Sydney Morning Herald 28th September 2011
Andrew Bolt has lost his race discrimination case in the Federal Court of Australia.
One hundred and seventy-five days after the Herald Sun columnist's defence lawyer Neil Young QC delivered the final words of his two-day closing address, Justice Mordecai Bromberg delivered a stinging judgment in which he found Bolt guilty of offences under section 18 (c) of the Racial Discrimination Act.
“I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely ... to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles,” Justice Bromberg said to a packed courtroom in Melbourne.
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Bolt huddled with his legal team after the judgment. They have previously flagged their intention to appeal in the case of a loss.
Outside court, the applicants in the case were jubilant.
The case was brought by nine "fair-skinned Aborigines," as Justice Bromberg called them, against Bolt and his employer, the Herald and Weekly Times (as publisher of the Herald Sun), over two Bolt articles published in the paper in 2009 and two posts on Bolt's blog on the paper's website.
They had argued that Bolt's writings offended, upset and demeaned them, and that the articles had sought to imply that they identified as Aborigines in order to gain career, social or other advantage.
Bolt's argument that as lighter-skinned Aborigines the nine had multiple identities open to them meant the case became unofficially a test of definitions of Aboriginality.
Officially, though, it was a test of the balance between free speech and protection from offence.
This morning, Justice Bromberg came down in favour of racial tolerance.
“People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying,” he said.
"On the basis of my findings, I am satisfied that each of Mr Bolt and the Herald & Weekly Times engaged in conduct which contravened section 18c of the Racial Discrimination Act."
Bolt decision: guilty of discrimination, judge declares
Andrew Crook Crikey 28th September 2011
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 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.