By now, oceans of ink have been spilled over the decision against Andrew Bolt. In commenting on the case, I would like to draw out some relevant issues that I think have not been adequately discussed. As I have repeatedly written at ABC Drum and elsewhere in defence of Bolt’s right to be disgusting, I’m not going to focus on my civil libertarian commitments in this post.

A terrible day for free speech: the hypocrites
The front page of the Herald Sun , Australia’s biggest selling daily with 1.3 million readers, declared: ‘THIS IS A SAD DAY FOR FREE SPEECH’. By Andrew Bolt. It may seem that Mr Bolt has not been entirely silenced. There’s no law against his critics – unless of course, they criticised him too harshly, in which case they might have been sued for defamation. Nevertheless, our free media featured a response to Bolt’s first article by Chris Graham, with perhaps around 17 419 readers.

The Murdoch press has since overflowed with defences of Bolt’s right to free speech. The Australian also ran a response by the Coalition, and so on.

We are presumably supposed to be impressed at these recent converts to the cause of freedom of speech, who bravely defend the right of a colleague, or someone whose views they are generally sympathetic to, to say what he wants, however hurtful, wrong and racially offensive it may have been.

Perhaps the only person who almost perceived a possible problem in right-wing posturing over this case was James Paterson, from a right-wing think tank. He said it ‘would be hypocritical to on the one hand defend Bolt’s freedom of speech and suggest that anyone else’s freedom to respond to Bolt – even in such an outrageous way – should be curtailed.’

An obvious way such freedom would be curtailed would be defamation lawsuits. Even the threat of a defamation suit makes clear that such criticism can be unwise, as it involves considerable expense, which most people can’t afford. So … Andrew Bolt comes to mind, publicly threatening Crikey and ABC with defamation proceedings, so that they know to be careful when criticising him, lest he be too offended.

I had to bear this in mind, after I mentioned Bolt in an article which devoted a sentence to him, repeating more briefly the claims I made at Drum. I was then forwarded an email by Overland’s editor from Bolt. Bolt asked that what I wrote about him be removed. He continued demanding this, insulting me in his following emails, even after my blog was changed to simply include a quote from Bolt. Knowing that Bolt likes to ‘consider his options’, those who disagree with Bolt would understandably feel some reluctance publishing forthright criticisms about him. In this instance, how could I know that Bolt wouldn’t just be happy to criticise what I wrote, either on my blog or his?

Bolt likes to pose as a champion of freedom of speech. This is the same man who thought we should think about what ‘limits’ we might want to set on Muslim ‘proselytisation’. Andrew Bolt has modestly declared that his supporters aren’t defending him, but ‘the freedom of all Australians to speak freely’.

This is, I think, a little much. Recall: when I wrote here in defence of Bolt’s rights, I said we should also defend those of Holocaust denier, Frederick Toben. This is not the position of Bolt. To rehash: Toben challenged the constitutional validity of the provisions in the Racial Discrimination Act in a 2003 case. This challenge failed. Bolt and his publishers could have argued that the constitutionally implied freedom of political discussion should override these provisions. What did they do? As Justice Bromberg noted, ‘Mr Bolt and HWT recognised that I am bound to follow that judgment, but formally reserved their position.’ So they opted against fighting for freedom of speech for Australians, instead seeking on narrow grounds to defend Bolt’s right to make his specific claims.

This is like the difference between someone challenging a defamation suit on the grounds that it is an infringement on everyone’s right’s to speak, and on the grounds that they didn’t mean to say mean things about the purported victim.

I do believe that freedom of speech in Australia does have no serious protections in Australia, and that it should be fought for. However, the defences of Bolt often reek of bad faith, if not outright hypocrisy. For example, the Australian declared that ‘we should all be concerned about the blow delivered against free speech yesterday’.This was because ‘defamation laws already create a powerful protection for individuals and a significant restriction on reckless reporting.’

As determined, of course, by the Australian. Which as is well known, threatened to sue Julie Posetti for reporting on twitter what former Australian reporter Asa Wahlquist said. Audio recording of the event, as noted at the ABC, ‘proves that much of the information tweeted was actually said.’ Wahlquist described ‘the editor-in-chief and the edits becoming much more prescriptive and you saw that in the lead-up to the election, where you were actually being told what to write’. Mitchell described these claims as a lie – and evidently, thought the way to prove this was to prevent anyone writing them.

