Bolt, again

The case against Bolt began with a series of clearly defamatory claims against individuals, shown in the court decision to be false[1]. That’s never been part of the concept of free speech in Australian law, so, as far as the facts in this particular case are concerned, there is no problem. The main issues are whether it would have been more appropriate for the complainants to rely on ordinary defamation laws, and whether this case sets a precedent that might be used against legitimate expressions of opinion, for example on the appropriate criteria for determining indigenous status.

On the first issue, Mark Bahnisch (at LP, no link because of an annoying bug that stops me reaching the site from here) makes the point that the complainants wanted to address the attack on indigenous people in general embodied in Bolt’s piece, rather than simply the attack on their individual reputations. This is a strong argument. However, for cases of this kind, it might be better to change defamation laws to make racial attacks an aggravating factor, and evidence of malice, so that someone defamed because of their race could secure a judgement that made this clear, both in the findings and in the determination of damages. In particular, in a case like this, there should be no need to prove particular damage: the defamation should be sufficient for a judgement and damages.

As regards defamatory statements about a racial or religious group, of the general form “All/most Group X members display Bad Characteristic Y”, it would be possible to extend existing laws to allow class actions. That hasn’t been allowed in the past, but there is no good reason for a distinction between defaming someone as an individual and as a member of a group.

That would leave the case of statements that might “offend, insult or humiliate” members of some group without being defamatory in the ordinary sense of the term. While it’s easy to imagine some very troublesome cases, there are a number of defenses in relation to academic discussions, public interest matters and fair personal comment, and so far there isn’t significant evidence that the provisions have in fact worked to constrain free speech in any meaningful way. Still, if there are changes needed, this is the place to look.

fn1. In this context, the defence that Bolt honestly believed the claims to be true would be irrelevant. In any case, he obviously took so little care in his research that a defence of this kind would fail to meet the test of reasonable belief.

182 thoughts on “Bolt, again

  1. @Freelander

    Bolt has been made the victim in some eyes. And has managed to sell even more papers. He and his master are laughing all the way to the bank.

    If what you are saying is true, then all of the major stakeholders in this matter are happy. Blot has not been imposed upon and those who thought he should have been are pleased with what ensued.

    That sounds like an argument for the wisdom of the law to me.

  2. @Fran Barlow

    In fact you could argue that Bolt has become what he claims various others (as well as the plaintiffs) are – a professional victim. And he seems to be revelling in it!

    I did scan his confected outrage at the decision, which include the heart rending story …poor Dutch immigrant child… Get out the violins!

    Do you think Gillard should give him (and his pals) a formal apology?

    Yes. Perhaps it is a “Win. Win.” As well as a Spin, Spin.

  3. @Sam. Sam, when a judge makes a decision he/she makes it with the benefit and assistance of many minds, with regard to precedent and the reasoning of other judges in earlier like cases. The judge’s reasons are made public, they are subject to peer scrutiny, and if it is found by an appellate court that his/her reasoning is seriously flawed, or serious errors of law have been made, the decision will be subject to an appeal. It sounds to me that you have not read enough case law, and understood the basic principle of stare decisis to assert the criticisms you make of defamation law and the criminal justice system. Reading the judgement in Blot’s case may be a good place for you to start. Keep an eye out for the judges references to other cases and have a good look at those as well.

  4. @Sam. Sam, to use the word stupider in the context that you have to advance your argument for the right of the individual to say anything they like, is stupid. You ignore the word’s particularly offensive note, claiming that it means inferior and is therefore valid because it is less obfuscating than other weasel words used in the same context. I think the net result of choosing words with offensive meanings in a hot debate would be a whole lot more obfuscating than you suggest. To compare Westboro Baptist Church’s picket of less than ten odd individuals with Andrew Bolt’s audience reach doesn’t stack up either. If you call that a good job I reckon you need to try a lot harder mate.

  5. @Michael Kidd

    And hasn’t it?

