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‘This is a sad day for adequate research’

By skepticlawyer

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. [378], [398]

* 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. [381], [407]

* 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. [402] – [403]

* 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. [404]

* 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. [406]

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.

103 Comments

  1. ken nielsen
    Posted September 30, 2011 at 8:53 am | Permalink

    Yep. Very messy all round. What damages do you think they would get in a defamation suit?

  2. Posted September 30, 2011 at 8:58 am | Permalink

    SL — this is a really key point you make:

    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.

    And even though Pat Eatock herself tried to speak to this immediately outside the court after the decision:

    It was never about free speech, it has always been a question of professionalism, and the reality is that the original articles were not professional journalism.

    I too fear this message has been muffled and spun away.

    For the original articles published in 2009 there is the issue of ‘issue estoppel’ (need to bring all claims in the one action or lose the right to do so piecemeal later), but it seems to me that a new action could be brought based on the re-publication of the online articles. Arguably every day an online publication is accessed by a third party is a new publication. So there could be a defamation action for the 28 September 2011 online articles for instance, which is mitigated by the relief to date (of which there has been none, at least in monetary terms).

    With 1000s of articles on the Bolt Blog for instance (and manifold comments) there is a whole universe of other defamation claims that could be brought to drive home the journalistic responsibilities to report facts accurately and employ reasonable pre-publication protocols to check those facts and both sides of the story.

    I’m not sure that a class action vehicle could be employed for this but there might be a common issue anchored in Moderation practices (some musings on this).

    Maybe there could be some traction for all this that could come out of the Media Inquiry.

    David C. Barrow http://www.courtrules.net.au/ Juris Doctor law student, RMIT Uni

  3. Posted September 30, 2011 at 9:01 am | Permalink

    Anyone’s guess, Ken, but I think Anita Heiss in particular was spectacularly hung out to dry. Even more incredibly, Bolt’s assertions about her physical appearance were simply untrue, and would be provably so by the simple expedient of having her stand up in the witness box. This is what comes up on google images when searching her name.

  4. Posted September 30, 2011 at 9:05 am | Permalink

    Nice post, completely agree (and glad I was able to provide useful links as did my “thinking out aloud” in comments on LE’s very helpful posts).

  5. Posted September 30, 2011 at 9:13 am | Permalink

    That should read “as I did”

  6. Posted September 30, 2011 at 9:53 am | Permalink

    SL (and Legal Eagle), I am really enjoying the commentary on this issue by this blog. Nothing substantial to add, but thanks!

  7. ken nielsen
    Posted September 30, 2011 at 9:58 am | Permalink

    David – it is “about” free speech. In particular whether the facts and law justify legal sanction on something written in the press. It is also about racial vilification, journalistic accuracy and, if you like, several other things.Bolt’s use of facts was very careless. I would not call it lying, as some have done, because they were careless, not intentional mis-statements.

    What bothers me about making accuracy the issue is that the media is at least 25% full of careless and inaccurate reporting. News, Fairfax, ABC – the lot. That is unfortunate, but it rarely results in legal sanctions.

  8. Antabolis
    Posted September 30, 2011 at 10:09 am | Permalink

    Some of these errors aren’t especially convincing, for example Ms Cole “rarely seeing her father” is supposedly incorrect, but the refutation – that she regularly say him up to the age of six, and spent a year with him later – is not that convincing, taken as a whole that’s still “rarely”.

    Also the claim is that “None [of the 9 plaintiffs] made a conscious or deliberate choice to identify as Aboriginal” and yet later it says “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.” So did she or didn’t she make a conscious or deliberate choice to identify as Aboriginal?

    The substance of what Bolt was getting at remains here, that these people chose to identify as Aboriginal, even if that was subconsciously, when there might be other more obvious identities to choose, ones that would have brought us closer together rather than emphasised our differences. With 1/16 aboriginal blood who doesn’t have the wit to question, am I actually really Aboriginal, what about the other 17/16 of my blood? Going forward a generation or two will a future grandchild of Ms Cole be able to say “I’m Aboriginal because I was raised by my grandmother sometimes who was Aboriginal”. Notwithstanding the errors, what Bolt was staying was in the public interest, and done reasonably and in good faith.

  9. Adrien
    Posted September 30, 2011 at 12:02 pm | Permalink

    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.

    Yes, and now it will become about killing the Racial Discrimination Act.

  10. etaoin
    Posted September 30, 2011 at 12:49 pm | Permalink

    But by bringing a defamation action, their opponents would have been able to portray the stoush as one about money, rather than principle.

    Surely must have been a tactical factor.

    Also, not convinced that Bolt’s martyr act is convincing anyone who wasn’t already convinced.

  11. kvd
    Posted September 30, 2011 at 1:27 pm | Permalink

    The thing I’m wondering about is – if Mr Bolt rewrote his articles correcting for the factual errors (as kindly summarised by LE) then would the article be defamatory (as everybody seems intent upon) or would it, while making ‘fair comment’, not succeed in making the very points B. wished to make?

