Eatock v Bolt [2011] FCA 1103

Melbourne

Between: Pat Eatock (Applicant) and Andrew Bolt and the Herald and Weekly Times Pty Ltd (Respondents)

Judge: Bromberg J

Judgment: The Court held that Bolt and the Herald and Weekly Times Pty Ltd (HWT) had contravened section 18C of the Racial Discrimination Act 1975 (Cth) (the RDA). The Court also held that Bolt and HWT did not satisfy the requirements of 18D of the RDA, which offers a limited exemption for liability under s 18C. 

Bromberg J's judgment gave rise to a national debate about the tension between free speech and the protection from racial discrimination and vilification. 

Background

Facts of the case

On 15 April 2009, the Herald Sun, published by the second respondent, HWT, featured an article written by the first respondent, Andrew Bolt, title 'It's so hip to be black'. On the same day, the article was published on HWT's website, titled 'White is the new black'. 

On 21 August 2009, HWT published another article by Bolt, both in print and online, title 'White fellas in the black'. 

Both articles alleged fair-skinned people have 'chosen to identify as Aboriginal' [9] as a means of personal gain. 

Ms Eatock brought proceedings against Bolt and HWT on her own behalf and on behalf of eight others in the Federal Court. The trial began on March 28, 2011. Each of the applicants 'have fairer, rather than darker skin, and...by the combination of descent, self-identification, and communal recognition are and are recognised as, Aboriginal persons' [2]. 

Relevant Statutory Provisions

The relevant statutory provisions come under Part IIA of the RDA: Prohibition of offensive behaviour based on racial hatred. 

Under s 18C of the RDA, it is unlawful for a person to do an act in public that may cause offence, insult, humiliation, or intimidation of others, because of race, colour, or national or ethnic origin. 

Section 18D of the RDA provides an exemption for conduct found unlawful under s 18C. The exemption applies if the conduct was done reasonably and in good faith for a genuine purpose in the public interest, or for an artistic, academic, or scientific purpose. It also applies if the conduct involves making a 'fair comment' on a matter of public interest that is based on a genuine belief. 

Legal Arguments

Ms Eatock claimed that Bolt and HWT's articles conveyed offensive messages about Aboriginal persons who have fairer skin. She argued that the contents of Bolt's articles contravened s 18C(1) fo the RDA in that they were: 

(a) reasonably likely in the circumstances to offend, insult, humiliate or intimidate; and

(b) done because of race, colour, or national, or ethnic origin of the people in the group. 

Bolt and HWT defended these claims on two grounds:

1. The articles did not contravene s 18C, because they were not reasonably likely to cause offence, nor were they written because of race, colour, or national, or ethnic origin of fair-skinned Aboriginal people [6]. 
2. If the articles were found to have contravened s 18C, they were exempted from liability under s 18D, and what they asserted was its protection of freedom of expression [7]. 

Details of Judgment 

Contravention of s 18C of the RDA

Bromberg J found that 'Aboriginal people are a race and have common ethnic origin' [19]. In considering the message Bolt conveyed in his articles about Aboriginal self-identity [20] (detailed in paras [37]-[55]), Bromberg J formed the view that the ordinary Australian, as well as the specific group of Aboriginal people it was likely directed at, were reasonably likely to find the articles offensive and insulting [4]. 

As well as this, Bromberg J found that Bolt's intention was to convey a message that fair-skinned Aboriginal people were accessing personal and career benefits that were intended for 'real' Aboriginal people [47]. This message was directed at the applicant and others 'because of their race, ethnic origin, or colour of fair-skinned Aboriginal people' [20]. 

So, Bromberg J held that Bolt had behaved offensively and breached s 18C. 

In relation to HWT, Bromberg J found that publishing Bolt's articles demonstrated a 'lack of care and diligence' [425]. HWT did not provide any evidence to support their argument that they had no knowledge of the contents of Bolt's articles, so Bromberg J inferred that their intention was the same as Bolt's and therefore HWT had also breached s 18C [449]. 

No exemption under s 18D of the RDA

Bromberg J found that Bolt and HWT did not satisfy the requirements for an exemption under s 18D, and so could not be excused for their unlawful conduct [26]. 

His Honour considered that the nature and seriousness of Bolt and HWT's conduct outweighed the possibility of the Court being seen to restrict the principle of free speech or prohibiting journalists and publishers from speaking on contentious matters. Acknowledging this, Bromberg J confirmed that it was justified because of the nature and seriousness of Bolt and HWT's conduct [423].

Freedom of expression exemption

Bolt and HWT claimed that they should not be held liable because the freedom of expression was protected under s 18D of the RDA. However, Bromberg J restated the purpose of Part IIA of the RDA was to seek a balance between freedom of expression and freedom from racial prejudice and intolerance [14]. 

Considering this, Bromberg J held that the way Bolt and HWT's articles were written meant that the unlawful and offensive conduct found under s 18C, could not be exempt under s 18D. His Honour highlighted that the articles 'contained errors of fact, distortions of the truth and inflammatory and provocative language' [23]. 

Public interest exemption

Bolt and HWT also argued that the content of the articles could be rationalised as a comment on a 'matter of public interest' [428]. In response, Bromberg J held that the purpose of the provision is to provide a defence for a fair comment made on a matter of public interest, not to assess the rationality of conduct found offensive and unlawful under s 18C [428]. 

