test, the court is usually required to make an of evaluation of community standards, relying on common sense. There is an element of subjectivity to it, of course. There are fuzzy edges, at which judgment becomes more difficult. I’m not sure this is one of those cases, though.
On the question of good faith, it’s evaluated by relying on a common sense interpretation of what was said. Again, there are hard cases, but it seems pretty clear in this instance that Bolt’s disclaimer wasn’t made in good faith, and the court didn’t exactly have to engage in twists and turns of reasoning to come to that conclusion.
Yes, that is potentially a problem with these kinds of objective tests that require courts to make a judgment about community standards. Of course, the problem can be exaggerated. The likely consequences of this case is that Bolt, and others might be less likely to write things that are gratuitously inflammatory. it won’t stop him, or anyone else expressing their opinions on all manner of things.
That said, personally I’m ambivalent about this particular law because I can see merit in both sides of the argument. On the one hand, I like free speech, and restrictions on it should be scrutinised and treated with a degree of suspicion. On the other hand, vilification and hate speech is not only damaging to its targets, but also affects public discourse by degrading speech in general and making it difficult to have a civil discussion about anything. IMHO, an open society depends upon the ability to have civil debates nd discussions. Also, the liberal concept of free speech does not necessarily entail the freedom to be dishonest. If it did, there would be no law against fraud.
And specifically on the issue of racial discrimination, I think the idea that people are “free” if they have formal legal equality, while at the saming time having their ability to participate in the economy and civil society consistently curtailed by the systematic exercise by a majority of their “individual” right to discriminate (which has been the historical experience of Aboriginal people) is at best, naive. I think legal restrictions on discrimination are necessary for the actual exercise of freedom by many people. However I’m not altogether convinced it needs to extend to legal restraints on what people say, as opposed to how they treat people in commercial settings and the like.
Chris Harper is obviously clueless about the defamation law. Both sets of words would be protected under ‘fair comment’.
You seem to be missing the bit of the judgement in which it states that Bolt told lies. He didn’t just say nasty things. He lied about a group of people. As you said; A demonstrable untruth is not free speech”.
Thanks Alfred Venison for linlking to Anita Heiss comments on today’s finding. She sums it up beautifully. Those concerned about this decision being an erosion of free speech ought to make the effort to find out what one of the complainants thinks about the matter:
http://anitaheissblog.blogspot.com/2011/09/my-statement-on-todays-in-in-federal.html?spref=tw
You seem to be missing the bit of the judgement in which it states that Bolt told lies.
Well Fine, I followed the link to the judgement provided @32, and I have to say that the judge seems to have missed that bit as well.
Nice reproduction of the “offending articles” though.
I’m not sure of the implications this case will bring (a long way to go), given it certainly will be appealed. However, whilst it lasts Bolt will have to eat a very large lump of humble pie. Isn’t it wonderful!
The ABC has an interesting piece with comments from the Press Council, who deny that this ruling is a stifling of free speech on issues of race and ethnicity.
fine @ 109
Chris Harper is obviously clueless about the defamation law
Whatever. Do I have to spell out my posting was tongue in cheek?
The point is, I was alluding to the absurdity of your suggestion that defamation law was some sort of argument against supporting freedom of expression for all.
I repeat, it isn’t, and you are either for freedom of expression for all, or you are not in favour of it at all. it in instead a privilege granted to a preferenced group – even if the group is big. There is no middle ground.
Grace @18: “then rest easy, the Vic Govt will probably soon oblige”
Great though the Victorian Parliament of course is, it cannot repeal a Federal Act.
@PeterTB, here are the relevant quotes from the judegment:
Don’t errors of fact and distortions of truth wrapped up in inflammatory and provocative language amount to lies?
Of course, lying for Bolt appears to be a habit: according to Heiss he told the court that he used a photograph in 2009 that he couldn’t possibly have seen before 2011 to determine whether Anita Heiss’ mother was enough of a blackfella for Heiss to have any legitimate claim to Aboriginality.
PeterTB @ 111: From the judgement you claim to have read:
(emphasis mine).
Sorry TT – didn’t see your post before posting mine.
I don’t think that the freedom to express an opinion without government interference should extend to being a shield protecting those who state blatant lies. If people utter errors of fact, they should be held to account.
tigtog and jess: yep. Bolt needs to stop makin’ shit up.
dear akn
thanks for the kind words, tssk linked first @1 just as things warmed up – i stumbled over it later, looking for the judgement & brought it over in tow with that. gotta say.
yours sincerely
alfred venison
BTW, anyone care to comment on the Green slur in Broome? Where environmentalist progressives indulged in racist smears against aboriginal people who didn’t conform to their preferred racial stereotypes? Labeling people who want to capitalise on their assets and escape poverty as coconuts?
Which was worse? A conservative like Bolt asking if the Australian race classification laws were being scammed? Or progressives indulging in the most blatant racist stereotyping and smear?
Robert Merkel said:
Bolt performs one good function, namely calling out Left-liberals on their Culture War follies, “political correctness gone mad”. He should leave the Climate War, Class War and the War on Terror to those who know what they are talking about.
The verdict it is an intellectual disaster for Left-liberal race hustlers as it shows that they have completely failed in their attempt to make their case by means of rational analysis. They have resorted to legal constraint to silence their critics, a sure sign of a losing argument.
More importantly it is a moral disaster for Left-”liberals” as it shows the hollowness of their commitment to free speech when it conflicts with their political agenda. Bolt’s comments might be “offensive” to some delicate sensibilities, but last time I checked the Constitution it implied that giving offence to public figures is not a crime. Obviously the High Court will have to re-visit Theophanous v HWT.
Fancy prosecuting a journalist on grounds of “racial vilification” for stating the bleeding obvious, that the plaintiffs were mainly Caucasian in appearance but making a career out of Aboriginal activism. It strengthens the position of old guard Aboriginal activists who are part of the problem, rather than solution, in closing the gap. The gap just got wider.
Tom R @ 115, thanks for pointing that out, my bad.
Chris @ 122 I’ve heard that phrase often enough in the mouths of Aborigines who use it freely as a political comment about other Aborigines rather than a racist slur. There’s a difference. I’ve heard Chinese people refer to themselves as ‘bananas’, you know, yellow outside and white in. There are also significant differences between comments made by discussants and the considered nastiness of an article pepared and published based on untruths.
The next victim of this law is “satire”.
@ Chris: The Broome case is equally appalling. No one should be being called a coconut. But are you sure that it’s “progressive environmentalists”? The Australian says:
(emphasis mine); sounds like they don’t know well enough who’s behind the statement. But what does this have to do with Bolt?
Further to my link at 125: Have just realised that it sounds like the Australian has changed its story on that one – they were strongly insinuating that environmentalists were to blame in a previous version.
akn @ 124
And I have heard many American and West Indian blacks refer to themselves as n….. as well. Doesn’t mean it would be acceptable for me to write an abusive document using any of those words.
Are you trying to excuse the Broome incident?
There are many people who are extremely offended over this matter; on the logic of the law shouldn’t the perpetrators be prosecuted? Or is it one rule for Bolta and another rule for green progressives?
Why would that not surprise me?
Jess @ 126,
Ok, I had been given to understand that that was the source. If I am wrong then I apologise unreservedly.
Don’t errors of fact and distortions of truth wrapped up in inflammatory and provocative language amount to lies?
I think if the judge had put the word “deliberate” somewhere in there, you would be right.
I’m no lawyer but my understanding was that the implied right to freedom on political communications had been increasingly narrowly construed as relating to the mechanics of government as outlined in the constitution, specifically the holding of elections. I was not of the understanding that there was a general protection of ‘political speech’ in the way the term would be understood in a US context.
You’ve introduced a red herring about which I know nothing (the Broome matter). I’m quietly enjoying the ruling against Bolt and intend to keep on doing so while the glow lasts. If you can’t discern a difference between an article published by a so called professional journalist and an offensive, anonymous note then that’s down to you. The note may be actionable, it may not. Bolt’s article definitely was actionable; the courts have now delivered two good judgements in as many months; I’m content with this.
“With these kinds of test, the court is usually required to make an of evaluation of community standards, relying on common sense. There is an element of subjectivity to it, of course. There are fuzzy edges, at which judgment becomes more difficult. I’m not sure this is one of those cases, though.”
A similar sort of test applies to defamation law. To be defamed the alleged slur has to lower or harm the person’s reputation according to community standards.
Chris Harper – you still haven’t addressed the bit where Bolt made errors of fact. He lied and did so quite happily and without remorse. Do you want to defend that within a freedom of speech defence?
PeterTB: Again, from the judge’s ruling:
Sounds fairly deliberate to me. Did you even look at the ruling before commenting?
akn @ 124 – I don’t know if coconut qualifies as a racist slur as its more an intra-racial slur, but its commonly intended as an insult – eg not an authentic aboriginal because they have adapted too many western practices. I guess you could claim this as political commentary, but so too would much racist comment (can be both racist as well as political commentary!)
Strangely enough although I’m of Chinese background I’ve never heard the banana comment – not sure what to make of that. Perhaps the same as “ABC” (Australian Born Chinese) who are thought to have a lot of western values rather than traditional Chinese ones – and thats not intended as an insult by most. Have definitely heard Chinese refer to themselves as “Asian Jews” though (due to commonality of ethnic chinese minorities being involved in business throughout Asia).
This is a great decision. What we need now is a Science Discrimination Act so Bolt can be found guilty for all the lies he’s told about global warming not happening.
Sounds fairly deliberate to me
The judge is saying that he is satisfied that the imputations were understood and intended – and I’m inclined to agree with him. The judge is not talking here about errors of fact.
Did you even look at the ruling before commenting?
Did you not see mine @111? Or are you now calling me a liar? How lightly you use the language.
fine @ 132
Of course I don’t defend that, and that is what defamation laws are for.
I am asking you to explain your rejection of free speech/expression as a universal on the basis of the existence of those laws.
If freedom of speech is not universal and available to all then it is a privilege limited to a preferred group. I simply cannot see how it is otherwise. In this case, limited to that group comprised of people who don’t question whether Australias Race Classification Laws are being scammed.
Update: [by MB] LP, as we know is not a hive mind, and I strongly disagree with the propositions that free speech is at issue here, and that Andrew Bolt ought not to be civilly sanctioned, and I have said why here.
Chris: these kinds of comments (banana, coconut) are highly situational – depends on whose saying them, about whom, under what circumstances. I’d never heard the banana thing until a Chinese origin workmate used it. Very funny. She meant that she’d acculturated to Australia well by marrying a publican and supporting Parramatta. But Bolt’s deliberate baiting is not in the same category as conversational playfulness.
Chris Harper, I have to say I don’t know exactly what you’re on about. Are you now saying you’d be happy for Bolt to be found guilty for writing exactly the same words, by the defamation laws?
Good artlcle, Mark. Shocking that you should disagree with Rob on this matter. One, or both of you, is letting the side down. And, I for one, am appalled.
MB: your differentiation between freedom of speech and freedom of expression is exactly the point. That, and the insistence that free speech is accountable to the truth. Good one.
“Mentioning Orwell and Bolt in the same breath is a bit sad don’t you think? Just hold an image of Orwell and Bolt together in your mind. Orwell … Bolt. On the left, antifascist anarchist genius who gave, spent, risked his life to tell the stories of the downtrodden … on the right, smug attack dog of the same repressive reality-manipulators that Orwell describes so well in his writing. If Bolt was in Spain you can bet he would have been writing his ugly prose for a Franco paper.”
Oh stop, James. The bellylaughs, they hurt. That’s gold.
Are you now saying you’d be happy for Bolt to be found guilty for writing exactly the same words, by the defamation laws?
I don’t know if that is Chris’ view, but it seems a perfectly reasonable one as per mine @106
A silly judgement that indeed reflects badly on rights to free speech in Australia. Australia has never fully shook the hick country tag, and this ridiculous judgement doesn’t help the cause.
One believes in free speech or one doesn’t believe in free speech. Free speech doesn’t include the provision of being nice or even being truthful. Truth of course is important and that is why laws of libel exist in all nations that claim the right to free speech.
Why wasn’t Bolt dealt with through defamation proceedings? That’s the question that all people should be asking. It’s frankly embrassing for Australia that he wasn’t, and even though he wasn’t, people are claiming the victory as if he was.
This country is really sinking fast and steady.
As far as the OP goes I don’t accept that defamation is for some reason the only way of defining a reasonable limitation to freedom of expression. The core of this judgment is that Bolt was found not to have acted “reasonably and in good faith”. People criticising the decision should say whether they disagree with this assessment, or if they think such misleading commentary should always be permissible, and they should stop pretending that this is about silencing discussion. Both the law and this judgment couldn’t be clearer that fair comment in good faith is perfectly lawful.
@Chris Harper,
So you know exactly who wrote those slurs, do you? Wonderful – how about you tell the MP concerned so that she can get cracking on her totally justified defamation lawsuit?
Robert said:
That’s improbable IMO. I can’t begin to imagine to whom he might appeal. I’ll grant though that this is probably just my desire to avoid unpleasant thoughts that serve no useful purpose.
Discussion of the question of facts in the judgment include these parts:
“The reader would presume that as a journalist, Mr Bolt would have undertaken research and presented relevant facts. The fact that some research about cultural background has been undertaken is evident. In that context, the reader would understand the assertion conveyed that the individuals are not sufficiently Aboriginal to be genuinely self-identifying as Aboriginal, to be based upon Mr Bolt’s research of both biological and cultural considerations.
In part, the cultural references where given, were erroneous. But more fundamentally, the Aboriginal cultural upbringing which was available to be presented at least in relation to nine of the eighteen individuals dealt with by the Newspaper Articles, was not included. Those facts were relevant, in the context of a comment in part based upon cultural considerations. Their omission meant that the facts were not truly stated. For that reason also, the offensive imputation was not a fair comment.
The omission of those facts is also relevant to the issue of reasonableness and good faith. The omission occurred in circumstances where the facts were likely to be either publicly available or readily obtainable, including by Mr Bolt contacting the individuals concerned.”
“There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about.”
“In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.”
@135
“What we need now is a Science Discrimination Act so Bolt can be found guilty for all the lies he’s told about global warming not happening.”
Careful what you wish for. Some people have suggested censorship, others have suggested suspending democracy and still others have suggests tattooing deniers.
You join the list by wishing for prosecution for any vocal non-believers.
Bearing in mind Martin’s post above perhaps a disclaimer should appear next to all of Mr Blot’s posts.
Fine @ 140
Where Bolt has defamed the defamation laws are the correct recourse. If those laws are not adequate then get them changed.
Where Bolt has offended then vigorous debate is the correct response, rather than a resort to law. As I said earlier, there is no universal right not to be offended in a free society, nor can there be, and nor should there be. All people in a free society need thick skins, and no one should be entitled to a special consideration which is not open to everyone else. But I am now repeating what I have already written.
You have again refrained from explaining your conflation of defamation laws with a rejection of freedom of speech as a universal. Does this truly mean that you do regard it as a privilege rather than a universal freedom? If so, do you acknowledge that you must of necessity also reject informed democratic choice? Universal freedom of expression being a necessary precondition.
MB, your three points in your blog has caused me to change my position.
And I do think AB was really lucky that they didn’t go down the defamation route as saying sorry is a lot cheaper than the alternative would be.
If the only thing this judgement does is stop cowards from stating distruths while using the phrases “I’m not saying that” (when it really is what they’re saying) or the older variation “some people say” then public debate will be the better for it.
When a particular hurt can only be suffered (in practicality) by a restricted group then legall redress for that hurt will neccesarily only be available (in practice) to that restricted group. But as far as it goes, there is nothing I can see in the law that restricts its universal application in principle.
Chris Harper @151, using Robert Manne as an example when he responded to debate with debate the response was half a dozen articles (and a political cartoon) in short order along with a declaration that Manne was wrong and that the debate was over.
To put it simply debate is currently being won by who has the loudest voice, not who has the best arguement.
akn @ 139 – well I’d argue that most offensive terms are highly contextual. But, and I think this is unfortunate, use of a potentially offensive term is now generally considered offensive if expressed publicly or even repeated in public, regardless of the original context.
Fran @ 148:
Mrs Bolt probably finds Mr Bolt to be appealing.
… as opposed to “appauling”.
dear Chris Harper
this is australia, not the usa, or canada, or scotland, or france, or germany or even old dart. richard ackland picked this over back in march. he said, inter alia:-
“The difficulty is we do not have a “right” to free speech, beyond the vagaries of the common law. If we had a charter of rights, Justice Mordecai Bromberg would be required in this case to balance Bolt’s right of free speech with the rights of the applicants not to be racially picked upon and we’d have a better idea of where the line lies. But of course, Bolt campaigned furiously against a charter of rights.”
http://www.smh.com.au/opinion/nothing-black-and-white-about-bolts-case-and-right-to-free-speech-20110331-1cn8l.html#ixzz1ZFXiT2it
so, who’s for a bill of rights?
yours sincerely
alfred venison
AV @11: Maybe Bolt will suddenly become an advocate of a bill of rights?
Chris @ 155
The term used in the document was ‘toxic coconut’. That modifier seems to indicate that the term was meant to be offensive.
The document was anonymous, but its message was green.
Sometimes a deeply felt sense of moral superiority can result in a lack of introspection and actions which are morally repugnant.
Some people here seem to have a childlike conception of free speech.
You have the freedom to say whatever you want. With that freedom comes the responsibility to take the consequences of your speech.
A lesson that Andrew Bolt has recently just learned.
A Bill of Rights is spoken of as if it is some sort of panacea. It isn’t of course. It all depends on its contents.
I have read the New Matilda proposed Bill, and I wouldn’t touch it with a barge pole. It has some high minded language, but provisions scattered throughout the document pretty much destroy both freedom of speech and freedom of association, although you have to read the whole thing to see what it accomplishes.
It is a document which, rather than protecting us from an overbearing state, actually mandates the creation of such a state.
This idea that there is some “absolute”right to freedom of speech is nonsense. It has always been nonsense and will always be nonsense. Incitement to violence, sedition, defamation have all existed at common law or in statute. The racial discrimination act is simply a new piece of legislation. Fundamentally liberalism of the John Stuart mill variety is based on the principle that a person can and should be allowed to do anything which does not “hurt” another. Haven’t we reached a position as a society now that recognizes that psychological hurt is a real injury ? It seems reasonably straightforward to me in that context that laws are updated to reflect these matters.
The truth is bolt could have written what he wrote without deliberately denigrating people. It mightn’t be the way he likes to operate as a polemicist but perhaps it wouldn’t be the worst thing in the world for him to think about the ramifications of what he writes. Still who am I to judge these matters ?
Finally a personal comment. The childishness of those who refer disparagingly to the “left” as though there was a singular thing and an undergraduate labeling
One of the interesting aspects of the judgement is that what Bolt did was illegal because he got so many fundamental facts wrong. So firstly I wonder if he wrote a similar piece but got the facts correct if another court case would not succeed.
And secondly its rather curious that getting fundamental facts wrong in itself won’t get you into trouble as a journalist when it comes to the law (modulo defamation law), only if there is a racial or religious spin to your argument.
And putting the two together – does the racial discrimination law for these sorts of cases just duplicate rights for complainants which already exist in defamation law?
Fran
“I can’t begin to imagine to whom he might appeal.”
Surely you are trying to be sarcastic? Or you don’t get it?
Bad law.
Bad decision.
See you in the High Court.
alfred venison @ 156
You are right. We do not have the right, but under the common law that which is not explicitly controlled or forbidden is by default permitted – ie, we are free.
Where some states grant the right to free speech to their citizens the state here can do no such thing. All it can do is restrict or abolish the freedom of speech we already possess.
I don’t need the state to grant me any such freedom.
@ Rob b:
Did you check the first sentence before you wrote the second?
@Chris,
Good question and I’m not sure on the answer. However I’m not opposed in principle to there being more than one legal avenue available as a remedy for those who have been maligned by anybody publishing “inflammatory and provocative” untruths. Considering that there are known dog-whistle formulations that will allow one to publish inflammatory and provocatively phrased untruths without breaching defamation law, why shouldn’t there be other legal remedies against such weasel-worded publication of untruths? (eta) That is, if we as a society claim to value truth in discourse, then why shouldn’t we be in favour of our legal system offering multiple remedies against the promulgation of untruths depending upon the context in which the untruth is disseminated?
@Tiny Dancer,
You can’t appreciate a deliberate pun when it’s that obvious? Bolt is terribly unappealing.
Bolt, is a person who chooses to seek out the extreme boundaries, and who just found one. The “free speech” argument is the usual catch cry from people who never want to be accountable for what they say.
This is an opportunity for Bolt to try the Toxic Tony Abbott accountability clearing technique of declaring that “what was said in the past is in the past, what is important is what is said from now on”.
Bolt is a mega mouth with mega media amplification. His influence is disproportionately large, and therefore even minor distortions of truth in what he puts forth has a disproportionate effect on people who he chooses to debase. This is why, I believe, the judgement went against him and on issues of informational accuracy, not issues of his “right” to speak.
It seems almost axiomatic that if one wishes to push at the boundaries of any law, then one needs to make sure that one’s facts are right – and if one does not care if one’s facts are right, then one should make sure that one is not pushing the boundaries of the law.
That applies in this case no differently to the situation where someone driving a motor deity wishing to push the boundaries of the speed limit needing to make sure that they have the facts of the speed limit right. ie if you want to travel at 62 kph, then make sure you are not in a 50 kph zone.
Bolt bleating about ‘freedom of speech’ makes about as much sense as those caught speeding sobbing about the injustice of a law that is really about making revenue for the gummint and not about road safety.
Oh, and let him appeal to the High Court. If one has not noticed, this issue has completely pushed Tony Abbott off the front page, even of the Australian. So, keep going Andrew, make as much noise as you can.
Preceding that, the announcement of women in front line roles, also pushed Tony off the front page of the Oz.
Perhaps the ALP stragegists should take some note of what it is that keeps Tony out of the news?
Don Dunstan on the left, and Joh Bjelke-Petersen on the right, knew how to ‘feed the chooks’ of the media to keep said chooks focused where they wanted them.
I So come on Andrew, off to the High Court. With any luck, this might drag out over the next two years, and we can all obsess over AB and deny Tony Abbott his spot in the Sun.
This issue excites so much attention because it goes to the core of the most significant event in Australian history – the grandest exercise in eugenics, second only to the Holocaust in world historical terms – the removal of Aboriginal children. Let’s not forget that the purpose of child removal was to ‘breed out’ Aboriginality. The issue of Aboriginal identity is deeply sensitive for Aboriginal people. It is not a subject on which anyone with a mind to have an opinion is entitled to express it especially, as we have seen with Bolt, to express an opinion that ignores or distorts the facts of the matter in relation to the Aboriginality of specific individuals.
Bolt is the unwitting inheritor of the sorts of social attitudes that attended the eugenic exercise of ‘breeding out’ Aborigines from Australian life. He feels free to express an opinion as to who is and who is not an Aborigine based on general appearance, skin colour, aboriginal features and so on. These are precisely the measures that were used by ‘the welfare’ in choosing which children to remove from which Aboriginal families. The intention was to ensure that Aborigines people did not intermarry (ie breed) with other Aborigines to sustain a distinctive Aboriginal biological line.
