Eatock v Bolt [2011] FCA 1103 (28 September 2011)

Last Updated: 28 September 2011

FEDERAL COURT OF AUSTRALIA

Eatock v Bolt [2011] FCA 1103

SUMMARY

BROMBERG J



28 SEPTEMBER 2011



MELBOURNE

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the publication of the Court’s reasons for judgment. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au/ together with this summary. Ms Eatock has brought this proceeding on her own behalf and on behalf of people like her who have a fairer, rather than darker skin, and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons. I will refer to this group of people as “fair-skinned Aboriginal people”. Ms Eatock complains about two newspaper articles written by Mr Andrew Bolt and published by the Second Respondent (“the Herald & Weekly Times”) in the Herald Sun newspaper and on that paper’s online site. She also complains about two blog articles written by Mr Bolt and published by the Herald &Weekly Times on the Herald Sun website. Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about fair-skinned Aboriginal people, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from the Herald & Weekly Times. She calls in aid Part IIA of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”) which includes sections 18C and 18D. She claims that by their conduct, Mr Bolt and the Herald & Weekly Times have contravened section 18C of the Racial Discrimination Act. In order to succeed in her claim, Ms Eatock needed to establish that: It was reasonably likely that fair-skinned Aboriginal people (or some of them) were offended, insulted, humiliated or intimidated by the conduct; and

That the conduct was done by Mr Bolt and the Herald &Weekly Times, including because of the race, colour or ethnic origin of fair-skinned Aboriginal people. Mr Bolt and the Herald &Weekly Times dispute that the messages that Ms Eatock claims were conveyed by the articles, were in fact conveyed. They deny that any offence was reasonably likely to be caused and also that race, colour or ethnic origin had anything to do with Mr Bolt writing the articles or the Herald & Weekly Times publishing them. They also say that - if Ms Eatock should establish those elements which she needs to satisfy the Court about - their conduct should not be rendered unlawful, because it should be exempted or excused. For that purpose, they rely on section 18D of the Racial Discrimination Act. Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression. All of that raises interesting, difficult and important questions which needed to be resolved in order for Ms Eatock’s claim to be determined. The newspaper articles the subject of Ms Eatock’s claim, describe what in this case has been referred to as a ‘trend’. The ‘trend’ and the people who constitute it are the subject of criticism by Mr Bolt. Each article refers to a number of named individuals who are said to have chosen to identify as Aboriginal, as examples of the people in the wider ‘trend’. Collectively, eighteen individuals are named in the articles. Nine of those individuals gave evidence in this case. Each of them genuinely identifies as an Aboriginal person and has done so since their childhood. Each was raised to identify as an Aboriginal person and was enculturated as an Aboriginal person. None of them ‘chose’ to be Aboriginal. Nor have they used their Aboriginal identity inappropriately to advance their careers. Each is entitled to regard themselves and be regarded by others as an Aboriginal person within the conventional understanding of that description. Part IIA was inserted into the Racial Discrimination Act in 1995. A number of issues were raised in the case about what the provisions of Part IIA mean and how those provisions should be applied. Mr Bolt and the Herald & Weekly Times relied upon the heading of Part IIA to contend that the operation of Part IIA is restricted to racist behaviour based upon racial hatred. I disagree. The legislative history of Part IIA and the words utilised in Part IIA show that contention to be incorrect. No decision of this Court has interpreted Part IIA to be limited to the incitement of racial hatred. Part IIA has a broader field of operation. Infused by the values of human dignity and equality, the objectives of Part IIA extend to promoting racial tolerance and protecting against the dissemination of racial prejudice. Part IIA is also concerned to protect the fundamental right of freedom of expression. Freedom of expression is an essential component of a tolerant and pluralistic democracy. Section 18D of the Racial Discrimination Act exempts from being unlawful, offensive conduct based on race, where that conduct meets the requirements of section 18D and may therefore be regarded as a justifiable exercise of freedom of expression. In that way, Part IIA seeks to find a balance between freedom of expression and freedom from racial prejudice and intolerance based on race. Whether conduct is reasonably likely to offend, insult, humiliate or intimidate a group of people calls for an objective assessment of the likely reaction of those people. I have concluded that the assessment is to be made by reference to an ordinary and reasonable member of the group of people concerned and the values and circumstances of those people. General community standards are relevant but only to an extent. Tolerance of the views of others may be expected in a multicultural society, including from those persons who are the subject of racially based conduct. I have concluded that from the perspective of fair-skinned Aboriginal people, the messages (or what lawyers call “the imputations”) conveyed by the newspaper articles which Mr Bolt wrote, included that: There are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and

Fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person. I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles. A causal nexus is required to be demonstrated between the act reasonably likely to offend and the racial or other characteristics or attributes of the persons reasonably likely to have been offended. A test for that causal nexus has been expressed in different ways including whether the act was “plainly calculated to convey a message about” the racial group? I have concluded that, for the purpose of section 18C of the Racial Discrimination Act, Aboriginal people are a race and have common ethnic origin. The imputations which I have found were conveyed by the newspaper articles were plainly calculated to convey a message about the race, ethnicity or colour of fair-skinned Aboriginal people, including whether those people are sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal. I am satisfied that Mr Bolt both understood and intended that imputations of that kind were conveyed by the newspaper articles he wrote. I have therefore found that in writing those parts of the newspaper articles which conveyed the imputations, Mr Bolt did so including because of the race, ethnic origin or colour of fair-skinned Aboriginal people. I am also satisfied that the causal nexus has been established in relation to the publication of the newspaper articles by the Herald & Weekly Times. In reaching those conclusions, I have observed that in seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language. In coming to that view, I have taken into account the possible degree of harm that I regard the conduct involved may have caused. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity. I have taken into account that the articles may have been read by some people susceptible to racial stereotyping and the formation of racially prejudicial views and that, as a result, racially prejudiced views have been reinforced, encouraged or emboldened. In the balancing process, I have also taken into account the silencing consequences upon freedom of expression involved in the Court making a finding of contravention. I have concluded that the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:

(i) it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or

(ii) done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the requirements of section 18D(b) of the Racial Discrimination Act.

On the basis of my findings, I am satisfied that each of Mr Bolt and the Herald & Weekly Times engaged in conduct which contravened section 18C of the Racial Discrimination Act. I have made no findings of contravention in relation to the two blog articles. Those articles were relied upon for additional claims which were raised by Ms Eatock very late in the trial of the proceeding. It would have been procedurally unfair to Mr Bolt and the Herald &Weekly Times to have permitted Ms Eatock to pursue those additional claims. As to the relief which should be granted by the Court, I intend to direct the parties to confer with a view to agreeing on orders to give affect to the Court’s reasons for judgment. I have indicated that the Court will make a declaration that Mr Bolt and the Herald &Weekly Times have contravened section 18C of the Racial Discrimination Act. I have also indicated that I will make orders prohibiting the republication of the newspaper articles. In the absence of the publication of an apology, I will consider making an order for the publication in the Herald Sun of a corrective notice. 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.

FEDERAL COURT OF AUSTRALIA

Eatock v Bolt [2011] FCA 1103

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY



GENERAL DIVISION VID 770 of 2010

BETWEEN: PAT EATOCK



Applicant AND: ANDREW BOLT



First Respondent



THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937)



Second Respondent

JUDGE: BROMBERG J DATE OF ORDER: 28 SEPTEMBER 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

The parties are directed to confer with a view to agreeing on orders to give effect to the Court’s reasons. If there is agreement, the parties shall on or before 4:00pm on 5 October 2011, file a joint minute setting out the orders which they consider should be made. In the absence of agreement or complete agreement, each party shall on or before 4:00pm on 5 October 2011 file and serve minutes of the orders the party contends should be made, together with short submissions on those matters which remain not agreed.





Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY



GENERAL DIVISION VID 770 of 2010

BETWEEN: PAT EATOCK



Applicant AND: ANDREW BOLT



First Respondent



THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937)



Second Respondent

JUDGE: BROMBERG J DATE: 28 SEPTEMBER 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT

Ms Eatock has brought this proceeding on her own behalf and on behalf of people like her who have fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons. Ms Eatock complains about two newspaper articles written by Mr Andrew Bolt and published by the Second Respondent (“HWT”) in the Herald Sun newspaper and on that paper’s online site. She also complains about two blog articles written by Mr Bolt and published by HWT on the Herald Sun website. Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about her and people like her, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from HWT. She calls in aid the Racial Discrimination Act 1975 (Cth) (“the RDA”). She claims that by their conduct, Mr Bolt and HWT have contravened s 18C of the RDA. In order to succeed in her claim, Ms Eatock needs to establish that: It was reasonably likely that she and the people like her (or some of them) were offended, insulted, humiliated or intimidated by the conduct; and

That the conduct was done by Mr Bolt and HWT including because of the race, colour or ethnic origin of Ms Eatock or of the people like her. Mr Bolt and HWT dispute that the messages Ms Eatock claims were conveyed by the articles, were in fact conveyed. They deny that any offence was reasonably likely to be caused and also that race, colour or ethnic origin had anything to do with Mr Bolt writing the articles or HWT publishing them. They also say that if Ms Eatock should establish those elements which she needs to satisfy the Court about, their conduct should not be rendered unlawful, because it should be exempted or excused. For that purpose, they rely on s 18D of the RDA. Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of s 18C with the need to protect justifiable freedom of expression. All of that raises interesting, difficult and important questions which I have sought to answer by considering: The Articles: [11]-[64];

