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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.

98 Comments

  1. Posted September 29, 2011 at 11:31 am | Permalink

    Does the section call for a subjective or an objective test of ‘offence’? It looks like an objective test to me, but His Honour’s reasoning appears to be very close to the sort of subjective tests that used to be used in provocation matters. There is a reason why provocation has either been abolished or the test has been made objective: otherwise stupid things like ethnic origin or religious belief get taken into account and the gender implications of what is nearly always wife-killing are swept under the rug.

    On ‘civil rights’ instruments generally, I think they can operate negatively (prohibit discrimination against), but that they cannot mandate discrimination towards (a given group). I do not support affirmative action of any sort; apart from turning the recipient into a charity case (never a good thing), it is too easy to game.

    All that is separable in this matter, however, where I think we are dealing with a provision too vague as to be capable of proper definition. Remember the NSW government provisions that asked the courts to define ‘annoy’ in the context of World Youth Day protests during the Pope’s visit? They were struck down as being incapable of definition.

    FWIW, I think that is more likely to happen here than any ruling on the basis of implied rights to freedom of political communication.

  2. Posted September 29, 2011 at 12:07 pm | Permalink

    It’s supposed to be an objective test according to what a reasonable person of the particular group would have felt. The trial judge drew heavily on the subjective opinions of the plaintiffs in formulating the objective reaction, which as you say, is precisely the mess people used to get into with provocation.

  3. Abu Chowdah
    Posted September 29, 2011 at 1:02 pm | Permalink

    I do not generally like Bolt’s sarcastic tone, and I do not read his articles for this very reason.

    If it all boils down to the judge disliking sarcasm, then Australia truly is fucked.

  4. Mother Hubbard's Dog
    Posted September 29, 2011 at 1:26 pm | Permalink

    Civility is not a big selling point for newspapers these days. Emotive language and strong opinions are. I suggest that community standards in this area have moved a long way since Justice Bromberg was growing up. The law should change in line.

  5. kvd
    Posted September 29, 2011 at 1:27 pm | Permalink

    If it all boils down to the judge disliking sarcasm, then Australia truly is fucked

    With apologies for the language. But this is what gets me about these sorts of discussions: the extension from the particular facts of particular cases to a generalised view of “what should be”.

    With apologies in advance to LE:
    Statement 1: some lawyers are liars, thieves and scoundrels
    Statement 2: Legal Eagle is a liar, thief and scoundrel.

    The first statement can be backed up by a room full of cases about lawyerly misdeeds – but also could and does apply equally to any sub group of humans you care to provide.

    The second statement is a grievous personal wrong and should be open to punishment with the full force of the law. And it is also factually incorrect.

    Bolt made specific claims (non-factual) about specific individuals, and he got pinged for it. He, in the judge’s opinion, also sought to imply those claims were ‘representative of a trend’ applying to the whole.

    Personally, I hope he also got pinged for overstaying his parking space every hearing day.

  6. Adrien
    Posted September 29, 2011 at 1:31 pm | Permalink

    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.

    I suspect that it’s multiculturalism more than the sanctity of free speech that might be behind this particular front on the Culture Wars.

    It looks like an objective test to me, but His Honour’s reasoning appears to be very close to the sort of subjective tests that used to be used in provocation matters.

    I’m always wondering how ‘offense’ can be subjected to an objective test.

  7. kvd
    Posted September 29, 2011 at 1:44 pm | Permalink

    I’m always wondering how ‘offense’ can be subjected to an objective test

    And I’m wondering why the phrase “offend, insult, humiliate or intimidate” seems to always be shorthanded, as above. There’s an “or” in there.

  8. Posted September 29, 2011 at 1:49 pm | Permalink

    Adrien, it can’t be (just as ‘annoy’ couldn’t be for Iemma during the World Youth Day blow up).

    Kvd, in that case the appropriate claim is in defamation, not racial discrimination. It would appear that large chunks of the RDA are like many of the anti-terror laws: the passing of new laws where perfectly adequate laws already exist.

    Or, ‘we need to do something, here is something, let’s do that thing’ writ large.

  9. Posted September 29, 2011 at 1:49 pm | Permalink

    Bromberg J seems to have been very judicial: the problems of this particular law are hardly his fault.

    That Bolt has been found to be factually incorrect rather weakens any putative standing as a martyr to free speech.

    But, like all attempts to regulate speech to promote civility, this law suffers from the difficulty of selective application. In this case, it is explicitly built in, being about matters racial. But it has always been an obvious feature of “hate speech” laws that certain “hate speech” counts more than others. And that does not help civility.

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

    Kvd, the ruling was based on the ‘offend’ limb. ‘Insult’ is also tricky to define, and a judge in a civil matter would (with very good reason) be reluctant to bring the ‘insult’ definition across from the criminal law (in, say, breach of the peace) simply because it is criminal, and subject to a higher standard of proof.

    Indeed, deploying a criminal definition in a civil matter _may_ violate the common law presumption against retroactive laws.

  11. kvd
    Posted September 29, 2011 at 2:06 pm | Permalink

    Bows to your expertise SL, except for the “trend” part of this particular case; that seems to this layman a bit beyond personal slight, moving to class slight, where the ‘class’ is race-based.

    But I most certainly agree with your “need to do something” comment.

  12. kvd
    Posted September 29, 2011 at 2:13 pm | Permalink

    SL, hadn’t read your reply @10. But I’d add that the “largest block quote” provided by LE above includes all four terms – not just “offend”.

