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<p>Justin McManus</p>

Justin McManus

Andrew Bolt addresses media after the judgment

One Year On: How To Twist And Shout Down A Legal Judgment

During the 12 months since journalist Andrew Bolt was found guilty of breaching racial discrimination laws — on the basis that his published facts were wrong — error and invective have continued to warp the debate.

Has Australia just experienced one of the great media heists in modern history?

It's a year since the Eatock v Bolt decision was announced on September 28, 2011, in the Federal Court, a landmark case brought under Australia's Racial Discrimination Act. And much of the subsequent commentary has been — like the Andrew Bolt articles that triggered the case — filled with errors and designed to sting.

For example, Justice Bromberg's judgment has been seriously misreported. Parts of it have been ignored completely.

It's telling that we should still need to ask: What was the real reason Bolt and the Herald and Weekly Times (HWT) were found to be in breach of the Act? How many untruths were published? And what motivated this "offensive conduct reinforcing, encouraging or emboldening racial prejudice"?

The applicant was Pat Eatock, a fair-skinned Aborigine, who brought the suit on behalf of herself and others, who claimed Melbourne's Herald Sun had accused them of pretending to be Aboriginal to gain benefits fraudulently. Attempts at conciliation had failed.

Rupert Murdoch’s HWT declined to appeal. Instead, it commenced a vigorous — and extraordinarily successful — campaign in the court of public opinion to undermine the judgment.

The applicants claimed two of Bolt's articles published in 2009, titled 'It's so hip to be black' ('White is the New Black' online) and 'White fellas in the black', were derisive and riddled with fabrications.

Justice Bromberg found in their favour. His findings were "that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles" (summary 17); and:

"I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D [guaranteeing free speech]. 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." (summary 23)

Rupert Murdoch's HWT declined to appeal. Instead, it commenced a vigorous — and extraordinarily successful — campaign in the court of public opinion to undermine the judgment.

To understand the process of attempting to undermine the judgment in the minds of readers, we need to grasp the intent of two provisions in the Racial Discrimination Act.

Section 18C requires that the articles were "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people …" Hence for the HWT to have been in breach of the law, offence taken must be established.

The judge found that the applicants had been offended. That wasn't hard. Both sides knew this to be so beforehand. The contest wasn't about whether or not offence had been caused.

<p>Courtesy Federal Court of Australia</p>

Courtesy Federal Court of Australia

Justice Mordecai Bromberg

The case was about 18D, the vital section guaranteeing liberty of opinion and freedom of speech. "Freedom of expression is an essential component of a tolerant and pluralistic democracy," Bromberg asserted early in the proceedings.

The judge made it clear that 18D protects any opinion, however obnoxious or offensive — provided it is genuinely held, for academic, artistic or scientific purpose, or in the public interest, or in publishing a fair and accurate media report.

He repeatedly reinforced this: "Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion."

The issue central to the case was not whether Bolt's article was an expression of opinion, but whether the factual allegations on which that opinion was based were accurate. This question occupied most of the court's time and is the subject of the greater part of the judgment.

So the case was clearly not about freedom of opinion. It was about freedom to spread untruths.

In Bolt's articles Bromberg found inferences which leave "an erroneous impression", "gratuitous references" based on "a selective misrepresentation", and omissions which "meant that the facts were not truly stated".

He found assertions "shown to be factually erroneous", comment that was "unsupported by any factual basis and erroneous", asserted facts that were "untrue" and several contentions that were "incorrect" or "grossly incorrect".

His key finding was that "in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue". (378)

“Freedom of expression is an essential component of a tolerant and pluralistic democracy,” Bromberg asserted early in the proceedings.

For example, Bolt wrote that Anita Heiss had won "plum jobs reserved for Aborigines" at Koori Radio, at the Aboriginal and Torres Strait Islander Arts Board and at Macquarie University. (381) The Koori Radio job was a voluntary unpaid position. Neither the arts board position nor the university job was reserved for indigenous applicants. Three untruths there. In one sentence. More damagingly, Bolt asserted that Heiss had made a conscious "decision to identify as Aboriginal" and was "lucky, given how it's helped her career". Bromberg found, however that Ms Heiss "has Aboriginal ancestry and communal recognition as an Aboriginal person." And further, "She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career."

Bromberg's conclusion was emphatic: "Untruths are at the heart of racial prejudice and intolerance."

The day after the judgment, the dissembling, the skewing of commentary away from the core of the judgment began. The Herald Sun led the resistance with a front page declaring 'THIS IS A SAD DAY' with a large photo of Andrew Bolt looking, well, sad. Bolt himself declared it a "terrible day for free speech in this country".

