• Any

Eatock v Bolt[2011] FCA 1103

SUMMARY

BROMBERG J

28 SEPTEMBER 2011

MELBOURNE

SUMMARY

1. Inaccordance with the practice of the Federal Court in some cases of publicinterest, importance or complexity, the following summaryhas been prepared toaccompany the publication of the Court’s reasons for judgment. Thissummary is intended to assist in understandingthe outcome of this proceedingand is not a complete statement of the conclusions reached by the Court. Theonly authoritative statementof the Court's reasons is that contained in thepublished reasons for judgment which will be available on the internet athttp://www.fedcourt.gov.au/together with this summary.
2. MsEatock has brought this proceeding on her own behalf and on behalf of peoplelike her who have a fairer, rather than darker skin,and who by a combination ofdescent, self-identification and communal recognition are, and are recognisedas, Aboriginal persons. I will refer to this group of people as“fair-skinned Aboriginal people”.
3. MsEatock complains about two newspaper articles written by Mr Andrew Bolt andpublished by the Second Respondent (“the Herald& Weekly Times”)in theHerald Sunnewspaper and on that paper’s online site. Shealso complains about two blog articles written by Mr Bolt and published by theHerald &Weekly Times on theHerald Sun website.
4. Broadlyspeaking, the nature of her complaint is that the articles conveyed offensivemessages about fair-skinned Aboriginal people,by saying that they were notgenuinely Aboriginal and were pretending to be Aboriginal so they could accessbenefits that are availableto Aboriginal people. Ms Eatock wants the law toaddress this conduct. She wants declarations and injunctions and an apologyfromthe Herald & Weekly Times. She calls in aid Part IIA of theRacialDiscrimination Act 1975 (Cth) (“theRacial Discrimination Act”)which includessections 18C and18D. She claims that by their conduct, Mr Boltand the Herald & Weekly Times have contravenedsection 18C of theRacialDiscrimination Act.
   5. Inorder to succeed in her claim, Ms Eatock needed to establish that:
      • It wasreasonably likely that fair-skinned Aboriginal people (or some of them) wereoffended, insulted, humiliated or intimidatedby the conduct; and
      • That the conductwas done by Mr Bolt and the Herald &Weekly Times, including because of therace, colour or ethnic origin of fair-skinnedAboriginalpeople.
6. MrBolt and the Herald &Weekly Times dispute that the messages that Ms Eatockclaims were conveyed by the articles, were in factconveyed. They deny that anyoffence was reasonably likely to be caused and also that race, colour or ethnicorigin had anythingto do with Mr Bolt writing the articles or the Herald &Weekly Times publishing them. They also say that - if Ms Eatock shouldestablish those elements which she needs to satisfy the Court about - theirconduct should not be rendered unlawful, because it shouldbe exempted orexcused. For that purpose, they rely onsection 18D of theRacialDiscrimination Act.
7. Section18D exempts from being unlawful, conduct which has been done reasonably and ingood faith for particular specified purposes, includingthe making of a faircomment in a newspaper. It is a provision which, broadly speaking, seeks tobalance the objectives ofsection 18C with the need to protect justifiablefreedom of expression.
8. Allof that raises interesting, difficult and important questions which needed to beresolved in order for Ms Eatock’s claimto be determined.
9. Thenewspaper articles the subject of Ms Eatock’s claim, describe what in thiscase has been referred to as a ‘trend’. The ‘trend’ andthe people who constitute it are the subject of criticism by Mr Bolt. Eacharticle refers to a numberof named individuals who are said to have chosen toidentify as Aboriginal, as examples of the people in the wider‘trend’.
10. Collectively,eighteen individuals are named in the articles. Nine of those individuals gaveevidence in this case. Each of themgenuinely identifies as an Aboriginalperson and has done so since their childhood. Each was raised to identify as anAboriginalperson and was enculturated as an Aboriginal person. None of them‘chose’ to be Aboriginal. Nor have they used theirAboriginalidentity inappropriately to advance their careers. Each is entitled to regardthemselves and be regarded by others asan Aboriginal person within theconventional understanding of that description.
11. PartIIA was inserted into theRacial Discrimination Act in 1995. A number of issueswere raised in the case about what the provisions ofPart IIA mean and how thoseprovisions should be applied.
12. MrBolt and the Herald & Weekly Times relied upon the heading ofPart IIA tocontend that the operation ofPart IIA is restricted to racist behaviour basedupon racial hatred. I disagree. The legislative history ofPart IIA and thewords utilised inPart IIA show that contention to be incorrect. No decision ofthis Court has interpretedPart IIA to be limited to the incitement of racialhatred.
13. PartIIA has a broader field of operation. Infused by the values of human dignityand equality, the objectives ofPart IIA extend to promoting racial toleranceand protecting against the dissemination of racial prejudice.
