Controversial, lamentable, anti free speech – or perfectly justified? In the wake of the Menzies Research Centre’s Judicial Impartiality Report (see our story on July 22, 2021) and its findings regarding Justice Bromberg’s judgements, we review some responses to his decision against Andrew Bolt in the controversial case of Eatock v Bolt  FCA 1103, brought under the Racial Discrimination Act. Was that a wrongful conviction? Does the answer depend on ideological bias; left v right? We present a variety of opinions for debate.
Andrew Bolt was found to have breached the Racial Discrimination Act on the basis of comment in two columns, one entitled ‘It’s so hip to be black’ and ‘White fellas in the black’.
“THOUGHTFUL AND SENSITIVE”
As freespeechdabte.com reports: “In August 2009, the Australian journalist Andrew Bolt wrote several articles and blogs for the Australian newspaper, the Herald Sun, claiming that some fair-skinned Aboriginal Australians were identifying as Aboriginal in order to gain political or financial benefits. Pat Eatock, one of the women referred to in the article, claimed in the Federal Court of Australia that these articles were race-based offensive behaviour and so breached the Australian Racial Discrimination Act 1975.
The judge in the case, Bromberg J, pointed out, in an enormous 470 paragraph judgment that can be read here, that two values undergird section 18 of the Racial Discrimination Act: the need for Australians to live free from the harm of racial prejudice, and the value of free speech.”
According to freespeechdebate’s Max Harris, “This decision was contentious … But Bromberg J’s decision represents a thoughtful and sensitive application of the law. He unpacks difficult concepts such as race and offensiveness, and offers some nuanced reflections on multiculturalism and free speech.
“When coming to applying the law to the facts, Justice Bromberg noted that for race-based offence to be “reasonably likely”, there must be a real chance (not remote or fanciful) that a person or group will be offended, intimidated, insulted, or humiliated. He stated that the articles conveyed the imputation that individuals were identifying as Aboriginal for activist or political purposes, and that these individuals were not genuinely Aboriginal. This was likely to be seen as a truthful statement, which could lead to a reluctance on the part of the group to express their identity. Thus, Bromberg J found that at least some of the group were reasonably likely to be offended.
“The defence of fair comment required Bolt and the Herald Weekly Times (the newspaper’s publisher) to be acting reasonably and in good faith, and to be making comments based on true facts. But Justice Bromberg found that there were factual inaccuracies * in the article. He accepted that freedom of expression included the freedom to speak offensively; however, the language used here was inflammatory, provocative and cynical. As for the defence of expressive activity for genuine purpose in the public interest, section 18D, the court found that the journalist had gone well beyond what was necessary to make his point. “Accordingly, the judge agreed that a declaration that the articles were unlawful was appropriate …”
* factual inaccuracies : one of those errors (typically trivial) was the columnist’s assertion that Larissa Behrendt’s father was German; in fact, it was her grandfather who married a woman of Aboriginal lineage.
“NOT ABOUT OPINIONS”
Alan Austin (Independent Australia, March 19, 2014) thought that “Justice Bromberg made it abundantly clear that the case was not about expressing opinions. Only about concocting slander.
“Freedom of expression is an essential component of a tolerant and pluralistic democracy,” he affirmed [summary 14].
“The judge stressed [paragraphs 430-434] that the RDA protects opinions ‒ however obnoxious or offensive – provided they are genuinely held and expressed for academic, artistic or scientific purpose, or in the public interest, or in publishing a fair and accurate media report.
He repeatedly reinforced this [para 353]:
“Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion.
“The central issue was this: Were the factual allegations “accurate” and “genuine”?
“Those are key words in the legislation. That question occupied most of the court’s time and the greater part of the written judgment.
Bromberg’s key finding [para 378] was that: “… in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue.”
The judge made it perfectly clear [para 386] that the lies were absolutely central:
“The deficiencies I have relied upon … are about deficiencies in truth. The lack of truth in conduct which contravenes s 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness …”
He could hardly have been more emphatic [para 390]:
“Untruths are at the heart of racial prejudice and intolerance.”
Finally, to the matter of whether Bolt is a racist. The judge was specifically asked to address this when Bolt and the HWT urged him to exonerate them of racist intent.
“This he did (sic) [para 458]: “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.”
In other words, on all the evidence heard, it is indeed appropriate for the guilty parties to wear the racist label.”
NOT FREE SPEECH, ‘LOUSY JOURNALISM’?
Fairfax journalist David Marr wrote of the outcome: “Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He’s attacking lousy journalism.” The Lavarch Law, the Racial Discrimination Act, wrote Michael Connor (Quadrant, November 1, 2011) was not written to attack bad journalism.”
* Michael Lavarch, the partner of litigant Larissa Behrendt and the former Labor politician, is responsible for writing the Act which was used against Bolt.
From Bromberg’s judgement: 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 the 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.
