Andrew Bolt found to have contravened Racial Discrimination Act

By Legal Eagle

“The best way to get a bad law repealed is to enforce it strictly.” Abraham Lincoln, 16th President of the United States

Bromberg J handed down judgment in favour of the plaintiffs in Eatock v Bolt [2011] FCA 1103 this morning. You may recall that I wrote a post while the case was being heard. Bromberg J found that Bolt’s newspaper article contravened s 18C(1) of the Racial Discrimination Act 1975 (Cth), which provides as follows:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

His Honour found that Bolt’s articles were likely to offend, insult, humiliate or intimidate them and that they were written because of the race, colour or ethnic origin of the plaintiffs.

Bolt and the Herald and Weekly Times were not entitled to any of the defences under s 18D of the Act:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or

(ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

His Honour found that Bolt had not written his articles with care and diligence, and accordingly, that Bolt’s activity was not pursued reasonably and in good faith such that he could rely on any of the defences under s 18D.

The conclusion around the blogging traps, from sites as different as Larvatus Prodeo and Catallaxy, is that the provisions of the Racial Discrimination Act upon which the plaintiffs relied are problematic. I agree. As I have outlined previously, I did not agree with Bolt’s articles and I think that the issue of Aboriginal identity is a very complex one, and attempts to simply reduce a discussion about Aboriginal identity to simple skin colour is utterly wrong-headed. Nonetheless, I am deeply concerned about provisions which seek to prevent people from expressing views simply because such views offend. In my previous post, I said:

…my guiding light determining the reach of the law is John Stuart Mill’s “Harm Principle”: the law can intervene to restrain the actions of an individual if those actions are harmful, but not if they are merely offensive, because the freedom of speech militates that people should be able to express an opinion even if it is offensive. The other thing is that offense is a very subjective concept. So someone may fall foul of this law because they offended another, but they had no intention to do so.

No, it’s not pleasant to be offended and personally attacked. I can understand why the plaintiffs were hurt. However, I fundamentally do not believe that this is the kind of conduct which the law should regulate. Part and parcel of the right of free speech is that people may be offended and hurt in the rough and tumble of exchange of views. The law of defamation deals with public statements which harm reputation, and I think that this is where the limit of law should lie (subject to defences). The 2005 amendments to the Racial Discrimination Act should be removed.

Ultimately, too, I wonder whether this action will be counterproductive. Now the plaintiffs have made a martyr out of Bolt and given his comments a prominence and credence which they never had before (I had not read them at the time, I assure you). I suspect there will be an appeal, in any case. I’ll come back with further comments when I have read the judgment more fully (at the moment I have just skimmed it).

Thanks to David Barrow for tipping me off about the imminent judgment.

Update: Sinclair Davison’s piece at The Conversation makes some similar points (although we differ quite fundamentally on whether the market is adequate to deal with this issue).

Update 2: Mark Bahnisch at Sed probate spiritus in favour of the decision.

49 Comments

  1. Posted September 28, 2011 at 12:04 pm | Permalink

    I have a piece up at The Conversation that makes similar points.

  2. Posted September 28, 2011 at 12:08 pm | Permalink

    At the Cat I proposed that an appeal to the HCA is possible — on the basis that Bolt’s remarks went to the criteria for disposition of Commonwealth funds; hence political in content.

    But honestly, it’s a silly law.

  3. RipleyP
    Posted September 28, 2011 at 12:41 pm | Permalink

    I don’t really like the law. I might add this is as a result of giving it some thought after the last time it was discussed. I was in favour of it originally but after thought I examined my justifications. In the end I could not find a justification for the law that worked for me. Teach me to read this blog, make me go thinking and trying to defend my position of stuff. 😉

    In this instance there was a no win situation developing. Had Bolt been found to not have breached the law it had the potential to encourage Bolt and similar to greater heights of unsavory discussion.

  4. Ross
    Posted September 28, 2011 at 1:26 pm | Permalink

    We have to be careful that such laws are used to silence dissent.Alan Jones this morning was calling on Barry O’Farrel to toughen up the drunk and disorderly laws and arrest people rather than moving them on.
    If we can be arrested,who is to define disorderly when many these days are protesting about carbon taxes and austerity measures to fund share market scammers?

    The real criminals are at the elites of our society and continue to milk the tax payer under the ruse of “quantative easing” which is really counterfeiting or bailouts that should never have happened.