    Shorter version – is it the twisted facts which actually make his points, or would he have succeded in making his argument sans ‘twists’?

  12. Posted September 30, 2011 at 1:45 pm | Permalink

    I’ve put my take on things up on Ambit Gambit here.

    LE, I see the judgment as flawed in some respects. Perhaps the deepest flaw was Bromberg J’s obiter about how the judgment should not be interpreted. It tends to bring into question the legitimacy of the statute. Whilst I am totally on board with that idea, I don’t like a judge pushing it.

    At its heart, I thought the decision was a correct application of the legislation and I doubt whether it will get overturned on appeal. I don’t think the statute is likely to get overturned on the basis of the implied freedom of political communication given the exemptions in section 18D. It is more likely that the High Court would just say that section 18D is to be interpreted consistent with the implied freedom.

  13. ken nielsen
    Posted September 30, 2011 at 2:11 pm | Permalink

    “Also, not convinced that Bolt’s martyr act is convincing anyone who wasn’t already convinced.”
    Yep, I doubt that any opinion about anything has changed following this decision.

  14. Posted September 30, 2011 at 2:14 pm | Permalink

    I’m backing Yobbo’s statement.

  15. Posted September 30, 2011 at 2:40 pm | Permalink

    I quoted him in the piece, LE. It’s an assertion not easily amenable to proof, but it’s at least as likely as the plaintiffs’ possible worries about appearing venal had they gone down the defo route.

    Having been embroiled in a massive ‘that’s racist!’ dispute myself, I have formed the view that many – perhaps most – of the people who throw the allegation out there do not do so in good faith (they also do it too often, creating ‘little boy who cried wolf’ situations, but that is a separate issue).

  16. kvd
    Posted September 30, 2011 at 2:54 pm | Permalink

    If it had been me who had been mentioned in the articles, I think I would have written an article rebutting the allegations made by Bolt, and tried to get it published

    If you got it published within the news cycle, with equivalent prominence then I’d say that’s a reasonable response. But you’d be a very rare bird (not being sexist!) if you were accorded such a platform – and that is the problem with your solution.

    Probably off-topic, but I do hope that all of this is kept in some sort of perspective as to who really gives a sh*t. Mr Bolt maybe commands 1-200k true believers; the various other shock and awe pundits on both “sides” not much more, and from the same committed pools I’d suspect. The other 10M+ voters are most probably more concerned with scrabbling for a living, and making sure their kids don’t get into too much trouble, or have a car when they turn 17.

    I mean, it’s important, and fee-generating, but not life threatening.

  17. danmcc
    Posted September 30, 2011 at 4:13 pm | Permalink

    Great post. These “interventionist” provisions never seem to result in the desired outcome – that Bolt retracts what he says or is shown to have been wrong. Instead we now have Bolt as a martyr to free speech. A similar sort of phenomenon happened in Vic with the Racial and Religious Vilification provisions and the Catch the Fire case.

    It is a pity that Blomberg’s judgment turned out to be so dense – it is prohibitive of non-lawyers actually slogging their way through it, rather than just getting the sound bites.

    I keep waiting for someone in the Bolt camp to get around to the obvious argument – that free speech (and by extension other rights) should be protected by a charter or some other guarantee – a proposition that Bolt has furiously argued against throughout his own career.

  18. Posted September 30, 2011 at 4:13 pm | Permalink

    It’s the ‘give an opportunity for fair reply’ rule, which so lessens the sting of many libels. The routine failure of the media to do this is what makes me pretty unsympathetic to their lot when they have to make a big payout from their ‘defo pot’ (and believe me, every media organisation has one).

    Ken @7 points out what he thinks is a 25% hit rate for media inaccuracies, and (seems — I think, hope I’m being fair to you here) to argue that nothing can be done about it.

    This is not the case. If I were inaccurate 25% of the time in my dayjob, I’d be out of it PDQ, sans my practicing certificate. Ditto doctors, vets, engineers and any other profession you care to name. Doctors and lawyers work under time constraints as severe as any journalist, and most of the time we remove the correct kidney and apply the correct legislative provisions. Yes, really!

    If their industry is to survive, people in the media really, really need to smarten up their act on the accuracy issue.

  19. kvd
    Posted September 30, 2011 at 4:23 pm | Permalink

    the media is at least 25% full of careless and inaccurate reporting. News, Fairfax, ABC – the lot

    Well I didn’t want to draw attention to this grievous insult to the good folk at “… the lot” but since SL mentions it, I’m just hoping that Ken@7 can support this statement; facts and figures-wise. Otherwise, not a lot different from other comments under discussion – even if the target/s are vague.

  20. Posted September 30, 2011 at 4:37 pm | Permalink

    Having been embroiled in a massive ‘that’s racist!’ dispute myself, I have formed the view that many – perhaps most – of the people who throw the allegation out there do not do so in good faith (they also do it too often, creating ‘little boy who cried wolf’ situations, but that is a separate issue).

