by Sarah Joseph

In Eatock v Bolt, decided on September 28, the (in)famous conservative columnist and commentator Andrew Bolt was found to have breached the Racial Discrimination Act 1975 (Cth) (the “RDA”) in writing two particular articles published in 2009, “It’s so hip to be black” and “White fellas in the black”.  In the articles, Bolt discussed the self identification of certain “fair-skinned” Aboriginal people as Indigenous people. Nine of those named in his articles became the plaintiffs in this case. He used sarcastic language in doing so, and commented that many of them had furthered their careers in choosing to be Aboriginal people.  For example, the subtitle to the second article was: “What’s an Aboriginal artist from the bush to think when he or she sees yet another white man lope off with a prize originally meant to inspire blacks”? He labelled one of the plaintiffs “a professional Aborigine”.   Many of the factual assertions he made, for example regarding the heritage of the named people and the time at which they began identifying as Indigenous, were wrong. He did not contact any of the persons named in his articles prior to writing about them. He queried why the persons named in his articles did not publicly and simultaneously identify with other parts of their ethnic heritage. In conclusion, he expressed his opinion that the self identification of such people only as Indigenous impacted detrimentally on racial cohesion in Australia.

The plaintiffs claimed that the publication of the articles by Bolt and his employer, the Herald and Weekly Times (“HWT”), breached section 18C of the RDA, which reads:

“(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.”

Bolt argued that his actions fell under s. 18D, which exempts “anything said or done reasonably and in good faith” from being unlawful if said:

“(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) (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.”

Justice Bromberg of the Federal Court found for the plaintiffs: the publication of Bolt’s articles breached s. 18C and that the s. 18D exemptions did not apply. The case has unleashed a firestorm of debate over free speech, racial discrimination, and racial vilification.

1. The principles at stake

In this case Andrew Bolt’s free speech rights butted heads with the rights of the plaintiffs (and others) to be free from racial discrimination.  Free speech is not absolute.  There are indeed many limits to one’s free speech rights such as the laws of defamation, contempt of court, and even copyright law.  One common limit in the Western world is the prohibition on “hate speech”, that is speech which incites the vilification or worse of others on a basis such as race. Hate speech was not however at issue in this case, as explained by Bromberg J at paras 196-211.  The civil wrong described in s. 18C goes further than prohibiting hate speech. Bromberg J stated at para 206:

“The act which s 18C(1)(a) makes unlawful is not dependent upon a state of emotion which has either motivated the act or which is sought to be incited in others. The “intensity of feeling of the person whose act it is, is not necessary to be considered” … The emotions upon which s 18C(1)(a) turns are those of a victim and not of an aggressor. The emotions of hurt or offence or fear need to be demonstrated, not hate or incitement to hatred.”

Racial hate speech arises with regard to speech that might be reasonably likely to incite third parties to hate or vilify a person targeted by the speaker on the basis of race.  Under s 18C, the impact of the relevant speech on third parties is largely irrelevant: what matters is the likely reaction of the targeted person. So it concerns a very different phenomenon to hate speech. Bromberg J later clarified that s. 18C is designed to provide freedom from racial prejudice and intolerance, rather than freedom from hate and vilification.  I return to the meaning of s. 18C below.

2. Relevant human rights standards

Australia is a party to the International Covenant on Civil and Political Rights. Article 19 protects freedom of expression.  Article 19(3) contemplates limits to freedom of expression in the following terms:

“The exercise of the right [to freedom of expression] carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

The question, from an international human rights point of view, is whether the limits placed on Andrew Bolt’s speech in Eatock v Bolt fall within the latitude granted to States under Article 19(3).

3. The decision

Justice Bromberg agreed with the plaintiffs that the following imputations were conveyed by Bolt’s articles:

(1)    that the fair-skinned Aboriginal people named in the article identified as Indigenous people for political reasons, or to enhance their career prospects (eg by pursuing opportunities reserved for Aboriginal people); and

(2)    the fact of a fair skin colour indicates that a person identifying as Aboriginal is not in fact ‘sufficiently” Aboriginal for the identification to be genuine.