The Admitted Facts: [65]-[66];

The Witness Evidence: [67]-[166];

Aboriginal Identity: [167]-[190];

Part IIA of the Racial Discrimination Act: [191]-[240];

Were the Articles reasonably likely to offend?: [241]-[302];

Were the Articles written and published because of race, colour or ethnic origin?: [303]-[335]; and

Does the freedom of expression exemption apply?: [336]-[451]. For the reasons that follow, I have determined that some of the messages (what lawyers call “the imputations”) which were conveyed by the two newspaper articles, were reasonably likely to offend, insult, humiliate or intimidate the people in question (or some of them), and that those articles were written or published by Mr Bolt and HWT including because of the race, colour or ethnic origin of those people. I have not been satisfied that the conduct is exempted from unlawfulness by s 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained erroneous facts, distortions of the truth and inflammatory and provocative language and that as a result, the conduct of Mr Bolt and HWT is not justified in the manner required by s 18D of the RDA. I have made no findings of contravention in relation to the two blog articles. Those articles were relied upon for additional claims which were raised by Ms Eatock very late in the trial of the proceeding. It would have been procedurally unfair to Mr Bolt and HWT to have permitted Ms Eatock to pursue those additional claims. The relief to be granted by the Court is dealt with at the end of these reasons for judgment.

THE ARTICLES

HWT publishes the Herald Sun newspaper in print and online. The Herald Sun is a daily newspaper printed and published in Victoria and sold throughout Australia with a circulation of approximately 1.3 million readers. The Herald Sun is also published online on the Herald Sun website. Mr Bolt is a journalist. He wrote each of the articles. At the time he did that and at the time that he gave evidence, he was an employee of HWT employed to write articles to be published by HWT in the Herald Sun. He writes a twice weekly column in the Herald Sun newspaper. Since 2005, Mr Bolt has also written articles and comments for a blog which is published by HWT on the Herald Sun website as the “Andrew Bolt Blog”. Members of the public are able to post or upload comments onto the blog. The Herald Sun’s website is one of the most popular news websites in Australia. Mr Bolt wrote an article entitled “It’s so hip to be black” (“the first article”) which was published in print by HWT in the Herald Sun on 15 April 2009. A copy of that article (annotated with paragraph numbers) is annexed to these reasons for judgment as “1A”. On or about 15 April 2009 and 16 April 2009, HWT also published the first article in the Herald Sun online under the title “White is the new black”. Mr Bolt also wrote a second article in the Herald Sun which is the subject of this proceeding. That article, entitled “White fellas in the black” (“the second article”), was published by HWT in the Herald Sun both in print and online on 21 August 2009. A copy of that article (annotated with paragraph numbers) is annexed to these reasons as “2A”. Each of the articles was the subject of editorial oversight by an editor of the Herald Sun, whose function is to check articles and identify any changes that may be required. Each article was written by Mr Bolt for publication to the public through the Herald Sun. Each was published by HWT in the form submitted by Mr Bolt. The headings and sub-headings in the first and second articles were written by an editor or sub-editor of the particular pages of the Herald Sun in which the articles were published and not by Mr Bolt. However, the change in the title of the first article when published online was a change made by Mr Bolt. The general purpose of such headings, as Mr Bolt explained, is to draw attention to the article and sum up some of its themes. There are two blog articles which are also the subject of this proceeding. The first blog article was written by Mr Bolt and published by HWT on or about 20 March 2009 on the Herald Sun website. That article is entitled “One of these women is Aboriginal” (“the first blog article”). A second blog article was written by Mr Bolt and published by HWT on the Herald Sun website on or about 19 August 2009. That article was entitled “Aboriginal man helped” (“the second blog article”). Copies of both blog articles are annexed to these reasons as “1B” and “2B”. I will refer to the two articles and the two blog articles collectively as “the Articles”. Each blog article was written by Mr Bolt for publication to the public through the Herald Sun website. Each was published by HWT in the form submitted by Mr Bolt. Ms Eatock relies upon the content of each of the articles as a whole, the ordinary and natural meaning of the words and phrases used therein. Ms Eatock identified imputations which she asserts were conveyed by the Articles. An imputation is a meaning conveyed by words utilised in a communication. The imputations identified are relied upon as the key general messages conveyed by the Articles read individually and when taken together. In what follows, I will outline the content of each of the articles. I have annexed copies of the Articles so they can be read in their entirety and so that those parts I have extracted can be read in their context. I have sought to summarise and make particular reference to those parts of the Articles which I consider to be most germane to the matters I need to determine. In undertaking that exercise and in relation to the first article and the second article (“the Newspaper Articles”), I have also made findings as to what, relevantly to the issues raised by this case, are the imputations which are conveyed by those articles to an ordinary and reasonable reader. I need not do that for the blog articles for reasons that will become apparent. There are other perspectives from which the Newspaper Articles and the imputations conveyed by them need to be considered. I deal with that later. Before dealing with the Articles, I also need to explain the legal principles that have guided me in making the findings which I have made as to what imputations were conveyed by the Articles. The principles developed about imputations by the law of defamation have been adopted in at least two cases dealing with Part IIA of the RDA: Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [125]- [126] (Hely J); and Jones v Toben [2002] FCA 1150 at [87] (Branson J). Both of those cases relied on a summary of the relevant principles found in Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 165-166 (Hunt CJ at CL with whom Mason P and Handley JA agreed). The principles there outlined may be summarised as follows: In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable;

Any strained or forced or utterly unreasonable interpretation must be rejected;

The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied by that matter, or what is inferred from it;

The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. Thus, for example, the reader of a book is assumed to read it with more care than he or she would read a newspaper;

The more sensational the article in a newspaper the less likely it is that the ordinary reasonable reader will have read it with a degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected from the reader;

The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking;

There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual; and

In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the author has said and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken. Further, as Hunt CJ said of the ordinary or reasonable person at 165:

The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.

(References omitted)

As both Hely J in Scully and Branson J in Jones v Toben identified, the principles summarised in Marsden were also applied in this Court by Tamberlin J in Gianni Versace SpA v Monte [2002] FCA 190; (2002) 119 FCR 349 at [144]- [146]. In that case at [145], Tamberlin J emphasised that the statement or matters complained of must not be looked at in isolation. The judge said:

When considering whether an imputation is raised in the present case it is necessary to consider the cumulative effect of the references in the evidence as opposed to relying on selected passages in isolation.

Ms Eatock contends that, taken individually and together, the Articles convey the following imputations:

(a) the persons identified in the Articles and any other persons who like them have some Aboriginal descent and fairer rather than darker skins, were not genuinely Aboriginal and were not bona fide in claiming to be, and identifying as, Aboriginal persons;

(b) the persons described in (a) merely pretend to be Aboriginal persons so they can access the benefits that are only available to Aboriginal persons;

(c) the only genuine Aboriginal persons, and the only persons who may be treated as making a bona fide claim to be, and to identify as, Aboriginal persons are persons whose parents are both of Aboriginal descent and who have darker rather than fairer skin;

(d) under Bolt’s criteria, persons having some Aboriginal descent but who are fairer rather than darker skinned are disqualified from, and cannot properly be regarded as, genuinely self-identifying as, and being, Aboriginal.

Mr Bolt and HWT deny that the Articles convey the imputations contended for by Ms Eatock. Mr Bolt’s evidence was that he wrote each of the Articles in order to draw attention to what he believes to be a “discernible trend” in Australia, whereby persons of mixed genealogy, where that genealogy includes Aboriginality, identify as Aboriginal persons, where they could instead identify with another race or other races, or assert no racial identity at all. Mr Bolt said that he believed that this ‘trend’ was an undesirable social phenomenon, because it emphasises racial differences, rather than common humanity.

The First Article – “It’s so hip to be black”

The first article describes a “whole new fashion” (1A-8) (or what Mr Bolt referred to as the ‘trend’) of which Mr Bolt is critical. The article asserts that the people who constitute the ‘trend’ have made a choice to identify as Aboriginal people. In my view, the article would, in summary, convey to the ordinary reasonable reader that Mr Bolt has three reasons for criticising the alleged choice made. The first two criticisms are related and challenge the legitimacy of the choice. First, the choice is criticised as not sufficiently justified by the ancestry and (to a lesser extent) by the cultural upbringing of each of the persons said to constitute the ‘trend’. Secondly, the choice made is criticised by reference to the motivation for it. Thirdly, the choice is criticised for its social consequences because it emphasises racial differences, rather than common humanity. The article is likely to have been understood as largely answering the question posed by its sub-heading which asks -

Why are so many people eager to proclaim their Aboriginality, despite it being such a small part of their heritage?

