On the Wednesday the 28th of September 2011 Justice Bromberg handed down his decision in the Racial Discrimination case Pat Eatock v Andrew Bolt and The Herald and Weekly Times Pty Ltd.

Andrew Bolt lost and without a doubt the judgement was a true and just judgement. Some people are claiming it is a denial of free speech. That’s garbage, what it means is you can not publish hate filled defamatory racist material. As simple as that.

I would not normally write about this topic as it falls outside the confines of this site which is Judicial Corruption. In dealing with judicial corruption I also cover political and police corruption to a degree as that is where a lot of the judicial corruption starts and is facilitated.

But the above case covers a number of things that this site has raised or have been raised about this site by various commentators. That being freedom of speech, defamation and fair comment.

What I find most disgusting about the Pat Eatock v Andrew Bolt case is that after losing Bolt and others have claimed he has been denied his right to freedom of speech, which is false. To run this argument really undermines and blurs a real freedom of speech issue that has been covered on this site, which also involves Bolt, and that is the Australian Prime Minister Julia Gillard trying to stop reporting on her corrupt past.

Click here to read the full judgement: Eatock v Bolt [2011] FCA 1103.

If the nine people who took legal action had of sued for defamation at least some of them if not all would have won (some were defamed more than others) and nobody would not be talking about some delusional denial of freedom of speech.

This is what is says at section 423 of the judgement:

423: I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law. Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued. Identity has a strong connection to one of the pillars of freedom of expression – “self-autonomy stems in large part from one’s ability to articulate and nurture an identity derived from membership in a cultural or religious group”: Keegstra at 763.

Background of the case.

Andrew Bolt wrote two articles in April 2009 titled, “It’s so hip to be black” (online as“White is the new black“) and August 2009 titled “White fellas in the black”. The articles on the links have been amended but are also at the bottom of the judgement un-amended.

Bolt named 18 people in those articles and 9 of them took legal action.

I have read the articles and the view that I came to is that Bolt is saying that the people in the articles are not really Aborigines at all and are only claiming to be Aboriginal so they could benefit financially by claiming grants and jobs set aside for the Aboriginal people and by doing this they are stealing from real Aborigines. My view is he is also saying that if you are part Aboriginal and have white skin and look European you should not claim to be Aboriginal as you are a fraud. The key evidence that Bolt is using is the colour of the people’s skin and as it turns out lies that he tells about their background and their decision to be called Aboriginal.

Under the law if you want to run that argument you can. You are entitled to your free speech. But free speech does not allow you make up lies about people and distort the truth to back up your argument. That is Bolt’s major problem. He actually named people and gave specific evidence to support his claims. With the exception of their skin colour, evidence that in large parts turned out to be untrue.

Some people think free speech allows you say anything and everything you want. It does not and never has. It does come close, but there are laws that restrict it and this is best set out by Justice Bromberg at section 238 where he says:

238: The right of freedom of expression at common law is, by definition, qualified by those exceptions otherwise provided by law. The law of defamation imposes significant limitations on freedom of expression. Other laws imposing limitations include laws dealing with blasphemy, contempt of court and of Parliament, confidential information, the torts of negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions dealing with obscenity, public order, copyright, censorship and consumer protection place restrictions on the exercise of the right to freedom of expression. These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression.

What also should be put in there is that if you defame someone and there is also a racial element to that defamation then it is a breach of the Racial Discrimination Act.

Just after section 226 Justice Bromberg puts in the following quote:

Freedom of expression

WITHOUT Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another.

Benjamin Franklin,

The New England Courant, Issue 49, 9 July 1722

The overall case is best set out in the summary of the judgement where at section 3, 4, 5, 6 and 7 where it says:

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

The defamatory lies.

The background of the people who took legal action are set out in sections 67 to 164 of the judgement.

Bolt either out-and-out lied about a number of their backgrounds or incompetently got it so badly wrong he should be ashamed of himself. Either way the number of mistakes was not one, two or three, it was extensive.

Justice Blomberg lists some of them at sections 398 to 407. Some are below.

398: In part, the cultural references where given, were erroneous. But more fundamentally, the Aboriginal cultural upbringing which was available to be presented at least in relation to nine of the eighteen individuals dealt with by the Newspaper Articles, was not included. Those facts were relevant, in the context of a comment in part based upon cultural considerations. Their omission meant that the facts were not truly stated. For that reason also, the offensive imputation was not a fair comment.

402: Mr Bolt wrote that Ms Cole was raised by her “English-Jewish” or “English” mother (1A-2; 2A-24). That statement is factually inaccurate because Ms Cole’s Aboriginal grandmother also raised Ms Cole and was highly influential in Ms Cole’s identification as an Aboriginal. He wrote that Ms Cole “rarely saw her part-Aboriginal father” (1A-3). That statement is factually incorrect. Ms Cole’s father was Aboriginal and had been a part of her life until she was six years old. Ms Cole later lived with her father for a year whilst growing up.

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

406: Mr Bolt said of Wayne and Graham Atkinson that they were “Aboriginal because their Indian great-grandfather married a part-Aboriginal woman” (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that “his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman” (A2-28). The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article. Mr Bolt did not seek to deny the evidence of Aboriginal ancestry given by the Atkinsons but insisted that their ancestry was accurately conveyed by the statements made and extracted above.

Another part is that Bolt said this in one of the articles: ”Larissa Behrendt has also worked as a professional Aborigine ever since leaving Harvard Law School, despite looking almost as German as her father … But which people are ‘yours’, exactly, mein liebchen? And isn’t it bizarre to demand laws to give you more rights as a white Aborigine than your own white dad?” and this is what Justice Bromberg pointed out: “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.”

Fair Comment

There is a good chance that Bolt would have been protected by section 18D of the Racial Discrimination Act 1975 if he had got his facts right, or at least made a decent effort to get them right, but the judge found he did not.

Section 18D is simular to the Fair Comment defence in a defamation proceeding. It is best described like this:

“A comment is the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.”

“In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts. Where a comment imputes evil, base or corrupt motives to a person, it must be shown that such imputations are warranted by, and could reasonably be drawn from those facts.” (Click here to read the full article)

Defamation

My view-point is that it is highly unlikely the News Ltd will appeal. Even if they were to win (which is highly unlikely and would be scandalous if they did), they are inflaming the chance for defamation proceedings which they would lose badly. Also it would not be worth while to continue the damage that has been done to the reputation of Bolt and the company.

A number of commentators on various sites have said that some if not all of my posts are defamatory. Well the only thing defamatory is by the people who make those statements.

The reason I can write what I do is because I always get my facts right and I am covered by numerous defences to any proceeding against me. Some of those defences are set out on Wikipedia as such:

Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief

Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable.

Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected. (Click here to read the full article)

The bottom line is if you get your facts right and the comments that you make can be supported by the facts you can say what you want. I know I do and will continue to do so.

Bolt has been around a long time in the media and so have the editors and lawyers who approved the articles. They would have been fully aware that they were breaking the law and defaming the people, but did not care. Whether or not they knew they were breaking the Racial Discrimination Act, who knows, but the lawyers at least should have known and do now.

Justice Bromberg’s judgement only has an impact on people who want to defame others with racial overtones thrown in.

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“Illustration courtesy of Australian satire site sarcastic.com.au“