The Nuts & Bolts of the Racial Discrimination Act, 1975

1. The Nuts & Bolts of the Racial Discrimination Act, 1975

2. The case was lodged on behalf of all people who were recognised under law as Aboriginal persons, and were reasonably likely to be offended, insulted, humiliated or intimidated by the publication of the articles. Nine individuals were named as group members in the action: Pat Eatock, Professor Larissa Behrendt, Professor Anita Heiss, Dr Wayne Atkinson, Graham Atkinson, Geoff Clark, Bindi Cole, Leeanne Enoch and Mark McMillan. Bolt Case, 2009-2011

3. Articles conveyed the following imputations • The persons identified in the Articles, were not genuinely Aboriginal and were not bona fide in claiming to be, and identifying as, Aboriginal persons; • The persons described in (a) merely pretend or claim to be Aboriginal persons so they can access the benefits that are available to Aboriginal persons; • The only genuine Aboriginal persons, who may be treated as making a bona fide claim to be, and to identify as, Aboriginal persons are persons whose parents are both of Aboriginal descent and who have darker rather than fairer skins; and Under Bolt’s criteria, persons having some Aboriginal descent but who are fairer rather than darker skinned, are disqualified from, and cannot properly be regarded as, genuinely self-identifying as, and being, Aboriginal persons.

4. Legal Proceeding • Holding Redlich acted on behalf of group that included Dr Wayne Atkinson and his Brother Graham who are Yorta Yorta Dja Dja Wurrung descends and are graduates and lecturers at the University of Melbourne. RDA,1975 was statute law that was used in the case, sec 18C, 18D. • Legal Council led by Ron Merkel QC (former Federal Court Judge) and Herman Bornstein QC who did the cross examination of Andrew Bolt who admitted that he made errors in reporting on members of the group and which was later confirmed in Justice Bromberg's judgement –will return to this. • Council argued that a selection of Mr Bolt's articles and blogs offended, insulted, humiliated and intimidated the group members. • The articles in question - “It's so hip to be black”, “White fellas in the black”, “One of these women is Aboriginal” and the blog entry titled “Aboriginal man helped” – challenged the right of light skinned people to identify as Aboriginal • Note there were two other articles that were not presented in which Bolt made personal attacks on the Aboriginality of Dr Wayne Atkinson and his brother Graham dating back to May 2004 and first raised during one of my lectures in this University in May 2004-see articles

5. Action brought under Section 18C, RDA, 1975 • Makes it unlawful, to do any act that would offend, insult, humiliate or intimidate a person or a group of persons, where that act is done because of the person's race. • Section 18D contains a number of exemptions that allows for the making of fair comment on a matter of public interest so long as you do so reasonably and in good faith. • RDA has a strong Freedom of Speech defence embedded within the law that ensures insulting or humiliating people because of their race or colour must be done reasonable and in good faith. • The ‘Fair Comment’ provisions of Defamation law are also relevant to the case.

6. Freedom of Speech v Defamation • ‘The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against this compliance with the law’. HWT should be thankful they're not facing nine separate defamation trials (SMH, 29 Sep, 2011).

7. Free Speech Protected • Bolt and his defenders are crying about an imagined right to unrestricted free speech. But speech is already restricted, for instance by Defamation laws that protect people’s reputations and by the Trade Practices Act, which outlaws false claims about products (Age, 2 October, 2011)

8. Defence of Fair Comment, sec, 18D, RDA, 1975 • Judge found that the defence of ‘fair comment’, which is also a defence in the Law of Defamation, requires that commentary be made on the basis of true facts. And that because of the factual inaccuracies, this could not be characterised as a fair comment. He also found that there was a lack of reasonableness and good faith on the part of Mr Bolt, because of the inaccuracies and also because of the manner of his mocking and satirical tone. • Section 18D, the defence section, is there to ensure that a public debate of this kind can be had. But it can't be had at all costs. It's possible to engage in a discussion about race, engage in a very critical discussion about race, but you must do so acting fairly and on the basis of true facts. And that is what was found to be absent by Justice Bromberg in the Bolt Case. • The Judge found that there was an infringement of Section 18C, that there was an imputation contained in the articles that would offend not only the particular group of people identified here, but a broader group of Aboriginal people, who would feel as a result of these articles, that they were not entitled to identify as Aboriginal, and that they would have the experience of having their successes questioned, and that other people might respond to them by thinking that whatever it is that they'd succeeded at in life was given to them on the basis that they were Aboriginal. • Finally, that there was a sort of dishonest decision to identify as Aboriginal, self-interested decision to identify as Aboriginal in order to receive benefits. And those three negative imputations were thought to be offensive not just to the nine people here but to the broader group of Aboriginal people. Analysis of Bolt Case, on Law Report, Radio National,4 October, 2011 http://www.abc.net.au/rn/lawreport/

9. 1995:Keating Govt Amended Section, 18D, to outlaw Racial Vilification • Made it unlawful for a person to do an act in public that is reasonably likely in all circumstances to offend, insult, humiliate or intimidate another person or group of people if that act is done because of the race of the offended person or persons

10. Articles from 5 May, 2004, 19 April, 2006

11. The Bolt Case • Bolt’s Articles cast aspersions about the Aboriginal identity of a number of named Aboriginal persons by questioning the motive of those persons for ‘choosing’ to be Aboriginal, as well as the basis for them identifying as Aboriginal. • The Articles implied that our choice for identifying as Aboriginal was opportunistic and for the purpose of providing us with financial and other benefits reserved for ‘genuine’ Aboriginal persons who are darker, rather than fairer, skinned Aboriginal persons. • By doing so, Bolt’s articles were reasonably likely to hurt, offend, humiliate and insult such persons.