In apartheid South Africa, as a mate of mine who was subject to the following test explained to me, race was determined by such crude measures as the ‘comb test’. In this test the Police or some state racial hygienist would attempt to pull a comb through the hair of a person in a single stroke. If this was not possible, if the comb became entangled in curly hair, then the subject could be categorised as a ‘cape coloured’. This established his or her African heritage.
Andrew Bolt is more apartheid copper than journalist. This is why his ignorance, his cunning and his cowardly attacks on the cultural identity of others so offend. Without understanding his role he contributes to the vicious, ongoing eugenecist project that characterises Australian social policy and social attitudes towards Aborigines.
Who is Andrew Bolt to declare others not sufficiently Aboriginal in appearance to qualify as Aboriginal? Moreover, in declaring that some ‘non-Aboriginal’ Aborigines had taking Aboriginal jobs from more deserving Aborigines, by which he means Aborigines conforming to his idea of what a ‘true blood’ looks like, he assumes the same hypocritical stance as every state ‘chief protector’ of Aborigines ever took. In defending the rights of ‘true bloods’ he asserts his right to determine who is and is not Aboriginal. He crows like the worst petty clerk in a government office “These people are not Aboriginal because I say so”. He is the public bone counter of genocidal policies.
Disgusting.
Justice has been well served by this decision.
dear Chris Harper
i’m less sanguine than you. presently we don’t have “freedom of speech” in australia, we have “absence of prior prohibition”. just because they haven’t said you can’t do something doesn’t mean they won’t in the future. i want something stronger and i’m confident when it comes it won’t be based on the new matilda document. have you looked at the canadian charter? its settled down quite well there, not hated or abused, and hasn’t clogged up the courts. don’t look to usa as a comparison – they’re sui generis, canada is a better foil to australia: a resources rich federation, with british parliamentary practices. and a charter (bill) of rights.
yours sincerely
alfred venison
Akn @ 175,
Just to let you know – nothing Andrew Bolt wrote is as offensive as the baselessly abusive, unutterably vile and hate filled rant you just indulged in.
But that’s ok isn’t it? Bolt is not a group looked on with favour by progressives.
For reference, look up the history of eugenics. It was a project historically pushed by the left, until, in Germany, they saw the inevitable results of the policies they were pushing. Have a look at some of the Fabians, pre war.
Accusing Bolt of pursuing historically left wing policies is the living end.
Well said akn @ 175.
The judge made it abundantly clear that free speech was not the issue here, but rather Blot’s falsehoods and omissions, which were practically guaranteed to cause offence. I’ve got to side with the judge on this, I think he’s got it exactly right, and it’s about time Blot was held to account.
Oh nonsense. Eugenics was equally popular on the right, and continued well into the 70s in the US and other places..
Apparently Blot contravened the Herald-Sun Code of Conduct
6.1 may also be germane:
Blot’s “informant” was apparently wikipedia.
There’s also 4.1:
4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise.
Public interest implies accuracy on matters of fact.
Of course there is also 2.1:
Perhaps most laughably:
I’m not sure how often Blot and Akerman have breached these, but it does underline the hypocrisy of the organisation.
So the Herald-Sun has a detailed Code of Conduct. Fancy that.
I always thought it only contained two words: ‘Obey Rupert’.
Dexitrooper @ 180
I refer you to writings by GB Shaw, the Webbs, Marie Stopes, Margaret Sanger, H.G. Wells and to formal Fabian policy prewar? Can you point me to similar writings by high profile conservatives and libertarians? I am not aware of any.
Well there’s that noted leftist Winston Churchill
I fail to see the relevance of a discussion on eugenics to the present thread. Please take the discussion in more productive directions, thanks.
You appear to be artificially limiting the pool of who can be considered “on the right” there, Chris Harper. Did you perhaps already think of someone(s) whom you want to pre-emptively exclude?
Chris Harper: I’m well versed in the history of 20C. eugenics. It was all the go from the 20′s onwards, including here in Australia, amongst anyone who regarded themselves as educated regardless of political belief. It was seen as ‘modern’ and ‘scientific’ and therefore beyond politics because it enjoyed authority that was the exclusive preserve of scientific objectivity.
All I have done is put this decision against Bolt within the context of Australian history which seems to me to be a reasonable thing to do. Your intemperate response to those comments suggest to me that you’ve lost the plot in so far as you’ve ever had a grasp on it. Bolt won’t understand what has happened to him, nor will his supporters and nor will the other media ranters and all because their (your) ignorance of Australian history prevents such understanding. Mere outrage is not a persuasive response.
Chris Harper, I believe free speech has its limitations. Bolt just ran up against one of them. But, apparently you feel comfortable with journalists telling lies.
I find it intriguing that the only time a certain section of the community jumps up and down about rights is in the context of a supposed intrinsic natural right to peddle lies and distortion in aid of character assassination.
Neither do these passionate defenders of “freedom” – so quick to vault onto their soap boxes and wave copies of On Liberty – put their discussion of rights to free speech in the context of the power of the platform from which they preach to the rest of us.
Bolt has a column in the nation’s biggest selling newspaper and, courtesy of the nation”s richest woman, a weekly television program to fire off his bile at his favoured victims on the supposed “left”.
Yet as soon as he is called on his bullying and hectoring, he plays the put upon champion of the people against powerful interests – the heroic Voltaire standing for tolerance and the voice of the voiceless.
Of course, his intellectual defenders in the libertarian movement will say the market is the ultimate judge. If he lies and deceives and distorts and misleads to make his rhetorical points, he will be judged by his readership, advertising will be pulled and he will lose his soapbox. As always with that crowd, there is no value other than the monetary one.
My view is neither the judicial nor market-based mechanisms are the right ones to deal with a creature of Bolt’s ilk. Ultimately, he should be judged by his own peers and shamed from the media. It just needs a few people to speak out against the idea that you can just make stuff up and get away with it.
I’d say it’s telling that when you strip away the posturing and consider the “sanction” imposed by law, it’s to publish a correction and an apology.
The thing that offends Blot most is being forced to co-exist with truth and civilised conduct. This offence is so grave in his view as to truncate his scope to express himself as he pleases, to “silence” him. He dare not run such a risk this morning, according to him.
Need one add anything to the Blot’s admissions to see how they damn him and the army of the living dead behind him? Probably not.
Furthermore, to what Mr. Denmore and Fran have written, I read Bolt’s column today in the Herald-Sun. What a load of self-pitying, mendacious twaddle he’s written. Not one mention of the parts of the judgement which reflect badly on him as a journalist and a human being. Just poor, poor, pitiful me. Typical of the attitude of the bully who has been caught out for once.
” Ultimately, he should be judged by his own peers and shamed from the media.”
Trouble is, most of them show all the signs of having emerged from the same egg.
Dexitrooper @ 184
Fair enough.
Fine @ 188
If you are going to not only ignore what I said, and in fact are going to reverse what I did say, then what’s the point.
I refer you to @ 154. I would regard ‘errors of fact’ and ‘defamation’ to be sufficiently synonymous for the sake of this discussion.
On the other matter. I am aware that you believe that speech should be limited, and I am aware that that Bolt has just run up against one of those limits. I am also aware that this is a reality that should cause any democrat to react with shame and horror, regardless of what they think of Bolt personally.
tigtog @ 186
Nope, not deliberately excluding any specific person.
I said high profile because one can always find a contrarian minnow around the edges in any issue, left, right or calithumpian, and I thought it was appropriate to compare like with like. That was the only motivation I had.
akn @ 187
As Robert requested, putting eugenics to one side, I otherwise stand by what I wrote. It was thought out and I penned it only after consideration. I meant every word I said and I hold to them.
I’m not taking issue with you limiting the pool to high-profile, I’m taking issue with you limiting “the right” to conservatives or libertarians. What about the fascists?
Chris Harper @ 193. Why on earth would I react with horror that a “journalist” has been admonished for lying about people in his column?
Because you’ve got to share the outrage, Fine, otherwise you don’t care about our hard won freedoms, guarding us against encroaching progressive/left/socialist states/governments/lawyers/courts.
How can anyone take these people seriously?
tigtog @ 171 – whilst I think it might be tempting when say a racial villification case comes up that does not for some reason fit contravention of defamation law with something specific to race and religion, is that a good way to approach the problem? If there’s a problem with defamation law then perhaps that should be specific fixed.
For example, and trying to put it politely, some of Bolt’s articles on global warming researchers and the reports they publish could do with a little more fact checking. But because this doesn’t fall under race or religion these “fixes” for defamation law can’t be used. Do we now push for special legislation to fix cases for global warming related news articles and opinion pieces or do we fix the fundamental problems with defamation law?
The other interesting thing about the judgement was the reference to the prominence of Bolt’s articles and how that is relevant. Now whilst I believe that remedies/punishments should take into account the original prominence of an article it seems a bit odd that prominence should affect whether or not someone breaks the law.
The social symbolic of this decision ought not to be under estimated. Bolt thought that he was free to say anything he liked about Aborigines. He’s not. In so thinking Bolt was doing no more than exercising what a lot of non-Aboriginal Australians regard as a birth right: the right to determine who is and who is not Aboriginal according to their own ignorance and bigotry. Bolt’s venemous attitudes are not an historical anomoly. They are alive and flourishing within the wider community which is why there is a small army of people who know nothing about either the philosophy or politics of free speech currently floundering around trying to mount a defense of the indefensible. Their hero Bolt has been told that there is a penalty for telling lies which is why they are in such disarray. Expect more lies because liars lie.
One can either think that free speech should have no limits or one can accept that defmataion law is reasonable (in principle). It is simply nonsense to say that free speech should have no limits but people should have recourse to defamation law.
And although defamation is certainly the most prominent limit, it is also worth noting that there are a number of other limits on free speech – obscenity, sedition and trades practices infringements are other very real limitations on the freedom of speech.
Who argues that there is an absolute right to free speech? I was a journalist for nearly three decades and remember countless stories getting butchered by the lawyers.
Outside the absolute privilege offered by parliament and the courts, you are not free to defame. You are not free to incite. You are not free to invade people’s privacy.
There are checks on hate speech. Mostly these are best enforced by experience editors who apply the standards of their publications and their profession.
Unfortunately, the gatekeepers appear to have gone missing and the new rule is to print whatever you can get away with. The business imperative is to get eyeballs looking at (and ears listening to) your clients’ ads. And you do that by manufacturing outrage.
It’s what Bolt does. It’s not journalism, though.
I should have added that the people who used defamation law to silence journalists were almost inevitably the most powerful and most well resourced. No such protections are within the practical reach of the powerless and the under-privileged.
It also seems to me that people are not sufficiently distinguishing between the judgment and the law.
Perhaps a real lawyer could clarify, but as far as I understand the main difference between defamation laws and the Racial Hatred Act is that the former is open only to legal individuals while the latter is open to members of an identified group. The defence of reasonable fair comment appears to be substanitally similar, if not identical in practice.
I continue to fail to see why defamation is accepted as a reasonable limitation on free speech, but for some reason is the only one allowed. I do not understand why individuals who can demonstrate injury through an individual attack can have access to a legal remedy, but individuals who can demonstrate injury through a group attack cannot. Perhaps someone can explain that further.
In any case that distinction is hardly germane here – those taking the case have all clearly been identified as individuals. It seems to me that there is little sense in arguments that this is a bad judgment but accepting that the facts established in the case and the inferences drawn from those facts in the judgment mean that a similar judgment would very likely have been found under defamation provisions. That seems to be just an argument against the underlying law and not really a coherent argument about this particular judgment at all.
Even if one doesn’t like the underlying law, I would argue that this judgment is appropriate, measured and fair.
Chris said:
You and I plainly have a difference of opinion on the usage of the term “polite”. I have it as being civil, sensitive to the feelings of others in circumstances where there is no pressing need for candour and so forth. Blot has made it plain that he cares not a jot for the feelings of others, and just as importantly, he cares not a jot for accuracy in his reporting inter alia on matters of pertaining to climate change. Saying he could do with a little more fact checking is rather like saying that the conduct of the two world wars upset one or two people or that the Cambodian democide of 1975-79 was a setback for development.
In my opinion, attempts by the state to use the force of law to regulate what may be uttered are an incipient hazard to confidence in the transparency of governance, and should only be entertained within very narrow and carefully defined limits and then only according to transparent protocols. There used to be an unofficial “d-notice” system in this country, and even then I found that dangerous.
It seems to me however that it would be possible to have a system in which preaches of the professional code of practice developed not by the state but by journalists might be judiciable. Breaches, rather than being punished by swingeing fines, could be entered, along with the reasoning, into a public register. So much of the media as declared itself to be compliant with good practice would be obliged to publish prominently extracts about their publications from the register on a daily basis listing the number of breaches and outstanding unresolved complaints that had been held to have sufficient merit to be the subject of judicial review. Any journalist or regular columnist who appeared would be obliged to have their “stats” (including mentions) alongside their by-lines.
Publications could declare sections of their copy to be non-judiciable — since they were not intended as “news or serious comment” but something else (e.g. advertising, entertainment etc. ) Such sections could be marked with an appropriate “wash” or watermark. e.g yellow wash for ranting blogs, blue for advertising, etc … a specific disclaimer would attach (see above).
People could then make up their minds how much weight to give to the claims being made.
Heh. I very nearly added almost exactly this point to my last point but felt it was a bit tangential. I completely agree.
I find it slightly disconcerting that so many people seem to regard defamation as the only way of defining a resonable limitation on free speech for precisly this reason, that defamation often seems to revolve around reputation as an individually owned commodity.
I certainloy acknowledge that our system of justive means that any such legal protections are going to be preferentially available to the wealthy and powerful. But I would certainly prefer such protections to be defined in such a way that they are as open to all as possible.
I’m still struggling to see what the point of the “why didn’t they use defamation law” argument is. I’m also struggling to understand how the commenters claiming that freedom of speech is an absolute can reconcile that with their apparent acceptance of defamation law.
Sorry, Martin B, I just realised you have already made my point at 202 above.
That’s ok – with independent confirmation I must be right
The logical extension of some arguments above is that if defamation law was amended so as to contain all of the provisions of the Racial Hatred Act, then that would be fine, but to have all of those provisions as a separate act is terrible. It just doesn’t make sense to me.
Martin B @ 202: You’ve put the point I was trying to make at 68 and 92 far more eloquently than I did. I would also be interested to hear about the legal status of a racially-identified group from someone who knows more about this. Can their collective loss of reputation be claimed as an adverse material effect of Bolt’s posturing under defamation law?
I haven’t read the whole of this thread, but a quick scan makes it clear that defamation suits weren’t an option for the complainants. It’s a pity, really, as, satisfying though this judgement is, it would have been far more satisfying if Bolt and the wretched rag he works for had been ruined financially and professionally.
As I understand it the corresponding Victorian law locates the harm not in the offence given to those subjected to vilification but in changes in perception of the group by others, which would be a lot like “group/class defamation”.
Dave: I think a defamation suit would have been open to the complainants personally (since Bolt made unsubstantiated claims about their ancestry with negligible effort to back them up with actual research), but they wanted to take the high road and deal with the general racism and dog-whistling that Bolt is peddling, rather than seek personal redress for his destructive comments.
I applaud them for taking this stance – it seems more ethical to me.
Fran: Ok, thanks for that – do you know whether this concept extends to Federal defamation law though?
Andrew Dodd at the Drum
Perhaps the case should have been run as defamation. however, to be realistic, the libel laws in Australia are too often used to allow the rich and powerful to shut people up or stifle debate on issues that should be debated. To be realistic too the ruling is fuzzy enough to create uncertainty in some people who want to comment critically about racial issues and the behavior of individuals and organizations. This uncertainty can result in things being left unsaid that should be said.
Think about the robust comments made in LP about Abbott, Gillard and Andrew Bolt. There is certainly the odd one that could be described as “encouraging public disdain”. There are certainly some where at least one of the commentators get their facts wrong. (They can’t all be right.)
Personally I would like the robustness of public debate to be protected even if it doesn’t mean that we can shut up Andrew Bolt.
Exactly right, BilB, and it makes it all the more nauseating that he will be milking the “I’m martyred and silenced” schtick for all it’s worth in the coming weeks, echoed by his dittohead audience. The ol’ sick bucket’ll be getting a workout.
This comment from the Dodd article tickled my funny bone.
Robert, the attempt by Australian government agents to deliberately “breed out” blackness in the Australian population is directly relevant to this discussion. It’s a direct historical antedecent and we are feeling the echoes with Bolt and others on the Right claiming this or that individual is ruled out of court when speaking about indigenous affairs because not all of their ancestors were indigenous.
John D, the Bolt judgment doesn’t make any difference to those kinds of comments, which are already subject to the defamation laws. That would be the case even if Bolt had never been sued.
I think Andrew Dodd has presented a simplistic and slightly misleading account of the judicial reasoning here. What the judge actually said was:
it’s also worth noting the Judge’s final comment:
In my view, if one objects to this judgment on the grounds that it impinges upon freedom of speech, then one should object to the defamation law on the same basis. I think some of the more consistent Libertarians (Terje springs to mind) are also opposed to defamation law.
As you noted, defamation law can be, and sometime is, used to dampen free speech. On thinking about it, it seems that this law may actually be less of a restriction on free speech than defamation law, as it is limited to statements linked to race, and is much less likely to be employed by the very wealthy against smaller publications or individuals.
Tim Macknay @ 205
Do you not see the difference in fundamental principle between defamation on the one hand, and the state dictating which social and political views may be expressed, and which questions may be asked?
Yes, I certainly do regard the first as reasonable, and the second as corruption of the core principles which support s free society and a democratic state.
tigtog @ 194
Fascism? Sorry, I am too accustomed to dealing with people who would never consider linking Conservatism / libertarianism / objectivisim / classical liberalism or anything else to fascism, just because they are all termed right wing. All this linkage does is demonstrate the limitations of the left / right dichotomy.
I simply regard Fascism, with its “All within the state, nothing outside the state, nothing against the state” philosophy being as far removed as it is possible to get from Libertarianism, based as it is on the non aggression principle – “Thou shalt not initiate the use of violence.” It wouldn’t occur to me that anyone would regard it as a useful inclusion in the earlier comment.
I am surprised you do. I have seen you comment here before, and I would have regarded you as more nuanced than that.
akn, 175:
“It is not a subject on which anyone with a mind to have an opinion is entitled to express it ”
While i agree with much of what you say, I suggest you look at the above statement and think again. the entitlement to express an opinion is pretty much given in our society.
Now, factual errors are a different matter.
Certainly there is a difference between these. But given that neither the act nor this judgment go even close to doing the latter, this difference is completely irelevant.
You seem to be wilfully ignoring the part of the judgment that explicitly says that there is nothing unlawful about ‘asking the questions’ that Bolt asked if that is done reasonably and in good faith, which Bolt manifestly failed to do.
This judgment doesn’t restrict the right to express fair comment. It does restrict the right to Make.5h1t.Up.
RetroAnubis: well, that’s the point. Bolt had a mind to express an opinion unacquainted with the facts. More to the point, as the judge’s comments make clear, he ignored facts that undermined or weakened the grounds he thought he had for his opinion.
As to people’s rights to an opinion in general: I always differentiate between informed opinion and hot air. In the matter of Aboriginality there’s altogether too much hot air and too little informed opinion. Bolt’s been given the judicial kicking he deserves. It won’t stop the little wart but it is a reminder that there still are rules governing public discussion in Australia.
Martin B @ 219
And which sane journalist is going to take the chance of going through a court case in just the hope that some judge is going to smile beneficently and say “Yes, you acted reasonably and in good faith”? That claim is, in protection of free speech terms, worth precisely nothing. It is of no value or reassurance to anyone.
Instead this will have a chilling effect. Journalists will avoid this issue completely, because they have no defined and material yardstick which will let them know beforehand that they won’t be subject to being dragged through the courts because some delicate petal (I quote Julia) has their feelings hurt. Not suffers material harm, but has their feelings hurt.
Win or lose, the process is the punishment, and open discussion has been shut down by the state.
dear Martin B
thank you – saved me a lot of keystrokes.
this is bollocks – bolt got nailed for lying, not for addressing controversial issues. this is not about “freedom of speech” its about “freedom from lying”. no person’s freedom to talk about controversial issues is impaired except in their fevered immaginations.
and, friend Helen, take it easy with that ole sick bucket; humor’s the best medicine. look at this way, bolt’s minnions were going to be vocal in any case, but now, they’re “bellyaching” about their loss and not “crowing” about their victory. i don’t retch, i chortle.
happy, happy, happy, hope it hurts!
yours sincerely
alfred venison
Fascism like Libertarianism is of the Right:
http://en.wikipedia.org/wiki/Left%E2%80%93right_politics
Since proving good faith is a requirement for establishing a defence to defamation – which apprarently is all hunky-dory – one rather hopes that sane journalists are acquainted with the concept. Whether Bolt is, is of course a different matter.
Martin B @ 223 – actually it appears that good faith is not a requirement to establish a defence to defamation. See Jonathan Holmes’ piece on the situation. From the article:
http://www.abc.net.au/news/2011-09-29/holmes-bolt-bromberg-and-a-profoundly-disturbing-judgment/3038156
What intruiges me, Chris Harper, is why the matter of Aboriginal identity is of such concern to you. To me it is uncontroversial but to you, apparently and as well to Bolt’s readers and viewers, it is deeply contentious. How is it that the self identificaion of a group that, according to the 2006 census, account for 2.6% of the Australians, is of such great concern to you?
Of course there is a difference between defamation and “the state dictating political and social views”, but to suggest that the Bolt judgment amounts to the latter is pure hyperbole. Perhaps the relevant law is an unreasonable restriction on freedom of speech, but it’s difficult to see how it’s significantly more restrictive than defamation.
You have still done nothing to reconcile your claim that free speech is an all-or-nothing absolute and your belief that defamation law is reasonable. Defamation law is, quite clearly and unambiguously, a restriction on freedom of speech. If you believe it is reasonable, then you believe there is such a thing as reasonable restrictions on freedom of speech. The question then becomes: why is section 18C of the Racial Discrimination Act an unreasonable restriction on freedom of speech, and defamation a reasonable restriction? Given the similarity between the two types of restriction, the answer is not at all obvious.
It is also quite difficult to see how this judgment will have a more significant chilling effect on debate that the existing defamation law does. As has been noted above, defamation law can and does have this effect, however the effect is generally to silence small and independent publications with limited funds, rather than those who publish through large media organisations who are able to defend these actions, and treat them as an ordinary part of doing media business.
The slightly different focus of the defamation law and the Racial Discrimination Act suggest to me that, if anything, the latter is less likely to have a chilling effect than the former because it is less likely to be deployed by large, well funded entities or individuals against smaller, poorly funded ones.
Well I may have it wrong (have I said that I’m not a lawyer?) but it is my understanding that showing malice (which by definition is not acting in good faith) causes some of the defences to defamation to fail.