  5. Rafe
    Posted September 28, 2011 at 1:57 pm | Permalink

    Against Alan Jones I don’t see being drunk and disorderly as a crime that calls for police action unless actual criminal acts follow. Maybe moving people on can reduce that outcome, it is all about good policing by experienced and confident officers. [I say confident because they have to be able to put uup with a lot of shit and then make hard calls and carry through. It is no good if they are intimidated into doing too little or too much]. As SL will vouch, I am a disgustingly well behaved and sober person,and I profoundly deplore bad behaviour in public but we really don’t want to have the police sucked or forced into heavy-handed policing.

    As for the Bolt case, I think that affirmative action (racism?) for ATSI people has gone well over the top. Once upon a time something like half caste status was required to count.

    After the war the newly established Department of Social Services approached Elkin for advice on their plans to make social services available to the Aborigines, specifically persons with a proponderance of Aboriginal blood, because half and lighter castes were deemed to be white.

  6. Rafe
    Posted September 28, 2011 at 2:02 pm | Permalink

    The extension of Aboriginal status to 1/16 is over the top, indeed the whole affirmative action (racism?) thing has been counterproductive. Once upon a time half caste status or better was required to count. With the wisdom of hindsight that looks like a good idea.

    After the war the newly established Department of Social Services approached Elkin for advice on their plans to make social services available to the Aborigines, specifically persons with a proponderance of Aboriginal blood, because half and lighter castes were deemed to be white

    .

    That comes from a profile of A P Elkin, an early activist for Aboriginal advancement.

  7. kvd
    Posted September 28, 2011 at 2:30 pm | Permalink

    To this non lawyer there appear to be three separate points of interest: Is this decision “reasonable” in terms of the law as it exists? Is the law as it exists worth keeping with modification, or should it be scrapped? Third: principles aside – does anyone care about the individuals used (trashed/abused?) to highlight the preceding two issues?

    And I’ve got to say that the piece in ‘The Conversation’ where it talks about “let the market decide” is quite possibly the most fatuous piece of commentary I’ve ever read.

  8. Posted September 28, 2011 at 3:17 pm | Permalink

    ‘people may be offended and hurt in the rough and tumble of exchange of views.’

    Many people, especially young people, have been known to commit suicide after the ‘rough and tumble of exchange of views’. What you’re calling rough and tumble, I call hate speech, and it can be every bit as destructive as punching someone in the face. Assault can also be dismissed as ‘rough and tumble’, but I doubt anyone here would think it ought to be legalised.

  9. Adrien
    Posted September 28, 2011 at 3:18 pm | Permalink

    I have a piece up at The Conversation that makes similar points.

    Jay-sus you cop a lot of abuse. 🙂

  10. Posted September 28, 2011 at 3:41 pm | Permalink

    Not sure what to make of the decision. Certainly will cause a few motormouths to pause & think.

  11. Sinclair Davidson
    Posted September 28, 2011 at 3:57 pm | Permalink

    Yep – those people probably talk to their students like that too.

  12. Adrien
    Posted September 28, 2011 at 4:53 pm | Permalink

    What of, for example, the picketers who picket Max Brenner? (which is an example I think Sinclair uses in his post) Would you sue them for hate speech? If not, why not?

    I wonder if someone is planning to do just that. Especially considering that at a certain point criticizing Israel is considered anti-Semitic.

    I think I might sue Jared Diamond on behalf of all the Europeans who feel themselves to be culturally exceptional and therefore offended by Guns Germs and Steel.

  13. kvd
    Posted September 28, 2011 at 4:54 pm | Permalink

    “the right approach to this kind of wrong is to write a reasoned refutation” – this assumes an ability to command an equivalent interested audience, at least willing to ignore the dog whistle.

    “I’d prefer to prevent racial discrimination by regulation” – good luck with that

    And as for ‘markets deciding’, well I’ve not yet seen a market clear of prejudice of one sort or another, and no ‘market’ as such actually gives a bugger about the individual – because it is simply not efficient to do so. There is no such thing as a level playing field, and to offer that as panacea is either ignorant or deliberately dismissive of the ‘human units’ involved.

  14. Mel
    Posted September 28, 2011 at 4:58 pm | Permalink

    Pavlov’s Cat on her soapbox railing against hate speech:

    ” What you’re calling rough and tumble, I call hate speech, and it can be every bit as destructive as punching someone in the face.”

