Andrew Bolt found to have contravened Racial Discrimination Act

By Legal Eagle

“The best way to get a bad law repealed is to enforce it strictly.” Abraham Lincoln, 16th President of the United States

Bromberg J handed down judgment in favour of the plaintiffs in Eatock v Bolt [2011] FCA 1103 this morning. You may recall that I wrote a post while the case was being heard. Bromberg J found that Bolt’s newspaper article contravened s 18C(1) of the Racial Discrimination Act 1975 (Cth), which provides as follows:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

His Honour found that Bolt’s articles were likely to offend, insult, humiliate or intimidate them and that they were written because of the race, colour or ethnic origin of the plaintiffs.

Bolt and the Herald and Weekly Times were not entitled to any of the defences under s 18D of the Act:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or

(ii)  a 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.

His Honour found that Bolt had not written his articles with care and diligence, and accordingly, that Bolt’s activity was not pursued reasonably and in good faith such that he could rely on any of the defences under s 18D.

The conclusion around the blogging traps, from sites as different as Larvatus Prodeo and Catallaxy, is that the provisions of the Racial Discrimination Act upon which the plaintiffs relied are problematic. I agree. As I have outlined previously, I did not agree with Bolt’s articles and I think that the issue of Aboriginal identity is a very complex one, and attempts to simply reduce a discussion about Aboriginal identity to simple skin colour is utterly wrong-headed. Nonetheless, I am deeply concerned about provisions which seek to prevent people from expressing views simply because such views offend. In my previous post, I said:

…my guiding light determining the reach of the law is John Stuart Mill’s “Harm Principle”: the law can intervene to restrain the actions of an individual if those actions are harmful, but not if they are merely offensive, because the freedom of speech militates that people should be able to express an opinion even if it is offensive. The other thing is that offense is a very subjective concept. So someone may fall foul of this law because they offended another, but they had no intention to do so.

No, it’s not pleasant to be offended and personally attacked. I can understand why the plaintiffs were hurt. However, I fundamentally do not believe that this is the kind of conduct which the law should regulate. Part and parcel of the right of free speech is that people may be offended and hurt in the rough and tumble of exchange of views. The law of defamation deals with public statements which harm reputation, and I think that this is where the limit of law should lie (subject to defences). The 2005 amendments to the Racial Discrimination Act should be removed.

Ultimately, too, I wonder whether this action will be counterproductive. Now the plaintiffs have made a martyr out of Bolt and given his comments a prominence and credence which they never had before (I had not read them at the time, I assure you). I suspect there will be an appeal, in any case. I’ll come back with further comments when I have read the judgment more fully (at the moment I have just skimmed it).

Thanks to David Barrow for tipping me off about the imminent judgment.

Update: Sinclair Davison’s piece at The Conversation makes some similar points (although we differ quite fundamentally on whether the market is adequate to deal with this issue).

Update 2: Mark Bahnisch at Sed probate spiritus in favour of the decision.


  1. Posted September 29, 2011 at 12:25 pm | Permalink

    Ah, yes, any personal comments about the judge will be summarily deleted. It was wrong when Gillard did it to French CJ, and it remains wrong when people do it in this matter. (I also used to work for a judge in superior courts.)

    Also, apologies to Mel for not spotting his joke. That piece of Mark’s is terrible, and I say that as someone who likes and respects him. It is a classic case of not understanding how the law works, or even what it is for. And I wouldn’t trust anything Michel Foucault says about the ancient world, on the grounds that he’s incapable of getting his facts straight.

  2. derrida derider
    Posted September 29, 2011 at 12:28 pm | Permalink

    Take it as read that Bolt’s article was factually wrong, offensive and calculated to appeal to the ignorance and illwill of people like Rafe above – in other words, a typical Bolt piece. Had it been otherwise on any one of these criteria he would have had a defence under this law, as indeed the judgement made clear.

    But like others I would be more comfortable if the individuals he defamed had taken him for money in a libel suit instead. I reckon the harm this law has done is less through any chilling effect on free speech than in giving more credibility to the sort of lowlife who could write those columns – and as others have pointed out, that would have been the case whatever His Honour found. Which is something the complainants should have though of before they brought he action.

    If we must have such a law, let’s make the penalty a couple of hours in the stocks, televised of course, where his victims can ritually ridicule him.

  3. Posted September 29, 2011 at 1:59 pm | Permalink

    A successful defamation action would almost certainly not had anywhere near as much “free speech” resonance, which Bolt is pushing for all it’s worth.

    Not that there are not free speech issues regarding defamation, but a defamation action that was successful due to demonstrated falsehoods would unlikely to have raised free speech flags and so would have been more of a clear “win”.

  4. Posted September 29, 2011 at 2:27 pm | Permalink

    The IPA has released a poll finding that 82% of respondents believe free speech is more important than protecting folk from being offended.