14. PartIIA is also concerned to protect the fundamental right of freedom of expression.Freedom of expression is an essential component of atolerant and pluralisticdemocracy.Section 18D of theRacial Discrimination Act exempts from beingunlawful, offensive conduct based on race, where that conduct meets therequirements ofsection 18D and may therefore be regarded as a justifiableexercise of freedom of expression. In that way,Part IIA seeks to find abalance between freedom of expression and freedom from racial prejudice andintolerance based on race.
15. Whetherconduct is reasonably likely to offend, insult, humiliate or intimidate a groupof people calls for an objective assessmentof the likely reaction of thosepeople. I have concluded that the assessment is to be made by reference to anordinary and reasonablemember of the group of people concerned and the valuesand circumstances of those people. General community standards are relevantbutonly to an extent. Tolerance of the views of others may be expected in amulticultural society, including from those personswho are the subject ofracially based conduct.
16. Ihave concluded that from the perspective of fair-skinned Aboriginal people, themessages (or what lawyers call “the imputations”)conveyed by thenewspaper articles which Mr Bolt wrote, included that:
    • There arefair-skinned people in Australia with essentially European ancestry but withsome Aboriginal descent, of which the individualsidentified in the articles areexamples, who are not genuinely Aboriginal persons but who, motivated by careeropportunities availableto Aboriginal people or by political activism, havechosen to falsely identify as Aboriginal; and
    • Fair skin colourindicates a person who is not sufficiently Aboriginal to be genuinelyidentifying as an Aboriginal person.
17. Iam satisfied that fair-skinned Aboriginal people (or some of them) werereasonably likely, in all the circumstances, to have beenoffended, insulted,humiliated or intimidated by the imputations conveyed by the newspaper articles.
18. Acausal nexus is required to be demonstrated between the act reasonably likely tooffend and the racial or other characteristicsor attributes of the personsreasonably likely to have been offended. A test for that causal nexus has beenexpressed in differentways including whether the act was “plainlycalculated to convey a message about” the racial group?
19. Ihave concluded that, for the purpose ofsection 18C of theRacial DiscriminationAct, Aboriginal people are a race and have common ethnic origin.
20. Theimputations which I have found were conveyed by the newspaper articles wereplainly calculated to convey a message about therace, ethnicity or colour offair-skinned Aboriginal people, including whether those people are sufficientlyof Aboriginal race,colour or ethnicity to be identifying as Aboriginal. I amsatisfied that Mr Bolt both understood and intended that imputations ofthatkind were conveyed by the newspaper articles he wrote. I have therefore foundthat in writing those parts of the newspaperarticles which conveyed theimputations, Mr Bolt did so including because of the race, ethnic origin orcolour of fair-skinned Aboriginalpeople.
21. Iam also satisfied that the causal nexus has been established in relation to thepublication of the newspaper articles by the Herald& Weekly Times.
22. Inreaching those conclusions, I have observed that in seeking to promote toleranceand protect against intolerance in a multiculturalsociety, theRacialDiscrimination Act must be taken to include in its objectives tolerance for andacceptance of racial and ethnic diversity. At the core of multiculturalismisthe idea that people may identify with and express their racial or ethnicheritage free from pressure not to do so. People shouldbe free to fullyidentify with their race without fear of public disdain or loss of esteem for soidentifying. Disparagement directedat the legitimacy of the racialidentification of a group of people is likely to be destructive of racialtolerance, just as disparagementdirected at the real or imagined practices ortraits of those people is also destructive of racial tolerance.
23. Ihave not been satisfied that the offensive conduct that I have found occurred,is exempted from unlawfulness bysection 18D. The reasons for that conclusionhave to do with the manner in which the articles were written, including thatthey contained errorsof fact, distortions of the truth and inflammatory andprovocative language.
24. Incoming to that view, I have taken into account the possible degree of harm thatI regard the conduct involved may have caused. Beyond the hurt and insultinvolved, I have also found that the conduct was reasonably likely to have anintimidatory effect onsome fair-skinned Aboriginal people and in particularyoung Aboriginal persons or others with vulnerability in relation to theiridentity.
25. Ihave taken into account that the articles may have been read by some peoplesusceptible to racial stereotyping and the formationof racially prejudicialviews and that, as a result, racially prejudiced views have been reinforced,encouraged or emboldened. Inthe balancing process, I have also taken intoaccount the silencing consequences upon freedom of expression involved in theCourtmaking a finding of contravention.
26. Ihave concluded that the conduct of Mr Bolt and the Herald & Weekly Times isnot exempted bysection 18D of theRacial Discrimination Act from being unlawfulbecause:

(i)it was not done reasonably and in good faith in themaking or publishing of a fair comment, within the requirements ofsection18D(c)(ii) of theRacial Discrimination Act; or

(ii)done reasonably and in good faith in the course of any statement,publication or discussion, made or held for a genuine purposein the publicinterest, within the requirements ofsection 18D(b) of theRacial DiscriminationAct.

27. Onthe basis of my findings, I am satisfied that each of Mr Bolt and the Herald& Weekly Times engaged in conduct which contravenedsection 18C of theRacial Discrimination Act.
    28. Ihave made no findings of contravention in relation to the two blog articles. Those articles were relied upon for additional claimswhich were raised by MsEatock very late in the trial of the proceeding. It would have beenprocedurally unfair to Mr Bolt and theHerald &Weekly Times to havepermitted Ms Eatock to pursue those additional claims.
29. Asto the relief which should be granted by the Court, I intend to direct theparties to confer with a view to agreeing on ordersto give affect to theCourt’s reasons for judgment. I have indicated that the Court will make adeclaration that Mr Bolt andthe Herald &Weekly Times have contravenedsection 18C of theRacial Discrimination Act. I have also indicated that I willmake orders prohibiting the republication of the newspaper articles. In theabsence of the publicationof an apology, I will consider making an order forthe publication in theHerald Sunof a corrective notice.
    30. Finally,in dealing with the formulation of the orders to be made by the Court, I haveobserved that it is important that nothingin the orders I make should suggestthat it is unlawful for a publication to deal with racial identification,including by challengingthe genuineness of the identification of a group ofpeople. I have not found Mr Bolt and the Herald & Weekly Times to havecontravenedsection 18C, simply because the newspaper articles dealt withsubject matter of that kind. I have found a contravention of theRacialDiscrimination Act because of the manner in which that subject matter was dealtwith.

FEDERAL COURT OF AUSTRALIA

Eatock v Bolt[2011] FCA 1103

THE COURT ORDERS THAT:

1. Theparties are directed to confer with a view to agreeing on orders to give effectto the Court’s reasons.
2. Ifthere is agreement, the parties shall on or before 4:00pm on 5 October 2011,file a joint minute setting out the orders which theyconsider should bemade.
3. Inthe absence of agreement or complete agreement, each party shall on or before4:00pm on 5 October 2011 file and serve minutes ofthe orders the party contendsshould be made, together with short submissions on those matters which remainnot agreed.
   
   

Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011

REASONS FOR JUDGMENT

1. MsEatock has brought this proceeding on her own behalf and on behalf of peoplelike her who have fairer, rather than darker, skinand who by a combination ofdescent, self-identification and communal recognition are, and are recognisedas, Aboriginal persons.
   2. MsEatock complains about two newspaper articles written by Mr Andrew Bolt andpublished by the Second Respondent (“HWT”)in theHerald Sunnewspaper and on that paper’s online site. She also complains about twoblog articles written by Mr Bolt and published byHWT on theHerald Sunwebsite.
   3. Broadlyspeaking, the nature of her complaint is that the articles conveyed offensivemessages about her and people like her, bysaying that they were not genuinelyAboriginal and were pretending to be Aboriginal so they could access benefitsthat are availableto Aboriginal people. Ms Eatock wants the law to addressthis conduct. She wants declarations and injunctions and an apology fromHWT. She calls in aid theRacial Discrimination Act 1975 (Cth) (“theRDA”). She claims that by their conduct, Mr Bolt and HWT have contraveneds 18C of the RDA.
   4. Inorder to succeed in her claim, Ms Eatock needs to establish that:
      • It wasreasonably likely that she and the people like her (or some of them) wereoffended, insulted, humiliated or intimidated bythe conduct; and
      • That the conductwas done by Mr Bolt and HWT including because of the race, colour or ethnicorigin of Ms Eatock or of the peoplelike her.
   5. MrBolt and HWT dispute that the messages Ms Eatock claims were conveyed by thearticles, were in fact conveyed. They deny thatany offence was reasonablylikely to be caused and also that race, colour or ethnic origin had anything todo with Mr Bolt writingthe articles or HWT publishing them. They also say thatif Ms Eatock should establish those elements which she needs to satisfytheCourt about, their conduct should not be rendered unlawful, because it should beexempted or excused. For that purpose, theyrely ons 18D of the RDA.
   6. Section18D exempts from being unlawful, conduct which has been done reasonably and ingood faith for particular specified purposes, includingthe making of a faircomment in a newspaper. It is a provision which, broadly speaking, seeks tobalance the objectives ofs 18C with the need to protect justifiablefreedom of expression.
   7. Allof that raises interesting, difficult and important questions which I havesought to answer by considering:
      • The Articles:[11]-[64];
      • The AdmittedFacts: [65]-[66];
      • The WitnessEvidence: [67]-[166];
      • AboriginalIdentity: [167]-[190];
      • Part IIA of theRacial Discrimination Act: [191]-[240];
      • Were theArticles reasonably likely to offend?: [241]-[302];
      • Were theArticles written and published because of race, colour or ethnic origin?:[303]-[335]; and
      • Does the freedomof expression exemption apply?: [336]-[451].
   8. Forthe reasons that follow, I have determined that some of the messages (whatlawyers call “the imputations”) whichwere conveyed by the twonewspaper articles, were reasonably likely to offend, insult, humiliate orintimidate the people in question(or some of them), and that those articleswere written or published by Mr Bolt and HWT including because of the race,colour orethnic origin of those people. I have not been satisfied that theconduct is exempted from unlawfulness bys 18D. The reasons for that conclusionhave to do with the manner in which the articles were written, including thatthey contained erroneousfacts, distortions of the truth and inflammatory andprovocative language and that as a result, the conduct of Mr Bolt and HWT isnotjustified in the manner required bys 18D of the RDA.
   9. Ihave made no findings of contravention in relation to the two blog articles. Those articles were relied upon for additional claimswhich were raised by MsEatock very late in the trial of the proceeding. It would have beenprocedurally unfair to Mr Bolt and HWTto have permitted Ms Eatock to pursuethose additional claims.
   10. Therelief to be granted by the Court is dealt with at the end of these reasons forjudgment.