    SL – there’s a lovely gif they sometimes link in Catallaxy when topics such as this come up.

    I’m sure you’ve seen it.

  21. Posted September 30, 2011 at 4:38 pm | Permalink

    Er, whoops, sorry.

  22. ken nielsen
    Posted September 30, 2011 at 4:41 pm | Permalink

    No, SL. I was not arguing that.
    I would like to see a regular corrections column – as the NYT has.

    The source of the problem, I think, is that all branches of the media are really in the entertainment business. Bolt is a shock jock – there to arouse strong feelings of approval or dislike. He does that well. And I could list many others on both sides who do the same. And I fear it gets worse as more and more of the news comes from wire services and each paper tries to distinguish itself by its comment and opinion writers.

    Look at Krugman in the NYT – he’s a Nobel prize winner but he behaves like an entertainer. All of this means (he said optimistically) that serious blogs will replace much of the opinion stuff in the MSM. In a way, that is as great a threat to MSM as the loss of advertising revenue. A long bow, perhaps, but it is Friday evening…

  23. ken nielsen
    Posted September 30, 2011 at 4:43 pm | Permalink

    kvd – what percentage would you settle for? I was going to say 50% but backed off.
    “every time I read something in the paper I know something about, it’s wrong”

  24. kvd
    Posted September 30, 2011 at 4:58 pm | Permalink

    ken@32 well I never thought! Here am I being helpful and polite, and you are offering to settle for twice the original slight ;)

    re your previous post mentioning a corrections column. I followed thru SL’s link to her own nasty experience, and in comments there derrida d mentioned that the original concept of Media Watch was good – but then got ‘polluted’. I agree with that, and with your own comment.

  25. ken nielsen
    Posted September 30, 2011 at 5:20 pm | Permalink

    kvd – I think MW fell into the same trap. it became entertainment. There to get viewers to grind their teeth in annoyance or nod their heads in agreement. Hey – did you see MW last night? It was great how he took X apart. Couldn’t happen to a better bloke..

    And yes, LE there are exceptions. They are noticeable because they are so few.

  26. Mel
    Posted September 30, 2011 at 7:21 pm | Permalink

    “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.”

    This would be a disaster as cyber libertarians would be forced to look elsewhere for an opinion leader.

    You may wish to ponder why it is that so many libertarians hang on Bolt’s every word. Catallaxy and the ALS blog are practically cyber-cathedrals of Bolt worship.

    As I’ve said before, in practice if not in theory, conservatism and libertarianism are a pair of ugly twin sisters.

  27. Mel
    Posted September 30, 2011 at 7:42 pm | Permalink

    I was going to post another comment saying my previous was maybe a little harsh but I now see the libertarian luvvies are at it yet again today :)

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

    Yes, it’s just about reached the status of a legal presumption: the longer someone is active on twitter, the more likely it is that they will make a public twit of themselves. At some point, this probability reaches 1, and the presumption thereby becomes irrebuttable.

  29. Posted September 30, 2011 at 8:57 pm | Permalink

    David Cameron summed up public figures and Twitter.

  30. Mel
    Posted September 30, 2011 at 9:07 pm | Permalink

    LE,

    You’ve missed my point, that being that most Oz cyber-libertarians (or at least the male ones), feed off Bolt as if he were some demi-God. Whether Bolt is right or wrong in some particular instance is not the issue.

  31. Posted September 30, 2011 at 9:46 pm | Permalink

    Getting libertarians to line up and face in the same direction on any given issue is rather similar to herding cats. Conservatives, however, are another matter.

  32. ken nielsen
    Posted October 1, 2011 at 5:09 am | Permalink

    You may wish to ponder why it is that so many libertarians hang on Bolt’s every word. Catallaxy and the ALS blog are practically cyber-cathedrals of Bolt worship.

    Mel – a foolish over-generalisation. I suggest you read more carefully.

  33. ken nielsen
    Posted October 1, 2011 at 5:15 am | Permalink

    I am libertarian-ish, I occasionally comment on catallaxy and once blogged there. I rarely read Bolt. As I have said, he is a print version of a shock jock. I do not defend his comments that were the subject of the recent case, but I do think that decision is unfortunate, as is the law on which it is based. I believe it does threaten freedom of speech.

    Where does that put me, Mel?

  34. etaoin
    Posted October 1, 2011 at 6:08 am | Permalink

    “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.”

    How so? Bolt’s sloppiness has already been exposed in a defamation case back in 2002 (Popovic v Herald & Weekly Times). Did that make any difference to the way he goes about business? On the evidence in this case, no way.

  35. Gus
    Posted October 1, 2011 at 9:09 am | Permalink

    Its not just that he failed to do adequate research. When the research he did provided information that contradicted his argument he blithely ignored the contradictory part.. Bring on the defamation cases.

  36. Adrien
    Posted October 1, 2011 at 9:55 am | Permalink

    Mel:

    This would be a disaster as cyber libertarians would be forced to look elsewhere for an opinion leader.

