Eatock v Bolt 2011

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Court: Federal Court of Australia                                 

Relevant Legislation: Racial Discrimination Act 1975

Citation and full judgement: Eatock v Bolt [2011] FCA 1103                  

This case challenged accusations made by conservative columnist Andrew Bolt contained in two of Bolt’s articles published in the Herald Sun in 2009. The articles accused “fair skinned” Aboriginal people of identifying as Aboriginal only for personal, political or career gain. Lawyers for the plaintiffs were successful in arguing that Bolt had contravened s18C of the Racial Discrimination Act 1975. The outcome was received positively by the Aboriginal community, as it both formally recognised their right to self-identification and enforced the importance of journalistic integrity.

Historical background:

Stolen Generations

In his judgement, Justice Bromberg recognised the ‘notorious and regrettable fact of Australian history’ that since British invasion Aboriginal people have endured policies of assimilation and forced removal of children from families.[1] Such policies resulted in one in ten Aboriginal children being removed from their families from 1910 to 1970.[2] There is conclusive evidence that these policies were effectively trying “breed out” Aboriginality. As seen in this quote,

 “By the fifth or sixth generation, all native characteristics of the Australian Aboriginie are eradicated. The problem of our half-castes will be quickly eliminated by the complete disappearance of the black race, and the swift submergence of their progeny into the white”- Dr Evelyn Cecil Cook (“chief protector” of Aboriginal people in the Northern Territory), 1933[3].

The removed children came to be known as the Stolen Generations. The follow on effects of the Stolen Generation was recognised by Bromberg J and informed his ultimate decision.

Learn more about the Stolen Generations,

The Issue:

In 2011 conservative columnist Andrew Bolt was brought before the federal court regarding two articles published both online and in print by the Herald and Weekly Times Ltd (HWT) (publishers of the Herald Sun newspaper). The articles, written in 2009, were titled “It’s so hip to be black” and “White fellas in the black.” In the articles Bolt accused certain people of identifying as Aboriginal for ‘political and career clout,’ and questioned their legitimacy as Aboriginal peoples.[4]  The articles made assumptions about Aboriginal identity and contained direct attacks on people’s careers.  He singled out by name many prominent Aboriginal Australians including aboriginal activist, Pat Eatock.[5] Eatock brought the case as the main litigant, with eight other Aboriginal people appearing as witnesses. These were: Geoff Clark, Larissa Behrendt, Bindi Cole, Anita Heiss, Leeanne Enoch, Graham Atkinson, Dr Wayne Aktinson and Mark McMillan. They were represented by barrister, Ron Merkel QC and fought on the grounds that the articles contravened s18C of the Racial Discrimination Act 1975 (“RDA”).

Relevant Legislation:

Racial Discrimination Act 1975

The main purpose of the RDA is to address instances of racism that create material disadvantage and to recognise the harm that can manifest from hateful speech[6]. Section 18C and 18D were introduced to the RDA in 1995 in response to inquiries into racial violence and Aboriginal deaths in custody which found that racial vilification can cause extensive harm and reinforce racial exclusion.[7]

Section 18C

Section 18C of the Act, which falls under the section that ‘prohibits offensive behaviour based on racial hatred,’ stipulates the following:

  1. It is unlawful for a person to do an act, otherwise than in private, if:
  2. the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
  3. the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. [8]

Section 18D

Section 18D outlines the circumstances under which one is exempt from s18C. The section can be summarised as excluding anything said or done in ‘reasonably good faith’ if,

  1. for artistic purposes; or
  2. for academic, artistic or scientific purposes; or
  3. in making or publishing;
  4. a fair or accurate report of any event or matter of public interest
  5. a fair comment on any event or matter of public interest if the comment is an expression of genuine belief held by the person making the comment[9].

Arguments:

The Plaintiffs – Ms Eatock and others:

The thrust of the complaint was that the articles contained offensive messages about Ms Eatock and others in her community by calling into question their Aboriginality, on a basis of their ‘fair skin’. In opposition to Bolt’s assertions, Eatock and the witnesses argued that they had never “chosen” to be Aboriginal, because their Aboriginality was inherent in them[10]. It was argued that biological descent is only one aspect of race and that Bolt’s views came from a mindset ‘frozen in history[11].’  Furthermore, it was reasoned that many of the assertions in the articles were factually incorrect[12], which became an important factor in the final judgement.

The Defendants – Mr Bolt and HWT:

The defence challenged the application of s18C to the articles by denying that the messages in the articles were likely to cause offense.[13] They further responded that if the articles had contravened s18C, they were exempt under the ‘good faith’ clause in s18D which applies to any comments made in the public interest.[14]

Outcome:

Judgement

The Court found in favour of Ms Eatock in that the articles did convey racial prejudice and intolerance, and that they were not exempt under s18D. In doing so, Justice Bromberg clarified that s18C is not intended to prevent racial vilification but provide freedom from racial prejudice and intolerance.[15]

In his judgement, Bromberg acknowledge the historical sensitivity of racial categorisation of Aboriginal people in Australia and commented that Bolt should have been aware of this.[16]  Hence, he found that ‘reasonable’ yet tolerant members of the targeted group would likely be impacted by Bolt’s accusations. In regard to the s18D defence, the articles were found not to be articles of public interest and ‘fair comment’ was not made. This was determined on the grounds that Bolt’s comments were presented as fact and not comment, but the ‘facts’ were not true[17]. Similarly, Bromberg J commented that Bolt had used unnecessary levels of mockery and inflammatory language to disparage those targeted in the articles[18].  

Remedies

An injunction was ordered by the Court which prohibited the re-publication of the articles or any articles containing the same miss-information and required that HWT publish a note of correction to accompany the articles, which would remain available in the Herald Sun online archives[19]. The note had to include:

  • The title, date and place of publication of the articles;
  • Identification of Bolt as the writer and HWT as the publisher;
  • Identification of the imputations conveyed by the articles;
  • Statement that they contravened s18C of the RDA.

A public apology by HWT was sought by Eatock but not granted by the court, on the grounds that a court ordered apology would unlikely be genuine and that public vindication could be achieved by the court in other ways[20].

Responses:

From conservative politicians and commentators

This case put s18C into the spotlight and following the verdict many conservative politicians and commentators called for the section to be repealed or reformed. In particular, then Prime Minister Tony Abbott and then Attorney-General George Brandis promised to introduce legislation that would do just that.[21] It was argued that s18C was an attack on free speech and that people should not be prevented from voicing opinions even when they were likely to ‘offend’.[22] George Brandis famously summarised the argument as, “people have the right to be bigots.”[23] The proposal to repeal s18C received a lot of backlash from the wider Australian community and was eventually dropped, although it has been unsuccessfully brought back to the surface at times.[24]

From the Aboriginal community

The outcome was seen as positive by the litigants. Yorta Yorta elder Dr Wayne Atkinson said it was particularly positive for “the younger people coming through, who really shouldn’t have to deal with that continual stuff to justify their identity[25].” A major component in this win was the recognition from the Court that skin colour isn’t the only determinant of Aboriginality[26], and the right for Aboriginal people to self-identify without prejudice.  In considering the historical and ongoing forced removal of Aboriginal people from their culture and families, the Court acknowledged the ongoing effects caused to the Stolen Generations and the importance of access to cultural rights.

The other aspect of the case was regarding discriminatory and untruthful journalism. As Pat Eatock pointed out, “it was never about free speech, it has always been a question of professionalism, and the reality is that the original articles were not professional journalism.”[27] There is an expectation that the news media provides truthful and accurate information, as a columnist Bolt has the power to present opinion on a grand scale. However, that does not mean the he is exempt from the professional expectation that his assertions will be based on a level of truth. This case has implications on future journalism taking caution to remain truthful and professional.

Notes:

[1] Equal Rights Trust 2011, ERT Case Summary, Equal Rights Trust, United Kingdom, viewed 8 May 2019, <https://www.equalrightstrust.org/ertdocumentbank/ERT%20Case%20Summary%20-%20Eatock%20v%20Bolt.pdf>.

[2] Sydney Morning Herald 2008, ‘Caught up in scientific racism designed to breed out the black’, Sydney Morning Herald, 14 February, viewed 8 May 2019, < https://www.smh.com.au/national/caught-up-in-a-scientific-racism-designed-to-breed-out-the-black-20080214-gds108.html>.