The first article appears in a newspaper. It is likely to have been read only once by an ordinary reasonable reader. It is not an article which is likely to be read by the reader with analytical care. That is particularly so given the style in which it is written. The article’s use of language and structure is highly suggestive and designed to excite. Its style is not careful, precise or exact. The style and structure invite supposition, rather than analytical conclusions. The language is not moderate or temperate but often strong and emphatic. There is a liberal use of sarcasm and mockery. Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines. The ‘trend’ which is critiqued is said to involve people in academia, the arts and in “professional activism” (1A-8). At the head of the article, the reader is asked to meet “the white face of a new black race – the political Aborigine” (1A-1). The reader is then introduced to sixteen people who are represented as exemplifying the ‘trend’. Each individual identified is dealt with separately, but because each is put forward as exemplifying the ‘trend’, there is a cumulative effect created by the article. The characteristics attributed to each individual will have been understood by the reader to contribute to developing a picture of the kind of individual that typifies the group of people said to constitute the ‘trend’. There are also statements made generally about the group which serve to reinforce the article’s core messages. Examples of the first article’s assertion that Ms Eatock and others have made a deliberate choice in identifying as an Aboriginal person include: “...eager to proclaim their aboriginality...” (all)(1A-sub-heading);

“...but chose Aboriginal, insisting on a racial identity...She also chose, incidentally, the one identity open to her that has political and career clout” (Cole)(1A-3 & 1A-4);

“And how popular a choice that now is” (all)(1A-5);

“...she, too, has chosen to call herself Aboriginal...” (Sax)(1A-7);

“...a whole new fashion....to identify as Aboriginal” (all)(1A-8);

“...the choice to be Aboriginal can seem almost arbitrary...” (all)(1A-9);

“She chose to be Aboriginal as well...” (Behrendt)(1A-15);

“She, too, could identify...” (Heiss)(1A-19);

“...her decision to identify as Aboriginal...” (Heiss)(1A-20);

“I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons...” (all)(1A-22);

“...even if full-blood Aborigines may wonder how such fair people can claim to be one of them...”(all)(1A-22);

“...this self-identification as Aboriginal strikes me as self-obsessed...” (all)(1A-23);

“...Eatock only started to identify...” (Eatock)(1A-27);

“...why does he not also identify...” (Scott)(1A-30). The choice made by the people exemplified to identify as Aboriginal would have been understood by the reader as being challenged, mainly by reference to its lack of biological integrity. That choice is said to be “almost arbitrary...given how many of their ancestors are in fact Caucasian” (1A-9). In relation to each individual, the article draws attention to an asserted deficiency of Aboriginal ancestry. It argues that case by emphasising the non-Aboriginal ancestry or background of each person: “raised by her English – Jewish mother” (Cole) (1A-2); “father was Swiss” (Sax) (1A-6); “Culturally she’s more European” (Sax) (1A-6); “mother...boringly English” (Winch) (1A-11); “as German as her father” (Behrendt) (1A-14); “father was Austrian” (Heiss) (1A-19); “Scottish mother” and “father’s British relatives” (Eatock) (1A-26); “obvious European background” (Scott) (1A-30); “English father” (Clarke) (1A-31); “Irish father” (O’Donoghue) (1A-31); “clearly has more European than Aboriginal ancestry” (Mansell) (1A-31); “had a white father” (Dodson) (1A-32); “are Aboriginal because their Indian great-grandfather married a part-Aboriginal woman” (Wayne and Graham Atkinson) (1A-33). Any Aboriginal ancestry or cultural upbringing of the individuals examined is, in most cases, not referred to and where it is, the reference tends to emphasise the asserted deficiency of an Aboriginal connection: “rarely saw her part-Aboriginal father” (Cole)



(1A-3); “mother only part-Aboriginal” (Sax) (1A-6); “father has both Afghan and Aboriginal heritage” (Winch) (1A-11); “mother only part-Aboriginal” (Heiss) (1A-19). Skin colour and other physical features are also utilised by the article and, for the reasonable reader, would serve to emphasise the asserted deficiency of Aboriginal ancestry of the individuals exemplified and the group as a whole. The group is referred to as: “the white face of a new black race” (1A-1); “fair Aborigines” (1A-9); and “fair people” (1A-22). Colour photographs of many of the individuals referred to in the article accompany the article. Each photograph shows a fair-skinned person. Extensive reference is made to the colour or other physical features of the individuals. That reference is usually juxtaposed with the chosen identity of the individual in a way that tends to suggest an oddity or absurdity (i.e. looks “white” but identifies as “black”). For example: “insisting on a racial identity you could not guess from her features” (Cole) (1A-3); “a white Koori” (Sax) (1A-5); “In looks, she’s Swiss. But she too has chosen to call herself Aboriginal” (Sax) (1A-6 and 7); “despite her auburn hair and charmingly freckled face, she too, is an Aborigine” (Winch) (1A-10); “despite looking almost as German as her father. She chose to be Aboriginal” (Behrendt) (1A-14-15); demanding laws to give her “more rights as a white Aborigine than your own white dad” (Behrendt) (1A-17); “the first Aborigine to stand for Federal Parliament in the ACT, even though she looked as white as her Scottish mother” (Eatock) (1A-26); the first Aboriginal candidate in a winnable seat “despite looking as Aboriginal, or not, as Premier Anna Bligh” (Enoch) (1A-28); “calls himself a Noongar, despite conceding that the Aborigines who did not know him called him wadjila – a white” (Scott) (1A-29); insists he is Aboriginal “when he looks more like one of his West Indian ancestors” (Browning) (1A-36). In my view, the article would be understood by the ordinary reasonable reader as asserting that the choices made by the people who constitute the ‘trend’ have particular motivations. The motivation of the individuals is either stated or suggested to be political or to facilitate career based opportunities. Their choice is described as “intensely political” (1A-9). The people who constitute the ‘trend’ are said to be “self-obsessed and driven more by politics than by any racial reality” (1A-23). The connection between the choice made and the opportunities which are said to arise are made in highly suggestive terms. Thus, Bindi Cole “incidentally” (1A-4) chose the “one identity open to her that has political and career clout” (1A-4). Annette Sax’s choice “happily means” (1A-7) that she could be shortlisted for an award. Tara June Winch is said to have “written only one book...yet is already” (1A-10) an ambassador for the Australia Council’s Indigenous Literacy Project. The choice made by Anita Heiss is described as “lucky, given how it’s helped her career” (1A-20). The article states she has “won plumb jobs reserved for Aborigines” (1A-21). Pat Eatock is said to have started to identify as Aboriginal because of an “awakening to far-Left causes” (1A-27) and “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). There is a further basis upon which the choice said to have been made by the individuals would be understood to be criticised. The choice made is said to be divisive and racist. The assertion is that each of the individuals could have chosen to identify with other aspects of their heritage, or not have identified at all with any heritage, and that by identifying with their Aboriginal heritage alone, deep humanistic ideals and enlightened opinion are debased (1A-37). It is suggested that a better approach would be for these individuals to acclaim being “proud of being half-white too” (1A-37). Or, alternatively that people should all get beyond racial pride and “be proud only of being human beings set on this land together, determined to find what unites us and not to invent such racist and trivial excuses to divide” (1A-38). This theme reflects Mr Bolt’s evidence as to his subjective reason for writing the article. That the article contains this message is not in dispute and is not relied upon by Ms Eatock as a basis for complaint, other than for some of the language utilised which is said to reinforce the messages which are relied upon. For instance, in the passage just quoted, the reference to inventing “racist and trivial excuses” (1A-38). In characterising the imputations to be drawn from the first article, I have taken into account a paragraph which appears in about the middle of the article which is in the following terms (at 1A-22):

I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.

The contents of that paragraph are incongruous and inconsistent with the contents of the article as a whole. That inconsistency, when the article is read as a whole, is likely to be understood as explicable on the basis that the disclaimer is intended as an exculpatory device (“merely formal”: Lezam Pty Ltd v Seabridge Australia Pty Ltd [1992] FCA 206; (1992) 35 FCR 535 at 557 (Burchett J)) rather than a genuine attempt to counter the contrary messages that the article otherwise conveys. Whether or not the paragraph was written with that intent, in my view it would be read and understood by the reader as merely formal and not really intended to distract from what is elsewhere said or suggested. That understanding would be reinforced by the artful manner in which the second sentence of the disclaimer has been crafted. Whilst I have undertaken an analysis of the text, I am conscious of the need to bear in mind that it is the ordinary reader’s overall impression gained from a once-over-lightly assessment of the contents which is to be identified: The Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [33] (Nettle, Ashley and Weinberg JJA). In my view, from the perspective of the ordinary reasonable member of the Australian community, imputations conveyed by the first article include that: There are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the identified individuals are examples, who are not sufficiently Aboriginal to be genuinely identifying as Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to identify as Aboriginal; and,

Fair skin colour indicates a person who is unlikely to be sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.





The Second Article – “White fellas in the black”

The structure of the second Article is similar to the first and some of the same individuals are used as examples of the same ‘trend’ being discussed. Its tone is more cynical and mockery is used more extensively than is the case for the first article, but otherwise its use of language and its structure are similar and the observations I have made at [26] are applicable. The article begins with what would be understood as a derisory description of two of the individuals as “from a tribe of people who face terrible racism just because of the colour of their skin” (2A-1). The group of people critiqued and the alleged choice of identity made by them is described as:

[A] booming new class of victim you’d never have imagined we’d have to support with special prizes and jobs. (2A-9)

They are “white Aborigines” – people who, out of their multi-stranded but largely European genealogy, decide to identify with the thinnest of all those strands, and the one that’s contributed least to their looks. Yes, the Aboriginal one now so fashionable among artists and academics (2A-10).