    SL:

    Getting libertarians to line up and face in the same direction on any given issue is rather similar to herding cats. Conservatives, however, are another matter.

    Could it be that the hard cold fact o’ politics lies somewhere in between these comments?

    A defamation win against him would force Bolt to improve his research practices.

    They will apply the Formula. If the cost of defamation exceeds the the largesse awarded to the professional controversialist then he will stop.

    But it doesn’t, not even close.

    And he’s not the only one doing it. Michael Moore does exactly the same thing: he’s a cherry picking finger-pointer who is blind to inconvenient facts. Try telling that to people who love hating Bolt sometime.

  37. ken nielsen
    Posted October 1, 2011 at 10:13 am | Permalink

    Adrian – thanks for that. I had not thought about Moore in this context. A good fit.

  38. Adrien
    Posted October 1, 2011 at 12:26 pm | Permalink

    Yes, it happens on both sides of politics.

    I tend to think that the Bolt style of journalism is more prevalent by conservatives. Most stupid people are conservative said Mill. They will tend to heed their instincts and are liable to be motivated by their emotions.

    The emotions of the Left are troubled by a surfeit of intellect and rationalist folly so their propaganda is marked both by a smug self-assurance and some persistent errors of fact. Their market tends to make Mike Moore type stuff more difficult because it consists of people who are under the delusion that their understanding of the world is factual; they dislike blatant propaganda. They take theirs with a reasoned tone. Bolt’s tone is that of an outraged Lutheran preacher who knows who the evil people are.

    Mike Moore? Maybe a scruffy Franciscan.

  39. Adrien
    Posted October 1, 2011 at 12:27 pm | Permalink

    Sample of Left-wing propoganda problems – http://larvatusprodeo.net/2008/08/07/guest-post-by-aaron-darc-morgan-and-the-multiplex/

  40. ken nielsen
    Posted October 1, 2011 at 1:04 pm | Permalink

    Adrien – I’m not sure that left/right matters much with shock jocks.

    I’d say Philip Adams and Mike Carlton just about match Bolt. Once you remember that their purpose is to entertain by stirring the emotions of believers and non-believers, the political orientation hardly matters. For some I suspect the choice is a matter of choosing a market position rather than a deep seated belief.

    Krugman certainly did not start out as an entertainer, but I suspect he has learnt what you need to do to feed a daily blog. I am not talking here of the genuine ideologues of left, right or somewhere else, but of those who wear a cloak as part of their act.

  41. Mel
    Posted October 1, 2011 at 3:56 pm | Permalink

    Ken N:

    “Mel – a foolish over-generalisation. I suggest you read more carefully.”

    Well of course I exaggerated. It was Friday night after all. However:

    - Andrew Bolt does appear on the ALS blog roll under the heading libertarian and is often approvingly referenced at that site -Andrew Bolt is routinely linked to by Catallaxy authors including Sinclair Davidson and Rafe and the regulars there also link to him frequently
    - To complete the circle Bolt has inked on numerous occasions to Sinclair Davidson.

    The relationship is very cosy indeed.

    “I’m not sure that left/right matters much with shock jocks.”

    Pull the other one, dingleberry. The left has no shock-jocks with anything like the public profile and influence of Bolta or Jones in Oz or Rush Limbugger in America.

    I doubt many people under the age of 35 would ever have heard of Phillip Adams. I note you couldn’t even spell his name correctly ;)

  42. Kennielsen
    Posted October 1, 2011 at 4:10 pm | Permalink

    Sounds like someone from the 50s – “linked with..” what was his name again? Blog rolls are not evidence of approval.

    I’d agree that quite a few readers of Catallaxy like Bolt. But not all. Perhaps those on the left do not recognise many left leaning writers as shock jocks/ entertainers. Surely you must agree about Moore? And Carlton?

    Anyway, my problem is that I am stuck in the middle. My beliefs are strongly pro market, strongly libertarian on social issues, but with a very low level of confidence in politicians on all sides.

    PS Adams I used to know when he was in advertising. He was a good copywriter but these days wildly exaggerates his involvement in successful camapaigns of the past.

  43. Ken Nielsen
    Posted October 1, 2011 at 5:19 pm | Permalink

    LE Seems we are more or less in agreement. Not sure if you follow me on FB – if so my latest ramble sets out my state of mind. I reckon I’d better put on some music…Bach or bluegrass…

  44. Posted October 1, 2011 at 5:22 pm | Permalink

    The difference with Popovic is that had the magistrate in question been part of the legislature or executive (a politician, say), Bolt’s defence would likely have succeeded: the judiciary is constitutionally separated from ‘the rest’ which meant Bolt was not able to invoke Lange and have his words treated as ‘political communication’. Only after that issue had been disposed of did he then fail to make out the defence of ‘fair comment’. That’s a very technical point of Australian constitutional law, one not enlivened in this matter, were it treated as defamation.

    In Eatock, by contrast, we have failure to do the most basic research, and a defamation ruling against Bolt would bring that fact out clearly, without the ‘free speech’ figleaf. If one cannot establish basic genealogical information, or obtain employment records under FOI (none of this is very difficult), then one is unlikely to be able to research and understand Richard Lindzen, or Bjorn Lomberg, or any other climate change scientist who makes heavy use of statistics. I have some feeling for this, for even with two separate results of ‘high distinction’ in statistics (including one at Oxford), I struggle with some of the mathematical information deployed by climate scientists of whatever stripe.

    So yes, a defamation ruling against Bolt in Eatock would, I submit, have had both a qualitative and quantitative difference in the arena of public debate.

  45. Mel
    Posted October 1, 2011 at 6:40 pm | Permalink

    LE:

    “Geez I hate being tarred by my blog roll. Just cos I link to someone doesn’t mean I agree with them.”

    Don’t be so obtuse, LE. These folk have been flirting for some time now.

    It’s gone well past the stage of a simple exchange of friendship rings.

    But I ain’t judgin’.

  46. etaoin
    Posted October 2, 2011 at 9:19 am | Permalink

    In Eatock, by contrast, we have failure to do the most basic research,

    But if, in Popovic, Bolt had got his facts right he would not have had to rely on a defence of political communication in the first place.

    As it was, he had to roll the dice on a technical point of constitutional law.

    That debacle didn’t make any difference to his methods; why would a second one?

    The only thing that will change his behaviour is getting sacked by HWT. While there’s no doubt his enormous profile causes problems for the company, you wouldn’t hold your breath waiting for that to happen.

  47. Boris
    Posted October 2, 2011 at 5:50 pm | Permalink

    SL, nice to see you sharp as usual.

    Yobbo’s explanation as to why the plaintiffs decided to use this law rather than defamation is compelling. But, perhaps even more disturbing is the fact that the large sections of society and not just the plaintiffs have no problem with those provisions, and even think they should be used more commonly.

    Incidentally, I think it is extremely unlikely that the judgement or the specific legal provisions will be struck down. No one in the current politically correct climate has the guts to do it, be it judiciary or the Coalition.

  48. Posted October 2, 2011 at 6:59 pm | Permalink

    Right, people, I’ve just had to clean two comments out of the spammer taking personal shots at Bromberg J for his political leanings. Here’s a tip:

    1. I am not going to have personal attacks on a judge or fellow member of counsel on a legal blog. Legal Eagle and I both have practicing certificates to consider (even though I’m now in a different jurisdiction), and apart from that it’s discourteous and undermining of comity within the profession.

    2. There is a blithe assumption that people cannot put their personal views to one side and reason objectively. This is possibly postmodernism’s most pernicious idea. To show you how pernicious, I’m going to tell a story.

    I happen to know personally one of the counsel for the plaintiffs in a leading (and successful) Native Title case. Neither at the time, nor now, did or does this man accept the legal rationale for Native Title. That didn’t stop him from preparing a brilliant legal argument and drafting superb pleadings.

    Lawyers have to be objective all the time. Despite what philosophers tell you, with a modicum of careful attention and insight, it is perfectly possible to do.

  49. Boris
    Posted October 2, 2011 at 7:46 pm | Permalink

    “with a modicum of careful attention and insight, it is perfectly possible to do.”

    Possible, but isn’t it hypocritical?

  50. amortiser
    Posted October 2, 2011 at 9:18 pm | Permalink

    The judgement noted that Bolt was factually incorrect in stating that the plaintiffs had chosen their aboriginal identity.

    The reason that this is stated is because there are benefits provided by governments (ie taxpayers) to one class of people or one race of people that are not available to others.

    This is encouraged from a very early age. In Queensland, a child’s enrollment form for admission to government schools asks whether the child is of aborginal or islander descent. The school will receive larger resource allocations depending on the number of indigenous children at the school. There is no other reason for asking such a question.

    My wife suggested that all parents answer the question in the affirmative as there would be no way of the government knowing whether the answer was true or false.

    I just wonder why the distinctions are even canvassed at all. The whole gambit of aboriginal policy or any policy favouring particular groups is characterised by failure and fraud as people fall over themselves to qualify for “the benefits”.

    For all the billions spent on this policy over the last 40 years there is no evidence that any measureable improvement has taken place in the populations the policies have been directed at. It is arguable that the situation has actually worsened.

  51. amortiser
    Posted October 2, 2011 at 9:30 pm | Permalink

    Another point that was made was that one of the positions Heiss obtained was not a position reserved for people of aboriginal identity. The advertisement only stated that people of aboriginal descent were encouraged to apply.

    Who is kidding who here? I know for a fact that this is shorthand for extreme preference for aboriginal applicants having actually worked for such an organisation. At the time I pointed out to the MD that advertisements in such terms were discriminatory. I was ridiculed. Unsurprisingly, I resigned shortly afterwards.

    If a firm were to word an employment advertisement stating that men or people of anglo-saxon descent were encouraged to apply the outcry would be immense and legal action would promptly follow.

    If there are aboriginal applicants for such positions they will get the gig. Such advertisements will also discourage non aboriginal applicants from applying as the message is clear.