It was then widely asserted in Murdoch outlets, much of the rest of the media and even some legal opinions that the decision had attacked and diminished freedom of opinion.

A Herald Sun piece titled 'Ruling against Andrew Bolt will harm healthy debate', say libertarians' called for the Act to be reviewed.

The article quoted 10 'libertarian' commentators besides Andrew Bolt. On careful reading, however, only two were critical of the decision: academic and former Murdoch employee Andrew Dodd and Institute of Public Affairs director John Roskam.

<p>AAP Image/Julian Smith</p>

AAP Image/Julian Smith

Pat Eatock leaves the Federal Court in Melbourne, March 2011

The campaign was underway. Brendan O'Neill wrote in The Australian, "For simply expressing his opinion about the weird fluidity of modern-day identity politics, Bolt was found guilty of racial discrimination."

O'Neill called the judgment "shocking" and an "alarming attack on journalistic liberty", and described it as having "spectacularly illiberal implications" and as serving up "a double whammy of censure and censorship".

O'Neill's published article made no reference to the multiple errors of fact made by Bolt in his articles. He did quote paragraph 23 of the judgment, shown in full above, but the published piece omitted the two key phrases, thus:

"He [Bromberg] slated Bolt for 'the manner in which the articles were written', for their 'inflammatory and provocative language'."

What happened to "they contained errors of fact" and "distortions of the truth"? Gone. Edited out. Bolt himself was quick to quote O'Neill's treatise.

Former Liberal candidate Chris Kenny also railed in The Australianthat the finding "has drastic implications for free speech". He acknowledged there were misrepresentations. But, hey, so what?

"Errors are always unfortunate and sometimes egregious but in this case they are hardly the central point," Kenny wrote. "Some of what Bromberg cites as factual error is more a matter of emphasis. It is a canard to suggest the case was about disputed facts: it was about apparent offence caused by Bolt's controversial and strongly worded opinion."

Kenny then emphasised the key Murdoch talking point: "It is Bolt's opinions and the way they were expressed that are at the heart of this case, not his facts."

Incidentally, Kenny erroneously referred also to "the now banned columns". They were not banned. They are still accessible online, with the required corrective notice.

The Institute of Public Affairs (IPA) has vigorously backed News Limited. An article by the IPA's James Paterson achieved wide circulation the next day via The Drum. It was quick to assert that Bolt had been prosecuted "for expressing an unfashionable opinion".

So the case was clearly not about freedom of opinion. It was about freedom to spread untruths.

That column — also posted on the IPA website — completely ignored the untruths, misrepresentations and omissions made by Bolt, noting disingenuously that he had merely written "a couple of controversial articles".

Not surprisingly, Fairfax media ran significantly different analyses. "Bolt was wrong. Spectacularly wrong," wrote David Marr in The Sydney Morning Herald.

"Freedom of speech is not at stake here," Marr argued. "Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism. He's saying that if Andrew Bolt of the Herald Sun wants to accuse people of appalling motives, he should start by getting his facts right."

This was a minority view, however, drowned out by louder voices. Among lawyers to comment was Professor James Allan of the University of Queensland. In The Australian he called for the Act to be repealed. "Start with section 18C, the provision relied on against Bolt," he wrote.

Allan continued, "But on top of that, Bromberg decided that the onus of proof for triggering the section 18D exemption lay on Bolt and, anyway, that the articles as written were not reasonable nor written in good faith. It is not at all clear on what basis the judge comes to those latter conclusions other than he thinks Bolt was being gratuitously offensive, that Bolt made a few factual errors…"

Firstly, onus of proof for 18D has always been on the respondent. (paragraph 337) It rests with the applicant for 18C.

Secondly, the judge made the basis for his conclusions perfectly clear: "The deficiencies I have relied upon … are about deficiencies in truth. The lack of truth in conduct which contravenes 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness by s 18D." (386)

Thirdly, there were not "a few factual errors". There were many. Some "grossly incorrect".

So how many errors were there? In all the volumes of commentary it seems no-one has counted them.

The Herald Sun's hometown rival newspaper, The Age, began a list in the early aftermath of the judgment, in an article gleefully titled "Andrew Bolt: Australia's least accurate columnist?"

The Age was content to stop at 13. Bromberg in fact identified at least 19 errors — in two articles. (Paragraphs 351 to 413)

Since the judgment, comments in the blogosphere have amplified the flawed analysis of the judgment and Bolt's professionalism.

Henry Thornton declared, "Bolt's mistake was to put unwelcome truths into print, to point out that the Emperor has no clothes …" Again, there's no reference whatsoever to the untruths.