    Higher courts don’t have enough time to revisit lower court decisions, and few litigants have the money for another roll of the dice anyway. Stare decisis can be gotten around in various ways. Especially if those who made the judgements in the higher court are no longer there. Not all those in higher courts necesarily agree. And judges don’t agree with themselves frequently.

    Judges have expert training in all of this sophistry. After all, before they get on the bench they are lawyers. Too bad it is not like the bad old days when that wasn’t necessarily so.

  6. @Freelander. It has in some parts of Mexico. Have a look at Blog del Narco and tell me that that is what you mean. It’s sophistry to suggest that it’s failed in this country, if it had you wouldn’t need an argument to support your claim.

  7. @Fran Barlow

    There’s a certain strangeness to your argument though, which I read as “don’t worry, this isn’t a real threat to free speech, because Australians are very strong supporters of free speech. If it were threatened in any significant way, both the public and the political classes would raise hell.”

    Of course the perhaps irrational fear for free speech in this particular case is a symptom of the attitude and consensus which ensures speech with any value is very likely to be protected in Australia. So while it’s fine if you and I stop worrying because others will remain vigilant, we can’t all stop caring simultaneously. We’re all part of the equilibrium!

  8. @Freelander. I feel a little overwhelmed to be compared to the greatness of someone like Lewis Carroll, but if flattery is your device to bow out of the argument I’ll take it in good faith.

  9. What Fran means is that free speech for those that speak like her is perfectly safe in Australia. Anybody that doesn’t sound left wing enough might be in trouble but who gives a sh!t about what they might have to say.

  10. Bolt attempted the verbal equivalent of a turkey slap with regards to the targets of his untrue claims, and the court found that to be so. I know some people here feel very strongly about the right to free speech as if that is the right to say anything whatsoever, and believe me, I don’t like significant intrusions upon such a right, but the RDA and our body of law concerning defamation in civil cases are both subject to the defence of truth, ie if the plaintiff has told the truth then his/her speech is acceptable in terms of the law. On the other hand, if the plaintiff has told untruths—specifically as substantive (or as supporting) evidence used in asserting the claim(s) which are the subject of the case—then the plaintiff has few legs to stand on.

    Bolt may go for an appeal, as is his perogative, but it won’t get far unless he can demonstrate that the judge’s argument to the untruth of Bolt’s claims made in the two articles is based upon incorrect information: in other words, that the untruths proven to exist in Bolt’s two articles, untruths made about the nature of the jobs undertaken by his targets, for one, are in fact true. Since the judge had at his fingertips the evidence that flat out contradicted claims made by Bolt—especially concerning the targets—Bolt’s team will need to contradict the evidence presented to the judge (as contradicting Bolt’s initial claims) in the first place. Perhaps there is some other way to do it, but as far as I can see if the finding of untruths remains unsuccessfully challenged in the appeal, the rest of an appeal would be like banging a head against a brick wall.

    Did he make sh*t up, or didn’t he? Read Eatock v Bolt (2011) judgement for yourselves.

  11. @Terge. Looked at Blot’s site, still feel kind of dirty as a consequence. Paul Behrendt looks like a person of indigenous heritage to me, definitely not a German as Blot erroneously stated. But it’s not really about looks is it Terje? If it was we’d call Julia Scottish and reject her right to sit in Parliament.
    Terge, do you have any other cultural influences in your family of origin? Or did you wake up one morning and decide to be white and Australian and just proceeded to act accordingly? As if throwing off countless moments of reinforcing behaviour and personal history is that simple. As if.

  12. @TerjeP

    Don’t verbal me Terje. It ill-becomes you. It’s a lot less impressive than making a defensible claim based on facts and reasoning, though I am willing to accept that you find it to be the emotional counterpart to a take-away snack.

    Of course the perhaps irrational fear for free speech in this particular case is a symptom of the attitude and consensus which ensures speech with any value is very likely to be protected in Australia. So while it’s fine if you and I stop worrying because others will remain vigilant, we can’t all stop caring simultaneously. We’re all part of the equilibrium!

    Unconvincing on a number of grounds:

    1. I didn’t suggest we stop worrying about it. I suggested we stop fetishising obscure laws and set those on our minds within the broader context of claims to free utterance. I hear nothing amidst this hue and cry on sedition, control orders and such like.