Examples from the second article which would lead the reader to understand that Mr Bolt was asserting that the people in the ‘trend’ had made a deliberate choice to identify as Aboriginal people include: “...people, who, out of their multi-stranded but largely European genealogy, decide to identify with the thinnest of all those strands...” (all)(2A-10);

“Behrendt....as a professional Aborigine...” (Behrendt)(2A-20);

“...also identified herself as a ‘white Koori’” (Sax)(2A-25);

“She needed to write just one book – and say her dad had Afghan-Aboriginal ancestry...” (Winch)(2A-26);

“Yes, yes, I know. What business is it of anyone else how we identify ourselves?” (all)(2A-29);

“Seeking power and reassurances in a racial identity is not just weak...” (all)(2A-42);

“I’ve never before seen so many Australian-born people identify themselves by their ethnicity...” (2A-45);

“...and sign up instead as white Aborigines, insisting on differences invisible to the eye...” (2A-48). Towards the end of the article, Mr Bolt gave three reasons why he objects to the behaviour he has examined. The first reason would have been understood to challenge the claim of these people to identify as Aboriginal and, in the context of what preceded it, to suggest that their claim was spurious. The article says:

Yes I do object, and not just because I refuse to surrender my reason and pretend white really is black, just to aid some artist’s self-actualisation therapy. (Mr Bolt’s emphasis) (2A-32)

That way lies madness, where truth is just a whim and words mean nothing. (2A-33)

An asserted lack of Aboriginal ancestry is utilised extensively in the article to support that objection. Skin colour is extensively emphasised. The descriptor “white Aborigines” used in the first article is at times used in the second but there is in the second article a distinctive slide to a descriptor with no connection to Aboriginal identity. Thus the group or the individuals identified are described as: “white people” (2A-8), “white men” (2A-6); and in the heading and sub-heading “white fellas” and “white man”. Other examples of the article’s use of colour and physical features include: Photographs of Mark McMillan and Danie Mellor in relation to which a rhetorical question is posed in the following terms:

If, studying the faces of these two “Aboriginal” men you think this is surely the most amazing stretch of definition, you’re wrong (2A-5).

“pink in face” (McMillan) (2A-18);

“very pale” (Behrendt) (2A-20);

“blue-eyed and ginger-haired” (Mellor) (2A-21);

“white face” (Cole) (2A-24);

“pale as a blank canvas” (Sax) (2A-25);

“auburn-haired” (Winch) (2A-26);

“white university lecturer” (Mellor) (2A-37).

Colour is also used as a point of contrast between the people in the group and those intimated to be ‘real’ Aboriginal people. It is also used as a marker of advantage (and disadvantage): “That’s the sound of black people being elbowed out by white people shouting ‘but I’m Aboriginal, too’” (2A-8);

[You would have thought that public funds] “would at least go to people who looked Aboriginal” (2A-18) (Mr Bolt’s emphasis);

Aboriginal” (2A-18) (Mr Bolt’s emphasis); “white men claiming prizes meant for black women” (2A-31);

“privileged white Aborigine...underprivileged black Aborigine” (2A-36);

“White university lecturer...real draw-in-the-dirt Aboriginal artists” (2A-37);

“What’s a black Aboriginal artist from the bush to think, seeing yet another white man lope back to the city with the goodies” (2A-39);

“Same with McMillan. When a man as white as I, already a lawyer with a job, wins a prize meant to encourage and inspire hard-struggle black students, what must those Aborigines conclude?” (2A-40). There are three non-colour based references made to ancestry: “‘American-Australian’ father and a mother with only part-Aboriginal ancestry in her otherwise Irish-Australian past” (Mellor) (2A-21);

“English mother” (Cole) (2A-24);

“Right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman” (Graham Atkinson) (2A-28). The ordinary reasonable reader would perceive that one of the core messages conveyed by the second article is that people who are not really Aboriginal are taking benefits that were intended for ‘real’ Aboriginal people. That message is intimated by: The heading – “White Fellas in the black”;

The sub-heading – “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?”; and,

The pull-out quote – “Mellor and McMillan are representatives of a booming new class of victim you’d never have imagined we’d have to support. They are ‘white Aborigines’”. This message is the subject of Mr Bolt’s second stated objection to the ‘trend’. That objection is described as follows:

...that the special encouragements and prizes we set aside for Aborigines are actually meant for...well, Aborigines. You know, the ones we fear would get nothing, if we didn’t offer a bit extra, just for them.

(Mr Bolt’s emphasis) (2A-35)

The examples described or the references made in the article in support of this objection include: Danie Mellor winning the Telstra Award and Mark McMillan the Fulbright Indigenous Scholarship, despite their non-Aboriginal appearance;

Mark McMillan winning the Black Women’s Action in Education Foundation Scholarship “originally intended to help educate black women, not white men” (2A-6);

“Hear that scuffling at the trough? That’s the sound of black people being elbowed out by white people shouting ‘but I’m Aboriginal, too”’ (2A-8);

“McMillan...has received all the special help you once thought, when writing the tax man another cheque, would at least go to people who looked Aboriginal, but which is increasingly lavished on folk as pink in face as they are in politics”; (Mr Bolt’s emphasis) (2A-18);

Aboriginal, but which is increasingly lavished on folk as pink in face as they are in politics”; (Mr Bolt’s emphasis) (2A-18); “This trained lawyer [McMillan] has not just won several prizes intended for Aborigines but has worked for Aboriginal groups and been an Aboriginal representative on several boards, including that of a local land council” and is a researcher for an “‘indigenous’ outfit” (2A-19 & 20);

“the very pale Prof Larissa Behrendt, who may have been raised by her white mother but today, as a professional Aborigine, is chairman of our biggest tax payer-funded Aboriginal television service” (2A-20);

“The blue-eyed and ginger-haired Mellor has been similarly privileged” (2A-21) despite his American-Australian father and part-Aboriginal mother;

“how can Graham Atkinson be co-chair of the Victorian Traditional Owners Land Justice Group when his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman?” (2A-28);

“Lovely! Soon there’ll be no end of white men claiming prizes meant for black women” (2A-31);

“So when a privileged white Aborigine then snaffles that extra, odds are that an underprivileged black Aborigine misses out on the very things we hoped would help them most” (2A-36);

“What's an Aboriginal art prize for, if a man as white and cosseted as Mellor can win it” (2A-38);

“What’s a black Aboriginal artist from the bush to think, seeing yet another white man lope back to the city with the goodies?” (2A-39); and,

“Same with McMillan. When a man as white as I, already a lawyer with a job, wins a prize meant to encourage and inspire hard-struggle black students, what must those Aborigines conclude?” (2A-40). The article will have been understood by the ordinary reasonable reader to draw a connection between the people constituting the ‘trend’ identifying as Aboriginal and those people obtaining personal advantage. The suggestion that personal advantage is a motivating factor for the alleged choice made is less pronounced than in the first article, but it is nevertheless made. There are a number of examples through which that suggestion is made: Annette Sax’s identification is said to have “fortuitously allowed her to make the shortlist for the Victorian Indigenous Art Award, alongside other Aboriginal artists as pale as a blank canvas” (2A-25);

Tara June Winch “was just as lucky. She needed to write just one book – and say her dad had Afghan-Aboriginal ancestry – for the Australian Council to snap her up as its Indigenous Literacy Project Ambassador” (2A-26).

Other examples suggestive of the connection are set out at [49] above. Additionally, in his concluding remarks, Mr Bolt objects to people “[s]eeking power and reassurance in a racial identity” (2A-42).

In the article, Mr Bolt describes the individuals he has identified as not “atypical or even rare” (2A-23) and says that he has written before “of a dozen similar cases, several even more incongruous” (2A-27). At the very end of the article, Mr Bolt gave the third basis for his objection. He said that a noble Australian ideal is breaking down. That noble ideal is described as “that we judge each other by our character and deeds, and not our faith, fortune or fatherland” (2A-44). Mr Bolt says (at 2A-45 to 46):

I've never before seen so many Australian-born people identify themselves by their ethnicity, whether by joining ethnic gangs, living in ethnic enclaves, forming ethnic clubs, demanding ethnic television, playing in ethnic sports clubs, or grabbing ethnic prizes and grants.

Why is that a problem? Because people who feel they owe most to their tribe tend to feel they owe less to the rest. At its worst, it's them against us.