And, bizarrely, "Honesty about this [Aboriginal and Torres Islander] industry is now a violation of the law as understood by the political activists who have captured control of the judicial system."

Sustained commentary throughout the past year has reinforced these strained interpretations. Despite claiming that he had been gagged, Bolt himself has maintained a continual offensive.

“My columns were figuratively burned — that’s what it was, it was book burning.”

Last month, in The Australian Financial Review, Bolt told former opposition leader Mark Latham he was still "very depressed, very alarmed and very cynical about these laws".

"What does it say about free speech?" he asked the former Labor leader. "My columns were figuratively burned — that's what it was, it was book burning."

The remarkable success of the Murdoch campaign was confirmed last month when Opposition Leader Tony Abbott promised to repeal part of the Racial Discrimination Act.

"The article for which Andrew Bolt was prosecuted under this legislation was almost certainly not his finest. There may have been some factual errors. Still, if free speech is to mean anything, it's others' right to say what you don't like, not just what you do. It's the freedom to write badly and rudely," Abbott reassured the IPA.

Wrong and wrong. There's nothing 'may have been' about the errors. They were clearly identified — 19 of them. And the Act does not impede bad or rude writing. It impedes fabrication.

What the judge has made of the year's commentary we don't know. But we do have the view of one of his former associates.

Earlier this month Benedict Coyne, who previously spent time as Justice Bromberg's associate, responded to Mr Abbott's promise. "Mr Bolt's shoddy journalism, however, is an unlikely candidate, on its merits, to give rise to a reconsideration of part IIA of the RDA.

<p>Courtesy Institute of Public Affairs</p>

Courtesy Institute of Public Affairs

Bolt addressing an event on 'freedom of speech in the western world', February 2012

"The lesson that is ripe to be drawn from the facts of this litigation is, we suggest, not that section 18C should be repealed but, rather, that Mr Bolt should go back to journalism school."

Finally, why so many untruths in Bolt's pieces? Were they accidental? How so with "editorial oversight by an editor of the Herald Sun, whose function is to check articles and identify any changes that may be required"? (13)

These questions are left hanging in Bromberg's paragraph 458 regarding remedy, which has not been referred to in any analysis on record: "Mr Bolt and HWT contended that the terms of any declaration made should expressly state that the conduct in contravention of s 18C 'did not constitute and was not based on racial hatred or racial vilification'. It is contended that the inclusion of these words will facilitate the educative effect of the declaration made and contribute to informed debate. I do not regard the inclusion of the words suggested as appropriate."

So the question was left open: if, as Bolt and the HWT maintain, the articles were not indeed "racial vilification" and were not based on "racial hatred", then what were they?

Read more of Alan Austin, wherein he crunches the numbers on ministerial responsibility. Plus more profiles on public people, from Lang Hancock’s strong-arming of politicians to Fawzia Koofi, risking her life to run for Afghanistan’s highest office.

14 comments on this story
by Luke Turner

This article is based upon the premise that causing offense or insulting someone is sufficient justification for censorship.

If so, why do we stop at offense or insults related to racial matters? Why not legislate against religious insult? (Probably many Muslims and some Christians would be pleased with this).

September 28, 2012 @ 12:59pm
by Fiona

Succinct, thought-provoking article, that once again reinforces one of the many, MANY reasons I dislike Bolt and the mainstream media so much.

Thank you Alan for sharing this gem!

September 28, 2012 @ 1:10pm
by Peter Franklin

The article makes the issue clear, but still some readers don't seem to understand the basis of the judgment.

September 28, 2012 @ 2:34pm
by bigears

@Luke Turner: What a miracle you are; you can write but you cannot read. Highlight with words "factual" and "errors" and read the article. Race, offense, insults etc "got nuff'n to do with it".

September 28, 2012 @ 2:50pm
by Bill

"During the 12 months since journalist Andrew Bolt..."
Let me stop you there...

Bolt is a journalist inasmuch as his writing is published in a journal. As to the more recognised definition of the word, Bolt has not been a jounrnalist for a long time. What was the last story he broke? Bolt is a commentator, not a journalist.

Even commentators and opinion writers need to have their facts right though.

September 28, 2012 @ 4:24pm
by Marcus

Re. Luke,

How do you read this article and then post a comment like that?

Look, it's pretty simple. Free speech has never been an absolute freedom. Hence defamation, libel etc. Now think of the RDA as collective defamation/libel laws, where a group rather than an individual is the plaintiff. As the article explained, 18D of the RDA makes an exception for anything that is either true, or important in some other respect. Essentially, 18D overrides 18C where the published piece serves any purpose whatsoever.

In any case, do you seriously think that Andrew Bolt has been censored?

