“The best way to get a bad law repealed is to enforce it strictly.”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.
79 Comments
I have a piece up at The Conversation that makes similar points.
At the Cat I proposed that an appeal to the HCA is possible — on the basis that Bolt’s remarks went to the criteria for disposition of Commonwealth funds; hence political in content.
But honestly, it’s a silly law.
I don’t really like the law. I might add this is as a result of giving it some thought after the last time it was discussed. I was in favour of it originally but after thought I examined my justifications. In the end I could not find a justification for the law that worked for me. Teach me to read this blog, make me go thinking and trying to defend my position of stuff.
In this instance there was a no win situation developing. Had Bolt been found to not have breached the law it had the potential to encourage Bolt and similar to greater heights of unsavory discussion.
Agreed, RipleyP, it was a no-win case – no outcome was good.
We have to be careful that such laws are used to silence dissent.Alan Jones this morning was calling on Barry O’Farrel to toughen up the drunk and disorderly laws and arrest people rather than moving them on.
If we can be arrested,who is to define disorderly when many these days are protesting about carbon taxes and austerity measures to fund share market scammers?
The real criminals are at the elites of our society and continue to milk the tax payer under the ruse of “quantative easing” which is really counterfeiting or bailouts that should never have happened.
Against Alan Jones I don’t see being drunk and disorderly as a crime that calls for police action unless actual criminal acts follow. Maybe moving people on can reduce that outcome, it is all about good policing by experienced and confident officers. [I say confident because they have to be able to put uup with a lot of shit and then make hard calls and carry through. It is no good if they are intimidated into doing too little or too much]. As SL will vouch, I am a disgustingly well behaved and sober person,and I profoundly deplore bad behaviour in public but we really don’t want to have the police sucked or forced into heavy-handed policing.
As for the Bolt case, I think that affirmative action (racism?) for ATSI people has gone well over the top. Once upon a time something like half caste status was required to count.
The extension of Aboriginal status to 1/16 is over the top, indeed the whole affirmative action (racism?) thing has been counterproductive. Once upon a time half caste status or better was required to count. With the wisdom of hindsight that looks like a good idea.
.
That comes from a profile of A P Elkin, an early activist for Aboriginal advancement.
To this non lawyer there appear to be three separate points of interest: Is this decision “reasonable” in terms of the law as it exists? Is the law as it exists worth keeping with modification, or should it be scrapped? Third: principles aside – does anyone care about the individuals used (trashed/abused?) to highlight the preceding two issues?
And I’ve got to say that the piece in ‘The Conversation’ where it talks about “let the market decide” is quite possibly the most fatuous piece of commentary I’ve ever read.
Insofar as the reputations of the plaintiffs were damaged, perhaps the law of defamation would be better as a vehicle for vindicating such harms. As I said on Facebook to a friend, I think the right approach to this kind of wrong is to write a reasoned refutation responding to Bolt’s statements. To be honest, I think that any reasonable person who knows anything about aboriginality and aboriginal identity would know that things are complex in this area.
As for me, I’d prefer to prevent racial discrimination by regulation (cf SL, who I think might prefer not to). What I don’t like is affirmative action or attempts to regulate “mere” offence.
‘people may be offended and hurt in the rough and tumble of exchange of views.’
Many people, especially young people, have been known to commit suicide after the ‘rough and tumble of exchange of views’. What you’re calling rough and tumble, I call hate speech, and it can be every bit as destructive as punching someone in the face. Assault can also be dismissed as ‘rough and tumble’, but I doubt anyone here would think it ought to be legalised.
I have a piece up at The Conversation that makes similar points.
Jay-sus you cop a lot of abuse.
Not sure what to make of the decision. Certainly will cause a few motormouths to pause & think.
Yep – those people probably talk to their students like that too.
PC, obviously there’s a line which you shouldn’t cross – where conduct becomes abusive, it is criminal.
I acknowledged in the post that such speech as Bolt’s can be deeply hurtful.