    2. Our opinions on this site are typically honoured in the breach, in part because if they were respected, rightists would be up in arms. Their rejection is part of the political class’s warrant of respectability to “mainstream voters”. Us making a hue and cry over Blot’s tribulations, if that is indeed what they are, would be lost in the noise, or appear “at best” only to assist Blot in demanding more space to poison public discourse.

    @Robert W

  13. @Dan – thanks! I picked your irony as well, nice work. I selected Scottish arbitrarily because of the red hair, ignoring her actual place of origin. Thought her parents were from England. Happy to know it’s Wales, I’ve got a bit of that heritage too – mine comes wrapped in dark hair and blue eyes, but a far cry from Tom Jones or unpronounceable railway stations.

  14. @TerjeP

    If you want to post links to this guilty party Bolt – why not get the views of the victorious plaintiffs. This will probably show you that the court did delve into the complications necessary. Inventing new complications is just Bolt, and his mates, blowing smoke and steam against the law.

    The case against Bolt was open – it is now shut and in fact all cases that reach judgement are “open and shut”. This has nothing to do with some invented ‘complications’.

    Bolt can only reopen it by appealing.

    The judgement is more important than reading Bolt’s comments. Would you ask the Cray Brothers about which bank to stick your cash?

  15. @Michael Kidd
    The Westboro Baptist Church gets a lot of media attention though. Probably more people in the world know about them than Bolt. My point is, this doesn’t help advance their agenda; to the contrary, most people hear what they have to say, listen to the arguments they’re making, and conclude the church is evil. It’s also clear that many of the more moderate branches of Christianity make a watered down version of the same illiberal claims. The net result is less support for bigoted views.

    Free speech advances society whether it’s promoting reasonable views or not. We curtail it at our peril.

    For my part, I’ll always be bigoted against lawyers, and all the free speech in the world won’t change that. I don’t trust them. I think they are (with very few honourable exceptions) pompous, illogical, arrogant and stupid. The judiciary is by far the weakest link in a liberal democracy, and it’s a terrible thing to give it more power. A holdover from medieval times, it is deliberately opaque and unaccountable, swathing itself in a self-perpetuating mystique of undeserved authority. The kowtowing to judges that goes on almost makes me sick. It’s as if this one subset of government hasn’t heard that “divine right of kings” is no longer a sufficient justification to rule. What’s more, if you just scratch the surface of some of our finest legal minds, you’ll reveal an innumerate, incurious mandarin. He (and it usually is a he) is that worst kind of intellectual, a debater. He knows just enough b&llsh!t to baffle a brain and not a gram more. He has been trained to argue for his point only, and to deliberately downplay or ignore evidence contrary to the side he happens to have been picked for. Two such charlatans play a silly game against each other, convincing an older fellow charlatan to selectively collaborate in the withholding of pertinent evidence from the final decision makers. This to you is the best way to arrive at truth?

    A barrister can’t think, but he can doublethink. He has so much cognitive dissonance running through his head I’m surprised he can find his silly wig in the morning. If I was to withold the vote from any group, it would be the practicing lawyers. In my opinion, the judiciary is badly in need of reform.

    Contempt of court? Guilt as charged.

  16. @Michael Kidd

    Michael – both my parents were immigrants to Australia. Neither is a native English speaker. My father spoke no English when he arrived here. I grew up in a home routinely adorned with foreign flags. We celebrate Christmas differently to the natives and even offspring retain some foreign words in their day to day vernacular.

    Identity is a complicated matter. I don’t think it is very polite to pressure people over their ethnicity (as Bolt chose to do). However nor do I think it should be unlawful to do so. At times people have pressured me to adopt a more Anglo Saxon name and whilst I’ve found it annoying I wouldn’t want them prosecuted for it.