THE ARTICLES

11. HWTpublishes theHerald Sun newspaper in print and online. TheHeraldSun is a daily newspaper printed and published in Victoria and soldthroughout Australia with a circulation of approximately 1.3 millionreaders. TheHerald Sun is also published online on theHerald Sun website.
12. MrBolt is a journalist. He wrote each of the articles. At the time he did thatand at the time that he gave evidence, he was anemployee of HWT employed towrite articles to be published by HWT in theHerald Sun. He writes atwice weekly column in theHerald Sun newspaper. Since 2005, Mr Bolt hasalso written articles and comments for a blog which is published by HWT on theHerald Sun website as the “Andrew Bolt Blog”. Members of thepublic are able to post or upload comments onto the blog. TheHeraldSun’s website is one of the most popular news websites inAustralia.
13. MrBolt wrote an article entitled“It’s so hip to beblack” (“the first article”) which was published in printby HWT in theHerald Sun on 15 April 2009. A copy of that article(annotated with paragraph numbers) is annexed to these reasons for judgment as“1A”.On or about 15 April 2009 and 16 April 2009, HWT alsopublished the first article in theHerald Sun online under the title“White is the new black”. Mr Bolt also wrote a secondarticle in theHerald Sun which is the subject of this proceeding. Thatarticle, entitled“White fellas in the black” (“thesecond article”), was published by HWT in theHerald Sun both inprint and online on 21 August 2009. A copy of that article (annotated withparagraph numbers) is annexed to these reasonsas “2A”. Each of thearticles was the subject of editorial oversight by an editor of theHeraldSun, whose function is to check articles and identify any changes that maybe required. Each article was written by Mr Bolt for publicationto the publicthrough theHerald Sun. Each was published by HWT in the form submittedby Mr Bolt.
14. Theheadings and sub-headings in the first and second articles were written by aneditor or sub-editor of the particular pages oftheHerald Sun inwhich the articles were published and not by Mr Bolt. However, the change inthe title of the first article when published onlinewas a change made by MrBolt. The general purpose of such headings, as Mr Bolt explained, is to drawattention to the article andsum up some of its themes.
15. There are two blog articles which are also the subject of this proceeding. Thefirst blog article was written by Mr Bolt and publishedby HWT on or about 20March 2009 on theHerald Sunwebsite. That article is entitled“One of these women is Aboriginal”(“the first blogarticle”). A second blog article was written by Mr Bolt and published byHWT on theHerald Sunwebsite on or about 19 August 2009. That articlewas entitled“Aboriginal man helped” (“the second blogarticle”). Copies of both blog articles are annexed to these reasons as“1B” and “2B”. I will refer to the two articles and thetwo blog articles collectively as “the Articles”. Each blog articlewas writtenby Mr Bolt for publication to the public through theHeraldSun website. Each was published by HWT in the form submitted by MrBolt.
16. Ms Eatock relies upon the content of each of the articles as a whole, theordinary and natural meaning of the words and phrasesused therein. Ms Eatockidentified imputations which she asserts were conveyed by the Articles. Animputation is a meaning conveyedby words utilised in a communication. Theimputations identified are relied upon as the key general messages conveyed bythe Articlesread individually and when taken together.
17. In what follows, I will outline the content of each of the articles. I haveannexed copies of the Articles so they can be readin their entirety and so thatthoseparts I have extracted can be read in their context. I have sought tosummarise and make particular reference to those parts of the Articleswhich Iconsider to be most germane to the matters I need to determine.
18. In undertaking that exercise and in relation to the first article and the secondarticle (“the Newspaper Articles”),I have also made findings as towhat, relevantly to the issues raised by this case, are the imputations whichare conveyed by thosearticles to an ordinary and reasonable reader. I need notdo that for the blog articles for reasons that will become apparent. There areother perspectives from which the Newspaper Articles and the imputationsconveyed by them need to be considered. I dealwith that later.
19. Beforedealing with the Articles, I also need to explain the legal principles that haveguided me in making the findings which Ihave made as to what imputations wereconveyed by the Articles. The principles developed about imputations by the lawof defamationhave been adopted in at least two cases dealing withPart IIA ofthe RDA:Jones v Scully[2002] FCA 1080;(2002) 120 FCR 243 at[125]-[126] (Hely J); andJones v Toben[2002] FCA 1150 at[87] (Branson J). Both of thosecases relied on a summary of the relevant principles found inAmalgamatedTelevision Services Pty Ltd v Marsden[1998] NSWSC 4;(1998) 43 NSWLR 158 at 165-166 (HuntCJ at CL with whom Mason P and Handley JA agreed). The principles thereoutlined may be summarised as follows:
    • In decidingwhether any particular imputation is capable of being conveyed, the question iswhether it is reasonably so capable;
    • Any strained orforced or utterly unreasonable interpretation must be rejected;
    • The ordinaryreasonable meaning of the matter complained of may be either the literal meaningof the published matter or what is impliedby that matter, or what is inferredfrom it;
    • The mode ormanner of publication is a material matter in determining what imputation iscapable of being conveyed. Thus, for example,the reader of a book is assumedto read it with more care than he or she would read a newspaper;
    • The moresensational the article in a newspaper the less likely it is that the ordinaryreasonable reader will have read it with adegree of analytical care which mayotherwise have been given to a book and the less the degree of accuracy whichwould be expectedfrom the reader;
    • The ordinaryreasonable reader of such an article is understandably prone to engage in acertain amount of loose thinking;
    • There is a widedegree of latitude given to the capacity of the matter complained of to conveyparticular imputations where the wordspublished are imprecise, ambiguous,loose, fanciful or unusual; and
    • In determiningwhat is reasonable in any case, a distinction must be drawn between what theordinary reasonable reader, listener orviewer (drawing on his or her ownknowledge and experience of human affairs) could understand from what the authorhas said and theconclusion which the reader, listener or viewer could reach bytaking into account his or her own belief which has been excited bywhat wassaid. It is the former approach, not the latter, which must betaken.
20. Further,as Hunt CJ said of the ordinary or reasonable person at 165:

The ordinary reasonable reader (or listener or viewer) is aperson of fair average intelligence who is neither perverse, nor morbidorsuspicious of mind, nor avid for scandal. That person does not live in an ivorytower but can and does read between the linesin the light of that person'sgeneral knowledge and experience of worldly affairs.

(References omitted)

21. Asboth Hely J inScullyand Branson J inJones v Toben identified,the principles summarised inMarsdenwere also applied in this Court byTamberlin J inGianni Versace SpA v Monte[2002] FCA 190;(2002) 119 FCR 349 at[144]-[146]. In that case at [145], Tamberlin J emphasised that the statementor matters complained of must not be looked at in isolation. The judgesaid:

When considering whether an imputation is raised in thepresent case it is necessary to consider the cumulative effect of the referencesin the evidence as opposed to relying on selected passages in isolation.

22. MsEatock contends that, taken individually and together, the Articles convey thefollowing imputations:

(a)the persons identified in the Articlesand any other persons who like them have some Aboriginal descent and fairerrather thandarker skins, were not genuinely Aboriginal and were not bona fidein claiming to be, and identifying as, Aboriginal persons;

(b)the persons described in (a) merely pretend to be Aboriginal persons sothey can access the benefits that are only available toAboriginal persons;

(c) the only genuine Aboriginal persons, and the only persons who may betreated as making a bona fide claim to be, and to identifyas, Aboriginalpersons are persons whose parents are both of Aboriginal descent and who havedarker rather than fairer skin;

(d) under Bolt’s criteria, persons having some Aboriginal descent butwho are fairer rather than darker skinned are disqualifiedfrom, and cannotproperly be regarded as, genuinely self-identifying as, and being, Aboriginal.

23. MrBolt and HWT deny that the Articles convey the imputations contended for by MsEatock. Mr Bolt’s evidence was that he wroteeach of the Articles inorder to draw attention to what he believes to be a “discernibletrend” in Australia, wherebypersons of mixed genealogy, where thatgenealogy includes Aboriginality, identify as Aboriginal persons, where theycould insteadidentify with another race or other races, or assert no racialidentity at all. Mr Bolt said that he believed that this ‘trend’was an undesirable social phenomenon, because it emphasises racial differences,rather than common humanity.

The First Article – “It’s so hip to be black”

24. Thefirst article describes a “whole new fashion” (1A-8) (or what MrBolt referred to as the ‘trend’) ofwhich Mr Bolt is critical. Thearticle asserts that the people who constitute the ‘trend’ have madea choice to identifyas Aboriginal people. In my view, the article would, insummary, convey to the ordinary reasonable reader that Mr Bolt has threereasonsfor criticising the alleged choice made. The first two criticisms are relatedand challenge the legitimacy of the choice. First, the choice is criticised asnot sufficiently justified by the ancestry and (to a lesser extent) by thecultural upbringingof each of the persons said to constitute the‘trend’. Secondly, the choice made is criticised by reference tothe motivationfor it. Thirdly, the choice is criticised for its socialconsequences because it emphasises racial differences, rather than commonhumanity.
25. Thearticle is likely to have been understood as largely answering the questionposed by its sub-heading which asks -

Why are so many people eagerto proclaim their Aboriginality, despite it being such a small part of theirheritage?