    Also , I’d add thanks to LE for a very clear post.

  13. Jonathan D
    Posted September 29, 2011 at 2:50 pm | Permalink

    Actually, the ruling says that an ordinary member of the relevant group would likely be (highly) offended and insulted, and also reasonably likely to be both humiliated and intimidated. In the disregarded case that the particular group of named individuals is relevant, it says they would be offended, insulted, humiliated but not intimidated.

    Not sure where the idea that only offence is relevant came from, other than the judge also explicitly using the shorthand kvd mentions.

  14. Posted September 29, 2011 at 3:27 pm | Permalink

    Reasonably likely to offend a reasonable person would be an objective test. Frustratingly open ended as it is.

    As for the rest, he did a hack job, made allegations without proper basis, may deserve a defo writ but that is not to the point. There is nothing preventing decent debate of this or any issue in saying that someone in Bolt’s position shouldn’t abuse it to vilify people with unsubstantiable allegations. And this v defo? Defo is a quirky area arising from the common law tendency of judges to skew the law to favour the powerful. This law was prepared for, taken before, and approved by a democratically elected parliament. Some might prefer the symbolism of that…

    The Hun complains if they are told not to name abused children, there’s form, they are hardly bastions of decency against repression.

  15. danmcc
    Posted September 29, 2011 at 3:36 pm | Permalink

    It was certainly open to the judge to apply the law in the way that he did, and he appears to have been at pains to carve out reasons which don’t threaten the right to discuss this matter without publishing outright inaccuracies and without being motivated by spite.

    Moreover, I got more than a hint that he was frustrated with Bolt’s approach to the case, particularly in his argument that the comments did not concern the issue of race.

  16. Adrien
    Posted September 29, 2011 at 3:41 pm | Permalink

    That Bolt has been found to be factually incorrect rather weakens any putative standing as a martyr to free speech.

    Le Carré writes somewhere of the sacred right of the press to besmirch anyone they feel like. :)

  17. Adrien
    Posted September 29, 2011 at 3:54 pm | Permalink

    (just as ‘annoy’ couldn’t be for Iemma

    I’m all for free speech but perhaps there should restrictions on speech that reminds us that Morris Iemma exists. :)

  18. kvd
    Posted September 29, 2011 at 4:09 pm | Permalink

    Nor all thy Tears wash out a Word of it

    The fourth line of my mother’s favourite quotation. “Yeh, Mum, whatever”.

    Now I get my revenge by boring my own kids with the same. Old, same old.

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

    Yeah, sorry about that everyone :)

    I brought it up because I think that he’s applied a subjective test and called it objective, because that’s what the statute requires.

    The more I think about this, the more I think this should have been dealt with via defo. I’m going to write a post explaining why, but in short it’s because Bolt is able to dress up telling untruths as an attack on freedom of speech. That RDA statute is an appalling piece of drafting, and the fact that he wrote direct libels is obscured by findings made against him based on bullshit categories like ‘offence’ or ‘insult’. It reminds me of the woolly ‘elephant’ definition used in the ASBO legislation over here.

  20. SimonC
    Posted September 29, 2011 at 4:39 pm | Permalink

    I’ve been reading all day about how the articles were “factually incorrect” -however apart from confusing Berendt’s (British) grandfather for a (German) father, I haven’t come across any other errors.

    Has somebody somewhere made a list of these? They seem to be a very important figleaf for the fairweather friends of Free speech on the Left.

  21. kvd
    Posted September 29, 2011 at 5:07 pm | Permalink

    SC@24

    [378] – [379]:The facts in question have not been proven to be true.

    I don’t have a figleaf, and am not a friend of the left, regardless of the weather.

    But I do have an old fashioned respect for judges, fortified by the knowledge that they have to sift through all the evidence, and weigh it against the law they are bound to adhere to, and yet still face up to comments such as “I’ve been reading all day”.

  22. Posted September 29, 2011 at 5:44 pm | Permalink

    Jonathon Holmes makes a clear statement of the difficulties involved:

    But this judgment reinforces all the concerns that its opponents had when the Keating government added Part 2A to the Racial Discrimination Act in 1995. It creates one particular area of public life where speech is regulated by tests that simply don’t apply anywhere else, and in which judges – never, for all their pontifications, friends of free speech – get to do the regulating.

  23. SimonC
    Posted September 29, 2011 at 5:49 pm | Permalink

    Sorry kvd, I’m not really interested in a stoush. I enjoyed the alliteration of the offending sentence, so left it in when I shouldn’t have.

    I have been reading about the case all day – I’m interested in free speech in Australia, and whether or not this particular Act is an unacceptable imposition on free speech.

    I’m not a lawyer, and I do not have time to read 57, 000 words of legalese. However, I would like to know what “The facts in question” are, and in what way they “have not been proven to be true”.

    Has anybody, judge aside, made a comprehensive list of these errors, where a layman might consider them?

  24. kvd
    Posted September 29, 2011 at 6:13 pm | Permalink

    as Andrew Bolt puts it, “unless your adjectives are too sharp, your wit too pointed, your views too blunt, your observations not quite to the point, your teasing too ticklish and your facts not in every case exactly correct.”

    SC@27 neither am I interested in a stoush. So I’ve just reprinted a quote from the man himself – via Lorenzo’s link @26.

    That last bit: “facts not in every case exactly correct.” is a bit of a worry. I mean – what is a “not in every case exactly correct” fact?

