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Revising the Racial Discrimination Act

By Eric Porter - posted Tuesday, 30 August 2016


We thus learn that using words imposes upon us a moral obligation. Being rule governed, the effects of language can be known with reasonable certainty. Admittedly there are times when we fail to say what we intend but, again, that’s because language is not our personal property coterminous with our private thoughts. We know the basic principle: words have effects and we are answerable for what we (intend to) say. These are our thoughts and loosing them upon the world is a moral, not just a linguistic act. Offense (and inspiration, amusement, provocation and so on) is not just ‘taken’ – it’s also ‘given’: that is, exchanged.

Ironically, Leyonhjelm’s approach would also render democracy unworkable. Democracy requires a public sphere in which people can participate and speak without fear of humiliation, intimidation and offense. This also means taking responsibility for how others might respond to what we say. Freedom of speech as conceived by the LDP, is the opposite of this, unwittingly sanctioning the use of language to bully, embarrass and browbeat others into silence. In this sense, it is also the very opposite of what the LDP itself actually wants – effective democracy. Instead, unchecked freedom of speech ends up destroying freedom itself.

The problem with Leyonhjelm’s critique of the RDA arises from the abstract nature of his principle of free speech. ‘Abstract’ here means ‘removed from practice’ – that is, his principle seems unconnected to practical legal reality. As the ALRC itself recognises, most critics of the RDA interpret Section 18c in isolation from the way it is employed in court. This is important because it is in court that the dead letter of the law comes alive. Court judgements look at the complexities of specific cases and establish precedents that then become part of the law itself, shaping how that law applies in practice. A close examination of the case against Andrew Bolt, the very event that prompted the recent campaign against Section 18c, reveals that, rather than responding to an actual problem in the operation of the law, critics are, for the most part, just pushing a preconceived agenda.

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To begin with, we need to ask why Bolt was found guilty. None of the RBA’s critics has seemingly taken time to examine this fundamental question. Firstly, while Pat Eatock brought the action against Bolt, the point in issue was not whether she personally was offended, insulted, humiliated or intimidated by what he wrote. Rather, the judge, Mordecai Bromberg, ruled on how a ‘reasonable person’ was likely to react. Though open to criticism, this is standard legal procedure for gaining ‘objectivity’. Individuals may have all sorts of reasons – political, personal, psychological etc – for taking offense, and the RDA is not at the service of any idiosyncratic sensitivity, genuine or otherwise. Bromberg did narrow the focus somewhat, concentrating on the likely reaction of a ‘reasonable fair-skinned aboriginal person’ rather than simply a ‘reasonable person’ generally. This was to counter the possibility that community standards did not include knowledge of and sensitivity to the identity of persons from the group in question. After all, standards that accepted Bolt’s views as justified, would have prejudiced the case against the plaintiff.

Thus the verdict was a ruling under the terms of the Act – it was not a finding on the nature of racial identity nor on who is entitled to call themselves aboriginal. And here is the nub of the case: Bromberg did not find Bolt guilty simply because his articles dealt with ‘racial identification including challenging the genuineness of the identification of a group of people’. On the contrary, Bromberg found him guilty ‘because of the manner in which that subject matter was dealt with.’ That is, Bromberg found that Bolt had deliberately sought to ‘offend, insult, humiliate and intimidate’. This judgement of Bolt’s ‘intentions’ meant his articles were not protected under Section 18d which lists exemptions to S18c. Bromberg found the articles were neither ‘fair comment’ nor part of a ‘statement, publication or discussion, made or held for a genuine purpose in the public interest’, ‘done reasonably and in good faith’. Instead, he judged that the articles were ‘plainly calculated to convey a message about’ the racial group.

Bromberg based these conclusion on the three things: factual errors, misrepresentation of facts and the tone. Bolt’s factual errors were not just inaccuracies: they were indicative of his bias, errors that made his own argument look stronger than it was. Added to this were misrepresentation of facts where he cast accurate information in a bad light. This was achieved, at least in part, by the tone he adopted: ‘a liberal use of sarcasm and mockery’. As Bromberg explained,

Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines.

Bolt’s reaction revealed that he had learnt nothing. After the verdict, he declared on his blog that ‘the Federal Court has ruled that my views on this issue … are against the “values” of the Racial Discrimination Act’. And yet, in the same post he quoted prominent aboriginal leader and activist Noel Pearson at length expressing similar views on racial identity. Moreover, Bolt suggests that the

One thing that I think saves Pearson is that he gives no actual examples of people who obviously had choices to make. The discussion is largely in the abstract, shorn of some examples so preposterous that the issue becomes lightning clear.

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Exactly: Bolt has unwittingly solved his own dilemma. When stripped of the ‘sarcasm and mockery’, the nod nod, wink wink, between the lines, ‘the preposterous’ examples, the ideas and arguments in his two articles are perfectly open to discussion and analysis.

What we should conclude from this is that Bolt took a serious issue – racial identity – and played with it in an amateurish and superficial manner. He claims that he was making some serious points. Re-reading those articles reveals that he did raise some serious issues: the prevalence of ethnic (and other) identity politics; the possibility such modern tribalism is dividing rather than uniting Australians; a perceived shift from a merit-based system focused on individual achievement to a group loyalty-based system focused on political affiliation; and even questions about who really benefits from affirmative action policies designed to help the underprivileged. These are certainly serious issues and I think I understand why Bolt is angry about such trends in Australian society. More to the point, there are myriad other Australians who read his column and blog, and watch the Bolt Report, who agree or at least sympathise generally with his underlying arguments.

But preaching to the converted is no achievement. He muddied the waters with sensationalism and sarcasm, undermining the very points he was trying to make. This is not an issue of free speech. The RDA is not the problem. The central points of his articles could have been made – more effectively and accurately – without arousing offense or hurt, without provoking legal action. Leave the RDA out of the picture and simply concentrate on treating serious issues seriously.

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About the Author

Eric Porter is an historian who until recently taught politics and political economy at RMIT.

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