I know that people can become suicidal after being attacked. Actually, I had an indigenous friend who became suicidal after slurs – but the slurs came from other indigenous people who objected to her beliefs, and the fact that she challenged their position as official “voices” of the community.
It was with some sadness that I saw today that Carol Martin, the first indigenous female MP in Australia, was stepping down after being called a “toxic coconut”. Clearly that was pretty damaging.
But should all speech that hurts people be stopped? Where would you draw the line? Should Martin be able to sue people who called her a toxic coconut? Should my friend be able to sue the mob who had a go at her? Would it make a difference to your answer depending upon whether the source of the abuse was indigenous or non-indigenous?
What of, for example, the picketers who picket Max Brenner? (which is an example I think Sinclair uses in his post) Would you sue them for hate speech? If not, why not? It’s directly based on ethnic, religious and national identity.
I don’t think that this decision is actually going to change the mind of anyone who believed Bolt’s column. It will just make them even more on his side. I think this will make a martyr of him. Mind you, I would also have been doubtful about the result had he won.
I also think that it is legitimate to have conversations about aboriginal identity and how best to provide aid to needy aboriginal people, rather than to just try and close down conversation. The problem with Bolt’s column was that it was apparently inaccurate in certain details. To the extent that it was inaccurate and injured reputation, then I think defamation can deal with that aspect of his conduct.
What of, for example, the picketers who picket Max Brenner? (which is an example I think Sinclair uses in his post) Would you sue them for hate speech? If not, why not?
I wonder if someone is planning to do just that. Especially considering that at a certain point criticizing Israel is considered anti-Semitic.
I think I might sue Jared Diamond on behalf of all the Europeans who feel themselves to be culturally exceptional and therefore offended by Guns Germs and Steel.
“the right approach to this kind of wrong is to write a reasoned refutation” – this assumes an ability to command an equivalent interested audience, at least willing to ignore the dog whistle.
“I’d prefer to prevent racial discrimination by regulation” – good luck with that
And as for ‘markets deciding’, well I’ve not yet seen a market clear of prejudice of one sort or another, and no ‘market’ as such actually gives a bugger about the individual – because it is simply not efficient to do so. There is no such thing as a level playing field, and to offer that as panacea is either ignorant or deliberately dismissive of the ‘human units’ involved.
Pavlov’s Cat on her soapbox railing against hate speech:
” What you’re calling rough and tumble, I call hate speech, and it can be every bit as destructive as punching someone in the face.”
A somewhat dishevelled Pavlov’s Cat on her soapbox engaging in hate speech:
“It was also reported that Howard hadn’t known of Campbell’s meeting with Burke until it all came out last night, which suggests to me that he probably imploded with rage at having been caught out in ignorance and made to look, if only by association, like a fool. Picture the scene: Ratty incandescent with rage like Rumpelstiltskin in his jarmies in the middle of the night, and Hyacinth scuttling about in her nightie making some soothing hot milk with rum.”
Bolta often disgusts and sickens me but so does the hypocrisy and dishonesty of some lefties. Indeed, I have been tempted to hand my membership badge back to the Lefty Certification Authority on more than a few occasions over the past few years.
Bolt commands a huge following and he has to be countered by good arguments and good strategy, not silly legal games. Now insipid elements on the left have made him a martyr and possibly even increased his influence.
As to indigenous suicide, those on the Left who seek to suppress any honest discussion of the self-inflicted violence, homophobia, drunkenness and general dysfunction in Aboriginal communities are more to blame than any number of Andrew Bolts.
If the column was inaccurate, then defamation is the relevant law, not racial discrimination. And I am sure that most people are aware that suicide does not occur thanks to a single, ascertainable cause.
This matter will go to the High Court, I’m afraid, and with any sort of luck – based on the current composition of the bench – the silly law will be excised from the books. I have no time for Bolt, but I have had far worse said about me by commentators of a progressive persuasion. The indignation directed against Bolt is appallingly selective, and it is moments like this that I wish for a US-style First Amendment.
