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. After a couple of days away, I can’t believe that the tedious, laboured and convoluted arguments in support of Bolt, from Terje and the other usual suspects, are still going on, and on, and on. It’s so self-indulgent, give us a break for Crissake!

    Bolt maliciously slandered some light-skinned indigenes regarding their claim to Aboriginality – that was found to be a breach of the Racial discrimination Act, as it bloody well ought to be. Enough said.

    He is playing to that part of the suburbanite generic-Australian herd that resents what they see as undeserved special treatments for black fellas. He has no credibility among decent, objective, kind, reasonable, informed, intelligent people. His feigned outrage at the judgment fools no one other than his half-witted sycophantic followers.

    I can’t see any significant impact on the normal, reasonable exercise of free speech from this judgment.

  2. It would be a serious misjudgement to think that the angst associated with this outcome would dissipate in a few days. This verdict represents a serious threat that won’t be taken lightly. It will be appealed and if that fails there will be pressure to repeal or ammend the RDA. This was a bad outcome based on bad law.

  3. KB Keynes @ #50 said:

    Admit you have Bolted yourself.

    Quoting great slabs of court room documents tendered in evidence for the plaintiff is further evidence of your obsession with legal idealism at the expense of political realism. Not a good place to be in the front lines of the Culture War.

    The court document’s key passage [hereunder] is consistent with the women’s history [under here under key employment passage:


    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.

    Women’s History:

    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 Bolt’s conclusion, that Eatock has worked as an Aboriginal “activist, Women’s rights activist, Public servant, Film maker and Academic”, is sustainable, although perhaps a bit unfair to her in the context of the totality of her life. But she has chosen to participate in a contentious area of public life so should learn to cop it sweet.

    Now that we have had our heart strings tugged by the tragic case of Ms Eatock, perhaps we can turn to the other parties to this action. Lets start with Mr Geoff Clarke. On second thoughts, lets not. This is a family site and his career has some aspects that are for Mature Audiences only.

    Admit that you were silly for taking these trivial exaggerations as somehow vilifying a whole race. And let’s not start on the greater folly of the tendentious interpretation of racial vilification laws as a shield to prevent public criticism of the failed political model of indigenous self-determination.

    Thats what this is all about although you are too much of a sucker for legal charlatanry to see through this obvious charade.

  4. 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.

    What exactly was the advantage gained?

    None discerned, only Bolt and his boss benefits from the facts of the matter. Bolts seemingly limitless capacity for self advancement is now being challenged by the quantity of self pity he has generated.

  5. Jack, enough from you on this thread. I’ve previously requested that you don’t post on issues like this. I let it slide this time and it was obviously a mistake. Your confirmation bias on this topic is so massive that you can’t possibly see straight.

  6. I particularly liked this point made by Johnathan Holmes:

    For reasons best known to its lawyers, the Herald Sun chose to argue that Bolt’s columns weren’t likely to offend anybody and/or that if they did it wasn’t on the grounds of their race, colour etc. Both are self-evidently absurd propositions.

    So not only are News Limited journalists stupid and arrogant, their lawyers are too.

  7. Jack is suffering from Catallaxy disease.


    their Management is more stupid than that. did they ask bolt for the sources he used before making his absurd allegations.
    Apparently not.

    nor did their lawyers argue against said evidence in court.

    Jack should be unhappy as if anyone actually investigates a similar situation and unearths actual evidence the political reaction can be simply to shout Bolt.

    Bolt has let every one down with his very shoddy ‘journalism’

  8. Maybe they want to lose as it probably sold more papers, and gives the opportunity for a rematch.

  9. @rog
    I suppose that makes the motivation more pure, but in some ways I’d prefer a straight shake-down. What’s the point in trying to extort a false apology, or an un-felt renunciation by the Herald?

  10. Bolt’s handiwork is hate speech, racism window dressed as scepticism. The court got it spot on, Free speech and Hate speech are not the same thing and Bromberg’s summary was at pains to illustrate the difference and why the second is not free speech, just Hitlerian rantings, studied insults in place of debate, and conspiracy theories.
    I’d have thought events in London a month or two ago, plus Breivik, would have alerted even the most dense of people to the real nature of Murdochist tabloidism, but apparently not…

  11. Pr Q @ #7 said:

    Jack, enough from you on this thread. I’ve previously requested that you don’t post on issues like this. I let it slide this time and it was obviously a mistake. Your confirmation bias on this topic is so massive that you can’t possibly see straight.