The article ends with Mr Bolt questioning “how much is there left to hold us together” when “even academics and artists now spurn the chance to be people of our better future – people of every ethnicity but none – and sign up instead as white Aborigines, insisting on differences invisible to the eye...” (2A-48). The mocking and derisive tone of the article is stronger than that of the first article. A number of the individuals exemplified are derided and ridiculed. The article opens with the derisive comment that Mr McMillan and Mr Mellor “faced terrible racism just because” (2A-1) of their skin colour. Mr McMillan is later portrayed, through comments ascribed to him, as someone who thinks that his pale skin colour has made him a “victim” (2A-15). The reader is told that comments about Mr McMillan’s identity are made by him seriously but are akin to comments from a comic satire. Mr McMillan’s alleged confusion about his own identity is said to have lead him to declare that he is both a “proud gay” and a “proud father” (2A-18). The theme that these people see themselves as victims, with which the article opened and which lead to the group being described as “a booming new class of victim” (2A-9), is continued through comments made about Bindi Cole. Ms Cole is a photographer who is said to be exploring “her own pain at being too white” (2A-24) through her photographic exhibition in which black powder covers “her distressingly white face” (2A-24). The imputations which I have found would be conveyed to an ordinary, reasonable member of the Australian community by the first article are also conveyed by the second article. There is in this article a stronger contrast made between the group of people challenged and those people who are to be regarded as ‘real’ Aboriginal persons. An imputation is conveyed that opportunities which should have been conferred on genuine Aboriginal persons have instead been taken by people like those exemplified. The suggested motivation conveyed as the reason why the people in the ‘trend’ identify as Aboriginal is confined to career aspirations.

The First Blog Article – “One of these women is Aboriginal”

Immediately underneath the title of this blog article is a picture of two women. They look quite similar. Both have pale skin and similar facial features and hair colouring. One of the women is readily recognisable as Anna Bligh, the current Premier of Queensland. The article identifies Leeanne Enoch as the other person in the photograph and as “the first indigenous woman preselected for a winnable state seat by the ALP” (1B). The comparison invited by the photograph, the heading and the content of the blog would have prompted the reader to question Ms Enoch’s Aboriginality. The blog asks: “Exactly how Aboriginal is Enoch?”;

“By what superior right can she welcome me to ‘her’ country?”;

“Why is she insisting on a racial difference the eye cannot even detect?”;

“Doesn’t her ancestry in fact make her more an oppressor than a victim?”. Ms Enoch is accused of “plucking one racial identity from the many open to her” and it is said that her career seems “to have relied to quite some extent on her insisting on her Aboriginality”. The conduct criticised is suggested to extend to others beyond Ms Enoch by its opening reference to “[t]his New Racism” which is said to be “becoming farcical”. Mr Bolt suggests that we should “stop wasting our time on stressing such trivial – even non-existent – racial divides and start judging each other as individuals instead”.

The Second Blog Article – “Aboriginal man helped”

This blog article begins with a picture of Mark McMillan above what appears to be an extract from an announcement that Mr McMillan has received the 2009 Fulbright Indigenous Scholarship. The article states:

It is wonderful to see a rare and wonderful opportunity like this being offered to someone from a race that faces so much discrimination and poverty just because of the color [sic] of their skin:

There are two further references to the Fulbright Indigenous Scholarship. They are: “(Hmm. I wonder which Aborigines missed out on this scholarship, thanks to McMillan’s entry. Maybe the judges could explain.)” (Mr Bolt’s emphasis); and

could explain.)” (Mr Bolt’s emphasis); and “It’s some feat when Fulbright’s affirmative action – an indigenous scholarship – ends up leaving this year’s intake of Fellows looking just as white as ever”. A second subject dealt with by the blog article is a reference to Mr McMillan having been chosen by Reconciliation Australia as the face of a campaign called “Which One of These Men is Aboriginal?” (Mr Bolt’s emphasis). Mr Bolt explains that this is a campaign by Reconciliation Australia “to break down racist preconceptions that so hurt other members of his [McMillan’s] community of white Aborigines” (Mr Bolt’s emphasis). The blog article then extracts a list of qualifications taken from a Reconciliation Australia publication relating to Mr McMillan. That extract identifies Mr McMillan as a 40-year-old Wiradjuri man and a Masters of Law recipient. It identifies a number of positions and board memberships held by Mr McMillan and turning to Mr McMillan’s personal achievements the extract says: “He is a proud father of an 11-year-old son, a proud gay man, rugby player, partner and active member of his community”. To that, Mr Bolt comments:

A gay white man with a law degree? Just the kind of Aboriginal who needs a special handout.

A second photograph appears in the blog article which shows a group of individuals. The photograph is accompanied with what would be understood to be the sarcastic comment; “that’s certainly not Mark [Mr McMillan] in the middle of the back row” (Mr Bolt’s emphasis) because Mr McMillan “is Aboriginal, you see”. The blog article then extracts comments said to have been made by Mr McMillan that are introduced with the mocking suggestion that Mr McMillan describes “the agony of not being discriminated against for being Aboriginal” (Mr Bolt’s emphasis). This appears to be followed through in Mr Bolt’s conclusion that “[r]acism sure has come a long way in this country if the problem now is that some people aren’t black enough”.

THE ADMITTED FACTS

By their pleadings both Mr Bolt and HWT have admitted that each of Ms Heiss, Ms Cole, Mr Clark, Dr Wayne Atkinson, Mr Graham Atkinson, Professor Behrendt, Ms Enoch, Mr McMillan and Ms Eatock are of Aboriginal descent; that since each was a child, at the times of publication of each of the Articles, and at present, each person did and does genuinely self-identify as an Aboriginal person and did and does have communal recognition as an Aboriginal person. It is admitted that each of these persons has fairer rather than darker skin colour. That each was reasonably likely to be offended and was offended by the Articles or parts thereof is denied. HWT admits that Mr Bolt was its employee at the relevant time and that it is vicariously liable for his conduct under s 18E of the RDA, should the Court find that his conduct was in contravention of s 18C. However, HWT denies liability as a principal in its own right.

THE WITNESS EVIDENCE

Anita Heiss

Ms Heiss is an author who lives in New South Wales. Ms Heiss gave evidence that she is and has always been Aboriginal. Her maternal great-grandmother was Aboriginal, as was her maternal grandmother. Both her maternal grandmother and great aunt were part of the Stolen Generation and were removed from their families along with other relatives. Ms Heiss’s mother is Aboriginal. Her father was not Aboriginal, he was born in Austria. Her father did not seek to incorporate any Austrian culture, language or heritage into her family life. Her father was part of the Aboriginal family and community in which Ms Heiss was raised. She does not recall how she came to know she was Aboriginal. She has never thought of having a choice about being Aboriginal. That is who she is and has always been as far as she can remember. She has five siblings, three have brown skin and two are fair. All have the same parents. During her childhood she had negative experiences at school and in her local community associated with being Aboriginal. She was disparaged as an “Abo”, a “Boong” and a “Coon”. She experienced a lot of racial abuse. She has also been exposed to negative reactions from people who initially had not realised that she was Aboriginal and who reacted badly when they realised she was. When she attended university she became more conscious of what she regarded as injustices perpetrated against Aboriginal people. She has held a range of positions connected with indigenous issues. She graduated with a PhD in Communication in Media in 2001. Her studies were focused on indigenous literature and publishing in Australia. She has served on numerous boards and committees involved with indigenous issues. Some of those positions have had sitting fees for meetings, most were voluntary. The paid positions involved modest payments. She has performed a large amount of unpaid work dealing with Aboriginal issues. She volunteers about a day a week of her time. Her evidence as to how and why she was offended by the Articles was extensive. She felt the irony of having previously been discriminated against for being dark and now being discriminated against by Mr Bolt because she is not dark enough. She says Mr Bolt wants to take away her Aboriginal identity because of the way she looks. She is offended because of what she perceives to be Mr Bolt’s claims that “we are not genuinely Aboriginal because of how we look”. She is offended by what she called Mr Bolt’s suggestion that she chose her identity to pursue better career options. She says that suggestion challenges her integrity, her ethics and her personal beliefs. She denies claiming Aboriginal identity to advance her career. Her career has been advanced through study, training, goal-setting and hard work. She has pursued a career focused upon Aboriginal issues because she wants to help the Aboriginal community to which she belongs. She feels obligated to assist. She is insulted and offended by Mr Bolt’s claim that benefits, awards and prizes that she and others have gained were gained because they identified as Aboriginal people. She accuses Mr Bolt of mischaracterising her commitment to her community as self-advancement. She is offended by Mr Bolt’s “blood quantum” approach to racial identity and its focus on how people look. She is also offended that the Articles do not recognise Aboriginality in all its diversity noting that 32 per cent of Australia’s Aboriginal population live in metropolitan centres. She says the Articles ignore contemporary Aboriginal Australia. She finds that offensive. She is also humiliated and insulted by the reference in the first article to awards she has won and the suggestion that these are encouragement awards as distinct from being recognitions of her achievements. She also points to a number of factual errors in the Articles which she found offensive, including Mr Bolt’s assertion that her mother is only part-Aboriginal. The evidence given by Ms Heiss was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Ms Heiss having been raised as Aboriginal she has and does genuinely self-identify as Aboriginal. She has Aboriginal ancestry and communal recognition as an Aboriginal person. She is an Aboriginal person and entitled to regard herself as an Aboriginal person within the conventional understanding of that description. That conventional understanding is a matter with which I deal with at [172] to [190] below. She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career. She is a person committed to her Aboriginal community and is entitled to regard her achievements as well deserved rather than opportunistically obtained. I accept that she feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by her evidence.