“This is not what he said in court,” writes Connor. “On the morning of Day 5, Bromberg said to Bolt’s counsel, Neil Young QC: “Well, I don’t think you will have a lot of trouble persuading me that any entrée into the debate as to who should be regarded as an Aboriginal would offend the Act.”
Five and a half pages of the Bromberg judgment are spent discussing “The Conventional Meaning of ‘Australian Aboriginal’”. One of the legal precedents he cites is a judgment made by Ron Merkel. Nowhere in this section does the word “black” appear. “Dark” gets a single usage in a section on Australians and the “stereo-typical images” of Aborigines we hold. To illustrate his own assertion “that from time to time prominent people, amongst others, have raised concerns that identification by others as Aboriginal people involves opportunism”, he uses a 1988 quote from Bruce Ruxton. The assembled legal authorities here, the complexity and the confusion should suggest this is not a matter for the courts but for the parliament.
“Prosecuting lawyer Borenstein asked Andrew Bolt about the “vibes” in his articles. Young objected. Ten times in his decision Bromberg referred to the “tone” of Bolt’s articles and he chose debatable terms to describe it. The tone at different times was said to be “stinging”, “cynical”, “mockery”, “derisive”. That is one point of view. Another critic of Bolt’s writing, a Quadrant reader for instance, might see them quite differently. During the trial Bolt was criticised by the prosecution for his legitimate use of inverted commas. Bromberg’s reliance on his perceptions of the “tone” of Bolt’s writing may be something that an appeal court (might have had to deal with – had there been an appeal; see above). ”
Connor adds some colour to his report: “I was there at the beginning, and I was there at the end. I was in the courtroom when wit and humour became a race crime. I saw the torture they inflicted on Andrew Bolt for his wrong ideas and the pleasure they got from hurting him. I heard meanness and I saw hatred on people’s faces—but they weren’t the ones on trial. During the lunch break on the first day a woman said loudly, “I’m interested in anything against Bolt. This time he has bitten off more than he can chew.” Back in the courtroom Eatock’s solicitor, Joel Zyngier, greeted her with a kiss.”
A PICTURE IS WORTH … AN OFFENCE
And one more quote from Connor, which is illustrative (pardon the pun): “It was the photos, not the words, which caused the offence. The Bolt articles were accompanied by photos which showed happy, successful white-skinned people. They took offence from the juxtaposition of the word Aborigines and their own photographs, with those white faces, for they believed that this would provoke mockery from Bolt’s readers. Exposing their Aboriginal whiteness in public caused them unease. As the judge noted when citing Bindi Cole’s evidence: “She found his use of the phrase ‘distressingly white face’ insulting, humiliating and offensive.”
OFFENCE, NOT DEFAMATION?
Journalist and author Peter O’Brien (in Quadrant Feb. 18, 2016) pointed out how “Bolt argued that, where assistance and preference is given, such advantage must be on the basis of current need, rather than the identity of a grandparent or even more remote ancestors. This seems to me to be an eminently justifiable point to raise, relating directly as it does to the efficacious use of taxpayer funds. Worth noting is that the aggrieved chose not to pursue a defamation action, which would allege damage to their reputations. Instead, they opted for the far more nebulous and inevitably subjective route of “offence”. Should Bolt’s substantive point be silenced because the way in which he made it ‘caused offence’?
“Bromberg also said that Bolt was a sloppy journalist who had penned the pieces in a bald attempt to be “destructive of racial tolerance”. The provocative “manner” in which Bolt put pen to paper was crucial to Bromberg’s reasoning:
The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.”
The Act identifies one of the exemptions to 18C as “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
Says O’Brien, “Surely, the only point upon which Bolt’s case could fail under this exemption would be if the comments were unfair. That is a very vague standard upon which to limit public discourse — a standard not tested by an appeal which, to its shame, Bolt’s employer did not launch.”
COMMENT: LEFT V RIGHT
Opinions on the outcome of the case are indeed split on ideological grounds. As Labor Senator Kimberly Kitching remarked with candour, “Obviously he would have had some views about you (Bolt), and perhaps he was not the best person to hear your case.” Unfortunately, the case was thus reduced to an ideological bout: Bromberg in the left corner v Bolt in the right corner.
The left regard Bolt as a right wing racist, irrespective of what he says; some left wing thugs attacked him in a Melbourne street recently, as readers will recall. The right regard Bolt as a genuine Conservative and anything BUT a racist.
Much of the public discussion centred on Section 18C of the Racial Discrimination Act, the repeal of which was a promise by a Coalition that repudiated that pledge upon being elected. The problematic part of the legislation seeks to restrict language that “gives offence”. It is this subjective standard that conservatives want struck out.
Peter O’Brien’s comment “the aggrieved chose not to pursue a defamation action, which would allege damage to their reputations. Instead, they opted for the far more nebulous and inevitably subjective route of ‘offence'” raises the question: why?
Andrew L. Urban