Federal Court upholds the right to be free from racial discrimination

Eatock v Bolt [2011] FCA 1103 (28 September 2011)

Summary

Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”

Facts

In 2009, Bolt published two articles – “It’s so hip to be black” and “White fellas in the black” – targeting a group of highly successful Aboriginal people as exemplifying the ‘trend’ of so-called ‘fair-skinned Aboriginal people’ choosing to identify as Aboriginal to gain access to personal and career-based benefits and entitlements, ahead of more deserving darker-skinned Aboriginal people. The articles emphasised the physical characteristics and biological descent of the named Aboriginal people, undermining their legitimacy to call themselves Aboriginal, instead referring to them as ‘political Aborigines’. In response, Aboriginal activist Pat Eatock and eight of the other Aboriginal people named in the articles commenced proceedings in the Federal Court, seeking an apology and injunction on re-publication.

Decision

On 28 September 2011, Bromberg J determined that the articles were reasonably like to offend, insult, humiliate and intimidate ‘fair-skinned’ Aboriginal people under section 18C of the Act. They implied that the fair-skinned Aboriginal people named were not genuinely Aboriginal, had chosen to falsely identify as Aboriginal, and that skin colour is an accurate indication of Aboriginal identity. Bromberg J emphasised that each of the Aboriginal people targeted by Bolt genuinely identifies as an Aboriginal person, and is entitled to do so. They did not ‘choose’ to be Aboriginal, and did not illegitimately or opportunistically use their Aboriginal identity for material gain. This was assessed according to the standards of a reasonable and objective fair-skinned Aboriginal person, without importing general community standards, because to do so would run the risk of reinforcing prevailing prejudice antithetical to the promotional purposes of the Act. Bromberg J also considered how the articles may affect younger and vulnerable Aboriginal people feeling as if they cannot fully identify as Aboriginal for fear of pressure, public disdain or loss of esteem.

Section 18D provides that reasonable and good faith public comments made in the public interest from being unlawful. Bromberg J found that the style, language, manner and errors within the articles prevented Bolt and HWT from claiming this exemption. While it is lawful to publish articles dealing with racial identification, including challenging the genuineness of the identification of a group of people, it is not lawful to do so in the manner in which Bolt wrote the articles in question. The articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language. In this sense, the finding of unlawfulness was the same as would have been available under defamation law by virtue of the errors in research and reporting, contrary to journalistic guidelines.

On 19 October 2011, Bromberg J ordered the Herald Sun to publish a 500-word corrective notice next to Bolt’s column twice over the following 14 days. Re-publication of the articles was restricted to ‘historical or archival purposes’, and only where accompanied by the corrective notice. The orders were meant to redress the hurt of the Aboriginal people affected, restore the esteem and social standing lost because of the Articles, inform people about the wrongdoing of the articles and negate the dissemination of racial prejudice.

Relevance to the Victorian Charter

Whilst the decision does not involve application of the Victorian Charter, the case raises interesting questions around balancing the right to be free from racial discrimination against the right to freedom of expression. Issues of censorship, free speech, political correctness and the scope and constitutionality of Part IIA of the Act have also been canvassed in the extensive commentary on the decision.

Given the nature of much of the media reporting on the decision, an observer might be forgiven for concluding that the decision was somehow unprecedented or a departure from accepted legal principles. Arguably the judgment itself is not a radical or unexpected application of the Act. Also of note is the fact that the strategy employed by Bolt and HWT appears to have put him at a significant tactical disadvantage in regards to establishing a defence under s 18D (see para 367), which no doubt contributed to his ultimate failure. One hopes that the Federal Government will be able to bear this in mind and disregard the media hyperbole when grappling with these policy issues in the context of current reforms, namely, the review of federal anti-discrimination laws currently underway and the constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Read a news item and summary of the judgment prepared by the Equal Rights Trust, an international NGO working to combat discrimination and promote equality as a fundamental human right.

The original decision can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

The orders can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1180.html

Lee Carnie is a volunteer and Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.