Eatock v Bolt
[2011] FCA 1103
•28 SEPTEMBER 2011
FEDERAL COURT OF AUSTRALIA
Eatock v Bolt [2011] FCA 1103
Citation: Eatock v Bolt [2011] FCA 1103 Parties: PAT EATOCK v ANDREW BOLT and THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937) File number: VID 770 of 2010 Judge: BROMBERG J Date of judgment: 28 September 2011 Catchwords: HUMAN RIGHTS – Part IIA Racial Discrimination Act 1975 (Cth) – offensive conduct based on race – newspaper articles and online blog articles – principles for determining imputations conveyed by articles – conventional meaning of “Aboriginal” – whether Part IIA of the Racial Discrimination Act restricted to conduct based on racial hatred – objectives of Part IIA discussed – s 18C(1)(a) – whether articles were reasonably likely to offend, insult, humiliate or intimidate – whose reaction is to be assessed – relevance of community standards – “in all the circumstances” – “reasonably likely” – “offend, insult, humiliate or intimidate” – s 18C(1)(b) – whether articles written and published “because of” race, colour or ethnic origin – test for causal nexus discussed – “race, ethnic origin and colour” – whether Australian Aboriginal people are a race or are of common ethnic origin – s 18D exemption – burden of proof – “reasonably and in good faith” – s 18D(c)(ii) – requirements of fair comment defence – distinguishing between fact and comment discussed – s 18D(b) – meaning of “genuine purpose in the public interest” – contravention of s 18C found – Relief – declaration - whether apology should be ordered – whether prohibition of republication of articles should be ordered – whether removal of articles from online archive should be ordered.
PRACTICE AND PROCEDURE – whether claims clearly raised by pleadings – whether claims “in the ring”.
Legislation: Aboriginal Land Rights Act 1983 (NSW)
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Acts Interpretation Act 1901 (Cth) s 15AA
Australian Human Rights Commission Act 1986 (Cth)
Commonwealth of Australia Constitution Act (Cth) s 51(xxvi)
Competition and Consumer Act 2010 (Cth) s 18 of Schedule 2
Racial Discrimination Act 1975 (Cth) ss 18B, 18C, 18D, 18E
Race Relations Act 1976 (UK)
Race Relations Act 1971 (New Zealand)
Trade Practices Act 1974 (Cth) s 52European Convention on Human Rights, Art 10
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Weinstein J “Extreme Speech, Public order, and Democracy: Lessons from The Masses” in Hare I and Weinstein J (eds), Extreme Speech and Democracy (Oxford University Press, 2009)Date of hearing: 28-31 March 2011, 1, 4-6 April 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 470 Counsel for the Applicant: Mr R Merkel QC with Mr H Borenstein SC, Ms C Harris and Ms P Knowles Solicitor for the Applicant: Holding Redlich Counsel for the Respondents: Mr N Young QC with Dr M Collins Solicitor for the Respondents: Kelly Hazell Quill
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 770 of 2010
BETWEEN: PAT EATOCK
ApplicantAND: ANDREW BOLT
First RespondentTHE 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:
1.The parties are directed to confer with a view to agreeing on orders to give effect to the Court’s reasons.
2.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.
3.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
ApplicantAND: ANDREW BOLT
First RespondentTHE 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) 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) 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) 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) 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);
·“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);
·“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
·“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.
Mr Bolt understood that he was writing about the identity of and a very personal aspect of the people he wrote about. He was extensively cross-examined as to whether he had an appreciation at the time he wrote the Newspaper Articles, that the articles or parts thereof would cause offence to the individuals dealt with by them. Mr Bolt acknowledged that he had appreciated offence would likely be caused to many of the named individuals. At times his acknowledgment was qualified. He said he perceived the offence would have arisen out of the fact that he was contradicting or disagreeing with the persons in question. In my view, Mr Bolt was acutely aware that both the content and tone of the articles were reasonably likely to offend the people he identified in the articles, and not simply because they would perceive him to be contradicting them.