I have no way of knowing if such claims are true. What I can say is that this episode undoubtedly had a chilling effect. Who would feel comfortable saying there was evidence to think the claims might be true? Who would feel comfortable criticising Mitchell, if they didn’t think they could afford to defend their claims in court? And where were the legions of Murdoch employees beating their chests over the threat to freedom of speech?

Then there’s the Coalition, which support’s the right of Australia’s most widely read conservative columnist to write what he wants. However, they continue to oppose a constitutional protection to a right to freedom of speech – like Andrew Bolt himself.

Anyone who supports defamation laws, but opposes the racial vilification laws, essentially thinks we should be free to be racially offensive, but (seeing as how most people can’t afford to sue for defamation) we should not be free to offend the rich or powerful. It is also worth noting – Bolt probably would have lost if he had been sued for defamation, even if under the more liberal defamation US standards supported by the American Civil Liberties Union (reckless indifference to truth). So if someone claims to support Bolt’s right to say specifically what he did, because they care about free speech: ask yourself if you really believe that they are more devoted to civil liberties than the ACLU.

A terrible day for free speech: the triumph of politically correct fascists
After the judgment, Bolt insisted that ‘the multiculturalists win … because no one now dares object for fear of what it will cost them in court.’

The Murdoch press duly displayed the chilling effect of the ruling. Gary Johns wrote that the reason Aboriginal people were sensitive about their identity was because of the ‘public benefits in so identifying.’ So: ‘remove the benefits, remove the sensitivity.’ Essentially, Bolt’s thesis, more gratuitously expressed, without personally attacking anyone in particular. Strangely enough, John’s concluded by writing that ‘Nothing is more sacred than free speech.’ A few months ago, he had ridiculed supporters of Indigenous rights. Well, all people are equal, but some are more equal than others.

The substance of the Bolt thesis was also argued in the Australian by Christopher Pearson: ‘In the 80s, when Aboriginality enjoyed a sudden cachet and some privileges, Tasmanian people with claims to one part in 64 of indigenous descent were making the most of them and adopting a rhetoric in which the other 63 parts were dismissed as being of no consequence.’ Bolt wrote approvingly that ‘Christopher Pearson, in discussing my case, puts the argument as I would wish but do not now dare’.

Oh, the jackboot of fascist repression. Or Nazi repression, as Devine shamelessly compared the verdict to repression in Nazi Germany. This is ‘part of an illiberal movement in Australia to crush dissent.’ She bravely dissented to 949 000 readers, about her ‘friend and colleague of 20 years’. Truly inspiring. Devine has also found the ‘Jack-boot left’ when people criticised a column she wrote against gay marriage. She complained that ‘intimidation, vilification, distortion and outright lies are being used in an attempt to silence unfashionable opinions.’ She wrote in the mass circulation daily, in response to criticisms on twitter. One suspects that soon fascism will become a technical term for ‘disagrees with Miranda Devine’.

Because of the triumph of PC fascism, Andrew Bolt has now entered a new era of racial sensitivity. Like at the end of August this year, when he wrote that ‘The ‘stolen generations’ myth was a toxic lie which has stopped us from saving yet more children.’ He then explained that ‘The truth is that Aboriginal culture is broken’.

Furthermore, ‘the mythologising of it only betrays a new generation of Aboriginal children.’ Because they aren’t removed from their families (‘saved’).

That was all in the one blog.

Or in April this year, when Bolt wrote ‘I thought much of the interest in traditonal [sic] Aboriginal art was driven by politic fashion and self-advertisement rather than aesthetics’. This is because he has ‘a prejudice against primitive arts of all kinds, from gangsta rap to Dayak carvings, and prefer more highly developed and intellectualised expressions of the human spirit.’ In what sense is gangsta rap – which utilises modern technology – primitive? What does it share with Aboriginal art and Dayak carvings?