I think Holmes is misconstruing the decision to an extent but I don’t have time to comment now.
akn @ 225
I couldn’t care less who claims aboriginality, or why. What I care about is the state arrogating to itself the right to deny the freedom to express opinion to anyone, on any topic.
I would have thought that was clear. I would defend your right to profess opinion as strongly as I would Bolts. I might disagree with you, and engage in disputation, but that is not the same as wanting to use the power of the state to shut you down.
Freedom to express opinion, any opinion, is the most important freedom we possess. Once that starts going then all else will inevitably be lost.
No one is entitled to a platform, no one is entitled to be heard, but all must be entitled to speak.
Call me a fundamentalist if you will.
dear Chris Harper
express away! stop lying. simple.
you’re not a fundamentalist – you’re an obscurantist.
yours sincerely
alfred venison
Satirists like the Chasers, Kevin Bloody Wilson, (insert comedian of your choice) say much worse and to just as many people.
What they say, can and is, just as offensive and even less factually correct.
Toward all races, ages, genders, religions, even the disabled.
Why does Bolt have less ” freedom of speech” than they?
(I reserve my right to use terrible puntuation and spelling, untill that become”s illeagle too,)
You forgot to add .. except if it’s defamatory.
Not while you claim defamation law is a reasonable restriction on freedom of speech. If you were a fundamentalist you’d say there is no such thing as a reasonable restriction on freedom of speech.
Also, why aren’t you up in arms about the Competition and Consumer Act (formerly the Trade Practices Act)? That has restrictions on freedom of speech as well.
@Chris Harper,
Bolt is still free to say as loudly and often as he likes that he thinks pale-skinned people of indigenous descent should not be counted as Indigenous, and that they shouldn’t be able to hold down jobs reserved for Indigenous people. There is absolutely nothing to stop him saying that over and over again.
* What he’s been told is that he can’t publish an untruth about pale-skinned indigenous people “stealing jobs” from darker-skinned indigenous people when he publishes an untruth about whether certain positions are in fact only open to indigenous people (hint: just because a pale-skinned indigenous person holds a position doesn’t necessarily mean that the position was only open to indigenous people).
* What he’s been told is that he can’t publish an untruth about whether a person’s father was White when that person’s father was actually Aboriginal.
* What he’s been told is that he can’t publish an untruth about whether a pale-skinned indigenous person just decided one day to call themselves Aboriginal because they saw an advantage to it.
He’s still entitled to say that in his view skin colour is all and family/community connections are nothing to do with being Aboriginal. He’s still entitled to act as though whitefellas don’t have a long history (and one that is not over by a long shot) of acting as though they’ve been tricked if they treat someone as though they are White and later discover that the person has darker-skinned indigenous relatives, which is yet another very good reason why many pale-skinned indigenous people who Bolt would assume could/should “pass” as White refuse to deny their Aboriginality – so that they can’t be accused of being deceitful about “really” being indigenous all along.
So long as he’s not actually publishing untruths while he expresses such opinions, he remains free to be an ignorant blowhard on this topic (and of course every other topic on which he writes).
Chris Harper @229: I don’t think that you are a fundamentalist just inadequately informed about what appears to be your own political philosophy. Mill, in ‘On Liberty’ argued for the fullest possible freedom of speech. However, he also raised the ‘harm principle’ as the only legitimate limitation on freedom of speech.
Extrapolating from these two broad principles we are in a situation, in liberal democracies, where we are all rights bearing individuals (even in the absence of a Bill of Rights in Australia). The limitation of the exercise of our individual rights is the freedom of others to exercise or enjoy theirs. The Bolt case is one such where it has been shown that Bolt’s exercise of freedom of speech has impinged on the rights and freedoms of others and he has been held accountable for that.
Even Mill proposed that there was no absolute right to freedom of speech. That’s the point. So, if you want to argue that such a freedom is central to modern democracy I’d like to know what limits you would place on freedom of speech and expression: real rape p*rn, is that ok? How about child p*rn? What about the sorts of state vilification that the Jews experienced under National Socialism? In Russia? What principle establishes the limits?
Because if you can’t provide some serious input here, on this point, you are not to be taken seriously.
Tim @ 231
Trade Practices Act? Sure. I agree. As Rhett suggested to Scarlett, call it the Caveat Emporium.
No point fighting the fights you can’t win. I’ll leave that one for another day.
@jumpy,
Perhaps Bolt should have clearly labelled his columns as satire then, like The Chaser team does? It’s a traditionally valid defence, although it’s not bullet-proof if what is published/uttered is malicious enough.
Seriously, there is a very big difference between offensiveness and vilification, and between fiction for comedic effect and publishing untruths as if they are truths; also if either The Chaser or (insert comedian of your choice) is ever successfully sued/prosecuted for uttering untruths then they will suffer exactly the same penalties.
Find someone with standing to sue them and a pro bono legal team who believes in their case, just like the team who supported the action against Bolt, and see how you go. Good luck.
Jack Strocchi – Bolt performs one good function, namely calling out Left-liberals on their Culture War follies, “political correctness gone mad”. He should leave the Climate War, Class War and the War on Terror to those who know what they are talking about.
There’s a lotta wars there pal. Given the first victim of all wars perhaps it would be better for political discussion in this country if we had discussion instead of a shitfight. I don’t agree with this law but I must admit that the downgrading of discussion into ‘war’ is something Bolt hadn’t exactly been resisting.
The verdict it is an intellectual disaster for Left-liberal race hustlers as it shows that they have completely failed in their attempt to make their case by means of rational analysis. They have resorted to legal constraint to silence their critics, a sure sign of a losing argument.
By that logic I assume you also think that the Howard govt’s 2005 amendments to the Crimes Act are admitting that the popular faith in this country’s sovereignty is hanging by a thread.
More importantly it is a moral disaster for Left-”liberals” as it shows the hollowness of their commitment to free speech when it conflicts with their political agenda.
Indeed. Let’s just remember the Terrorism Act 2005 and add to that the power cops have in Victoria to issue on the spot fines for swearing shall we? Let’s also remember that Sec 18C of the RDA was not repealed by the Coalition. Hostility to free speech and enthusiasm for anything that allows prosecution for speech has bipartisan support.
Bolt’s comments might be “offensive” to some delicate sensibilities, but last time I checked the Constitution it implied that giving offence to public figures is not a crime. Obviously the High Court will have to re-visit Theophanous v HWT.
Fancy prosecuting a journalist on grounds of “racial vilification” for stating the bleeding obvious, that the plaintiffs were mainly Caucasian in appearance but making a career out of Aboriginal activism.
What is not so bleedingly obvious is that Aborigines of mixed blood often don’t ‘appear’ Aboriginal. The plaintiffs can and did demonstrate their ‘Aboriginality’, Bolt can and should have been aware of this.
Again I don’t agree with the law. But when rights are abused then they get taken away. My support for free speech is troubled here because in doing so I m supporting someone who habitually twists the truth. Moreover I m confronted with that old conservative tendency to admit absolutely of no fault whatsoever.
Mr Bolt et al like to harp on bout declining standards yet they never stop to reflect that they themselves help such standards in their decadence.
akn @ 234
Genuine rape porn? Child porn? Jewish vilification under National Socialism or Russia?
You seriously asking me if I think violent criminal acts are ok?
And you claim that I should give ‘serious input’ to this?
You want serious input? How is this. You make serious points and I will in turn.
What a ludicrous posting.
You miss the point Chris. If you wish to wear free speech fundamentalism as a badge of honour then you must start down the road that TerjeP did over at John Quiggins — and object to defamation law.
Yet you may not stop there. You will need to argue that Trade Practice laws on “passing off” and laws protecting intellectual property ought to be repealed. You will need to argue for an end to insider trading constraints or on price fixing between business dominating markets or tendering for business to the state. Gone too would be laws against incitement to criminal acts, or fraud, or breach of privacy by those holding personal data.
You can’t be half-hearted about these things and still be a free speech fundamentalist. Admit that restrictions can serve the public good and then you are on our terrain, discussing the warrant for such restrictions and where these lines ought to be drawn as a consequence.
tigtog @ 233
According to Jonathan Holmes’ analysis of the judgement (and his problem with ruling), that is not correct. Even if he got all his facts correct, he would be reliant on the court deciding that his opinion is both reasonable and made in good faith. If Holmes’ analysis is correct, this is the big difference between the RDA requirements and defamation. With defamation you do not need to have been judged as having a reasonable opinion, but you do need to get your facts largely correct.
Very clear argument, akn.
If we step back even further “speech” implies a reader/ listener. And especially published articles. This is the fact so often ignored by freedom of speech proponents.
Freedom of speech is not only about the freedom of an individual to say anything that he wants ( or indeed the power of a listener to ignore something which he finds offensive– a strange idea in any case ). Freedom of speech is about insuring an individual’s rights against, for example, state censorship– it implicitly presupposes a body of people. Freedom of speech occurs in a context ( in fact in many contexts ) and this context, one of which is the nation, must have a mechanism to protect national institutions from– for example demonisation.
Tigtog found the key,
“”"”Find someone with standing(? why should that matter?) to sue them and a pro bono(FREE) legal team who believes( or can gain kudos from legal peers) in their case, “”"”"
Thats wot ya need all right.
What would happen if K.B.W. performed this before the GF in melbourne this weekend?
http://www.youtube.com/watch?v=Ex4U0K3TYkE
Back in 1987 he won an ARIA for it.
How did we all become soooo sensitive about this stuff.
(Everyone is of equal “standing IMO)
Perhaps you need to learn a little legal jargon before getting quite so stroppy, jumpy. One has to “have standing” under the law in order to be party to a lawsuit. People cannot launch lawsuits on behalf of other people, only the persons with standing (i.e. directly affected) can initiate such legal action.
Fran @ 239
I don’t actually see defamation as a free speech issue, because people are entitled to protect their reputation, their good name and character, from unwarranted damage. In a libertarian society a good reputation should be an even more important possession than it is in a regulated society. My good name is my property. Damage that and I am subjected to real personal damage. Hurt my feelings, and I am not. Express your opinion, but if it damages me then either prove it or recompense me for the unwarranted damage.
Trade practices, I agree. Intellectual property, no, property is property and the term covers more than real property. Copyright law, patents, there are arguments both ways and the response isn’t absolute. I can find things to respect in both arguments.
Caveat emptor should play a greater role than it does, and I agree about insider trading and price fixing. However, I don’t agree about fraud or incitement to criminal acts. Fraud is a criminal act in itself, a variant of theft, and incitement may possibly be construed as accessory before the act, or conspiracy, or whatever. No absolute denial of that one is reasonable, although maybe it could be narrowed. I have never given incitement much thought, so don’t expect a thoughtful response.
Breach of privacy? Tell me the details of the contract between the parties and I will tell you if there has been a breach.
Also jumpy – there’s a reason that Kevin Bloody Wilson doesn’t perform on television (hardly ever). Because the people who own the television companies don’t want to get sued, or fined under the Broadcasting Act.
That song (Living Next Door To Alan) is definitely racistly offensive in its stereotypes, but it’s not vilifying or inciting violence against indigenous people, and it doesn’t name any indigenous persons as part of the lyrics.
There is thus nobody in this country who has legal standing AIUI to sue KBW over the racist portions of that particular song. He was also very careful to avoid saying anything defamatory about Alan Bond or any of the politicians who were named, I notice.
Also, Wikipedia doesn’t back your claim about that ARIA award – it says that he’s been nominated four times but never actually won one.actually, misread that – it says that he won it for “Kev’s Back” the album, not just for that song.Chris Harper @ 229 you said:
To which I asked the question – are there for you any limits to this freedom of speech/expression. (NB: see the distinction between speech and expression that Mark Bahnisch makes in his article to which he linked @ 140).
Your response is to bluster. Another libertarian gone to water when tested. Clearly, there are then no restrictions on freedom of speech in your libertarian utopia. If you thought the implications of this through you’d realise that this prescription would produce an asocial nightmare that even Hobbes couldn’t have imagined. This is not a philosophy fit for a cosmopolitan, multicultural, liberal democracy. I don’t know what it is fit for but am pleased that the court, yesterday, upheld the notion of rights in more sophisticated ways than you present them.
Sorry tigtig but anybody offended on a racial basis by that song could “sue”. You need to learn some legal jargon. They were not offended because he’s not political. Bolt is and the left despise him.
Tigtog@245
So if Andrew Bolt release a cover version of ” livin next door to Alan”
you would be OK with that?
I say Bullshit you would.
Also I’m not “quite so stroppy”, I’m happy.
See!!
Your projecting again.
@jumpy, if Andrew Bolt released a cover version of that song I would be highly critical of him for doing so.
However, I would have no standing for launching a lawsuit against him over it.
@Tiny Dancer, no, not just anybody could launch a lawsuit over that song. That is not how the law works.
akn @ 246
You demand answers from me on the most ridiculous and offensive questions, and when I treat the questions as they deserve I am accused of bluster and going to water.
Ok, fine. You think that.
Mordy Bromberg is the only Federal Court judge to have been awarded Brownlow Medal points (three, while playing for St Kilda in 1980).
This is by-the-by.
I wonder if, as a full on four-be, he is more sensitive to the damage that hate speech can do, than others might be.
This is speculation.
The Gillard government would do well to appoint him to the High Court at the earliest available opportunity. The Bolt lovers would have aneurisms on masse. I’d love to see it.
There’s nothing ridiculous in discussions of political philosophy. Rawls’ ‘veil of ignorance’, for example, asks us to imagine a realm of radical equality that doesn’t exist and never has. Despite its impossibility it was a useful tool. So, the point remains that you cannot or won’t offer any limits to freedom of expression or speech. All that has happened here is that you’ve been called out and found wanting.
I suggest that you are insuffiently aware of Australian publishing history and I don’t need to go any further than the colonial editions of ‘The Bulletin’ for examples of the sort of cultural bias that used to characterise the Australian media. ‘The Bulletin’ has been described as carrying “…savagely racist cartoons attacking Chinese, Indians, Japanese and Jews, and mocking Indigenous Australians. The paper’s masthead slogan, “Australia for the White Man,” became a national political credo.”
The Bolt decision is against that sort of background. It is not irrelevant. It’s our history and the Australian media is steeped in it.
Why wouldn’t he think that? It appears to be the truth.
Ok, here is my problem with Holmes’ article.
He accepts that given the articles Bolt actually wrote, he would in all probability have failed to establish a defence to defamation.
He then asserts that we can imagine articles that Bolt might have written that would have established a defence to defamation, but would not have been reasonable and hence failed to establish a defence to the RDA.
But it’s a massive hypothesis contrary to fact. We have no way of knowing whether such an article exists, is likely to exist or even could exist. We have no way of knowing whether such an article would be able to establish an offence under 13C.
There are, as I understand it, three main defences to defamation: truth, fair comment, and qualified privilege (which I am fairly sure does depend on the report being reasonable and in good faith). If my understanding is correct, then there is no conflict between a defence to defamation and a defence to the RDA. I also suspect that there is no possibility of a conflict between the first defence to defamation and the RDA because I suspect that a judge will never find that a reasonable member of any community will take offence at a report of matters that is substantially true.
That leaves the sole potential conflict as being an honest opinion, based on true facts, but expressed recklessly of the potential to cause offence. To me the honesty of the belief goes against the notion of reckless expression. I do not think that mere ‘sharp wit’ or ‘pointed adjectives’ get there.
Maybe there is a better legal formulation for this act. I would never want to suggest that this act or this judgment are beyond reproach. But as I see it it is a pretty narrow slice of grey area – as yet only in principle and not yet established by the law – to start forecasting the downfall of free speech in Australia.
The other thing is that speech is dialogical, ( even if you write a personal diary, implied is a reader, probably you, if not now then at some stage in the future) and the kind of freedom of speech, which some people promote, which can be simplified as being able to say whatever one likes, whenever one likes, is just anti-social. Maybe it’s related to the kind of sociopathological behavior, which some people see in the behavior of professional traders ( to continue kicking a very visible target )? It is completely naiive to imagine that society would benefit from this kind of superficial parody of free speech.
It’s an interesting judgement. It possibly reflects judicial concern with the way that the media has reverted to an older time where it’s public role was subordinated to it’s entertainment role. Think about the way the Murrow stepped in to prevent McCarthyism from eating even further into US public life and then think about how this would happen in the media we have today. It wouldn’t and perhaps the judge in this case has taken up that challenge. Bolt is McCarthy and there’s no voice loud or important or ethical enough to put him in his place so the law has sighed deeply and, without much enthusiasm I’ll warrant, done the press’s job for them.
A good point PatrickB. On whom can we rely to put some obstacles in the way of populist media demagoguery? In this instance the Racial Discrimination Act has been effective but I think we may be relying ever more heavily on anti-hate speech legislation in the future. The alternative, almost unthinkable of course, is that his colleagues in journalism shun him and his ilk.
Dolt is a nasty, spiteful bully, and like all bullies, he’s gutless. So now he’s run whining to mummy because the nasty ol’ judge hurt his widdle feelings.
I think the nasty ol’ judge should have had his hands broken and his sewer mouth sewn up. However, I’m happy to settle for his public humiliation and exposure as the lying toe rag he is.
Leaving aside the specifics of the Bolt case, it seems to me that the role of the state is to protect individuals and groups from harm. There is no doubt that words can cause grievous harm.
David Marr has said:
I fail to see that it is ever OK to insult and humiliate people because of their race or colour.
It is OK to expose people as scoundrels. But you do that on the basis of what they do, not their race or colour, and then you need to be sure of your facts.
Jonathan Holmes, it seems to me, argues around in a circle and ends up suggesting that it is OK to use derisive, provocative and inflammatory language, as long as you get your facts right. Or is it just that he is objecting to judges doing the regulation in this one area of public life?
Margaret Simons in her Crikey piece also argues against the exceptionality of racial discrimination, saying:
Well no, being part of a hegemonic group is not the same as being part of a group that was invaded and dispossessed.
It’s funny how the people who so fear for the future of freedom of speech after this case are (mostly) the very same people who cheered the Howard Government’s gross expansion of the sedition laws.
Of course that grubby effort at curbing free speech targeted the towel heads, so was perfectly justified.
You just have to love the smell of hypocrisy in the morning.
Brian @ 259 – well according to the law Simons probably would be in trouble for calling Bolt a white tosser if he chose to take her to court. Unless the court agreed it was a reasonable opinion
And thats the big difference between RDA and defamation for opinion. Under defamation it doesn’t have to be reasonable or fair. As long as you don’t get your facts wrong.
I wouldn’t like it, I’d criticise a person for doing so, but I don’t think it should be illegal. Speech like that is best neutralised by people speaking up, and giving the targets a right of reply where possible.
Sam @ 260 – Actually I think you’ll find quite a few people opposed both the sedition laws and this recent judgement. Disappointingly the ALP has not reverse the sedition laws, or as AFAIK anything much of the terrorist related legislation even though its likely they would have the numbers in parliament.
Chris, in my view the difference in power and privilege warrants, indeed demands a legal option.
Simons’ article contains this little gem, which to me encapsulates the problem that even ‘progressive’ journalist have:
Leaving aside the ambiguity of the phrase ‘well-read’, I think this one paragraph neatly encapsulates the failure of modern journalism. From the condescending phrase ‘ordinary people’ (as distinct from extraordinary journos presumably) to the failure to recognise their own highly privileged position, it is gobsmackingly naive.
Interestingly, comments on Bolt’s front page opinion piece yesterday ran mostly against him.
There were a few more supporters in the afternoon but for much of the day there was a steady flow of comments suggesting he’d been done bang to rights and should suck it up.
This might be because some of the comments supporting Bolt would themselves breach the RDA if published – but on the other hand, it does appear he is perhaps not as beloved as he might have supposed.
As I discussed above, as far as I can see, the only additional standard placed by the RDA compared to defamation is that if you express an opinion that you know will be racially hurtful then you need to be mindful of how you express it. I don’t find that to be an entirely unreasonable standard.
Despite Bolt’s whinging, this is not a question of ‘sharp wit’ or ‘pointed adjectives’. The poor faith in the articles is pervasive, and there is nothing in the judgment that suggests that a merely well-written piece will fail this test.
Otherwise truth alone is unlikely (IMO) to run you afoul of the RDA while the qualified privilege defence to defamation relies on a similar formulation to a defence to the RDA.
What Sam said @260!
Yes, Sam’s comment is spot on. Can’t seem to recall the howls of outrage from the usual suspects about limitation on free speech and our freedoms during the war on terror©.
Unfettered freedom of speech, the radical right to say what you want regardless of the consequences for others, would see civility replaced by duelling. Were it not for the laws of defamation, the RDA and anti-hate speech legislation what recourse would people have, if unfairly hurt or harmed by the speech of others, than resort to physical violence. Civility would be left to nurture itself from the barrel of a gun.
The more I think on so called libertarianism the more I am astonished at the chthonic nature of its philosophy. Asocial to the very core, constantly whining about threats to or losses of personal freedom (especially in the USA and Australia where we are so clearly unfree), unable to follow the logic of its own theories to their natural conclusions which would be a genuinely awful mix of modern individualism set in a social context of pre-modern competition. Libertarians appear to be waging an ideological cold war against opponents who don’t exist. Socialism is dead and buried yet they continue to argue against the state as if the state itself is the oppressor rather than grasping that the state is an arena of political contest without which the social collapses.
Or do they imagine that within the complexity of modern, multicultural society we would all organise ourselves into harmonious Jeffersonian communities of yeoman farmers exercising civic virtues independent of corrupting city influences? They do not look to societies where there is no state adequate to control localism, regionalism, tribalism, pre-modern masculinism for examples – watch Libya, Afghanistan and pakistan for further devlopments.
I am genuinely surprised at the prevalence of such socially, historically and politically uninformed views.
And – I’m repeating myself from a former thread and I’m not the only person to have said this – truly unfettered free speech is the province of toddlers, not adults. All adults fetter their speech contextually, although they might not think they do. The problem with many News Ltd commenters is they fail to think these things through. Like I said in the past, want to waltz into your CEO’s office, drop a turd on his/her desk and call them an egg-sucking dog? No? Freedom of speech is relative.
Sorry, AKN, I’ve also repeated your point to some extent.
@HELEN
“Like I said in the past, want to waltz into your CEO’s office, drop a turd on his/her desk and call them an egg-sucking dog? No? Freedom of speech is relative.”
Dropping a turd in front of someone is free speech?
Actions and deeds are speech now?
A little silly now aren’t you?
Yes, you have repeated the point, however in much more pithy terms that made me laugh. Thanks.
@savvy,
“Freedom of speech” has long been merely an abbreviation of “freedom of speech and expression”. Just ask J.S. Mills. Besides, if this weren’t the common understanding, then you wouldn’t be fulminating about published text as Bolt’s “speech”, would you?
Chris @ 261, actions like Bolt’s cause significant harm which cannot be undone or made good by “people speaking up, and giving the targets a right of reply where possible.”
Quite simply, it shouldn’t happen. The only way of preventing it is to make it against the law.
And as people have already pointed out, people like Bolt have a highly privileged place in our society, and with that privilege comes additional responsibility.