  52. Boris
    Posted October 2, 2011 at 9:40 pm | Permalink

    LE, yes, I understand this. Of course in any dispute, bar extreme (and simple) cases, there are two sides to the story. The lawyers will look funny (and will fail in their duty) if they try objectively to balance the arguments for both sides (and thus act like a judge or a researcher). Of course, in order to succeed, they need to examine the arguments of the opposing side, but they do not need to present their analysis objectively.

    However in disputes of public significance (which are a tiny proportion of all legal cases), it may be wise for a lawyer to refrain from taking a position he/she does not agree with. Neither would I like to hire a lawyer which is known not to be sympathetic to my cause. Doesn’t this make sense?

  53. Posted October 2, 2011 at 9:57 pm | Permalink

    amortiser, as I think I’ve made clear, I don’t support affirmative action policies of any sort in any form, but always remember that ‘gaming’ (of the tit-for-tat or prisoner’s dilemma sort) produced by affirmative action can be engaged in by all sides. I’ve seen law firms put up the same ‘Aborigines encouraged to apply’ advertisements, and I can assure you that they remained Aborigine-free zones. There were plenty of people from all different backgrounds, but their unifying characteristic was one of class, not race or gender.

    I don’t normally come over all Marxist, but I have a strong suspicion that quite a few developed countries need to have an intelligent conversation about class and poverty that includes listening to everyone from the people at Left Flank to Theodore Dalrymple and all points in between.

    In Western countries, race and gender don’t really come into it any more.

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

    SL:

    “In Western countries, race and gender don’t really come into it any more.”

    I guess your not a fan of white privilege theories then. I get the feeling these theories are very popular with the academic left at the moment.

  55. RipleyP
    Posted October 3, 2011 at 9:23 am | Permalink

    I must agree with LE @ 69

    I have some rather firmly held beliefs and often indulge in what would appear as casual hypocrisy.

    I often do criminal matters and some of those are people accused and charged with sexual crimes against children. These crimes are a type I find abhorrent and I commonly find people asking how I can defend them.

    I find my way of dealing with it is to remind myself of a few things. I do not have the capacity or the objectivity to judge the innocence of a client. I rely on the Crown case being done properly and the judge and jury doing things properly. I have a possibly naive belief that if everyone does things right then a correct outcome is reached.

    The ability to put your own views and beliefs aside in your role as lawyer and even judge is essential. I would hope this applies across professions as I would really hate a doctor to impose a religious viewpoint on my treatment.

    Alas such a requirement is not part of journalism.

    This creates something that forces me to agree with the observations as to media being more often entertainment rather than factual reporting. I would like it to be different and have the media clearly identify as entertainment or factual reporting. Given many readers can’t tell the difference is a problem.

    I would hope that factual journalism as a profession would conform to similar standards as we expect from lawyers, judges, doctors and even police. Keep your personal beliefs out of it and do the job without an agenda.

    I have always wanted there to be an enforceable code of conduct for journalists with a regulating body with the power and intention of enforcing said code. It is power and intention to enforce that is key to it being a monitored system.

    Lawyers, doctors and most professional pursuits are governed by bodies that monitor conduct and penalize bad conduct. In Queensland builders are subject to scrutiny of this type under the Building Services Authority.

    I have always subscribed to the old Spiderman line, “with great power comes great responsibility”. The freedom of speech enjoyed by the media is one that must be exercised with responsibility.

    As much as I would like to have seen this matter dealt with by way of defamation action I feel we need another avenue as many cannot afford or access defamation as an action.

    So given the RDA isn’t likely to go anywhere and defamation actions aren’t always accessible it could be beneficial to have a governing body over journalism as an alternate way of dealing with these matters.

    I have a feeling as a governing body it is going to be quite a busy group of people.

  56. Mel
    Posted October 3, 2011 at 12:17 pm | Permalink

    LE:

    “Hah, Mel, SL and I were discussing off blog that neither of us are fans of white privilege theories.”

    I’m conflicted on the matter.

    “Also I second SL’s comment that a lot of this is really about class and poverty as much as it is about race.”

    Fine but you then need to explain why race correlates so strongly with class and poverty.

  57. Posted October 3, 2011 at 1:40 pm | Permalink

    Fine but you then need to explain why race correlates so strongly with class and poverty. Networks and transaction costs.

    Networks operate as sources of information and implicit guarantors (“I don’t know about X but they have been recommended to me by Y, I know Y and Y probably does not want to screw up our connection by recommending a dud”). Race may well correlate strongly with not being plugged into such networks.

    As for transaction costs, if there are extra sensitivities, or divergent assumptions and framings, that can make communication with members of another group more fraught. So, less likely to transact in a riskier way (e.g. employing them). Again, different races can correlate with that.

    I don’t think these exhaust causal effects, but I think they are important.

  58. Posted October 3, 2011 at 1:53 pm | Permalink

    And, without endorsing everything in this essay, it does provide an example of how, if a person of mixed race can plug into useful networks, much is possible.