  25. etaoin
    Posted September 29, 2011 at 9:18 pm | Permalink

    Has anybody, judge aside, made a comprehensive list of these errors, where a layman might consider them?

    Well yes, in the very next post. However, the judge’s ruling is available online for anyone to look at – yes, even laymen.

    And you don’t have to read the whole thing – the factual problems are all dealt with together.

    Weak sauce.

  26. SimonC
    Posted September 29, 2011 at 10:56 pm | Permalink

    Thanks for that LE.

    It does seem like a pretty shoddy piece of journalism all told. I’m still not sure whether I think it should be illegal.

    etaoin – maybe so. But I’m not here for your approval, so that’s ok.

  27. Posted September 30, 2011 at 12:41 am | Permalink

    Shoddy journalism, yes, and best dealt with via defamation. The only possible good that _may_ come out of this is that either a superior court on appeal or the Coalition on winning government gets rid of a badly drafted law. The incredibly cavalier relationship journalists appear to have with accurate information remains unchallenged, all dressed up in pretty ‘freedom of speech’ glad rags.

  28. JC
    Posted September 30, 2011 at 2:02 am | Permalink

    SL

    I’m not sure how the case could even be tried under this crappy underhanded law. The Act basically is a form of protection for minorities. These people basically stood the law on its head. Bolt was arguing they are not minorities. They seem by all accounts to be part of the dominant culture, as their appearance and their cultural ties didn’t seem Aboriginal. They were also taking a decent dip at the public money trough.

    Now anyone has a right to call themselves whatever they want. I couldn’t care less if a black south African thinks of himself as Eskimo. However they have no right to tell me I should think of them that way.

    The big picture was that Bolt called these people out. The money was never intended for these cultural westerners.

    If he got some things wrong, it appears to me that the errors were minor. The narrative was never in question.

  29. etaoin
    Posted September 30, 2011 at 5:12 am | Permalink

    If he got some things wrong, it appears to me that the errors were minor. The narrative was never in question.

    The judge disagrees with you. He thinks the errors were fundamental. He gets to decide.

    As to the narrative never being in question – well, yes. Bolt came up with the argument first and selected the facts to fit. He did not question the narrative, as he should have.

  30. Pedro
    Posted September 30, 2011 at 6:16 am | Permalink

    LE, interesting piece. I think that the requirement Bromberg sets of civil and respectful discourse that minimises conflicts with 18C makes it difficult to know when an article will be safe. But that, of course, is the problem.

  31. ken nielsen
    Posted September 30, 2011 at 7:03 am | Permalink

    LE – an excellent analysis of the case. And even a fairly civilised discussion about it.
    The appeal will be interesting – my guess is that it will succeed, tho it’s a very long time since I opened a law book.
    I would give the government a lot of points if they accepted that the drafting needs improvement – unlikely, though.

  32. Pedro
    Posted September 30, 2011 at 11:47 am | Permalink

    Ken, it’s repealing not redrafting we need here. Some ideas cannot be reduced to useful limits. Mind you, I think laws against inciting racial hatred about bad laws.

  33. divine_msn
    Posted September 30, 2011 at 3:31 pm | Permalink

    I’ve been called numerous derogatory names by people of varying degrees of aboriginal heritage with the word “white” inserted somewhere in the descriptive eg “white c*nt” “f~cking whitey b@rstard” and so on along with other comments regarding my genetics. However had I made complaint about this blatant racial vilification it would have raised no more than an eyebrow and advice to take a teaspoon of cement and harden up. Which is what I sincerely believe those who are oh so hurt and offended by Bolt should do. Hope this judgement is overturned on appeal as Clark for one would be one of the biggest scoundrels in Aus today – white black yellow brindle blue … Not to mention the restriction on TRUTH if it happens to ‘offend’. Tough luck – if the cap fits, wear it.

  34. ken nielsen
    Posted September 30, 2011 at 4:03 pm | Permalink

    LE – your love (is that to strong a word?) of common law is way out of fashion.

    I guess I was taught that if you dug deep enough you could find a remedy for most wrongs in the common law. It was a living, breathing thing. But then the job of the Law Reform Commission was to clean up out of date laws – red flag in front of a vehicle and such.

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

    SL & LE, ken’s comment sounds like the basis for a post on where “action on the case” is at.

  36. Abu Chowdah
    Posted October 1, 2011 at 5:50 pm | Permalink

    Personally, I hope he also got pinged for overstaying his parking space every hearing day.

    Not very sporting of you.

  37. DirkH
    Posted October 2, 2011 at 3:28 am | Permalink

    I take it that people in Australia are not equal. (I’m German; so I find this interesting)

  38. Posted October 2, 2011 at 8:15 am | Permalink

    DH@47 Australia is a settler state and, like all settler states (unless, as in Argentina, they were close to systematically wiped out), has indigenous issues.

    This is particularly intense in Australia, as the mainland indigenous folk were foragers (pre-agrarians), so the socio-cultural gap between them and the industrial-age settlers was particularly large. They were also divided by many languages (so information flows were attenuated).

    Torres Strait Islanders are Melanesians and agrarians. Hence ‘ATSI’ (Aborigines and Torres Strait Islanders).

    There are some similarities with Amerindians in the US (notably share of population) but the Amerindians were agrarians or (after the arrival of horses) post-agrarians, so were militarily much more significant.

    No violence with Australian aborigines got as high as a company-sized action.

