A more detailed analysis of the Bolt case

By Legal Eagle

Background to the case
The background to the case is that journalist Andrew Bolt wrote a series of newspaper articles and blog posts which were critical of the plaintiffs, who were all individuals who identified as Aboriginal, but who had pale skin and did not look like stereotypical Aboriginal people. He was critical of the plaintiffs, alleging in essence that they ‘traded off’ their Aboriginal identities, and had ‘chosen’ to be Aboriginal in order to receive various benefits and prizes intended to help struggling Aboriginal people. (I have called them ‘the plaintiffs’ even though only Pat Eatock was the Applicant, because they all gave evidence at the trial, were named in Bolt’s articles, and it is more convenient to refer to them thusly.)

I have discussed why I think Bolt’s focus on skin colour and looks was not appropriate here. It is perfectly possible for a person to ‘look European’ but to have Aboriginal heritage and to have ‘Aboriginal-looking’ parents. Many Aboriginal people these days have both non-Aboriginal and Aboriginal parentage. Mixed race children can end up looking like any combination of their forebears. I know of an Aboriginal couple whose three children all looked totally different. One was blond and light-eyed, one was stereotypically ‘Aboriginal looking’, and the third child was somewhere in between. Is the blond child less Aboriginal than his brother? I do not think so. When discussing Aboriginal identity, you should look not only at superficial appearances, but also self-identification and whether the person is identified as indigenous by the wider indigenous community. The culture in which the person has been brought up may also be relevant.

Still there are complex issues, because part of the reason why Aboriginal people are said to be discriminated against is on the basis of skin colour. As I said in another post on the Bolt case:

One of the difficulties, I suppose, is that a lot of racial discrimination is based on superficial appearance. (When you put it like that, it sounds so stupid and banal, doesn’t it? Yet it has had such a poisonous influence on many societies.) Let’s say there are fraternal twins of mixed race heritage, one of whom “looks Aboriginal” and one of whom “doesn’t look Aboriginal”. Has the non-Aboriginal-looking brother suffered the same amount of discrimination as the brother who looks Aboriginal? If discrimination is based purely on outward appearance, there may be a genuine question there. But how do you measure such things? It is also worth noting the family background of the siblings may, of course, be equally disadvantaged. Should one sibling get less help because through genetic chance, he “looks less Aboriginal”? That seems kind of arbitrary, and you might get back into a position where people’s worth is measured on colour. I remember a horrible diagram from my undergraduate degree which showed photographs of “quadroons” and “octoroons”, with each successive generation looking “less Aboriginal” – the purpose of the diagram was to illustrate that indigeniety could be “bred out”.

I guess part of the difficulty is that measures to help Aboriginal people are designed to combat two ills: racial discrimination on the basis of appearance, and economic and social disadvantage suffered by many (but not all) Aboriginal people. An Aboriginal person who looks “less Aboriginal” may not have suffered the first so much, but may well have suffered the second. In this case, the plaintiffs say that their lighter skin led Bolt to discriminate against them.

The legislative provisions
The relevant legislative provisions were ss 18C and 18D of the Racial Discrimination Act. Section 18C of the Racial Discrimination Act 1975 (Cth) 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.

Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Section 18D of the Act provides that there are defences to a claim under s 18C:

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.

These provisions were inserted into the Act in 1995, and in my opinion, as I have said in this post — detailing my immediate reaction to the judgment — I do not believe that this is the kind of conduct which the law should regulate. 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). On balance, I believe the amendments to the Racial Discrimination Act should be removed.

I confess to some equivocation on this point. In my younger days, I would have been unequivocal in wanting to ban “hate speech” against particular groups of people, and it is only over the last ten years that I have shifted my view. I acknowledge that public speech which singles out someone on the basis of ‘their race, colour or national or ethnic origin’  is very hurtful to the individuals concerned. I have no doubt that the plaintiffs in this particular action were deeply hurt by the allegations in Bolt’s article. I would have been devastated and furious had I been in their shoes. But again: I come back to the point that it is awfully difficult for the law to regulate offence. Offence is such a subjective thing. Someone may offend or insult another with no intention of doing so, and with no knowledge that they have done so. And I am afraid that decisions like this will have a “chilling effect”, despite the fact that Bromberg J emphasised in his summary that this judgment was not intended to stop discussion of these matters, saying:

I have observed that it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.

