Eatock v Bolt [2011] FCA 1103 S 18 C Racial Discrimination Act

28 September 2011, Justice Bromberg

HUMAN RIGHTS – Part IIA Racial Discrimination Act 1975 (Cth) – offensive conduct based on race – newspaper articles and on-line blog articles – principles for determining imputations conveyed by articles – conventional meaning of ‘Aboriginal’ – whether Part IIA of the Racial Discrimination Act restricted to conduct based on racial hatred – whether articles were reasonably likely to offend, insult, humiliate or intimidate – whose reaction is to be assessed – relevance of community standards – ‘in all the circumstances’ – ‘reasonably likely – ‘offend, insult, humiliate or intimidate’

This proceeding raised for consideration Part IIA of the Racial Discrimination Act 1975 (Cth) (the RDA), including questions as to the balance sought to be struck by Part IIA between justifiable freedom of expression and the right to freedom from racial prejudice and intolerance.

The applicant (Eatock) complained that two newspaper articles written by a well-known journalist Andrew Bolt (Bolt), and published in the Herald Sun by the Herald and Weekly Times (HWT), conveyed racially offensive messages about fair-skinned Aboriginal people. In a class action brought on her own behalf and on behalf of a class identified as people who have a fairer, rather than darker skin, and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons, Eatock claimed that Bolt’s articles contravened s 18C(1) of the RDA, which relevantly provided:

(1) 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.

Bolt and the HWT denied that the elements of s 18C had been established and claimed that in any event, their conduct was exempted by s 18D of the RDA, which relevantly provided that:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

…
(b)
in the course of any statement [or] publication…made…for any genuine… purpose in the public interest; or
(c) in making or publishing:
…

(ii) a fair comment on any event or matter of public interest…

Justice Bromberg determined that each of the elements required by s 18C was established and that the conduct of Bolt and HWT was not exempted from unlawfulness by s 18D. His Honour was therefore satisfied that each of Bolt and HWT had contravened s 18C of the RDA by reason of the writing and publication of the articles. As well as making a declaration of contravention, Justice Bromberg made orders which prohibited the re-publication of the articles and required HWT to publish corrective notices in the newspaper in which the articles had appeared.

In the course of his judgment and in construing s 18C of the RDA, Justice Bromberg held that:

(i) section 18C was not restricted to extreme racist behaviour based upon racial hatred or behaviour calculated to induce racial violence;
(ii) whether conduct is reasonably likely to offend a group of people, is to be analysed from the point of view of the ‘ordinary’ or ‘reasonable’ representative of that group, to whom will be attributed characteristics consistent with what might be expected of a member of a free and tolerant society;
(iii) the phrase ‘reasonably likely’ in s 18C(1)(a) refers to a chance of an event occurring or not occurring which is real, and not fanciful or remote; and
(iv) the phrase ‘offend, insult, humiliate or intimidate’ in s 18C(1)(a) does not extend to personal hurt which is unaccompanied by a public mischief of a kind that the RDA seeks to avoid and refers to conduct that has profound and serious effects.

Justice Bromberg held that Australian Aboriginal people are a race and have a common ethnic origin within the meaning of s 18C(1)(b) and that a person of mixed heritage but with some Aboriginal descent, who identifies as an Aboriginal person and has communal recognition as such, satisfies what is conventionally understood to be an Australian Aboriginal.

His Honour held that from the perspective of fair-skinned Aboriginal people, the articles contained imputations that:

• there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and
• fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

Justice Bromberg was 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 articles. Further, Justice Bromberg was satisfied that the causal nexus required by s 18C was satisfied because the articles were calculated to convey a message about the race, ethnicity or colour of fair-skinned Aboriginal people, including as to whether those people were sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal people.

In relation to the construction of s 18D of the RDA, Justice Bromberg held:

(i) the onus of proof under s 18D falls on a respondent; and
(ii) that an assessment of whether conduct is done ‘reasonably and in good faith’ within the meaning of s 18D, involves a consideration of both objective and subjective good faith. Objective good faith will be assessed by reference to the values underlying Part IIA.

Justice Bromberg concluded that the articles were not written ‘reasonably and in good faith’, as required by s 18D of the RDA. The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment’ exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA.