In the thread to Legal Eagle’s excellent casenote on Bromberg J’s ruling in the Andrew Bolt matter, I promised that I would point out why I think the plaintiffs (or, at least those with the strongest cases, and particularly Anita Heiss) should have brought their claims in defamation, not under the Racial Discrimination Act 1975 (Cth).
[I also suspect that the plaintiffs may be confronted with issue estoppel; that is, they may have blown their one chance at bringing a claim; the courts may well consider the matter resolved.]
I will keep my comments brief, because the legal issues have all been excellently and intelligently canvassed, not only in Legal Eagle’s two posts, but also by the Club Troppo hivemind (look out for Ken Parish in the comments) and in an excellent piece by a non-lawyer, Jonathan Holmes. To get the best out of Holmes’s piece, I recommend reading Legal Eagle’s two pieces and Ken’s comments first.
In short, by failing to bring their claims in defamation, the plaintiffs have allowed Bolt to present this ruling as an assault on free speech. That is because the relevant statutory provisions turn on vague and subjective notions like ‘offence’ and ‘insult’ and ‘humiliation’. Laws like this don’t work well, and sometimes courts strike them down, as happened when — during protests over Pope Benedict’s visit and World Youth Day in 2008 — NSW Premier Morris Iemma tried to criminalise ‘annoying’ behaviour. The law can do many things, but not define something incapable of definition by virtue of its subjectivity. Bromberg J — mandated by the statute to deploy an ‘objective test’ (for words like ‘insult’ and ‘offend’) tries his best, but is forced by badly drafted law to use a subjective test and call it, for the statute’s sake, an objective one.
I should add that if these provisions are struck down by a superior court, it is more likely to be on the grounds of vagueness, rather than grounds based on the implied right of free political communication available in the Constitution thanks (largely) to the efforts of the Mason High Court.
That is by the by, however.
Hard cases, it is true, make bad law; but bad law also makes hard cases. This is such a case. In the comments to her second post, Legal Eagle helpfully outlines the factual errors Bolt made in his various articles. I repeat them (with accompanying paragraph numbers from the judgment) here:
* Bolt implied that the plaintiffs “chose” to identify as Aboriginal, but the nine plaintiffs who gave evidence at trial had each been raised as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal. (This is the “big” one). The failure to mention the plaintiffs’ Aboriginal upbringing meant that the articles were factually incorrect, because they implied that there was simply an opportunistic choice to identify as Aboriginal. , 
* In relation to Ms Heiss, Bolt wrote that she had won “plum jobs reserved for Aborigines” at each of three named institutions or enterprises. The judge said “Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.”
* Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” but Ms Eatock only had six to six and a half years of employment since 1977. Bolt also suggested that she identified as an Aboriginal for political motives after attending a political rally. The judge found that this was untrue, and that Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons. , 
* Bolt wrote that Ms Cole was raised by her “English-Jewish” mother but failed to mention that her Aboriginal grandmother also brought her up. The statement that Ms Cole rarely saw her Aboriginal father was also incorrect, as she regularly saw him from when she was 6 years old, and spent a year living with him when she was older.  – 
* Bolt wrote that Ms Behrendt was raised by her white mother, but this was incorrect, and in fact her parents did not separate until she was 15, and her Aboriginal father had a continuing role in her upbringing. 
* Bolt wrote that Wayne and Graham Atkinson said they were “Aboriginal because their Indian great-grandfather married a part-Aboriginal woman”. In the second article Mr Bolt wrote of Graham Atkinson that “his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman”. The judge found that this was grossly incorrect, and that the Atkinsons’ parents are both Aboriginal, as are all four of their grandparents and all of their great grandparents other than the Indian great grandfather. 
As many of you know by now, Legal Eagle and I have written a guide to defamation, which is worth reading in light of the above findings of fact. I have also been defamed myself at various times, and probably should have taken action, but for a range of reasons did not. Ken Parish wrote about one of the incidents (the responsible party was Phillip Adams, and Media Watch followed up with pathetic weakness).
For the purposes of this post, compare the Adams incident involving me with the story about Anita Heiss and her unpaid, voluntary, ‘plum job’. Notice the similarity? Bolt accused Heiss of being an Aborigine for fun and profit based on underlying factual errors about her employment record, just as Adams went on to compare me to Anu Singh based on an underlying factual error: that he had interviewed me, when he hadn’t.
At various times, different commentators around Ozblogistan (and elsewhere) have pointed out that journalism is eating itself when it comes to this sort of thing. That the irritation is bipartisan (and no longer simply confined to lawyers) is nicely illustrated by this comment from Larvatus Prodeo’s Kim:
When will journos realise that there is a reason that they are positioned somewhere along with pollies at the tail of the field in all those surveys about professions the public respects?
What does “journalistic capacity” even mean if what is served up is heavily opinionated News on one hand and anodyne and bland click-driven non-news on the other?
I mean, really.
There are good reasons why the readership of broadsheets is in decline, and they are not all about the internetz. People don’t want to read the product, and those who do don’t see it as worth paying for. That must imply something about the actual content, not just about readers.
What we have here (and had, in Adams’s case with respect to me, and seem to have nearly every day), is shoddy journalism.
The only possible good that may come out of the Bolt litigation is that either a superior court on appeal or the Coalition on winning government gets rid of a badly drafted law. Over at Club Troppo, Yobbo (who also comments here from time to time) observed thusly:
I think more than anything, they didn’t sue him for defamation because suing him under this law means they get to play the racist card with Bolt forever and ever. Andrew Bolt, the convicted racial abuser.
The problem with this high risk, high payoff strategy is that it cuts both ways, and has had the effect of making the plaintiffs look like whiny professional victims who want to constrain freedom of speech. And Bolt is playing that angle for all it is worth, simply because those awful provisions (introduced, I might add, in 1995 by a catastrophically unpopular Keating government at the height of political correctness — and I should know, being at the centre of much of the worst of it) do undermine freedom of speech. That Bolt’s articles were riddled with untruths has not reached the wider public, no matter how much that fact matters to lawyers and the more thoughtful journalists. The public — as this IPA poll reveals — values speech rights above freedom from offence. However, those same free speech aficionados also object when media organisations tell lies about named individuals, or hack their phones, or camp out on their lawns. The free speech issues raised by this case (thanks to the RDA) are obscuring those concerns. Also, there is the argument that a defamation win against him would force Bolt to improve his research practices, and may even have other positive spillover effects, like reining in his climate change commentary. The latter is unlikely to happen now.
Yes, defamation claims would likely need to be brought singly. Weaker claims would need to be dropped (I think Geoff Clark would struggle, for example). The Federal Court is friendlier when it comes to group proceedings. The Aboriginal plaintiffs would need to put aside the collective identity that clearly matters to many of them.
But right now, thanks to this gimcrack example of the parliamentary draftsman’s art, Andrew Bolt is getting away with portraying himself as a martyr to free speech, rather than as a journalist who failed to do adequate research.