  59. ken nielsen
    Posted October 3, 2011 at 2:22 pm | Permalink

    “Fine but you then need to explain why race correlates so strongly with class and poverty.”

    Does it?

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

    I generally find privilege theories interesting ideas, but lacking evidence that demostrate their significance. This is particularly so when the focus is on a narrow range of superficial issues (race, gender, etc).

    Fine but you then need to explain why race correlates so strongly with class and poverty.

    How well does race correlate with socio-economic mobility? If mobility is low then the correlation can be explained by historical racism. If mobility is high then we should be able to see a difference in mobility between races if racism/white privilege is still a problem.

  61. Mel
    Posted October 3, 2011 at 3:37 pm | Permalink

    There are indeed many factors involved, Lorenzo.

    Let me be honest here, I was a landlord myself for many years and I did indeed resort to brutal stereotyping when assessing prospective tenants. A single white or Asian middle class female was at the top of my list of suitable tenants and both class and race decided the other rankings. An indigenous person would not get a look in irrespective of class because even if he/she seemed OK I wouldn’t risk it.

    A crucial point that most of us dare not discuss is the fact that some stereotypes are more or less accurate. As such, it is a matter of rational self interest to take them into account in our decision making. Hence insurance companies offer different insurance rates based on gender and age. Sure, it’s stereotyping and discrimination, but it is also rational and sensible.

    So I don’t buy the right leaning idea that race is no longer an issue nor do I buy the left leaning idea that prejudice is a black and white issue and that it is always wicked.

  62. Posted October 3, 2011 at 4:00 pm | Permalink

    Chris Kenny, a journalist with a long history of the difficulties of reporting indigenous issues in this country, takes a “bad for free speech” line on the case.

  63. Mel
    Posted October 3, 2011 at 5:39 pm | Permalink

    LE:

    “stereotypes don’t always work…”

    You’ve missed the point entirely. Nobody ever said stereotypes always “work”.

    Stereotypes, defined broadly, are heuristics that allow us to make sense of an endlessly complicated and otherwise unintelligible world. They allow us to recognize patterns and all our heads are full of them, even yours.

    Obviously, a stereotype only gives us probabilistic information at an abstract level rather than concrete information about each data point.

    Hence your example is like saying :

    “I once new an American Pit Bull terrier that was as gentle as an Alpine Buttercup, hence I’m happy to leave little Janie with Fido while I pop off to the shops for a pack of fags and a cask of whine.”

  64. Posted October 3, 2011 at 5:46 pm | Permalink

    M@86 Stereotypes = playing the odds.

  65. Patrick
    Posted October 4, 2011 at 7:32 am | Permalink

    I agree with Mel again. Quite strongly this time – if you aren’t thinking of stereotypes as heuristics you aren’t thinking about them in a useful way at all.

    Funny that apart from a few touchpoints were Mel and I consider each other to be f***wits we generally see the world in much the same way!

  66. derrida derider
    Posted October 4, 2011 at 1:04 pm | Permalink

    Lorenzo@86 and LE@87
    You’ve missed the point. Stereotyping indeed is a heuristic to make decisions on limited information. But there are two problems with it:
    1) The heuristic is often poorly founded because our estimate of the probabilities is typically, for a variety of reasons mostly relating to our innate tribalism, highly skewed.
    2) Even where it is not, what is an INDIVIDUALLY optimal approach may be very suboptimal socially. That’s because of vicious circles – eg consider where a young black man in a US ghetto cannot get a job. That alters the relative payoff to crime for him. Which in turn means such men have, rationally, a high crime rate. Which means employers, rationally, consider all members of that group less employable, etc.

    Google the term “Schelling model” for more. Schelling effects provide a formal case for affirmative action improving economic EFFICIENCY, as well as (more arguably) equity.

  67. Mel
    Posted October 4, 2011 at 1:36 pm | Permalink

    DD, I think we are discussing what IS rather than what OUGHT to be in some imaginary world.

    “The heuristic is often poorly founded because our estimate of the probabilities is typically, for a variety of reasons mostly relating to our innate tribalism, highly skewed.”

    Nobody here is arguing stereotypes are always benign. The point is that we all have them and that we cannot exist without them. Even the most pretentious, politically correct, stick up the bum leftist is a seething mass of stereotypes.

  68. Posted October 4, 2011 at 2:06 pm | Permalink

    DD@90 Well, yes. Playing the odds does not mean you have correctly assessed them. Bookies live off that truth.

    M@91 Is correct of course, leftists typically stereotype all the time. Just like they are often terribly fond of hate speech.

    To stop people using category heuristics is pointless: the best you can hope for is some critical interrogation of them.

