Bolt decision: guilty of discrimination, judge declares
Federal Court judge Mordy Bromberg has found right-wing scribe Andrew Bolt and his publisher Herald & Weekly Times guilty of a serious breach of the Racial Discrimination Act in Melbourne this morning.
Before a public gallery packed with supporters of Pat Eatock, who brought the case on behalf of nine fair-skinned members of the Aboriginal community and top Herald Sun brass Phil Gardner and Simon Pristel, Bromberg delivered a blunt assessment of both the racial offence called by Bolt and his professionalism as a journalist.
Bolt’s legal team, led by Neil Young QC, had relied on part 18D of the Act, which attempts to balance fair comment with the previous section, 18C, dealing with racial offensiveness. But in two of the four 2009 articles that brought the dispute, Bromberg said there was no excuse. The summary of Bromberg’s extensive 57,000-word judgement stated:
“I am satisfied that fair-skinned Aboriginal people (or some of them) were likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles …
“People should be free to full identify with their race without fear of public disdain or loss of esteem for so identifying …
“Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imaged practises or traits of those people is also destructive of racial tolerance.”
Bolt repeatedly shook his head during the watertight 15-minute summary of judgement — which the parties sweated over for 23 weeks — in a case that will resonate across the media in Australia for decades to come.
The Herald Sun will be forced to print an apology or a correction — if not of its own volition then via a court order issued by Bromberg. The articles cannot be republished and the two parties must go away and make their own orders to give effect to the Bromberg’s judgment.
Bromberg struck down Bolt’s defence that that part IIA of the Act, added in 1995, was restricted to racist behaviour based upon racial hatred rather than general comment on race.
“I disagree,” he declared. “The legislative history of Part IIA and the words utilised in Part IIA show that contention to be incorrect. No decision of this Court has interpreted Part IIA to be limited to the incitement of racial hatred.”
And it wasn’t just racial hatred at stake — Bolt was also a sloppy journalist, Bromberg said, that had cynically penned the pieces in a bald-faced attempt to be “destructive of racial tolerance”. The provocative “manner” in which Bolt bent his keyboard was crucial.
“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,” he said.
While Bromberg ruled the articles could not be “republished”, the two racially offensive stories — “It’s so hip to be black“ and “White fellas in the black” — were still live on the Herald Sun website this morning. The nine had requested that the two stories and two additional blog posts be removed from the internet and that the paper be prevented from publishing “substantially similar” content in the future.
Outside court, Bolt sparring partner and former ATSIC commissioner Geoff Clark, decked out in traditional garb and smeared with ceremonial ochre, said Bolt was a “serpent” that had his head chopped off. “Let’s hope that he doesn’t grow two heads,” he said.
The wheelchair-bound Pat Eatock slammed Bolt’s journalistic credentials: “The research Mr Bolt claimed to have done all by himself and read thoroughly was absolute nonsense. He would have been kicked out of university in first year …”
Eatock also called on journalists to clean up their act: “We expect truth and honesty from newspapers, whether it’s opinion or not it has to be based on fact, not on fiction.”
After a torturous 10-minute delay, Bolt read out a short statement saying he needed to read the full judgement. He refused to answer questions before the baying media pack.
“This is a terrible day for free speech in this country,” he said. “It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves. I argue then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings.”
Yorta Yorta elder and popular Melbourne University lecturer Wayne Atkinson said the case was a “big win” for the next generation of Aboriginal people.
“They can now walk tall wherever they go and not be subjected to those sort of constant negative derogatory terms to put people down,” he said. “Our case has been vindicated and we’re very pleased.”
As Crikey reported in May, the Herald Sun and other News Limited outlets will almost certainly launch a full-scale assault on the decision on free speech grounds. Yesterday, covering his left flank, Bolt met with leading unionist Paul Howes, who has previously delivered a speech to the conservative Institute for Public Affairs branding the trial an Orwellian disgrace.
Bolt and his legal team, led by News Limited lawyer Justin Quill, are expected to appeal the judgement all the way to the High Court, with Ron Merkel, QC, for the nine, said to be champing at the bit to again make history and compound the career carnage for Australia’s most popular columnist.
pedantic but important point any appeal will be to the full court of the Federal court not the High Court.