    A somewhat dishevelled Pavlov’s Cat on her soapbox engaging in hate speech:

    “It was also reported that Howard hadn’t known of Campbell’s meeting with Burke until it all came out last night, which suggests to me that he probably imploded with rage at having been caught out in ignorance and made to look, if only by association, like a fool. Picture the scene: Ratty incandescent with rage like Rumpelstiltskin in his jarmies in the middle of the night, and Hyacinth scuttling about in her nightie making some soothing hot milk with rum.”

    Bolta often disgusts and sickens me but so does the hypocrisy and dishonesty of some lefties. Indeed, I have been tempted to hand my membership badge back to the Lefty Certification Authority on more than a few occasions over the past few years.

    Bolt commands a huge following and he has to be countered by good arguments and good strategy, not silly legal games. Now insipid elements on the left have made him a martyr and possibly even increased his influence.

    As to indigenous suicide, those on the Left who seek to suppress any honest discussion of the self-inflicted violence, homophobia, drunkenness and general dysfunction in Aboriginal communities are more to blame than any number of Andrew Bolts.

  15. Posted September 28, 2011 at 5:10 pm | Permalink

    If the column was inaccurate, then defamation is the relevant law, not racial discrimination. And I am sure that most people are aware that suicide does not occur thanks to a single, ascertainable cause.

    This matter will go to the High Court, I’m afraid, and with any sort of luck – based on the current composition of the bench – the silly law will be excised from the books. I have no time for Bolt, but I have had far worse said about me by commentators of a progressive persuasion. The indignation directed against Bolt is appallingly selective, and it is moments like this that I wish for a US-style First Amendment.

  16. Posted September 28, 2011 at 5:21 pm | Permalink

    Thanks for enlivening the Bolt Case thread Leagle Eagle.

    Offence, insult, (and hurtfulness generally) are troubling criteria of s18C of the RDA — a bar too low perhaps.

    However, Bolt / HWT failed to make an exception defence under s18D and this is encapsulated by the comments of Justice Bromberg at 425:

    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.

    Defamation enlivened?

    The publication of the Newspaper Articles occurred in 2009 — and so it would appear that the 12 month limitation period for bringing a claim under the various Uniform Defamation Acts would bar any such action. However, publication in the online world is a tricky beast given the nature of internet re-publication — and so if there has been an interest in the articles in the past 12 months, as clearly there has been surging up from the trial, then defamation could be enlivened through the re-publications. Although there may be an issue estoppel, at least for the named lead plaintiff, Mrs Eatock.

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

  17. Mel
    Posted September 28, 2011 at 5:31 pm | Permalink

    LE:

    ” I’d support regulation of speech which was designed to humiliate and intimidate, because I think that is a kind of assault.”

    Well, if you rule out humiliation almost all satire would be illegal. Everything from That’s My Bush to At Home With Julia to pretty well every episode of South Park would be censored out of existence. I really don’t won’t to live in such a touchy feely world.

    speech

  18. Jane
    Posted September 28, 2011 at 5:31 pm | Permalink

    Time is overdue to test the political correctness of the rigid taboos that surround the concept of “multiculturalism” as it has been defined by an intellectual elite who love to “talk the talk”, but are insulated from the realities of the community majority who must “walk the walk”.

  19. Mel
    Posted September 28, 2011 at 5:33 pm | Permalink

    Bugger, I’m a bit woolly minded today. That should be want not won’t.

  20. Posted September 28, 2011 at 5:41 pm | Permalink

    Wretchard (Richard Fernandez), a prominent blogger much read in the US, suggests that it is likely to have a contrary effect, politically. Jo Nova points out that solutions to problems of indigenous communities which offend some indigenous person would, on this reading, now be verboten speech and has held it to be too risky to allow comments. The IPA was already campaigning on the Bolt case as a freedom of speech issue. This is nowhere near the “win” anyone cheering the decision may think it is.

  21. Posted September 28, 2011 at 5:43 pm | Permalink

    It comes back to the old problem: if error has no rights, then that just gives great power to whoever gets to define “error”.

  22. Posted September 28, 2011 at 5:46 pm | Permalink

    And if being hurtful with words is a legal issue, then that gives great power to the most easily offended.

  23. Posted September 28, 2011 at 7:36 pm | Permalink

    LE @ 27 — I’ve also been thinking why it was that no defamation claims were brought, and it may have to do with the vehicle for the litigation, which was a representative proceeding (class action) in the Federal Court.