Bolt can also rest assured that being found guilty of racial offensiveness won’t harm his career. For example, it hasn’t harmed the career of Alan Jones, who declared ‘Lebanese males in their vast numbers not only hate our country and our heritage… They have no connection to us. They simply rape, pillage and plunder a nation that’s taken them in… What did we do as a nation to have this vermin infest our shores?’ Or Tom Switzer, who, after explaining that ‘Palestinians remain vicious thugs’, was found by the Administrative Decisions Tribunal of NSW to have painted ‘an extremely negative picture of the Palestinian people’.

The Daily Telegraph showed the terrible toll taken on free speech versus racial tolerance, with its generally unnoticed sensationalised reports on alleged Romani criminals. One senior investigator said that ‘Gypsies are still concentrating on their traditional scams of shoddy work’. Another said ‘They may be illiterate but they are rat cunning and it gets handed down from generation to generation.’ That this kind of gross stereotyping can not only be published, but not even arouse any serious controversy, reflects the dire state of Australian political discourse. At such a time, it is far more urgent for political commentators to address the serious issues of racism in Australia, than the alleged silencing of a man apparently read by 3.5 million Australians each week.

Most Australians would probably be unfamiliar with the term Porajmos. It refers to the extermination of the Romani by the Nazis. In Gypsies Under the Swastika, Kenrick and Puxon estimate 200 000-500 000 died. Can anyone imagine a revival of stereotyping of Jews in the Daily Telegraph?

Bolt: But I’m still right about everything
Life for Bolt remains awful. After all, he continues to argue that he was right about everything. The trial centred around the nine plaintiffs, and the judge demonstrated that virtually every substantive claim Bolt made about every single one of them was false. But now that Bolt has lost the case, he complains that ‘The judge has ruled that some opinions and statements I’d advanced were advanced as facts and were false, and while I have said that none of my errors seemed to me of much consequence, it would be most unwise of me to argue any more than that.’ So Bolt still says he was basically right – but because he’s been silenced, he doesn’t need to disprove the length demonstration of how he got everything wrong.

One might be sympathetic to Bolt’s argument that it is unfair to argue against him, now that he can’t freely respond to critics. Except: Bolt had his day in court. He could have responded to the evidence advanced by the nine plaintiffs. Yet if you read the judgment, virtually none of it was contested, and none of it relevant to the judge’s findings. I’ll stress this: only three of the nine plaintiffs were cross examined on anything by Bolt.

The most comprehensive demonstration of all that Bolt was wrong about was provided by the Age. It is worth reading the testimony of the witnesses, and then comparing it to Bolt’s claims.

Remember: Bolt wrote of ‘a whole new fashion in academia, the arts and professional activism to identify as Aboriginal’ – an identity that brings ‘political and career clout’. He then listed his examples, like Wayne and Graham Atkinson, who ‘are Aboriginal because their Indian great-grandfather married a part-Aboriginal woman.’ Bolt then opted against challenging Wayne Atkinson’s testimony: ‘All of his great grandparents were of Aboriginal descent except one of his great grandfathers’. There are eight more examples which similarly reflect Bolt’s honesty: and I stress, Bolt didn’t challenge any of them.

Now that the case is over though, Bolt has found a new target. When Larissa Behrendt testified, she explained that ‘her father was Aboriginal and her paternal grandmother was Aboriginal … Prof Behrendt’s paternal grandfather was not Aboriginal’. The judgment goes on:

Prof Behrendt’s father was always part of her family during her upbringing including after her parents separated when she was 15 years old. Her mother explained to her and her brother that they were Aboriginal and was always strongly supportive of their Aboriginal identity … Prof Behrendt was about 11 years old when her father started to reconnect with his Aboriginal family and became part of it. At that time her father became active in telling Prof Behrendt about his family’s stories, the dreamtime stories and Aboriginal traditions. Her father also started teaching her and her brother Aboriginal languages. Prof Behrendt’s upbringing and experience up to that time was as an Aboriginal person, but her father’s role during that period reinforced her identification. She became proud of her Aboriginal heritage and culture and also became conscious of social justice issues in relation to Aboriginal people.

Justice Bromberg explained that this evidence ‘was either not contested or takes account of what she said in cross-examination.’

Now remember Bolt’s article, referring to Behrendt as a:

professional Aborigine ever since leaving Harvard Law School, despite looking almost as German as her father.