The following exchange in cross-examination is illustrative of both that awareness and the underlying rationale for the vigorous approach taken by Mr Bolt:
Do you agree, Mr Bolt, that where a person has made a heartfelt and a genuine honest identification of identity that to say that the identification is a self-obsession is likely to cause that person offence?
It’s the public nature of it. Once you enter the public arena you must be prepared for debate, for disagreement and disagreement can be bruising it’s true. If they were private individuals privately identifying I would not pick them off the street and say, “Look at this person, this anonymous person, ha, ha, ha”.By a later answer, Mr Bolt agreed (without qualification) that he understood offence would likely to be caused by the accusations he made. His answer above reveals Mr Bolt’s view that the people he criticised were in the public arena and therefore ‘fair game’. Given that Mr Bolt denied any intent to convey the imputations which I have found were conveyed, the public behaviour of the individuals that warranted the attack upon them seems to be simply the fact that they have publicly identified as Aboriginal. What Mr Bolt’s answer also reveals is a lack of appreciation by him of the reasonably likely impact his words would have upon the wider community of Aboriginal people of mixed descent including those that I have described as young or vulnerable.
Ms Eatock also relied upon a number of principles taken from a “Statement of Principles” issued by the Australian Press Council. Those principles include the following:
·Publications should take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately mislead or misinform readers either by omission or commission.
·Where individuals or groups are a major focus of news reports or commentary, the publication should ensure fairness and balance in the original article. Failing that, it should provide a reasonable and swift opportunity for a balancing response in an appropriate section of the publication.
·News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.
·Publications are free to advocate their own views and publish the bylined opinions of others, as long as readers can recognise what is fact and what is opinion. Relevant facts should not be misrepresented or suppressed, headlines and captions should fairly reflect the tenor of an article and readers should be advised of any manipulation of images and potential conflicts of interest.
·Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.
·Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas.
Ms Eatock contended and I accept, that the Australian Press Council’s Principles can be regarded as an industry standard. There was evidence that those principles are consistent with those adopted by HWT. She argued that the failure of Mr Bolt and HWT to comply with those principles is demonstrative of a lack of reasonableness and good faith. I need not assess the conduct in that way. It is however of some comfort to the ultimate conclusions I have reached to note that the normative standards of the industry in question recognise that freedom of expression is to be utilised fairly and with reasonable sensitivity.
In coming to the view I have arrived at in relation to the reasonableness and good faith of Mr Bolt’s conduct, I have taken into account the possible degree of harm that I regard that conduct may have caused. As Lee J said in Bropho at [136]:
Such harm, in the context of the Act, would be the extent to which that part of the community which consisted of persons who held racially–based views destructive of social cohesion, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the publication…
Mr Bolt is a journalist of very significant public standing and influence. His evidence suggests that his columns are popular and widely read. They will have been read by persons inclined to regard Mr Bolt as speaking with authority and knowledge. They will likely have been read by some persons susceptible to racial stereotyping and the formation of racially prejudicial views. I have no doubt that some people will have read the Newspaper Articles and accepted the imputations conveyed to the ordinary reader as true and correct and that racially prejudiced views have been “reinforced, encouraged or emboldened”.
I have also taken into account what I regard to be the serious nature of the offensive conduct involved and its reasonably likely consequences upon the Aboriginal people concerned. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have had an intimidatory effect on some people.
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.
Even if I had been satisfied that the s 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith.
In my view, Mr Bolt’s conduct involved a lack of good faith. What Mr Bolt did and what he failed to do, did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith.
There is, as French J recognised in Bropho at [103], a potential for overlap in the assessment of reasonableness and of good faith. Others judges have dealt with reasonableness and good faith as a composite expression: Toben at [44] (Carr J) and at [159], [161] (Allsop J); Bropho at [173] (Carr J). In analysing reasonableness on the one hand, and good faith on the other, Lee J in Bropho at [136] and [141] considered that in both cases regard had to be given to the degree of harm likely to be caused to the protective objectives of the RDA.