My ten year old could understand that (when he was ten years old).
savvy: call it a “speech act”. Or critique. A form of communication, unsubtle for sure, but nevertheless unmistakable in its intent. Metaphorically speaking I’ve had a few dropped on my desk from time to time by my boss. You know, urgent tasks handed over on Friday at 15:00 to be completed by COB.
Meanwhile in pots-and-kettles department: Devine Miranda describes yesterday’s reaction to the court decision as “The cesspool of hate that threatens to engulf most social media was at its vociferous worst“. Honestly, does she ever go back and read her own columns?
First they came for the semi-literate trollumnists…
Savvy, did you miss the bit where I mentioned a verbal utterance as well as the, er, dump? Besides what TT and others said.
Sorry for the multiple comments. I’ll get my coat.
@ Helen
“Savvy, did you miss the bit where I mentioned a verbal utterance as well as the, er, dump? ”
Don’t be so ridiculous.
Sticks and stones may break my bones but words will never hurt me.
A turd on your desk is not something you can brush off and ignore. It is a vile object that you will need to clean up.
I have never heard such rubbish in my life as the freedom of speech through turd.
Following your logic above you can punch someone in the head as long as you accompany the action with a verbal utterance. Combined it is just your freedom of expression.
To save on reading the whole judgment, here is Legal Eagle’s analysis of the case:
http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/
And here is my argument as to why the claim should have been brought in defamation, rather than pursuant to the RDA:
http://skepticlawyer.com.au/2011/09/30/this-is-a-sad-day-for-adequate-research/
Quadrant is outdoing its barking mad self over the case.
I made the mistake of following that link. Barking mad doesn’t come close!
I remember years ago Devine published some stupid column in defense of the right to use abusive language publicly (I think she was defending the n word). So I wrote a letter to the Herald calling her a long list of abusive, racist, misogynist words and asked them to publish it, since it’s all okay and acceptable to her.
Funnily enough they refused. Ain’t free speech grand if you’re Miranda Devine?
Paul: Congratulations – someone is reading your thread posts. I quote from the QED section of Quadrant:
Any publicity is good publicity – as long as they get your name right.
Quadrant and Bolt are keeping some really classy company.
@286 Thanks Paul for the link to that coprolite. I’ve bookmarked the site in anticipation of articles proposing that DNA testing of American Pit Bull terrier dogs by local councils be expanded to the DNA testing of grant applicants by Arts councils.
@savvy,
Your logic does not compute, savvy – because once your fist makes contact with somebody’s nose, you have committed a criminal act (assault/battery), and the criminal code is one of society’s (generally agreed as necessary for social stability) restraints on people’s freedom to do whatever they like.
Remember, Helen was saying that there are, in daily life, limits to freedom of expression. So why are you acting as if she’s said that there aren’t any restraints?
Chris Harper:
Hmmm. Over at John Quiggin’s place, your fellow Libertarian Terje is arguing that his opinion of you (i.e. your reputation) is his property and there should be no remedy in defamation, even for deliberate lies intended to destroy a person’s reputation. I’ll leave you Libertarians to thrash that one out amongst yourselves.
SL @280: thanks for those links. I agree that section 18C is too broad and vague, and could possibly be deployed far more widely than it has been in Bolt’s case. It has the potential to unreasonably restrict free speech and should be signifantly narrowed, if not repealed.
I’d love a link or a reproduction of Terje’s assertions. It would definately get rid of the need to adhere to the harm principle. We’d have to create a rather complicated ruleset though so that us on the left wouldn’t have the same get out clauses.
By the same logic if you hit someone then because you own that action could you turn around and sue someone defending themselves? After all, blocking a punch aimed at your face would be an offensive suppression on your rights to follow through on an act.
Tssk, Terje’s argument is here: http://johnquiggin.com/2011/09/28/bolt/comment-page-1/#comment-157793 (couldn’t get the embedded link to work for some reason)
Tim @216: When you quote the judge as writing:
I find this much the same as what Dodd said.
I have serious problems with statements of this kind associated with judicial proceedings because there is an implied threat to anyone who wants to raise an issue – You could get into trouble if the alleged victims decide that they have been insulted even if the “reasonable person” does not see it as important. Even if the outcome is doubtful the threat of expensive court proceedings can be enough to shut up people wanting to raise issues that should be raised and discussed.
I would agree when you say:
I have no problem with a defamation system that forces a public retraction of statements that are based on incorrect facts. But the system has to be simple and the cost to the offender negligible. My objection to the current laws are based on the cost of court proceedings and the often ridiculous size of the penalties leveled.
Reading some of the stuff above, some commenters are missing the point about free speech / expression.
Free people freely expressing contempt for contemptible actions – taking a dump on someones desk for instance – is not an issue of free speech. Social opprobrium is a reasonable method to use to control offensive speech or actions. This can help limit offence in general life, but still allows boundaries to be pushed where someone feels it necessary.
Free speech becomes an issue only when the state steps in and seeks to limit what opinions may be expressed through the force of law. This allows natural power seekers the right to dictate what is or is not an acceptable opinion, and prevents boundaries being pushed at all.
Me kicking you out of my home because I find your words offensive, or your boss throwing you out of the building because your behaviour is disgusting, is no infringement of your free speech. You can speak or dump wherever you wish, just don’t infringe my speech rights by demanding I provide a platform.
On the basis of this judgment, that is not true, at least not in relation to group offences. At 251:
Thus when there is a claim of group offence the issue is not whether the complainants (as representatives of that group) were offended but whether an “ordinary or reasonable” member of that group was offended.
It is different when there is a claim of individual offence, but in that case the communications are obviously more specific and I suspect that will generally reduce any ambiguity anyway.
This is not about free speech it’s about the Racial Discrimination Act.
From all the ready-to-go agit prop around including Bolt’s front cover rant yesterday it’s pretty clear they have had this strategically worked out for a while. Prosecuting Bolt under the RDA “allowed Bolt to present this ruling as an assault on free speech.” pure and simple. He can now hustle together his howling followers march straight to the High Court and campaign to have the whole Act removed.
His readership will not appreciate that the anti-free speech bit is amendment to an otherwise perfectly serviceable statute and the readership here will persist with the Left’s well worn tradition of entering into an endless debate rather than watch the plays.
akn @ 257
I would be careful what you wish for in wanting more hate speech law. I certainly think it reasonable to expect your comments @ 175 and @ 234 would be caught in any reasonable definition of hate speech.
Bear in mind that, whatever you might like to wish, hate speech is not the exclusive province of the conservative, progressives get pretty good at it as well.
If you get what you want I strongly suspect that you will not like the result.
Do you really want to hand to Tony Abbott, with input from Andrew Bolt and Gina Rinehart, the power to decide what you are allowed to say?
I will add the caveat at this point that none of those people actually want the power you want to give them.
JohnD, I think the judge’s comments you cite were a reasonable interpretation of how the test should be applied. The problem is that the test is too broad and vague. So in essence, I agree with your concern.
My previous comments were focused more on the breadth of the defences available under section 18D. it seemed to me that they were no narrower than those available for defamation.
However, I recognise that the scope of the unlawful speech itself under section 18C is potentially much broader than defamation, because, as you say, it extends to speech which people may simply find insulting, rather than speech which objectively causes them harm. I think the judgment itself, focused, as it was, primarily on the role of the factual errors or falsehoods in Bolt’s articles as vitiating the defences, was reasonable. But the provision itself is too broad and should be repealed or, at least, narrowed in scope.
Huh?
I have little doubt that if he had been pursued for defamation rather than under the RDA he would be saying almost exactly the same things about being silenced through the courts rather than through argument etc etc.
Bolt can’t go straight to the High Court. If he appeals, it has to be to the full Federal Court. If he loses there then he can try to go the High Court but there is no guarantee that High Court will take the case.
I don’t think Bolt will appeal. Judgments in a court of first instance can only be overturned on appeal if the judge has made a legal error, and nobody (who matters), not even the most loyal of Bolt’s apologists, is saying that Mordy Bromberg made a mistake in law. This was a decision that turned entirely on the facts, and decisions about facts can’t be appealed.
And even if Bolt decides to roll the dice and go to the full federal court (a very expensive thing to do) then after he loses it’s unlikely the HC would take the case. The HC only takes cases where there are meaty issues of statutory interpretation at stake. This was not such a case.
Do I detect a double media standard here?
Is discriminatory or racist attitudes acceptable for some Australians though not others, depending on how indigenous you are?
Message Stick – White Skin, Black Spirit
Sunday 20 June 2010, 1:30pm ABC1
Transcript:
BEVERLY HAND: (Indigenous community elder and representative)
“I first met Terri-Anne about nine years ago, and my first impressions was that she was an “instant coffee” – meaning that she…all of a sudden wanted to be an Aboriginal. And being an Aboriginal isn’t just a decision that you make. It’s about what’s inside, and the way that you’re brought up, and have a connection to country. It’s also not related to whether you can do artwork, or whether can sing a song, or dance an Aboriginal song. It’s about what’s within.”
http://www.abc.net.au/tv/messagestick/stories/s2924903.htm
Lets see how the ABC like it when the tables turn.
Where do we draw the line?
I’m surprised at criticisms of the Act for going further than defamation law in penalising the giving of offense rather than just the doing of harm. Surely that is exactly what the legislators were trying to do; that is to put a brake on racist language in Australia. Of course the Act won’t prevent disparaging comments about racial groups being made at barbeques and pubs. But it can stop those with a public platform from leading the disparagement or adding support to those attitudes. By so doing it sends a message to the community that such comments are not OK. I’m confident that in time this judgement will lead to less racism. Of course there is a risk that a law that targets the giving of offence could be used inappropriately. However, I am comforted by the clause that excepts statements made in good faith, the judge’s careful language and the fierce public scrutiny of the judgement. It seems to me that the risk is small and outweighed by the clear benefits of the legislation.
Huh?
Think about it. As Sam as pointed out he has to go up thru the hierarchy but maybe he won’t even bother. Whatever his true feelings about ethnic matters it’s been something he tends to harp on about and for quite a while now. Legal; counsel for NewsCorp must have been aware that his work was provocative and were perhaps waiting for such a provocation and now they get one.
Bolt has not apologized or withdrawn his position he stands by it. Who are his supporters going to believe? Him? Or the Lefties who hate free speech? There’s a certain sense in the community that you can’t speak freely about ethnic issues and that Aboriginal people are ‘unfairly privileged’. The facts of this case make a dent in the second of these assertions but contribute to confirmation of the first.
Seeing as how this is a democracy what the citizenry believe irrespective of the facts has an impact. I can see this turning into a a campaign for a legislative overhaul of our disposition toward ethnicity. The target could be multiculturalism itself.
If the plaintiffs had sued for defamation, if this aspect of the statute had not been added, then Mr Bolt wouldn’t be able to turn this into a story where he’s a free speech martyr. Defamation would’ve stated it much plainer, very few regard laws against slander to be unjust. Now quite a few more may want to strike not just 18C but the whole RDA.
I don’t think that’s entirely true although I accept that he would get less traction.
Next on the list – banning South Park for promoting “Kick a Ginger day” – yes I know it was a joke – but it seems to have taken off regardless.
http://www.news.com.au/top-stories/teenage-girl-beaten-by-classmates-in-canada-on-kick-a-ginger-day/story-e6frfkp9-1226153979536
Perhaps, but you’d need to take that to Parliament, not the High Court. Actually, I think it’s extremely unlikely. The Opposition might go for repealing s18C, but I think it highly unlikely that it would consider repealing the RDA.
btw does anyone know what sort of penalties Bolt may face?
@mellie,
Are you so desperate for what you perceive as a “gotcha” that you can’t even read the full transcript, to realise that Beverly Hand was talking about first impressions only, and that the whole piece was about how she actually helped Terri-Anne Goodreid to explore her family connections and spirituality as a pale-skinned indigenous woman?
Besides, unless Terri-Anne Goodreid herself has a problem with what Beverly Hand said, which presumably she might have mentioned sometime over the last year since the show was broadcast, then there will never be a lawsuit against the ABC for broadcasting or against Beverly Hand for uttering those words, because Terri-Anne Goodreid is the only person with legal standing to bring a case.
@Chris
The complainants did not seek damages, they requested an apology and a promise that those particular claims would not be repeated.
I’m not sure what the judge actually ruled wrt penalties.
You have to laugh at such a privileged person as Bolt trying to play the victim he’s also a massive hypocrite:
http://www.theage.com.au/victoria/no-thunder-from-bolt-as-court-finds-breach-20110928-1kxg5.html
Andrew Bolt on the Norway massacre:
When details were made available “a man detained by police was aged 32 and ”ethnic Norwegian.”” the tune changed slightly.
http://blogs.crikey.com.au/purepoison/2011/07/23/norway/
Would the defamation act allow Tony Abbott to sue Julian Burnside the QC?
http://twitter.com/#!/julianburnside
“HUMAN rights lawyer Julian Burnside has apologised to Tony Abbott after referring to “Paedos in speedos” during a Twitter conversation about the Coalition leader. ”
Pretty nasty stuff from a human rights advocate no?
@309
Further to that is the issue that the Boltistas refuse to acknowledge: that it is not illegal to hold or express opinions about Aboriginal identity or entitlements. It may be illegal to express them in a way that is deliberately hurtful and reckless with the truth.
The difference seems clear to me but for some reason many people just can’t see it. Or is that won’t?
@311 . . . and the Madrid Train bombing were thought likely to be by the ETA based on reasonable assumptions before it became apparent they were by islamic terrorists.
Probably the wrong place to discuss libertarian philosophy, Robert probably will, with justification slap wrists again, but:
Tim Macknay @ 209
If I am in business and someone damages my reputation through defamation then my ability to carry out my business or act freely in society is also damaged, and I suffer a real and measurable loss. The defamation constitutes a direct aggression against me and mine, and I am entitled to seek restitution.
The idea that my reputation is not mine to protect is absurd.
Akn @ 268
You say “The more I think on so called libertarianism the more I am astonished at the chthonic nature of its philosophy. Asocial to the very core…..”
Quite the opposite. It depends on society and personal interaction – at its very core. It simply doesn’t see a need for the state to interfere in social interaction to anywhere the extent it does.
To be honest, regardless of your claim here, I don’t think you have thought on libertarianism at all, only on what you imagine it to be. Might I suggest you consider the non-aggression principle and its implications? This is the fundamental moral stance of most libertarians and most flows from that.
Wikipedia has an adequate introductory description.
And yes, the state is the oppressor. Just ask anyone who questions John Howards sedition laws, as discussed here.
Jacques de Molay @ 223
Yes, I know, but given that most of the political philosophies listed as right wing bear no resemblance to fascism I will simply reiterate that all this label does is demonstrate the limitations of the nonsensical left/right duality.
In this context, if you insist on a one dimensional definition, then might I suggest a graduation of statism then? Extending from a stateless libertarian/anarchy at one end to all forms of totalitarian society at the other, with other philosophies scattered along the axis? Makes more sense.
Our legal system is that simple John D.
Don’t doubt in these proceedings under the RDA Andrew Bolt was served a letter by the aggrieved parties demanding that he retract his allegations, correct his incorrect “facts” and apologise, publicly since the offense to those who attacked was public, for what he had done.
Had he done that the cost to him would have been negligible since it would have only involved rectifying an admitted harm he had done to others.
And a loss of face for getting his story so wrong in so many places.
That would have been the end of the matter.
But he made a different choice so the matter ended up before a court where, inevitably, as he contested their right to a remedy and they sought their vindication, and both sides stacked up great legal bills as they sought to have their side prevail.
Which bills he, or more likely his employer, jointly liable, will have to pay.
They were not suing for defamation where the damages they could have obtained if the defamation was proved was large indeed and which, as the case evolved as it worked its way through the court, could have included exemplary and punitive damages.
@274
“The only way of preventing it is to make it against the law”
I would say that making it actionable at law is sufficient. “Against the law” sounds a bit summary.
My advice is watch out for Skeptic Lawyer’s legal advice. Fraud, secondary boycotts. Sorry, couldn’t resist.
GregM @315: You are agreeing with the point I am making. Bolt could have caved and saved himself and his employer a lot of money. (And should have to my prejudiced mind.)
However, what this is really saying to someone who really believes that something should be said is that they face a simple choice. Give up or risk losing an amount of money that most Australian’s s are not rich enough to be able to afford. I don’t think it is healthy to have a system where most of us can be effectively shut up by the threat of legal bullying.
Chris Harper: love it. What a hoot. The ‘non-aggression principle’. Talk about book learnin’ divorced from human reality and history. The state is the context within which civil society comes into being. It doesn’t exist prior to the state. How do you account for non-aggression in a political economy dominated by commodified relations which have, so far at least, have never been anything other than aggressive. So much so that someone once came up with the concept of class war to explain the degree of hostility experienced.
wrt Tig Tog @ 309, if you read the fine detail Mellie, you’ll discover that the judge goes to quite some detail to specify how Bolt’s falsehoods and misrepresentations were used to convey something less than the truth.
The judge suggests that it’s modus operandi for Bolt, and there’s no evidence to suggest otherwise.
Per Tig Tog, you really are struggling for a gotcha there. Not sure if you listen to Message Stick regularly, or at all, but context plays a huge role in the judgement. Keep digging though, I’ll be curious to see what’s next.
John D, I don’t believe for a moment that Andrew Bolt saw himself as a lonely voice who really believes in what he says and was being forced into a position in those circumstances to give up or risk losing an amount of money that most Australian’s s are not rich enough to be able to afford.
He is a News Limited editor with the vast resources of News Limited behind him prepared, and contractually liable, to pay for whatever he said having cheecked through their inhouse defamation lawyers each and every writing of his before it was admitted for publication.
I think that the bullying went the other way.
His proposition, I think, was: “I’ll publish and you’ll be damned”, confident that the vast resources he had behind him were much greater than the resources of those he had offended/ slandered.
And that therefore, as a bully, he could get away with it.
akn @ 319
You said “The state is the context within which civil society comes into being. It doesn’t exist prior to the state.”
Yeah, I’ve heard that assertion before, never found anyone able to justify it tho.
Can’t find the reference so I can’t point you to the original wording, but there is a fairly well known quotation to the effect that prior to the Great War it was reasonable for a person in England to pass their entire life without any significant interaction with state institutions. Are you arguing that prior to 1914 there was no civil society in England? Really? I know people who might disagree with that.
Frankly, the state is oft destructive of civil society, not constructive. Look at the mess it has made of modern England.
@Chris Harper, your improperly cited alleged quotation is only relevant if it accurately describes what actually occurred prior to the Great War.
Are you entirely sure that it does? And, even if it does, is Victorian England a legitimate nonpareil against which any other descriptions of citizen-state relations ought to be found wanting?
In ancient Rome, for instance, which was for many centuries the most stable social system ever known (and from which derive most of the West’s legislative and political systems still) the state was virtually omnipresent in daily interactions.
dear anyone
i’m glad the plaintiff’s didn’t seek monetary damages. by seeking an apology but not monetary damages, the plaintiff’s have immeasurably enhanced the dignity of their case.
imagine the invective, now, if they hadn’t? the poisonous distraction that acrimonious money envy would be to the debate people are having now? as it stands, all commentators, and especially bolt supporters, cannot thus distract debate away from the core speech issues this case had made so intensely topical.
so, i’m grateful they didn’t seek monetary damages & respect them immensely for the wisdom of their decision not to.
yours sincerely
alfred venison
@313
The Madrid bombing was never thought likely to be done by the ERA. From the get go that was an obvious bullshit story concocted by the then Spanish government in an attempt, entirely futile as it turned out, not to lose support for Spanish involvement in the then imminent war in Iraq.
Alas for the government, the truth was quickly revealed, they lost the election that followed soon after and Spanish troops stayed home.
tigtog @ 323
I think it would have been possible up until about then, but difficult. It would almost certainly been reasonable until the education act of 1870.
Prior to that, the average person, provided they were not a criminal, a litigant, a supplicant (including those in the poorhouse) or serving in the military, could probably never have to deal with the state at all, other than tipping his hat to the local magistrate when out on his morning constitutional.
Would have been pretty similar in the rest of the Anglosphere and the Empire, maybe less so in continental Europe.
Roman society evolved, after the kings were kicked out it was pretty much a society of free citizens, not a lot of government, but the Empire eventually put paid to that. It took centuries tho. Blame Domitian for the final debasement of the free citizen.
What we now call Roman Law, or the Civil Law, tho didn’t come for another few hundred years after that, when Justinian gathered over a thousand years of legislation and common law decisions into a single code.
As you pointed out, the Roman Law, as codified by Justinian, is still the basis on European and European derived legal systems. What I find fascinating about it though is its roots date back to the twelve tablets of 440 BC, and possibly even as far back as King Numa, in the 8th Century BC.
WOW.
Although, when it comes to stable societies, I would put Egypt ahead of Rome. The state was pretty heavy handed there as well.
Tigtog @ 310:
Bromberg J didn’t grant an injunction restraining publication of the Bolt articles because of concerns about the impact on freedom of speech. Nor did he order Bolt to apologise, because he felt that it was inappropriate to compel someone to apologise where they did not genuinely believe that apology. Ultimately, he felt that the best approach was to arrange for Bolt and the paper to issue a “corrective notice”, and he said at [468]:
Then he sent the parties off to settle it for themselves.
alfred @ 324 – I’d have been happy for Bolt to have had his pants sued off him for knowingly publishing defamatory material – and given the number of factual errors he’s been found to have made it looks like that would have been possible. However, I’m not that happy with him (or anyone else) being held legally to account for publishing something that a court has found to be offensive.
I have been trying to identify what has been niggling me over this whole episode and it occurred to me that it is only with people of aboriginal heritage that the media, in particular, preface a news item with ‘aboriginal academic [insert name]…….or aboriginal lawyer [insert name]‘. We would never define our Prime Minister by calling her, ‘Welsh Prime Minister Julia Gillard or ‘Chinese politician Penny Wong’.
All are Australians so why is it considered legitimate to identify one group with an ethnic tag ?
Chris, the court did not just find what Bolt wrote “offensive”. The court found that fair-skinned Aboriginal people would have been “offended, insulted, humiliated, or intimidated by the imputations conveyed”. Bolt was accusing specific people of being self-serving imposters. It was about who they are as well as what they did, and he was trying to silence them in their advocacy, taking advantage of his privileged access to the media in the process.
Madonna King today represents the issue as one of strong opinions expressed in robust debate being muzzled. Opinions need to have some relation to the truth and be accountable to reason. There is no reason why Bolt should not address the issue of racial identification, but he needs to respect the facts and above all respect the people he’s talking about. With Aboriginal people this cannot be considered outside the post-colonial context of historic dispossession and marginalisation.
Madonna King, Margaret Simons and Jonathan Holmes fail to see that matters of racial identification are not just any issue. It’s about who you are, your personal identity and how that is perceived and valued within broader society.