I tend now to the view that the law is better off not going there, and that the law should tread lightly wherever possible. Ultimately, as I have explained elsewhere, my guiding light in 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 and hurtful.

I should also say for the sake of clarity that I am a fan of the Racial Discrimination Act (‘RDA’) in general. SL, being of a more libertarian persuasion than I, would (I think) want to remove Acts such as the RDA,  but I certainly would not want to do so, nor would I want to leave the market to regulate these questions (cf Sinclair Davison here). Of course, as I’ve outlined in this post here, you do have to be careful with legislating in regard to these issues, and be very careful that the law does not create perverse incentives which produce the very opposite result of what was intended. But one only has to read Noel Pearson’s writings to see how immensely important the RDA has been for the standing and status of indigenous people in this country, and in protecting their legal rights. It is also a lynch-pin to the Mabo decision, which I still regard as a very important step forward in the law of our country (even if it never fulfilled its promise, and even though that step forward has been pulled back ever since).

As I’ve also said previously, I believe that the RDA shifted public opinion in relation to racial discrimination. A friend and I were discussing racially discriminatory dispositions under trusts. There are a number of cases where a will or a trust has purported to confer property on a relative as long as the relative worships in a particular religion, marries someone of a particular religion, or does not marry someone of a particular religion, as the case may be. The outcomes vary, but very few arise after 1970. I suspect that by and large, people simply do not believe that they are entitled to make discriminatory dispositions of this sort any more, and thus these cases do not arise so frequently. I suspect this reflects societal changes both reflected in, and produced by, the RDA.

Bromberg J’s judgment

Now I’ve had a chance to read the judgment in more detail. My initial thought was that any judge would be strongly likely to find that Bolt contravened s 18C of the RDA, as his articles were public communications which were bound to offend and insult the plaintiffs and others who were in the same group, and they singled the plaintiffs out on the basis of their race, colour or national or ethnic origin; the main operative question would be whether Bolt was entitled to a defence under s 18D.

The reason why Bolt was found to contravene the RDA boiled down to two matters, in my opinion. First, the tone of Bolt’s articles rendered them offensive, insulting and likely to humiliate and intimidate the plaintiffs (and consequently they contravened s 18C). Secondly, the judge found that Bolt’s articles were not ‘said or done reasonably and in good faith’ such that he could avail himself the defence under s 18D. In addition, the articles contained various inaccuracies and were slanted to emphasise the European backgrounds of the plaintiffs and their pale colouring, but omitted to mention the fact that many of the plaintiffs had been brought up as indigenous and were identified as indigenous by their families and others. Consequently, they were not fair comments or in the public interest.

In relation to the first article, ‘It’s so hip to be black’, Bromberg J says at [37] that the impression of the ordinary reader would be as follows:

  • There are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the identified individuals are examples, who are not sufficiently Aboriginal to be genuinely identifying as Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to identify as Aboriginal; and,
  • Fair skin colour indicates a person who is unlikely to be sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

Bromberg J took into account a paragraph which appears in the middle of the article which said, “I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.” His Honour concluded:

The contents of that paragraph are incongruous and inconsistent with the contents of the article as a whole. That inconsistency, when the article is read as a whole, is likely to be understood as explicable on the basis that the disclaimer is intended as an exculpatory device (“merely formal”: Lezam Pty Ltd v Seabridge Australia Pty Ltd [1992] FCA 206; (1992) 35 FCR 535 at 557 (Burchett J)) rather than a genuine attempt to counter the contrary messages that the article otherwise conveys. Whether or not the paragraph was written with that intent, in my view it would be read and understood by the reader as merely formal and not really intended to distract from what is elsewhere said or suggested. That understanding would be reinforced by the artful manner in which the second sentence of the disclaimer has been crafted.

