TRUE COLOURS

Karl Quinn September 29, 2011

A terrible day for free speech in Australia, or just a terrible day for Andrew Bolt and bad journalism?

STANDING outside the Federal Court on the corner of William and La Trobe streets in Melbourne yesterday, Andrew Bolt pronounced it a black day for the press.

''This is a terrible day for free speech in this country,'' he said, reading from the notes he had written in courtroom No. 1 after losing the case brought against him by a group of fair-skinned Aborigines under the Racial Discrimination Act (1975).

''It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves,'' he continued. ''I argued then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings. Thank you.''

With that, he strode off, declining to respond to the questions about whether he intended to apologise or appeal. But perhaps the bigger question is this: Was the judgment a terrible day for free speech in this country, as Bolt claimed, or merely a terrible day for Bolt and his employer?

Certainly it was a magnificent day for activist Pat Eatock and the eight others who sued Bolt and the Herald and Weekly Times (publisher of the Herald Sun) over two articles he wrote for the paper and two blog posts on the paper's website in 2009.

As the verdict was delivered, a smattering of applause rippled through the courtroom; in the corridors and meeting rooms outside, the mood was a mix of disbelief and unbridled joy.

''It was never about free speech, it has always been a question of professionalism, and the reality is that the original articles were not professional journalism,'' said Eatock, a 72-year-old Aboriginal activist.

''The sword of justice has struck, and cut off the head of the serpent,'' said former ATSIC chairman Geoff Clark. ''Let's hope it doesn't grow two heads.''

The nine applicants contended that Bolt had implied in the articles and blogs under consideration that they had ''chosen'' to identify as Aboriginal because of the financial, political or career benefits such a choice conferred.

They argued that Bolt had contended that as lighter-skinned individuals of mixed background, they had more than one source of ethnic identity to ''choose'' from, and that by extension their identification as Aboriginal was unjustified.

What's more, they claimed he argued that in so doing they gained access to privileges and assistance that would have been better directed at more needy Aborigines.

The nine claimed that these imputations had offended, insulted, humiliated and/or intimidated them. They claimed the articles and blogs would have been reasonably likely to have the same effect upon any ''ordinary or reasonable'' person from a similar background.

Addressing a packed courtroom yesterday, Justice Mordecai Bromberg stated his agreement with much of that argument.

"I am satisfied 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,'' he said as he delivered a summary of his findings that stood, in its 25-minute brevity, in stark contrast to the eight days of arguments in which both sides had put their cases in late March and early April.

In his rather more wordy 143-page written judgment, arrived at after some 175 days of deliberation, Justice Bromberg made frequent reference to ''the mocking or derisive tone'' of Bolt's writings.

He wrote that Bolt's use of language and structure ''is highly suggestive and designed to excite''. His style was ''not careful, precise or exact'' and the language ''not moderate or temperate but often strong and emphatic''.

''There is a liberal use of sarcasm and mockery,'' he wrote. ''Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines.''

Any reader doing just that would have had a reasonable chance of coming to the conclusion that ''people who are not really Aboriginal are taking benefits that were intended for 'real' Aboriginal people'', that their motivation was ''political or to facilitate career-based opportunities'', and that their choice was ''divisive and racist'', in Justice Bromberg's view.

In sum, these imputations amounted to a breach of Section 18C of the Racial Discrimination Act.

That section states that: ''It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (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.''

The point of Section 18C, he explained, was to protect ''both individuals and society from the ills of the dissemination of racial prejudice''.

Having established that there was a breach of Section 18C, Justice Bromberg then had to consider whether that breach was balanced by the protection of free speech in the exemptions enshrined in Section 18D of the act.

The relevant exemptions cited by Bolt's defence team were around statements made for ''any genuine purpose in the public interest'' and ''fair comment'' that was an ''expression of a genuine belief held by the person making the comment''.

Justice Bromberg found that while Bolt appeared to genuinely hold the views he expressed, his writings were matters merely of public interest, rather than in the public interest.

More damningly, he found they failed the fair comment test on the basis of some shoddy journalism.

''The statements in question appear in an opinion piece,'' Justice Bromberg writes in paragraph 377 of his judgment, ''but they appear to be presented … as facts … The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts … have been substantially proven to be untrue.''

In paragraph 384, Justice Bromberg writes: ''The deficiencies to which I have referred so far are material and constitute a significant distortion of the facts.''

And in paragraph 405: ''It would have been highly inconvenient [for Bolt's argument] … to have set out facts.''

Justice Bromberg found against Bolt and the Herald and Weekly Times with regard to the two articles, but not the two blog posts - not because of a lack of offence, rather because the offence was to an individual rather than a group. He claimed to have been mindful of the ramifications on the implied right to free speech (Australia has no enshrined right). 

''In finding against I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT,'' he wrote. ''Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified.

''The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation.

''Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued.''

Back in April, Bolt's lawyer, Neil Young, QC, flagged his intention to lodge an appeal in the event that this case was lost. Now that prospect has become reality, Bolt's publisher is taking a more circumspect approach.

''[HWT] is disappointed with today's Federal Court decision on the representative action by Pat Eatock,'' the company said in a statement issued late yesterday. ''We maintain that the articles were published as part of an important discussion on a matter of public interest. We defended the action because we believe that all Australians ought to have the right to express their opinions freely, even where their opinions are controversial or unpopular.

''We will review the judgment and then consider whether or not to appeal the decision.''

Others have already taken up cudgels on Bolt's behalf.

Liberal Party think tank Menzies House had by mid-afternoon yesterday established a website, supportbolt.com, that called for actions (and donations) in language similar to that used by Bolt outside court.

''Freedom of speech in Australia is under threat,'' the website exhorted. ''We need your help to stand up for our rights before it is too late. What has happened today is disgusting, but can be stopped with your help.

''Today the Federal Court just ruled that freedom of speech no longer exists in our country. That's right, they ruled that Andrew Bolt was guilty for daring to speak the truth about entitlements. And he can voice his opinion no more.''

That last assertion is certainly untrue. While Eatock had sought a gag clause on Bolt that would have prevented him from airing similar views again, that was not granted.

It is important, wrote Justice Bromberg, that ''on social and political issues in particular, people should be able to express their opinions'' even if ''those opinions will at times be ill-considered''.

The ''fair'' in fair comment, he added, ''does not mean objectively reasonable''.

Spencer Zifcak, president of Liberty Victoria, says he is less concerned by the ruling than he had anticipated.

The case is important, he says, ''because it required the judge to weigh in the balance the right to be free of racial intolerance and discrimination on the one hand, and freedom of expression on the other''.

Justice Bromberg came down on the side of freedom from racial discrimination, Zifcak says, ''because of the degree of hurt experienced by the applicants''. On that basis, he says, the conclusion is justified.

''Having said that, Liberty's view has always been that the relevant section of the RDA is drafted too widely.''

Causing offence and insult, Zifcak argues, should be too low a hurdle for the protections of the Act to be triggered.

''The question as to whether Section 18 may transgress the constitution's protection of freedom of public and political communication has not yet been tested in the High Court,'' Zifcak says. ''Bolt is likely to take it there.''

He says it is fair to assume Justice Bromberg wrote his judgment in the full expectation that it would be appealed. And it's equally fair to suspect this issue may not have run its race just yet.