I agree that there is a very significant overlap between good faith, objectively assessed, and reasonableness. That is particularly so because each assessment requires that the conduct in question be examined and assessed against its impact on the protective objectives of the RDA. It is an assessment which in both cases raises questions of proportionality: Bropho at [139] (Lee J). The lack of care and diligence which I have found in the context of the harm likely to have been caused, leads me to the conclusion that the expressive conduct involved was not said or done reasonably.
Whilst Mr Bolt and HWT focused their submissions on demonstrating rationality to the “matter of public interest”, I very much doubt that that approach is correct in relation to s 18D(c)(i) or (ii). It is a necessary element of the fair comment defence at common law, that a report or comment be on an event or matter of public interest. In my view that is the reason for the inclusion of that element into s 18D(c)(i) and (ii). That element is not there as a reference point from which to assess the rationality between the s 18C conduct and the matter of public interest. It is there because it is one of the requirements for a fair report or comment. I appreciate that the observations made by French J in Bropho at [81] may suggest the contrary position, although I note that at [82], his Honour indicated that he did not intend to put a definitive view about the examples which he offered.
Different considerations apply in relation to s 18D(b), where the relationship between the offensive conduct and the genuine purpose “in” the public interest is a matter of more obvious relevance. If I am wrong and rationality to the matter “of” public interest is an additional relevant consideration on the question of reasonableness, I would adopt the same approach I have applied in relation to s 18D(b). The existence of some rationality does not change my conclusion that the s 18C conduct was not done reasonably in pursuance of the making of a fair comment.
Section 18D(b)
Mr Bolt and HWT also rely upon s 18D(b) as a source of exemption. To be enlivened, the provision requires that the offending conduct be done reasonably and in good faith in the course of an expressive activity (statement, publication, discussion or debate) made or held for a genuine purpose in the public interest. The provision assumes that genuine academic, artistic or scientific pursuits are in the public interest and leaves open the possibility of other pursuits being encompassed within its scope, but only if those pursuits are genuine and in the public interest.
The pursuit relied upon by Mr Bolt and HWT was described in the Amended Defence as Mr Bolt expressing his genuinely held view in relation to a matter of public interest. The matter of public interest was identified in the same terms as I have recorded at [361] above. That is, drawing attention to the ‘trend’ and its alleged undesirable social consequences of emphasising racial differences rather than common humanity. A second matter of public interest was relied upon in final submissions and identified as a “sub-theme” of the matter of public interest raised by the ‘trend’. This was that the ‘trend’ has the undesirable consequence of operating to the disadvantage of more deserving members of the Aboriginal community in Australia.
For HWT, the “genuine purpose” was contended to be the purpose of publishing the Newspaper Articles to enable Mr Bolt to draw attention to the ‘trend’ he had perceived.
There seems to me to be a difficulty in the approach taken by Mr Bolt and HWT because of its focus upon a matter “of” public interest rather than a genuine purpose “in” the public interest. The provision requires that a genuine purpose “in” the public interest be pursued, not simply a matter “of” public interest. A matter of public interest is broadly defined as a matter of interest or concern to people at large: London Artists Limited v Littler [1969] 2 QB 375, 391 (Lord Denning MR). It is a very broad field. To say that a discussion is “in” the public interest because it raises a matter “of” public interest is to say little more than that public discussion is in the public interest or, in other words, that the public exercise of freedom of expression is in the public interest. I doubt that this is what s 18D(b) has in mind by its requirement that a genuine purpose in the public interest is being pursued. On that view, s 18C (c) is rendered largely superfluous.
Section 18D(b) seems to be concerned to excuse conduct done reasonably and in good faith in the pursuit of a public benefit through the exercise of freedom of expression. The examples of purpose given in the provision (academic, artistic or scientific) reinforce the point that an additional pursuit of public benefit, beyond freedom of expression, is contemplated by the provision. What the provision is concerned with is the public interest use to which the freedom of expression is exercised and not merely freedom of expression itself.
The “genuine purpose” to which s 18D(b) refers does not appear to me to be a reference to the subjective purpose of the maker or publisher. What the provision calls for is the pursuance through a statement, publication, discussion or debate of a purpose which is genuinely in the public interest. That calls for an objective consideration of whether the purpose is genuinely in the public interest.