Ten Hail Mary’s and a couple of Our Fathers should do the trick, lad. Now off you go and stop writing that crap, it can’t be that hard.
They are bound to appeal it, and then if and when they lose again, they will go on with their misinformed erroneous nonesense in more subtle ways. Mr Bolt is a tragic embarrasment to this nation.
Good.
Justice from the legal system for a change. It was never about free speech. It never is with him. It is about what he can say and get away with.
He tried it on, he knew what he was doing, he even “planned” it by “researching” it.
He asked for it and he got it. I hope his owners leave him in the pound.
But will this shut the Bolter up? One can only hope…
I note the description of Bolt as a journalist. This recalls the British Profumo scandal of some years back in which the tell all call girls described themselves as models. This prompted the Professional Models Association to issue a statement indicating its membership regarded the aforesaid call girls as journalists.
I’m on the side of the appellants and am delighted by this decision. This is not about free speech, it’s about the ‘free for all’ behaviour of a so-called journalist who used his prejudices to print lies and distortions that caused harm and distress to those involved.
I hope that any appeal gives the same response. It’s interesting that the Murdoch rags rant on about ‘abiding by the law’ but Andrew Bolt has refused to apologise as ordered by the Judge! Typical! He thinks he’s above the Law! Gross arrogance!
@Lawyercat first yes, but our info was that it is expected to go all the way to the High Court. Have added “all the way” to be clear.
Of course “people should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying…”. But should they be free to do so without reference to objective reality? Bolt was clearly wrong in this instance with regard to the people that he mentioned (para 10 of the judgment). But is J Bromhead effectively saying that
cannot exist, or if they do, that they cannot be publicly identified as such?
* “the watertight 15-minute summary of judgement” - what on earth does that mean?
* “Bolt was also a sloppy journalist, Bromberg said” - no, he didn’t
* “had cynically penned the pieces in a bald-faced attempt ” - again, the judge didn’t say this
* “a torturous 10-minute delay” - did you really mean “torturous”, and torturous to whom?
* “popular Melbourne University lecturer” - popular among whom?
* “a full-scale assault to the decision ” - I’m open to correction, but I think that one launches an assault “on”, rather than “to”
* “his legal team, lead by News Limited lawyer ” - that’s “led”, not “lead”
* “compound the career carnage” - one would have thought that this decision would have precisely the opposite effect, given Bolt’s target audience
In other contexts Bolt would be arguing that the decision of the umpire is to be respected. However his propensity to make stuff up has been brought into question. No journalist should be able to vilify a group of people by making things up.
If the Liberals still have “Howards”capabilities; this decision will deliver more votes to the Liberals. IMHO. It is so difficult to prove intent to be malicious and do harm.
A major victory but I honestly don’t know which road our divided society will take.
wbddrss
Thank you Your Honour, you have confirmed what I have thought of Bolt all along. I have never believed he had the nous to be part of the right wing conspiracy, I have always thought he was just had no clue about how to do his job.
Two good decisions inside a month …. If this keeps up I will have to look around and see where I dropped my opinion on the legal system.
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,” he said.
I wonder if this could apply equally to Bolt’s reporting of climate change issues.
Bolt’s work contained factual errors, distorted information and thus misinformed his readers. His intention was to offend, humiliate and deride Aboriginal people. The right of freedom of speech should not be allowed to be abused by using it for spreading divisive and false propaganda. Free speech my foot!
@ Mark Duffett
Your comment makes good sense. I would suggest however that a criterion should be that they identify with aboriginal people, and are also accepted as aboriginal by other aborigines.
Perhaps there may be legitimate points to be made in how awards or prizes are determined in any contest which specifies a certain ethnicity to participate. But judging by his efforts in this case Andrew Bolt is certainly the wrong person to be entering this debate.
With perhaps a few exceptions rarely should any subject be a “no-go area” for debate but should always be entered without the mean spiritedness of Bolt and in his case, using “facts” which are just plain incorrect to prove his case.