26. Thefirst article appears in a newspaper. It is likely to have been read only onceby an ordinary reasonable reader. It is notan article which is likely to beread by the reader with analytical care. That is particularly so given thestyle in which it iswritten. The article’s use of language and structureis highly suggestive and designed to excite. Its style is not careful,preciseor exact. The style and structure invite supposition, rather than analyticalconclusions. The language is not moderateor temperate but often strong andemphatic. There is a liberal use of sarcasm and mockery. Language of that kindhas a heightenedcapacity to convey implications beyond the literal meaning ofthe words utilised. It is language which invites the reader to notonly readthe lines, but to also read between the lines.
27. The‘trend’ which is critiqued is said to involve people in academia,the arts and in “professional activism”(1A-8). At the head of thearticle, the reader is asked to meet “the white face of a new black race– the politicalAborigine” (1A-1). The reader is then introduced tosixteen people who are represented as exemplifying the ‘trend’.
28. Eachindividual identified is dealt with separately, but because each is put forwardas exemplifying the ‘trend’, thereis a cumulative effect created bythe article. The characteristics attributed to each individual will have beenunderstood by thereader to contribute to developing a picture of the kind ofindividual that typifies the group of people said to constitute the‘trend’. There are also statements made generally about the groupwhich serve to reinforce the article’s core messages.
29. Examplesof the first article’s assertion that Ms Eatock and others have made adeliberate choice in identifying as an Aboriginalperson include:
    • “...eagerto proclaim their aboriginality...” (all)(1A-sub-heading);
    • “...butchose Aboriginal, insisting on a racial identity...She also chose, incidentally,the one identity open to her that haspolitical and career clout”(Cole)(1A-3 & 1A-4);
    • “And howpopular a choice that now is” (all)(1A-5);
    • “...she,too, has chosen to call herself Aboriginal...” (Sax)(1A-7);
    • “...awhole new fashion....to identify as Aboriginal” (all)(1A-8);
    • “...thechoice to be Aboriginal can seem almost arbitrary...” (all)(1A-9);
    • “Shechose to be Aboriginal as well...” (Behrendt)(1A-15);
    • “She,too, could identify...” (Heiss)(1A-19);
    • “...herdecision to identify as Aboriginal...” (Heiss)(1A-20);
    • “I’mnot saying any of those I’ve named chose to be Aboriginal for anything butthe most heartfelt and honest ofreasons...” (all)(1A-22);
    • “...evenif full-blood Aborigines may wonder how such fair people can claim to be one ofthem...”(all)(1A-22);
    • “...thisself-identification as Aboriginal strikes me as self-obsessed...”(all)(1A-23);
    • “...Eatock only started to identify...” (Eatock)(1A-27);
    • “...whydoes he not also identify...” (Scott)(1A-30).
30. Thechoice made by the people exemplified to identify as Aboriginal would have beenunderstood by the reader as being challenged,mainly by reference to its lack ofbiological integrity. That choice is said to be “almost arbitrary...givenhow many of theirancestors are in fact Caucasian” (1A-9). In relation toeach individual, the article draws attention to an asserted deficiencyofAboriginal ancestry. It argues that case by emphasising the non-Aboriginalancestry or background of each person: “raisedby her English –Jewish mother” (Cole) (1A-2); “father was Swiss” (Sax) (1A-6);“Culturally she’smore European” (Sax) (1A-6);“mother...boringly English” (Winch) (1A-11); “as German as herfather”(Behrendt) (1A-14); “father was Austrian” (Heiss)(1A-19); “Scottish mother” and “father’s Britishrelatives” (Eatock) (1A-26); “obvious European background”(Scott) (1A-30); “English father” (Clarke)(1A-31); “Irishfather” (O’Donoghue) (1A-31); “clearly has more European thanAboriginal ancestry”(Mansell) (1A-31); “had a white father”(Dodson) (1A-32); “are Aboriginal because their Indian great-grandfathermarried a part-Aboriginalwoman” (Wayne and Graham Atkinson) (1A-33).
31. AnyAboriginal ancestry or cultural upbringing of the individuals examined is, inmost cases, not referred to and where it is, thereference tends to emphasisethe asserted deficiency of an Aboriginal connection: “rarely saw herpart-Aboriginal father”(Cole)
    