Chris Harper @322: the point is that the state is the necessary precondition for the existence of civil society. Without the coercive capacities of the state, which include mechanisms for enforcing the rule of common, contract and criminal law, then civility is an impossibility. When not using coercing the state is the facilitator of civility and co-operation. It is, of course, a constant danger that the state can be abusive. That has certainly been my experience working within it, and recently too. So, I’m no ideological statist. However, your view of the state as either only a mechanism of coercion or oppression ignores the human capacity for individual and collective ill in the absence of state authority.
This is naive and ahistorical. The welfare state, the major compromise between labour and capital in the wake of WWII, which you presumably see as an impediment to people engaging with the need to bring themselves fully into being as liberal individuals, even in its currently weakened form, is a major guarantor of civil social life. Compare, for example, the rates of homelessness and abject poverty between the USA and Australia and wonder why the difference.
Persuasive arguments in support of this argument have been made in dialogue between communitarians and liberals such as Daniel Bell, Michael Sandel, Seyla Benhabib and Alasdair MacIntyre.
I suspect that you haven’t seen a convincing argument for the positive role of the state in relation to civil society because you just haven’t looked.
How about Burnside? What a dolt.
dear Brian
“matters of racial identification are not just any issue. It’s about who you are, your personal identity and how that is perceived and valued within broader society”.
and for everything else you said in that post, thank you.
yours sincerely
alfred venison
Brian @ 331 – I’m pretty sure the court found that the although the plantiffs would have been offended, it did not reach the level of intimidation. Bolt definitely should be made to legally account for any falsities that he wrote. But as far as writing comment goes, I think he should have the right to write things which some (or even many) people find offensive without being subject to legal sanction (social sanction is a different matter and people should be free to criticise him for it).
@Brian
“Chris, the court did not just find what Bolt wrote “offensive”. The court found that fair-skinned Aboriginal people would have been “offended, insulted, humiliated, or intimidated by the imputations conveyed”.
So should the half-caste Dr Anthony Dillon be sued for saying the same thing as Bolt?
http://www.youtube.com/watch?v=hFtpybqBK0c&feature=player_embedded
If not, why not?
dear Chris
the judge was satisfied they were offended. and also insulted, humiliated & intimidated. in the summary, at paragraph number 17:- “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles.”
bolt has the right to write about controversial subjects, in good faith. the good faith defense failed him this time because he lied.
yours sincerely
alfred venison
There is much broader historical and legal question embedded in the Bolt case that would be overlooked by most not familiar with Indigenous history. Discussed inside the liberal democratic paremeters of settler legal one is able to discuss this as a purely libertarian paradox of morals and ethics and free speech. But it is much more than this. Indeed it sits at the centre of the questions and debates surrounding constitutional recognition of Indigenous peoples and soveriegnty. The status of Indigenous peoples as first nations peoples has yet to recognised and as such our status (and identity) is open to interpretation within an imposed legal and moral system. This is the only nation not to have entered into a treaty with its first nations peoples. Had this occurred, our right to decide who was or was not Indigenous would be enshrined in law. This does not mean it could not be openly discusses by media and social commentary. But in the absence of a substantive recognition (in law) of our status no-one can reliably point to statutes or legal frameworks that provide guidance on who is or is not Aboriginal. For Aboriginal people and communities Aboriginality is contested and validated daily between ourselves. But these validations depend on a system of identification not eshrined in white Australian law. Bolt’s tardy research and opinion depended mostly on the accuracy of google searches. He did not approach any of the plaintiffs, and had he done so, he would have had to refer to the deep history of legalised racism, eugenics and regulatory systems that controlled, defined and regulated Aboriginal people and identity. Moreover he may have had to discuss Aboriginal soveriegnty. I suspect he realized that it was a much more complex issue and decided to keep at the level of knowledge that most Australians understand these issues, and unfortunately, its still very shallow and reactionary.
savvy, I’ll give you two quotes from Mark’s Overland piece, linked at the end of the post:
Bolt’s piece was not grounded in fact or oriented towards a search for the truth. It was presented as the truth, and was wrong.
Dr Dr Anthony Dillon gives an opinion which he asks people to think about. There is a world of difference.
Two comments. First, Anthony Dillon does not claim to be a half caste. The voice over says he is happy to be known as of mixed heritage. What the true situation is you’d have to ask him.
Second, I don’t believe he is entitled to impute motivation as to why some people emphasise part of their heritage. I’m part English and part German, but tend to think of myself as of German heritage. It’s because I was raised in an enclave of third generation German migrants with a cultural heritage sourced from what was a Prussian province in Europe. Nothing more.
@Brian
“Two comments. First, Anthony Dillon does not claim to be a half caste. The voice over says he is happy to be known as of mixed heritage.”
From his own words he doesn’t seem to have a problem with being of mixed heritage or half-caste.
“…a clip of Charlie Perkins once and he referred to himself as half-caste and I’m told that in New Zealand it’s common to use that term half-caste. So it only becomes offensive because someone chooses to make it offensive…”
He also makes the point Bolt makes about ONLY recognising and promoting one part of your lineage and asks why this is so and if there are other motives for this.
“…why is it you don’t acknowledge the other parts of your ancestry? What could your possible motive be? …it could be that for some people, if there is a claim thatthey are part aboriginal, they may think that translates to part benefits.”
Now what is different between what Dillon is asking here and what Bolt is asking?
If someone takes offense at what Dillon says about them, should Dillon be taken to court the same as Bolt?
The state was pretty heavy handed there as well.
Ain’t nothin’ compared to what happens when the State gets heavy-handed with 21st century technology. That’s why those restrictions of the Power are sooooo necessary.
The broader point here is with the iteration of the slippery slope methodology. Just as laws cannot in themselves establish and protect freedom of speech, neither can their silence on such matters suffice to imperil it. There are after all, no specific laws in this country protecting free speech, and yet there’s little evidence in practice that speech is any more fettered here in practice than in the US where there is such a provision at Federal level.
Talk of this being “a dark day for free speech” would thus be massively overstating matters, even if what seemed to be constrained by this ruling was the scope of individuals to comment substantively on some matter.
One of the things that separates Australia from autocracy is the widespread acceptance by the political class, the bureaucracy and pretty much anyone who bothers to pay attention that speech ought to be left unfettered unless there is a compelling reason to fetter it. The population is substantially literate, and fancies that it can speak truth to power and tell authority where to get off. So strong is this view, that many people (wrongly) believe that free speech forms part of our laws, or is amongst our “rights”.
The Soviet Constitution of 1936, on the other hand, asserted inter alia the right of free speech, but its political class and bureaucracy had never known of a time in the country’s history when speech was unfettered, and could scarcely imagine how it might work. Then population as whole was largely illiterate, and utterly dependent on those who were not to advocate on their behalf. In short the words of the constitution were radically at odds with lived reality.
That’s why the slippery slope angst over this is vacuous.
dear Vic Hart
thanks you for sharing your insight & experience. the absence of a treaty or constitutional recognition of aboriginal australians is indeed crucial & fundamental to this debate and due consideration of the fact should form part of everyone’s considerations. it behoves all commentators to bear in mind what you have said as they reflect on & discuss the issues brought to a head by the outcome of this case.
yours sincerely
alfred venison
savvy @ 335 you said that Anthony Dillon was a half-caste. Whether he is or not appears to depend on whether his father Colin was a full-blood. I’m not at all sure that he was. My concern is for accuracy, nothing more.
Obviously people can attempt to sue Dillon if they want to. All I can say is that on the basis of what I’ve seen, and I haven’t seen his article in The Australian, there is no comparison. He asks a general question. Bolt makes a series of hurtful assertions targeting specific people.
Bolt is also saying that people who are fair-skinned cannot represent themselves as Aboriginal, and to do so is an offence to truth and reason. Dillon doesn’t even come close to saying anything like that.
@Brian
“Bolt is also saying that people who are fair-skinned cannot represent themselves as Aboriginal..”
Where does he say this?
Can you show me where he catagorically states your claim?
Chris @ 334, I haven’t read the 57,000 word judgement, nor the law. From the Jonathon Holmes article:
I think the point here is that any one of “offend, insult, humiliate or intimidate” is unlawful. Some of the unease appears to be that “offend” sets the bar very low.
But there is also a ‘fair comment’ issue. Again from Holmes:
It seems to me clear that Bolt went well beyond offence.
I think that care and diligence should taken to avoid what reasonable people would find offensive on matters of race and colour. There can be legitimate argument as to whether this should be enforced by law. If you add insult, humiliation or intimidation, separately or together, I think there is no doubt.
savvy @ 344, go here. Start at least a couple of paras before these three and read through to the end:
He’s saying that “white” Aborigines cannot legitimately represent themselves as real Aborigines, because they are not.
That’s my summary of what he is saying.
There is almost no interest in this particular case: almost all commentators accept that these articles would have been found defamatory given the facts found in this judgment, and hence by the standards almost everyone accepts these articles are rightly the subject of legal sanction.
The only interest is in discussion of hypothetical cases closer to the borderline, and so far I haven’t heard much by way of argument except “but it’s not defamation”
The bottom line is what right does Andrew Bolt have to question whether Aboriginal people like to call themselves Aboriginal? He insinuates that because some have fair-coloured skin they’re only identifying as Aboriginal for personal gain/career advancement.
Keep in mind Bolt thinks the “Stolen Generations” is a myth and also launched Keith Windschuttle’s book “The Fabrication of Aboriginal History, Volume 3″ in Sydney last year.
@ Martin B
“almost all commentators accept that these articles would have been found defamatory”
Then why was it not prosecuted as such?
Don’t write crap?
Who cares what Bolt thinks. Really. It’s amazing even to me how many Aboriginal people don’t know, don’t care about this media storm in a teacup.
@savvy
Because defamation is not a crime, and thus is never prosecuted? Until you learn the difference between a prosecution and a lawsuit, your legal insights are unlikely to be given much weight.
GregM @321: There are two issues here. The specifics of the Andrew Bolt case and the more general issue of freedom of speech. My comments are directed at the second issue.
While I think it would be good for for the likes of Bolt to leave the public stage I don’t think that this is worth making it harder for things that really should be said to be should be said.
What the judge said was specific enough for it to be strongly argued that what he said didn’t threaten free speech. However, the result adds to the perception that speaking out does involve a risk that someone will have to face expensive court proceedings.
@Tigtog
“Because defamation is not a crime, and thus is never prosecuted?”
Ok then.
If, as the comment I was responding to says, “almost all commentators accept that these articles would have been found defamatory” is true then why was the defamation “avenue” not pursued in the courts?
@Tigtog
“your legal insights are unlikely to be given much weight.”
Are you a lawyer?
I did two semesters of introductory legal studies (Constitutional Law 101 and Torts 101, pretty much) as part of a course for non-lawyers. This was enough to acquaint me with the rudiments, and I claim nothing more. You obviously have not even looked up the basics in Wikipedia.
“defamation is not a crime”
This will be news to former WA Premier Ray O’Connor who went to gaol in the 1990s after being convicted of criminal defamation.
Thank you for expanding my legal vocabulary there, “I Andrew Bolt”. I hereby amend my statement to “defamation is generally a civil matter rather than a criminal matter, none of the examples given would classify as criminal, and the state only prosecutes criminal matters”.
(P.S. was it the criminal defamation only that led to O’Connor’s prison sentence, or was it the stealing?)
@Tigtog
“your legal insights are unlikely to be given much weight.”
“This will be news to former WA Premier Ray O’Connor who went to gaol in the 1990s after being convicted of criminal defamation”
How much weight should your legal insights be given after making this mistake?
Too proud to admit you take a shot at other people when you have the same failings TigTog?
I acknowledged that my legal vocabulary had been lacking over an hour ago, savvy.
Good work Tigtig. You also don’t get the RDA and who can be offended and who can launch proceedings.
Those two subjects mean sweet FA and yet you sit around here lecturing and hectoring.
By the way, in many states until the last decade, defamation was a crime and could have been and has been prosecuted by the state. You have no idea. Clearly.
One of the things that separates Australia from autocracy is the widespread acceptance by the political class, the bureaucracy and pretty much anyone who bothers to pay attention that speech ought to be left unfettered unless there is a compelling reason to fetter it. The population is substantially literate, and fancies that it can speak truth to power and tell authority where to get off. So strong is this view, that many people (wrongly) believe that free speech forms part of our laws, or is amongst our “rights”.
Methinks perhaps you’re too much the optimist.
My substantive point Adrien, is that one of the problems with slippery slope arguments is that they assume that every extrapolation of what they take to be a principle behind some phenomenon or development must be allowed, without considering whether the other conditions attending the development suffice to predispose the extrapolation.
Any act seeming to curtail free speech is the gulag in microcosm. Yet when one examines places that can be said to have had gulags, what one notices are many other predisposing features that do not obtain and have never obtained in places that don’t have them.
To take a simple example — during WW2 in Australia and the US/Canada, we had internment camps for “enemy nationals” including the children of those nationals. David Suzuki was interned in Canada. This was utterly wrong IMO and racist. It’s also no hard to find examples of racist speech from this time against the Japanese in particular.
If the slippery slope argument had force, there were much stronger reasons to fear gulags in Australia and the US/Canada, because they’d actually had them during WW2. When the war ended however, these were abandoned and the pre-existing usages returned. Today it would be far harder to do that sort of thing. In the wake of 9/11, there were no equivalent camps for Muslims. Some lessons are learned.
It’s interesting that those who support “slippery slope” as a methodology only allow it to run one way. Had Bromberg ruled in Bolt’s favour is it not possible to argue, using the slippery slope, that now it would be open season on racist hate speech and that the danger was of a f@scist takeover? If one imposes no other model tests for the hypothesis, then surely that is arguable?
@Tigtog
“I acknowledged that my legal vocabulary had been lacking over an hour ago…”
Glad to know you admit it and we can therefore “your legal insights are unlikely to be given much weight.”
When the war ended however, these were abandoned and the pre-existing usages returned. Today it would be far harder to do that sort of thing. In the wake of 9/11, there were no equivalent camps for Muslims. Some lessons are learned.
Would it be far harder? There has been a lot of talk about restricting Muslim immigration, about the impossibility of ‘them’ segregating and the need to impose restrictions on the expression of their culture in public as well as the private discourse practiced in their religion.
Yet the terrorist attacks were paltry compared to, say, a move by China to imperially expand its territory. If there was another world war wouldn’t the internment of immigrants at least from the Chinese mainland be pushed if not instituted? I agree that there are contingencies that are over-looked when deploying the slippery slope argument, there are contingencies that one examines for evidence of fascism too. There’s nothing natural that grants the English speaking world immunity from totalitarian politics. That we remember it is our traditional way of avoiding it.
It’s interesting that those who support “slippery slope” as a methodology only allow it to run one way. Had Bromberg ruled in Bolt’s favour is it not possible to argue, using the slippery slope, that now it would be open season on racist hate speech and that the danger was of a f@scist takeover?
I wouldn’t credit Bolt et al with a push to fascism but those who like the RDA should be aware that this case has launched a campaign to scrap the whole Act and not just 18C.
My concern with free speech is that the Bolt case is not isolated. There are moves against free speech from all directions. We’ve forgotten what it means and why we have it.
@Fran
“If the slippery slope argument had force, there were much stronger reasons to fear gulags in Australia and the US/Canada, because they’d actually had them during WW2.”
I know we had internment camps in Australia during the war however I had no idea that we had The Gulag, the forced hard labour penal camps in Australia during WW2.
“This was utterly wrong IMO and racist. It’s also no hard to find examples of racist speech from this time against the Japanese in particular.”
We were at war with Japan no? You get upset at some racist speech against the Japanese during the most shameful period of their history?
Wow.
The Bolt judgement essentially holds that you can’t publish vicious, shitty lies about people.
But we already knew that – its called defamation.
The judgement is in no sense on freedom of speech (except in the sense that the law of defamation has always provided a limit). Its a good limit, too.
Meanwhile, Bolt has some of the free-est speech around. Wot a whiner.
@Tiny Dancer and @savvy,
having looked through various Acts covering defamation law just now (NSW is fairly typical) I still fail to see where anybody but an “aggrieved person” (i.e. someone whose reputation is directly affected by “the matter in question”) can launch proceedings against a “publisher”. It’s still more than just “being offended” – the whole point of an action for publishing defamatory material is that one’s reputation is damaged. If I’m not a named person nor a member of a named group in somebody’s publication, then no matter how offended I am by what they wrote I cannot launch proceedings against them. I can only cheer from the sidelines as those with standing, the “aggrieved person(s)” launches an action i.e. no matter how offended I may be what you say about my great friend living next door, I have no standing to lay a complaint that will launch proceedings against you on xir behalf.
Now for the RDA – according to the HREOC website, in order for a complaint to be made under the RDA it must be made by a person who feels that they have been discriminated against or vilified because of their race. Offended observers of racial discrimination and vilification have no standing in the matter to lay a complaint – it must be made by the aggrieved person(s) only.
So, I freely cop to making an error about the existence of criminal defamation (at least in some states, prior to the last decade). However, according to the government cites I’ve just provided I wasn’t wrong about who can and who cannot launch proceedings for either defamation or for breach of the RDA. Only the aggrieved person(s) can lay a complaint that will launch proceedings. If you are merely an observer, you have no standing in the matter (although you may be a useful witness). That’s the law.
Fran: you seem to be forgetting the _crimes_ the Japanese committed during WWII. They deserved what they got during said war.
So unless they print your name you can’t be an aggrieved? Go and ask someone who knows what they are talking about and stop reading 5 minutes of statute.
Again, you lecture and pontificate but you know zip.
@ Paul 370
“Fran: you seem to be forgetting the _crimes_ the Japanese committed during WWII. They deserved what they got during said war.”
Actually Paul, Fran did not forget, she just doesn’t think it important.
Remember, Fran believes that racist language used against the Japanese when we were at war with them 70 years ago is worth criticism.
She thinks the Mortein “Louie the Fly” is a racist conspiracy developed as a racist strategy against any and all Australians of Italian descent.
She also thinks that Nancy Wake, “the White Mouse”, a WW2 war heroine, was a racist who should not be upheld as a role model by people today, as Nancy dared to “hate” Germans.
So do not be surprised Paul that Fran looks for and manages to find racism in just about anything.
@Tigtog
“So, I freely cop to making an error about the existence of criminal defamation ”
So does that mean that ““your legal insights are unlikely to be given much weight.” from now on?
Or does this attitude only apply to other people who make a mistake?
Marcia Langton on Bolt: http://m.theage.com.au/opinion/politics/the-gripes-of-wrath-20111001-1l2z5.html
Paul @ 369 – not all the Japanese committed crimes. And thats a major point of anti discrimination laws – you can’t discriminate on the basis of generalizations. The attitudes are of course understandable but doesn’t make them right
@Chris
“not all the Japanese committed crimes. And thats a major point of anti discrimination laws – you can’t discriminate on the basis of generalizations”
When you are involved in Total War with another country/race then yes, generalizations can be made..at the time.
Racist remarks towards the Japanese during WW2 CANNOT be judged by you or Fran now.
It IS that simple.
Thanks for the link Lefty E. Marcia is always good value:
As she says, it’s all about the Australian tradition of ‘racial hygiene’ and the right of any whitefella to declare who is or isn’t a blackfella.
ABC The Drum poll audience – normally so ardently lefty in its responses, is running at 52% against the court decision … extraordinary!
@Tiny Dancer,
Not under defamation law as I understand it, but if you’ve got a counterexample to cite I’d be happy to learn otherwise. The RDA is broader in its application than names/reputation because not all racially based discrimination or vilification is displayed through publication in the same way as defamation happens, but under both defamation law and the RDA it appears that only those actual person(s) who has been defamed, or those actual person(s) who has been discriminated against or vilified on the basis of their race can lay a complaint.
Every one of the nine complainants in the Bolt case qualified as an aggrieved person under both statutes from everything I have read so far So, if you have a cite for any part of the legislation which allows an offended observer(s) to lay a complaint under either the Defamation Act or the Racial Discrimination Act regarding a matter in which the observer(s) does not have personal standing as an aggrieved person(s), I’d love to see it. Until you provide such a cite(s), I intend to ignore you.
Despite the amusing diversions my point above stands: there is almost no doubt that the articles Bolt wrote went beyond the line according to the legal standards commonly accepted for a long time. If the same findings of fact were made in a defamation case he would certainly have been found guilty.
Hence these articles were rightly sanctioned.
As to the question how it seems that the plaintiff deliberately chose not to take action under defamation and deliberately chose to take action under the RDA. As the law stands that is their right. Since they are seeking a lesser actual penalty than they might have it seems odd that they are being criticised for taking the harsher route.
All this case has established is that the RDA limits lawful speech no less than defamation law does. By all means, if they must, people should wring their hands about the possibility that the RDA limits lawful speech much more than defamation law does, but to do this in terms of this case is to get sucked in to feeling sorry for Bolt’s whinging.
@savvy,
Well, I’ve admitted to limited knowledge in the first place (although who does and who does not have standing before the court in a matter is very much a 101 concept, so it’s hardly an arcane or challenging position to present); I’ve admitted when I’ve made an error; I’ve provided some references that readers can check for themselves. You’ve refused to acknowledge that you have limited knowledge or that you could possibly be in error, and you have provided no references at all.
I’m sure that readers will draw their own conclusions about both of us accordingly.
@Tigtog
“You’ve refused to acknowledge that you have limited knowledge…
Wrong. Your reading skills need sharpening Tigtog.
When you pointed out “Because defamation is not a crime, and thus is never prosecuted?”
I replied, “Ok then.”
How you interprete that as me disagreeing with your correction is beyond me. Perhaps you could explain your reasoning.
Now, to be clear. Before I could even read about the mistake that I made, let alone respond to your correcting my mistake you took it upon yourself to add the snide remark :
“Until you learn the difference between a prosecution and a lawsuit, your legal insights are unlikely to be given much weight.”
Fair enough. However, it is clear you do not hold yourself to the same standards you require of others.
Read the act. It applies to groups.
There are thousands of cases strewn throughout Australian law over decades which provide that standing can apply to one person if one is part of a group emotionally or intellectually affected by the act complained of.
Sorry I haven’t got my dossier of RDA cases at hand. Why don’t you show me yours? You like to lecture and then not allow replies to your shit lectures.
You don’t have to be named; you have to be identifiable. Quite a different concept.
Holy crap, I’d have thought TigTog has copped to an error, is it possible to move on from that error, and get back to the facts as written?
No apparently, it’s really crucial to sit on the point, repeat it ad nauseaum, and then extrapolate wider failings based on one error. Credit to her for continuing to engage with you in good grace.
Surely it’s ironic given that had Bolta had the grace to admit his errors when first exposed, it would have saved 380 posts on this subject. This one keeps going like a wildfire. Sunday Age editorial admits the law is flawed, needs a good looking at. But also agrees that the ruling was sound based on existing law.
More surprising to me was the Penberthy column in Herald Sun where he makes the key point that Bolta is not spokesperson for News Ltd, and the letters page in Weekend Oz presents some very decent vitriol in Bolt’s direction.
Expecting News to fall in behind the hero of substandard research and cut & paste agitation? Far from it, and Penberthy makes some good points regarding Bolta’s role in the bigger scheme of it:
Bolt, you’ve got it wrong
Interesting times. Particularly if that link makes it…
While I fully grant the nuances of the distinction you’re making there, I don’t think it’s truly that crucial a difference when the point I’m arguing against is the utter bullshit of “now anybody who is offended by anything will be able to sue the person who offended them”.
