Thursday, December 09, 2010

Bolt case reflects hollow commitment to free speech

The courtroom is no place to shut down even the most offensive opinions

"SORRY, Janet. To better defend my right to free speech, I should stay silent." So said Herald Sun columnist Andrew Bolt recently when I asked him about the Federal Court action brought against him by Aborigines claiming that he "offended, insulted and humiliated" them in breach of the federal Racial Discrimination Act.

The case is due back in court on Monday and Bolt has been advised that the best way to defend his right to free speech is to not speak about the matter. Welcome to the West's wacky commitment to free speech.

It gets worse. Many who have penned a defence of Bolt's right to express his opinion have offered up a sniggering, begrudging defence littered with a great deal more insult and offence than anything Bolt wrote in the columns now the subject of litigation.

And it gets still worse. A single judge will be asked to form an opinion as to whether Bolt, an opinion columnist, is entitled to express his opinion.

Bolt and his employer, Herald and Weekly Times Ltd, are not being sued for defamation. Neither is the allegation that they used words to incite violence. Quite rightly, the law will censor speech in such circumstances. No, Bolt simply expressed an opinion that there is a fashion for some light-skinned people to self-identify as Aboriginal which is divisive and has the unfortunate aim of entrenching racial differences.

In two columns written last year, Bolt says a number of people, often more European than indigenous, have been able to advance their careers by applying for positions, prizes and scholarships by self-identifying as Aboriginal. He says it is "sad that we harp on about differences and rights based on such trivial inflections of race". For expressing these opinions, Bolt must now front up to court.

Never mind that Bolt acknowledged that these people may have identified as Aboriginal for "the most heartfelt and honest of reasons". Never mind that Bolt expressly says he is not accusing them of opportunism. His aim is that we move "beyond black and white to find what unites us and not to invent such racist and trivial excuses to divide".

Yet the claimants are demanding an apology, a retraction "and any other redress as is deemed appropriate". Welcome, once again, to the wacky world of free speech in the West, where the law hinders open debate about the implications of people who choose to self-identify as Aboriginal.

Of course, if the law allows such claims to be made, no criticism can be made of those who exercise their legal right to sue. However, the law is, in this respect, undoubtedly an ass.

The inconsistent way such a law can be used only compounds its hypocrisies. For example, in a 2002 article in Good Weekend Magazine discussing the vexed issue of establishing Aboriginality, Larissa Behrendt, a well-known indigenous legal academic, said: "If that [issue] isn't resolved, you run the risk of having the parameters stretched to the ludicrous point where someone can say: 'Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal.' "

We are entering dangerous territory if the case against Bolt succeeds. Too often, claims made under the plethora of human rights acts can appear to have the result - intentional or not - of shutting down particular views and, even more troubling, particular people who challenge the politically polite views of progressives.

Bolt, a white conservative man loathed by the Left, is sued. Behrendt, an indigenous progressive woman, is not. Instead, Behrendt is listed in the Australian Human Rights Commission complaint form as one of those likely to be "offended, insulted and humiliated" by Bolt's comments.

While the complainants in the Federal Court are no doubt well intentioned, and are perfectly entitled to exercise whatever rights the law gives them, ill-drafted statutes can hijack free speech in pursuit of special interest political agendas. Vaguely drafted provisions proscribing speech that is "offensive" "insulting" or "humiliating" scream out to be pressed into the service of stifling debate.

In Canada, Mark Steyn, another white conservative writer, was hauled in front of a human rights commission to defend his views about multiculturalism and the growing conflict between Islam and the West. In Germany on Friday, the politically moderate German Chancellor Angela Merkel made similar remarks. She said that multiculturalism had "failed, utterly failed" in Germany. It was time for people to integrate, she said. Will she be sued for offending those who haven't integrated?

Let's hope not. The courtroom is no place to determine even the most contentious political debates or to shut down even the most offensive opinions. The prosecution of Geert Wilders, the Dutch politician now facing a retrial ordered in October for inciting hate and discrimination against Muslims for criticising Islam, is political, not legal. There are no useful legal tests about hurt feelings or inciting hate. As Oliver Kamm wrote about Wilders, "the state has no business concerning itself with how its citizens feel".

It's unfortunate that this needs to be said again and again. Freedom of expression is meaningless if it does not include a right to be offensive. The real gem at the core of Western progress is the free market of ideas where better ideas triumph by exposing, challenging and contradicting the dud ones. Many views that were once regarded as too offensive to air have been vindicated. Hence Merkel's new-found courage to talk about integration, not multiculturalism.

Even if Bolt wins in court, we lose. Misguided racial discrimination and vilification laws can kill free speech slowly by threatening censorship. Create a bureaucracy and watch its empire blossom. Even some who supported the creation of human rights commissions are having second thoughts. A robust democracy is fuelled by debates that often offend some people. We sharpen our minds and bring clarity to ideas through open, reasoned discussion. By setting up empire-building bureaucracies to shut down offensive views proscribed by ambiguous laws and determined by a handful of judges, we import the standards of censorship found in countries across the Middle East.