    “Free speech” would appear to be a winning framing of the issues.

  5. Posted September 29, 2011 at 2:46 pm | Permalink

    Having been defamed and unable to make use of the tort back then (something that doesn’t apply over here, due to the different legal regime), I have come over time to accept the legitimacy of the claim, responsibly used.

    Reputation is like a company’s goodwill; wreck it and you wreck the person (natural or juridical). But groups cannot have reputations at law: to argue that they do is to get into a logically fallacious mess of the ‘all Cretans are liars, said by a Cretan’ sort.

  6. Patrick
    Posted September 29, 2011 at 3:46 pm | Permalink

    I just agree with everything Mel has said. Also, SL, you might like Mark Bahnisch, but if so, why don’t you recommend he
    a) learn to write
    b) stop writing until he does
    c) get a ‘real’ job for a while (no offense to EL et al but I’m sure you know what I mean as well!)
    d) get over himself?

    Not necessarily in that order.

  7. jack
    Posted September 29, 2011 at 4:45 pm | Permalink

    my new-born grandson is one sixteenth part German.
    I hope he doesn’t goose-step when he starts walking.

  8. Posted September 29, 2011 at 5:16 pm | Permalink

    On affirmative action, this guest post by a black Stanford law professor puts the issue in a useful perspective:

    In the current Affirmative Action environment, blessed by our Supreme Court this past Monday, there is nothing that any American of African descent can do that can separate himself or herself from the unspoken accusation that he or she is the beneficiary of more than they deserve.

  9. Posted September 29, 2011 at 6:42 pm | Permalink

    I just read that post, Lorenzo. I feel dreadful for that man, especially how he’s been forced to engage in what is often considered awfully immodest behaviour in order to be taken seriously. It’s like LE and I putting our individual law grades (ie the percentages) on the ‘about’ page for this blog.

    And, oh happy ignorance, because I’ve never even had to think about affirmative action, I no longer know what those percentages are. I can’t speak for LE, but I bet she doesn’t know either!

  10. Rafe
    Posted September 29, 2011 at 7:58 pm | Permalink

    Hi Legal Eagle, as indicated in my Cat post (if the link works) I am entirely in favour of helping disadvantaged people. In Adelaide in the 1960s there was a program, possibly based at the university, to recruit volunteers to coach Aboriginal school children.

    So I spent an hour a week helping a 8/9 yo girl called Gloriasummer with arithmetic and english. She was in some kind of institution, probably a church organization. If this kind of thing was replicated in different forms across the country by all the people who cared we would have got better results than the waste of billions of dollars through government programs.

  11. Posted September 29, 2011 at 8:18 pm | Permalink

    [email protected] Quite. Linguist John McWhorter has a sophisticated discussion of affirmative action here: he is against it for universities.

  12. Posted September 29, 2011 at 9:14 pm | Permalink

    Just remembered this recent Canadian Supreme Court case concerning a racial Defamation class action, would you believe:

    Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9

    Through a class action, M sought compensation for the injury allegedly suffered by the members of the group he represents as a result of racist comments made by A — a radio host known for his provocative remarks — concerning Montréal taxi drivers whose mother tongue is Arabic or Creole. While commenting on the taxi industry in Montréal, A made accusations of uncleanliness, arrogance, incompetence, corruption and ignorance of official languages. The Superior Court allowed the class action and ordered that $220,000 be paid to a non?profit organization. The judge was of the view that the comments were defamatory and wrongful, and that even if the evidence did not show that each member of the group had sustained a personal injury, the collective recovery mechanism could make up for this. A majority of the Court of Appeal set aside the judgment, finding that an ordinary person would not have believed the comments and would have thought that the offensive accusations had been diluted by the size of the group concerned.

    …setting aside was upheld by majority of Supreme Court of Canada

    David C. Barrow Juris Doctor law student, RMIT Uni

  13. Posted September 29, 2011 at 9:57 pm | Permalink

    As SL writes, defamation is a claim made on an individual basis. Starting from there it is a challenge to see how a group proceeding would be of utility for defamation. But then if we consider a mass tort, the class action regime does some heavy lifting for the plaintiffs on issues of law and fact and then the individual claims for quantum of damages can be sorted out after all that — when there is a pot of money. What common issues could there be in something like the Bolt case to unify the defamation claims on a common issue? Well, what I’ve been thinking lately is that there are some common questions, unresolved, in all of this new media space about the very act of publication online. And that’s the “M” word. Moderation of posted articles and comments. As I understand it, every comment on the Andrew Bolt Blog is subject to pre-moderation. A human agent — sometimes even Bolt himself I imagine — authorises ever single comment that is posted in the threads… and with that human agency comes issues of liability for the publisher, both the real person publisher/moderator and vicarious liability for her/his employer/owner. This seems obvious and yet it doesn’t seem to have been tested — anywhere in the world as yet even — so there could be a common issue right there on a proof of liability for publication through the act of Moderation which could motivate a class action regime and the cost shield benefits and momentum that could be built on that common issue, should it be originated.

    I’m new to the Skepticlawyer site, but it seems to me to have a pretty healthy moderation protocol with all new users being subject to pre-moderation, and then there is presumably some reasonable vigilance within reasonable timelines to remove any possibly defamatory material posted by the more privileged contributors who inadvertently post it or what not. Compare this with something like the Bolt juggernaut (in fact there is nothing like the Bolt juggernaut in Australia). There are perhaps 10 articles per day, so say 4000 per year, each of which have 50 or so comments that are approved, so that’s 200,000 comments! There might be some liability exposures in all that mix — perhaps even reaching all the way into the bank account of New Limited.

    David C. Barrow Juris Doctor law student, RMIT Uni

  14. Posted September 30, 2011 at 8:01 am | Permalink

    LE @66 — that’s interesting stuff. Following your links I note SL on 19 Oct 2010 re the approach:

    Before your very first comment appears on the blog, it goes into automatic moderation. This gives us the chance to ascertain if the email address is genuine and to see if the commenter is coherent.

    This process isn’t bullet-proof, of course — sometimes people are perfectly civil commenters to begin with but then become rude over time (this has happened to us a few times). Most of the time, however, first impressions turn out to be accurate ones.

    If we didn’t have automatic moderation, the whole blog would simply be overwhelmed with spam. Basically, we receive a piece of spam for every legitimate comment, and having written for a much bigger blog than this one (Catallaxy) and talked to LP’s Mark Bahnisch, I know this mathematically direct relationship is maintained regardless of the size of the blog. LP and Catallaxy get absolute shedloads of spam.

    Dr Matthew Collins (Senior Junior for Bolt & HWT in the racial discrimination case) has written a tome on The Law of Defamation and the Internet (now in 3rd ed, OUP).

    Collins digs up an old authority of Byrne v Deane [1937] 1 KB 818 where proprietors of a golf club failed to remove a notice which was allegedly defamatory of the plaintiff from a noticeboard within the club. It was held that the proprietors had taken part in the publication by leaving the notice up too long after the plaintiff asked it to be removed. So there’s a temporal element there. And this arguably has relevance to a modern day notice board we call blogs.

    David C. Barrow Juris Doctor law student, RMIT Uni

  15. kvd
    Posted September 30, 2011 at 8:26 am | Permalink

    [email protected] I just love that a 1937 case about an errant scrawl on a golf club noticeboard has direct relevance to what is now under discussion! And I mean that quite sincerely. But I mainly comment here to express this layman’s appreciation for your contributions here. Thank you.

  16. Posted September 30, 2011 at 8:45 am | Permalink

    Oh thanks for kind words [email protected] — I’m a law student: somewhere between lay and pro. The chicken and the egg? Neither fish nor fowl?? Oh what a horrible tangle of metaphors, with apologies.

    David C. Barrow Juris Doctor law student, RMIT Uni

  17. Ros
    Posted September 30, 2011 at 4:30 pm | Permalink

    I have struggled through and am not reassured, about the ruling and particularly not about what has been done to our freedom of speech. And I often irritated by the extent to which the members of the legal fraternity seem to forget that the law in the end is ours in a democracy, not an entity owned by and to be understood only by them. Not suggesting this is the case here, but many judges certainly make it seem that citizens are irrelevant to the story. No ordinary citizen will know how they are allowed to act from this exercise, and it would be a lucky journalist who doesn’t get it wrong. A nightmare. Be interesting to see whether it exponentially increases grievances.
    So Maybe we are outraged because we are also so confused, e.g. seems that we have had imposed on us a law that says that journalists can be mean and nasty (consider Marr) to most of us, but not some of us by virtue of belonging to some sub-group. That it is very much more relevant, and unlawful, to be mean some of us. Why? Because it injures our social cohesion and tolerance? Does it? More so than offence to the older members of society e.g. who certainly had a pasting from some of the journos and intellectual elites for having views about carbon taxes for example.
    “Additionally, having observed Mr Bolt, I formed the view that he was prone to after-the-fact rationalisations of his conduct.”
    Well yes he was there and I wasn’t. The implication, that Bolt is lying. Years down the track Bolt is required to reproduce his thought processes at the time. I note that , as I get it, his testimony was basically discounted anyway. The plaintiffs only have to say how they feel now. Studies of ability to pick up lying almost without exception find that it is a skill that very few have, including the legal profession.
    Are the theories about the effects of opinions such as Bolt’s being an increase in racial prejudice evidence based, or just a belief of the legal profession. Couldn’t work out who, or what were the qualifications of those granted expertise in such matters, were they social scientists, or psychologists, or other lawyers.
    “Acts which are reasonably likely to cause offence, insult, humiliation or intimidation of that kind have “profound and serious effects” and are caught by s 18C(1)(a). That kind of likely offence is not to be likened to “mere slights”. It has a real potential to lower the pride and self-image of the person or group attacked and thereby inhibit the participatory equality in the affairs of the community which the group and its members are entitled to enjoy. Conduct with these consequences threatens the dignity assurance which all citizens are entitled to be accorded.”
    I find that quite strange. Or a lot of piffle.
    As the defence argued all public figures can expect to suffer offence, insult, humiliation. There does seem to be substance to the tall poppy complaint about Australians, and the notion that we are culturally inclined to be blunt or offensive. But then community standards are not as important here as to the rest of us it seems.
    Even though this was brought by a group of people because they were offended, this ruling just says again, Aborigines can’t quite cut it like the rest of us. And there should be many Aborigines grateful that Noel Pearson isn’t cut with the same cloth.