    The threshold requirement for representative proceedings under the Federal Court of Australia Act (1976) is s33C(1):

    (a) 7 or more persons have claims against the same person; and

    (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

    (c) the claims of all those persons give rise to a substantial common issue of law or fact;

    a proceeding may be commenced by one or more of those persons as representing some or all of them.

    Difficulties I see for running defamation claims as part of this is the need for a common question of law or fact arising out of 7 or more persons that is defamatory of all of those identified persons. Seems to me a racial discrimination claim is much broader than defamation and so included faired-skinned people who were offended etc but not necessarily identified in the articles.

    So the vehicle may not work for defamation due to a lack of a common question. That said, there is the s33R provision for the ventilation of individual issues, but that might not find much traction if it was not anchored in the common issues for commencing the representative proceedings.

    Why then bring the action as a representative proceedings at all?

    Well, one consideration is a practical cost shield. There were 9 applicants Named-in-the-Media but if you look more closely there is only truly named Applicant and that is Mrs Eatock. The other 8 were witnesses (either through affidavit or oral evidence), and identified as members of the Group, but were not actually named applicants in the pleadings (there is no Anor or Ors after Pat Eatock). So in the event of an adverse cost order (which could still arise if there is a successful appeal) then that cost order will be limited to Mrs Eatock only — given the indemnity of costs that applies to group proceedings under s43(1A).

    What is really interesting, I feel, is that Bromberg J adopts the jurisprudence of “fair comment” of defamation in common law. See from 352 onwards generally, and at 358:

    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.

    If the judgment sticks, and then providing the limitation period can be handled, the bridge is wide open to move from the RDA finding of a failure for an exemption for fair comment (and also qualified privilege, see 387-389) back to presumably a failure of a statutory honest opinion or qualified privilege defence in a new civil claim for defamation. And all such defamation claims could be run as individual actions in a Supreme Court, say, where there is original jurisdiction for torts. All the Newspaper Articles are still available on http://blogs.news.com.au/heraldsun/andrewbolt/ so arguably the limitation clock still has at least 12 months to run from the last time an article is clicked by a third party before it might be pulled down.

    Interesting times. Wish I was actually a qualified lawyer. Might have some clients.

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

  24. Posted September 28, 2011 at 8:08 pm | Permalink

    The reason the case was brought under the racial discrimination act, rather than it being a defamation case?

    That decision was made with rule #1 of legal proceedings uppermost in their minds:
    Prospect of Success.

  25. Posted September 28, 2011 at 8:21 pm | Permalink

    LE – the link to David’s page is broken, and as I’m currently closeted in the Sheriff Court I can’t exactly do anything about it.

    I will say, in light of David’s comments above that I believe this matter should have been disposed of by means of the law of defamation. Of course, because defamation is a claim made on an individual basis, it is highly likely that some of the plaintiffs will have stronger claims than others, and only one is named. By way of observation, however, I will point out that Anita Heiss appears prima facie to have a case in defamation (I haven’t got the link, but someone over at LP put up a press release from her indicating a number of assertions that were simply false).

    Rights can only be exercised by individuals, not by groups (indeed, that is the nature of a right). That is why we have the law of defamation: to protect individuals. To argue that all members of a given group require specific protection is a nonsense: it implies that they are all the same.

    That Heiss in particular may be confronted with res judicata is particularly unfortunate: damages for defamation can be substantial, and News Ltd is not exactly a straw defendant.

    And now, back to work!

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

    Long before this went to court it was perfectly obvious which way it was going to go .
    I haven’t read the AB piece but if he linked their identifying as aboriginal with their having secured publicly funded positions there definitely is a public interest element to it.
    But again facts and other matters that should be the normal business of courts do not matter in these circumstances.
    Pardon the innuendo, but there truly is no freedom of speech in Australia.

  27. Posted September 28, 2011 at 8:52 pm | Permalink

    LE: I’d include Steve (my slave name) in my ID except this site restricts me to 20 characters.
    I’ll consider my legal options for redress of my offence that this site accepts ID’s of a length suitable to anglo-saxon invader names only.
    Meantime, I’ll have a think about that phrase you used “or whoever you are today
    It is possible that you used this phrase only after I racially outed myself, thus I may be thoroughly offended by it.

    To assist me in deciding if I am offended or not, please advise if you are famous IRL, (and provide details of cash holdings, bank accounts, readily saleable jewellery etc)

  28. Posted September 28, 2011 at 8:58 pm | Permalink

    Anybody who gets prickly over my poor grammar/syntax in the above #36 can simmer right back down.
    I’m typing in other than my first language, & would prefer to type in any of 7 Australian languages, rather than the langauge of the invader.

