CANBERRA – In 2009, in two articles published in the Herald Sun and the Herald and Weekly Times, columnist Andrew Bolt wrote that many light-skinned — that is, those who did not look Aboriginal — Australians had chosen to identify themselves as indigenous in order to gain material or professional advantage.
Because Bolt uses strong language to express his opinions, he courts controversy. The people named in those articles took him to court under section 18(c) of Australia’s Racial Discrimination Act as amended in 1995.
On Sept. 28, Bolt was convicted in a federal court of highly personal, derogatory and offensive attacks.
A judge does not pronounce on policy but interprets the law, so the judgment should not be criticized on legal grounds. Yet the reversals of many judgments by higher courts suggests that personal beliefs are never irrelevant. And the judge’s comments parsing matters of public interest from those in the public interest are reminiscent of Bill Clinton.
If the judgment offends, criticism should focus on the law behind it on issues of legitimate public debate.
But even if the silencing consequences by this intrusion into freedom of expression are no worse than those arising from defamation laws, as the judge concluded, the obvious question is: why give two separate grounds for such deleterious consequences?
This is a movie I have seen before, in India, and my dislike grows of how it ends. India after all was the first country to ban Salman Rushdie’s novel “Satanic Verses.”
India’s affirmative action programs, meant to help the disadvantaged, have been captured by the privileged elite. The programs are out of control, so much so that many groups clamor — and engage in acts of mass public protests and disruptions to press their claims — to be added to the list of the disadvantaged.
The major motivation is unquestionably the material and career opportunities that would result from being so inscribed with regard to admissions to schools and universities, recruitment into the public service, and also promotion.
I doubt that any group wants to get on the disadvantaged list because its members believe that it would enhance their social status or personal self-esteem.
Caste violence and dowry deaths are real social ills that need to be eliminated by the state. But when this is perverted into laws that take away the presumption of innocence and inflict legal harassment on the accused pending trial in a judicial system notorious for decades-long delays, two perverse consequences ensue.
The laws are misused by some to intimidate political or social rivals and opponents. Or they are used as instruments of blackmail and extortion.
There is nothing uniquely evil in the Indian character that leads to this unintended outcome. During my 15 years in New Zealand, I knew some who had reclaimed Maori identity because of newly found pride, and others to grab moneymaking opportunity or enhance career goals.
Anyone acting on principled identity and falsely accused of base motivations should be able to sue for defamation in the courts. Those suffering discrimination on the basis of unacceptable color, gender or creed criteria should be able to claim compensatory damages for themselves while seeking punitive damages on the offender. None of this requires speech, per se, to be criminalized.
Bolt and I are likely to be poles apart on our attitudes to social policy. But he has the right to voice his opinions as a columnist, no matter how controversial, subject only to the law of defamation.
If individuals are attacked by name, the requirement for due diligence on the part of the columnist, to get the facts right, increases. Bolt apparently failed this test. Had he been successfully sued for defamation, free speech issues would not have arisen.
Those who have applied under, received and accepted preferential treatment or awards based on group identity, instead of open competition, should not be allowed to stifle public debate on the issue. Otherwise it is invoking the power of the state to intimidate critics from raising policy matters of broad significance and public interest.
If entitlements are based on identity, then distinctions and decisions based on identity — and the very basis of identity itself — can, should and must be publicly debated and defended.
The Australian government spends around $3.5 billion annually on indigenous affairs. The beneficiaries of this largesse can be expected to use every tool available to protect their generous slice of the public pie, including the to use of racial discrimination laws to insult, humiliate, intimidate and silence critics.
This is an entirely predictable outcome of any such laws in any country in the world with identity-based public preferments and entitlements. Since it is so predictable, to call it an unintended outcome is perverse.
Identity-based public entitlements are instruments for entrenching sectarian divides and deepening sectarian tensions in the future more than ameliorating their damaging consequences in the past.
When privileges and assistance are conferred by choices made, leaving it solely to self-identification is a recipe for perpetual conflict. Would it be sensible and prudent to restrict group-based preferential treatment to those who can establish that either one parent or grandparent belonged to that group?
If people are sensitive about and offended by links being made between identity and benefits, the simple solution surely is to remove the link — not stop commentators from drawing attention to them Framing laws on the basis of offended sentiments takes anti-discrimination a step too far. It threatens the very essence of human rights that form the basis for much anti-discrimination laws.
Freedom of expression is a core human right; free speech is in practice meaningless if it does not include the freedom to offend: It is always easy to tolerate the like-minded.
Freedom from racial intolerance should not be extended to prohibit the discussion of the general principle (as opposed to specific individuals) of identity-based offices and grants providing perverse incentives to distort identity choices and heighten racial tensions.
Ramesh Thakur is professor of international relations at Australian National University and adjunct professor at the Institute of Ethics, Governance and Law, Griffith University.
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