Illegal Article About Aborigines by Australian Journalist

An Australian court just held today, in Eatock v. Bolt, that Australian journalist Andrew Bolt and the newspaper The Herald and Weekly Times violated the law by publishing newspaper articles arguing that

  1. fair-skinned Australians “with some Aboriginal descent” “are not genuinely Aboriginal persons but … motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal,” and
  2. “[f]air skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.”

(The quotations are from the court opinion’s paraphrase of the articles; the full articles are available at the end of the opinion.) This, the judge held, violated the Racial Discrimination Act:

[I]n 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.

The judge stressed that “nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people,” and that Bolt and the Herald & Weekly Times violated the law “because of the manner in which that subject matter was dealt with.” (The judge concluded that the fair comment exception to the law doesn’t apply because the publication “was not done reasonably and in good faith in the making or publishing of a fair comment” or “done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.”) But the fact remains that, under this decision, it is illegal in Australia to publish what the journalist and newspaper published.

The judge said that he “will make orders prohibiting the republication of the newspaper articles,” and “[i]n the absence of the publication of an apology, I will consider making an order for the publication in the Herald Sun of a corrective notice.” A pretty appalling result in a democracy, it seems to me.