In relation to the second article, ‘White Fellas in Black’, Bromberg J said at [38], ” Its tone is more cynical and mockery is used more extensively than is the case for the first article, but otherwise its use of language and its structure are similar…” He found that the way in which Bolt described some of the plaintiffs was “derisory”. At [55] he concluded:

There is in this article a stronger contrast made between the group of people challenged and those people who are to be regarded as ‘real’ Aboriginal persons. An imputation is conveyed that opportunities which should have been conferred on genuine Aboriginal persons have instead been taken by people like those exemplified. The suggested motivation conveyed as the reason why the people in the ‘trend’ identify as Aboriginal is confined to career aspirations.

There were also two blog posts which were more brief, and with which Bromberg J dealt with briefly. Ultimately he did not rely on them in drawing his conclusions (see comments at [18]). The articles and posts are reproduced at the end of the judgement.

Interestingly, the claim is in part a claim on behalf of a broader group of people being Aboriginal persons of mixed descent who have a fairer, 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 – there were both practical procedural and costs consequences of doing so. Bromberg J concluded at [290] – [298] that the articles would be likely to offend members of that broader group:

…for the most part, the offence experienced by the witnesses called relates to imputations which are likely to cause offence generally to members of the group here being considered, including because of the wide range of common attributes which the witnesses called and this wider group are likely to share.

One of those attributes is that the ordinary person in the group is, as a result of her life experiences, likely to be particularly sensitive to challenges to her identity. She will be aware that her appearance does not fit the stereotypical image of an Aboriginal person that many people in the Australian community have. She will be resistant to attempts to define her by her appearance without regard to the cultural and social bonds which have fashioned who she is. She will, like all of us, regard her identity as the distinguishing feature of her personality. A vital feature of crucial importance to her self-worth, self-image and personal dignity. Her Aboriginal identity, as many of the witnesses said, is who she is.

She is also likely to be sensitive about attempts by non-Aboriginal persons to define Aboriginal identity. She will have a legitimate expectation that people should respect her identity and will be likely offended and insulted when they do not.

I consider it reasonably likely that the ordinary person within this group would have been offended and insulted by her perception that the Newspaper Articles were challenging the legitimacy of her identity and that of others like her. It is reasonably likely that she will also have been offended and insulted by what she would have perceived to be Mr Bolt’s concentration on skin colour as the defining determinant of racial identity.

She will have been conscious of Mr Bolt’s standing as a popular columnist writing in a highly popular newspaper. She will have thought that the stereotype of the “white Aborigine” which the Newspaper Articles portray will be seen, read and probably accepted as the truth by many. She will have been conscious that, given her appearance and her identification as an Aboriginal person, others may perceive her to have falsely chosen to identify as an Aboriginal person and done so for opportunistic or political reasons, just like those people that Mr Bolt wrote about. That will be very offensive and insulting to her because it is not true. Her Aboriginal identity is important to her. It is who she is. The thought that others may regard her as fake or dishonest about her identity will likely be highly offensive and insulting.

It is also reasonably likely that she will be humiliated and intimidated by her perception of the capacity of the Newspaper Articles to generate negative or confronting attitudes to her from others – work colleagues and acquaintances who seemingly pause to study her appearance as she passes and others to whom she is introduced as an Aboriginal person. She will have a heightened fear of experiencing unpleasantness of the kind experienced by Mr McMillan when he perceived that he was being asked to justify or confirm his identity by his University and to the Australian American Fulbright Commission.

The trepidation in her reaction will likely have been sharpened by the stinging tone and language utilised by Mr Bolt. The mockery, derision, sarcasm and disrespectful way in which Mr Bolt attacked the subjects of the Newspaper Articles will resonate with her. There is a real chance that pressure will have been imposed to negate her identity. She may now think twice about asserting her Aboriginal identity in public generally or in particular public settings. That will be particularly the case, if she is young or otherwise vulnerable in relation to challenges to her Aboriginal identity. Vulnerability in relation to identity will not be out of the ordinary for people like her.

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. The reactions which I have concluded were reasonably likely, are not reactions likely to be caused by the intolerance of the people affected.

I am satisfied that at least some members of this group were reasonably likely to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the Newspaper Articles and set out at [284] above.

Similarly, the narrower group of people (being the plaintiffs) was also likely to be offended, insulted, humiliated or intimidated by the imputations, and the act was done because of their race, colour, national or ethnic origin.