12. Federal Court Findings • The Herald Sun columnist Andrew Bolt and publisher Herald & Weekly Times found guilty of engaging in unlawful racial discrimination. • The manner in which the articles were written was offensive and contained “errors of fact, distortions of the truth and inflammatory and provocative language”. Judge took into account the hurt and insult involved with the publication of the articles and found that the offensive conduct was “reasonably likely to have an intimidatory effect on Aboriginal people and in particular young Aboriginal persons”. • The judge noted that it was “not unlawful for a publication to deal with racial identification” but the manner in which the subject was dealt with must be reasonable and in good faith. He also emphasised that “people should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying”. • “The Court recognised that you can have a debate about racial identity but you must conduct the debate in an appropriate way. There is a balance between freedom of expression and freedom of identity. • “The court accepted arguments that Aboriginal identity is not „chosen‟, and not reserved for people with darker skin colour. People do not have the right to offend, insult, humiliate. and intimidate Aboriginal persons who don't fit their pre-conceived notions of what an Aboriginal person should look like.” • Justice Bromberg said the nine individuals who gave evidence in the case had identified themselves as Aboriginal since childhood. He said: “None of them “chose” to be Aboriginal and that none have used their Aboriginal identity inappropriately to advance their careers.”

13. Vindication of Aboriginality • Para 105 of full judgement: ‘The evidence given by Dr Atkinson was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Dr Atkinson having been raised as an Aboriginal person, he has and does genuinely self-identify as Aboriginal. He has Aboriginal ancestry and communal recognition as an Aboriginal person. He is an Aboriginal person and entitled to regard himself as an Aboriginal person within the conventional understanding of that description. He did not consciously choose to be Aboriginal. He has not improperly used his Aboriginal identity to advance his career. He is a highly respected and committed member of his Aboriginal community and is entitled to regard his achievements as well deserved rather than opportunistically obtained. I accept that he feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by his evidence’. From: Eatock v Bolt [2011] FCA 1103 (28 September 2011).mht

14. Outcome of Case • Very pleased with the outcome and the findings of the Federal Court in the Bolt Case. Free speech has nothing to fear from this Judgement. Justice Bromberg found that there is a right and a wrong way to go about exercising the value of free speech. That is, It cant be done by getting it wrong when it comes to the use of factual knowledge’. It cant be done by ‘distorting the truth’ about matters of public importance and it defiantly cant be done by using ‘inflammatory and provocative language’ to make personal attacks on individuals or by using value judgments to make false claims about people’s identity and cultural background. I think that is the essence of the key findings for the applicants and the Atkinson brothers. We’re pleased not just for us but for our family and the next generation coming through who have been reared in an environment in which they have been taught to be proud of their Aboriginality and to walk tall wherever they may choose to go in life. We are indeed a proud people who are more than willing to share our unique identity, cultural heritage and our family history with people from all walks of life. Thank You Dr Wayne Atkinson, Yorta Yorta Elder Senior Fellow School of Social and Political Science University of Melbourne

15. Annexure to Court Orders,19,Oct, 2011 • EATOCK v BOLT AND THE HERALD & WEEKLY TIMES PTY LTDCORRECTIVE NOTICEORDERED BY THE FEDERAL COURT OF AUSTRALIAIn legal proceedings brought by Pat Eatock against Andrew Bolt and The Herald & Weekly Times Pty Ltd, the Federal Court of Australia ordered that this notice, including the following declaration made by the Court on 19 October 2011, be published in the Herald Sun in print and online. The reasons for judgment of the Federal Court of Australia in this matter (including a summary of those reasons) are accessible from the Federal Court website [and in relation to the publication of this notice online – “and via the following link (insert hyperlink)”].The Court declares that:On 15 April 2009, the Herald and Weekly Times Pty Ltd published in the Herald Sun newspaper an article written for publication by Andrew Bolt under the title “It’s so hip to be black”. On or about 15 and 16 April 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White is the new black”. On 21 August 2009, the Herald and Weekly Times Pty Ltd published a second article written for publication by Andrew Bolt in the Herald Sun newspaper under the title “White fellas in the black”. On 21 August 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White fellas in the black” (collectively “the Newspaper Articles”).The writing of the Newspaper Articles for publication by Andrew Bolt and the publication of them by the Herald and Weekly Times Pty Ltd contravened s 18C of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:(a) the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have a fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are and are recognised as Aboriginal persons, because the articles conveyed imputations to those Aboriginal persons that: (i) there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and(ii) fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.(b) the Newspaper Articles were written and published, including because of the race, ethnic origin or colour of those Aboriginal persons described by the articles; and (c) that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth) because the Newspaper Articles were not written or published reasonably and in good faith:(i) in the making or publishing of a fair comment on any event or matter of public interest; or (ii) in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.

16. Appeal Process • Can be appealed to Full Bench of Federal Court, (three judges) and then to High Court • HWT for Bolt has till tomorrow to make appeal-wait and see