    (1A-3); “mother only part-Aboriginal” (Sax) (1A-6); “father has both Afghan andAboriginal heritage” (Winch) (1A-11); “mother onlypart-Aboriginal” (Heiss) (1A-19).
32. Skincolour and other physical features are also utilised by the article and, for thereasonable reader, would serve to emphasisethe asserted deficiency ofAboriginal ancestry of the individuals exemplified and the group as a whole. The group is referred toas: “the white face of a new black race”(1A-1); “fair Aborigines” (1A-9); and “fair people”(1A-22). Colour photographs of many of the individuals referred to in thearticle accompany the article. Each photograph showsa fair-skinned person. Extensive reference is made to the colour or other physical features of theindividuals. That referenceis usually juxtaposed with the chosen identity ofthe individual in a way that tends to suggest an oddity or absurdity (i.e. looks“white” but identifies as “black”). For example:“insisting on a racial identity you could not guessfrom herfeatures” (Cole) (1A-3); “a white Koori” (Sax) (1A-5);“In looks, she’s Swiss. But she toohas chosen to call herselfAboriginal” (Sax) (1A-6 and 7); “despite her auburn hair andcharmingly freckled face, shetoo, is an Aborigine” (Winch) (1A-10);“despite looking almost as German as her father. She chose to beAboriginal”(Behrendt) (1A-14-15); demanding laws to give her “morerights as a white Aborigine than your own white dad” (Behrendt)(1A-17);“the first Aborigine to stand for Federal Parliament in the ACT, eventhough she looked as white as her Scottish mother”(Eatock) (1A-26); thefirst Aboriginal candidate in a winnable seat “despite looking asAboriginal, or not, as Premier AnnaBligh” (Enoch) (1A-28); “callshimself a Noongar, despite conceding that the Aborigines who did not know himcalled himwadjila – a white” (Scott) (1A-29); insists he isAboriginal “when he looks more like one of his West Indianancestors”(Browning) (1A-36).
33. Inmy view, the article would be understood by the ordinary reasonable reader asasserting that the choices made by the people whoconstitute the‘trend’ have particular motivations. The motivation of theindividuals is either stated or suggestedto be political or to facilitatecareer based opportunities. Their choice is described as “intenselypolitical” (1A-9). The people who constitute the‘trend’ are said to be “self-obsessed and driven more bypolitics than by any racialreality” (1A-23). The connection between thechoice made and the opportunities which are said to arise are made in highlysuggestiveterms. Thus, Bindi Cole “incidentally” (1A-4) chose the“one identity open to her that has political and careerclout”(1A-4). Annette Sax’s choice “happily means” (1A-7) that shecould be shortlisted for an award. Tara June Winch is said to have“written only one book...yet is already” (1A-10) an ambassador forthe Australia Council’sIndigenous Literacy Project. The choice made byAnita Heiss is described as “lucky, given how it’s helped hercareer”(1A-20). The article states she has “won plumb jobsreserved for Aborigines” (1A-21). Pat Eatock is said to have startedtoidentify as Aboriginal because of an “awakening to far-Left causes”(1A-27) and “thrived as an Aboriginal bureaucrat,activist andacademic” (1A-28).
34. Thereis a further basis upon which the choice said to have been made by theindividuals would be understood to be criticised. Thechoice made is said to bedivisive and racist. The assertion is that each of the individuals could havechosen to identify withother aspects of their heritage, or not have identifiedat all with any heritage, and that by identifying with their Aboriginal heritagealone, deep humanistic ideals and enlightened opinion are debased (1A-37). Itis suggested that a better approach would be for theseindividuals to acclaimbeing “proud of being half-white too” (1A-37). Or, alternativelythat people should all get beyondracial pride and “be proud only of beinghuman beings set on this land together, determined to find what unites us andnotto invent such racist and trivial excuses to divide” (1A-38). Thistheme reflects Mr Bolt’s evidence as to his subjectivereason for writingthe article. That the article contains this message is not in dispute and isnot relied upon by Ms Eatock asa basis for complaint, other than for some ofthe language utilised which is said to reinforce the messages which are reliedupon. For instance, in the passage just quoted, the reference to inventing“racist and trivial excuses” (1A-38).
35. Incharacterising the imputations to be drawn from the first article, I have takeninto account a paragraph which appears in aboutthe middle of the article whichis in the following terms (at 1A-22):

I’m not saying any ofthose I’ve named chose to be Aboriginal for anything but the mostheartfelt and honest of reasons. I certainly don’t accuse them ofopportunism, even if full-blood Aborigines may wonder how such fair people canclaim to beone of them and in some cases take black jobs.