    I do share Bolts objections regarding the reservation of positions or types of welfare on the basis of ethnicity or culture. We should not be using taxpayers money to promoting or reinforce differences. Although I certainly think that we should make room for differences and celebrate and tolerate diversity. Ethnicity should be celebrated but it shouldn’t be a ticket to government resources. If it is a ticket to private resources I have no in principle objection but even that should not be immune to public criticism. Criticism is something we should also be tolerant of.

  17. The disgraceful performance of the “liberal” media-academia complex in piling onto Bolt’s prosecution for his trivial errors (made whilst making accurate and telling criticisms of the obvious failings of the Aboriginal activist industry) is very much a case of mob justice punishing the right defendant for the wrong crime. It reminds me of the final scene in the Hill in which prisoners gang-bashed the sadistic NCO Staff Williams to prisoner Robert’s (Connery) despairing cries of “you’ve mucked it up!”.

    Staff Williams, like Bolt, was guilty of numerous crimes in abusing his position as a military prison warden. Roberts, a prisoner but also former SSM, was in the process of making a convincing case to the CO to bring Williams up on a charge of manslaughter for killing an inmate under his charge by meting out excessive field punishments. But Robert’s more stupid and tribal fellow inmates, driven by vengeance, bashed Williams for a relatively minor misdemeanour of his abusive disciplinary methods. Thereby ruining Robert’s attempt to get Williams on the more serious charge.

    The analogy to the Bolt case is near perfect. The “liberal” media-academia complex are acting like Robert’s stupid tribal inmates. They have gone after Bolt on the trivial and tendentious charge of “racial vilification” which gives Bolt the perfect opportunity to present himself as a the fearless defender of free speech and the public interest. Meanwhile Bolt’s true intellectual crimes (made whilst waging the Climate War, Class War and War on Terror) are more or less lost in the cross-fire.

    As Roberts would say, “you’ve mucked it up!”, you fools.

  18. Jack, get back on the pills.

    Every legal commentator I have read have said the errors were egregious or similar wording.
    They also said if had made some decent effort at research he wouldn’t have been in this situation.

    In other word IF he had been a journalist and done some good old fashioned investigative reporting he would have been fine.

    He almost seems to have heard hearsay about the people down the pub and then wrote about it.

  19. @Sam

    For my part, I’ll always be bigoted against lawyers, and all the free speech in the world won’t change that. I don’t trust them. I think they are (with very few honourable exceptions) pompous, illogical, arrogant and stupid. The judiciary is by far the weakest link in a liberal democracy, and it’s a terrible thing to give it more power. A holdover from medieval times, it is deliberately opaque and unaccountable, swathing itself in a self-perpetuating mystique of undeserved authority. The kowtowing to judges that goes on almost makes me sick. It’s as if this one subset of government hasn’t heard that “divine right of kings” is no longer a sufficient justification to rule. What’s more, if you just scratch the surface of some of our finest legal minds, you’ll reveal an innumerate, incurious mandarin. He (and it usually is a he) is that worst kind of intellectual, a debater. He knows just enough b&llsh!t to baffle a brain and not a gram more.

    A barrister can’t think, but he can doublethink. He has so much cognitive dissonance running through his head I’m surprised he can find his silly wig in the morning. If I was to withold the vote from any group, it would be the practicing lawyers. In my opinion, the judiciary is badly in need of reform.

    I’ll let this piece of insupportable hyperbole speak for itself. You might do well to read a few of Barwick J’s judgements. I know his agenda will coincide with yours and I don’t think he had any trouble with his silly wig in the morning. In a former post on Core Economics you opposed onshore processing of refugees because, as you said with solemn hand on heart, it was against the rule of law. What’s it going to be Sam, a bet both ways? The legislature makes the law, the judiciary interprets it, some people break it. Bolt breached the provisions of an Act formulated in a democratically elected parliament, for that he has received no fine, no penal servitude, no court order. Poor fellow, he is still free to say what ever he likes. And you’re frothing at the mouth referring to members of the judiciary as “government thugs” for merely interpreting the words of the Act. Insofar as your Westboro example goes, by extrapolation, are we to believe that Bolt’s audience are going to eschew his views as easily as someone exposed to the obvious lunacy of the Westboro picket? Of course not, Bolt is a professional story teller with an eye always on the persuasiveness and bias of his line.

    @TerjeP

    I do share Bolts objections regarding the reservation of positions or types of welfare on the basis of ethnicity or culture. We should not be using taxpayers money to promoting or reinforce differences.
    Ethnicity should be celebrated but it shouldn’t be a ticket to government resources.

    These are intrinsically racist statements Terje. I’ll take Noel Pearson as my guide here.

    @Jack Strocchi.

    Have you read the judgement Jack? I don’t see any parallels between it and the example you submit.

  20. I’ve cut and pasted Sam’s and Terje’s comments onto my post – can someone tell me how to do that so as they’re confined to their own captions. I really don’t want their rants mixed up with my comments. Thanks.

  21. KB Keynes @ #25 said:

    Jack, get back on the pills. Every legal commentator I have read have said the errors were egregious or similar wording

    You’ve got a cheek to tell me to get a grip when you take “legal commentator’s” words at face value, in what is obviously a case of partisan ideological conflict. As Marx used to say “it is the mark of fools to analyse social and political systems on the basis of their formal constitutions”.

    What’s going on here has little or nothing to do with racial vilification or inciting race hatred. It has everything to do with pay-back by a faction that has mostly lost its grip on power (abolition of ATSIC and the Intervention) and is trying to regain a shred of its lost dignity by vengeful over-lawyering and thought-police work.

    As we write I note a piece by Martin Flanagan, obviously supportive of the case against Bolt, which dwells on previous slights to him made by Bolt. Its all about pay-back.

    More generally the persecution/prosecution of Bolt is an instance of Sayre’s Law (commonly attributed to Kissinger):

    “Academic politics is the most vicious and bitter form of politics, because the stakes are so low.”

    The fact that Left-liberals are treating this Culture War battle as a serious legal case rather than “politics by other means” at best shows their naivety and at worst their disingenuity. Either way I would be disinclined to give them an even break.

  22. @Michael Kidd

    1. Copy and paste and use the blockquote tags. These consist of the word “blockquote” enclosed with the “less than” character at the start (shift + , ) and the greater than character at the end (shift + . ) When closing the quote insert the forward slash ( / ) between the less than character abd the “b” in blockquote.

    OR

    2. Simply use the quote tag at the top of the person’s post and delete unwanted text.

    HTH

  23. These are intrinsically racist statements Terje. I’ll take Noel Pearson as my guide here.

    Are you serious? I suspect not but it concerns me that so many think like like this. And it concerns me even more that they now feel they can marshall the law to restrict criticism of such policies.

  24. Jack here isbut one example.

    Mr Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons.

    Bolt did not make a trivial error. He did not even make any decent research at all.

    Try reading the Judgement before making silly comments

  25. @Terje

    Yes Terje, I’m serious. What are these advantages you speak of? Where is the welfare disparity between indigenous Australian’s and others? Why don’t you send your comments to Noel and post his reply here?

  26. @Michael Kidd
    I have never commented on Core Economics. Must be another Sam. I have no strong opinion one way or another about offshore processing.

    I think everyone’s entitled to a rant now and then don’t you?

  27. @Sam.

    You use similar terminology and support the same ideology. Happy to accept your clarification. You can rant Sam but why stop with denying lawyers the right to vote? Why not just add, in the name of libertarian principles, any other group whose views challenge yours?

  28. TerjeP, I agree with you. Yes, Australia is made up of many cultures that make this country the vibrant place, I believe it is.

    What you and others forget or ignore, is the fact Aboriginal people are different.

    They did not come to this land from other parts of the world. Well at least for about forty or more thousand years.

    Surely that counts for something. We can say to others, if you do not like it, go home.

    We cannot say this to our indigenous people. This is their only home. They were here first.

  29. @Michael Kidd
    To be clear, I think every non-institutionalised adult ought to vote. It’s just that if I had to deny the franchise to one professional group, it would be lawyers. I dislike them not because their views challenge mine (they often don’t); I dislike the *way* that they think .