That the matters relied upon by Mr Bolt and HWT were matters of public interest was not contested. Nor was it contested that Mr Bolt was genuine in asserting his views on those matters. Other than putting evidence before me which I accept, that the general question of Aboriginal identity has been a matter of public interest, no submission was made by Mr Bolt or HWT as to why drawing attention to the ‘trend’ identified by Mr Bolt and its consequences, is of public benefit and thus a genuine purpose in the public interest. The submission focused upon the matters being matters of public interest, not why drawing attention to the matters was genuinely in the public interest.
Ms Eatock did not raise the construction issue I have just raised and conceded that the pursuance of the public interest raised by the Amended Defence was a genuine purpose in the public interest. Given the way in which this issue was dealt with by the parties, I will proceed on the basis that drawing attention to the socially undesirable racially divisive consequences of the ‘trend’ is a genuine purpose in the public interest. I will deal separately with the second matter raised by the “sub-theme”.
Mr Bolt and HWT contended that the requirements of reasonableness and genuine purpose were satisfied because the Newspaper Articles were rationally related to the matter of public interest sought to be advanced by Mr Bolt. However, for reasons I have already discussed, so far as the issue of rationality is concerned, the question must be whether the s 18C conduct and, relevantly, the imputations which I have found were conveyed, are rationally related to the genuine purpose in the public interest relied upon.
The issue of rationality is not however the only consideration in assessing reasonableness and good faith, and I disagree with the contention of Mr Bolt and HWT that it is. For the reasons already canvassed in relation to s 18D(c)(ii) the pursuance of an expressive activity reasonably and in good faith is also to be assessed by reference to the extent of harm done to the protective objectives of the RDA by the expressive conduct and whether a conscientious approach was taken which gave sufficient regard to those objectives including the minimising of the potential harm.
The expressive activity relied upon by Mr Bolt and HWT for s 18D(b) is the same as that for s 18D(c)(ii). The concession made that it involves the pursuance of a genuine purpose in the public interest does not alter the relative value which I have ascribed to it in the balancing process. No particular importance to the public interest purpose was sought to be established. For the purposes of both s 18D(b) and (c)(ii), the expressive activity relied upon is an act of freedom of expression relating to the same matter of public interest. The conduct which led to, and is encompassed by, the expressive activity is the same. The lack of care and diligence which I have found is the same. My conclusion that the activity was not pursued reasonably and in good faith is the same and not altered by a consideration of the extent of the rational connection between the s 18C conduct and the public interest purpose relied upon.
I will explain my views as to the extent of the rational connection I perceive there to be.
The socially undesirable ‘trend’ put forward as the “genuine purpose” by Mr Bolt and HWT involves a wider issue than that raised by the imputations which I have found were conveyed. Accepting that one of Mr Bolt’s motivations was to draw attention to a ‘trend’ which emphasised “racial differences, rather than common humanity”, whether the participants in the ‘trend’ had genuinely chosen to identify as Aboriginal or not, the same socially undesirable consequence would follow. In other words, Mr Bolt could have made his point without attacking the basis upon which the participants in the ‘trend’ identified as Aboriginal and without attributing to them ulterior motives for so identifying.
Drawing attention to the basis upon which the participants so identified, may not have been irrelevant to the wider subject matter, but it was certainly not essential to it and is best described as being of tangential relevance. In terms of rationality, I accept there is a faintly rational relationship between the public interest purpose relied upon and the imputations, but the extent to which that relation contributes to the reasonableness of the conduct is not significant.
The “sub-theme” relied upon by Mr Bolt and HWT does not lead me to a different view as to whether the s 18D(b) exemption is established. This contention raised a different undesirable social consequence which bears no relation to that which was pleaded. As compared to that which was pleaded, the topic has moved from the desirability of racially harmonious relations to an injustice in the allocation of opportunities to Aboriginal people. That is an entirely different “genuine purpose”, which was raised for the first time in the closing submissions of Mr Bolt and HWT having not being relied upon by Mr Bolt in his evidence-in-chief, despite that evidence addressing Mr Bolt’s purpose for writing the articles. It was not conceded as a “genuine purpose” by Ms Eatock. However, Ms Eatock did not seriously resist reliance being placed upon this matter, despite it being outside of the pleadings and raised as late as it was.
