Andrew Bolt, Free Speech & the Racial Discrimination Act
On Wednesday the 28th of September, Justice Bromberg delivered his judgement finding Herald Sun
columnist Andrew Bolt guilty of breaching section 18(c) of the Racial Discrimination Act. The case, which
was heard in the Federal Court of Australia, was in response to two of Bolt’s articles that referred to
prominent Indigenous people of mixed ancestry. The nine applicants in the case were directly referred to in
the articles titled ‘It’s so hip to be black’ and ‘White fellas in the black’, and argued that Bolt had ‘sought to
imply that they identified as Aborigines in order to gain career, social or other advantage’ (Quinn 2011).
One of these applicants was Dr Wayne Atkinson, my teacher in Indigenous Studies at the University of
Melbourne. It is in this context that I write this paper.
This essay will be divided into three sections which will:
1.
Focus on Wayne Atkinson and his history with Andrew Bolt from my discussions with Wayne, as
well as his personal reflections on Bolt’s columns.
2.
Examine some of the finer points of the Racial Discrimination case, and Bolt’s defence before
elaborating on Justice Bromberg’s findings.
3.
Address the suggestion that Bolt’s conviction is an attack on the right to free speech by
demonstrating the limited nature of that right in law.
Andrew Bolt and Wayne Atkinson
I first met Wayne earlier this year on a field-based subject he has been running for many years through the
University of Melbourne. The subject, aptly named On Country Learning, is a five-day summer intensive
course based in the Barmah-Millewa forest-wetlands of Yorta-Yorta country. The main focus of the subject
is the historic struggle for land justice that culminated in the Yorta Yorta native title case (1994-2002) in
which Wayne was a principle claimant.
Born on Yorta-Yorta ancestral land on the riverbank between Mooroopna and Shepparton, Wayne was
raised to be proud of his Aboriginality (Atkinson 2011). His grandparents and siblings taught him to draw
upon their rich cultural heritage to gain strength and to use this to ‘transcend the negative stereotypes and
prejudices of others’ (Atkinson 2011:9). Wayne has spent almost his entire adult life working in Aboriginal
affairs and has devoted the last three decades to fighting for land justice and self determination for his
people.
As a teacher, Wayne is one of the best I have ever encountered. He holds no grudges, and is incredibly
patient while students grapple with understanding the concept of Aboriginality and the history of colonial
legacies.
Bolt first wrote about Wayne in May 2005 (“Yorta-Yorta money for myths”, The Herald Sun 5/5/2005). In
this column, Bolt makes gratuitous remarks about the Yorta-Yorta native title case and accuses the
claimants of ‘not being the real deal’ (Bolt 2005). He declares that the Yorta-Yorta people have ‘lost touch
with their lands and traditions’ and mockingly describes Wayne typing on his ‘traditional computer’, as if
his use of modern technology is an adaption that disqualifies Indigenous people from being able to walk in
both worlds and to maintain their unique Aboriginality and connections with the ancestral lands (Bolt
2005). Indeed Wayne is a Traditional Owner of the Yorta Yorta Nation Aboriginal Corporation, an
inherent right, that only comes from ones ancestral lineage with the original ancestors who have been in
occupation since time immemorial (Atkinson,2011).
Wayne, who was teaching a full course load at the University of Melbourne at the time this article was
published, had it bought to his attention by one of his students (Atkinson 2011). While he found the article
offensive, he decided on this occasion to ignore it so that he could ‘get on with the important business of
teaching students about the Yorta-Yorta case’ (Atkinson 2011:10).
Less than a year later however, Bolt published another gratuitous article, this time targeting Wayne’s
brother Graham as well. The column, titled “Smoke and Mirrors”, accused the brothers’ of choosing to be
‘professional Aboriginals’ in order to gain access to ‘different rights to those they’d have as mere
Australians’ (Bolt 2006). This time it was Wayne’s daughter, who raised the Bolt article, after feeling very
offended and insulted by what was written, about her father (Atkinson 2011). Wayne felt that this article, as
insulting and offensive as it was to himself and his brother, was also affecting their friends and families who
were concerned about ‘the integrity, respect, pride and credibility with which [they] wear [their] identity as
Yorta-Yorta and Dja Dja Wurrung people’ (Atkinson 2011:10).
Wayne was also concerned by Bolt’s online blog, which he suggests Bolt used as another medium to ‘play
into the prejudices and misconceptions that people have about Aboriginal people’ (Atkinson 2011:10).
More Bolt articles attacking Wayne followed over the next few years, each reiterating similar sentiments.