    Okay, perhaps I used a little too much force in one of those jibes. Although it does seem odd that Right-wing culture warriors seem to spend so much time getting sin-binned, gagged or censured for their views. Must be the way their mother’s dressed them.

    But I vehemently reject the accusation of “massive confirmation bias”. My intellectual bias is, if anything, to look for refutations. Hence the frequent refrain “I was wrong”.

    Confirmation bias is as confirmation bias does, and I will happily stack up my analyses and predictions on the Culture War against anyone else in the country, if the “Decline of the Wets” during the noughties is any guide. Including and perhaps especially your good self, given that your announcement of the cessation of Culture War hostilities seems not to have gone through the formality of actually being observed by the contending parties.

    You can take this as an invitation to a once and for all formal blog debate on the “Liberals in the Culture War: phony war or mugged by reality?”. You might care to take up this offer, in your spare time left over from solving the GFC pt II. If nothing else it might shut me up for a while.

  12. Right-wing culture warriors are camouflaged capitalists.

    They mug reality to feed the rich.

  13. Jack just for you.

    The gist of the judgement.

    The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue. Nine of the eighteen individuals named in the Newspaper Articles gave evidence. Each of them had been raised to identify as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal.
    Secondly, the imputations which I have found were conveyed, convey not only the making of a choice but that the choice was made for the purpose of facilitating career opportunities and political activism. Again, the imputation is made of the people in the ‘trend’ and it is to be understood as a comment because it is an extrapolation from observations made in relation to the individuals dealt with. Those observations about the individuals are also presented as comments. They would be understood as Mr Bolt commenting as to what motivated the choice made by the individuals. The pattern involves Mr Bolt pointing to various jobs or awards the individuals have obtained which are either said or suggested to be reserved or intended for Aboriginal recipients. The jobs or awards obtained are the implied motivations for the individuals choosing to identify as Aboriginal. Additionally, political activism is the suggested motive for Ms Eatock and Ms Cole.
    Some of the facts relied upon as the basis of the comments made about motivation have been proven to be untrue.
    In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won “plum jobs reserved for Aborigines” at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.
    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.
    Further, Mr Bolt intimated that Ms Cole chose to identify as an Aboriginal motivated by access to “political and career clout” (1A-4). This is a comment. The facts upon which the comment is based are not stated, referred to or notorious.
    The deficiencies to which I have referred to so far, are material and constitute a significant distortion of the facts upon which a central part of the offensive imputations were based. On the basis of those deficiencies, I am satisfied that the offensive imputation was not a fair comment and that s 18D(c)(ii) is not available to exempt the offensive conduct from being rendered unlawful.
    That conclusion is also reinforced by some of the other deficiencies relied upon by Ms Eatock, which I shall identify shortly. Ms Eatock relies upon the deficiencies I have dealt with already and other deficiencies to contend that, even if the conduct was fair comment, it was not done reasonably and in good faith. Ms Eatock’s contentions about unreasonableness and lack of good faith are based on two aspects of Mr Bolt’s conduct. Firstly, what she says Mr Bolt did, that is, what he wrote. Secondly, Ms Eatock relies upon what she says Mr Bolt should have done but failed to do. In both respects, Ms Eatock contends that the conduct was not reasonable nor in good faith.
    The deficiencies I have relied upon in arriving at the conclusion that the s 18C conduct was not fair comment are about deficiencies in truth. The lack of truth in conduct which contravenes s 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness by s 18D.
    The incursion made into freedom of expression by defamation law is largely based upon a refusal to excuse an absence of truth or falsity in a defamatory statement. Even where a lack of complete truth may be excused by the law because of a higher than usual value placed on the freedom of expression involved, the law requires that the publisher of defamatory statements demonstrate that reasonable measures were taken to adhere to the value of truth and the protection of reputation. Beyond honesty of purpose, those measures include the publisher having taken reasonable steps to verify the accuracy of statements made and where practicable and necessary, seek responses from those whose reputations are at stake: Lange at 574 (qualified privilege for governmental and political communications); and see Reynolds v Times Newspapers Limited [2001] 2 AC 127 at 205 (Lord Nicholls of Birkenhead) (qualified privilege for political information); Morgan v John Fairfax and Sons Limited (No 2) (1991) 23 NSWLR 374 at 388 (Hunt A-JA) (statutory qualified privilege).
    In the context of statutory qualified privilege, the Privy Council said in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364-365:

  14. I thought the judgement pretty good and Bolt must be crossing and recrossing his threads in coming to terms with the implications. No award for damages necessary – the injury to Bolts integrity has been spelled out in letters 6′ high.

  15. @TerjeP

    For those that don’t follow Bolt’s blog he has basically rejected the core accusation leveled at him that he made serious errors regarding ancestry. And he lays out some of his evidence that obviously didn’t pursuade the court

    Pretty hard to persuade the court of something if it isn’t even put to the court (that he didn’t make serious errors of truth regarding ancestry). Perhaps, like you, Bolt thinks what he writes on his blog is more important than what is stated or failed to be stated in court.

    but does make it look more complicated than an open and shut case.

    Pity Bolt’s lawyers didn’t think it was worth mentioning this complication in court.

  16. Chris – there is no denying that Bolt made mistakes. However they are in the overall scheme of things rather minor. Not particularly different to the large catelogue of errors Bolt has compiled in relation to articles journalists have written about him since the verdict. And not so significant to alter the basic logic of his article.

    The law needs to amended.

  17. @TerjeP

    there is no denying that Bolt made mistakes. However they are in the overall scheme of things rather minor.

    OK, so the core accusations regarding serious errors of ancestry leveled at Bolt (which his lawyers chose not to defend in court) are rather minor. You must have a different meaning for the word “minor” from the one I’m used to. These errors would normally be expected to cause the loss of a libel defense.

    The law needs to amended.

    As Jonathan Holmes implies, this is probably true. Bolt could then only have been subject to a plain old libel suit. But the point is, Bolt’s lawyers didn’t even put up a defense against libel (even though Bolt pointlessly does on his blog). Changing the law would not have saved him with the defense his lawyers put up.

  18. Why would you put up a defense against libel if you were not being accused of libel? He was accused of racial discrimination. With hindsight we can all be experts on how the case for Bolt should have been run but only because we now know the judgement. Obviously if a similar case comes up again a different set of defense tactics will be used. Regardless the law needs to be changed. The law as it stands is an utter abomination. It’s very existence is an intolerable injustice.

  19. @TerjeP

    Why would you put up a defense against libel if you were not being accused of libel?

    Not very knowledgeable, are you? Perhaps if you read Holmes’ comments you would be better informed. Nomatter, I’ll try to do it for you. As Holmes points out, to successfully defend Bolt’s offence under the Racial Discrimination Act, he first had to show that what he said was the truth in exactly the same way as in a defense against a libel suit. He also has to show a few other conditions as well which are also necessary for a defense against a libel suit. So everything that a defendant needs to show in a libel suit are also necessary under the Racial Discrimination Act. i.e. part of your defense under the Racial Discrimination Act is actually also a defense against a libel suit. Bolt’s lawyers didn’t even put up a defense against libel so they automatically failed to defend against the Racial Discrimination Act.

    But read Holmes. I expect you’ll learn something and may even agree with his opinion.

  20. Bolt’s lawyers didn’t even put up a defense against libel so they automatically failed to defend against the Racial Discrimination Act.

    The judge didn’t need to worry about Bolt’s failure to defend against a Libel suit of course, because his defense failed in other ways. But, as I said above, Bolt didn’t even try to defend against libel in court even though he tries to on his blog. His defense in court was totally and utterly inadequate, not even adequate enough to defend against the more defensible suit of libel.