    That, at the time of Federation in 1901, many Aborigines were still itinerant foragers provided a reason to exclude them from the Census (as population size affected how many seats a State had in the House of Representatives). A 1967 referendum, which had a 91% “yes” vote, abolished that exclusion and permitted the Commonwealth (i.e. Federal) Parliament to legislate specifically for any race (rather than, as it was before, any race except “the aboriginal race of any State”).

    There are a range of benefits which are specific to indigenous Australians. This both causes some resentments and has mostly been a grotesque failure in improving the lot of indigenous Australians: so, worst of both worlds. But legally, indigenous Australians are full citizens with full voting rights.

    BTW the notion that the 1967 referendum gave indigenous Australians either citizenship or voting rights, is a myth. They became citizens when everyone else did, had always had the vote in South Australia and there were only issues in Queensland and Western Australia after 1949, but these were resolved by 1965.

  39. Posted October 2, 2011 at 8:17 am | Permalink

    By ‘only issues’ I mean ‘denial of voting rights’.

  40. Adrien
    Posted October 2, 2011 at 8:39 am | Permalink

    I’ve seen a lot of bad legislative drafting lately with quite perverse and bizarre effects.

    I wonder if it has something to do with the erosion of traditional humanities, the disappearance of deep reading and so forth.

    Or are we just electing bonehead robots.

  41. ken nielsen
    Posted October 2, 2011 at 8:46 am | Permalink

    Lorenzo – an excellent thumbnail.

    What I feel most ashamed about is that, despite (and in some respects, perhaps, because of) all the money spent on aboriginals over the past 30 years, the lot of most is worse than it was. As a taxpayer, I would willingly contribute to doubling the spending if it would make the situation better. But I don’t think anyone knows how to do that, with or without more money.

  42. Ros
    Posted October 2, 2011 at 8:50 am | Permalink

    I have worked hard and now get, I think, why the judge ruled as he did, and why he said the things that I found so unfair.

    However still I am one of Carlton’s nuts. But I do get why he can suggest that financial analysts wives and children should be attacked, and said in the most offensive manner, is OK by Australian legal standards, whereas the judge found Andrew Bolt unspeakable even though he spoke in a far more civil way. The audience at the SMH are a sophisticated lot, the rest of us who read News Limited are not.

    And my offense at Margaret Simons’ comments about different audience, different outcome is gone. Still annoyed but not at Ms Simons. An article by Dilan Thampapillai (discussing the division identified between the effectiveness of Part IIA in targeting crude and vulgar racist speech and its general ineffectiveness where the racism is slightly disguised or is expressed in a more civil and sophisticated way) includes a quote that succinctly covers one of the reasons why I am so bugged, and why my fellow Australians are entitled to be both cross and confused.

    Thornton, “results in the ‘chilling of blue-collar muck and preservation of upper-crust mud’.”

    I think that many Australians could relate to Hayek’s concerns that a central element of classical liberalism had failed, and his argument for minimalist law:

    “The loss of belief in a justice system independent of personal interest; a consequent use of legislation to authorise coercion, not merely to prevent unjust action but to achieve particular results for specific persons or groups; and the fusion in the same representative assemblies of the task of articulating the rules of just conduct with that of directing government.”

  43. Posted October 2, 2011 at 8:56 am | Permalink

    I should add that the language of ‘genocide’ gets used: it’s post-modern crap.

    The case cited is typically the Tasmanian Aborigines, the last “full-blood” members of whom died in the late C19th.

    There were only about 2-3,000 Tasmanian Aborigines at the time of European settlement. As was the case throughout Oceania and the Americas, the biggest killer was disease as the full global disease pool was imported, effectively all at once, to an epidemologically isolated population.

    They lived as isolated bands with little trade, having apparently lost the ability to fish (serious limitation on an island) while fire was carefully carried in ‘fire sticks’. Such small populations means it was easy to lose skills.

    The main interaction between bands seems to have been woman-stealing. While there was some violence (both ways) between Aborigines and settlers (and the normal British Imperial history of the Crown trying to protect the indigenous inhabitants and settlers resenting this) a bigger problem for fertility was the habit of the males trading women for hunting dogs.

    Those who nowadays identify as Tasmanian Aborigines come from those mixed race relationships. According to the 2006 Census, that is 16,770 people out of a total Tasmanian population of 476,479 (so 3.5%).

    Across Australia as a whole, 455,016 people identified as indigenous Australians in the 2006 Census, out of a total population 19,855,288 (so 2.3%).

    So, the State with the archetypal “genocide of Aboriginal Australians” has a 50% higher proportion of indigenous Australians than the national average and more than 5 times the population level existing before European settlement. But they are all “mixed race” which, raises all sorts of identity issues.

    During the “protection era”, indigenous Australians were often treated as effectively ‘legal children’, under the control (“guardianship”) of the “Protectors of Aborigines”. That gave powerful legal incentives to “pass as white” if you could.

    With the modern celebration of indigenous identity, and the existence of indigenous-specific benefits, the incentives to identify are now the other way.

  44. kvd
    Posted October 2, 2011 at 9:19 am | Permalink

    Thank you Lorenzo 48,53. I echo Ken@51 on that, and agree with the rest of his comments as well.

  45. Mel
    Posted October 2, 2011 at 9:34 am | Permalink

    “With the modern celebration of indigenous identity, and the existence of indigenous-specific benefits, the incentives to identify are now the other way.”

