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Monday, October 24, 2011

Orders in Bolt case sound like jackboots in Holt St

Quite a contrast in these comments on Friday on the orders issued in the Bolt case.

David Marr  in Fairfax papers suggested the order requiring publication of a notice drafted by the judge alongside Bolt's regular column and of equal size on two separate occasions over the course of the next two weeks means Bolt and the Herald Sun got off lightly:
Really, Bolt and his editors should be breaking out the champagne. If the nine had sued in defamation, the paper might now be signing cheques for a few million dollars. The legal bills won't be cheap - the paper has been directed to pay most of the trial costs - but Bolt's ugly columns have not cost much more than a fair dose of embarrassment.
Chris Merritt in The Australian on the other hand thinks an order like this means the jackboots can't be far behind::
(The law) has already had a corrosive effect not just on free speech but on the Federal Court's standing. It has encouraged (Justice) Bromberg to believe he is required by law to take on the role of uber-editor, criticising words and phrases and taking it on himself to list material that Bolt should have included in his columns. Within days, the nation will be treated to a spectacle that has no place in a free society. Bromberg, using the coercive power of the state, will force the free media to publish the judge's opinion. There is a solid line of precedents to support such a course, and those precedents stretch all the way back to Berlin in the 1930s.
Marr sees the need to amend the act, acknowledging some limit should be set on this type of public speech, albeit at a higher level:
The anti-vilification provisions of the Racial Discrimination Act used to attack Bolt are drafted far too broadly. They outlaw speech that is merely offensive or insulting. Vigorous public discussion in a free society is impossible without causing insult and offence.... But short of abolishing these anti-vilification protections entirely, no amendment of the law would have helped the hapless Bolt. He didn't just offend and insult. Justice Bromberg found the columnist's efforts were also likely to humiliate and intimidate the fair-skinned Aborigines attacked in those columns. Bolt ticked all the boxes in the Racial Discrimination Act. And the judge clearly signalled that in his opinion the columnist had also defamed the nine by accusing them of the cynical late-life adoption of Aboriginal identity.
Merritt says the orders strengthen the argument that the law should be repealed and links the Bolt matter to other developments:
Those who see this as a simple debate about journalistic standards are wilfully blind to the horrific course the law is taking in this country....This issue will not go away. It will fester up to the next election, creating one more focus for the opposition to chip away at the Gillard government's emerging vulnerability on free speech. Very soon, the government will reveal its formal position on whether it believes it should change the law to encourage Australians to sue each other for breaches of privacy. Those who believe this proposal is anything but a sop to Bob Brown's hatred of the media are again wilfully blind.
Marr notes the decision not to appeal:
The Herald Sun put out a statement after yesterday's decision: ''All Australians should have the right to express their opinions freely, even where their opinions are controversial or unpopular to some in the community.'' Absolutely correct. But surely not even in this awkward jam is Bolt's paper arguing that columnists are free to get it so comprehensively wrong when they mount ferocious attacks on people. There are limits.
Merritt thinks it's now up to the government to act and suggests limits are the problem:
Labor needs to decide where it stands on free speech. Remaining silent in the face of such erosion of a fundamental human right will send a very clear message.
For mine, Marr is close to the money. Merritt continues along a well worn path-over the top.

The orders by Justice Bromberg include this text of the notice to be published:

In legal proceedings brought by Pat Eatock against Andrew Bolt and The Herald & Weekly Times Pty Ltd, the Federal Court of Australia ordered that this notice, including the following declaration made by the Court on 19 October 2011, be published in the Herald Sun in print and online. The reasons for judgment of the Federal Court of Australia in this matter (including a summary of those reasons) are accessible from the Federal Court website [and in relation to the publication of this notice online – “and via the following link (insert hyperlink)”].
The Court declares that:
On 15 April 2009, the Herald and Weekly Times Pty Ltd published in the Herald Sun newspaper an article written for publication by Andrew Bolt under the title “It’s so hip to be black”. On or about 15 and 16 April 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White is the new black”. On 21 August 2009, the Herald and Weekly Times Pty Ltd published a second article written for publication by Andrew Bolt in the Herald Sun newspaper under the title “White fellas in the black”. On 21 August 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White fellas in the black” (collectively “the Newspaper Articles”).

The writing of the Newspaper Articles for publication by Andrew Bolt and the publication of them by the Herald and Weekly Times Pty Ltd contravened s 18C of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:
(a) the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent 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, because the articles conveyed imputations to those Aboriginal persons that:
(i) 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
(ii) fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
(b) the Newspaper Articles were written and published, including because of the race, ethnic origin or colour of those Aboriginal persons described by the articles; and
(c) that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth) because the Newspaper Articles were not written or published reasonably and in good faith:
(i) in the making or publishing of a fair comment on any event or matter of public interest; or
(ii) in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.

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