Actually, I’ve been scrupulous on this thread about publishing comments that I wouldn’t let stand if they were directed towards anybody else.
tigtog @ 376 – given the number of people in Australia who are likely to have at least a trace of aboriginal blood, I’d guess the pool of people who are able to complain is probably quite big!
FWIW I think it is important the people are able to make statements which may be generally offensive without being subject to legal sanction. Social sanctions are a good way to handle this effectively.
Brian @ 345 said:
That is my concern. It is sort of continuum from offend to intimidate. I think there’s a reasonable argument that intimidation be illegal regardless of basis. And if its considered reasonable for it to be illegal to make offensive statements on the basis of race, why is it not illegal to make offensive statements on the basis of say weight, age, or disability?
I repeatedly wrote person(s), and even if I hadn’t that still doesn’t equate to “anybody who is offended”, which is the claim that I am disputing.
I find offensive nuggets in just about every column Bolt publishes. Simply being offended as an observer doesn’t meet the requirements for establishing sufficient standing in any matter whereby I could effectively lay a complaint which will launch court proceedings against him. You obviously know that the standard is significantly more stringent than that, yet you’re nitpicking without actually trying to defend the original claim that I am disputing.
So, do you agree with the original ignorant claims that subsequent to this ruling against Bolt, the floodgates are now open for absolutely anybody who is offended by something uttered by somebody else to sue them willy-nilly? Or are you willing to admit that such a claim is a ridiculous oversimplification of a much more nuanced legal situation, even if you believe that the RDA is flawed?
@ Chris,
So the word “offended” is part of the judge’s ruling as to why he found against Bolt. However, “offended” is not one of the criteria I can find listed within the RDA for establishing capacity to lay a complaint as an aggrieved person, is it? Those criteria are clearly laid down as “discriminated against or vilified because of one’s race”.
Again, my knowledge is only at Law 101 level – but it was certainly my impression that the clear language of statute with respect to who does and does not have standing in a matter is far more important than a judge’s statement regarding various aspects of the matter taken into consideration while deliberating over a case. The statute is binding. Does a statement about the judge’s deliberative process really overrule statute here?
An aboriginal person gives a nice summary of the Bolt case. Publishing what a lot of people in this country think but dare not utter in public for fear of causing offense.
http://www.theaustralian.com.au/national-affairs/opinion/more-transparency-less-hypocrisy/story-e6frgd0x-1226156373200
@savvy, I don’t think whether the writer is aboriginal or not makes a difference to whether his utterances may or may not be actionable under law.
What makes a difference is whether he has written anything defamatory, discriminatory or vilifying in stating his opinions.
And heaven forbid that people base their commentary on the actual judgment or even – gasp – read it. Justice Bromberg makes it quite clear that ‘offend’ in terms of the Act should not be construed in the ‘ordinary’ broad sense of ‘offend’ but needs to have a “public dimension” and be “more serious than mere personal hurt, harm or fear”.
As I might have to stop pointing out soon, this case gives us no real guidance on “how low” the RDA sets the bar for offend because by commonly accepted standards these articles went too far. However it seems clear to me that based on this judgment people are jumping at shadows as to what might be found under the RDA in the future.
Martin B, I shouldn’t be here now, have limited time at the computer and really don’t have time to follow up the judgement. So I thank you for setting this one straight. I’ve been uneasy about what I can say and what I can’t and declined to form an opinion as to whether the law should cover the matter of offence.
If it covers what you indicate, I’d be inclined to say it should.
Other than that I’d point out that Jonathon Holmes did quote the judgement extensively and he was one expressing reservations.
An important dimension of this is that making comments in the context of journalism is substantially different from other contexts. Using one’s position as a journalist and high profile columnist has to be recognised as a position of power. Countering what a figure like Bolt said simply can’t be done by using the MSM. A court judgement under the RDA perhaps comes close.
Hmm, that came out a bit snippier than I intended, so apologies for that.
My irritation, such that it is, is directed at commentators and Holmes is a good example. Holmes whole argument, as I said back up there @254 is based on a hypothesis-contrary-to-fact. He is one of those who accepts that the actual Bolt articles were likely defamatory, but then suggests that we can imagine possible articles that would not have been defamatory but which he asserts would have fallen foul of the RDA.
Well, maybe, but without knowing exactly what these hypothetical articles might look like it is pretty hard to make any kind of evaluation as to how they would fare under the RDA. Maybe the RDA will end up being found to place a much greater restriction on speech than exists now. But then maybe the RDA will end up being found to place only a slightly greater restriction on speech than exists now, or maybe it will place no greater restriction on speech than exists now. It is simply impossible to say based on the findings in this judgment.
I have no objection to people worrying about these hypothetical situtations. But to worry about this case in that context is, as I said, jumping at shadows.
Bolt’s just a bit confused: he’s thinking of the ‘right of cheap slander’, which sadly never got up in 1689 Bill of Rights.
Bolt nails himself in an interview in The Australian:
Gummo,
I reckon you’ve quoted selectively – he was referring to the heavy yoke on his shoulders and asking others to bear it as well
For such a reasonable bloke though, he does have trouble getting his point across about cultural and racial fairness, doesn’t he? Perhaps instead of vilification and innuendo, he says exactly what he means, sticks to the facts and lays his values bare? Maybe he’s afraid that will turn folk off.
And also GummoTrotsky:
Some people (mainly on the right) object to it, or the RDA itself, but to the best of my knowledge, nobody, left or right, has questioned the validity of s18C of the act, let alone “many”.
Roger said:
That was probably what he intended, but as Brendon Nelson (and latterly Julia Gillard) have shown in their remarks about themselves*, sometimes less is more.
Free speech really does have nothing to do with the Blot. Relying on him to defend it would indeed be counter-productive, because his action serves to curtail it, and to make it appear a loathesome thing, at least to those who are careless in their analysis. Some people (e.g. over at Deltoid) have already suggested that if what Blot does is what free speech delivers, than they are against it. One contributor, Tom Curtis, relying on Bentham, had it that the notion of free speech, separated from notions of intellectual rigour and utility — a purely natural right — was nonsense on stilts.
He makes a strong point.
* I’m not going anywhere
Fran: Some of the problems with the RDA arise because it has to function in a system that allows racial discrimination for and against groups on the basis of race.
For example, the discrimination that underlies the Bolt case is the toleration of job adds that include statements like “Aboriginality is a genuine qualification”. Discrimination that means some people get jobs that pay more than anything else they would otherwise be able to get. Once you have this situation the definition of Aboriginality becomes important and it is possible for doubts to be cast on the motives of individuals claiming Aboriginality in job applications.
There is also a perception that the application of RDA depends on what race is making the complaint. The only case that I am personally aware arose when the local CWA made a formal, unsuccessful complaint when the Cancer Council decided to restrict the provision of free breast cancer screening to Aborigines and certain immigrant groups. It is a bit hard to imagine the complaint being unsuccessful if Aborigines or immigrant groups had been excluded for no good reason.
My take is that Aborigines would have been a lot better off now if there were very few special cases allowed under the RDA.
Don’t know about floodgates. Never mentioned them. Don’t know about willy-nilly either.
I only got involved in this particular spat at about the time of the mention of the Kevin Wilson song.
Litigants have standing in all sorts of matters and the RDA is no different in that regard. You cannot just be a nosy interloper. I cannot answer either question as they are far too wide. You need to be just a tad more specific.
In any event I thought that you were ignoring me.
John@ 39
Well put.
I’ve no problem as a matter of principle with positive discrimination, JohnD. The key tests for me would be:
a) Does the positive discrimination improve equity and social inclusion?
b) Are the negative consequences of such action likely to be less significant than the advantages likely to follow in a) above?
c) Is it reasonable to believe that the net benefits sought in a) above would be achieved by resort to any other program that would also meet the test in b) above?
I don’t think there is a general answer for all acts that might fit acts described as “affirmative action”. Some approaches to affirmative action would do less violence to notions of juridical equality than others, and where these are viable, I’d prefer these, but one should not make a fetish of them. In the long run, we all live in the short run, and justice delayed is justice denied. Exclusion of disadvantaged groups from legitimate benefit over generations is much too high a price for the whole human community to pay for the tidiness of ostensible juridical equality. When these two are in conflict, tidiness ought to make way.
I’ve see some distorted logic in my day and must say that John D’s is up there. So, Aborigines would be better off without the Racial discrimination Act because it causes ill will in the general community because they’re excluded from supposedly better paying jobs reserved for Aborigines. Jeez, John D, do ya reckon there also pissed off about not getting their fair share of the other special treatment that Aborigines get like say, deaths in custody and the tri-fecta. So, according to you, the RDA causes discrimination? Or perpetuates it? Would you like to argue that criminalising murder causes it? Bah.
“”"”positive discrimination,”"”"
You’ve got to be kidding!!!!
Savvy said:
The “gulag” refers merely to camps erected in the old USSR. GULAG is an acronym for the administrative body. We westerners had equivalent penal camps here and in North America, albeit that morbidity in them was far lower than in the USSR and they were not administered with the same brutality as their Soviet counterparts. They did however, imprison people arbitrarily (on the basis of ethnicity in this case), much like the Soviet counterparts.
I said:
To which Savvy responded:
And even more stridently, Paul Hennessey:
The Japanese adults interned here and in North America were not responsible in any meaningful way for what the Imperial regime was up to. The children, David Suzuki amongst them were at one further remove from the regime than even the non-resident adults. As with the interment of Italians, many of those interned were determined enemies of the regime. In the US, Japanese members of the US Communist Party and their families were interned. These people weren’t a risk to the war campaign against Japan.
I forget nothing and I do condemn racism, including against nationals of official enemy states. Orwell’s 1984 was written, in part, to describe the kinds of attitude to which you give voice above.
Fran said both,
“”"” I do condemn racism,”"”"
and
“”"”"I’ve no problem as a matter of principle with positive discrimination,(* based on race? )”"”"
Does anyone see hypocrisy in that?
* Yes or No?
Fran will love this article from Stephen Fry, though these two( on topic) paragraphs may take the shine off.
“”"”It so happened that I was in Kenya at the time of Barack Obama’s election as president. I spoke to a member of the Luo tribe, from which Obama’s father came, and asked if he was pleased that America should not only now have a black president, but one from his people. “Very pleased of course,” came the reply, “but you should consider that had Mr Obama been elected president of Kenya, he would have been our first white president.”
Our confusion, inconsistency and insanity when it comes to labelling people as black when they are half or even three-quarters white, may one day, it is to be hoped, resolve itself into sense. True identity, aside from the very personal individual qualities, the DNA and parentage that separate all humans each from the other, resides in one cultural marker above all: language.”"”"
http://www.radiotimes.com/news/2011-09-25/stephen-fry-shares-his-love-of-language-in-frys-planet-word
@Fran
” We westerners had equivalent penal camps here and in North America, albeit that morbidity in them was far lower than in the USSR and they were not administered with the same brutality as their Soviet counterparts. ”
So not equivalent at all then.
Fran – The Japanese adults interned here and in North America were not responsible in any meaningful way for what the Imperial regime was up to.
No, but the fifth column problem can be significant. It has a long history and some solutions that are much less pleasant than mere internment. I have my most sincere doubts that the internment in the States was as unpleasant as that of Jews in Poland or political dissidents in Siberia.
I’m not endorsing the solution. If it was practiced here I’d object, but I’d be very surprised if it didn’t at least have a strong advocacy. The problem rests on the possibilities of divided loyalty and the much more preternatural behaviour of human societies at war.
Attitudes to ‘the enemy’ during wartime are primal, whatever clashes of ideas exist are no longer a priority in such times.
In the US, Japanese members of the US Communist Party and their families were interned. These people weren’t a risk to the war campaign against Japan.
Adrien said:
This is irrelevant isn’t it? If your side is for the rule of a law that stands at arms’ length from the executive, if your side says it believes in human rights attaching to all human beings then it’s arrant hypocrisy to act otherwise. One may accept — as I certainly do — that times of war are corrosive of human rights in practice. Wars demonstrate serious human system failure, and it is inevitable that humans will ultimately bear the costs of the failure of our systems in worse life chances, reduced discretion and autonomy and so forth.
Yet even here we are bound to do no more than is warranted by utility and to look hard and long before sweeping aside principles as important as due process, freedom of association and so forth. There is moreover never a time to forget that we humans are bound to each other by ties far more substantial than any momentary conflict can sunder. The majority of us — the vast majority of us — have no say at all in the behaviour of those who author industrial scale conflict.
At the end of the conflict too, we will want to be able to say with good conscience that we did not hate the enemy nationals, and that we mean to join them in repairing all that was broken and ensuring that never again is the peace so grievously damaged. To be on record as saying that they were subhuman, worthy of extermination does serious harm to the whole notion of humanity as worthy.
No war, no end, no conceivable act of progress, can in my opinion, stand on such ground.
oops Mods: Please blockquote first two lines of last post …
TIA
[Done]
Adrien@402:
Jesus wept. How stupid can you be? When the United States was attacked by Japan in December 1941 Japan and the Soviet Union had a Treaty of Non-Aggression, which both scrupulously observed, right up to 9 August 1945 when the Soviet Union attacked the Japanese Manchurian Army.
Given the Soviet Union’s scrupulous adherence to its non-aggression pact with Japan and given the nature of membership in communist parties in non-soviet countries at the time, with loyalty to the communist party being paramount, how could you possibly say that “These people weren’t a risk to the war campaign against Japan.”?
Is there any depth of ignorance you won’t descend into?
@Fran
“At the end of the conflict too, we will want to be able to say with good conscience that we did not hate the enemy nationals, and that we mean to join them in repairing all that was broken and ensuring that never again is the peace so grievously damaged.”
We do if the majority of enemy nationals believe in their superiority over us and use war to attempt to achieve their dominance over us.
The emperor was almost a God to the Japanese people, he was at war with us, therefore, so too were the Japanese population.
GregM said:
Pop Quiz:
1. Operation Barbarossa — when did it start?
2. How did this affect the attitude of US Stalinists to war with Germany?
3. Who is represented in this image? When was it?
http://www.flickr.com/photos/redshift27/159877911/
Fran I was reluctant to make my comment to Adrien as I thought it might contribute to the hijacking of a thread on a very serious topic which you started with your comment @363.
I will only make the comment that when you say @401 “I forget nothing…” your posts regarding the Pacific War show that you no nothing.
I will make no more contributions on this thread which would add to your attempt to hijack it.
I will find another place to expose your bizarre ideas.
GregM said:
Ironic, at best.
The CPUSA in December 1941 was keen for the US to enter the war on the side of the USSR. The CPUSA handed over its own members for internment. Stalin disbanded the Comintern.
There was no issue of national security here.
Now we can go back to topic, assuming people think it apt.
Oh dear.
I’m trapped in the spam filter again, it seems…
terangeree, I didn’t find a comment in spam. Sorry.
This thread is just about spun out, but Martin B, you made a good point. There was very good exposition and analysis this morning on The Law Report. In a day or so there should be a transcript available.
Then my post in regard to interned ‘enemy aliens’ vanished in the æther.
The internment of innocent Japanese, Germans and Italians living in Allied nations (and the Japanese interned all Westerners — including those from Neutral nations) in WW2 was largely a product of the propaganda of the time.
terangeree @ 422 – and furthermore even the US government (Reagan!) recognised it was wrong. From wikipedia:
Brian: I listened to Andrew Dodd (amongst others) and found him deeply confused in his defense of journalistic free speech. What some journalists cannot seem to grasp is that there is no protection of free speech for liars. They’re a bit shocked, I reckon, and are wondering what they’re supposed to do if they can’t just make sh*t up anymore. All of his arguments collapse against the idea that if there are rules against bullsh*t speech then collapsing those rules also requires, for consistency, collapsing the laws of defamation.
Fran – If your side is for the rule of a law that stands at arms’ length from the executive, if your side says it believes in human rights attaching to all human beings then it’s arrant hypocrisy to act otherwise.
Indeed. And insofar as I have a ‘side’ I’d agree with you. As I said I would object but that does not mean that my views would hold sway. I would be surprised if such views would be anything but a much-berated minority position.
The defense of rights would not trump the security of the state that guarantees them. The instinctive response of society would be of hostility toward citizens who shared an ethnic heritage with the enemy. And there very well could be a rational basis for it. Imagine, for example if 5% of recent immigrants from the People’s Republic of China decided to side with old country in an all-out shitfight. What would the rational war-time response be?
I don’t like this but it is a reality. The refusal to face messy reality and rely instead on the primacy of idealistic doctrine is a mistake.
Greg M – Jesus wept. How stupid can you be?
The statement down the bottom of my comment viz the Japanese ethnic citizens of the US were not a threat etc was quoted from one of Fran’s comments (#401). I’d meant to italicize it and respond but had said enough and forgot it was there when I posted.
I, personally, have no opinion as to whether these people constituted a threat to US security.
Ergo, would you mind directing your lack of civility toward Ms Barlow.
Adrien said:
Of course, and I acknowledged so much above. When push comes to shove, one must shove just hard enough, but no more. It’s not a blank cheque.
Society is not an organism. It has no single mind and no ‘instinct’. (I’m not sure I accept ‘instinct’ in humans either but let us move on) Its members may of course become prepossessed by an existential panic great enough to cause a disastrous decline in respect for common humanity. Is that what you meant?
I feel uncomfortable when invited to declare on hypothesis-contrary-to-fact. It would nevertheless be rational as well as consonant with civilised standards to try to indentify that 5% and distinguish them from the other 95%, especially since Mandarin speakers and those with a knowledge of the culture would be of great value in such a conflict. As Federal Police acknowledge here, some people of Islamic faith have been important informants in identifying those claiming Islamic motivation whose actions posed a hazard to security in this country and to the standing of Islam.
oops {identify}
I said above Adrien that I wasn’t going to contribute again to Fran’s thread derail.
But now you have explained that you were responding to Fran’s comment @401 where you say she made the comment about whether japanese citizens posed a threat to the war campaign against Japan, having intended to to italicize it and reply to it , I accept your explanation.
Although I can find no mention of japanese internees at all in her post @401.
Still, since it seems that it is her policy to be uncivil towards the whole of the rest of the world and she seems firmly committed to passing judgment about them and making up facts about them in order to pass her judgments (see Saturday Salon 203) – except always her favourites Leni and Trotty- I am happy to take your advice, and be assured I will follow it.
Newfoundland is also having problems with defining who should be able to access the special privileges associated with being Indian.
Fran @405: I think positive discrimination should be used as a last resort, particularly if a significant number of people are going to benefit have less need for the benefit than those who are excluded from the benefit. In the context of positive discrimination in favor of Aborigines many of the schemes (such as Abstudy scholarships) should have been replaced with schemes that awarded benefits based on criteria such as poverty, living in remote communities etc. rather than race.
Even when there is a case for special treatment it would have been desirable for the provisions to have had sunset clauses and limitations on who has access to this benefit.
AKN @406: I have no problems with an RDA since I am against racial discrimination. The problem I have with the current system is that it allows racial discrimination.
I am also strongly in favour in action that helps disadvantaged people. However, this doesn’t mean that I am in favour things like the children of very well paid people getting scholarships that are not available to the children of much less affluent people because they are the wrong race.
akn @ 424, I think many of the journalists are feeling threatened by what happened to Bolt. So they should be!
Any other profession guilty of malpractice very quickly finds itself accountable.
Brian @ 432 – I think many journalists are actually worried that truth is not a defence under the RDA laws whereas would be under defamation. I suspect the journalists have been uncomfortable with the speech aspects of the RDA for a long time. As some have mentioned in the articles they’d rather have a better test case than Bolt, but fundamentally they have issues with the legislation.
John D @ 431 – I think the problematic cases of positive discrimination you talk about come about because of the way money is allocated. Eg someone is allocated a block of money (in a political sense) for aboriginal health or education and they look for ways to spend it. Which leads to programs which would normally include non aboriginal people as a significant portion of the disadvantage is not due to race but other reasons such as location.
Truth alone is not an RDA defence but I’d be surprised if truth alone is RDA-liable. Count me in on the protesting if the courts ever rule that truth alone is offensive, insulting or humiliating to a reasonable person.
The more pertinent issue is offensive, insulting or humiliating commentary on true facts. If this commentary is made in good faith it has an 18D defence. If not, it is getting close to defamation territory in any case. The grey area is not large, and there is a lesser sanction for matters falling within it.
I am not persuaded that the danger to difficult discourse is significant.
Martin B – I believe that 18D requires both that it be in good faith AND reasonable as determined by the court, which defamation does not require. If I understand the Holmes article correctly this is what he is concerned about.
And I can see how truth alone could well be humiliating to a group of people. Which then leaves journalists having to fallback on the reasonable test. Which may be ok in the current political climate – but laws need to be designed for unstable and controversial times.
Bolt dispenses with truth in order to server Higher Truth.
His Higher Truth is the protection of society from Left/Green dictatorship.
Towards that goal any and all propaganist techniques are permissible including the publication of deliberate untruths. This lesson Bolt learnt while an employee of Graham Richardson.
Because TEH LEFT wages its wars through ideas, the minds of Australians must be fortified with correct (Bolt-derived, Right-derived) ideas in order that they may reject the evil Leftist propaganda. Since TEH Left are evil they do not deserve the courtesies of fair play, respect or truthul interaction. Thus lies are permissible in the defence of Higher Truth.
Bolt therefore poisons the minds of Australians in order to save and protect their minds.
http://indifferencegivesyouafright.wordpress.com/2011/10/02/understanding-andrew-bolt/
Anyone read Bolt in the Daily Telegraph today?
http://blogs.news.com.au/dailytelegraph/andrewbolt/index.php/dailytelegraph/comments/column_how_i_became_a_monster/
I’d say he’s going to win this one in the court of public opinion.
How long before he and News ask the plantiffs to apologise to them? Because they’ll never get an apology out of him.
Not even the judge was going to order an apology because there was no point having an apology published that the people apologising didn’t actually believe.
tssk, I just don’t understand why anyone would waste their time reading that chronic bore. Haven’t you got better things to do, like watch your fingernails grow?
I’d recommend listening to Fred Smith as an antidote: http://www.youtube.com/watch?v=flBE28VTKJA
So what penalty was actually doled out to Andrew Bolt?
That’s an easy one, tssk, and the judgement shows that Chris is wrong @ 437. If no apology is forthcoming, one could be ordered.
Chris: I think that the reasons for doing things for Aborigines outside of the framework used for the rest of the population were diverse. In many cases the differences were driven by ideology and “white people’s dreaming” without the implications being fully understood. In some cases what was done was based on a perception of how traditional society operated without allowing that future generations may want something more than being locked into traditional culture.
Land rights is a good example. At the time I thought it was a good idea to include ownership of minerals and didn’t question the collective ownership. However, these decisions have had unfortunate implications. Because of the mineral rights issue the whole program was held up and restricted by mining industry campaigns. 100% collective ownership hasn’t helped Aboriginal entrepreneurs or individuals who see their future somewhere other than their traditional lands.
