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453:, said she was "very surprised" when Justice Bromberg decided to hear the Bolt case, given that “He was an active ALP person, he was active enough that he was in a faction, he ran for preselection... Obviously he would have had some views about , and perhaps he was not the best person to hear case.” Bromberg had run unsuccessfully for Labor preselection in Melbourne in 2001.
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program: "I think that there is an argument to say that people who've been subjected to this kind of insult, based on their race, especially since there are groups subject to historical disadvantage, are actually entitled to have the state intervene and say that there was an unlawful act here." Legal
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Justice
Bromberg also observed in passing: "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
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Justice
Bromberg found that it was reasonably likely that an ordinary person within the group of fair-skinned Aboriginal persons would have been offended and insulted by the newspaper articles, in particular the challenge to the legitimacy of the identity of those individuals and the concentration on
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persons in
Australia. Eatock alleged that the two newspaper articles authored by Bolt conveyed offensive messages about fair-skinned Aboriginal people, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal
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described
Justice Bromberg's interpretation of the RDA, and his application of it to Bolt's columns, as "profoundly disturbing" because it reinforced concerns that section 18C creates "one particular area of public life where speech is regulated by tests that simply don't apply anywhere else, and in
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published an article authored by columnist Andrew Bolt in its print edition, entitled "It's so hip to be black", and republished the article on its website with the title "White is the new black". On 21 August 2009, a second article authored by Bolt was published in print and online entitled "White
409:
told the same program that he disagreed with the decision, saying "we should ensure freedom of expression, and then find other ways of protecting or promoting freedom from racial intolerance and prejudice that don't infringe upon people's freedom of speech." Andrew Dodd, a former presenter of the
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Justice
Bromberg held that the exemption provision in section 18D of the RDA did not apply, because the publications were "not done reasonably and in good faith" in the making or publishing of a fair comment or in the course of any statement, publication or discussion for a genuine purpose in the
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Bolt himself described the decision as a "terrible day for free speech" in
Australia and said it represented "a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves. I argued then and I argue now that we should not insist on the differences
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as the defining determinant of racial identity. In addition, Justice
Bromberg found that it was reasonably likely that Eatock would be "humiliated and intimidated by her perception of the capacity of the articles to generate negative or confronting attitudes to her from others". Justice Bromberg
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That there are fair-skinned people in
Australia with essentially European ancestry but with some Aboriginal descent, of which the identified individuals are examples, who are not sufficiently Aboriginal to be genuinely identifying as Aboriginal persons but who, motivated by career opportunities
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A variety of journalists and commentators took issue with the
Federal Court's decision on the grounds that it restricted free speech on a matter of public interest, given Bolt's articles had addressed matters of public interest such as criteria for eligibility for public funds, money, jobs and
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program, described the decision as "a slap in the face for freedom of expression... because I think it does curtail the extent to which we are able to talk freely about issues that are difficult to discuss, which may have a public interest component, and which concern minority groups."
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presenter Daniel
Browning, who had been named in one of Bolt's articles, said that he had felt "humiliated" and "professionally undermined" by the articles, and suggested the restriction on freedom of expression could be justified.
435:" overtones and "I am concerned that people in some of the circles I mix, on my side of politics, increasingly seem to think that they should write, or invoke, or resurrect, laws that will shut Andrew Bolt up". The ABC's
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found that the articles were written "because of the race, colour or ethnic origin of those people". As such, Justice Bromberg held that the publication of the two articles contravened section 18C of the RDA.
258:(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
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prizes; but other journalists and commentators supported the case as an example of a legitimate restriction on freedom of expression. The political allegiance of the presiding judge to the
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267:(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment."
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public interest. Bromberg said that the articles contained "erroneous facts, distortions of the truth and inflammatory and provocative language".
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238:(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."
235:(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
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Fair skin colour indicates a person who is unlikely to be sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
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172:, suing on her own behalf and on behalf of people like her who have a fairer, rather than darker skin, and who are recognised as
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In publishing the two articles in question the defendants contravened section 18C of the Racial Discrimination Act 1975 (Cth).
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which judges - never, for all their pontifications, friends of free speech - get to do the regulating".
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available to Aboriginal people or by political activism, have chosen to identify as Aboriginal; and
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people. Eatock sought a declaration that the articles contravened section 18C of the
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descent, brought proceedings in the Federal Court against Bolt and the proprietor of
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found that the two articles authored by Bolt conveyed the following imputations:
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229:"(1) It is unlawful for a person to do an act, otherwise than in private, if:
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The other Aboriginal people involved in the case and called as witnesses were
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264:(i) a fair and accurate report of any event or matter of public interest; or
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255:(a) in the performance, exhibition or distribution of an artistic work; or
616:"Andrew Bolt: Freedom of Speech in Australia - Speech made by Paul Howes"
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Offensive behaviour because of race, colour or national or ethnic origin.
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135:(RDA). The case was controversial and instigated community debate about
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said in response to the case that he objected to the law for having "
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596:"Andrew Bolt – Herald Sun columnist guilty of race discrimination"
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which held that two articles written by columnist and commentator
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Stone, Adrienne (2015). "The ironic aftermath of Eatock v Bolt".
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between us but focus instead on what unites us as human beings".
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The exemption provision in section 18D relevantly provided:
211:, Wayne Atkinson, Graham Atkinson, and Mark McMillan.
638:"Bolt, Bromberg and a profoundly disturbing judgment"
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392:Following the decision, in October 2011 Professor
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400:supported the judgement and told the ABC radio
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576:"Andrew Bolt race-case judge 'had ALP links'"
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620:Institute of Public Affairs Occasional Paper
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225:Section 18C of the RDA relevantly provided:
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348:. Please do not remove this message until
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368:Learn how and when to remove this message
344:Relevant discussion may be found on the
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665:Melbourne University Law Review
604:. Melbourne. 28 September 2011.
311:its compliance with that law."
532:Racial Discrimination Act 1975
512:Racial Discrimination Act 1975
221:Racial Discrimination Act 1975
180:Racial Discrimination Act 1975
131:Racial Discrimination Act 1975
72:Racial Discrimination Act 1975
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716:Indigenous Australian society
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427:In June 2013, trade unionist
261:(c) in making or publishing:
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350:conditions to do so are met
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110:was a 2011 decision of the
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489:[2011] FCA 1103
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57:[2011] FCA 1103
686:2011 in Australian law
383:Australian Labor Party
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154:fellas in the black".
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711:Free speech case law
648:. 30 September 2011.
398:Melbourne University
215:Relevant legislation
584:. 16 November 2016.
337:of this section is
626:on 3 October 2011.
451:Kimberley Kitching
147:On 15 April 2009,
143:Factual background
561:. 4 October 2011.
407:Monash University
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283:Mordecai Bromberg
137:freedom of speech
118:and published in
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68:Legislation cited
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300:skin colour
201:Geoff Clark
193:Anita Heiss
126:section 18C
116:Andrew Bolt
680:Categories
516:s 18C
457:References
429:Paul Howes
402:Law Report
335:neutrality
197:Bindi Cole
174:Aboriginal
162:Aboriginal
158:Pat Eatock
98:Bromberg J
559:ABC Radio
433:Orwellian
421:ABC Radio
346:talk page
187:Witnesses
128:, of the
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53:Citations
642:The Drum
339:disputed
281:Justice
277:Decision
601:The Age
45:Decided
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79:Ruling
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133:(Cth)
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