The usual triad you get in these provisions is “offended, humiliated or intimidated”. Personally, I think offence is importantly different to the other two. I’d support regulation of speech which was designed to humiliate and intimidate, because I think that is a kind of assault. But offence…it really worries me.
Well yeah, it’s hard to prevent racial discrimination by regulation. By regulation I mean acts such as the Racial Discrimination Act which I (by and large) regard as a Good Thing (subject to the quibble about offence above). I do not like the 2005 amendments, however.
I should think that Max Brenner would have a good case under s 14C. If I were them, I’d bring it. Why not? No, it’s not anti-Semitic to just criticise Israel, but as Adrien says, there’s a point where you cross that line.
I must confess to some ambivalence on this topic. As long time readers of this blog will know, I am deeply uncomfortable with anti-Semitism in particular, and it is of course true that in various regimes where genocide occurred that speakers, media and politicians whipped up an atmosphere of hate which made such an event more likely to occur. My heart says: ban hate speech. My head says: no, don’t ban it, it doesn’t help the problem.
The other thing is that I once totally unintentionally offended someone in a professional context. It was really awful. I was utterly devastated. The worst of it was that I didn’t know anything about it until quite a while afterwards, and I didn’t really get a chance to rebut the accusation. I wish the person had privately contacted me straight away to tell me that they were hurt and offended by what I said, and I could have explained that I never have any intention of offending anyone, but that I do have a naughty flippant tongue at time. Thus, I can potentially see that there could be a minefield if you try to regulate conduct which is offensive.
As for letting the market sort it out – I wouldn’t want that – I don’t trust the market alone. I do think that it will act to regulate conduct to some extent, but not enough. Basically, my theory is that we needed all the regulation to produce a change in attitude. In support of this I note that racially discriminatory trust cases dropped markedly from around 1980 onwards. Funnily enough this correlated with the introduction of the RDA. I suspect that the RDA produced a change in attitude, but also that it reflected a change in attitude – and that they fed into each other.
Thanks for enlivening the Bolt Case thread Leagle Eagle.
Offence, insult, (and hurtfulness generally) are troubling criteria of s18C of the RDA — a bar too low perhaps.
However, Bolt / HWT failed to make an exception defence under s18D and this is encapsulated by the comments of Justice Bromberg at 425:
Defamation enlivened?
The publication of the Newspaper Articles occurred in 2009 — and so it would appear that the 12 month limitation period for bringing a claim under the various Uniform Defamation Acts would bar any such action. However, publication in the online world is a tricky beast given the nature of internet re-publication — and so if there has been an interest in the articles in the past 12 months, as clearly there has been surging up from the trial, then defamation could be enlivened through the re-publications. Although there may be an issue estoppel, at least for the named lead plaintiff, Mrs Eatock.
David C. Barrow
http://www.courtrules.net.au/
Juris Doctor law student, RMIT Uni
LE:
” I’d support regulation of speech which was designed to humiliate and intimidate, because I think that is a kind of assault.”
Well, if you rule out humiliation almost all satire would be illegal. Everything from That’s My Bush to At Home With Julia to pretty well every episode of South Park would be censored out of existence. I really don’t won’t to live in such a touchy feely world.
speech
Time is overdue to test the political correctness of the rigid taboos that surround the concept of “multiculturalism” as it has been defined by an intellectual elite who love to “talk the talk”, but are insulated from the realities of the community majority who must “walk the walk”.
Bugger, I’m a bit woolly minded today. That should be want not won’t.
Wretchard (Richard Fernandez), a prominent blogger much read in the US, suggests that it is likely to have a contrary effect, politically. Jo Nova points out that solutions to problems of indigenous communities which offend some indigenous person would, on this reading, now be verboten speech and has held it to be too risky to allow comments. The IPA was already campaigning on the Bolt case as a freedom of speech issue. This is nowhere near the “win” anyone cheering the decision may think it is.
It comes back to the old problem: if error has no rights, then that just gives great power to whoever gets to define “error”.
And if being hurtful with words is a legal issue, then that gives great power to the most easily offended.
David @ 20 – I thought I’d made the point in the post that the defences were not available to Bolt because of lack of GF, which was partially inferred as a result of the variety of factual errors Bolt had made – thanks for clarifying it just in case anyone was under any doubt. I also realised that I forgot to hat-tip you for warning me about the imminent arrival of the judgment (now amended).
Thanks so much for the points about defamation. I had wondered why they hadn’t relied upon it, and suspected that it must be some kind of procedural issue.
Mel, I think satire should be an exception to my general rule. Humour by its very nature is cruel (I remember I wrote an essay in Year 9 about humour, and the thing which stuck in my head was how cruel humour can be and how culturally specific – I found a quote by some ancient Greek saying that the funniest thing he’d ever seen was a hunchback walking down the road in front of his house — ugh!) Part of the point of humour is indeed to belittle, and to take aim at forbidden topics. It’s why the jester always had an important role in some European courts – they could say things that others couldn’t, under the guise of humour.
Personally I don’t care much for At Home With Julia — in fact, I don’t care much for a lot of Australian humour — but I wouldn’t want to stop anyone else from watching it. Actually I’m not good with much humour in general. I can’t go to the comedy festival unless my sister has vetted it first and assured me that I am not going to come out in hives of embarrassment for the performer.
LE @ 27 — I’ve also been thinking why it was that no defamation claims were brought, and it may have to do with the vehicle for the litigation, which was a representative proceeding (class action) in the Federal Court.
The threshold requirement for representative proceedings under the Federal Court of Australia Act (1976) is s33C(1):
Difficulties I see for running defamation claims as part of this is the need for a common question of law or fact arising out of 7 or more persons that is defamatory of all of those identified persons. Seems to me a racial discrimination claim is much broader than defamation and so included faired-skinned people who were offended etc but not necessarily identified in the articles.
So the vehicle may not work for defamation due to a lack of a common question. That said, there is the s33R provision for the ventilation of individual issues, but that might not find much traction if it was not anchored in the common issues for commencing the representative proceedings.
Why then bring the action as a representative proceedings at all?
Well, one consideration is a practical cost shield. There were 9 applicants Named-in-the-Media but if you look more closely there is only truly named Applicant and that is Mrs Eatock. The other 8 were witnesses (either through affidavit or oral evidence), and identified as members of the Group, but were not actually named applicants in the pleadings (there is no Anor or Ors after Pat Eatock). So in the event of an adverse cost order (which could still arise if there is a successful appeal) then that cost order will be limited to Mrs Eatock only — given the indemnity of costs that applies to group proceedings under s43(1A).
What is really interesting, I feel, is that Bromberg J adopts the jurisprudence of “fair comment” of defamation in common law. See from 352 onwards generally, and at 358:
If the judgment sticks, and then providing the limitation period can be handled, the bridge is wide open to move from the RDA finding of a failure for an exemption for fair comment (and also qualified privilege, see 387-389) back to presumably a failure of a statutory honest opinion or qualified privilege defence in a new civil claim for defamation. And all such defamation claims could be run as individual actions in a Supreme Court, say, where there is original jurisdiction for torts. All the Newspaper Articles are still available on http://blogs.news.com.au/heraldsun/andrewbolt/ so arguably the limitation clock still has at least 12 months to run from the last time an article is clicked by a third party before it might be pulled down.
Interesting times. Wish I was actually a qualified lawyer. Might have some clients.
David C. Barrow http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
The reason the case was brought under the racial discrimination act, rather than it being a defamation case?
That decision was made with rule #1 of legal proceedings uppermost in their minds:
Prospect of Success.
LE – the link to David’s page is broken, and as I’m currently closeted in the Sheriff Court I can’t exactly do anything about it.
I will say, in light of David’s comments above that I believe this matter should have been disposed of by means of the law of defamation. Of course, because defamation is a claim made on an individual basis, it is highly likely that some of the plaintiffs will have stronger claims than others, and only one is named. By way of observation, however, I will point out that Anita Heiss appears prima facie to have a case in defamation (I haven’t got the link, but someone over at LP put up a press release from her indicating a number of assertions that were simply false).
Rights can only be exercised by individuals, not by groups (indeed, that is the nature of a right). That is why we have the law of defamation: to protect individuals. To argue that all members of a given group require specific protection is a nonsense: it implies that they are all the same.
That Heiss in particular may be confronted with res judicata is particularly unfortunate: damages for defamation can be substantial, and News Ltd is not exactly a straw defendant.
And now, back to work!
Yes, you’re right Steve (or whoever you are today?) – the bottom line is that the former was likely to be more successful. I wonder if they pleaded the latter as well, though?
Long before this went to court it was perfectly obvious which way it was going to go .
I haven’t read the AB piece but if he linked their identifying as aboriginal with their having secured publicly funded positions there definitely is a public interest element to it.
But again facts and other matters that should be the normal business of courts do not matter in these circumstances.
Pardon the innuendo, but there truly is no freedom of speech in Australia.
SL, I can’t get to David’s page either, although I could earlier in the day – I wonder if it’s broken?
Update: now fixed. Dunno what on earth happened to the link.
Just realised that I forgot to link to the actual decision in the post as well – link now inserted. I was writing the post at my parents’ place and their computer was playing up and going very slowly – it was difficult to manage, and distracted me from various things I ought to have done!
LE: I’d include Steve (my slave name) in my ID except this site restricts me to 20 characters.
I’ll consider my legal options for redress of my offence that this site accepts ID’s of a length suitable to anglo-saxon invader names only.
Meantime, I’ll have a think about that phrase you used “or whoever you are today”
It is possible that you used this phrase only after I racially outed myself, thus I may be thoroughly offended by it.
To assist me in deciding if I am offended or not, please advise if you are famous IRL, (and provide details of cash holdings, bank accounts, readily saleable jewellery etc)
Anybody who gets prickly over my poor grammar/syntax in the above #36 can simmer right back down.
I’m typing in other than my first language, & would prefer to type in any of 7 Australian languages, rather than the langauge of the invader.
Alas, I am not famous IRL and do not have a wealthy media company backing me up. Not worth a bean!
Now of course if I had assets, I’d tie them all up in trusts anyway…
Incidentally, that is one of the interesting things about this case – no remedy awarded by the judge – they were just told to go off and settle something (apology? monetary payment? query what else?)
Oh dear, oh dear, oh dear me.
But, as a Dave Graney fan, I quite enjoyed this:
” Bolt appears to want a situation where not-to-be-white is invisible and simultaneously blind himself to the visibility of not-being-white. And he cannot understand why anyone, offered his false choice (which he himself instantly disables) would want to be visible, or would be rendered visible by others.”
Rock’n'Roll is Where I Hide. Oh yeah!
LE @38 I was in court observing the decision from the public gallery.
Justice Bromberg was very calm and measured in delivery. My feeling is that his Honour arrived at the idea of seeking guidance on final orders (save for costs) from a consensus of the parties so as not to be seen to be ‘imposing’ an apology or correction on Bolt / HWT that might be used for dramatic effect by them to tell a tale of being eagle-pecked victims. This just my speculation, though.
His Honour did however indicate that there would be orders prohibiting the re-publication of the newspaper articles.
There is also this concluding comment in the Summary:
Again:
David C. Barrow http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
Mel, further evidence (if any were needed) that one should pay no heed to artists or actors, who, while well paid and feted in the Roman world, were not taken seriously in any other respect (Ulpian’s wife was Gaia Afrania, an outstanding advocate, but also a playwright; her playwriting, he said, was ‘shameless’, but her advocacy (as counsel) was excellent).
If you listen to me, it is because I am a competent lawyer and advocate. As writer, I have nothing to teach you, except entertainment. Now, entertainment is a fine thing, but law is deadly serious. When we get law wrong, people die.
Entertainment does not work in quite the same way.