It looks like Bolt and News have decided to fight it in the pages instead. By the time they get to their ‘apology’ the message will be out there.
As for me, I’ll be avoiding their publications, only looked today as I was at the doctors.
dear tssk
best thing, i reckon, at a doctor’s waiting room, is a glance over the complimentary murdoch rag. however low & sick you may feel, it gently reminds there’s always something lower & sicker than you.
yours sincerely
alfred venison
asian adrian @ 440 – I’d read that. My understanding is that a corrective notice is *not* an apology. They will just need to publish the findings by the court.
Look at the analysis on at http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/
@Tssk
“As for me, I’ll be avoiding their publications..”
Wow you managed that on your own without Govt intervention?
Imagine that eh?
Freewill at work.
The last time I was I was in any proximity to any Limited News publication it was a mere four by four square nailed to the frame of an outback dunny. Not bad, but the cheap ink disappointed.
OK, fair enough Chris, that’s correct – my apologies.
It pays to read the entire judgement!
dear savvy
that people successfully avoid buying murdoch rags, sometimes for years on end, has nothing to do with “gov’t intervention” & everything to do with “the market”. der!
yours sincerely
alfred venison
@Venison
“that people successfully avoid buying murdoch rags, sometimes for years on end, has nothing to do with “gov’t intervention” & everything to do with “the market”.
Thanks for pointing out that we do not need govt. intervention or inquiry to limit the scope and percentage of News Ltd papers in the Australian market.
Peoples free will seems to be working.
Chris at 444, so in the end this “blow” to “free speech” involves a judgment in which the judge explicitly refuses to ban speech he knows to be wrong because of concerns “about the impact on freedom of speech,” no monetary damages, and no forced apology.
So the entire damage to “free speech” from this supposedly so appalling ruling is that … Bolt has to issue a correction?
Talk about making a mountain out of a molehill!
sg @ 450 – I had a quick look and couldn’t find out what the penalties could be. But if this is indicative of what they would be then given the costs of lawyers and court costs it hardly seems worthwhile having the legislation at all.
Wouldn’t it be much cheaper to instead have a publicly run tribunal (or reuse an existing one like the press council) that can much more cheaply and quickly make decisions and force either corrections or equal time for the complainants?
Chris we already have an industry run body that does self regulation.
I feel sorry for the plantiffs though. I think they’ve come out of this even worse now after the past week. And as much as I don’t take much notice of Bolt I do remember one of the columns in question and I did think at the time that it was completely bogus that some of these people got positions that were reserved for indigenous citizens.
Thanks to the judgement I now know there were inconsistancies in the story. Not being a judge I’ll be kind and say that obviously mistakes must have been made during the research phase.
But I reckon the typical Herald reader having read the initial columns and the responses this week would have come to the conclusion that the named parties were not only still guilty of some sort of impropriety but now also engaged in some sort of cover up gagging freedom of speech.
After all, there was a court case. If they were in the wrong wouldn’t there have been an apology by now?
Unless I’m mistaken. Has News Ltd printed out the judgement? Have they allowed the plantiffs right of reply?
In short did the plantiffs actually win and did Bolt actually lose?
Anyone lamenting over Andrew Bolt’s lost free speech though should stop grieving. He can still say what he wants.
Greg M – Sorry #408.
Fran – It’s not a blank cheque.
No it’s a problem with a solution to which you stand opposed but for which you have no alternative except to dent the problem.
Is that what you meant?
Well possibly. I believe it sheer arrogance to consider humans devoid of instinct. Pretending nature doesn’t exist for political purposes is fatally in error according to my view. But our default setting won’t change.
I believe in the case of my hypothetical or something similar there would be immense pressure to intern those sharing ethnicity with the enemy to be incarcerated. I won’t labour the point that this will be surfeit of human instinct and realpolitik.
Well, Bolt or the Herald-Sun *possibly* has to issue a correction. Poor petals.
As to a Tribunal or revamped Press Council (ha ha) you can imagine how seriously the wonderful folk at Limited News would take whatever judgement is handed down.
Fran (cont) – I feel uncomfortable when invited to declare on hypothesis-contrary-to-fact.
I’m sorry if you feel uncomfortable but the hypothetical is simply inviting to use your imagination. If we were at war with a powerful country which had contributed significantly to our migrant intake what would happen? I suggest that internship would be something the government would at the very least consider and there would be powerful support for it.
The hypothetical, btw, is not absurd:
- Michael Schiffer, DAS of Defense for East Asia, USDOD
(That’s DiploBot speak for ‘They’s gittin’ uppity an agunnin’ fer a fight’.
It would nevertheless be rational as well as consonant with civilised standards to try to indentify that 5% and distinguish them from the other 95%, especially since Mandarin speakers and those with a knowledge of the culture would be of great value in such a conflict.
Indeed. But in a total war situation which is what I’m contemplating, the government wouldn’t have the luxury to be civilized. And considering the problem had not been considered by those concerned with the inhumanity of incarceration the old solutions would be deployed. The only objection would be founded on the notion that there was no threat, that human rights trump all and we just don’t like it.
Adrien @ 457 said
It could also backfire in a big way. By automatically imprisoning everyone of a certain race you may end up turning a whole lot of your population that would have supported you against you. And what are you going to do with mixed race people (weekend detention?
or families where there have been interracial marriages?
Well, at least the Judge had the decency to let Bolt know what the offending comments were, giving him the chance to address them.
Adrien, in a total war situation with China we’re fucked. Intern whoever you like, be as vicious as you like, you’re still gonna die.
By automatically imprisoning everyone of a certain race you may end up turning a whole lot of your population that would have supported you against you.
History doesn’t agree with you.
And what are you going to do with mixed race people (weekend detention?
or families where there have been interracial marriages?
I’m not going to do anything because I wouldn’t advocate that policy.
Adrien, in a total war situation with China we’re fucked.
A realistic scenario involving such would also involve out allies. We wouldn’t necessarily be fucked but we probably would be on the front line.
Anyway I should quit, way off-topic; apologies.
Since this topic has been raised, I thought I’d mention that the nature of propaganda in the Pacific war was very different to that in the other theatre, and it isn’t the case that the propaganda used was just what we might expect given we were at war (per savvy). If you have any doubt about just how obscene, genocidal and vicious western propaganda was towards the Japanese, you can try reading War Without Mercy, which also makes clear that the atrocities in the Pacific weren’t exactly a one-sided affair and that allied soldiers were just as brutal as their enemies: Australian soldiers, for example, threw Japanese POWs out of aircraft.
I’ve done a series of posts on my blog about this book and about the implications for our understanding of key issues in the war. I haven’t touched on internment directly but the book covers it, and the idea of Japanese as racially shifty and untrustworthy was an important underpinning of the policy. I aim soon to cover the implications for our modern understanding of the bombing campaign in the Pacific.
In short, most of us have an understanding of the allies as pure fighters driven to extreme measures by a brutal, callous and unrelenting enemy. It’s nowhere near that simple, and a lot of the extreme measures were driven by our own racist conception of Asia.
in that last comment, War Without Mercy and racially were supposed to be in italics, but this barbaric system LP is using prevents me from using proper html.
Back on topic there’s a great piece at Crikey http://www.crikey.com.au/2011/10/05/after-a-phenomenal-peak-is-andrew-bolt-in-decline/
I loved this quote from David Penberthy
Adrien said:
That might be a fabulous objection, but for making little sense in context.
Well that clears that up. We can’t believe things that would have others think us arrogant. It’s bolstered by the stunning claim that pretending something to be so for political purposes is seriously wrong. Should one attempt to argue either of the foundational statements? Nah … waste of time. Just have a spray. It’s the vibe. Elevate it to “society” while you’re about it.
FTR, I’ve no problem hypothesising about an armed conflict with some other power. My question is how do you know how many of the enemy nationals are a security risk, and how do you select them for internment? Presumably you just throw them all into chokey?
sg:
Recall the statements by the British about the Japanese in the lead up to the fall of Singapore in 1942. Not only egregiously offensive, but embarrassingly wrong when the said “subhumans” forced their surrender.
dear sg
i’ve had a squiz of your stuff on ww2 propaganda a while back & i look forward to your forthcoming review of john dower’s take on japanese internment.
david suzuki was six when his family was interned in british columbia, early in 1942. they were later removed to ontario. he talks about the experience here (there’s other stuff, too):-
http://archives.cbc.ca/war_conflict/second_world_war/topics/568-2918/
at the war’s beginning, about half the bc fishing fleet was owned by japanese canadians. this was taken from them & sold without compensation. after the war they were officially encouraged to move to japan or east of the rockies. this was stopped in 1947. in 1949 they were again allowed freedom of movement & to return to the west coast.
an account of their campaign for recognition & an official apology is here:-
http://www.crr.ca/divers-files/en/pub/faSh/ePubFaShRacRedJap.pdf
yours sincerely
alfred venison
Fran, I also have a post on some of the self-evidently crazy ideas about the Japanese and what that tells us about propaganda construction and the role of social scientists in telling us about ourselves and the other. Allied idiocy before the fall of Singapore is a classic example of this.
thank you, alfred! I’m not sure if I’ll be talking about internment specifically though…
@Sg
“atrocities in the Pacific weren’t exactly a one-sided affair and that allied soldiers were just as brutal as their enemies: Australian soldiers, for example, threw Japanese POWs out of aircraft.”
The difference is that one side, Japan, conducted its war crimes that were ordered from the top.
If you really think the Allies are comparable to the Japanese regarding treatment during the war years then you must be deluded in my opinion.
not true, savvy. Go read the book. My point is, you don’t understand what was happening at that time if you believe these simple ideas about the war. Colonels and generals in the west were ordering these atrocities, and politicians were bragging about them. Churchill talked about reducing Tokyo to ash; politicians in America boasted that Japanese was a language that would “Only be spoken in hell.” The largest bombing raid on Tokyo of the war occurred on the 14th August, 1945: some bombers hadn’t landed when peace was declared. How do you think that came about, by accident?
You need to review your opinions.
I haven’t been keeping up with everything on this thread, but now find that there are tens of comments completely off-topic. Can we drop internment, WW2 etc and get back to Bolt please?
I suspect Brian, that the thread has wandered off-topic because pretty much everything most here want to say on the Blot matter has now been uttered.
dear Brian
it’s the biological classification of people that’s tangentially common to the thread and the straying from the thread.
yours respectfully
alfred venison
And just to prove that there really is something else that can say on the the Blot …
I have great respect for those who have the skills and attitudes needed to work with putrescible waste in a ‘hands-on’ role. These people do an essential job, and while I don’t know what they are paid, IMO, they deserve better pay than I get, because I can’t imagine anyone could pay me enough to make doing what they do something I’d endure.
I regard those who make it their business to go into the badlands of Murdochistan and work with an electric eel to winkel out the bons mots of the Blot in a similar light. I couldn’t do it on a regular basis without feeling perpetually grossed out. It seems Ann Summers is such a person however.
Reaching back almost exactly 9 years in time to October 7 2002, she retrieved
this little narcissisticly entitled gem: Labor spellbound By Andrew Bolt
from one of Murdochistan’s Blotpools:
Some context is needed here. The article itself was written at the time as a response to the ALP increasing quotas of female candidates in winnable seats.
Blot then goes on to do the usual misogynist schtick, which those amongst LP who feel relaxed about tainting their day with this sort of stuff can by following the link. In an interesting way, it rather anticipated the subject matterof this thread. Then, as now, Blot was objecting to the idea of inclusion, and trolling that attempts at overcoming exclusion would inevitably prevent the more deserving from coming to benefit. By contrast with his remarks on Aboriginal identity, he didn’t suggest that the beneficiaries of the Emily’s List 40% proposal wouldn’t be sufficiently female but almost the opposite — that they would in his view be typically female — i.e. given to irrational belief. Really, like Abbott of 1979, leave the men to the metaphoric ditch digging and the women to their housekeeping.
What’s also interesting, is that, as those who follow my link will discover, the 2002 article was reduxed by the Blot in 2009, as part of a piece reiterating the point about female unreason.
By 2009, the subject of action on climate change was for the Blot, the sum of all craziness, and so the “million women” campaign became yet more evidence that women were loopier than men. Polls purporting to show that that men were less interested in acting on the matter was “further evidence” of his earlier insight and of course further evidence, of course, that the great global warming scare is fundamentally irrational. If you’re a man, and especially the Blot, you are allowed to argue in a circle. Just as well he isn’t female, because that would be further evidence of … hang on … never mind.
Back in 1979 or so, Abbott was warning of a plot by leftwing academics to lower academic standards, debauch public morals and have women forget their place in the kitchen, and 30 years later, Blot thinks it’s about New Agers and witchcraft and loopy but uppity women oh … and Aborigines who aren’t black enough for his liking.
.
oops Mods: close ital after {Labor Spellbound by Andrew Bolt}.
TIA
[Done]
Just a short PS to my post @473 above..
In the spirit of exploring how what Blot writes “unites us” I donned a metaphoric pair of impermeable waders and trudged through the resultant comments thread to the bitter end.
The result was one long series in which every misogynist within cooee gathered to redux their own heady blend of hatred of sexist slander and hatred of science. It wasn’t until midway down page 2 of the 3 pages of comments that someone sounded a dischordant note — it might have been our regular here {Jules} — but him aside, no sexist trope was left unuttered and professing females lined up to affirm Blot’s point that women really were more irrational than men. This must have got boring, even for the Blotsters after a while, because just for variety some began conceding that the AGW “scam” was invented by men.
Perhaps the most bizarre feature of the thread was the pervasive victimology that is de rigeur on Blotisttan. At least half a dozen contributors (I assume for the sake of argument that they weren’t simply Blot-authored sockpuppets) praised Blot as “crazy brave” for his calling out of women as irrational and by and large unfit for mens business. Surely now, they all suggested or implied, “hatefilled irrational” responses would rain down upon this intrepid teller of unpalatable truth.
In three pages of posts, there was not one such response, and “Jules” aside, nobody even politely arguing the toss. Blot’s page, at face value, “united” all those who regard women as a group as unfit for high office, and as having doubtful claims over even the household budget.
@Sg
“not true, savvy”
It is true.
Many of the war crimes commited by Japan were ordered from the very top.
It was official policy.
“Churchill talked about reducing Tokyo to ash”
As part of military strategy, we were still at war remember.
“politicians in America boasted that Japanese was a language that would “Only be spoken in hell.”
WHich tortured and killed how many Japanese POW’s?
This is the same as Japanese policy to kill and torture allied POW’s and occupied territory civilians?
“Colonels and generals in the west were ordering these atrocities…”
Which atrocities are you talking about? Where can we see the official orders handed down through allied command?
The Allies were faced with total destruction by the Japanese and to 65 years later judge them and compare them to the Japanese over such things as saying nasty things about the Japanese enemy is shameful.
There a comment by Giles Anthrax @ 436 which may have been missed because it started life in the spam bin. I think it might be the moniker.
It’s a theory of what makes Bolt tick as a truth crusader who deliberately uses lies in a higher cause. It also traces elements of his personality to events in his childhood.
I think these theories are speculative and don’t see how they can be proven. Still it’s a different view.
Thanks for the heads up on the Giles Anthrax article Brian. It was worth a read (a few typos notwithstanding) and I’ve tweeted the link.
dear Brian
speculative or not, speaking out about bolt’s mendacious lies & baleful influence is something i, for one, feel more free to indulge in since the judgement was made. honest to gord, seems like everyone’s talking about subject bolt now. even journalists.
and no one is making more heat than light debating the size or appropriateness of the damages award that wasn’t awarded. again, I salute the wisdom & foresight of the plaintiff’s on that one. one for the future.
the absence of an apology (so far) speaks volumes in itself.
yours sincerely
alfred venison
Sorry, this is coming in a bit late, and maybe the thread has finally petered out. But I did want to make a comment to Chris@435
I’m sorry, but I just don’t buy it. My (completely amateur) legal intuition is that this simply will not happen. I think – almost by definition – a judge will regard a reasonable person as being someone who is not offended by facts.
I certainly would like anyone who suggests otherwise to spell out an example of what they mean. I will give an example. Suppose research was done that showed that people identified with a certain race scored substantially lower on a particular IQ test. Naturally such research would immediately attract suspicion and criticism on methodological grounds. Even so, reporting the bare facts of the research and criticism would very likely be ‘humiliating’ in the day-to-day usage of the term to some people identified with that race. However my strong suspicion is that accurate reportage – of facts alone – would never be considered ‘humiliating’ in the sense required under the RDA as construed in this judgment.
Martin B, I agree with your assessment, and there is a real-world case of your example. I understand the Americans of African origin score lower than the American average on IQ tests. I read an article just this week that made mention of this phenomenon.
It raises issues about what IQ tests measure and cultural bias in their content as well as whether the causes might be cultural and socio-eceonomic – legitimate subjects of rational debate. But people do take offence at the findings. There is also an issue as to the “facts’ and how the “facts’ are used.
dear Brain
“raises issues about what IQ tests measure”.
I’m with stephen jay gould on this one (“the mismeasure of man”). iq tests are totally worthless & utterly bogus. they measure nothing real about intelligence while causing actual harm. they should be discontinued.
yours sincerely
alfred venison
Brian: It would be statistically amazing if two groups had the same average IQ, no matter how you measure it.
The crucial thing is that for any important measure, the best from either group will always be better than the worst both groups. It is only if you insist on measuring worth in terms of things like “blackness” that what I said may not be true.
IQ tests should be treated with caution, particularly if they are being used to measure the relative worth of different cultures and species. If nothing else, they can be useful at identifying kids who are working well below their potential. (But might be damaging when used to decide someone should just miss out from going to a course that might have stretched them.)
alfred, John, as it happens the first guest post ever on what was then Mark’s blog was one by me on IQ and intelligence.
I wouldn’t go as far as you, alfred, but I do think IQ tests should be used with care, if at all. I was advised back then that they are seldom used by educational specialists intervening on learning issues.
The difference between African and Caucasian Americans was as large as 15 points, but definitely not attributable to genetic differences. More a matter of social/cultural opportunities and experiences.
Anyway this is definitely not on topic.
dear Brian
OK, fair enough. you seem like a nice guy so keep your scruples dry & be careful when handling this stuff, eh.
you guys aren’t referring to jensen are you? i read jensen when he was news and i wasn’t impressed. i’m an arts hole but, younger then, i read stuff like that for breakfast. and stephen rose, gould & lewontin. i remain wary of this stuff, this “quotient”, especially in application by people less careful than yourself. and i’m talking julia gillard & kristina kenneally.
but back on topic, where’s the australian jensen? plenty of windshuttle & bolt types here, contesting the historical record, denying past atrocities, minimising present consequences. but why is the “iq” of aboriginal australian’s not also worked into this assault? why is our jensen a bishop with dubious motives & not a psychologist with dubious motives? or is this “iq”/”race” obsession a peculiarly american thing, with “iq” rationalisations soothing a sub-conscious dread of being out-classed by descendants of the former slaves? something without a working correlate here?
yours sincerely
alfred venison
Alfred Venison speaks too modestly about Stephen Jay Gould whose “Mismeasure of Man” was such a total demolition job on IQ and the misuses of science that many true (science) believers cannot bring themselves to engage with the content (ie, read it) for fear of losing their entire world view. Anyone who has any faith in IQ testing is suspected of a failure of nerve in failing to read Gould.
alfred, as I said in the earlier post “IQ is a conceptual construct, not itself well-bounded, and insufficient to reflect the full range of human ability.” Measuring it comes down to a single number, which by some views reflects human worth.
Similarly in the Bolt case racial identity comes down to a single factor – colour – in the Bolt view of the world.
a judge will regard a reasonable person as being someone who is not offended by facts.
But everyone is offended by some fact or other, including the judge!
Brian: The core of what Bolt did wrong was his attempt to use “whiteness” to decide whether someone should be allowed to hold a position in an Aboriginal organization. It is a common pattern for putting people down. You set up a criteria that is of doubtful relevance and then either make a judgement or set up a questionable test criteria that just happens to give you the result you want.
The end result may be that someone is excluded/included who shouldn’t be or the the discussion is taken over by arguments about “whiteness” when there really is a need for a serious discussion about the suitability of someone.
dear Brian
i suspect we’re on congruent trajectories here, particularly in specifying the limitations, and cautioning on the misuse of this measurement. i look forward to reading your olde post in due course, too.
yours sincerely
alfred venison
I dont want to disturb the peace here but since I’ve been following it I’d amplify John’s last comment with comment in parts that there was a nasty double jeopardy full of Bolt’s arrogance, as to the racial insult and to by implication, peripherally to the left.
You are either a white person pretending to supp at the trough of the welfare state, or you are someone wants to be white, which seems offensive, although I won’t turn this facet into a strawman from here.
From here you are also a black person displaying an unhappy resort to special pleading, to be numbered amongst whites (at its worst), has been mentioned widely as the implication, though.
This is a literate site, you all know the people who sued Bolt were smart cookies and leaders of good “wherewithall” within an indigenous culture fragmented by two hundred evil years for these people, trying to win back concessions for them in the wake of Mabo and Wik.
So they were “discredited”, the first time with the unlovely Clarke, now with the repressive tolerant trick of hiding behind freedom of speech, to induce an underlying sense of loathing toward people who have actually “kicked against the wind” to end up substantial people and new leaders; good Australians by any measure.
Better still, it’s also offered a blatant taunt to others interested in seeing justice done, if only to give of a precedent for the saving of their own, as Bolt rested complacently, basking in the glow of the Murdoch empire, like his tawdry mate, the odious poison dwarf.
People are better acquainted with the modus operandi of Murdochist msm these days and looked harder, saw the conscious malice inherent in the construction of a desperate clawing back project, in a spirit of some consensus and raised the issue. Ultimately, the learned judge confirmed the judgement of many and confirmed a deep disappointing pattern that has developed within toxic elements of msm.
dear akn
thank you for your kind words and more importantly for your resounding endorsement of sj gould’s “mismeasure of man”. i’m glad someone else has read it.
i encountered gould at uni when i was studying (among other things tangentially relevant to music & nationalism) 19th century “race science”, reading a syllabus including humbolt, jg herder (who i still love), robert knox, madison grant, arthur gobineau, karl vogt, richard wagner, and others, up to t.h. huxley on “the races of the british isles” (he was sane). miscegenation, polygenesis, monogenesis, f. max muller on aryan languages, the whole thing. ah, those were the days, reading “race science” in leather bound antiquarian volumes from the darker recesses of the library.
gould’s book impressed for its methodology. for example, not only did he read everything these people, like samuel morton of cranial capacity fame, wrote, but he also gained access to the museum morton worked at, to his lab, his notebooks and, even, the very skulls & buckshot he filled them with to get his results. this is very impressive science history, to my mind. i re-read the book about then years ago & it still seems a devastating critique.
yours sincerely
alfred venison
I have one distant indigenous ancestor – four generations ago. It would be downright risible for me to identify as an Aborigine – but apparently perfectly in order for me to do so. And potentially lucrative. And for anyone who questioned my Aboriginalness bona fides, were I to choose to take up some Aboriginal financial privilege? They’d be vilifying me according to the law. What the? I’m none too keen on Bolt’s attitude and personality but, frankly, I hope there will be an appeal against this nonsense court decision.