I accept that a rational relationship exists between asserting that a group of advantaged Aboriginal people have been the recipients of awards and opportunities for Aboriginal people and the assertion that there needs to be a more just allocation of awards and opportunities to Aboriginal people so that less advantaged Aboriginal people become recipients. But it is neither necessary nor essential to the latter assertion to assert that the advantaged recipients are not genuinely Aboriginal.
An approach rationally related to the making of a public interest point about injustice in the distribution of opportunities to Aboriginal people would have directed attention to demonstrating that all the people in the ‘trend’ (not merely some) are advantaged, rather than that they are all of mixed biological heritage and of pale skin. A rationally related approach would have directed primary attention to the policies which served to create the alleged unjust distribution and the people responsible for them, rather than on the choice made by the recipients of the opportunities to identify as Aboriginal people. The extent to which the public interest matter relied upon and the imputations bear a rational relationship does not significantly contribute to the reasonableness of the conduct in question.
Section 18D and the position of HWT
I am not satisfied that HWT has established that in relation to its act of publication, the s 18C conduct was done reasonably and in good faith.
No evidence was led by HWT as to its conduct. HWT relied upon its long history of publishing articles, including opinion pieces on Aboriginal people. A selection of articles was tendered. None were germane to the issues dealt with by the Newspaper Articles. It was not suggested that any of those articles, in some way counterbalanced or negated the offence caused by the Newspaper Articles. The articles tendered, evidenced the prior publication of “anodyne material” which as Lee J said in Bropho at [142] would not itself show that the publisher acted reasonably and in good faith in relation to the publication which was reasonably likely to cause offence.
HWT had the capacity to both appreciate that the imputations were conveyed by the Newspaper Articles and the editorial means to guard against that. Even if it had been established that HWT was relying upon Mr Bolt to produce articles that were compliant with the RDA, including as to the question of reasonableness and good faith raised by s 18D, HWT must stand or fall by the conduct of its own journalist.
In that respect I can see no reason why I should take a different approach to that taken by the Privy Council in Austin v Mirror Newspapers Ltd, in relation to the failure of a publisher in a defamation case to establish reasonable conduct when relying upon a defence of statutory qualified privilege. At 363 the Court said:
A publisher that is a limited company can only discharge the duty to act reasonably through its servants or agents and in the present case it seems clear that the company were relying upon Mr Casey to produce an article that it was reasonable for them to publish. If in these circumstances it is found that the journalist not only got his facts wrong but had also failed to take reasonable care to ascertain them the publishers of the newspaper must stand in the shoes of their journalist for the purposes of considering whether their conduct in publishing the article was reasonable. The newspaper, the publisher, cannot be allowed to hide behind their journalist on the ground that it never occurred to them that their journalist would be so careless. The newspaper must stand or fall by the conduct of its own journalists. Very different considerations will of course apply to the publication of an article by an independent contributor who cannot be considered as either the servant or agent of the newspaper. An independent contributor is in no sense the alter ego of a newspaper for the purpose of producing the article and in such circumstances his reliability and reputation will be a very important matter in considering whether the conduct of the publisher was reasonable in accepting and publishing the article if it turns out to be defamatory and untrue.
Finally, I should add that I am positively satisfied that the elements which needed to be established in order for s 18D to have application, have not been established. In other words, if the burden of proof rested with Ms Eatock it has been satisfied. Further, if it had been necessary to assess the s 18C conduct by reference to the narrower sub-group, I would have arrived at the same conclusions in relation to s 18D.
FINDINGS OF CONTRAVENTION AND RELIEF
For the reasons I have given I am satisfied that:
·Some Aboriginal persons of mixed descent who have a fairer, rather than darker skin, and who by combination of descent, self-identification and communal recognition are, and are recognised as Aboriginal persons were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the Newspaper Articles that:
(i)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 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
(ii)Fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
·That in Mr Bolt writing and HWT publishing those parts of the Newspaper Articles which conveyed the imputations, they each did so including because of the race, ethnic origin or colour of the Aboriginal persons there described;
·That the conduct of Mr Bolt and HWT is not exempted by s 18D of the RDA 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 terms of s 18D(c)(ii); 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 terms of s 18D(b).