It is important to keep the distinction in mind.
SL @ 41 – the post was written by Mark B – I think what Mel was saying was that some of the words in the post reminded him of Dave Graney’s song (a song that I know well).
David, yes, my impression from scanning the judgment was that his Honour was very unimpressed with the tone of Bolt’s pieces, which he found to be mocking and derisive. Bromberg J also found that the way in which the histories of the plaintiffs was presented was slanted to minimise their indigenous heritage. So for example, at [398] he said:
I still haven’t had the chance to read it in detail. However, FWIW, my opinion is that the judge was bound to find a contravention of 18C – the only question was whether any of the defences applied.
To paraphrase the oft-quoted warning of Martin Niemöller: “First they came for the redneck racist bigots. I wasn’t a redneck racist bigot, so I did nothing”.
This case had nothing to do with freedom of speech, and everything to do with vilification. Bromberg, on the basis of the law he was asked to interpret, had no choice but to find as he did. The relevant section of the act says –
“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 group of people, and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group”.
(Racial Discrimination Act 1975, s.18C(1))
Read Bromberg’s judgement and line it up against the law – http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html
This federal legislation has been around for over thirty years, (except for Part 2A which was inserted in 1995) and has been left alone by a succession of governments of both stripes. It’s hardly a leftist conspiracy.
Bolt has form (2002 – punitive damages awarded against him and his paper for defaming a magistrate) and he obviously considers himself above the law, given the comments he made after that case which got him into further trouble. On that occasion, Justice Bongiorno made an additional $25,000 punitive damages award against Bolt and the newspaper for \”misleading\” and \”disingenuous\” public comments he made outside court and the way in which the paper reported the decision. That verdict, incidentally, was from a jury. I guess they must have all been ALP members.
He makes a quid out of vilification, so he always runs the risks involved in that behaviour.
Apart from anything else, his “journalism” is poor, his fact-checking non-existent, and his bias obvious. If justice is seen to be done, he should be facing nine separate defamation trials, with the awarding of punitive damages for each.
The only free speech that Bolt upholds is his own. His behaviour on his blog demonstrates that pretty clearly. I ought to know – http://1735099.blogspot.com/2011/09/handson-what.html
He also lacks a sense of humour.
I suppose we have to address the legal details of the case but the real issue is the larger matter of affirmative action and the the laws and practices which enable some people to make careers out belonging to a particular category. So much bullshit and bad will flows from there.
Have now written a much more detailed analysis of the legal issues in the case.
Rafe, I have realised that my position on affirmative action is that in general, I am not in favour of it, except in the area of education, where I think that students from disadvantaged backgrounds such as Aboriginal students can be helped if they are at least given an opportunity to access education, and assistance in study. However, such students should be marked according to the same standards as everyone else.
1735099, I have said nothing in the post to indicate that I think there is any kind of leftist conspiracy, and nor would I do so. I am aware that various people have criticised Bromberg J’s politics and background, but I have not done so, and nor would I ever think it was appropriate to do so. I worked for a judge for some years, and I hate that kind of rubbish. If you read the section on the bloggers at this blog, you will see that we have all different political stripes. My own personal approach is generally centrist-left if you really want to put a label on me (although I’d prefer that you didn’t because I don’t entirely conform to any label, and have a number of quirky views of my own).
The relevant section of the Act which applied in this case was in fact Part IIA, the section which was inserted in 1995. There had been efforts to insert such a section at the outset and in the 80s, and they had failed.
If it had been me, I would have preferred to deal with this claim as a defamation claim, and insofar as any imputations damaged the reputations of the claimants and were based on untrue allegations, I would have awarded damages (subject to defences, of course). You can read my detailed post on the case if you are interested. I do not like the new additions to the Act, because I think that they could chill free speech – people will now be worried about discussing this issue, regardless of Bromberg J’s statement that people should not be worried.
Agree completely with LE at @47.
I like the idea of indigenous scholarships etc, but I would like to see many of these specifically target bright young kids living in remote settlements so they aren’t all monopolised by mostly integrated city Aborigines.