Bindi Cole

Ms Cole is an artist who lives in Victoria. Ms Cole’s father is Aboriginal and her mother was not. Both her mother and maternal grandmother were born in Australia. Her mother did not identify herself as either English or Jewish although her mother had English and Jewish heritage. Ms Cole only learned of her mother’s Jewish heritage a few years ago and after her mother’s death. Judaism had no influence in her upbringing. In her early childhood and until she was seven or eight years old, Ms Cole lived with her mother, who was a single parent, in St Kilda. Her father had been a part of her life until she was about six years old. When her mother became unfit to look after her from the age of seven or eight, Ms Cole lived with her father for a year before living with, and being looked after by, her paternal grandmother. She lived with her paternal grandmother for the next four years. She lived in the country with her grandmother, her grandmother’s eight children, cousins, aunties and uncles who were and who all identified as Aboriginal persons. She later returned to Melbourne and continued to live with her grandmother. She was always surrounded by family who identified as Aboriginal. She moved back to live with her mother at about the age of 13, but regularly visited and maintained strong ties with her maternal grandmother. Ms Cole’s mother died when Ms Cole was 16. Her Aboriginal father had come back into her life when she was about 14 or 15 and she had been in regular contact with him. She continued to maintain strong ties with her maternal grandmother until she passed away when Ms Cole was 18. Ms Cole grew up in quite disadvantaged circumstances. It was Ms Cole’s Aboriginal grandmother who instilled in her a sense of pride in her Aboriginal heritage. However, Ms Cole was aware of her Aboriginal heritage before she went to live with her grandmother. Her mother always told her that she was Aboriginal. Ms Cole has always regarded herself to be Aboriginal. She did not choose to be Aboriginal. In 2008, Ms Cole learnt about her maternal heritage from her maternal grandmother. At about that time she began to describe herself as of English, Jewish and Wathaurung descent. She agreed that there was nothing to have precluded her from deciding to identify more closely with her Jewish heritage but said that this was something she had not explored because she does not feel a connection to her Jewish heritage. Ms Cole studied to become an artist from about 2001. She is a photographer. She is recognised within the Koori community and the broader Australian art community as an Aboriginal artist. She has never applied for any positions designated exclusively for Aboriginal people. She has worked hard for everything that she has achieved. She works for herself and does not claim social security benefits. She applies for grant funding which is available to support artistic work. She probably applies for more non-Aboriginal funding than funding available to Aboriginal people. She applies for funding because it is there and available irrespective of whether the funding is designated for Aboriginal people. She works to support the Victorian Aboriginal arts community. That community has always indicated support for her when she receives funding for Aboriginal artists. Members of the Aboriginal community have not suggested to her that she is taking their jobs. She has never had anything but support from the Aboriginal community. In 2008, she photographed and exhibited a series of photographs called “Not Really Aboriginal”. This is the exhibition which Mr Bolt refers to in the second article. Her idea for the series was to question the perception that if a person does not fit the stereotype of an Aboriginal person, that person is not really Aboriginal. Prior to making the series, she had experienced challenges to her identity from persons outside the Aboriginal community. Those challenges were based on her appearance. The exhibition was a very personal expression of her feelings about that issue. The exhibition was about challenging the stereotype of an Aboriginal person being very dark-skinned and living in a remote community. The exhibition was about her saying that she was very proud of her family. The photographs in the exhibition portray Ms Cole and members of her family including her father. The photographs show people who have pale skin colour, but whose faces have been painted black. At the time of the exhibition, pamphlets promoting the exhibition were available on the internet. I have examined those pamphlets in which Ms Cole as well as others identified the purpose of the exhibition. That material identifies that the exhibition was intended to challenge stereotypical assumptions about race and identity and the stereotype that a person who is not dark-skinned and not from a remote community is not really Aboriginal. Ms Cole found the first article very upsetting. She had calls from her aunties asking her “why are they saying that about us?” In her view, the article affected the whole Aboriginal community and Mr Bolt’s words “offended and hurt everyone”. The reference in both the first and second articles to her exhibition offended Ms Cole. She perceived Mr Bolt to be deriding her and giving no artistic reference to what she was trying to convey. She found his use of the phrase “distressingly white face” insulting, humiliating and offensive. She was intimidated by the Articles. She felt scared. She didn’t want to go out in public for a while. She didn’t want to be seen. It was very humiliating for her. She perceived the Articles as reinforcing the stereotype of the “black” Aboriginal. Based on how she looked, Mr Bolt was denying that her Aboriginality was real. That made her feel that Mr Bolt was taking her identity away. It hurt her and her family. She was very upset. She perceived Mr Bolt as saying that she was not legitimately Aboriginal because she was not dark-skinned enough and inferring that she had not suffered. She found Mr Bolt’s focus on looks and his failure to address culture as offensive. She also perceived that the Articles undermined her achievements. She perceived Mr Bolt as saying that she and the other named individuals had falsely claimed to be Aboriginal to get ahead and access prizes as a rort. She perceived Mr Bolt as labelling them as opportunistic. Ms Cole is offended by the suggestion that the only reason she says she is Aboriginal is to gain benefits. Ms Cole was cross-examined, but in the main her evidence was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Ms Cole having been raised as an Aboriginal person she has and does genuinely self-identify as Aboriginal. She has Aboriginal ancestry and communal recognition as an Aboriginal person. She is entitled to regard herself to be an Aboriginal person within the conventional understanding of that description. She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career as an artist. She is recognised by her peers in the Aboriginal arts community as an Aboriginal artist and is entitled to regard her achievements as well deserved rather than opportunistically obtained. I accept that she feels offended, humiliated, insulted and intimidated by the Articles or parts thereof in the manner outlined by her evidence.

Geoff Clark

Mr Clark is a former national chairman of the Aboriginal and Torres Strait Islander Commission (“ATSIC”) who lives in Victoria. Mr Clark’s mother is Aboriginal. Both of his mother’s parents were Aboriginal. His mother was born in the Aboriginal community at the Framlingham Forest in Victoria. Mr Clark’s mother had several siblings, each of them had different skin colour. Mr Clark’s father was not Aboriginal. Mr Clark described him as Australian. As his name was McIntosh, Mr Clark’s mother had told him that his father had some Scottish ancestry. His father and mother were not married and never lived together. He spent some Christmas holidays with his father until he was 15 years old but did not have extensive contact with him. His father had no role in, or influence on, Mr Clark’s upbringing or influence on his identity. Mr Clark was essentially raised by his Aboriginal grandmother at Framlingham. Framlingham was established in 1861 and is one of the longest established Aboriginal communities in Victoria. Apart from a six year period in the 1970s, Mr Clark has lived in Framlingham nearly all of his life. This is where he and his two sisters were raised. It is where he learnt his Aboriginal culture watching his grandmother making traditional baskets and food and hunting and fishing with his Aboriginal uncles. He watched his uncles making Aboriginal cultural artefacts and his grandfather mixing traditional medicines and remedies. Traditional knowledge of sacred sites and stories of the Aboriginal people were passed down to him by his relatives and other elders. He is currently a custodian of this knowledge and an elder of the Tjapwhuurrung people. He was educated at an entirely Aboriginal primary school at Framlingham. He became exposed to racism and prejudice when he attended high school at Warrnambool. This was confronting and challenging. It included his classmates talking about their grandfathers going out shooting and poisoning Aboriginal people in the local area. He was often confronted about his identity when classmates would say that he was too white to be Aboriginal. Mr Clark has only ever identified as an Aboriginal person. Mr Clark became active in Aboriginal issues in his mid 20s. His exposure to racism motivated his involvement. He began attending meetings of Land Councils from the age of 25. His involvement was both local and national. He was employed by the Aboriginal community at Framlingham in 1979. He worked on Aboriginal community issues attending national and state meetings including as an Aboriginal delegate drafting a Convention of the International Labour Organisation dealing with the rights of indigenous peoples. In 1999 he was elected as the ATSIC representative for Victoria. He held various positions at ATSIC including as its national chairman having been elected by Aboriginal people to represent them in nine separate elections. Mr Clark found each of the Articles insulting and offensive. He regards Mr Bolt as having questioned his Aboriginality and suggested that he had disingenuously chosen to identify as Aboriginal. He was outraged by Mr Bolt’s comments. He regards the first article as having challenged his human rights, his identity and undermined everything that he has committed his life to. He regards the Articles as at the very essence of prejudice and racism in Australia. Mr Clark regards himself to have been disadvantaged in being Aboriginal “in terms of the suffering, racism and prejudice you receive” and was offended by Mr Bolt’s suggestion that there has been an advantage for him in claiming that he is Aboriginal. He was very offended by the Articles’ concentration on skin colour as defining Aboriginal identity. Mr Clark perceives the personal attack made in the Articles on the individuals named, as an attack on the collective rights of Aboriginal people. He regards the Articles as intimidating Aboriginal people from identifying as Aboriginal. He found the suggestion that he and others are not genuine Aboriginal people to be humiliating. Details of Mr Clark’s life story and his identification as an Aboriginal person are available on the internet. The evidence given by Mr Clark was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Mr Clark having been raised as an Aboriginal person he has and does genuinely self-identify as Aboriginal. He has Aboriginal ancestry and communal recognition as an Aboriginal person. He is an Aboriginal person and entitled to regard himself as Aboriginal within the conventional understanding of that description. He did not consciously choose to be Aboriginal. He has not improperly used his Aboriginal identity to advance his career. He is a person committed to his community who has regularly been elected to represent it. He is entitled to regard his achievements as well deserved rather than opportunistically obtained by reason of his identification as an Aboriginal person. I accept that he feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by his evidence.