She, too, chose to be Aboriginal …

… isn’t it bizarre to demand laws to give you more rights as a white Aborigine that your own white dad?

How does one square this sneering tone, with the evidence that Bolt decided against challenging?

Bolt decided instead to smear the dead, who can’t respond: ‘before this ruling I would have argued that Paul Behrendt, ruled by the judge to be an ‘Aboriginal’ man of ‘dark skin‘, did not disprove my case but illustrate it’. He proceeded to insinuate that Behrendt also looks too pale to be a dark-skinned Aboriginal man. So perhaps he really was a professional Aborigine, a German white man choosing to be black for career clout.

It is worth stressing the importance of reading the facts of the case, which Bolt didn’t challenge, before letting him get away with his continuing innuendos about how he was right all along. If he was so right – why didn’t he say so in court?

It is also worth contrasting his claim about his concern: ‘I argued then and I argue now that we should not insist on differences between us but focus instead on what unites us as human beings.’

Read what Justice Bromberg said about his articles. For example (references removed), on the second one:

Skin colour is extensively emphasised …
examples of the article’s use of colour and physical features include:
o Photographs of Mark McMillan and Danie Mellor in relation to which a rhetorical question is posed in the following terms:
If, studying the faces of these two ‘Aboriginal’ men you think this is surely the most amazing stretch of definition, you’re wrong …

• ‘pink in face’ (McMillan)
• ‘very pale’ (Behrendt)
• ‘blue-eyed and ginger-haired’ (Mellor)
• ‘white face’ (Cole)
• ‘pale as a blank canvas’ (Sax)
• ‘auburn-haired’ (Winch)
• ‘white university lecturer’ (Mellor)

Or in one instance, next to photos of Mark McMillan and Danie Mellor, he wrote ‘If, studying the faces of these two ‘Aboriginal’ men you think this is surely the most amazing stretch of definition, you’re wrong’. Because they look too pale to him, for them to be Aboriginal. And on, and on.

Funny, for someone who doesn’t care about racial differences to focus on it so much. And also a funny contrast, given that the judgment recognises race is a social, cultural and political construct, as opposed to Bolt who seems to believe it should be judged solely by descent (except when he can tendentiously cherry-pick some evidence of someone being raised white to bolster his argument).

Final comment
There is a lot more to be said about the judgment, but this is already pretty long. As I’ve said in the past, people should be free to say the most outrageous and disgusting things. For example, I support the right of an AIJAC columnist to compare me to the Nazis. Or to issue a fake apology dismissing my ‘concocted moral outrage’.

I know that some think these laws are giving a weapon to the oppressed. That is not how power works. If you give power to the State, it will be used as a weapon against the poor and marginalised. It would not be the first time claims of being ‘offended’ were used in that manner. The Royal Commission into Aboriginal Deaths in Custody wrote:

It is surely time that police learnt to ignore mere abuse, let alone simple ‘bad language’….

Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others – resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’.

The Royal Commission dismissed ‘the pretense that they are sensitive persons offended by such language’. This is how we can expect such laws to be applied in practice.

However, it is worth trying to understand the deeper reasons for why Bolt’s articles were so offensive. For example, Justice Bromberg noted:

It is a notorious and regrettable fact of Australian history that the flawed biological characterisations of many Aboriginal people was the basis for mistreatment, including for policies of assimilation involving the removal of many Aboriginal children from their families until the 1970s. It will be of no surprise that a race of people subjected to oppression by reason of oppressive racial categorisation will be sensitive to being racially categorised by others.

In my view, greater threats to freedom of speech in Australia lie in the campaign of repression against Max Brenner protesters, or in the routine threats of defamation made by the wealthy against their critics.

However, the problem of racism is also a very serious one in Australia. Our country is so racist that it is considered controversial to oppose punitive measures of racial discrimination against Indigenous communities. This judgment will not reverse Australian racism, but it would be nice if it were used as an educational opportunity: to understand why Bolt’s articles were so hurtful, and to raise consciousness of the need to respond when such vicious attacks are launched in the media.

Michael Brull

Michael Brull is a columnist at New Matilda. He’s written for other publications including Fairfax, the Guardian, Crikey, Tracker and the Indigenous Law Bulletin.

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