Bromberg J found that the articles were likely to offend, insult, humiliate or intimidate members of the group perceptibly targeted by Bolt’s articles, that is “fair skinned” Aboriginal people. It seems reasonable for s.18C(1)(a) to be interpreted as requiring an assessment of persons within the group targeted, rather than persons within the community in general.  Section 18C(1)(a) is triggered in part by the reactions generated amongst the targeted group, not the feelings of the general public.

It is fair to give Bromberg J the benefit of the doubt in deciding that the articles were caught within s. 18(C)(1)(a). He heard the witnesses describe their feelings upon reading the article and was in a position to make assessments of their credibility and demeanour; most of us did not.

Bromberg J also decided that Bolt’s statements were made, at least in part, because of the race, colour or ethnic origin of fair-skinned Aboriginal people.  Therefore s. 18(C)(1)(b) was satisfied. The articles include many statements about the colour and ethnic origin of such people, so I do not find this conclusion of Bromberg J to be controversial. Nevertheless, Bolt denied that his articles were motivated by considerations of race and colour.  He argued, for example, that his motivation was a desire for more harmonious racial relations which he felt were undermined by the “trend” of Aboriginal self-identification (para 444). The Judge was scathing in response:

“323. I am firmly of the view that a safer and more reliable source for discerning Mr Bolt’s true motivation is to be found in the contents of the Newspaper Articles themselves rather than in the evidence that Mr Bolt gave, including the denials made by him as to his motivation.

324. What Mr Bolt wrote was either written contemporaneously with or proximate to, the formation of Mr Bolt’s motivation. Not surprisingly, given the lapse of time, Mr Bolt had some difficulty recalling his thinking processes at the time of writing and at times during his evidence frankly admitted that he was “reconstructing”.  Additionally, having observed Mr Bolt, I formed the view that he was prone to after-the-fact rationalisations of his conduct. I note in this respect in particular that Mr Bolt’s stated motivation for writing the Articles evolved during his cross-examination.”

4. Section 18C goes too far:  “offence” and “insult”

Section 18C proscribes speech which results in four consequences of ascending order of harm. “Offence” is the least harmful while “intimidation” is the most harmful.  I think the Act goes too far in proscribing conduct which “offends” or “insults” another.  Article 19(3) of the ICCPR anticipates that one’s right to freedom of expression can be limited by proportionate measures designed to protect the “rights of others”. Those “rights” should be other “human rights”, not lesser rights. And there is no human right to be free from offence and insults, even on the basis of one’s race.

Certainly, Bromberg J found that s. 18C was “not intended to extend to personal hurt unaccompanied by some public consequence” (para 267).  Therefore, conduct will not breach s 18C if it merely hurts the feelings of a person, but does no more than that.  He went on to say that “conduct which invades or harms the dignity of an individual or group, involves a public mischief in the context of the Act which seeks to promote social cohesion” (para 267).  Nevertheless, the proscription of conduct leading another to feel “offended” or “insulted” is setting the bar too low.  That however is not the fault of Bromberg J who did not draft those words in s. 18C: it is the fault of the Parliament that enacted this law as an amendment to the RDA in 1995.

5. Parts of Section 18C are within the bounds of Article 19(3) of the ICCPR: “humiliation” and “intimidation”

The proscription of conduct which causes “humiliation” on the basis of race is borderline but acceptable under human rights law in my opinion.  Humiliation on the basis of one’s race begins to introduce the very real experience of racial prejudice and racial discrimination.  Bromberg J found that the articles were likely to lead a person within the targeted group to fear the generation of “negative or confronting attitudes to her from others” (para 295).  Indeed, one clear example of humiliation arose with regard to the plaintiff Mark McMillan, who has been awarded a Fulbright scholarship:

“As a result of seeing the Articles, Mr McMillan was contacted by a person representing the Australian American Fulbright Commission. Whilst that person confirmed the Commission’s support for him, he was asked how the Commission should respond to any media enquires made to the Commission about Mr McMillan. Mr McMillan was humiliated by the conversation. He perceived that what was being asked of him was confirmation of his Aboriginality. Similarly, the Director of the program with which he is currently involved at the University of Arizona also spoke to him about the Articles. Whilst again Mr McMillan was given support, he was embarrassed and humiliated by these conversations because he had to assure the organisations concerned that he was Aboriginal and had not been dishonest about his Aboriginal identity.” (para 151)