  21. Terje, Bolt knew what he was doing. Ever since Wik and Mabo big vested interests have cavilled at the thought of paying rents etc for activities on Aboriginal land and conservatives have sided with these, because not do so would have undone their “white armband” view of history, with its apologetica for their privileged position of some in the world, against others.
    Now, having you told you that, I know now how I won’t have to go into a tedious, for both of us, explanation of two hundred years of Australian history and its attendant genocide, which has left the survivors of this holocaust short in numbers on the ground and reviled by those who could have to give aid or make recompense to these survivors.
    Bolt vilified a number of people most in a position to help the Aboriginal cause; Aboriginals of light colour, but having to fight fearsome battles, on the whole, to become what they are today, more (or less) effective spokespeople for their (still) largely shamefully disadvantaged subgroup. He used dud information when he used any at all to back up his abuse of these people, the exhorbitantly-renumerated mouthpiece of those most out to cheat aborigines as well as most other Australians, eventually. You would have thought, had he a sincere concern for Aboriginal welfare that he might have built up talented people like Larissa Behrendt, encouraged such bright people to forge ahead despite the rednecks opposition sure to stand in their way, the big democrat he is!!!
    After all free speech, yeah…except when the speech required to communicate an injustice done a minority is required. Because if Bolt argues on the justice of aboriginal claims, history convicts him. So, better to discredit those speaking for justice on faux criteria, since this obviates them the need to argue on a real issue.
    And if this is challenged, lazily saunter off to the courts in a tweed sports jacket with the languid excuse that a flunky looked up and cited dud material and it was just a mistake, or he didn’t realise himself that it was dud because he’s too thick?
    Pass me the bucket.

  22. Paul – the Bolt case has nothing to do with property rights or genocide or any such issues. It was about whether publishing Bolt’s opinion was unlawful under the RDA. His opinion consisted of a series of questions with examples that were incredulous about the allocation of positions and scholarships on the basis of race given that those granted the positions and scholarships did not look like the race in question. He questioned why race is even a criteria. His line of argument is open to rebuttal and in the normal course of public debate that is how it should have been addressed. Diluting his freedom and the freedom of others to safely debate this topic unencumbered by the risk of legal recrimination does not aid aboriginal property rights.

    The RDA is bad law and it needs to be repealed or amended.

  23. @Chris O’Neill

    I have already read the Holmes article but I reread it anyway. I don’t know why Bolt’s lawyers ran the case the way they did. I’m sure with the benefit of this ruling any future case would be run differently. However irrespective of how the case was run it does not turn a bad law into a good law. The RDA is bad law. Even Holmes says so.

  24. If Terje says the RDA is bad law and needs to be repealed etc, then society probably needs the exact opposite.

    As Paul Walter said – Bolt knew what he was doing.

    The RDA act is a fundamental foundation of a multicultural, competitive, commercial society. If people are forced to compete for jobs, and markets, then such provisions protect society from racism and exploitation.

    However the Act could be strengthened to include an offence of aggravated libel when a professional journalist and company produce material they knew they had a responsibility to verify and with the necessary resources to ensure they do not cause defamatory imputations.

    Bolt was using the media to create a political reaction against some Australians based on their identity. Bolt has got off far too lightly. His suggestion that there were “plum jobs” reserved for Aborigines was a deliberate attempt to set society against Aborigines. He also tried to incite social trouble by accusing some people of taking Black jobs.

    Bolt was not just expressing a innocently mistaken opinion in good faith. Everyone has this right. It was a deliberate stream of lies and imputations for political purposes.

  25. @TerjeP

    I don’t know why Bolt’s lawyers ran the case the way they did. I’m sure with the benefit of this ruling any future case would be run differently.

    Well yes, anyone who finds out the consequences of their incompetence usually acts differently in future.

  26. Well yes, anyone who finds out the consequences of their incompetence usually acts differently in future.

    Not always true. The current federal government is a good counter example.

  27. @TerjeP

    The current federal government is a good counter example.

    And of course Bolt himself is doing his best to provide a good counter example.

  28. @TerjeP

    His opinion consisted of a series of questions with examples that were incredulous about the allocation of positions and scholarships on the basis of race given that those granted the positions and scholarships did not look like the race in question. He questioned why race is even a criteria.

    yes AND….

    23. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s