Dr Wayne Atkinson

Dr Atkinson is an academic who lives in Victoria. He is the brother of Graham Atkinson, who also gave evidence in the proceeding. Dr Atkinson’s parents are both Aboriginal persons and descendants of the Yorta Yorta and Dja Dja Wurrung tribal groups of central Victoria and the Murray Goulburn Region. All four of Dr Atkinson’s grandparents were of Aboriginal descent. All of his great grandparents were of Aboriginal descent except one of his great grandfathers, Thomas Shadrach James. Thomas James was born in Mauritius and was of Indian heritage. He arrived in Australia in the late 1800s and worked as a teacher in Aboriginal communities where he met and married Dr Atkinson’s great grandmother. Dr Atkinson was raised by his maternal Aboriginal grandmother until his early teens. He grew up with his cousins on the riverbanks of Mooroopna in an Aboriginal fringe camp on the ancestral land of the Yorta Yorta. Both English and Aboriginal language were used in daily conversation at home. His siblings and cousins are all Aboriginal people who identify as such. He grew up with his Aboriginality continually being reinforced by his parents, grandparents, relations, elders and many significant Aboriginal leaders. Dr Atkinson says that he has lived every day of his life as an Aboriginal person. At no stage of his life has he regarded himself as choosing or electing to be Aboriginal. Being Aboriginal is what and who he is and always has been. He experienced racism in primary and secondary school. He dropped out of school at year eight in order to find work to assist his family. He worked mostly unskilled and semi-skilled jobs. After some 10 or 12 years of work, he began his studies wanting to follow in the footsteps of some of his relatives and work for his community learning more about its history and culture. Over the course of his life, Dr Atkinson has sought to make a contribution to his Aboriginal community. He has contributed academically through research and writing and to community affairs through membership of a multitude of Aboriginal community decision-making bodies. His evidence included an impressive list of involvement in Aboriginal issues through various community structures over a period of 30 years. He is currently a member and a senior elder of the Yorta Yorta Nation Aboriginal Corporation. He was the principal claimant for the Yorta Yorta native title claim and gave evidence of his genealogy and Yorta Yorta connections for over a week during proceedings relating to that claim. He currently teaches Indigenous Studies at the University of Melbourne and other universities in Australia and overseas as a Senior Lecturer and Visiting Fellow. He has always been recognised as an Aboriginal person by the Aboriginal community. He is a respected elder of both the Yorta Yorta and Dja Dja Wurrung peoples. This he says is something he has earned over many years. As an elder, he has leadership, mentoring and education responsibilities and is a spokesperson for his community. Over the course of his career, Dr Atkinson has held a range of positions and has been awarded a range of grants and scholarships. Most have focused on indigenous issues. Dr Atkinson’s evidence was that he is constantly dealing with attacks on his identity which he referred to as “personalised attacks on [his] sense of being and identity”. He has sought a legal remedy through this case in order to defend his integrity. He perceives the Articles to be humiliating because they question his identity and integrity. He thinks it offensive that Mr Bolt excludes people as not being Aboriginal because they do not have dark skin. He does not regard being Aboriginal as being about skin colour. He finds the idea that he has to be sufficiently Aboriginal according to Mr Bolt to claim his heritage and identity to be extremely offensive. He regards what Mr Bolt has said in the Articles to affect a huge number of people in the Aboriginal community. He finds it ironic that Mr Bolt says that he is not genuinely Aboriginal, when all of his life he has suffered the deep consequences of discrimination for being Aboriginal. Dr Atkinson perceives Mr Bolt’s assertion that his only claim to Aboriginality is that his great grandfather Thomas James married his great grandmother, to be highly offensive, insulting and totally inaccurate. He says he is angry that people like Mr Bolt get away with terrible distortions of the truth. He is distressed and agitated when powerful white people negate Aboriginal history and the right to be Aboriginal. He has a deep concern for the children of relatives who he suggests will be subjected to similar identity attacks as a result of the Articles. He is frustrated that after 30 years of teaching about his history, people in positions of authority and influence do not accept the reality of who he is and his family’s lived experience. Many of the matters that he gave evidence about are on the public record including evidence he gave on oath in the Yorta Yorta native title case. The evidence given by Dr Atkinson was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Dr Atkinson having been raised as an Aboriginal person, he has and does genuinely self-identify as Aboriginal. He has Aboriginal ancestry and communal recognition as an Aboriginal person. He is an Aboriginal person and entitled to regard himself as an Aboriginal person within the conventional understanding of that description. He did not consciously choose to be Aboriginal. He has not improperly used his Aboriginal identity to advance his career. He is a highly respected and committed member of his Aboriginal community and is entitled to regard his achievements as well deserved rather than opportunistically obtained. I accept that he feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by his evidence.

Graham Atkinson

Graham Atkinson is a member of the Board of Native Title Services Victoria, he is a Councillor appointed to the Victorian Aboriginal Heritage Council and is also Chair of the Dja Dja Wurrung Clans Aboriginal Corporation. He lives in Victoria. I have dealt with Graham Atkinson’s ancestry in setting out the descent of his brother Wayne. Graham is the youngest of seven siblings, each of whom have always identified as Aboriginal. He grew up in Echuca where his mother and father settled in the early 1940s. His family was always recognised as an Aboriginal family. They were one of the first Aboriginal families in Echuca to buy their own block of land and build a house. He has always known that he was Aboriginal and has always identified as an Aboriginal person. That is not something he has ever had to think about. It was never a matter of choice. At school, he was regarded by others as Aboriginal as were his brothers. The skin tone of his siblings and his own skin tone varies. When he was young his skin was very dark, as he got older it has become lighter. Other members of his family were also very dark, but it varied. He and one of his cousins were the only Aboriginal students when he attended technical school. He was then subjected to racism from non-Aboriginal students. He was taunted as a “Blackie”, “Abo”, “Boong” and “Nigger”. He got support from his parents and siblings to deal with racism and that strengthened his self-esteem and pride in his identity as an Aboriginal person. He also experienced racism whilst serving in the army, including in Vietnam. The racism that he encountered spurred him to “fight to get a better deal for Aboriginal people”. After he left the army he took up studies and graduated with a degree in Social Work. In 1977 he was one of only three Aboriginal students at Melbourne University. In 1994 he also obtained a Masters of Business Administration. As one of very few tertiary qualified Aboriginal people living in Melbourne at the time, he was often asked to apply for positions and support causes dealing with Aboriginal issues. He wanted to advance Aboriginal people and it was logical for those in control to seek out the few qualified Aboriginal people available. In his career he has never used his Aboriginal identity opportunistically. His positions were always based on his qualifications for the job. Given that both of his parents are Aboriginal and each of their parents had Aboriginal ancestors, when he read the first article he was highly offended that Mr Bolt had said that he identified as Aboriginal only because Thomas James had married his great-grandmother. He perceives that in both the first and second articles, Mr Bolt suggested that he is not a “real” Aboriginal. He regards the attribution of identity based on skin colour as making no sense. Some Aboriginal people are really dark. Some Aboriginal people are not. He thinks it is offensive in a historical sense as well because it ignores the assimilation process and the taking of Aboriginal women by white settlers, in circumstances where children of mixed race were reared in the Aboriginal community. In his view, Mr Bolt ignores the government process of assimilation and “reduces us again to that invisible group of people that government policies or government authorities tried to create in the past”. He stated that in Mr Bolt differentiating between Aboriginal people with lighter and darker skin, Mr Bolt was repeating the same discredited approach which occurred with early governmental assimilation policies. That he finds offensive and hurtful. He is offended that Mr Bolt presumes to validate or not validate who he is. He stated that he wants to live a normal life and not have to defend his identity. In his view, it is not for Mr Bolt to define his Aboriginality. He expects mainstream society to afford him the respect of not questioning who he is. He is offended by Mr Bolt’s suggestion that because of the colour of his skin he cannot genuinely identify as an Aboriginal person. He is also offended by the mocking and scepticism of the achievements of the individuals named in the articles. In his view, the people named are not “professional Aborigines”. By that comment he perceives Mr Bolt to be insinuating that he and those people are part of an Aboriginal industry, where Aboriginal people consciously or opportunistically use their Aboriginal identity for financial gain. He perceives Mr Bolt to have put him in that category when he has never been in that category. He is offended by that because he wants to see “the best outcome for Aboriginal people”. His time and aspirations have been consumed by “trying to get a better deal for Aboriginal people”. He regards the language used by Mr Bolt as of a passing era in Australian society. In his view, it is dismissive and serves to undermine the achievements of Aboriginal people. He also perceives Mr Bolt’s articles as implying that, in order to be genuinely Aboriginal, a person must be in disadvantaged circumstances. He regards that suggestion as completely misconceived and offensive, as within the Aboriginal community there is a diversity of experiences ranging from extreme disadvantage to people who have been successful. The evidence given by Graham Atkinson was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Mr Atkinson having been raised as Aboriginal, he has and does genuinely self-identify as an Aboriginal person. He has Aboriginal ancestry and communal recognition as an Aboriginal person. He is an Aboriginal person and entitled to regard himself an Aboriginal person in accordance with the conventional understanding of that racial description. He did not consciously choose to be Aboriginal. He has not improperly used his Aboriginal identity to advance his career. He is a person highly committed to his community and is entitled to regard his achievements as well deserved rather than opportunistically obtained. I accept that he feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by his evidence.

