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”.
European Convention on Human Rights, Art 10 International Covenant on Civil and Political Rights, Art 19 International Convention on the Elimination of all Forms of Racial Discrimination Art 4, 5 United Nations Declaration of Human Rights, Art 19
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Eatock v Bolt [2011] FCA 1103
Case
[2011] FCA 1103
Decision Date
CaseChat Overview and Summary
The case of Eatock v Bolt concerns a dispute over alleged racial discrimination based on articles published by Andrew Bolt, a journalist, in The Herald and Sun Herald newspapers, as well as on the Herald Sun website. The respondents, a group of Aboriginal individuals, sought relief under the Racial Discrimination Act 1975 (Cth). The core legal issues were whether the articles were reasonably likely to offend, insult, humiliate, or intimidate based on race, and if so, whether they were exempt under the Act. The respondents argued that the articles conveyed offensive imputations about their racial identity due to their lighter skin colour, suggesting they were not "genuinely" Aboriginal.
The Federal Court considered the principles for determining imputations conveyed by articles and whether the articles were reasonably likely to offend the respondents. The Court examined the conventional meaning of "Aboriginal," the objectives of Part IIA of the Racial Discrimination Act, and the relevance of community standards. The Court found that the articles were likely to offend, insult, humiliate, or intimidate the respondents, focusing on their reasonable reactions to the content. The Court also determined that the articles were published because of the respondents' race, colour, or ethnic origin, fulfilling the causal nexus required by the Act. Furthermore, the Court held that the articles did not fall within the exemptions provided by the Act, including the fair comment defence, as they did not meet the requirements of distinguishing fact from comment or serving a genuine purpose in the public interest.
Consequently, the Court found that the articles contravened section 18C of the Racial Discrimination Act. The Court directed the parties to confer and agree on orders to give effect to the Court's reasons, including potential declarations, apologies, prohibitions on republication, and removal from online archives. If the parties could not reach an agreement, they were to file minutes of their proposed orders and submissions on unresolved matters.
Orders
Orders of the court
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
Background
Background to the litigation
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 EVIDENCEAnita 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.
Evidence
Evidence Before The Court
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 EVIDENCEAnita 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.