If the suppression of speech that is racially humiliating is acceptable, the proscription of speech that is intimidating is also acceptable.  Bromberg J found that the articles could generate pressure on a young and vulnerable person within the targeted group to “think twice about asserting her Aboriginal identity in public” (para 296): such negation of identity was also foreseeable given the derisive and sarcastic nature of the articles.  Interestingly, Bromberg J denied that such feelings of intimidation were likely to arise amongst the plaintiffs themselves: they were “mature aged and experienced in Aboriginal issues, and thus likely to be resilient” to intimidation. (para 302).

6. Section 18D: no defence for Bolt

In considering the application of s. 18D, the Judge explicitly stated that s. 18D was intended to balance rights of free expression with countervailing rights in s. 18C. He denied that freedom of expression was subordinate to those other rights.  He unfortunately describes the countervailing right in s. 18C as the right to be “free from offence” (para 350), a right which in no way resembles a human right. However, Bromberg J was clearly using those words as shorthand (see para 193) for the right to be free from offence, insults, humiliation and intimidation on a racial basis. As stated above, freedom from humiliation (marginally) and intimidation (obviously) on a racial basis equates with a right to be free from racial discrimination, a long recognised human right.

In analysing the s. 18D issue, I first refer to an issue of legal tactics. Bolt never conceded that the imputations contended by the plaintiffs, and ultimately accepted by the court (see Part 3 of this blog above), arose in his articles.  He argued instead that the only fair imputations from the article were that:

–          racism is abhorrent and divisive

–          there is a discernible trend in Australia of people identifying as Aboriginal when they could identify with another race or races, or with no race

–          the named persons, including the plaintiffs, illustrated that trend

–          that trend was undesirable because it emphasised racial difference (para 360).

Bolt later added that three more matters of public interest arose:

–          all of the named people had public profiles and thus were legitimate subjects of public scrutiny

–          some of the jobs, prizes and awards referred to were publicly funded

–          there was a legitimate debate over whether there were more deserving people for those jobs, prizes and awards.

The plaintiffs did not deny those possible imputations arose from the articles: they simply argued that there were other less benign imputations, and Bromberg J agreed with them.  Bolt on the other hand never directed any argument regarding s. 18D with respect to the plaintiffs’ imputations:

“In essence, the s 18D case put by Mr Bolt and HWT sought to justify behaviour cleansed of the s 18C conduct which I have found occurred. As a result, much of what was put in reliance upon s 18D by Mr Bolt and HWT simply addressed the wrong target.” (para 367)

In other words, many of the arguments of Bolt’s legal team on this issue were ultimately irrelevant, thus putting him at a tactical disadvantage in regard to the final decision. The relevance of tactics in a legal battle can never be underestimated and can be materially profound for the outcome.

Ultimately, Bromberg J found that Bolt’s articles did not fall within the s. 18D defences.  In particular, much of the articles were based on apparently factual assertions about the plaintiffs which were simply untrue.  Furthermore, Bolt had made little attempt to establish whether his asserted facts were true. At para 388, Bromberg J analogised with the similar defences to the law of defamation:

“There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts upon which it comments.”

At para 405, Bromberg J concluded:

“In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.”

The factual errors were also compounded by the tone of the articles, described by Bromberg J as inflammatory, provocative, derisive, disparaging, mocking, cynical, and gratuitous.  In those circumstances, s. 18D was not satisfied. The comments were not fair, nor were they made reasonably or in good faith. At para 425:

“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.”

As for the argument that the articles were published for a genuine purpose in the public interest, Bromberg J again found that the activity was not pursued reasonably or in good faith. He also queried the motivations proclaimed by Bolt in the trial at para 444:

“As compared to that which was pleaded, the topic has moved from the desirability of racially harmonious relations to an injustice in the allocation of opportunities to Aboriginal people. That is an entirely different “genuine purpose”, which was raised for the first time in the closing submissions of Mr Bolt and HWT having not being relied upon by Mr Bolt in his evidence-in-chief, despite that evidence addressing Mr Bolt’s purpose for writing the articles.”

