One Year On: How To Twist And Shout Down A Legal Judgment
By Alan AustinSeptember 28, 2012
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.
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.
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)
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.
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.
"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".
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.
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.
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.
"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?