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.
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.
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”.
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.
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.
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.
my new-born grandson is one sixteenth part German.
I hope he doesn’t goose-step when he starts walking.
On affirmative action, this guest post by a black Stanford law professor puts the issue in a useful perspective:
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!
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.
Rafe, totally agree. I often think with these things that if people could be given a decent education in the first place, and assistance from mentors and tutors, it would help immensely.
SL@58 Quite. Linguist John McWhorter has a sophisticated discussion of affirmative action here: he is against it for universities.
Rafe @ 59: have now rescued your comment avec link out of the spam can. For some reason, that spam can hates people from Catallaxy. It’s swallowed you and Sinclair so far. Grrr to it.
That John McWhorter article is very interesting. He was for affirmative action when the disadvantage was stark (i.e. early on), but against it once it became primarily for middle-class African Americans. Again, the differing fault lines of race and class are problematic for affirmative action.
I tutored a few indigenous students at uni, and they were not affluent or middle-class. For one woman, I had to convince her that she was allowed into the Law Library. “Won’t they throw me out when they see I’m an aboriginal woman?” she worried. “No, never!” said I, and marched her into the Library and introduced her to all the librarians so she could see what nice and welcoming people they were. The poor woman was so nervous (she was shaking a little and I had to hold her arm) and so pleasantly surprised when it all went well. She was not afraid of the library thereafter. So you’re countering fundamental problems like that: someone has suffered so much in their life that they are afraid that they are going to be thrown out of a place just because they are Aboriginal. I don’t think Aboriginal people in general are in a position yet where I would ditch affirmative action for universities. Hopefully in 20 years time, it might be different. I sincerely hope so.
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
…setting aside was upheld by majority of Supreme Court of Canada
David C. Barrow http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
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 http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
Gosh, racial defamation class action! Never heard of that before, but Canadian law is quite different from ours in many ways.
We wrote a long post a while back called ‘Defamation for Dummies‘ – I think it’s something about which all bloggers should be aware. I confess that I also have a fascination with bizarre internet defamation cases where the effect of the legal action was to remove the defamatory material, but also to give global exposure to the defamatory material (eg, the Liskula Cohen case).
We are very careful about our moderation of comments; but of course we write nowhere near the volume of posts that Bolt does, and we have nowhere near the audience or commenters (thank goodness, I don’t think I could handle all those people!).
There was a case in the UK which I blogged about a while back involving defamatory comments on an online forum (website sued by the football club and its director for allowing disgruntled fans to post defamatory comments) – I think we’ll be seeing more of those kind of cases. It is for this reason that I understand mainstream media outlets are cracking down on anonymous commenters (post here, along with a description of the Officer Bubbles case).
LE @66 — that’s interesting stuff. Following your links I note SL on 19 Oct 2010 re the SkepticLawyer.com.au approach:
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 http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
David@67 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.
Oh thanks for kind words kvd@68 — 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 http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni
David, I have also really appreciated your contributions as well. Particularly the observations on procedure and why they might not have chosen defamation (now that I don’t practice, I am rusty on procedure, and in any case, my main practice was in the Supreme Court, not the Federal Court).
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.
Indeed. I do admire that man, and he has to put up with a lot of abuse.
Ros@71 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:
Rothwell proffered no answer, and neither can I.
Another Noel Pearson fan here too
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:)
M@75:
If you think they are the same thing, you need to get out more.
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.
More preferably both. At the same time.
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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[...] rather than darker skin, and who identify as Aboriginal. As David Barrow pointed out in a comment here, this is one of the reasons why the plaintiffs will have relied upon the RDA and not defamation [...]
[...] Holmes. To get the best out of Holmes’s piece, I recommend reading Legal Eagle’s two pieces and Ken’s comments [...]
[...] judge said as much). I don’t think people with free speech concerns like Russell Blacford, or Legal Eagle, would have had quite the same concerns if things had proceeded down such a [...]