  69. kvd
    Posted October 4, 2011 at 3:29 pm | Permalink

    leftists typically stereotype all the time

    ;)

  70. Mel
    Posted October 4, 2011 at 3:51 pm | Permalink

    Well spotted, KVD ;)

  71. kvd
    Posted October 4, 2011 at 4:04 pm | Permalink

    On the other hand Mel, your last sentence@91 tempted me to respond: “welcome to the dark side”. ;)

  72. Posted October 4, 2011 at 4:43 pm | Permalink

    OK, I couldn’t resist. ;) Does that make me a bad person? :)

  73. kvd
    Posted October 4, 2011 at 4:53 pm | Permalink

    L@96 I would say yes – very bad. All people who make blanket comments are in need of retraining.

  74. Posted October 4, 2011 at 8:09 pm | Permalink

    kvd@97 ROFL :)

  75. Mel
    Posted October 4, 2011 at 9:54 pm | Permalink

    Another reflection on DD’s comment:

    “The heuristic is often poorly founded because our estimate of the probabilities is typically, for a variety of reasons mostly relating to our innate tribalism, highly skewed.”

    Some “innately tribal” and mistrustful German Jews fled Germany post-haste once Hitler was made Chancellor.

    They lived.

    Alternatively, some more gentle Jews refused to “Other” their fellow Germans and stayed in Germany.

    They died in the concentration camps.

    Ditto for the Hutus and Tutsis, the Serbs and Bosnians etc etc etc …

  76. Patrick
    Posted October 5, 2011 at 9:11 am | Permalink

    Mel raises a very interesting point – stereotypes are usually a low-cost safer option. We rarely expose ourselves to active harm by following our prejudices (not perhaps the case for those we are prejudiced against!), but we probably often miss out on potential upside.

    Given the strength of loss aversion, this bodes ill for easily overcoming stereotypes but also gives us some idea of where the task is (and at least partially validates anti-discrimination laws).

  77. Posted October 5, 2011 at 10:00 am | Permalink

    Given the strength of loss aversion, this bodes ill for easily overcoming stereotypes but also gives us some idea of where the task is (and at least partially validates anti-discrimination laws).

    I think it also highlights the risks of creating an affirmative action stereotype that undermines minorities who have managed to break the stereotype. “They have X years experience, they must have merit and be an exception to the rule.” becomes “They have X years experience that could be due to merit or could be due to affirmative action; better play it safe and pick the person I know wasn’t given a free ride”.

  78. Posted October 5, 2011 at 2:17 pm | Permalink

    D@101 I linked to it in a previous thread, but supporting experience to your point is provided here.

  79. Posted October 5, 2011 at 3:25 pm | Permalink

    I would hope that factual journalism as a profession would conform to similar standards as we expect from lawyers, judges, doctors and even police. Keep your personal beliefs out of it and do the job without an agenda

    .

    Brings back memories of Simon Singh v British Chiropractic Association. What of a professional stepping outside their role as a professional of a conservative profession as a commentator?

    I think it also highlights the risks of creating an affirmative action stereotype that undermines minorities who have managed to break the stereotype

    Same could be said for any individual within a protected group eg Fetherston v Peninsula Health raising important issues of discrimination re: colour blind pilots. Highlights importance of anti-discrimination laws in overcoming entrenched stereotypical perceptions.

    we now have Bolt as a martyr to free speech. A similar sort of phenomenon happened in Vic with the Racial and Religious Vilification provisions and the Catch the Fire case.

    Agree. Wonder how many people remember his hypocrisy on free speech rights

    Part of the issue with private law generally is that it traditionally hasn’t been good at vindicating rights by means other than monetary damages awards. As I wrote in one of my own early posts, often what people want when they are wronged is an apology or some kind of acknowledgement that conduct was wrong, rather than money damages. So when my sister was hit by a car in front of me when I was 15 years old, all I wanted was to have the driver say sorry. I didn’t want money or anything like that. But the perverse incentives of the legal system meant that the driver didn’t contact us afterwards because any apology might have been used against him in a negligence action (this has now generally been removed in Australian law, but the accident occurred when we lived in England).

    agree re: remedies when it comes to vindicating private rights. I think in Grant v Tobin(hate speech</strong the Court refrained from forcing an apology.

4 Trackbacks

  1. By Skepticlawyer » Stella, by means of a trust on October 10, 2011 at 10:16 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 [...]

  2. [...] My co-blogger, SL, is of the opinion that it would have been more advantageous for the plaintiffs to bring a claim in defamation, because Bolt would not have been able to play the “free speech card” nearly as effectively; by contrast, by concentrating on “offence”, the RDA action allowed Bolt to argue that his freedom of speech was being impinged upon. [...]

  3. [...] bit.ly/rkgRue 4 Oct » CDUlawschoolCDU Law School Helen Dale with more on Eatock v Bolt bit.ly/r09sSc 4 Oct » CDUlawschoolCDU Law School Katy Barnett on Eatock v Bolt (racial vilification [...]

  4. [...] bit.ly/rkgRue 4 Oct » CDUlawschoolCDU Law School Helen Dale with more on Eatock v Bolt bit.ly/r09sSc 4 Oct » CDUlawschoolCDU Law School Katy Barnett on Eatock v Bolt (racial vilification [...]

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