Bromberg J rejected the claim that Bolt's articles raised awareness of a 'trend' that highlights 'racial difference, rather than common humanity', for a genuine purpose and on a matter of public interest' [442]. The 'trend' referred to Bolt's comments that 'fair-skinned' people chose to identify as Aboriginal to receive personal and career benefits meant for 'real' Aboriginal people [47]. His Honour said this argument could have been made without attacking the motives of 'fair-skinned' Aboriginal people identifying as Aboriginal [442]. 

Bolt's conduct was therefore not genuine for the purpose of s 18D [442]. 

Ultimately, Bromberg J rejected both arguments as an exemption under s 18D, noting that Bolt and HWT had not acted reasonably and in good faith [424]. Neither respondent satisfied the requirements of s 18D. 

Orders

The parties were directed to agree on orders. On October 19, 2011, Bromberg J ordered HWT to publish a 500-word corrective notice next to Bolt's column, and next to re-publications that are restricted to HWT's online archive [468]. 

Commentary 

Academic and Policy Discussion

Following Eatock v Bolt, a public debate about freedom of speech broke out in Australia. 

Federal Opposition leader, Tony Abbott, led a campaign to amend or repeal s 18C of the RDA (Stone, 2015). Professor Adrienne Stone pointed out that this campaign's misinformed and overly partisan stance ultimately undermined the very values of freedom of speech that it sought to defend. Those that argued to repeal s 18C overlooked the s 18D exemption for artists, journalists, academics, and public commentators to say and publish offensive material in good faith (Stone, 2015). 

In February 2017, the Australian Human Rights Commission (the AHRC) presented a parliamentary report on free speech in Australia. Like Stone, the AHRC suggested that a great public understanding of the value of s 18C was needed, stating: 'the law strikes an appropriate balance between freedom from racial vilification and freedom of speech' (AHRC, 2017). 

Like Stone, the AHRC pointed out that s 18D was one fo the 'few legislative instruments in Australian law that contains an explicit protection of free speech' (AHRC, 2017). The AHRC supported the outcome of Eatock v Bolt, finding that there is no place for racial vilification in Australia, and that s 18C provides a necessary limit on harmful comments that should not be protected in the name of free speech (AHRC, 2017). 

After being named NAIDOC scholar of the year in 2013, Professor Mark McMillan spoke of the outcome as a confirmation of the importance of legal protections from discrimination. He set out that the RDA's purpose is to make racial discrimination unlawful, not that freedom of speech, 'is not, never was, and never will be absolute' (The Wheeler Centre, 2014). For McMillan, the judgment upheld the law because it confirmed that speech that is harmful to others will be limited. 'We didn't win a case' he said, 'it was proven that we had been discriminated against' (The Wheeler Centre, 2014). 

Professor Marcia Langton describes Bolt's defence as based on 'an imagined unrestricted right to free speech' (Langton, p.5). Like McMillan, Stone, and the AHRC, Langton notes that Bolt's claims were misguided because they ignore the other restrictions on free speech under Australian law, such as defamation laws. As such, Langton's arguments are like the statements made by McMillan, both explaining there is no such thing as absolute free speech in Australia. 

Langton draws a connection between Bolt's claims and 20th century policies that worked to intimidate and destroy the identity of Aboriginal people across Australia (Langton, p.6). She notes that before policy reform in the 1970s many Aboriginal people 'did sneak away and pretend to be "white"' and that denying one's Aboriginality was often a consequence of policy and societal intimidation (Langton, p.7).  

Further, Langton explains that identifying as Aboriginal is to choose an almost certain exposure to racial discrimination, vilification, unemployment, and time in prison (Langton, p.7). As such, she questions why someone would choose such a fate if, because of the way they looked, they did not have to (Langton, p.7) and in doing so, Langton points to Bolt's claims as being more than a cynical comment on the motivations of Aboriginal self-identification, but a form of intimidation. 

Indigenous Research Fellow Dr Victoria Grieve Williams states that Aboriginal people do not rely on race as a condition of identification (Williams, 2014). Pointing to the legal challenge in Eatock v Bolt, Williams calls Bolt's claims a 'classic case of questioning the identity of Aboriginal people of mixed-race because they did not "look like" the stereotype of an Aboriginal person' (Williams, 2014). Aboriginal identity is not legitimately determined by such superficial matters as skin tone, rather identity should be based in the stories of individuals who identify as Aboriginal through kinship (Williams, 2014). 

Applicant Responses

Speaking the Sydney Morning Herald the day after the judgment, Ms Eatock called the outcome 'the highlight of my life' (SMH, 2011a). She stated that Bolt set out to offend people like her with his articles and reiterated that the purpose of her claim, and Bromberg J's judgment, was not to block free speech or prohibit public conversation about race or racial issues in Australia, but make sure it cannot and should not be done in a malicious way (SMH, 2011a).

After the judgment was handed down, Geoff Clark, one of the nine applicants, referred to the victory as a step in a positive direction (SMH, 2011b). He described the judgment as a significant moment for curtailing entrenched racism in Australian society through requiring the media, and people who have impactful platforms and voices, such as Bolt, to be more mindful of what they are saying and the offence it may cause (SMH, 2011b). 

Similarly, Dr Anita Heiss, also one of the nine applicants, said that 'the result means that Australia will have a higher quality and more responsible media, and that to some degree the persecution of Aboriginal people in the press will be lessened' (Crickey, 2011). 

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References

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