    Only in certain circumstances, Lorenzo. I recall a TT or CA episode a few years back where a well dressed Aboriginal man with a hidden camera sought a rental property at various Real Estate agents. He was repeatedly told nothing was available. Moments later a white person with a hidden camera entered the same Real Estate agents and was told properties WERE available. Fancy that.

    The picture you’ve painted is as lopsided and dishonest as the one painted by the black armband elements on the far Left.

  46. Posted October 2, 2011 at 9:42 am | Permalink

    ‘Passing’ is one of those astonishing phenomena that pops up in all sorts of odd ways across human history — there are cases in Roman law of people doing their level best to pass as Roman citizens, so it needn’t be based on race, either. Instead, lots of forged documents, forged seals, forged citizenship diplomas and desperate attempts to learn Latin.

    The story of this chap (and his rather more famous daughter) illustrates how the Roman courts dealt with passing. If she hadn’t been able to prove her citizenship, it would have been unwise for a general like Vespasian to marry her, due to unequal status.

  47. Posted October 2, 2011 at 11:37 am | Permalink

    M@55 “Mostly the other way” if you like: I go by revealed preference

    The 1996 Indigenous population count has increased by 55% since 1986 compared with a 12% increase in the non-Indigenous population. This partly reflects the greater willingness of people to report their Indigenous origin on the census form.

    Any other factual (non) errors you care to cite?

  48. Posted October 2, 2011 at 11:44 am | Permalink

    There is also the phenomenon of “passing women”, men who “passed” as men.

  49. Posted October 2, 2011 at 11:45 am | Permalink

    That should be “women who “passed” as men”

  50. Posted October 2, 2011 at 11:56 am | Permalink

    KenN@51 Thanks. All the attempts to develop “indigenous specific” policies have, with very few exceptions, been failures.

    The best single book to understand the pattern of failure is Why Warriors Lay Down and Die in which there is the illustrative tale of the Galiwin ’ku fishing industry.

    The Galiwin ’ku fishing industry consisted of several small fishing boats made from local timbers at Galiwin ’ku by the Yolηnu and mission staff. The Yolηu named these boats with holy names from their clain or riηgitj nation alliance. The boats were owned by the mission but were skippered and crewed by different clans. Some small clans would come together in a riηgitj alliance to make up a crew. …
    These clan groups would use the boats and sell their catch to the mission for processing and re-sale to other places. The people clearly understood that what they caught was theirs until they sold it to the mission and they benefited directly from their catch. From the point of sale on, it belonged to the mission. This arrangement satisfied the legal requirements of both the Yolηnu and Balanda systems of law.
    When the mission at Galiwin ’ku handed the fishing industry over to the Yolηnu council in 1974, everything proceeded well for a while because the mission staff also transferred to the council. For most Yolηu nothing really changed. Then in 1975 it was decided to get a loan from the government to develop the industry. The Aboriginal Development Comission ‘decided’ to bring in a consultant to look at the viability of the loan and how it could increase the efficiency of the industry. Following the consultant’s recommendation, one big, modern fishing trawler replaced the small boats. In the dead of night, the small boats were burned on the beach and one was cut adrift, to ‘convince Yolηu of the need to move up to the big boat’. Within six months the whole fishing enterprise at Galiwin ’ku had collapsed and Galiwin ’ku became an importer rather than exporter of fish products.
    … from a Yolηu perspective the collapse happened because the separate clans and nation alliances found it impossible to work under one Balanda boss on the trawler, as the trawler captain now had to be licensed. Moreover, Yolηu were insulted and grieving over the destroyed boats. With no clear lines of ownership the people could not see that any authority had passed to them. …
    To expect all the clans at Galiwin ’ku to believe they collectively owned the fishing company was like telling twenty-six Balanda companies that they collectively owned an industry incorporated as an association. … But this is not how community structures were set up. … The Yolηu fisherman did not see themselves as working for their own gain anymore; in fact, many now thought that the captain of the new trawler would reap the dividends. They had just become wage earners, and the incentive to work and build the industry for their own benefit was gone.
    On top of all this, people had become confused about where these wages came from. In the past they saw a clear trade with the mission—so much fish for so much money. This trade was what the Yolηu were used to. Now they got wages no matter how many fish were caught. The steps in the development of a cash economy, with its system of wages-for-labour, are many. The Yolηnu were catapulted into the cash economy with little preparation.
    With all this confusion, only conflict could occur, and economic development through industries like fishing was lost. (pp47-8)

  51. Mel
    Posted October 2, 2011 at 12:30 pm | Permalink

    Lorenzo:

    ” I go by revealed preference …. Any other factual (non) errors you care to cite?”

    Revealing one’s racial identity on an anonymous census form is risk free. You’ve mischievously and incorrectly deployed this particular concept.

    To give another example, a proud homosexual might identity himself as a homosexual on the gay bar scene while wishing to conceal this identity from his employer. Does this not ring any bells, Lorenzo?

    I’m not sure about your circumstances and I’m not saying this applies to you but I can say that when I identified as gay I met quite a few white right-wing homosexual men with attitudes not unlike yours. It was obvious to me that a good proportion of those men had internalised homophobia and that this manifested itself as an exaggerated adherence to the dominant culture and a “crabs in the bucket” attitude towards anyone who wasn’t a WASP male. One such manifestation is misogyny which, sadly, has a very significant presence in gay culture. Another manifestation is a callous attitude towards other minorities.