In his decision under s. 18D, Bromberg J was clearly influenced by principles from defamation law. At para 423, he stated:

“I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.”

Indeed, it seems very possible that some if not all of the nine plaintiffs could have sustained claims of defamation against Bolt, as argued in the Fairfax press by David Marr.  If so, he is very fortunate that they did not, as defamation would give rise to extensive damages claims, unlike the penalties he faces under the RDA.

To be fair, Bolt does say in the first article that he was “not saying” that the named people had chosen to be Aboriginal “for anything but the most heartfelt and honest of reasons.  I certainly don’t accuse them of opportunism”. Perhaps that statement may allay allegations that the articles were defamatory. However, Bromberg J found that those statements were “incongruous and inconsistent with the article as a whole”, and probably a mere formal “exculpatory device” (para 36).  Certainly, it seems doubtful that Bromberg J would have found that the statements removed any defamatory stain from the articles.

The findings under s.18D are justifiable. The findings do not indicate that discussions of Aboriginal identity are “no go zones”. They simply indicate that such discussions should not be based on falsehoods accompanied by nasty hyperbole.

7. The punishment

Which brings me to the punishment. The parties have been told to “endeavour to agree upon a form of relief” (para 457). Barring an appeal (which seems quite likely), the relief will likely entail a declaration that the publication of the articles was unlawful under the RDA, restraints upon Bolt and the HWT from republishing the articles, and an award of costs. The Judge is not likely to order that the articles be removed from HWT’s digital archives.  He has also indicated he will not order the making of an apology if the sentiment behind the apology is not genuinely held. Bolt’s reaction to the judgement confirms that he is clearly unapologetic. Instead, Bromberg J has signalled that he would be prepared to order the following method of public vindication:

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

The likely penalties do not seem disproportionate to the harm caused to the rights of the plaintiffs and the racial group targeted by Bolt’s articles.

8. Conclusion

Andrew Bolt did not lose this case because he wished to make some contentious points about Aboriginal identity politics.  He lost it because of the “manner” in which he wrote about that issue. He lost because he included many false assertions which were likely defamatory of named people.  In those circumstances, I agree with Bromberg J that the incursion into his free speech is no more than that imposed by defamation laws. What we do not know is how the decision would have been made if those nasty untrue imputations about the plaintiffs (and others) had not been made. For example, what if the article had named nobody, but had still contained derisive statements about “fair-skinned” Aboriginal people? It is difficult to judge that scenario, as that is not the scenario which presented itself to Bromberg J.  I can imagine that there would be contexts where such speech should be permitted, and others where it should not be: it would depend on the actual words said. There is plenty of published material out there which disparages Aboriginal people (and the people of other races): I suspect much of it would be saved by s. 18D.

I do not agree with the proscription of conduct which gives rise to offence or which insults people based on their race.  I am not promoting the virtues of a society replete with racist offence and insults, but our community must be resilient enough to combat such speech with better speech.  I do agree that prohibitions on speech which humiliates, and especially that which intimidates, another on the basis of their race, are acceptable limits to freedom of expression as they protect the right to be free from racial discrimination, especially given the availability of the s. 18D defences.

A final point concerns the wisdom of bringing the litigation. The litigation has brought a lot more attention to the initial articles, manifesting again the Streisand effect of which I have spoken in other blogs concerned with free speech. It is also debateable, as Crikey has editorialised, whether the sharp edge of the law in this case will be useful in generating greater racial harmony, in light of the torrent of anger provoked by the decision, most of it by people who have not read Bolt’s articles or the decision. Bolt himself seems ready and willing to assume the role of a pious martyr to his “cause”.

The plaintiffs were, however, probably aware of those likely consequences.  They chose not to fight Bolt purely with articles of their own. Given the derisive style of Bolt’s articles, it seems unlikely that their responses would have fought fire with fire, and so were perhaps unlikely to attract the same readers as the original articles. They forged ahead to strike a blow for their own rights to be free from racial discrimination, prejudice and intolerance, a right which many of us do not appreciate, because many of us have never had to worry about it.