The nuts and Bolts of a racial vilification case

BY AMY MCQUIRENOVEMBER 1, 2011

Originally published in Tracker Magazine.

A file shot of controversial Herald Sun columnist Andrew Bolt on his regular radio segment on Melbourne radio station MTR. Bolt lost a racial vilification case involving nine light-skinned, prominent Aboriginal leaders who he claimed were falsely claiming Aboriginality to gain career advances. (AAP IMAGE)

NATIONAL: : It’s been a big month for News Limited’s most read columnist Andrew Bolt.

First came the Federal Court judgment that found Bolt had racially vilified nine prominent Aboriginal people in two newspaper columns published two years ago.

He had accused them of fraudulently claiming Aboriginality in order to advance their careers.

Judge Mordecai Bromberg found in a 57,000 word ruling that Bolt had contravened section 18c of the Racial Discrimination Act:

“For the reasons I have given I am satisfied that… some Aboriginal persons of mixed descent who have a fairer, rather than darker skin, and who by combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles.”

“… People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying…”
The court has since ordered the Herald Sun newspaper to publish a 500-word correction notice twice in the next fortnight (at the time of press).

It must be published adjacent to Bolt’s opinion column, taking up the majority of space on the opinion pages of the nation’s most read newspaper.

While the leading plaintiff in the case – Pat Eatock – also called for an apology, Judge Bromberg found that the paper couldn’t be forced to make it if it was “not genuinely held” and said that the corrective notice would redress the hurt.

The offending articles will also be allowed to remain online, but barred re-publication in print.

The whole court ruling has been widely debated throughout the media, with Bolt himself leading the charge.

The day after the original ruling, he led the front page of the Herald Sun, claiming his right to freedom of speech had been curtailed.

But he continues to hold prime space in the Herald Sun’s opinion pages, as well as a blog, a radio segment on Melbourne station MTR and a weekend talk show on channel Ten.

The commentariat has been largely divided between defending Bolt’s freedom of speech, and chastising him for sloppy and inaccurate journalism.

David Marr wrote in the Sydney Morning Herald that the Herald Sun should have been thankful it didn’t face nine separate defamation trials.

“Freedom of speech is not at stake here,” Marr wrote.

“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.

“Bolt was wrong. Spectacularly wrong.”

Former editor of The Age Michael Gawenda also weighed in at ABC’s The Drum, stating that he would have never published the columns.

“… I do not think Bolt or the Herald Sun can justify (the columns’) publication, essentially because they were riddled with inaccuracies,” he wrote.

“Commentary doesn’t have to be “balanced” or even “fair” but it has to be factually accurate. Commentary, even for a polemicist like Bolt, can’t be a piece of fiction.

“What’s more, I believe the editors of the Herald Sun should have pulled the columns because they were nasty and badly argued. To have done so was their right.

“And they should have done so even if Bolt, as a consequence, would have painted himself a martyr to free speech — strange how these free speech martyrs more often than not have the loudest megaphones and huge audiences.”

Former National Indigenous Council (NIC) member Wesley Aird wrote in the Australian that the decision set a dangerous precedent for non-Indigenous people wishing to comment on Indigenous affairs.

“I can’t help but form the view that the court case was intended to use the Racial Discrimination Act to intimidate non-Indigenous Australians,” he wrote.

“The result in court (for now at least) has most likely severely damaged Australian race relations for some time to come.

“…The Indigenous industry is broken to the core and we desperately need open and frank discussion.

“If we are ever going to get anywhere then we need to talk about issues such as identity and entitlement. We need to have a collective understanding of what it means to be Indigenous.”

But Anita Heiss, who testified in the trial, saw it differently.

“I am pleased (although not surprised) with the judgment,” she said.

“I believe the result means that Australia will have a higher quality and more responsible media, and that to some degree the persecution of Aboriginal people in the press will be lessened.

“And that was why I chose to be part of this case.

“Australian readers also deserve better.”

She ended her statement with a quote from award-winning author Dr Rosie Scott:

“Free speech is the cornerstone of genuine democracy, but when writers publish disinformation dressed up as fact, lies as truth, slander as objective evaluation and call it free speech, they are devaluing its very essence and betraying all those who’ve fought for it.’”

For his part, Bolt remains under siege.

He was the subject of a damning profile in The Monthly magazine recently, which raised his ire for unveiling a former “belly-dancing” fiancé, and referenced wife Sally Morrell for approving homophobic comments while moderating his highly-trafficked blog (The Monthly has since apologized for the latter allegation).

The Monthly editor Ben Narpetsek hit back by stating: “(Bolt) denied having a former fiancée, he said his wife had been in tears all day and that we should pulp the magazine.

“My response was: we checked the facts very clearly with Anne and I was very confident in the factual accuracy of what we had published. I said to him there was no point proceeding with the conversation.”

The piece has been one of Narpetsek’s most successful commissions in his two years as editor.

When it was published for 24 hours on the Monthly’s website, it attracted nearly 10,000 page views, according to http://www.crikey.com.au.

Bolt’s month was topped off with another honour – this year’s Ernie Award, given for the most sexist comments.

It was awarded for his contribution to the women in defence debate, where he suggested male soldiers would be turned from warriors into escorts if women were allowed to serve on the frontline.

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