[3] Sydney Morning Herald 2008, ‘Caught up in scientific racism designed to breed out the black’, Sydney Morning Herald, 14 February, viewed 8 May 2019, < https://www.smh.com.au/national/caught-up-in-a-scientific-racism-designed-to-breed-out-the-black-20080214-gds108.html>.

[4] Bolt, A 2009, ‘It’s so hip to be black,’ The Herald Sun, April 15th, Available at https://www.heraldsun.com.au/news/opinion/its-so-hip-to-be-black/news-story/08d5fe90dfe7b779e3bcbf6b25f710a1?sv=3253694c287cf45f294d720f51da8193 (Accessed: 4 April 2019).

[5] ABC News 2011, ‘Bolt breached discrimination act, judge found,’ Australian Broadcasting Association, 29th September, available at https://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 (Accessed: 4 April 2019).

[6] McNamara, L 2016, ‘Explainer: what is Section 18C and why do politicians want it changed?,’ The Conversation, September 1, available at https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660 (Accessed: 4 April 2019).

[7] Reconciliation Australia n.d, Get the facts: Racial Discrimination Act, viewed 14 May 2019, <https://www.reconciliation.org.au/wp-content/uploads/2017/11/The-Racial-Discrimination-Act-Reconciliation-Australia.pdf>.

[8] Racial Discrimination Act 1975, c. 2a, accessed 4 April 2019, <http://www5.austlii.edu.au/au/legis/cth/consol_act/rda1975202/index.html>.

[9] Ibid.

[10] Quinn, K 2011, ‘Bolt ‘living in mindset frozen in history’: court, The Age, 28 March, viewed 8 May 2019, <https://www.theage.com.au/national/victoria/bolt-living-in-mindset-frozen-in-history-court-20110328-1ccvx.html>.

[11] Ibid.

[12] Eatock v Bolt (2011) FCA 1103 at 371.

[13] Equal Rights Trust 2011, ERT Case Summary, Equal Rights Trust, United Kingdom, viewed 8 May 2019, <https://www.equalrightstrust.org/ertdocumentbank/ERT%20Case%20Summary%20-%20Eatock%20v%20Bolt.pdf>.

[14] Joseph, S 2011, ‘Free speech, racial intolerance and the right to offend: Bolt before the court,’ Alternative Law Journal, vol. 36, pp. 225-230.

[15] Eatock v Bolt (2011) FCA 1103 at 196-211.

[16] Equal Rights Trust 2011, ERT Case Summary, Equal Rights Trust, United Kingdom, viewed 8 May 2019, <https://www.equalrightstrust.org/ertdocumentbank/ERT%20Case%20Summary%20-%20Eatock%20v%20Bolt.pdf>.

[17] Eatock v Bolt (2011) FCA 1103 at 371.

[18] Ibid. at 414.

[19] Ibid. at 456-468.

[20] Ibid. at 465.

[21] Wright, J 2013, ‘George Brandis to repeal ‘Bolt laws’ on racial discrimination,’ The Sydney Morning Herald, 8 November, viewed 8 May 2019, < https://www.smh.com.au/politics/federal/george-brandis-to-repeal-bolt-laws-on-racial-discrimination-20131108-2x50p.html>.

[22] Ibid.

[23] Harrison, D & Swan, J 2014, ‘Attorney-General George Brandis: ‘people do have a right to be bigots,’ The Sydney Morning Herald, 24 March, viewed 8 May 2019, < https://www.smh.com.au/politics/federal/attorneygeneral-george-brandis-people-do-have-a-right-to-be-bigots-20140324-35dj3.html>.

[24] Murphy, K 2017, ‘Senate blocks government’s changes to section 18C of Racial Discrimination Act,’ The Guardian, 30 March, viewed 8 May 2019, < https://www.theguardian.com/australia-news/2017/mar/30/senate-blocks-governments-changes-to-section-18c-of-racial-discrimination-act>.

[25] Quinn, K 2011, ‘Bolt loses high profile race case,’ The Age, 28 September, viewed 8 May 2019, < https://www.theage.com.au/national/victoria/bolt-loses-high-profile-race-case-20110928-1kw8c.html>.

[26] Quadrant Online 2011, Lawyers vs. Bolt, viewed 8 May 2019, < https://quadrant.org.au/opinion/bennelong-papers/2011/11/lawyers-vs-bolt/>.

[27] Ibid.

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