Water, water every where, nor any chance to Think

Section 18C of the Australian Commonwealth’s Racial Discrimination Act 1975 makes it unlawful to publically say, write or draw anything that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of a certain race, colour or national or ethnic origin.  You only have to read that sentence carefully to see the potential problems with it.  (There doesn’t seem to be a corresponding protection in the federal sex or disability discrimination legislation.)

In 2009, columnist Andrew Bolt produced articles in the Herald Sun newspaper on what he thought was an important social issue: the subjective self-identification of certain folks with aboriginality. Undoubtedly, there was a pungency about the pieces.  As was described by a court sometime later, the use of language and structure is highly suggestive and designed to excite. Its style is not careful, precise or exact. The style and structure invite supposition, rather than analytical conclusions. The language is not moderate or temperate but often strong and emphatic. There is a liberal use of sarcasm and mockery. 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.*

In 2010 Pat Eatock sued Bolt, and the publisher of the Herald Sun, in the Federal Court of Australia on her own behalf and on behalf of people like her who have fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons.^  Justice Bromberg heard the case and on 28 September 2011, he determined that the articles were unlawful under section 18C of the Act.  His Honour said that I have observed that in seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.+

It is important to bear in mind that section 18D of the Act exempts artistic works, material created for a genuine academic, artistic, scientific discussion or debate or ‘other genuine purpose’ in the public interest, and fair and accurate reportage, but only if these endeavours are said or done reasonably and in good faith.  One might ask: surely these articles fit the bill?

Well, no.  “Reasonableness” is a much-used and elusive concept in the law.  The phrase “good faith” also depends heavily on the context in which it sits.  Justice Bromberg decided that the 18D exemption did not apply because: 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 RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith.**

Yes, words (and images) are loaded pistols, and we use them at our peril.  Yes, lack of care and diligence can amount to an unlawful act (just ask Sea Captain Schettini).  But a “derisive tone”?  A “gratuitous aside”?  “Read between the lines”?  Is this where we are now, in our multicultural society, so fragile that we faux-criminalise expression likely to offend, insult, humiliate or intimidate?  Such an approach looks more likely to foster cultural separatism than multiculturalism, which would be a gesture not of “empowerment,” but of emasculation.^^  And not an empty gesture either, but one that creates a pile of work.  As David Cole, writing (apparently without irony) in the New York Review on the contretemps over ‘provocative’ Hallowe’en costumes and ‘safe spaces’ on campus, said: Responding to the challenges of diversity in a racially divided world is a full-time job.*^  It certainly is for the Australian Human Rights Commission, which is now handling two causes célèbre: (1) a complaint against students for tweeting objections to their being turfed from an indigenous (and, at the time, vacant) computer room, and (2) a complaint against a cartoonist having a dig at neglectful indigenous dads.  Both alleged crimes contained pointed humour, which seems to be the constant irritant.

The Eatock v Bolt case took a couple of weeks to run and we can assume that the total costs to the parties, and the community, exceeded $200,000.00.  There were no damages awarded; no apology was ordered; the articles were permanently enjoined from re-publication (apart from archival / historical purposes) and ‘corrective notices’ were ordered to be run. It has been suggested that ‘the process is the punishment.’  A point was established, of course, but was it a worthwhile point?  Was the ‘reconciliation process’ enhanced?  Have the fainter of heart, the wiser of head, or the lighter of purse, retired from the lists of public opinion?

“Everyone has the right to freedom of opinion and expression.”  So says Article 19 of the United Nations Declaration of Human Rights, 1948.  Freedom to advance a belief, view or judgment which is not necessarily trammelled by objective fact.  Free to display such to the world.  So like Byron’s corsair, we can sail “o’er the glad waters of the deep blue sea…thoughts as boundless and our hearts as free.”

Instead, we find ourselves drowning in that sea, taking in stinging salt water that cleanses our brains and swells our tongues; blocking thought and its expression.  Words and images (the outer clothing of ideas) are saturated, become leaden, and drag us down.

* Eatock v Bolt [2011] FCA 1103 at [26] (Bromberg J). 

^ ibid. @ [1].

+ ibid. @ [22].

** ibid. @ [425].

^^Robert Hughes, “Multi-Culti and Its discontents” from Culture of Complaint (1993) p. 151.

*^ “The Trouble at Yale” 14 January 2016, NYR, p. 8.