Professor Larissa Behrendt

Professor Behrendt is a law professor and author who lives in New South Wales. Prof Behrendt gave evidence that she is and has always been an Aboriginal person. Her father was Aboriginal and her paternal grandmother was Aboriginal. Her paternal grandmother lived in an Aboriginal camp before she was taken away from her family by the Aborigines Protection Board. Prof Behrendt’s paternal grandfather was not Aboriginal. He was born in England and came to Australia as a child. Prof Behrendt’s mother and maternal grandmother were born in Western Australia and are not Aboriginal. Her maternal great-grandmother came from England. Prof Behrendt referred to Mr Bolt’s reference in the first article to her “looking almost as German as her father” (1A-14). To her knowledge, there is no German descent on either her father or mother’s side of the family although she assumes that because of her father’s Germanic surname, there may have been some German descent. Her paternal grandfather came to Australia from England. Mr Bolt also referred to her father as being white. Her father had dark skin. Her father was a prominent, well-respected member of the Aboriginal community. He was an expert on oral histories and his works are held by the Australian Institute of Aboriginal and Torres Strait Islander Studies. A detailed obituary was published in the Sydney Morning Herald on his death about two and a half years ago. It reported that he was Aboriginal and reported his contribution to the Aboriginal community. Prof Behrendt’s father was always part of her family during her upbringing including after her parents separated when she was 15 years old. Her mother explained to her and her brother that they were Aboriginal and was always strongly supportive of their Aboriginal identity. Her father’s negative experiences as an Aboriginal had sometimes made him self-conscious about his Aboriginality, but his attitude changed in the 1980s when he became more active in the Aboriginal community. Prof Behrendt was about 11 years old when her father started to reconnect with his Aboriginal family and became part of it. At that time her father became active in telling Prof Behrendt about his family’s stories, the dreamtime stories and Aboriginal traditions. Her father also started teaching her and her brother Aboriginal languages. Prof Behrendt’s upbringing and experience up to that time was as an Aboriginal person, but her father’s role during that period reinforced her identification. She became proud of her Aboriginal heritage and culture and also became conscious of social justice issues in relation to Aboriginal people. Prof Behrendt has identified as an Aboriginal person since before she can remember. She denies Mr Bolt’s suggestion that she chose to be Aboriginal and says that she never had a choice, she has always been Aboriginal and has “identified as Aboriginal since before I can remember”. Prof Behrendt began to experience racism when she began her schooling. She was teased for being “black”. Prof Behrendt was motivated to become a lawyer because her grandmother had been removed from her family by what Prof Behrendt regarded as a racist policy. She graduated in law at the University of New South Wales and completed a Masters and then a Doctorate in law at Harvard Law School. She was not the beneficiary of any special admission program for Aboriginal people. She competed with everyone else for her place at Harvard. Prof Behrendt has held several positions that she could only have held as an Aboriginal person. She has also won and been nominated for a number of awards for which only Aboriginal persons were eligible. That she has obtained those positions and awards is regarded by her as indicative of her acceptance as an Aboriginal person by the Aboriginal community. She has been recognised as an Aboriginal person in the wider community as well, including by winning a number of awards such as the Victorian Premier’s Literary Award for Indigenous writing. In the second article Mr Bolt referred to Prof Behrendt as a “professional Aborigine” who is “chairman of our biggest taxpayer – funded Aboriginal television service” (2A-20). Prof Behrendt believes this is a reference to the National Indigenous Television Service established in about 2006. She was approached to be the Chair of the service for a three year appointment for which she received $20,000 per year. She worked extraordinarily hard for at least two days a week as Chair and voluntarily stepped down at the end of her appointment. She did not accept the appointment for the money. She did so because of her view that there was a need for Aboriginal people to have their own voice in contemporary Australia. Prof Behrendt read the first article in the days following its publication. It was emailed to her by a number of Aboriginal friends and colleagues who were offended by its content. Prof Behrendt found the first article to be offensive because she regarded it as an attack on who she is as a person. She viewed the article as undermining what she had worked very hard for by implying that she claimed to be Aboriginal to receive certain benefits. She perceives Mr Bolt as saying that she is “too blonde and too light to be Aboriginal” and that she is “not Aboriginal enough”. That is completely insulting to her. She regards Mr Bolt’s conduct in writing the Articles as both intimidating and humiliating to her because he invites members of the public, who know nothing about her, to challenge her integrity and identity based on how she looks. By doing that, she regards Mr Bolt to have humiliated her in front of her family, friends and work colleagues. Prof Behrendt regards the Articles as communicating that she and other Aboriginal people, who are fairer rather than darker skinned, and who have some Aboriginal descent, are not genuinely Aboriginal. She perceives Mr Bolt as saying that in identifying as Aboriginal, she is being dishonest and pretending to be Aboriginal to get benefits. For Mr Bolt to say that she is not Aboriginal enough because of her skin colour is a denial of her race and identity. She also found Mr Bolt’s reference to her as a “professional Aborigine” (1A-14 and 2A-20) to be hurtful, insulting and offensive. She perceives that as suggesting she identifies with her race, not because she is Aboriginal, but because she wants to exploit the system because identifying as Aboriginal is lucrative. She found Mr Bolt’s reference to her as “mein liebchen” (1A-17) particularly offensive, patronising and denigrating. Prof Behrendt expressed concern that the Articles sent a message to young Aboriginal people that if you are light-skinned and identify as Aboriginal you will be publically attacked and criticised in the same way as she perceives that she was attacked by Mr Bolt. She regards that message as very intimidating. Prof Behrendt is regarded as an expert on Aboriginal issues and her perspective is valued. A book that she has written is on the current Victorian Certificate of Education reading list. She believes that the first article has undermined her professional integrity. She perceives it as questioning her credibility to offer views from an Aboriginal perspective. This she finds humiliating and hurtful. Information about her is widely available on the internet. That material includes photographs of Prof Behrendt with brown hair. Those photographs were available on the internet at the time of the publication of the first article. The first article contains a picture of Prof Behrendt with blonde hair. Prof Behrendt had dyed blonde hair between 2003-2009 but not at the time the Articles were published. Although she was cross-examined, the evidence given by Prof Behrendt to which I have referred was either not contested or takes account of what she said in cross-examination. I have no reason to not accept her evidence as truthful. In particular, I find that by reason of Prof Behrendt having been raised as an Aboriginal person she has, and does genuinely, self-identify as Aboriginal. She has Aboriginal ancestry and communal recognition as an Aboriginal person. She is an Aboriginal person and entitled to regard herself as such within the conventional understanding of that description. She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career. She is a person highly committed to her community. She is entitled to regard her achievements as well deserved rather than opportunistically obtained. I accept that she feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by her evidence.

Leeanne Enoch

Ms Enoch works for the Australian Red Cross in the position of Queensland Director, Aboriginal and Torres Strait Islander Partnerships. Ms Enoch lives in Queensland. Ms Enoch’s father is Aboriginal. Her mother is not. Both her paternal grandmother and grandfather were Aboriginal. Ms Enoch’s cultural upbringing and that of her siblings was very much dominated by her father’s side of the family. She has always identified as Aboriginal. She spent the earlier part of her childhood on North Stradbroke Island mixing with her family, the majority of whom were Aboriginal. Her mother has always been accepted as part of her father’s extended Aboriginal family. She has had only sporadic contact with her mother’s side of the family. Her mother fully supported her Aboriginal identity and her education in Aboriginal culture. She was very much influenced by her paternal grandmother as she was growing up. As the eldest grandchild of the eldest son (her father), she had particular Aboriginal cultural and family responsibilities and she was groomed for those responsibilities from a young age. Ms Enoch is fair-skinned and looks very much like her mother. She has three younger brothers all of whom are darker than her. Ms Enoch has not questioned her identity. She never chose at any particular time to be an Aboriginal person. That is who she is. She has always been recognised as being an Aboriginal person by the Aboriginal communities in which she grew up and the communities in which she has lived. She has a large network of Aboriginal friends and colleagues. They have all recognised her as being an Aboriginal person. Ms Enoch began to face challenges about her identity when her family left Stradbroke Island and while she was attending school. It was only when teachers and students came into contact with her father that they first realised that she was Aboriginal. This was an issue for the children who asked whether she had been adopted. Because of her fair skin, she has experienced people being racist towards Aboriginal people, whilst not realising that she is Aboriginal and likely to be deeply offended. Ms Enoch trained as a teacher and then worked as a teacher for 10 years. She was recognised as an Aboriginal person in her work in schools and assisted with Aboriginal cultural awareness programs. Ms Enoch left teaching to work in social policy, focusing on Aboriginal issues. She has held a range of positions. She has not gained her various qualifications through special access provided for Aboriginal people. Nor, to her knowledge, have any of the positions she has held been identified for or reserved for Aboriginal people. Many of the positions that she has held have been positions in which an indigenous person was preferred, although many of those roles have also since been filled by non-Indigenous persons. Ms Enoch joined the Australian Labor Party some six years ago. She stood as a candidate for election because she desired to make a difference. Ms Enoch is the su