Eatock v Bolt: a controversial Australian hate speech case

Max Harris explains why journalist Andrew Bolt was found in breach of Australia’s Racial Discrimination Act for articles about “fair-skinned Aboriginal people”.

The case

In August 2009, the Australian journalist Andrew Bolt wrote several articles and blogs for the Australian newspaper, the Herald Sun, claiming that some fair-skinned Aboriginal Australians were identifying as Aboriginal in order to gain political or financial benefits. Pat Eatock, one of the women referred to in the article, claimed in the Federal Court of Australia that these articles were race-based offensive behaviour and so breached the Australian Racial Discrimination Act 1975.

The judge in the case, Bromberg J, pointed out, in an enormous 470 paragraph judgment that can be read here, that two values undergird section 18 of the Racial Discrimination Act: the need for Australians to live free from the harm of racial prejudice, and the value of free speech.

When coming to applying the law to the facts, Justice Bromberg noted that for race-based offence to be “reasonably likely”, there must be a real chance (not remote or fanciful) that a person or group will be offended, intimidated, insulted, or humiliated. He stated that the articles conveyed the imputation that individuals were identifying as Aboriginal for activist or political purposes, and that these individuals were not genuinely Aboriginal. This was likely to be seen as a truthful statement, which could lead to a reluctance on the part of the group to express their identity. Thus, Bromberg J found that at least some of the group were reasonably likely to be offended.

The defence of fair comment required Bolt and the Herald Weekly Times (the newspaper’s publisher) to be acting reasonably and in good faith, and to be making comments based on true facts. But Justice Bromberg found that there were factual inaccuracies in the article. He accepted that freedom of expression included the freedom to speak offensively; however, the language used here was inflammatory, provocative and cynical. As for the defence of expressive activity for genuine purpose in the public interest, section 18D, the court found that the journalist had gone well beyond what was necessary to make his point. Accordingly, the judge agreed that a declaration that the articles were unlawful was appropriate, though he refused other remedies, such as requiring that the articles be removed from the website. No damages were awarded.

Author opinion

This decision was contentious, as demonstrated by the response in articles such as this  in Australian media outlet the ABC, and this in newspaper The Australian.  Moreover, in 2014 a newly-elected Australian government, led by Tony Abbott, promised to repeal the provisions of the Racial Discrimination Act relied upon by Eatock.  But Bromberg J’s decision represents a thoughtful and sensitive application of the law.  He unpacks difficult concepts such as race and offensiveness, and offers some nuanced reflections on multiculturalism and free speech.  In granting remedies, he allows some leeway for free speech – in not insisting upon an apology and in noting that in the Internet age, it would be futile to require removal of website content.  This should be a reminder that when reading court judgments, it is often the final orders – rather than the lead-up reasoning – that makes the most difference to the reality of free speech.

- Max Harris

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    I agree that it seems a reasonable and nuanced decision, but I don’t understand how he can say the article was unlawful and yet it can remain on the newspaper’s website, presumably. I’m not a lawyer, but that seems like saying the thief’s a thief but he can keep the stolen goods…

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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