“Traditions in a naïve style” (Bolt 2008) and “Its so hip to be black” (Bolt 2009) again attacked Wayne’s
Aboriginality and suggested that he only identified as such in order to access benefits only available to
Aboriginal people.
Bolt’s articles continually focused on the Atkinson’s’ great-grandfather, an Indian man, as if his ethnicity
voided Wayne’s Aboriginal lineage. Bolt wrote as though he was uncovering a huge secret, as though the
Atkinson’s’ had been trying to hide their Indian heritage for years. This could not be further from the
truth. When I first met Wayne, one of the first stories he told us was about his great-grandfather Thomas
Shadrach James. Wayne spoke proudly of this Mauritius-born man, who volunteered as a teacher at the
Maloga Aboriginal School (1881-1888) and then later taught at the Cummeragunja Reserve (1888-1932)
(Atkinson 2011). James dedicated his life to the Yorta-Yorta people and educated some of the community’s
most vocal activists. He was a much -admired teacher and leader in the Yorta-Yorta community and his
Indian heritage was never seen as something to be ashamed of. Indeed because of his long and dedicated
connection with the Yorta Yorta community Wayne asserts that he ‘was one and of the same with the
people’ (Atkinson 2011).
Bolt’s articles were extremely offensive to Wayne (Atkinson 2011). His columns were personalised attacks
on Wayne’s sense of identity and being. Bolt’s comments questioned Wayne and Graham’s integrity and
attempted to undermine Wayne’s academic achievements, suggesting that he used his Aboriginality to get
ahead.
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The Racial Discrimination Case
Wayne and Graham were not the only Aboriginals of mixed ancestry that Bolt offended. The Racial
Discrimination, 1975 case was led by Aboriginal activist Pat Eatock who was soon joined by eight other
Indigenous Australians who had been mentioned in the two of Bolt’s articles in question. Graham Atkinson
said that the group challenged Bolt under the RDA rather than defamation laws because they wanted
vindication, not financial compensation but that was a civil right that others could pursue if they chose
(Ricci 2011).
Section 18(c) of the Racial Discrimination Act says 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, color or national
or ethnic origin of the other person or of some or all of the people in the group’ (cited in Ricci, 2011).
The applicants argued that the two articles, “Its so hip to be black” and “White fellas in the black”, cast
aspersions about the Aboriginal identity of a number of named Aboriginal persons and implied that their
choice to identify as Aboriginal was ‘opportunistic and for the purpose of providing them with financial and
other benefits reserved for ‘genuine’ Aboriginal persons who are darker, rather than fairer, skinned
Aboriginal persons’ (Pat Eatock 2011). In light of this, the applicants argued that Bolt’s articles were likely
to hurt, offend, humiliate and insult those mentioned, thus contravening the Racial Discrimination Act.
In his defence, Bolt argued that he had no intention to offend, and that the articles were written in the
public’s best interest (Quinn 2011a). According to Bolt, his articles sought to look beyond “trivial” racial
differences to the commonality (Quinn 2011). He reiterated these sentiments outside court after the
judgement had been handed down; “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” (Quinn 2011a). At one point
during the trial Bolt pointed at Geoff Clarke, one of the Aboriginal applicants in the case, and accused him
of being a racist. “He’s not a victim of racism, he is racist. He promotes racial division” (cited in Quinn
2011).
The Herald Sun’s legal team did their best during the trial to paint Bolt as a ‘valiant crusader against
racism’, but outbursts like that one did little to help his image. According to Bolt, the pale skin of the ‘white
Aborigines’ he referred to in his columns ‘signifies that they have open to them a variety of identities from
which to choose’ (cited in Quinn 2011). Bolt argued that the fact that they have chosen to identify with the
Aboriginal part of their heritage is ‘racist’ and part of a ‘broader trend that needs to be brought to light,
debated, and ultimately stopped’ (Quinn 2011).
The topic of race-based awards was brought up during the trial in response to the subtitle of one of Bolt’s
columns: “What’s an Aboriginal artist from the bush to think when he or she sees yet another white man
lope off with a prize originally meant to inspire blacks?” (Bolt 2009a). While on the witness stand, Bolt
claimed that awards and prizes given to light-skinned Indigenous people came at the expense of ‘needy,
dark-skinned people’ like those ‘up North’ (Quinn 2011). When it was pointed out to Bolt that this
argument contradicts his earlier sentiments against promoting racial division, he quickly stated that he was
against race-based prizes to begin with as ‘the setting aside of prizes and jobs on race-based ground is
racist’ (Bolt cited in Quinn 2011).
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This notion of Aboriginal people ‘up North’ being ‘true’ Indigenous people goes hand-in-hand with Bolt’s
suggestion in his 2005 column that Wayne’s use of a computer highlighted that he had ‘lost touch with
traditional customs’ a similar argument that was run in the historic Yorta Yorta case (Bolt 2005). Bolt
appears to be stuck in the same ‘frozen in time mindset’ as Justice Olney, in the Yorta-Yorta Native Title
case (1996-1998). Bolt and Olney both failed to attribute any capacity for traditional Aboriginal laws and
customs to adapt to changing circumstances. For Bolt it seems, only those ‘dark-skinned’ people living
‘traditional’ lives in the remote outback have the right to identify as Aboriginal.
Bolt continued to contradict himself throughout the entire trial. While he maintained that he was against
any classification built on race, ethnicity or even nationality (Bolt 2011), he seemed obsessed, as he did in his
columns, with the distinctions between skin shades, ‘full-blood and part-blood’ (Quinn 2011).
He was forced to concede that he had made a number of factual ‘errors’ in the two columns, but his counsel
described them as ‘entirely immaterial- there are many of them but they are immaterial to the question of
whether this is fair comment’ (Neil Young QC cited in Quinn 2011).
Justice Bromberg disagreed.
In his ruling handed down on the 28th of September 2011, Justice Bromberg found Bolt’s writings to be
‘grossly incorrect’ and to have contained ‘significant distortions of the facts’ (Bromberg cited in The Age
Online 2011). He made a particular response to Bolt’s comments that Wayne and Graham Atkinson’s’
‘right to call [themselves] Aboriginal rests on little more than the fact that [their] Indian great-grandfather
married a part-Aboriginal women’ (Bolt 2009). Of this comments made about the Atkinson’s’, Justice
Bromberg said:
The facts given by Mr. Bolt and the comment made upon them are grossly incorrect. The
Atkinson’s' parents are both Aboriginal as are all four of their grandparents and all of their
great grandparents other than one who is the Indian great-grandfather that Mr. Bolt
referred to in the article. (Bromberg cited in The Age Online 2011)
Justice Bromberg found Bolt to have contravened section 18(c) of the Racial Discrimination Act in
the two articles in question. In his ruling, he said he was ‘satisfied that fair-skinned Aboriginal
people were reasonably likely to have been offended, insulted, humiliated or intimidated by the
imputations conveyed by the newspaper articles’ (Eatock V Bolt [2011] FCA 1103). Furthermore,
Justice Bromberg found that the articles had not been written in good faith, and that they
contained inflammatory language and distortions of the truth. He stated that the columns had
failed the ‘fair comment’ test because ‘Mr. Bolt’s presentation of numerous “facts” were
substantially proven to be untrue’ (Ricci 2011). Justice Bromberg also stated in his findings that
people should be free to ‘fully identify with their race without fear of public disdain or loss of
esteem’ (Bromberg cited in Ricci 2011).
Implications for freedom of speech
Shortly after the judgement had been handed down, Bolt stood out the front of the Federal Court, in
contravention of Justice Bromberg’s reasoning’s on the protection of freedom of speech under Part 11A, of
the RDA, which is ‘concerned to protect the fundamental right of freedom of Expression’ and told the
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waiting media that it had been a ‘terrible day’ for free speech in Australia. "It is particularly a restriction
on the freedom of all Australians to discuss multiculturalism and how people identify themselves” (Bolt
cited in Quinn 2011a; FEDERAL COURT OF AUSTRALIA Eatock v Bolt [2011] FCA 1103 SUMMARY
BROMBERG J,28, Sep, 2011:4).
Bolt reiterated these sentiments in his opinion piece published in the Herald Sun the following day. The
column, explicitly titled “This is a sad day for free speech”, warned readers that they ‘could be next’ as Bolt
could ‘not be the only Australian to wonder why fair people with European heritage insist that they are
Aboriginal only’ (2011). This statement completely misrepresents that facts of the case to Bolt’s readers,
suggesting that he had done little but query the current notions of Aboriginality.
The column opens with Bolt expressing his disbelief at Justice Bromberg’s findings: “I am truly shocked. I
cannot believe that this is Australia, a land of free speech”. A number of journalists and political
commentators, including many of Bolt’s critics, have expressed similar sentiments about the case. In a
recent opinion piece in The Sydney Morning Herald (28/10/2011) Julian Assange argued that while he
disagrees with Bolt’s opinions in the columns, the conviction ‘ought to raise alarm bells for all who believe
in freedom of expression’ (Assange and Robinson 2011). Journalist Andrew Dodd agreed, describing the
ruling as a ‘slap in the face for free expression’ (2011).
These commentators, and Bolt, are falsely assuming that freedom of speech is an absolute right. According
to Professor Sarah Joseph from the Castan Centre for Human Rights Law, there are indeed ‘many limits to
one’s free speech rights such as the laws of defamation, contempt of court and even copyright law’ (2011).
The Racial Discrimination Act is just one of the many constraints on free speech that exists in Australia.
Australia is a party to the International Covenant on Civil and Political Rights, which under Article 19,
protects freedom of expression. However even in such a significant international treaty, there are limits
placed on this right. Article 19(3) expresses limits to the freedom of expression in the following terms:
“The exercise of the right [to freedom of expression] carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as provided by law:
(a) For the respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals”
(cited in Joseph 2011)
Freedom of expression is, and always has been, a limited right in this country. Bolt did not lose this case
because he wished to challenge Aboriginal identity politics, as he would have his readers believe, he lost it
because of the manner in which he wrote his columns (Joseph 2011). He lost it because he ‘included many
false assertions which were likely defamatory of the named people… the incursion into his free speech is no
more than that imposed by defamation laws’ (Joseph 2011).
Andrew Dodd has been one of a small but surprising number of commentators to express their concerns
about the judiciary controlling the media in response to Bolt’s conviction (2011). “Given that many in the
judiciary have a very dim view of even the most responsible forms of journalism,” he writes, “how would
the courts have us write...?” (Dodd 2011). I am unsure where this idea of the court’s concern with the media
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is based, and neither Dodd nor the other writers expressing similar concerns offer an explanation. Greg
Barns, barrister and President of the Australian Lawyers Alliance, was equally baffled by these suggestions
and wrote the following in response to Dodd’s article:
“The judiciary, as far as I am aware, and I have come across many judges and magistrates
over the years, has no particular view on the media. What they do have a view about is
ensuring that the media does not undermine fundamental rights like… ensuring that
journalists like Andrew Bolt do not breach the Racial Discrimination Act” (Barns 2011)
Ultimately the media is subject to the rule of law, and Justice Bromberg’s decision in Bolt’s case should be
seen as an example of fine judicial and philosophical reasoning (Barns 2011). Bolt’s conviction in this case
has done no harm to the cause of freedom of expression, as this freedom is not absolute (Barns 2011).
Conclusion
During my time on Yorta-Yora country with Wayne, I was privileged enough to get an insiders view into
the community. The more I learnt about the injustices the Yorta-Yorta people have faced, in particular
those relating to their native title claim, the more troubled and frustrated I became. I found it hard to
understand how Wayne, the head-claimant who had dedicated years of his life in hope of achieving land
justice for his people, could remain so calm and even-tempered while he spoke to us of the case. When I
asked him about this he told me that getting angry would not help the cause, and instead he urged me to
‘use the fire in my belly, and the ‘power of voice and the spear of the pen’ to articulate your views and to
write to newspapers and politicians to fight for change. They are the tools of empowerment that were passed
on to us from our great fighters and that’s the most productive way forward, Wayne kept reminding us on
the course.
Wayne would never use the ‘spear of the pen’ to make personal attacks on a group or individual, because
rather than being a symbol of violence, for Wayne the spear represents his will to fight for what he believes
in.
Mr. Bolt would be well served to follow his example. In his columns, Bolt used ‘the spear of his pen’ to make
extremely personal, and factually flawed, attacks on the nine Indigenous people who bought the Racial
Discrimination case to court.
Andrew Bolt’s conviction in this case is not about free speech; rather it is about protecting the rights of
people to fully identify with their race and culture without fear of public disdain (Bromberg cited in Ricci
2011).
Bibliography
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Assange, J. & Robinson, J. (2011) “Play ball, not Bolt, in free speech debate” The Sydney Morning Herald
(28/10/2011)
Atkinson, Wayne (2011) Wayne Atkinson-Witness statement for Eatock V Bolt [2011] (received through
personal communication with Wayne Atkinson 10/11/2011)
Bolt, Andrew (2005) “Yorta-Yorta money for myths” The Herald Sun (5/5/2005)
Bolt, Andrew (2006) “Smoke and mirrors” The Herald Sun (19/4/2006)
Bolt, Andrew (2008) “Traditions in a naïve style” The Herald Sun (5/9/2008)
Bolt, Andrew (2009) “Its hip to be black” The Herald Sun (15/4/2009)
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