Whilst I acquired a name among leftists as Leon Bertrand QC, little do the leftists concerned know that “teh QC” has now been promoted to the position of judge. In his first major decision, Bertrand J lays down the law with respect to the upcoming case of Andrew Bolt being sued under the Racial Discrimination Act:
Note: This post is intended for entertainment only, and is not intended to pre-empt the court’s decisison in relation to this case. Also, legal representatives and parties named are not necessarily acting for the parties concerned.
FEDERAL COURT OF AUSTRALIA
Pat Eatock & Others v Andrew Bolt & Nationwide News Pty Ltd
12 December 2010
BERTRAND J
J. Burnside for the plaintiffs
Instructed by Holding Redlich
P. Faris QC for the defendant
Instructed by Freehills
1. The plaintiffs are suing the defendant, a columnist for the Herald Sun, a newspaper owned by the second defendant, over comments made by the first defendant about their receipt of scholarships and art prizes on the basis of Aboriginality in two of his columns.
2. Financial damages are not being sought, but the plaintiffs have asked for an order restraining the defendants and the Herald Sun from publishing any material containing ‘‘substantially similar’’ content in the future, and for the removal of the two columns (“the columns”) from the second defendant’s Herald Sun website.
The facts
3. In the first column, published under the headline ‘‘It’s so hip to be black’’ published in the Herald Sun on April 15, 2009, the defendants published a list of individuals, some of them plaintiffs in this case, and suggested that they identified as Aboriginal because it is fashionable to do so among the political left. On the first plaintiff, the first defendant wrote that:
In 1972, Pat Eatock, founding secretary of the Aboriginal Tent Embassy, officially became the first Aborigine to stand for federal parliament in the ACT, even though she looked as white as her Scottish mother, or some of her father’s British relatives.
Indeed, Eatock only started to identify as Aboriginal when she was 19, after attending a political rally, so little did any racial difference matter to her before her awakening to far-Left causes.
But she thrived as an Aboriginal bureaucrat, activist and academic, leading the way for Leeanne Enoch, who stood for Labor in last month’s Queensland election as its “first Aboriginal candidate” in a winnable seat, despite looking as Aboriginal, or not, as Premier Anna Bligh.
4. The first defendant also wrote the following about the second plaintiff:
MEET the white face of a new black race – the political Aborigine.
Meet, say, acclaimed St Kilda artist Bindi Cole, who was raised by her English-Jewish mother yet calls herself “Aboriginal but white”.
She rarely saw her part-Aboriginal father, and could in truth join any one of several ethnic groups, but chose Aboriginal, insisting on a racial identity you could not guess from her features.
She also chose, incidentally, the one identity open to her that has political and career clout.
And how popular a choice that now is. Ask Annette Sax, another artist and – as the very correct Age newspaper described her – a “white Koori”.
Her father was Swiss, and her mother only part-Aboriginal. Racially, if these things mattered, she is more Caucasian than anything else. Culturally, she’s more European. In looks, she’s Swiss.
But she, too, has chosen to call herself Aboriginal, which happily means she could be shortlisted for this year’s Victorian Indigenous Art Award.
5. The first defendant went on to suggested that choice of the plaintiffs to identify as Aboriginal was proof of ‘‘a whole new fashion in academia, the arts and professional activism’’. He added that ‘‘for many of these fair Aborigines, the choice to be Aboriginal can seem almost arbitrary and intensely political’’.
6. The second column, titled ‘‘White fellas in the black’’ was of a similar vein. In that column, the first defendant inter alia wrote the following about the third and fourth plaintiffs:
AS you see, the two men on the right are from a tribe of people who face terrible racism just because of the colour of their skin.
So you’ll be thrilled that both have won a rare opportunity – one offered to their race alone to end such injustice.
The man to the right, Sydney arts academic Danie Mellor, this week won our richest prize for Aboriginal artists – the $40,000 Telstra Award.
And the man to the left, Sydney law academic Mark McMillan, has won one of our richest prizes for Aboriginal students – the Fulbright Indigenous Scholarship.
If, studying the faces of these two “Aboriginal” men you think this is surely the most amazing stretch of definition, you’re wrong.
7. Counsel for the plaintiffs contended that the columns contravened the Racial Discrimination Act 1975 (“the Act”). Section 18C of the Act reads:
Offensive behaviour because of race, colour or national or ethnic origin
(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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
8. Counsel for the plaintiffs submitted that the columns were always likely to offend, insult, humiliate or intimidate the plaintiffs, and that the writing and publishing of the columns constituted acts done otherwise than in private because of the race of the plaintiffs.
9. Mr Faris for the defendant conceded that the columns were of a public nature and were likely to offend the plaintiffs, but disputed whether the writing or publishing of the columns constituted acts for the purposes of the Act.
10. Mr Faris also disputed that the columns were published as a result of the race of the plaintiffs. Mr Faris argued that the columns were inspired by and critiques of the racial identity of the plaintiffs, not their actual race.
11. In the alternative, it was also submitted on behalf of the defendants that even if the columns fell under s 18C of the Act, the columns are protected by the implied constitutional right to political communication found by the High Court in cases such as Nationwide News v Wills (1992) 177 CLR 1 and ACTV v The Commonwealth (1992) 177 CLR 106.
Analysis
12. As previously stated, the columns are criticisms of the plaintiffs on the basis of their identification as Aborigines as part of a fashion among artists and the political left, when the first defendant they neither appear to be or are particularly Aboriginal.
13. The columns also suggested that the plaintiffs are winning prizes, scholarships and other privileges on the basis of their Aboriginality when they should not be entitled to do so due to their supposed lack of Aboriginality.
14. To my mind it is quite clear that such controversial views would cause offence, and would also humiliate and anger the plaintiffs. There is also little doubt that the remarks contained in the columns were indeed “otherwise than in private”, given that the Herald Sun is a Melbourne tabloid which sells hundreds of thousands of copies every week.
15. Whether the publishing of the columns constituted acts which were as a result of the racial identity of the plaintiffs for the purposes of the Act is less clear-cut, and requires a discussion on the relevant law. Section 15a of the Acts Interpretation Act 1901 provides that:
Construction of Acts to be subject to Constitution
Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.
16. Section 18C of the Act must therefore be read in terms of the implied right to political communication alluded to above. The columns are political, given that issues concerning racial identity are political in nature and the criticisms which are levelled at the left side of politics.
17. It follows that the correct interpretation of s18C would require a clear distinction between political speech and acts within the meaning of the Act, with the columns being included within the former.
18. Moreover, courts have generally been reluctant to encroach on free speech. In Melbourne University Student Union Inc (in liq) v Ray [2006] VSC 205 (14 June 2006), Hollingworth J spoke of “the considerable weight which the courts give to free speech” in declining a liquidator’s request to grant orders which would have the effect of silencing a critic. Similarly, in Australian Broadcasting Corporation v O’Neill [2006] HCA 46, Gleeson CJ and Crennan J referred to “the public interest in the right of free speech” which “goes beyond the public benefit that may be associated with a particular communication”.
19. As a result, it seems fair to conclude that courts are generally reluctant to interpret and apply laws in ways which result in limitations being placed upon free expression. Leaving the Acts Interpretation Acts aside, to my mind it would be wrong to wrong to find that a legislative provision restricted free speech unless there was a compelling reason or such an intention was made clear within the statute in question.
20. Even if the columns fell foul of s 18C of the Act, I then would find that section 18C is contrary to the implied Constitutional right to political communication. As previously noted, there is little doubt that the columns are political in nature.
21. It should also be observed that to declare speech to be unlawful on the basis that it offends others is to tread on very dangerous ground, as on subjects such as religion, race, politics and other subjects it is difficult to express one’s views without potentially offending others. Such declarations would have the effect of rendering all sorts of speech potentially unlawful.
22. Moreover, it is indeed in the public interest for controversial views to be expressed. The first defendant is a controversial columnist, and it is easy to understand how many of his views, on subjects from climate change to the stolen generations and the plaintiffs in the present case would offend others. But allowing such voices to express themselves allows for public debate, where it is hoped that stronger ideas prevail over the weaker ones. Silencing controversial participants would only have the effect of weakening the contest of ideas
23. Therefore, outlawing the columns because they offend the plaintiffs would set a dangerous precedent.
24. The plaintiffs seek orders restraining the defendants from publishing any similar columns and the removal of the columns from the second defendant’s website. For the reasons above, this court will not grant any such orders.
Orders
25. The claims of the plaintiffs are dismissed.
26. The plaintiffs to pay the costs of the defendants.