  29. Mel
    Posted September 28, 2011 at 9:31 pm | Permalink

    Oh dear, oh dear, oh dear me.

    But, as a Dave Graney fan, I quite enjoyed this:

    ” Bolt appears to want a situation where not-to-be-white is invisible and simultaneously blind himself to the visibility of not-being-white. And he cannot understand why anyone, offered his false choice (which he himself instantly disables) would want to be visible, or would be rendered visible by others.”

    Rock’n’Roll is Where I Hide. Oh yeah!

  30. Posted September 28, 2011 at 9:39 pm | Permalink

    LE @38 I was in court observing the decision from the public gallery.

    Justice Bromberg was very calm and measured in delivery. My feeling is that his Honour arrived at the idea of seeking guidance on final orders (save for costs) from a consensus of the parties so as not to be seen to be ‘imposing’ an apology or correction on Bolt / HWT that might be used for dramatic effect by them to tell a tale of being eagle-pecked victims. This just my speculation, though.

    His Honour did however indicate that there would be orders prohibiting the re-publication of the newspaper articles.

    There is also this concluding comment in the Summary:

    Finally, in dealing with the formulation of the orders to be made by the Court, 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.

    Again:

    …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. …

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

  31. Posted September 29, 2011 at 3:03 am | Permalink

    Mel, further evidence (if any were needed) that one should pay no heed to artists or actors, who, while well paid and feted in the Roman world, were not taken seriously in any other respect (Ulpian’s wife was Gaia Afrania, an outstanding advocate, but also a playwright; her playwriting, he said, was ‘shameless’, but her advocacy (as counsel) was excellent).

    If you listen to me, it is because I am a competent lawyer and advocate. As writer, I have nothing to teach you, except entertainment. Now, entertainment is a fine thing, but law is deadly serious. When we get law wrong, people die.

    Entertainment does not work in quite the same way.
    It is important to keep the distinction in mind.

  32. Posted September 29, 2011 at 6:52 am | Permalink

    To paraphrase the oft-quoted warning of Martin Niemöller: “First they came for the redneck racist bigots. I wasn’t a redneck racist bigot, so I did nothing”.

  33. Posted September 29, 2011 at 8:47 am | Permalink

    This case had nothing to do with freedom of speech, and everything to do with vilification. Bromberg, on the basis of the law he was asked to interpret, had no choice but to find as he did. The relevant section of the act says –
    “It is unlawful for a person to do an act, otherwise than in private, if:
    (a) the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people, and
    (b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group”.
    (Racial Discrimination Act 1975, s.18C(1))
    Read Bromberg’s judgement and line it up against the law – http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html
    This federal legislation has been around for over thirty years, (except for Part 2A which was inserted in 1995) and has been left alone by a succession of governments of both stripes. It’s hardly a leftist conspiracy.
    Bolt has form (2002 – punitive damages awarded against him and his paper for defaming a magistrate) and he obviously considers himself above the law, given the comments he made after that case which got him into further trouble. On that occasion, Justice Bongiorno made an additional $25,000 punitive damages award against Bolt and the newspaper for \”misleading\” and \”disingenuous\” public comments he made outside court and the way in which the paper reported the decision. That verdict, incidentally, was from a jury. I guess they must have all been ALP members.
    He makes a quid out of vilification, so he always runs the risks involved in that behaviour.
    Apart from anything else, his “journalism” is poor, his fact-checking non-existent, and his bias obvious. If justice is seen to be done, he should be facing nine separate defamation trials, with the awarding of punitive damages for each.
    The only free speech that Bolt upholds is his own. His behaviour on his blog demonstrates that pretty clearly. I ought to know – http://1735099.blogspot.com/2011/09/handson-what.html
    He also lacks a sense of humour.

  34. Rafe
    Posted September 29, 2011 at 9:51 am | Permalink

    I suppose we have to address the legal details of the case but the real issue is the larger matter of affirmative action and the the laws and practices which enable some people to make careers out belonging to a particular category. So much bullshit and bad will flows from there.

  35. Mel
    Posted September 29, 2011 at 11:51 am | Permalink

    Agree completely with LE at @47.

    I like the idea of indigenous scholarships etc, but I would like to see many of these specifically target bright young kids living in remote settlements so they aren’t all monopolised by mostly integrated city Aborigines.

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  1. […] 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 […]

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