Bromberg J made some general observations about the purpose of the RDA. He said at [344] – [345]:

In seeking to promote tolerance and protect against intolerance in a multicultural society, the RDA must be taken to include in its objective tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free of pressure not to do so. Racial identification may be public or private. Pressure which serves to negate it will include conduct that causes discomfort, hurt, fear or apprehension in the assertion by a person of his or her racial identity. Such pressure may ultimately cause a person to renounce their racial identity. Conduct with negating consequences such as those that I have described, is conduct inimical to the values which the RDA seeks to honour.

People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of racial or religious identification of a group of people is a common cause for racial or religious tension. A slur upon the racial legitimacy of a group of people is just as, if not more, destructive of racial tolerance than a slur directed at the real or imagined practices or traits of those people.

The judge considered whether any defence applied under s 14D. As David Barrow also noted in the above linked comment, interestingly, Bromberg J drew from the defence of ‘fair comment’ in defamation in construing that defence under 18D(c)(ii) at [358]:

The parties accepted that by using the phrase “fair comment” in s 18D(c)(ii), Parliament intended to invoke the requirements of the common law defamation defence of fair comment. That view is supported by the observations made by Kiefel J in Creek at [32]. Although there are examples of the statutory use of the phrase “fair comment” where not all of the common law requirements have been found to be imported (see Pervan v North Queensland Newspaper Co. Limited [1993] HCA 64; (1993) 178 CLR 309), I accept that s 18D(c)(ii) is not such an occasion.

Part of the reason why Bolt and the newspaper lost was because they did not address the imputations alleged by Ms Eatock (the primary plaintiff). Instead, they rejected Ms Eatock’s imputations, and drew their own imputations, namely:

(a) racism is abhorrent and a gravely divisive social force, which is perpetuated by emphasising racial differences;

(b) in modern Australia, there is a discernible trend whereby persons of mixed genealogy, where that genealogy includes Aboriginality, identify as Aboriginal persons, where they could identify with another race or races, or with no race at all;

(c) the Applicant and the other individuals named in the Publications illustrate that trend, in that they are each persons who identify as Aboriginal persons, even though they could identify with another race or races, or with no race at all; and

(d) the trend is an undesirable social phenomenon because it emphasises racial differences, rather than common humanity.

They attempted to justify the above imputations in the context of s 18D, but they did not attempt to justify the imputations alleged by Ms Eatock.

It was highly relevant to his Honour’s reasoning that the articles could not be regarded as fair comment because they were not accurate. He said at [378] – [379]:

The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue. Nine of the eighteen individuals named in the Newspaper Articles gave evidence. Each of them had been raised to identify as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal.

Secondly, the imputations which I have found were conveyed, convey not only the making of a choice but that the choice was made for the purpose of facilitating career opportunities and political activism. Again, the imputation is made of the people in the ‘trend’ and it is to be understood as a comment because it is an extrapolation from observations made in relation to the individuals dealt with. Those observations about the individuals are also presented as comments. They would be understood as Mr Bolt commenting as to what motivated the choice made by the individuals. The pattern involves Mr Bolt pointing to various jobs or awards the individuals have obtained which are either said or suggested to be reserved or intended for Aboriginal recipients. The jobs or awards obtained are the implied motivations for the individuals choosing to identify as Aboriginal. Additionally, political activism is the suggested motive for Ms Eatock and Ms Cole.

Further (at [392]) there was no reference to the Aboriginal cultural upbringing of the plaintiffs which left the reader with “an erroneous impression”.  This created “a distorted view of the circumstance in which the individuals exemplified in those articles identify as Aboriginal.” Accordingly, Bolt was not entitled to avail himself of the “fair comment” defence because the imputations were inaccurate.

His Honour was again very critical of the tone of Bolt’s pieces. He said at [410] – [414]:

In my view, even outside of political discourse, freedom of expression is not merely a freedom to speak inoffensively: R (on the application of Gaunt) v Office of Communications (OFCOM) [2011] EWCA Civ 692 at [22] (Lord Neuberger MR). But there are areas of discourse where incivility is less acceptable, including because it is more damaging to social harmony. Additionally, a distinction may be drawn between harsh language directed at a person and harsh language directed at a person’s opinion: R v Office at [27] (Lord Neuberger MR); Catch the Fire at [34] (Nettle JA).

In Bropho at [69], French J recognised that freedom of speech is not limited to expression which is polite or inoffensive. However, the minimisation of harm which French J spoke of involves a restraint upon unnecessarily inflammatory and provocative language and gratuitous insults. The language utilised should have a legitimate purpose in the communication of a point of view and not simply be directed to disparaging those to whom offence has been caused: Toben at [77] (Kiefel J).

I accept that the language utilised in the Newspaper Articles was inflammatory and provocative. The use of mockery and derision was extensive. The tone was often cynical. There is no doubt that the Newspaper Articles were designed to sting the people in the ‘trend’ and in particular those identified therein. The language was not simply colourful, as Mr Bolt’s counsel described it. It was language chosen by Mr Bolt in writing articles intended to confront those that he accused with “the consequences of their actions” and done with the expectation that they would be both “offended” and “upset” and in the hope that they would be “remorseful” (the words quoted are Mr Bolt’s).

I also agree that the Newspaper Articles contain gratuitous references. The emphasis on colour was gratuitous. References made to Mr McMillan’s sexuality were further obvious examples. There were also gratuitous references to Mr McMillan pretending to be a “victim”, which are based on a selective misrepresentation of what Mr McMillan actually said… . I accept that much of the mockery, derision and gratuitous asides were directed at named individuals but I reject the contention of Mr Bolt and HWT that the impact is to be regarded as confined, in each case, to the person impugned. The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles.

The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point. The treatment of Mr McMillan and Mr Mellor are perhaps the most potent examples. The articles are replete with comments and a derisive tone that have little or no legitimate forensic purpose to the argument propounded and in the context of the values which the RDA seeks to protect are not justified, including by an asserted need to amuse or entertain.

Ultimately, Bolt’s articles were found to be so disproportionate that they could not be said to be reasonable or in good faith for the purpose of s 18D. The judge was stinging in his criticism of Bolt when delivering his conclusion on “fair comment” at [421] – [425]:

Mr Bolt is a journalist of very significant public standing and influence. His evidence suggests that his columns are popular and widely read. They will have been read by persons inclined to regard Mr Bolt as speaking with authority and knowledge. They will likely have been read by some persons susceptible to racial stereotyping and the formation of racially prejudicial views. I have no doubt that some people will have read the Newspaper Articles and accepted the imputations conveyed to the ordinary reader as true and correct and that racially prejudiced views have been “reinforced, encouraged or emboldened”.

I have also taken into account what I regard to be the serious nature of the offensive conduct involved and its reasonably likely consequences upon the Aboriginal people concerned. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have had an intimidatory effect on some people.

I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law. Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued. Identity has a strong connection to one of the pillars of freedom of expression – “self-autonomy stems in large part from one’s ability to articulate and nurture an identity derived from membership in a cultural or religious group”: Keegstra at 763.

Even if I had been satisfied that the s 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith.

In my view, Mr Bolt’s conduct involved a lack of good faith. What Mr Bolt did and what he failed to do, did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith.

His Honour found that s 18D(b) was not enlivened either, for essentially the same reasons.

Consequently, the Herald and Weekly Times was vicariously liable for Bolt’s articles pursuant to s 18E of the RDA.

Remedies

His Honour did not grant an injunction restraining publication of the Bolt articles because of concerns about the impact on freedom of speech. Nor did he order Bolt to apologise, because he felt that it was inappropriate to compel someone to apologise where they did not genuinely believe that apology. Ultimately, he felt that the best approach was to arrange for Bolt and the paper to issue a “corrective notice”, and he explained at [468]:

My preliminary view is that a corrective order should be made which would require HWT to publish a notice in the Herald Sun in print and online. The terms of the notice would include an introduction which referred to this proceeding and the order requiring its publication and set out the declaration made by the Court. In order to give the publication of the corrective notice a prominence and frequency commensurate with the publication of the Newspaper Articles and to facilitate it being communicated to those likely to have read the Newspaper Articles, I have in mind that the corrective order would require the publication of the notice in the Herald Sun newspaper and online, on two separate occasions in a prominent place immediately adjacent to Mr Bolt’s regular column.

