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Short of force of arms, there is surely no more awesome power in the modern world than the ability to define and represent people in the public eye. It is power that is held, to some extent, by every journalist and indeed by everyone who has the power to publish, which these days is just about all of us.

But some of us have more of this power than others. Such as Herald Sun columnist Andrew Bolt, who, by virtue of his large audience, has power in spades.

Next Wednesday, a racial vilification case brought by a group of Aborigines against Bolt is scheduled to begin in the Federal Court. Both sides are determined to fight it to the max. By the time it ends, we can expect to have a profound new precedent on the balance between freedom of speech and the prohibition of race hate.

It is a fascinating case, because rather than involving simple vilification or hate speech, it is about the right to determine one’s own identity in the public eye.

It is about race hate and freedom of speech, but it is also about identity, and the ability of the media to say who you are. Although in one sense, the stakes are low — there will be no criminal penalties — it is easy to see why this case will be so hotly contested.

From the Herald Sun’s point of view, it is about freedom of speech — which brings with it the implication that columnists have the right to offend, and that we should tolerate strong views with which we disagree.

But from the plaintiffs’ point of view, it is about the right to determine one’s own identity, and the right not to be defined by the likes of Andrew Bolt. This matter has already been, as all racial discrimination cases must, to the Human Rights and Equal Opportunities Commission, where conciliation has failed.

So what is it about? The Aborigines, including some of our most prominent indigenous activists, artists and academics, claim that Bolt stepped over a line when he wrote that, because they were of mixed ancestry and had white skins, their choice to identify as Aboriginal was political, “hip” self serving and of benefit to their careers.

The group will be represented in court by former Federal Court judge Ron Merkel, who has a history with the ideas involved.

He was the judge who brought down the judgement in  Shaw v Wolf , in which the Aboriginality of Tasmanians running for election to ATSIC was challenged. In that sensitive and highly literate judgement, Merkel quoted from the work of Aboriginal authors Sally Morgan and Roberta Sykes on how they came to identify as indigenous before arriving at the conclusion that Aboriginal identity was not only a matter of appearance, but a complex thing combining ancestry, self identification and community acceptance.

Merkel said in his judgement:

“In a democratic society individuals have the right to adopt such identity and culture as they may choose to adopt. Likewise, subject to human rights and equal opportunity legislation, communities in such a society are free to recognise or refuse to recognise the identities or cultures adopted by the various members of that society. Those are matters of sociology and generally there should be little or no role for the law in that process. … Aboriginality as such is not capable of any single or satisfactory definition. Clearly the Aboriginality of persons who have retained their spiritual and cultural association with their land and past will differ fundamentally from the Aboriginality of those whose ancestors lost that association.”

It is a view that was echoed, at the time Bolt’s column was published, by Chris Graham, the then editor of National Indigenous Times, who wrote in Crikey

“Under Bolt’s rules, other people get to define your identity. Under Bolt’s rules, all we are is how we look. Which is nonsense. There’s more to human beings than their appearance. Race runs much deeper than skin colour.”

 These are passionately held beliefs. But the notion of freedom of speech is also passionately held. As was argued in this piece on the ABC Unleashed site, if we want the freedom to say that Andrew Bolt is a tosser, then we have to allow him the freedom to say nasty things too.

Freedom of speech brings with it the presumption that we will be offended by some of what we see and hear. There is no right, in modern media-driven society, not to be offended.

When the Racial Discrimination Act was amended in the mid-1990s to include racial vilification, the legislation was controversial and the government had trouble getting it through — hence, no criminal penalties, and exemptions that you can drive a truck through.

The Act makes it unlawful for a person to “do an act” in public that is likely to “offend, insult, humiliate or intimidate another person or a group of people” on the basis of their race.

But the exemptions cover anything done in good faith in an artistic work, in academic debates and “fair comment on any event or matter of public interest, if the comment is an expression of a genuine belief held by the person making the comment”. Which would seem to me to give Bolt plenty of room to move.

There aren’t many relevant precedents, but in one case an offensive cartoon in the West Australian was held not to transgress against the Act and to be in “good faith”.

On the other hand, Bolt’s column may well have been defamatory of the individuals concerned, since it clearly implies they are being opportunistic and less than honest, even though half way through he included a disclaimer denying that he was saying these things. But the Aborigines have chosen to make this a matter, not only of their right to reputation but their right to self-determined public identity.

The result will be a fascinating and very important case. One to watch.

Peter Fray

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