  52. Adrien
    Posted October 2, 2011 at 12:37 pm | Permalink

    During the “protection era”, indigenous Australians were often treated as effectively ‘legal children’, under the control (“guardianship”) of the “Protectors of Aborigines”.

    And now they’re a problem white people have to solve. Or something precious we have to preserve…

  53. Posted October 2, 2011 at 2:33 pm | Permalink

    M@62 You are simply being pointlessly abusive. I am happy to agree on “the balance of incentives” as a caveat. The reality is, a lot more people now identify as indigenous than used to, the Census is only one manifestation of that but a quantifiable one.

    I would also point out your counterexample involved someone who was “obviously” Aboriginal, so the option of “passing” apparently did not arise.

    You so don’t get it, you don’t realise that I am making the point that much of that shift in identity is legitimate: that there were lots of people who had legal reasons to suppress indigenous identity so that the surge in identifying-as-indigenous is not some “spurious gaming”. Hence also making the point that celebration of indigenous identity also matters: it is not simply about indigenous benefits.

    That said, the notion that there is no issue here is nonsense. One only has to look at disputes over who could vote in ATSIC or Michael Mansell’s notorious complaint:

    Their claim to be Aboriginal is fake, just as their claims this small piece of legislation by the Tasmanian Government is genocide is also a fake claim, but this is how they gain credibility to their cause. It’s a great story. They haven’t got a drop of Aboriginal blood in their veins but by crikey they’re able to get some attention.

    The minute you have benefits for a specific group, you have issues of defining identity.

    And yes, being a member of one minority does not automatically you sympathetic to another. African-Americans have a notoriously strong tendency to vote against gay rights, for example.

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

    Also, have a look at the link in my @58. The graph shows quite clearly an upward surge after 1965 (i.e. after the 1967 referendum and associated activism) and another from 1980 onwards. The ABS also notes increased mixed marriages (a mark of increased social acceptance) and increased tendency of children of such marriages to identify as indigenous as explaining some of the surge.

    One of the most depressing pieces of demographic analysis I ever read was an ABS occasional paper which concluded that the increase in indigenous counts was legitimate because the new population had the same age profile/life expectancy as previous counts. (I.e. about two decades below the national average.)

    This paper (pdf) does not quite explicitly make that point, but the graph of p.47 shows the continuity in age profiles.

  55. Posted October 2, 2011 at 2:54 pm | Permalink

    Also, have a look at the link in my @58. The graph shows quite clearly an upward surge after 1965 (i.e. after the 1967 referendum and associated activism) and another from 1980 onwards. The ABS also notes increased mixed marriages (a mark of increased social acceptance) and increased tendency of children of such marriages to identify as indigenous as explaining some of the surge.

    One of the most depressing pieces of demographic analysis I ever read was an ABS occasional paper which concluded that the increase in indigenous counts was legitimate because the new population had the same age profile/life expectancy as previous counts. (I.e. about two decades below the national average.)

    This paper (pdf) does not quite explicitly make that point, but the graph of p.47 shows the continuity in age profiles.

  56. Ros
    Posted October 2, 2011 at 3:25 pm | Permalink

    Speaking of identity it is of interest to revisit the original aims of the lawyers involved. I presume that their clients agreed with them
    .
    “The law firm Holding Redlich accepted the case pro bono and in September 2010 lawyer Joel Zyngier gave a newspaper interview in which he was quite clear on its aims:
    We see this as a really important case. We see it as clarifying the issue of identity—who gets to say who is and who is not Aboriginal. Essentially, the articles by Bolt have challenged people’s identity. He’s basically arguing that the people he identified are white people pretending they’re black so they can access public benefits … We’re not seeking to make this a case about freedom of speech, because it’s not. The issue is essentially about whether or not other people can define identity, and in particular Aboriginal identity, based on how you look. ……

    In the 2006 radio interview which discussed his desire to pursue “strategic litigation”, Ron Merkel said that he was interested in “picking up public interest cases or cases in indigenous Australia” that would help to move Australian law along the progressive lines he admired in other countries…….

    From the start, and until the end, the prosecution and the defence appeared to be taking part in different dramas. The prosecutors wanted to argue about Aboriginality, and not freedom of speech; the defence wanted to argue freedom of speech, and not Aboriginality. In the defence case the individual’s claims to be Aboriginal were not disputed. At one point, after Neil Young had again insisted the case was not about Aboriginality the judge asked, “Is this not a debate about who is an Aboriginal?” Young reiterated that it was about the “consequences” of so identifying. Someone had picked up the wrong script, and it won’t be until judgment is given that it is clear who was wrong.”
    This from May this year.

    Seems that Bolt was in trouble for his quotation marks. Initially accused of using the quotation marks to attribute the words to a plaintiff, and hence accuse her of lying. When it was demonstrated the quotes were for quotes from papers he was accused of trying to attribute the words from the paper to the plaintiff, and hence , you get the idea.

    Some may remember the eccentric cleric, his name escapes me, who got himself into trouble in China. He was accused of sneaking around in his house because the blinds were drawn.

    Is this how the law works, just keep piling accusation on accusation until the sum of accusations makes the offence egregious.

    Maybe the transcript of the court case is going to be more interesting than the judges discourse.

  57. Posted October 2, 2011 at 4:01 pm | Permalink

    Well, it would appear that Mr Merkel made a poor strategic choice, because Bolt has succeeded rather well in making it all about freedom of speech. If nothing else, it illustrates the dangers that arise when lawyers let their political views influence how they conduct litigation.

