At Large

Freedom of Speech on Trial

In Australia, talking about race is now a thoughtcrime.

By 10.5.11

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September 28 was a black day for Australia, a society in which until now freedom of thought has been as deeply entrenched as anywhere in the world. Now, however, a journalist and blogger, Andrew Bolt, has been found guilty of a crime for expressing an opinion.

Mr. Bolt's thoughtcrime was to question the fact that certain light-skinned people were claiming benefits as Aborigines. Yes, that's right, I'll say it again in case you had trouble understanding or believing it the first time: Mr. Bolt was prosecuted, not for making racist or derogatory remarks about Aborigines, but for saying that some of those claiming the generous benefits paid to Aborigines had pale skin.

He was not prosecuted for defamation (usually a civil offense anyway), but for breaching the "values" of the Racial Discrimination Act, a 1975 a piece of left-wing social engineering which the Liberal (i.e. in Australia, conservative) Government, with unforgivable stupidity, left in position during its last 13 years in power.

All the reasoning of the 100-page judgment, which has just been handed down, is not yet clear. One reported point of the judgment, however, was that "What Mr Bolt did and what he failed to do did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the Racial Discrimination Act."

This does not seem particularly clear. When has the law of any free country obliged citizens to "honour values"? No court should ever be placed in the position of having to make decisions of this kind. The only way I can read this is that it criminalizes the holding of a particular state of mind.

This is totalitarian. Such matters should not attract the attention of the law at all. It is reminiscent of the French Revolutionary Law of 22 Prairial (also known as the loi de la Grande Terreur), which sentenced people to the guillotine on the grounds of a "bad moral character."

Gary Johns, a former Labor Party Minister, has written that "Freedom of speech has been curtailed by the Racial Discrimination Act; the judgment said as much."

The court found that Bolt and his employer, the Herald and Weekly Times, contravened the Racial Discrimination Act 1975 because the comments were not made reasonably or in good faith. They offended the sensitivities of those about whom the articles were written. Does this mean that courts are now to judge the degree of "good faith" with which an article is written? And if the "sensitivities" of a small group of people are offended, what journalist is going to be safe?

The judgment argues that: "People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of racial or religious identification of a group of people is a common cause for racial or religious tension. A slur upon the racial legitimacy of a group of people is just as, if not more, destructive of racial tolerance than a slur directed at the real or imagined practices or traits of those people."

This is weird. The politically-correct have spent a great deal of effort trying to expunge the concept of "race." There are many arguments along the lines that "race" cannot really be defined. Now political correctness seems to be resurrecting it. The last time I heard talk about "racial legitimacy" was… well, you know when it was.

I am not unusual among Australians in having a mixture in my ancestry -- in my case English, Norman-French, Ulster Scots and Italian. I could go further and it would get more complicated.  Can I now haul before the criminal courts anyone who denies this?

Journalists often make too much of both the importance and the perils of their occupation. In showing "bravery" they seldom run risks even remotely comparable to those which policemen, fire-fighters, or soldiers take every day. Nonetheless, cases like this do serve to remind us that free speech does matter, and it is under constant threat. Annoying as a free press can be, it is a good deal better than the alternative.

The last piece I wrote for TAS on Australian politics was also to do with the freedom and independence of the press. I wrote on Labor Prime Minister Julia Gillard's attack on and vague threats against the Murdoch Press, which has been a critic of the government, particularly of the proposed tax on carbon-dioxide emissions. This, despite dissent by scientists and economists, seems to be a personal obsession of the Prime Minister's.

Since then, a Government enquiry into the press has been announced, with the Murdoch press obviously in the cross-hairs. Unless the Bolt case is overturned on appeal, it seems freedom of the press in Australia is facing a pincer-movement attack from the Federal Government and the courts. One must try to take heart from Gary Johns's demand that Opposition leader Tony Abbott take action as soon as he wins government: "Nothing is more sacred than free speech. Tony Abbott must repeal the offending provisions. He should start drafting now, flush out the freedom-loving Labor members, stand them up and have them counted."

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About the Author

Hal G.P. Colebatch, a lawyer and author, has lectured in International Law and International Relations at Notre Dame University and Edith Cowan University in Western Australia and worked on the staff of two Australian Federal Ministers.