That's why the case against Bolt is wrong. Before you say "She would defend him, wouldn't she?", remember that she also defended Phillip Adams when he was the subject of a racial vilification complaint. Adam's view after September 11 that the US was its own worst enemy was offensive. But the notion that he could be hauled before some bureaucracy to censor him is far more offensive to our liberty.

Sadly, some progressives have tried to bask in the sunlight of the high moral ground that comes from defending free speech while aiming a series of insulting slurs at Bolt. When you spend so much time dumping on Bolt, rather than arguing a straightforward defence of free speech, your commitment looks phony.

Free speech is not a Left v Right thing, as Steyn said. It's a free v unfree thing. The case against Bolt shows we are all unfree.


Oprah's handlers tell Melbourne doll shop to remove golliwog

I had a Golliwog myself when I was a little kid. They were always popular in Australia and Britain as a child's soft toy. The explanation of their origin given below is absurd. See my previous post on the matter
"A MELBOURNE doll shop has withdrawn a golliwog from its display to avoid offending the Oprah Winfrey roadshow. The store removed the "Mamee" washer woman dolls after a visit by Oprah's production company.

But the Dafel Dolls and Bears shop in Block Arcade - where 110 of Oprah's guests will attend a cocktail party tomorrow night - will continue to display other golliwogs. Golliwogs are deeply offensive to Americans because of their perceived links to slavery and racism.

The store owner declined to comment because she had signed a confidentiality agreement with Harpo productions, but confirmed a meeting had taken place. "Oprah's people came ... and yes it was discussed," a source familiar with the agreement told the Herald Sun. "As a result, they won't have that particular doll on display. But there will be plenty of other gollies when they come through."

The golliwogs still on display at Dafel's have an explanatory note on the origins of the black dolls, a throwback to the toys enjoyed by Egyptian children when British troops occupied the country in the late 1800s.

Dafel's has sold dolls and toys, including golliwogs, in the Block Arcade since 1945.

Last year Australia faced international condemnation when American singer Harry Connick Jr expressed his shock at Hey Hey It's Saturday for broadcasting a minstrel sketch and asking him to judge the performance. [LOL!]

UK publishing company Macdonalds, which put out the Noddy books featuring a gang of golliwogs, decided in 1987 the dolls were racially derogatory.

But golliwog defenders say they have nothing to do with racism and are seen by children as just bright and friendly dolls.

A spokeswoman for Oprah's Ultimate Adventure declined to comment on the Block Arcade golliwogs.

The talk show queen jetted into Cairns and then on to Hamilton Island yesterday on the first leg of her Oprah Down Under tour.


PM Julia Gillard urged to rethink energy and industrial relations policies

PRODUCTIVITY Commission chairman Gary Banks has warned Julia Gillard against subsidising alternative energy sources.

Mr Banks urged the Prime Minister to rethink her industrial relations laws for the sake of national productivity.

Mr Banks, the government's chief economic adviser outside of Treasury, has also warned against responding to the nation's two-speed economy by "hobbling" the mining sector and called for cutbacks to taxpayer-funded assistance to manufacturers.

Ahead of Wayne Swan's announcement of new banking sector rules, he sounded a warning about over-regulating the sector.

In a speech in Sydney yesterday, Mr Banks also appeared to question the standard of political advice provided to the Rudd and Gillard governments, noting that the Hawke and Keating Labor governments delivered major economic reforms while being advised by "high-calibre" staff.

In recent speeches, the Prime Minister has sought to embrace the reformist heritage of previous Labor governments, promising to focus on education and training and to apply market-based principles to service areas such as health.

But her government has encountered difficulties in its water, health and tax reform programs, as well as delays in rolling out an upgrade of its My School website and its planned national curriculum for schools.

Yesterday, as Ms Gillard expressed confidence that the election of a Coalition government in Victoria would not compromise her ability to deliver economic reform through the Council of Australian Governments, Finance Minister Penny Wong ordered all departments to overhaul their processes of auditing major program delivery.

But Tony Abbott said the government did not understand economic reform.

"To the Rudd-Gillard government, reform is imposing big new taxes, spending taxpayers' money and holding intergovernmental talk-fests," the Opposition Leader told The Australian last night.

"Virtually the entire policy agenda of the government is either stalled or characterised by shambolic mismanagement," he said.

Mr Banks, in an address to the forecasting conference of the Australian Business Economists group, did not explicitly criticise the government.

But he did make clear he believed some government and opposition policies would do little to lift productivity, which he described as "the mainstay of economic progress".

Warning that the "renewed policy priority being attached to carbon pricing" had significant implications for productivity, Mr Banks said the main benefit of putting a price on carbon might be to displace subsidies for alternative energy technologies.

"Unfortunately, most of the programs in question serve more as industry assistance than environmental assistance and they will accordingly be difficult to terminate," Mr Banks said.

Apparently referencing the government's planned mineral resources rent tax, he said in the circumstances of a tight budget and a two- or three-speed economy, the government should deliver reforms that could reduce business costs and enhance the economy's supply-side responsiveness.

"Attempts to counter structural pressures by either hobbling the mining sector or (further) assisting manufacturing could only detract from Australia's longer-term productivity performance and living standards," Mr Banks said.

"Indeed, there is a stronger case than ever right now for reducing any government assistance to manufacturing or other activities, that is not justified by genuine market failures, to free up skills needed for expanding sectors."

He also called for "evidence-based" policy in industrial relations, saying it was vital that regulations intended to promote fairness in workplaces did not detract unduly from their productivity.

In clear references to the government's Fair Work Act, he said: "If we are to secure Australia's productivity potential into the future, the regulation of labour markets cannot remain a no-go area for evidence-based policymaking."

Mr Banks questioned the value of favouring subsidised local production of defence assets over imports, investing in infrastructure with no net social benefit and using the public sector to deliver human services such as health when they could be provided more cheaply by the private sector.

Labor is resisting pressure to have the Productivity Commission conduct a cost-benefit analysis of its $36 billion National Broadband Network.

Ahead of the Treasurer's expected release of banking reforms tomorrow, Mr Banks said the need for regulatory vigilance had been heightened by the global financial crisis and its aftermath.

He said Australia had dodged a bullet by avoiding being forced into implementing template international regulatory changes "but recent domestic proposals - such as to address alleged 'price signalling' - pose risks of their own".

Mr Banks also warned against governments taking on too many big reforms at one time, noting that COAG had 200 policy initiatives on its books.

Ms Gillard was not available late yesterday to respond to Mr Banks's speech.


Smart kids being ignored in Australia -- with the inevitable result

And given the now demonstrated truth of smart fraction theory, that's pretty bad for Australia. The national well-being would be better served by treating them exceptionally attentively.

Most very bright students will do well regardless of the system, however. My educational development was retarded rather than assisted by the environment into which I grew up but I still sailed through the system without a care. I even taught myself (successfully) the last two years of the High School curriculum!

THE number of high achievers is shrinking because all the attention goes to the weak.

THE results of the Program for International Student Assessment every three years are highly anticipated in education circles and are dissected for years afterwards.

Unfortunately, the 2009 report released this week has been cause for dismay. Australia was one of very few countries to have a significant decline in its average reading and mathematical literacy scores. This decline is attributed largely to a reduction in the proportion of students performing at the highest proficiency levels.

It is important to bear in mind that country comparisons need be considered with some caution. Comparing city-states such as Hong Kong and Singapore with a country that has a widely dispersed population like Australia has obvious problems. It might be more defensible to compare these cities with Sydney or the ACT. However, even putting aside the international rankings, the fact remains that Australia has failed to meet its own previous standards.

The bad news about our PISA performance should not come as a shock. Australia's relatively low representation at the top of the academic spectrum was evident in PISA 2006. Shamefully, it was not taken seriously at the time.

The PISA report does not offer any explanation for Australia's shrinking pool of bright sparks. It rejects the argument that there has been a focus on students at the low end of the academic range at the expense of students at the top, apparently on the basis that there has been no change in the proportion of low achievers. Logic suggests this does not mean that there has not been increased attention paid to these students, just that it hasn't worked. In my view, education policy over the past decade has leaned heavily towards alleviating the effect of social disadvantage and lifting the performance of low achievers. These are important aims. Unfortunately, the evidence indicates that not only have low achievers not benefited, high achievers have suffered.

In all countries participating in PISA there is a positive relationship between socioeconomic status and literacy performance, to varying degrees. The strength of this relationship in Australia has reduced from PISA 2000 to PISA 2009. In 2000, Australia was described as a high-quality, low-equity country. By 2006, Australia was no longer judged to be a low-equity country and in the 2009 results released yesterday, Australia is now slightly better than the international average in terms of the impact of socioeconomic background on literacy.

Nonetheless, a socioeconomic literacy gap was still evident in PISA 2009, particularly among students with the lowest literacy performance. Only 5 per cent of children in the highest socioeconomic quartile scored in the Level 1 literacy bands, compared with 24 per cent of children in the lowest socioeconomic quartile.

But there is more to the relationship between social background and school performance than meets the eye, and our understanding of this relationship has profound implications for policy.

Over the last decade, a number of studies, including PISA, have shown that socioeconomic variables are stronger at the school-level than the individual level. That is, the mean socioeconomic status of a student's school has a larger impact on their achievement than their own socioeconomic status.

These findings have been accompanied by research looking at the ways ways in which school-level socioeconomic status might affect the academic achievement of students. Gary Marks's research in this area has led him to argue that the academic context or "climate" of the school is more important than the socioeconomic status of the students themselves.

The association between socioeconomic variables and literacy is not inevitable -- there are high-performing students from disadvantaged backgrounds as well as low-performing students from advantaged backgrounds -- and it is mediated by other factors, such as quality of instruction and school climate. Marks says: "there is no deterministic relationship between socioeconomic background and low achievement". There is good reason to believe that the entrenched literacy gap can be substantially reduced.

The problem remains in finding a way to target resources without creating a new form of disadvantage. Geoff Masters, chief of the Australian Council for Education Research, once said that any student whose needs are not being met is disadvantaged. It seems that at the moment, our high-ability students fall into this category.


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