AT: you know not of what you speak. Certified Aboriginality is a process involving recognition by community amongst other things. It is not merely a case of presenting and getting a rubber stamp.
Alfred Venison, was Aldous Huxley to your knowledge in any way a eugenicist?
That’s simply wrong all over the place AT. Being Aboriginal is not “lucrative”. Someone questioning the status of your claim is not ipso facto, vilifying. Falsely implying that you are perpetrating a fraud based on your identity would be. On your account, it would be fair comment so no harm and no foul.
You would be asked for more than your say so. You’d be asked to identify the community of which you claimed to be a part. That community would have to recognise you. That might take some time, based on your self-description.
Disputes over who is aboriginal are not new. See this link on what happened in Tasmania in the late 90s where one group of people identifying as aboriginal claimed that many others in Tasmania claiming aboriginality were in fact white. It appears that it was essentially over political power – who got to vote in ATSIC elections and subsequent control over funding.
http://www.aph.gov.au/library/pubs/cib/2002-03/03cib10.htm#crisis
There were court cases, but in the end everyone who said they identified as aboriginal were allowed to stay on the electoral roll even though a significant proportion of other people claiming aboriginality claimed they were not aboriginal.
dear Joseph.Carey
seriously, though, a childhood illness which left him blind for two years interrupted his education. he did not resume the path to a medical career which seemed his destiny, instead he became a man of letters. but having been raised in the same home milieu as his brother, julian, who was a prominent eugenicist, aldous acquired a good background in biology & the issues around eugenics. the dystopian novel “brave new world” is huxley’s cautionary tale about the dangers of eugenics.
my understanding is that aldous huxley did not actively promote eugenics, but rather music, mysticism & good lsd.
not all eugenic proposals at the turn of the 19th century & into the 20th involved, for example, sterilization of undesirable populations. it really depended a lot on the personality & politics of the advocate. whilst winston churchill (amongst many others it must be said) famously advocated sterilization of undesirable elements of the population to enhance the national gene pool, others, like h.g. wells, advocated a “positive eugenics” which promoted measures more like financial incentives (e.g. baby bonuses) directed at the middle class to encourage them to outbreed the working class & thereby enhance the quality of the national gene pool over time.
i don’t think andrew bolt actively advocates eugenics, either, but it seems to me his concept of “race” (with the attendant notion of the attenuation of “racial authenticity” over time) is within the eugenics paradigm. and barrister merkel was quite right, in my opinion, to emphasise this in the trial & thus get it on the record – his erudition & strategic acumen in doing so are cause, personally, for grateful celebration. bolt’s notions about the biology of human populations appear “clunky” & decidedly old fashioned – they are the baggy-pants notions of our grandparents day.
if you are interested, there is a good history of the eugenics movement by historian of science daniel j. kevles called “in the name of eugenics: genetics and the uses of human heredity”. its become a standard text on the topic in the usa & is available at google books here if you like to read that way, or at amazon here. anarchist george woodcock’s biographical study of aldous huxley is reprinted by black rose books & may be available locally or here at amazon.
yours sincerely
alfred venison
Fran: The extent to which being recognized as “Aboriginal” is lucrative is often exaggerated. However there are potential benefits that come with this recognition including access to scholarships and Aboriginal legal aid, a share of royalties, access to jobs that give preference to Aborigines etc.
Part of the resentment arises because the people who need the help least are the ones with the education and skills to take advantages of the benefits.
Having said this I found it easy to shut up whites who were complaining about the special benefits by asking whether they wanted to swap lives.
alfred venison @ 498, there were two versions of your comment in the spam bucket. I’ve approved the second, being the longest.
dear Brian
thank you. i thought i had had a glitch at my end, inadvertently double posted (with edit) & realized afterwards about the links. i emailed vodkaandlime, but you fixed it as i asked – serendipity. thanks again.
yours sincerely
alfred venison
Dear Alfred Venison
Thank you very much for your considered and informative reply to my question.
dear Joseph.Carey
you’re very welcome, it was a pleasure. and, while here now on this, i’d like to take the opportunity to thank our hosts for providing “a clean well-lighted place” for us all to gather, singly or in number, to ask & answer and generally sound off.
yours sincerely
alfred venison
Fran Barlow it can actually be quite lucrative. In the urban context there are indigenous employment units set up in government departments, fast-track mentoring programs, scholarships, extra study allowance, housing mortgage subsidies, and opportunities to consult on cross-cultural issues and training programs, to name but a few. All a good thing – for people who need them. I think though that the government should take considerations of race out of such subsidies and opportunities and offer them on the basis of actual disadvantage. The “Forgotten Generation” are a case in point, children stolen from their British parents and abused. Those neglected and emotionally stunted people are at least as disadvantaged in the workplace as Aborigines, and the federal government should have stumped up more than just an apology but actual programs to address the disadvantage. I can think of many acquaintances of mine from poor rural backgrounds who are far worse off than many Aborigines. The whole broad issue needs to be unpacked and fresh evidence-based policy developed.
There are some difficulties with AT @ 504:
Pauline Hanson (former federal politician from the 1996 election) said much the same thing.
Response: A barrage of public haranguing against her, pointing out that Indigenous/Aboriginals/First Australians (take your pick) did not get low interest loans & other financial subsidies & etc etc.
Who is correct? AT & Pauline Hanson, or those who at the time pilloried the then member for Oxley?
From their own perspective, the trauma may have been qualitatively and quantitively similar to that of the Stolen Generation, but were they readily identifyable and routinely excluded from employment on the basis of that identification?
No, they weren’t.
You need fresh evidence to tell you that Aboriginal people are over-represented in unemployment stats? Substance abuse stats? Domestic violence and child neglect stats? Incarceration stats?
Mate, just go with the evidence base we’ve already got. It’s pretty frickin’ robust.
AT
1. Really, the “lucre” involved in being indigenous is in practice very modest — too modest to warrant the term “lucrative”. Objections to these benefits strike me as at best naive and tabloid, and more likely, mere disingenuity. It’s easy to complain that prisons are holiday camps because the prisoners have a rec room, or that refugees in admin detention are attracted by free smokes and phone calls, and free flights to their relatives’ funerals or as in this case, that indigenous people get mentoring and Abstudy but nobody who is not similarly disadvantaged and not getting the support has IMO, any business complaining about it. If there are such people, I’m all for them getting such state support as they need to have the life chances of Aborigines.
That’s something one does not hear the objectors normally say. Few like being seen as racist or lacking in compassion, but adducing someone who is said to be worse off, doing it tough and missing out offers almost but not quite plausible cover. If these people were getting assistance, they’d be complaing that we’d become a welfare state and that these folk had made poor life chances and speak of moral hazard and encouraging layabouts … “of course, I’m not talking about people who have just been unlucky” they’d say. Often these are the same folk favouring corporate welfare. Hmmm
2. I’m not against mainstreaming some welfare benefits going to Aborgines. Since poverty is settled disproportionately on indigenous people, anything that helps the poor is going to help them too. On the other hand, there are situations in which more targeted assistance is needed, and if the attempt to mainstream simply made it harder to give assistance to those who needed it, or increased the administrative cost per dollar of benefit, then this would be a very poor result. Equally, if the repackaging of social support sent the message that indigenous folk didn’t require special assistance, despite the history attending recent European-indigenous interaction, then this would be a dreadful outcome.
@Fran
” refugees in admin detention are attracted by free smokes and phone calls, …but nobody who is not similarly disadvantaged and not getting the support has IMO, any business complaining about it. ”
Could you clear a few things up for me Fran?
First, do you support the free smokes to refugees in detention?
Second, unless one is as disadvantaged or in a similar situation to refugees in detention, one must not voice an opinion on such matters?
Alfred Venison @ 492 (and akn)
Gould’s criticisms of Morton have recently been challenged in a paper published in PLoS Biology , so it seems there’s still life in an old controversy. I must say I’m surprised at the claims that Gould committed methodological errors himself: I’ve yet to give the paper a careful read so I don’t yet have an opinion on whether this latest round of claims is well-supported.
John D @ 499: mate, I don’t know what sort of honkey, gated community you live in but, in Redfern, no-one, absolutely no-effin’-one, derives any special benefit out of bein’ a blackfella. The same applies to every country town up and down NSW from Moree to Walgett, White Cliffs to Bree, Nowra to Dubbo and so on. Every now and then a ‘coffee’ or a ‘creamy’ earns success and they are never, never, subject to criticism from blackfellas for not bein’ dark enough. Several of my mates are white blackfellas and they are totally accepted by their respective communities as blackfellas because they copped exactly the same ration of special treatment from the state – from the dept of education, the coppers, thew welfare and all as anyone else.
AT @504 says:
Yeah, right. Notwithstanding your own background, non-identification ought to disqualify any decent and reasonable person from sitting in judgement on who amongst Aborigines needs what. See, it still all about eugenics and whitefellas deciding who is and who is not Aboriginal. If the local Land Council says they are, that’s it. Otherwise you’re in the absurd, no, ridiculous, position of claiming authority to decide who is and who isn’t authentically ethnically identified.
Try that on with Greeks of mixed heritage. No, you can sanctimoniously say, you’re not a Greek Aussie, or a Vaussie, or a Chaussie, because you aren’t biologically enough of a Greek, Vietnamese or Chinese.
Go ahead and say it to someone one day cause you’re gonna look funny eatin’ corn on the cob without no f*ckin teeth.
Savvy asked:
I don’t support administrative detention, so no. If I had my way, they’d be in the community and what they did with the money available to them would be a matter for them. If they were temporarily in detention to verify health and security status, I’d give those who needed it nicotine patches.
One must not pretend they are getting a good deal at your, or another’s expense or that this is some kind of pull factor.
Not helpful of one of Bolt’s litigants, Geoff Clarke, to apparently have told the authorities to f off and that the (mal) “administration” of his little fiefdom in Warrnambool is “blackfella business” and should not be audited by the mainstream community…
So what AT? Boss class whitefellas tell the law, the ACCC and all other sorts of other authorities to eff off all of the time. No-one claims that this reflects on their ethnic identity.
Besides which…”mainstream”…dead giveaway. Are you Pauline?
Akn @510: Haven’t lived in Redfern but googling “Aboriginal services Redfern NSW came up with links to Redfern Aboriginal services that included housing, legal, medical, unemloyment and children’s services so it seems unlikely that “no-one, absolutely….. no-one, derives any special benefit out of bein’ a blackfella” in Redfern. I have no idea how valuable these services really are to people in Redfern. I do understand that few people in Redfern would benefit from things like land rights so they would cop the resentment from the Pauline Hanson’s of the world without getting the benefits.
Most of my experience with Aborigines comes from years of living in remote communities and having a lot to do with Aborigines while I was there. The comments @499 were based on this.
FDB @506: You say:
Three things here:
1. There are non-Aboriginal families and individuals who are over-represented in all these categories.
2. The fact that a group is over-represented in stats like these does not mean that every-one in the group should get special benefits.
3. While I think that race based policies should only be used as a last resort, I am not saying that culture should not be considered when trying to work out how to deal with some of the above issues.
JohnD said in part:
Nor should you be saying that culture is limited to addressing the perspectives of those within the community targeted for relief from marginalisation. Assistance and support must take account, not merely of patterns of adaptation and response in marginalised communities but also in privileged communities interacting with them.
Well John D I don’t know what you were doing in remote communities but it wasn’t paying attention. When you say to Fran that there are “non-Aboriginal families and individuals who are over-represented in all these categories”, those categories being ones of ‘social disadvantage’ (putting it politely) you imply that there is something unfair about singling out Aborigines as the recipients of state services over and above other individuals or groups who may be in similar or worse need. These individuals and groups are not and do not identify as Aboriginal.
In replying to me you note the existence in Redfern of legal, medical and other services that appear to you to be ‘special treatment’. What you don’t acknowledge is the need for such directed services because of the particularity of Aboriginal people (they are still a bit shy of services provided by whitefellas and for good reason) and because of the need by the state to redress years of neglect and hostility directed towards Aboriginal people.
Of all of the recurring arguments the sort of argument you present – that services directed towards Aborigines ought to be delivered to all, or could be better directed towards more ‘deserving’ recipients, or that somehow the directing of such services to Aborigines is an unacceptable form of positive race discrimination – is undoubtedly the most historically ignorant and mealy mouthed piece of parsimonious nastiness. I’ve seen this sort of argument before and you are no different to others of your ilk who operate on the basis of deep fear that someone, somewhere, is getting something that you aren’t.
I’m pleased you are no longer hanging out in remote communities.
Short: it’s time to start paying the rent.
akn, as well as having spent time in communities, having spent years in Head Office privy to unapalatable reports on financial mismanagement in Aboriginal organisations that would make your hair stand on end (and fortunately for the government of the day never made it into the public arena), I can tell you that it matters a great deal whether these organisations keep sound records. The bits and pieces that make it into the courts are barely the tip of the iceberg. And yes it matters because e.g. one powerful family in a community can make life miserable for others. You state in all seriousness that Aborigines should not spend taxpayer money appropriately. That program funding should just be regarded as white people paying “rent” and hang the consequences. In other words, worsen the problem.
Yes AT thought so. You’ve all of the charm of a Head Office lackey. Has it occurred to you that the sheer incompetence of Head Officers in supervising, training and administering dedicated Aboriginal services has created the conditions for the misconduct that so grieves you.
Moreover, when it comes to the misbehaviour of powerful Australian families you operate on the basis of a gross double standard. Prove that you don’t by linking me to examples of your public condemnation of the Murdochs, the Packers (remember the Costigan commission), the Anthony family (signing cheques in deceased father’s name) even dear old Ratty’s bail out of his impecunious brother and the subsequent shafting of his workforce.
See, all whitefellas. But blackfellas have to live up to your special standards that don’t apply to whitefellas.
Moreover:
Like Lord Vestey’s mob?
Where did I say that? You’re seeing things.
As to paying the rent – most people, Head Office bumboys excluded, understand by that phrase that we owe something to Aborigines for dispossession and genocide over more than two hundred years.
After all, whose land are you on?
Fran: When I was talking about taking account of culture I was thinking about things like the problems caused by the conflict of traditional Aboriginal fears and the nature of hospitalization. I was also thinking about the problems that avoidance laws can cause when hospitals employ Aboriginal staff.
I would also agree with your comments re the culture of the communities interacting with the people they are trying to help. Think about the problems caused by the interaction of a group that puts a very high value on fulfilling family obligation with a group that considers nepotism a major sin.
Part of the problem here is that at least some people going to work or live in Aboriginal communities receive or seek to understand Aboriginal culture and its implications re what they do. Unfortunately, we assume that Aborigines don’t need the equivalent briefing. The reality is that our cultures are very different and Aborigines struggle at times to understand how we work and where the hell we are coming from. Unfortunately, teaching Aborigines about our culture is often seen as trying to convert Aborigines to our culture – A very condescending view of the strength of Aboriginal culture.
akn: @ 510 you say that Aborigines in Redfern receive nothing special then @518you imply that the Redfern Aboriginal services actually do something useful.
So what is the story? Do you live in Redfern and know something about how well these services work? Is their main value simply about “some Aborigines are still a bit shy of services provided by whitefellas”? How does the actual service supplied compare with other non-Aboriginal services?
akn – if Australia owes them rent, then just give them cash and or land and let them decide how to use it.
To take John D’s example of medical services – the Australian government owes them decent medical care regardless of what was done in the past. Supply medical services in an area and specifically excluding others who also struggle to access these services purely based on race is not only racist, but stupidly inefficient. And it will tend to foster racist attitudes too.
John D: I feared initially that you were being deliberately obtuse but now it seems not. If you do not know of the general disadvantages of being in Aboriginal in Redfern, which are manifold, then I do not know where to start to educate you. Try the following names:
David Gundy; T.J. Hickey. After reading those stories then grasp the time that elapsed between the shooting of David and the killing of TJ.
More fully see ‘Aboriginal-Police Relations in Redfern: with special reference to the ‘Police Raid’ of 8 February 1990, a report commissioned by the National Inquiry into Racist Violence’; http://www.hreoc.gov.au/racial_discrimination/report/redfern_1990.html
See, it doesn’t really matter how good the services are if the coppers can kill you at will and with impunity because you ain’t a whitefella.
akn: “Whose land are you on?”
That argument won’t wash anywhere in the world. Depending on the history, I’m variously on land that is mine, land that belongs to the people collectively, and Aboriginal land. By that specious argument of yours, white Australians should be wasting our time claiming title over Naples, Glasgow and Vilnius. And the descendants of the “first wave” of Aboriginal occupation of Australia should be claiming land that currently belongs to descendants of the “second wave” that displaced the first …
“That argument won’t wash anywhere in the world.”
Bullshit. It’s already ‘washed’ in the larger number of countries that have formal legal recognition of the original inhabitants of the land.
The rest of your comment is such errant crap that it’s not worth responding to.
adrian @ 528 – and we have native title in Australia as well. Though obviously just because a racial group may be recognised as the original inhabitants of land doesn’t necessarily mean that is still “their” land so its reasonable to argue that most of us are not living on Aboriginal land – it was stolen/conquered from them years ago.
dear Adrian
“It’s already ‘washed’ in the larger number of countries that have formal legal recognition of the original inhabitants of the land.”
yes indeed! for example these, just at wikipedia, starting from “treaty aboriginal…”:-
1/ the canadian crown & aboriginal peoples
2/ section 35 of the constitution act, 1982
3/ canadian aboriginal case law
yours sincerely
alfred venison
AT and Chris – yeah-but-yeah-but-yeah-but….
Always was, always will be, Aboriginal land.
That’s where the notion of paying the rent arises. Stolen land equals reparations. Anyone with even the hint of aspiration to being a modern refutes the idea of conquered possession.
It’s a gotcha moment boys.
Haven’t got the time/inclination to explain it to you Chris, but IF you are genuinely interested, this link may help you understand what I meant: http://theconversation.edu.au/recognition-of-indigenous-australians-what-does-it-mean-339.
akn @ 530 – wouldn’t many, if not most of the countries around the world be based on conquered possession?
Going back just a couple of generations most of my ancestor’s assets were seized and they ended up fleeing their country. I’m not expecting any reparations ever.
Chris, see Adrian @ 531. Get back to me when you know something.
dear The Feral Abacus @509
thank you for the alert & the link to the study/review of the methodology used in gould’s study/review of morton’s methodology. i’ve seen some ripples in nature & blogs via some simple google combinations but where & how will the dust will settle?
and, just wondering, ideally someone double checks results. so, does someone undertaking to double check the results of this study/review get equal access to the skull collection & the notebooks at morton’s uni’s anthropology department museum? for, otherwise, how does this finding bottom out, trust-wise, from here on? are they right, or are they wrong? without re-running their examination & collation of the morton collection’s metadata, how do we know this study/review itself hasn’t got errors of the kind it claims to have found in gould’s study/review, where he claims to have found errors in morton’s original study? and the next study/review after that, and the next, ad infinitum? after all, that’s at least in part the original paper’s premise, that errors seep in to results because of bias.
yours sincerely
alfred vension
akn: I am well aware that the life of an Aborigine in Redfern is not something to envy even if I don’t know all the details. The same could be said about a whole range of Aboriginal communities. So what do you think should be done about it?
I have watched too many non-Aboriginals of good intent try their hardest to help Aborigines with limited success. Non-Aboriginals can have a limited effect by removing barriers and helping to resolve short term problems. However, my conclusion is that the only people who really have the power to make a big difference are Aborigines themselves.
John, I think you are under estimating the damage done to this community and its members . When people have been ground down to the extent that someof these have, free will surely becomes problematic.
John D. The other thing that would help is if we stop treating them like pariahs. I know a lot of white people get all upset about ‘special’ treatment given to them out of guilt. The odd thing is that I think a lot of the guilt tends to manifest by us being unfriendly or predjudiced against them in a way that allows us to justify us being awful because they deserve it.
But getting back to the original point of the thread, what doesn’t help Aboriginal people is mis-representing percieved advantages and then mis-reporting facts surrounding prominent figures in order to make a case.
If anyone here was misrepresented in the same way Ms Heiss was either through vindictiveness or through sloppy research I doubt they’d be happy to cop it on the chin.
Alright John D, what do we do? It depends on what you want to achieve. An acceptable minimum for me would be life data within the range of the wider community (life expectancy, morbidity, suicide rates, rates of incarceration, DV, child abuse, drug use, unemployment, rates of school completion, proportion of people tertiary education and so on). I think most policy makers probably aim for these sorts of outcomes, as they ought – quantifiable and programatically possible through quite specific targeting.
However, these policies cannot address either of two very significant factors: first, the neurobiology of trauma; second, deeply entrenched racist attitudes in Australia that constantly re-stimulate traumatic responses. The neurobiology of trauma is a complex field and I recommend the work of Bessel van der Kolk (see especially Trauma & Memory: The Flexibility of Memory & the Engraving of Trauma at http://www.trauma-pages.com/a/vanderk4.php). The short argument is that trauma creates permanent brain changes especially when experienced at a young age. These brain changes lead to a hypervigilant fight/flight state that underpins almost all Aboriginal behavioural issues from excessive drug and alcohol use (self medication/numbing) through to DV (uncontrollable responses to misapprehended stimuli) to violent crime.
Put this scientific knowledge into the context of – the stolen generations, the rate of DV and other violent crime, D+A use and the broader background of violent dispossession and ongoing disrespect and, I suggest, things become a little clearer.
The solution to this admittedly sweeping analysis of a deeply embedded problem can be summed up in a few words: respect, healing and friendship.
On respect, I suggest Axel Honneth’s analysis is the most useful (wiki entry at http://en.wikipedia.org/wiki/Axel_Honneth). Nothing restimulates traumatic responses more than disrespect. Hence the response to Bolt’s article. Hence also the sheer number of Aborigines who get lumbered for the trifecta or who have their kids removed unlawfully because the mere sight of whitefella social workers snootily inspecting their homes for cleanliness and adherence to whitefella middle class values sends them into a rage. And so on.
Healing is what whitefellas need to do by learning about the history and acknowledging that they have benefited massively, and continue to do, from a terrible injustice.
Finally, friendship. Not hard. All of the above, over time, plus the state policies. Number one priority is to shut down the hate talkers like Bolt because they are the one who fuel and legitimise ongoing disrepsect
Frankly, If he cant integrate with our mulitcultural society, which also values our indigenous brothers and sisters as the oldest surviving human culture in the world, then that Dutch bastard Bolt should go home!
O/T Alfred Venison @ 535
Generally speaking, no: duplicate experiments and independent verification are rare in whole-organism biology, so published data tend to be taken on trust as long as the results are plausible, and provided there are no obvious methodological flaws. OTOH I wouldn’t be surprised if the Morton dataset is revisited: it has a high public profile, and Gould is a controversial figure amongst at least a subset of his peers, so publication of further results is all but guaranteed.