On the basis of those findings, I am satisfied that each of Mr Bolt and HWT engaged in conduct which contravened s 18C of the RDA. In the case of HWT, I am also satisfied that as Mr Bolt’s employer, it is liable for the contravention by Mr Bolt by reason of s 18E of the RDA.
The relief sought by Ms Eatock in relation to the Newspaper Articles may be summarised as follows:
·A declaration that the writing and publication of the Newspaper Articles by Mr Bolt and HWT, was unlawful;
·An order restraining Mr Bolt and HWT from republishing or further publishing the Newspaper Articles or articles whose content is substantially the same as, or substantially similar to, that contained in the Newspaper Articles;
·An order requiring Mr Bolt and HWT to remove the Newspaper Articles from any online site under their control or direction;
·An order that HWT publish an apology; and
·Costs.
The power of the Court to grant relief of the kind sought is not in issue. The power is conferred by s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth).
On the basis that the Court finds a contravention of s 18C, Mr Bolt and HWT do not resist the making of a declaration. Injunctive relief is not resisted but the form suggested by Ms Eatock is said to be too wide. An order requiring that an apology be published by HWT is resisted.
Ms Eatock contended that, rather than making orders at this juncture, it may be appropriate for the Court to direct the parties to endeavour to agree upon a form of relief consistent with my reasons for judgment. That suggested course is not resisted by Mr Bolt and HWT. I accept that such a course is an appropriate way in which to proceed. There is however significant disagreement about some aspects of the relief sought by Ms Eatock which I need to resolve, in order that the parties can sensibly put forward draft orders. There are also three matters in relation to relief for which I may need to receive further submissions.
Mr Bolt and HWT contended that the terms of any declaration made should expressly state that the conduct in contravention of s 18C “did not constitute and was not based on racial hatred or racial vilification”. It is contended that the inclusion of these words will facilitate the educative effect of the declaration made and contribute to informed debate. I do not regard the inclusion of the words suggested as appropriate. The declaration the Court makes should be based only on proven facts and not on facts or matters which the Court has not been called upon to determine: Commonwealth v Evans [2004] FCA 654 at [57]-[59] (Branson J). Any necessary educative effect will be achieved by the terms of the declaration which will record the unlawful conduct by reference to the precise terms of the provision contravened and by the publication of the Court’s reasons for judgment.
The terms of the declaration I have in mind should:
·Identify the Newspaper Articles by title, and date and place of publication;
·Identify that they were written by Andrew Bolt and published by the Herald and Weekly Times Pty Ltd;
·Identify the imputations conveyed by the Newspaper Articles in the terms set out at [284];
·State that the meaning conveyed by the Newspaper Articles contravened s 18C of the RDA and was unlawful in that:
(i)it was reasonably likely to offend, insult, humiliate or intimidate Aboriginal persons of mixed descent 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; and
(ii)the Newspaper Articles were written and published, including because of the race, ethnic origin or colour of those Aboriginal persons.
All parties agree that any injunction made should be directed at the publication or republication of the articles themselves and not at the imputation conveyed by them. Mr Bolt and HWT oppose an order restraining the publication of articles whose content is substantially the same or similar to that of the articles which have contravened s 18C. Each of those positions is based upon the recognition that the orders which are made should be clear and precise including so that freedom of expression is not unnecessarily stifled.
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 challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and HWT to have contravened s 18C simply because the Newspaper Articles dealt with subject matter of that kind. I have found a contravention because of the manner in which that subject matter was dealt with.