  30. Just for Jack a ‘far laft ‘lawyer sceptic lawyer

    Now I’ve had a chance to read the judgment in more detail. My initial thought was that any judge would be strongly likely to find that Bolt contravened s 18C of the RDA, as his articles were public communications which were bound to offend and insult the plaintiffs and others who were in the same group, and they singled the plaintiffs out on the basis of their race, colour or national or ethnic origin; the main operative question would be whether Bolt was entitled to a defence under s 18D.

    The reason why Bolt was found to contravene the RDA boiled down to two matters, in my opinion. First, the tone of Bolt’s articles rendered them offensive, insulting and likely to humiliate and intimidate the plaintiffs (and consequently they contravened s 18C). Secondly, the judge found that Bolt’s articles were not ‘said or done reasonably and in good faith’ such that he could avail himself the defence under s 18D. In addition, the articles contained various inaccuracies and were slanted to emphasise the European backgrounds of the plaintiffs and their pale colouring, but omitted to mention the fact that many of the plaintiffs had been brought up as indigenous and were identified as indigenous by their families and others. Consequently, they were not fair comments or in the public interest.

  31. Surely that counts for something. We can say to others, if you do not like it, go home.
    We cannot say this to our indigenous people. This is their only home. They were here first.

    I’m not sure where I would go if as you suggest I was to go home. And I don’t think aborigines deserve status as an aristocracy.

  32. “I’m not sure where I would go if as you suggest I was to go home. And I don’t think aborigines deserve status as an aristocracy”

    I do not expect anyone to go home. I do not expect anyone to become the mythical Australian.

    The Australian as we know it today, comes from the merging of many cultures over the last couple of hundred years.

    I do not understand what you mean by “aborigines deserve status as an aristocracy”.

    I do not think they are asking anymore than it to be acknowledge they do count and that they were here first.

    You have a choice, a second culture and country you could return to is you wished.

    The Aboriginal heritage is here in this country. Yes, whether we like it or not, their situation is different to all others in this country. This is true whether your ancestors came here nearly two hundred years ago as mine did, or came in the last few decades as many did.

    I cannot see why many cannot accept this fact, unless they believe they and their culture is superior to all others.

  33. Pr Q said:

    On the first issue, Mark Bahnisch…makes the point that the complainants wanted to address the attack on indigenous people in general embodied in Bolt’s piece, rather than simply the attack on their individual reputations. This is a strong argument.

    You’ve lost most grown ups with the supportive comment about “Mark Bahnisch of LP”. This would be the same fellow who, in the context of commenting on this topic in yet another of his blogs with an esoteric Latin tag, makes admiring references to those continental kinder-Marxists of yester-year, Poulantzas and Foucault. To get a flavour of his thinking on this subject, try wrapping your brain cells around this:

    Michel Foucault, in his short book Fearless Speech, points out that one of the concept’s earliest instantiations, the Greek idea of parrhesia, had its correlate in a proper noun: Parrhesiastes. ‘Free speech’ is a practice engaged in by ‘one who speaks the truth’….I could start citing Nicos Poulantzas as well as Foucault here, if I needed a Marxist authority,

    There’s not much point quoting any more, its all pretty much the same tripe, and pretty ripe now that its been hanging around so long in the faculty meat hanging room.

    How a grown man, trained academic, can write this rubbish and get away with it is an indictment of the collapse of standards in Humanities and the Social Science. You can’t make this stuff up and yet it still gets a respectful hearing in the most unlikely quarters.

  34. @Jack Strocchi

    You are now straying into territory you obviously do not have the competence to involve yourself in.

    Every class must have its clown but not when they start ranting such invective. I can only assume Strocci is harbouring some repressed jealousy that aches to escape.

  35. KB Keynes @ #32 said:

    Mr Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). The comment is unsupported by any factual basis and is erroneous.

    Call me unconvinced by you simple-minded faith in legal commentators and selective fact-checking. This entry in an Australian women’s history site states that she is an “Aboriginal activist, Women’s rights activist, Public servant, Film maker and Academic”.