The awarding of any art prize for instance, whether it be the Archibald, the local municipal show or for Aboriginal art, is frequently surrounded by controversy. But in such instances it is the art judges involved in assessing the merits of entries, and indeed the qualification for entry. The art judges have the responsibility for assessing criteria and if the community from which the judges are chosen, whether that be National, local, or ethnic based disagrees with the approach of a judging panel it is the community itself that has the power to make changes.
Ed: Post slightly edited. We won’t tolerate personal slights against the parties involved.
“Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imaged practises or traits of those people is also destructive of racial tolerance.”
Nothing to do with Racial Tolerance. The question was whether we tolerate anyone getting public money under false pretences. That you decide under standard slander or libel laws.
It’s not the first time this act has been utilised at the personal whim of magistrates, according to their personal politics.
It’s a real shame Judge Bromberg used it that way. I understand that he may be particularly sensitive to any hint of racism, but this is essentially about fraud. The general public knows it quite well, and the alienation this produces between the People and social institutions can only end in tears.
Such a typical Liberal, “Free Speech” only applies when it suits their agenda.
My understanding of a person’s ‘right’ to claim aboriginality, is that they are recognized by others to be aboriginal. It’s everyone’s right to have their claims as members of a certain race or ethnicity respected, not violated and abused!
There are aboriginal people with fair skin, hair and green eyes? They have the same rights to their nationhood as I do!
The issue is, that nobody queries my claim to Irish ancestry - my grand kids who take after their Mother with olive skin, brown eyes and curly hair and other attributes of the Mayans from Central America would probably not be queried as having the Irish/British/Dutch ancestors - without question? Why aren’t aboriginal people allowed the same right? Like the rest of us, aboriginal people come in different colours, shapes and sizes. The issue in this case were the falsehoods and the whole tone of the article? It was offensive and made them out to be opportunists - without any contact with them for their input/history but most importantly it told lies!!!
The question that is relevant is, would Bolt conduct his ‘articles’ in the same manner about anyone else? I suggest not, and that’s what made his ‘pieces’ so offensive. They weren’t part of a discussion on multiculturalism, they were offensive and racist, without fact/s!
Also on a side note, I find it funny that both of those articles written by Bolt have comments disabled. Couldn’t possibly imagine why…
Ed: With good reason, indeed. Understand the frustration of moderation but we can’t tolerate personal insults in discussion of this case.
It is really easy to dislike Mr Bolt’s output because I don’t like Mr Bolt.
Never-the-less I spent a few moments in some simple research, and discovered, inter alia, that the “Black Women’s Action in Education Foundation Scholarship” had been renamed after its founder – Roberta Sykes. It clearly appears to be open to males and females.
This is a quote from the Griffith University website: “Roberta Sykes was the founder of Black Women’s Action in Education Foundation, which was formed in the early 1970s. BWAEF grew out of a need for an organisation whose primary focus was to support Australian Indigenous women scholars in educational pursuits. From the mid-1980s,BWAEF enabled a number of Indigenous women to undertake postgraduate studies at Harvard. Over time, the ambit of funding was expanded to include support for Australian Indigenous men attending Harvard, and then also for Indigenous postgraduates to attend other overseas universities.”
I see from all that came before my comment, Andrew Blot has a lot of fans - I think NOT! This time the Blot has been helped down from his nearly always (I’m a journalist and I know everything) arrogant stance to provide yet another “most humbling” experience for his employers the News Ltd rags.
@Stiofan fixed up the two literals.
I have been asking for a ruling from the press council about editorial lies dressed up as “opinion”, like the Australian for the past 4 years running the lie that pushing away refugees is legal.
Even after the High court ruling they said the same thing with Paul Kelly and Shamaham claiming the court re-wrote the law.
There has to be a rule that editorials have to be based on fact.
Ed: Edited slightly. You know we don’t like name-calling, Marilyn.
I like the part of the judgement regarding facts. A lot of limited news and “entertainers” like Alan Jones are going to have to argue on facts. This could be a novel period in media coverage of politics. For example how many of Tony Abbots comments are going to have “not the opininion of this journalist or newspaper added to them.