  18. kvd
    Posted September 30, 2011 at 5:27 pm | Permalink

    [email protected] that’s a very eloquent comment. Thanks. And I agree with LE’s comment just above.

    I was reading a Nicholas Rothwell piece in The Australian this afternoon, and I thought this small clip was worth repeating:

    Just as much as desert paintings incarnate the eternal dreaming, they bring to mind the devastated condition of the remote centre and north. “If you rate the art so high,” a foreign connoisseur is apt to ask, “why not do more to promote the wellbeing of the artists and the survival of their world?”

    Rothwell proffered no answer, and neither can I.

  19. Posted September 30, 2011 at 8:45 pm | Permalink

    Another Noel Pearson fan here too 🙂

  20. Mel
    Posted September 30, 2011 at 9:15 pm | Permalink

    I like to listen to Noel Pearson too, but unlike Lorenzo I am not inclined to hero worship. Basically, I don’t trust anyone’s judgement, not even my own, hence my adherence to a skeptical and lugubrious brand of mild social democracy:)

  21. Posted October 1, 2011 at 1:29 pm | Permalink

    [email protected]:

    A fan, sometimes also called aficionado or supporter, is a person with a liking and enthusiasm for something, such as a band or a sports team.

    Hero worship is defined as the foolish or excessive adulation for an individual.

    If you think they are the same thing, you need to get out more.

  22. Adrien
    Posted October 1, 2011 at 1:56 pm | Permalink

    I don’t trust anyone’s judgement, not even my own, hence my adherence to a skeptical and lugubrious brand of mild social democracy

    So in your nihilism you choose the ideology that best fits with your self-acknowledged erroneous capacity to reason. Does it keep you warm at night?

    I think it’s better to adhere to a warm dog or a wine bottle myself. I tried adhering to a politician once but it reminded me of the time a snake tried to attack me.

  23. kvd
    Posted October 1, 2011 at 2:36 pm | Permalink

    I think it’s better to adhere to a warm dog or a wine bottle myself

    More preferably both. At the same time.

  24. Hillbilly
    Posted October 2, 2011 at 5:54 pm | Permalink

    Legal Eagle and Skeptic Lawyer

    In 2002, ABC 4-Corners had an excellent program titled ‘Blackfella, Whitefella’ about the controversy then raging on Aboriginality in Tasmania. Quentin McDermott interviewed many people including leading Aboriginal activists and respected historians plus some of those claiming Aboriginality.

    I would appreciate you Googling ‘4C Blackfella,Whitefella’ and reading those interviews and the transcript of the program and also have a look at the ruling given after the trial about Aboriginality presided over by Ron Merkel J in the Federal Court which is mentioned in the program.

    Of course, those were the days when such open and frank debate had no chance of being ruled unlawful.

    After the Bromberg J ruling against Bolt, I doubt whether such a program would ever be made again or if it was, whether participants would have the courage to express the forthright views they did in the interviews with Quentin McDermott.

    In my opinion, it would now be worthwhile for all Australians to examine those interviews.

    Footnote. In an interview on his retirement as a Federal court Judge to resume practice as a QC, Ron Merkel made many interesting comments.

    In the current context of having been the prosecutor against Bolt and his extraordinary attack on him during the trial, I find two of those comments rather relevant.

    (Should I take the risk of using inverted commas for the quotes?)

    Speaking about the Migration Act, he had this to say.

    “The Act has become some kind of legislative monster, with so many sections and so many regulations, and some of them are quite self-contradictory, that the way of making it work is far from easy, and it often has unintended consequences, both for politicians and for the people who are covered by such laws.”

    It appears to me from the outcome of Bolt’s case, the same could be said of the Racial Discrimination Act!

    Ron Merkel again: “I suppose the wonderful thing about living in a democracy is everyone, including the Attorney General, is entitled to have an opinion.”

    Many Australians are now wondering whether they still have that entitlement!!

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