Other than by prohibiting republication, controlling by an injunction the manner in which a subject matter is communicated is difficult in circumstances where the language, tone and structure of the publications in question make a significant contribution to the unlawful manner in which the subject matter was dealt with. Mr Bolt and HWT have not contended that a prohibition on republication should not extend to the whole of each of the impugned articles and that seems to me to be a sensible and practical approach. Such an order would prohibit publication of any part of the articles and should state so clearly. For those reasons and because of the need for the terms of an injunction to be clear and precise, I agree with Mr Bolt and HWT that the terms of an injunction should not extend to the publication of articles whose content is substantially the same as, or substantially similar to, that contained in the Newspaper Articles.
In relation to the order sought that HWT remove offending articles from any online site under its control or direction, HWT contends that it would not be appropriate for that order to extend to the internet archives of the Herald Sun. It was contended, and I accept, that the internet archives of a significant media organisation such as the Herald Sun serves an important public interest by preserving and making available historical records of news and information: Times Newspapers Limited (Nos 1 and 2) v United Kingdom [2009] EMLR 14, 45-48. If I were to accede to that qualification, HWT has indicated its preparedness to consent to an order that it publish permanently and prominently, on the internet versions of the Newspaper Articles, a copy of the declaratory relief granted by the Court.
I can well appreciate Ms Eatock’s purpose in seeking to have the Newspaper Articles removed from the online archive of the Herald Sun. There is good reason to try and restrict continued access to, and dissemination of, the Newspaper Articles by the public. However, it seems to me that, in the age in which we live, any attempt made to restrict access to an internet publication is likely to be circumvented by access being made available on online sites beyond the control of HWT. Ms Eatock’s legitimate objective would be better served by maintaining the Newspaper Articles on the online site to which people looking for them are most likely to go and including at that place a notice of the kind offered by HWT and to which I will refer further below. Accompanied by an appropriate corrective notice, the contravening effect of the Newspaper Articles will be negated. The qualification of online archives in a manner similar to that for which HWT contends is an approach adopted in modern defamation cases in the United Kingdom, informed by the reasoning of the European Court of Human Rights: Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783 at [74]; Flood v Times Newspapers Ltd [2010] EMLR 8, at [230], approved on appeal [2011] 1 WLR 153 at [77]-[78]; Budu v British Broadcasting Corporation [2010] EWHC 616 (QB), [79]-[80] and [93].
There is force in the contention of HWT that an apology should not be compelled by an order of the Court because that compels a person to articulate a sentiment that is not genuinely held. An apology is one means of achieving the public vindication of those that have been injured by a contravention of s 18C. The power granted to the Court to require a respondent to redress any loss or damage is a wide power. There are other means by which public vindication may be achieved.
Public vindication is important. It will go some way to redressing the hurt felt by those injured. It will serve to restore the esteem and social standing which has been lost as a consequence of the contravention. It will serve to inform those influenced by the contravening conduct of the wrongdoing involved. It may help to negate the dissemination of racial prejudice.
Whilst I will not order HWT to apologise, in the absence of an appropriate apology, I am minded to make an order which fulfils the purposes which I have identified.
My preliminary view is that a corrective order should be made which would require HWT to publish a notice in the Herald Sun in print and online. The terms of the notice would include an introduction which referred to this proceeding and the order requiring its publication and set out the declaration made by the Court. In order to give the publication of the corrective notice a prominence and frequency commensurate with the publication of the Newspaper Articles and to facilitate it being communicated to those likely to have read the Newspaper Articles, I have in mind that the corrective order would require the publication of the notice in the Herald Sun newspaper and online, on two separate occasions in a prominent place immediately adjacent to Mr Bolt’s regular column.
I have indicated a preliminary view so that the parties can address me as to their respective positions by further submissions. I will also need to receive submissions from the parties on the question of costs, unless that and the other matter I have identified are the subject of agreement.
I will make orders for the parties to confer as to the terms of the relief which should be granted and for the filing and exchange of minutes of orders to give effect to these reasons and if necessary, short written submissions on the two issues which I have identified if no agreement is reached on those issues.
I certify that the preceding four hundred and seventy (470) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 28 September 2011
1A – “It’s so hip to be black”
2A – “White fellas in the black”
1B – “One of these women is Aboriginal”
2B – “Aboriginal man helped”
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