Bolt is absolutely right that freedom of speech is essential in a strong democracy but included with that freedom is a responsibility for what you are saying to be basically factual and to abide by the various laws we have about racial vilification, libel etc etc.
I would imagine Bolt will claim the distinction of being in the business of opinion or comment, rather than journalism.
Ed: Edited slightly. Name-calling doesn’t cut it.
Liz45 “… It was offensive and made them out to be opportunists - without any contact with them for their input/history but most importantly it told lies!!!”
So do the prosecution undert Slander or Libel, like I said.
Of general use for politicals: There’s nothing worthwhile about supporting thieves. Enron’s thieving CEOs have nothing to do with the free market, capitalism or democracy, things I value.
Neither is it worthwhile for the Left to support the Billion Bucks per year that went into ATSIC, for about eleven years, say. Think what a Billion per year could have done given directly to the people in the settlements, instead of the bank accounts of commissioners.
Everyone knows it. Making a case for such characters increases general hatred, not the other way round.
The attitude of the Herald Sun, and the apparently bottomless well of money from which they are prepared to lavish support on their meretricious scribe, Andrew Bolt, makes their ‘Freedom of the press’ fulmination the sick joke it is.
Their concept of freedom means they are free to print whatever they please while the injured party is free to bankrupt themselves in an effort to clear their impugned name.
. I argue then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings.”
Not sure how he was trying to unite us. May I call him a hypocrite please?
@GDERTS - This is not about ATSIC - this is about a person taking advantage of his position to peddle untruths that are hurtful and demeaning to people - only due to their skin colour! That’s it! It’s not a decision or argument pertaining to other issues re indigenous Australians. For the record, there was lots of positive outcomes re ATSIC and the fact that Howard used the alleged behaviours of a few to make the rest without a voice says more about his views and attitudes to people of different races.
The Judge involved in this case did not introduce superfluous nonsense in his decision. I invite you to follow suit!
I’d hate to think that only “the Left” supported this outcome. I’d like to think that all decent people who believe in a fair go would also. There has been ingrained racism in this country for decades, centuries even, let’s get rid of its ugliness - which is destroying peoples’ psyche! I can’t imagine what it must be like to listen to your kids’ racist experiences on a regular basis!
Anyone who queries the difference in skin colour, sizes etc(like the rest of us) should look at the Deadlys at the weekend - apart from it being uplifting, it’s great entertainment. People of different ‘colours’ are nominated and win awards. Take a look! They’re all aboriginal - because they say they are, and others acknowledge their reality!
i find it personally offensive the thought of white men telling aborigines they’re not “aboriginal enough”. racist indeed.
Page 141 of the judgment - “our” Tamas?
Bolt may write in an odious manner, but I for one am prepared to let him write and publish. He may appeal to a segment of the population, but to the rest his writing will just reinforce how bigotted and small minded he is. I’m especially prepared to let him write since censoring him will only play into the hands of the wingnuts and fruitloops out there who will run screaming political censorship etc.
In his inflammatory manner, Bolt did raise a serious ethical/legal question about who can or cannot claim membership of a particular ethnic group. In the case of aboriganal groups a very important question given the money (tax payer and royalty) and land that goes with such membership.
Mark form Melbourne has a salient point.
Responsibility.
Everyone has rights and responsibilities.
Some people only believe in their rights and ignore or abrogate their responsibilities.
Limited News has made it an art form and destroyed their credibility in the process. Their support of the type of rubbish they serve up as journalists and politicians is an abuse of the process of free speech and they should be held accountable.
Its interesting how a social commentator on SBS or ABC mentioned last night in regards to the ‘assylum seeker’ issue that Australian’s go through cycles of fear and discrimination on different peoples coming or settling in Australia, for example the Chinese, Italians, Greeks, Vietnamese and now the Africans, sorry if I’ve left out anyone. But when its in regards to the ‘First Australians’ (who can’t go back to where they came from) the fear, discrimination and marginalisation has never gone away is always there subconciously or conciously, relentlessly driven home by individuals like Bolt and governments, Indigenous peoples are still not accepted in mainstream Australia.
Australian’s have a long way to go in accepting Indigenous peoples as equals and becoming educated on the true history of Australia. Who wants to be ‘tolerated’ in their own Country?