As a final note, I think I've figured out a mathematical truth of Australian media:
The size of Andrew Bolt's metaphorical microphone = The level over idiocy and bigotry in Australia.

September 28, 2012 @ 4:28pm
by John Thompson

Bolt's 19 errors of fact and in this case pale into insignificance compared with his reporting of climate change matters.

September 28, 2012 @ 5:07pm
by Sarah

Thanks for this. I'm not sure we can say the campaign against the decision has been "extraordinarily successful" even if it's extraordinarily obfuscating. It is what one would expect from the IPA, News Ltd, Bolt the Martyr, and O'Neill (who sticks up for all of the little guys and non elites ... and Rupert Murdoch). The govt shows no sign of amending RDA. Abbott, if he gets in, has to get it through the Senate, & he has a lot of promises perhaps to deal with first. Also- he's only committed to paring back 18C not repealing it.

September 29, 2012 @ 11:42am
by Nathan

Thank you for the article. It is a timely piece that helps clarify our obligations under freedom of speech.

I am also glad that the situation has been explained, because far to many people are using this incident as proof that we are censored by Aboriginal activists.

I am aware that plenty of people form Bolt's opinion. That Indigenous Australian's have it 'so easy'. I wonder why Bolt has not claimed Aboriginality, nor every one else that holds this view...

I am also aware that many people base their similar opinion on 'information' that they 'heard from a mate'. It really bothers me that a paid "journalist" and the publisher encourages and supports this belief with the same mis-information available from the homeless guy down the road that can not read!

I do hope that compensation was awarded so that Bolt and the publisher are discouraged from publishing untruths again. Their paying readers should be compensated too, they did not get what they paid for: informed opinions/facts.

If I was one of them I would consider changing news sources....

September 29, 2012 @ 2:45pm
by Sancho

The weak point isn't the conviction, but that it occured under the Racial Discrimination Act - a piece of legislation conservatives believe is a misguided attempt to ignore the obvious superiority of Europeans over lesser races.

If it had been prosecuted under defamation laws it would have had more impact.

October 1, 2012 @ 10:50am
by Alan Austin

Interesting observations. Thank you.

@Sancho: Yes, the question of the Racial Discrimination Act vs defamation action is an intriguing one. I don’t know why the applicants chose the former. Perhaps it was to highlight the concern that the HWT’s actions in publishing the articles were racially offensive – as the judge indeed found – not just personally damaging.

One outcome is that this case will now serve as a precedent in other jurisdictions – Canada, New Zealand, the UK and elsewhere – which have equivalent anti-racial vilification laws.

@ Nathan: No, the Aborigines who ‘won’ the case received no financial compensation, apart from legal costs paid by HWT. Had they wanted monetary damages they could have taken defamation action. They would almost certainly have won for the same reasons the action under the RDA succeeded.

Some believe the HWT actually got off lightly. Apart from paying all legal costs, their only other ‘penalty’ was a corrective notice to be published wherever the original offending articles appear.

Some say – and I agree – the notice is a difficult statement to read which effectively blunts the severity of the judge’s finding.

Nevertheless, the judgment is now on the record internationally forever.

October 3, 2012 @ 8:49am
Show previous 11 comments
by WhiteTower

Once again, progressives are on the citing edge of restricting freedom -- not very "progressive" of them after all.

September 18, 2013 @ 5:58pm
by Frank

Andrew Bolts article was factually flawed and it was rude and it was offensive. But it was not "racial vilification". People should not have the right to sue for being offended. They should have the right to sue if their reputations have been impugned. It should also be noted that the plaintiffs did not launch individual actions but launched a class action. Further it should also be noted that some members of the plaintiffs had also engaged in similar actions. One in particular seems very memory spare over the remark by said person against a now Female Indigenous MP. Or have people forgotten the Q&A episode? Freedom of speech allows someone to express their views freely. Weather you like em or not. Should we deny the right of people who believe in a "God" (the invisible man in the sky) to claim homosexuality is a abomination? No. As disgusting and stupid the Bolt articles were, he believed them and they in fact harmed no one. Should a scientist who is named in an article as a Devil worshipper supporter of unborn child murder have the right to sue the publisher? No. And I am Left Wing. Being offended is not enough, nor is it enough to claim the article is factually flawed.

November 27, 2013 @ 1:44pm
by Odalaigh

Bolt's article fitted with the other 'news' in the Murdoch press and radio, full of lies.
Good to read( Essential polling) that only about 25% of Tele and Sun Herald readers believe what they read in those rags.
It is about facts, not opinion. And it is about labelling opinion as just one persons rant and factual news as something else.

December 19, 2013 @ 2:26pm
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