    Among other things, it also leads to an inability to spot when legislation is badly drafted and likely to be productive of ambiguous results.

  58. kvd
    Posted October 2, 2011 at 4:28 pm | Permalink

    Is this how the law works, just keep piling accusation on accusation until the sum of accusations makes the offence egregious.

    Not ‘the law’ as I understand it. I’ve always thought the parties to any action are entitled to pursue their interest any way they see fit. Which involves judgement. But then, come the day, both parties are faced with a ‘dry old judge’ who must adjudicate the case, on the established facts, in accordance with the law he/she is given,

    If it was just left to who could spin the most, well, I’d be very disappointed – or should that be disillusioned.

  59. kvd
    Posted October 2, 2011 at 4:50 pm | Permalink

    Which hopefully lets me to raise my next question for the lawyers. (And this assumes you feel able to so comment, I accept) Given that LE commented earlier that the judge was entitled to find as he did, what are the likely/possible grounds upon which further action might be taken?

    I ask this in full knowledge that just about every lawyertype person who has commented has said “the law in question is crap”.

  60. ken nielsen
    Posted October 2, 2011 at 5:26 pm | Permalink

    LE – I wonder if the appeal court could find some room on the defence? That the errors of fact were not enough to amount to a lack of good faith? In other words, interpretation of the section, rather than finding of the facts?
    I do think it very important that we get a binding precedent out of this.
    We might even get a comment to the effect that the drafting was bloody awful (in judicial language, of course.)

  61. ken nielsen
    Posted October 2, 2011 at 6:02 pm | Permalink

    LE – I guess appeal to the full Federal Court is as of right and to the High Court by leave?

    Did you hear Roddy Meagher’s description of Mary Gaudron removed from his Portraits on Yellow Paper?

  62. Mel
    Posted October 2, 2011 at 11:24 pm | Permalink

    L@65

    Alright then, I must have misinterpreted what you said. My apols.

  63. ken nielsen
    Posted October 3, 2011 at 6:38 am | Permalink

    LE -In fact Roddy had a lot of respect for Gaudron and most of the others he made offensive remarks about.
    He was playing a role, which those close to him recognised. I did not know him well – he taught me equity many years ago and in more recent years we chatted at concerts – but he was a man of great charm and, I believe, with not a malicious cell in his body.

    After all, he loved music and art (and his late wife and his daughter) so what can possibly be bad in such a person?

  64. ken nielsen
    Posted October 3, 2011 at 6:39 am | Permalink

    I won’t quote Meagher’s description of Gaudron here. It was too rude for the publisher and it probably too rude for here.

  65. Posted October 3, 2011 at 8:34 am | Permalink

    M@77 S’OK: I will in future try to remember to say “the balance of incentives have swung the other way”. It is always good to remember that it is net incentives that count and incentives are rarely in a single direction.

  66. Posted October 3, 2011 at 10:03 am | Permalink

    LE@79 Yep. Consider Gerhardy v Brown: an indigenous Baptist pastor who was not a Pitjantjatjara brought suit because he had been barred from Pitjantjatjara land (10% of SA). He lost.

    Then there is the rich irony of the Brandy case, which put a serious limit on the exercise of power by special purpose authority.

  67. Posted October 3, 2011 at 10:53 am | Permalink

    Or try a recent US court case over voting rights of African-American members of the Cherokee nation:

    The ruling followed a Cherokee tribal decision to revoke the membership rights of the African-Americans, saying they were not Cherokee by blood. The freedmen say they were granted tribal membership by a 19th century treaty with the government, and filed suit against the Cherokees in federal court.

  68. Hillbilly
    Posted October 5, 2011 at 10:15 pm | Permalink

    Very Interesting. I clicked on the 86 comments at the top of the previous page to see if there was any response to my comment No.86 and surprise, surprise, only 85 comments are now listed.

    Did I say something you thought Bromberg J might have found that someone would feel “offence, insult, humiliation and intimidation” as a result of my post? I thought he said in effect freedom of speech was not under threat as a result of his ruling. Yeah, right! And the Pope’s not Catholic! Wake up Australia, before it’s too late !!

  69. Posted October 5, 2011 at 10:23 pm | Permalink

    Hillbilly, your comment is here (on a different thread that at that point had petered out). Feel free to repost it on the most recent Bolt thread. We did do three Bolt posts seriatim, which probably had something of a confusing effect on everyone.

  70. Posted October 6, 2011 at 7:07 am | Permalink

    I agree that the prospects of an appeal are pretty slim. The only thing that struck me as a possibility was the idea that the conduct had to involve racial hatred. The second reading speeches made it pretty clear that what was being targeted was racial hatred, but the words of the statute are much more widely drawn and it would take a little bit too much massaging to restrict them only to instances of racial hatred as distinct from racial insensitivity.

    In any event Toben, which Bromberg J cites in the decision, is a Full Court decision which endorses the idea that it goes beyond racial hatred so any appeal on that point would have to be resolved in the High Court.

  71. Hillbilly
    Posted October 7, 2011 at 3:41 am | Permalink

    Thank you for comment 87 Skepticlawyer. My apologies , but I’m more than a little touchy in current times about freedom of speech. I hope you had time to access the sites suggested.