Bolt was racist in his comments on the 9 Indigenous peoples, whether main stream Australia cares or not.
Signed
Fair-Skinned Aboriginal and Torres Strait Islander
(I know who I am and where I’m from, no box can hold me, no sterotype can define me! And my Families love me)
PS: watch what you say, we are out there among you, interloping LOL!
This is a wonderful example of how something like Canada’s truth in media laws can work. It’s not an attack on free speech, blah, blah, blah. He can write what ever he likes. It is just that a court will review the work and if it’s found to be bogus then like in this case he will be found in breach. No slippery slopes, no attacks on democracy (when journo carp on about things like that, it’s just another way of them saying “We need to be like the miners, the unions and clubs and tell the public stuff you all, it’s all about me). The only difference is that the penalties need to be even harsher. Unfortunately in this case they are not, so he won’t think twice about it and will continue to live in that parallel universe where he and Alan walk hand in hand through the Garden of Eden.
I find everything the Dolt said in regards to Aboriginality offensive - like almost everything about that squalid personage.
And I find it unpleasant to say things that he is also saying (however cynically).
But, this is a terrible assault on free speech. “I may not like what you say, but I’ll fight to the death to defend your right to say it” etc.
In the long run, these types of findings always end up being of more use to the repressive parts of society. I don’t feel very comfortable about this at all, and I think it may indeed stir up further bigotry.
On another topic - in their defence of free speech, I’m sure the Herald Sun, enthusiastically supported by Tony Abbott, will soon publish jihadist articles explaining why westerners are inferior to fundamentalist Muslims.
Just as a matter of interest, do the targets of ‘free speech’ have any rights?
Or is it all one way traffic?
There is not really much left to say. Thankfully this case went the way it did. Otherwise it would open up a floodgate of racist talk that felt justified - all under the banner of “freedom of speech” of course.
Let’s hope that any appeal is equally defeated.
Very sadly the judgement passed down today will only encourage those who believe that the Judiciary is hell bent on preventing “solid citizens” from spouting their vitriol and bigotry against anyone who offends them.
No doubt Jones, Hadley, Price and Co will join the chorus in condeming the loss of free speech in Australia; what gross hypocrisy!
No doubt Abbott, Bernardi and Co with a wink and a nod will condone Bolt’s defense of the right to say what you think or as they grow bolder by the day actually condem the judgement.
Fair play, truth and balance are no longer an element in public commentry as the Right employs any tactic to win Government.
A decision of a court or tribunal is referred to as a “judgment”. It is never, in Australia or any English-speaking country, including England, referred to as a “judgement”.
So, a judge might exercise good or poor judgement when considering the evidence and formulating her judgment in a case.
I think where Bolt went wrong here wasn’t with his views which should be protected by freedom of speech, but the fact he named names.
Should have kept his opinions general and not specifically target certain individuals.
Yes Journalists and Commentators are different, the former needs to be balanced the latter can speak their mind, and whether you read or listen to either is up to you.
Yep, in his determination the judge exercised free speech.
I wouldn’t be holding my breath for an emergence of evidence based opinion pieces from the right wing media, but a pleasing bloody nose to those who wilfully inflame and mislead the public. Kudos to the appellants for standing up to the bully.
I’ll save Ed the hassle:
Comment edited: DanBIllin, insults and name calling will not be tolerated regardless of accuracy.
Pedantic pedanticised : “Fair play, truth and balance are no longer an element in public commentry as the Right employs any tactic to win Government.”
Exactly as instructed by your teacher, Co-ordinator or facilitator: repeat and redirect.
Neither Philosophy, Religion or Thought.
Tedious.
When we take Government next election, Cultural Change has to be top of the list.
In the middle of a depression or not. PC gets sh**canned, along with all the other current manias.
“Just as a matter of interest, do the targets of ‘free speech’ have any rights?”
Yes, we all have the right not to be slandered or libelled. But we don’t have the right not to be offended.
@ SB.
Bolt Is a commentator. This judgement proves professional commentators (paid to write opinions) also have to give that opinion based on fact.