    Her public service career included working as a Project Officer in the Department of Social Security’s Aboriginal Unit (1978-81), and in the EEO unit of the NSW Department of TAFE (1987-89). In 1991-92 she lectured in community development at Curtin University, Western Australia. In December 1992 she established Perleeka Aboriginal Television,

    So Ms Eatock has had, on the strength of this, a lengthy professional career as an Aboriginal activist. Not That There Is Anything Wrong With That. I am willing to stand corrected if the entry is proven to be a fabrication. Otherwise it supports Bolt’s point about part-white fellas being in the van of Aboriginal activism.

    Which is not to say that Bolt did not make many factual errors. He did, but not noticeably more than any commenter on any matter of public affairs. Its just that the area he blundered into is a mine-field of politically correct contact ordinance.

    More generally, the notion that factual errors disbar one from publishing in the public sphere is risible given the anti-scientific ethos prevailing in that part of the liberal media-academia complex which comments on cultural affairs. If it were taken seriously by the courts then they would have to shut down most uni faculties, the Fairfax press and ABC.

  36. @Catching up

    I don’t see this your comment as having much to do with the topic. Yes aborigines where here first, and yes they have a cultural heritage that is unique. I don’t think anybody disputes this.

  37. On the inherently post-modernist question of Ms Eatock’s cultural identification, the dispute seems to rest on a legal quibble over proveable public versus unproveable private stations on her political road to Damascus. The women’s history entry points to the public station as politically critical:

    She began to publicly identify as an Aboriginal in 1957 when she attended a meeting of the Union of Australian Women at which Faith Bandler spoke,

    The notion that these self-selected half-blooded Aboriginal activists are somehow representative of all Aboriginals is dubious and frequently contested by full-blooded Aboriginals up north. If you were a scientific anthropologist you would be looking for an objective test of traditional Aboriginal cultural identity, such as participation in adolescent initiation rites, scarification or fluency in an Aboriginal language. Instead we are left with subjective say-so. Thats par for the course for “liberal” social “scientists” who have long since lost the plot of both liberalism and science.

    More generally, this points to the absurdity about drawing firm legal conclusions in the inherently rubbery area of cultural identity politics. The legal protection of a person’s reputation is always highly debatable. Immerse this in the swamp of cultural identity politics and we have absurdity squared. The perfect place for political pay-back, with the useful bonus of chilling public criticism of a failed political model.

    If you want to take this legalistic charade seriously then more fool you.