    In the Tasmanian ATSIC case, Ron Merkel J listed several comments on definition of Aboriginality by judges in previous actions together with comments from other people.
    One such comment is from a complainant in the current Bolt case. Link:

    http://www.alrc.gov.au/publications/36-kinship-and-identity/legal-definitions-aboriginality

    36.32 Dr Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology Sydney, has commented:

    If we’re going to talk about treaties and recognition of rights, the question of who’s in and who’s out is going to be the most important issue facing indigenous Australians. If that isn’t resolved, you run the risk of having the parameters stretched to the ludicrous point where someone can say: ‘Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal’.

    The ruling of Bromberg J in the Bolt case would seem to me to open a path for possibly many people of Aboriginal descent to now bring a case against Behrendt under the RDA.

    Given her position of power and influence as a Professor of Law as well as her standing in Indigeonous Studies, her statement may well have been reasonably likely to have offended, insulted, humiliated or intimidated people of more distant Aboriginal descent from applying or being eligible for benefits, prizes or awards not available to all Australians but financed by
    Australian taxpayers specifically for those who had been deemed to be disadvantaged over many years. (That latter point alone is what makes this whole issue a matter of public interest and concern).

    Proof of descent is the first of three key factors accepted in most relevant case judgments and no generational cutoff point has been specified.

    Although Behrendt does not specify any generational cutoff either, she has however, specifically singled out seventh generation at least, clearly inferring (in language that could be deemed by any particular judge to be designed to offend, insult, humiliate and intimidate) that it would be “ludicrous” for any person in that category to claim Aboriginality.

    This seems to be an extraordinary statement from someone who has based her own Aboriginality on descent. Some may well ask what right she has to try and dictate who does or does not have the same rights she claims, simply by reason of any timeline of such descent. Was it fair commemt and did she make that statement in good faith?

    Bromberg J rejected Bolt’s claim that he truly believed what he was writing and that it was in good faith, (as those who have read all his articles on this matter could have attested).

    Similarly, depending on who the judge was in any such case against Behrendt, it would be open for them to reject such a plea from her and also to perhaps “read between the lines” (a particularly astounding skill for anyone to have!) and infer that Behrendt could have meant that too many were becoming eligible for the largesse available, thus thinning the spread for those already eligible.

    All the above is only one possible scenario that has been enabled and I await any comments with interest.

    To mix metaphors, Bromberg J has opened a Pandora’s Box full of cans of worms!

    .

  72. Hillbilly
    Posted October 7, 2011 at 11:15 am | Permalink

    Legal Eagle. What can I say? You have heartened me immensely with your incisive unbiased summaries and I cannot thank you enough for allowing me and others a respectful forum in which to express our views. Thank you too for the links including that to Wesley Aird whose article makes some very valid points.

    The Tasmanian ATSIC case was essentially brought on because of an indigenous power struggle. I would recommend that you and/or any other interested person Google :4C,Blackfella,Whitefella.

    This was a 2002 ABC 4-Corners program in which Quentin McDermott had some great interviews with various ATSIC case players.including leading Aboriginal activists, complainants and defendants together with respected historians and other witnesses.

    The ruling of Ron Merkel J in the ATSIC case can also be accessed there together with some very frank comments on it by those affected.

    Particularly note those of respected activists Michael Mansell and Jim Everett plus insight from historian Dr.Cassandra Pybus.

    If the Bromberg judgment is allowed to stand, I don’t think such a program could ever be made again as few would be brave enough to speak as freely as they did then.

    An interesting development today in the struggle within Aboriginal communities is that Geoff Clark, another complainant in the Bolt case, has just been suspended from his role at the Framlingham Aboriginal Trust following action taken by shareholders, including relatives of Mr.Clark, after a damaging Aboriginal Affairs report found mismanagement at the trust. Clark has been quoted as saying it was “black fella politics”.

    Finally, there are healthy signs that many thinking people are moving beyond the Bolt- hating, Left-wing v.Right-wing nonsense and recognising the great threat to our cherished right to freedom of speech posed by the Bromberg decision, although I must admit I’m still astounded that everyone connected with journalism in particular, either didn’t see or refused to recognise it as such from the start.

  73. Posted October 9, 2011 at 11:42 am | Permalink

    Very Impressed by Andrew Bolt’s essay on bullying.

    A must read for all those that think they know Bolt!!

  74. kvd
    Posted October 9, 2011 at 12:36 pm | Permalink

    because I know who bullies choose, and why. They choose the different, because that makes them feel more of the mob, themselves

    and

    who is bullied not just in the traditional way, with punches and the usual moronic cruelties but also with the cyberbulling that makes misery more humiliatingly public

    Sorry H2, he’s shot his bolt as far as I’m concerned. The article could as have easily been the work of one of his own critics – not that I’m in any way suggesting plagiarism ;)

  75. Posted October 9, 2011 at 6:43 pm | Permalink

    Henry2, as much as I would like to think the best of Bolt, the article is consistent with the narcissism of which he is sometimes accused.

  76. kvd
    Posted October 11, 2011 at 11:29 am | Permalink

    Further article available by Anne Summers in The Monthly titled “The Bolt Factor: Andrew Bolt and the Making of an Opportunist” which is ruffling a few feathers.

  77. 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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  2. By Skepticlawyer » Stella, by means of a trust on October 10, 2011 at 11:19 pm

    [...] of the reasons the fall-out over Andrew Bolt’s adventures in acrimonious Aboriginal commentary has been so, um, acrimonious… is because some of the moneys in question are government [...]

  3. [...] towards the case has been overwhelmingly positive. I must say I am not surprised in the least. As I’ve said previously, there was a definite sense in which the judgment was intended to vindicate feelings of anger and [...]

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