Bromberg J felt that the provisions of the RDA had an important vindicatory function at [466]:

Public vindication is important. It will go some way to redressing the hurt felt by those injured. It will serve to restore the esteem and social standing which has been lost as a consequence of the contravention. It will serve to inform those influenced by the contravening conduct of the wrongdoing involved. It may help to negate the dissemination of racial prejudice.

Tentative conclusions

As far as I can see, it was open to Bromberg J to draw the conclusions that he did, applying the statutory provisions contained in Part IIA of the RDA. This does not, of course, mean that his decision will not be overturned on appeal. I fully expect that this one will be appealed, but we’ll have to wait and see.

The following issues seem to have been highly operative on his Honour’s conclusion: the sarcastic, uncivil tone of Bolt’s writing, the various inaccuracies in the presentation of the backgrounds of the plaintiffs, and the way in which the portrayals of the plaintiffs were slanted to emphasise their European heritage. Fundamentally, his Honour’s conclusion seems to be that Bolt’s articles were not a polite or respectful discussion of the issues: contrary to the suggestion of various commentators and blogs, people are entitled to discuss issues of racial and Aboriginal identity, but they should do so in a way which is scrupulously accurate and respectful of those who claim Aboriginal identity. It has to be said that if I had my “druthers”, I’d vastly prefer that people followed his Honour’s strictures when they were writing on this topic. I do not generally like Bolt’s sarcastic tone, and I do not read his articles for this very reason. I did not like the articles in question in this case, and thought that they were misguided in certain respects, although I also thought that some of the questions they raised were worthwhile and important. I do not generally like sarcastic writing of this type. I can think of left wing bloggers who have adopted a “Bolt like” tone in apparent retaliation and reaction against Bolt, and I have never been a great fan this either. I really don’t think a sarcastic tone is helpful to resolving complex issues. It just gets your interlocutors angry and means that they close their ears to any reasonable point you might have.

But ultimately, I query whether the law is an appropriate vehicle for enforcing civility in debate. It is a very heavy-handed mechanism for dealing with this issue, and may have unforeseen consequences. I am just not sure that the RDA provisions seeking to prevent offence are the right vehicle to deal with this issue. Does this mean that any writer with a sarcastic tone should be worried?

Yes, I believe the law should intervene when reputation is injured (as it does with the tort of defamation) and I believe than an injury to reputation deserves vindication before the courts. I would have been happy if the plaintiffs had succeeded in an action in defamation, because arguably their reputations were injured and they were brought into disrepute. (Query whether the defences would operate in a similar way to the RDA?) Of course, there are clear tactical reasons why the plaintiffs did not take that course of action, as David Barrow’s comments linked to above indicate. As he notes, they could bring group proceedings more easily under the RDA and the costs implications were more favourable (with only Pat Eatock being the true Applicant in the action).

But the problem with defamation and actions like this one is that often, they produce perverse outcomes. Certainly, I have no doubt that the plaintiffs in this action felt vindicated by Bromberg J’s judgment, and in particular that they felt satisfied by the stinging criticism of Bolt’s tone. However, on the other hand, they have now given Bolt’s articles a prominence and audience that they would never have had otherwise. I would not have known about them without this case. It’s a hard balance with cases like these. I also wonder whether any published corrective order will have any effect on Bolt’s audience, many of whom I am sure are outraged by this legal action, and regard it as some kind of politically correct incursion into legitimate criticism. How do you redress that kind of issue?

Just as with questions of Aboriginal identity itself, I feel that in this case there are no easy answers. I am not entirely happy with the outcome, and I fear that it may have a chilling effect on freedom of speech, but I would not have been entirely happy with the converse outcome either. On balance I feel that it is inappropriate to use the law to force people to write “non-offensively”, no matter that my personal preference is generally to deal with others in a way which is respectful.

One Comment

  1. Posted June 9, 2012 at 10:40 am | Permalink

    Hi folks.

    This chap writes a blog which I think deserves a greater airing.

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