  38. Admit you have Bolted yourself.
    The court documents say this:

    Pat Eatock

    Ms Eatock was born in Brisbane in 1937. She is now retired and lives in New South Wales. Ms Eatock’s mother was born in Scotland and came to Australia in about 1928. Ms Eatock’s Aboriginal heritage comes from her father. Her paternal grandfather was Aboriginal and her paternal grandmother had an Aboriginal mother and a non-Aboriginal father.
    Ms Eatock’s evidence was that a lot of her Aboriginal identity was formed by negative experiences of being Aboriginal. She has identified herself as Aboriginal since she was a teenager. The Aboriginality of her family was not talked about much at home as she grew up because it was something her father was very ashamed of. Her parents were also scared that the children’s Aboriginality would be discovered and that they would be taken away.
    As she was growing up she experienced a number of incidents which she now recognises to have involved racial discrimination but which, at the time, she had not appreciated as instances of racial discrimination. Whilst at primary school, she did not think of herself as being Aboriginal and perceived that on various occasions when she was picked on, that was for other reasons. She and her siblings thought that her father was somehow at fault but they didn’t know exactly why. Ms Eatock stated that she first encountered her Aboriginality at the age of five at a primary school in Ingham. The playground at the school was divided by a fence. “White kids” played on one side of the fence and “black kids” on the other. As they had a “white” mother and fair skin, Ms Eatock and her sisters were put to play with the “white kids”. Her father had been away working, but when he returned home on leave it was realised at the school that Ms Eatock had an Aboriginal father. She and her sisters were taken out of the “white” children’s playground and put in the “black” children’s playground. Complaints were then made by parents who saw apparently “white” children playing on what they perceived to be the wrong side of the fence. As a result Ms Eatock and her sisters were removed from the “black” children’s playground and put in with the “white” children again. For Ms Eatock, this was her first identity crisis.
    Ms Eatock left school at age 14 in 1951. This was the first time she identified herself in public as an Aboriginal person. She did that because she didn’t want to be accused of hiding her racial background. On one occasion when she was 16 years old, this led to her boss coming to her house and asking whether she could adopt Ms Eatock and give her a better life.
    Ms Eatock performed a range of jobs in factory settings until she married in 1957. She was at home caring for her children until 1973 when she commenced tertiary studies. During that period and at other times she has experienced racism but said that because she was not perceived to be Aboriginal she used to experience a different type of racism. Often people would make racist remarks about Aboriginal people in her presence. Ms Eatock found experiences of that kind stressful. Her way of dealing with it was to pre-empt it by telling people at the outset that she was Aboriginal or wearing clothes that announced her involvement with Aboriginal issues.
    In the 1960s, Ms Eatock went to hear Faith Bandler speak at a political meeting. This meeting awakened her to the nature of Aboriginal disadvantage. As a result of what she had learnt, she decided to be more assertive about her Aboriginality. That, however, was not really a matter of choice for her. It was driven by her sense of oppression and the recognition that she needed to become more proactive about who she is.
    After graduating with a Bachelor of Arts degree in 1978, Ms Eatock was employed as a temporary clerical assistant in the Department of Aboriginal Affairs. She then moved to a different Departmental job, but from 1980 to 1987 she was unemployed. She undertook further training in 1986. She worked in the TAFE sector from 1987 until 1991. She became a lecturer in Aboriginal Community Development in late 1991. From 1992 until 1996 she was unemployed, although involved in unpaid activity developing an Aboriginal television station.
    In 1996 she was granted a disability support pension which was later converted into a senior’s pension. She has had some weeks of employment since that time, has done further studies and volunteered to promote various Aboriginal issues. She lives in a one bedroom Department of Housing flat in Sydney. She does not own a car or other significant assets and has no meaningful savings.
    She has been involved in a lot of work with the Aboriginal community, including as part of the Aboriginal Tent Embassy in Canberra in 1972 and 1973. She has stood for election in the Australian Capital Territory as an independent Aboriginal candidate. She has attended conferences and other events as a person active in Aboriginal affairs. In that involvement, she was recognised as an Aboriginal person by the people she met.
    Ms Eatock’s evidence was that she was horrified, disgusted, angry and upset and felt sick in the stomach when she saw Mr Bolt’s Articles. She perceived Mr Bolt as disconnecting her from her Aboriginality in every way. She stated that she was offended in a personal way because what Mr Bolt wrote was a denial of who she is, her life’s work and her ethics. Part of the offence she experienced related to Mr Bolt saying she had only begun to identify as an Aboriginal person when she was 19. She perceived that Mr Bolt attacked her identity in saying that she chose to identify as an Aboriginal person for self-gain and that she had “thrived” as an Aboriginal bureaucrat and academic. In her view she has done anything but thrive. She has been more disadvantaged than advantaged by identifying as Aboriginal. In total, she has had only six to six-and-a-half years of employment since 1977. She perceives Mr Bolt’s articles as racist and she remains deeply offended.
    Ms Eatock was cross-examined, but the evidence I have referred to was largely uncontested. I have no reason to not accept Ms Eatock’s evidence as truthful. I find that Ms Eatock does genuinely self-identify as Aboriginal. She has Aboriginal ancestry and communal recognition as an Aboriginal person. She did not choose to be Aboriginal. Her identity is a product of her upbringing. In her adult life she chose to be proactive about her Aboriginal identity. She is an Aboriginal person and is entitled to regard herself as an Aboriginal person in accordance with the conventional understanding of that racial description. She has not improperly used her Aboriginal identity to advance her career. Her professional career involved significant unemployment. She is a person committed to her community and is entitled to regard her achievements as well-deserved rather than opportunistically obtained. I accept that she feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by her evidence.

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