36. Thecontents of that paragraph are incongruous and inconsistent with the contents ofthe article as a whole. That inconsistency,when the article is read as awhole, is likely to be understood as explicable on the basis that the disclaimeris intended as anexculpatory device (“merely formal”:Lezam PtyLtd v Seabridge Australia Pty Ltd[1992] FCA 206;(1992) 35 FCR 535 at 557 (Burchett J))rather than a genuine attempt to counter the contrary messages that the articleotherwise conveys. Whetheror not the paragraph was written with that intent,in my view it would be read and understood by the reader as merely formal andnot really intended to distract from what is elsewhere said or suggested. Thatunderstanding would be reinforced by the artful mannerin which the secondsentence of the disclaimer has been crafted.
37. WhilstI have undertaken an analysis of the text, I am conscious of the need to bear inmind that it is the ordinary reader’soverall impression gained from aonce-over-lightly assessment of the contents which is to be identified:TheHerald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [33](Nettle, Ashley and Weinberg JJA).In my view, from the perspective ofthe ordinary reasonable member of the Australian community, imputations conveyedby the firstarticle include that:
    • There arefair-skinned people in Australia with essentially European ancestry but withsome Aboriginal descent, of which the identifiedindividuals are examples, whoare not sufficiently Aboriginal to be genuinely identifying as Aboriginalpersons but who, motivatedby career opportunities available to Aboriginalpeople or by political activism, have chosen to identify as Aboriginal; and,

• Fair skin colourindicates a person who is unlikely to be sufficiently Aboriginal to be genuinelyidentifying as an Aboriginal person.
  
  

The Second Article – “White fellas in the black”

38. Thestructure of the second Article is similar to the first and some of the sameindividuals are used as examples of the same ‘trend’beingdiscussed. Its tone is more cynical and mockery is used more extensively thanis the case for the first article, but otherwiseits use of language and itsstructure are similar and the observations I have made at [26] areapplicable.
39. Thearticle begins with what would be understood as a derisory description of two ofthe individuals as “from a tribe of peoplewho face terrible racism justbecause of the colour of their skin” (2A-1).
40. Thegroup of people critiqued and the alleged choice of identity made by them isdescribed as:

[A] booming new class of victim you’d never haveimagined we’d have to support with special prizes and jobs. (2A-9)

They are “white Aborigines” – people who, out of theirmulti-stranded but largely European genealogy, decide toidentify with thethinnest of all those strands, and the one that’s contributed least totheir looks. Yes, the Aboriginalone now so fashionable among artists andacademics (2A-10).

41. Examplesfrom the second article which would lead the reader to understand that Mr Boltwas asserting that the people in the ‘trend’had made a deliberatechoice to identify as Aboriginal people include:
    • “...people,who, out of their multi-stranded but largely European genealogy, decide toidentify with the thinnest of all thosestrands...” (all)(2A-10);
    • “Behrendt....asa professional Aborigine...” (Behrendt)(2A-20);
    • “...alsoidentified herself as a ‘white Koori’” (Sax)(2A-25);
    • “Sheneeded to write just one book – and say her dad had Afghan-Aboriginalancestry...” (Winch)(2A-26);
    • “Yes,yes, I know. What business is it of anyone else how we identifyourselves?” (all)(2A-29);
    • “Seekingpower and reassurances in a racial identity is not just weak...”(all)(2A-42);
    • “I’venever before seen so many Australian-born people identify themselves by theirethnicity...” (2A-45);
    • “...andsign up instead as white Aborigines, insisting on differences invisible to theeye...” (2A-48).
42. Towardsthe end of the article, Mr Bolt gave three reasons why he objects to thebehaviour he has examined. The first reason wouldhave been understood tochallenge the claim of these people to identify as Aboriginal and, in thecontext of what preceded it, tosuggest that their claim was spurious. Thearticle says:

Yes Ido object, and not just because I refuseto surrender my reason and pretend white really is black, just to aid someartist’s self-actualisationtherapy. (Mr Bolt’s emphasis)(2A-32)

That way lies madness, where truth is just a whim and words mean nothing.(2A-33)

43. Anasserted lack of Aboriginal ancestry is utilised extensively in the article tosupport that objection. Skin colour is extensivelyemphasised. The descriptor“white Aborigines” used in the first article is at times used in thesecond but there isin the second article a distinctive slide to a descriptorwith no connection to Aboriginal identity. Thus the group or the individualsidentified are described as: “white people” (2A-8), “whitemen” (2A-6); and in the heading and sub-heading“white fellas”and “white man”.
44. Otherexamples of the article’s use of colour and physical features include:
    • Photographs ofMark McMillan and Danie Mellor in relation to which a rhetorical question isposed in the followingterms:

If, studying the faces of these two “Aboriginal” men you think thisis surely the most amazing stretch of definition,you’re wrong (2A-5).

• “pink inface” (McMillan) (2A-18);
• “verypale” (Behrendt) (2A-20);
• “blue-eyedand ginger-haired” (Mellor) (2A-21);
• “whiteface” (Cole) (2A-24);
• “pale as ablank canvas” (Sax) (2A-25);
• “auburn-haired”(Winch) (2A-26);
• “whiteuniversity lecturer” (Mellor) (2A-37).

45. Colouris also used as a point of contrast between the people in the group and thoseintimated to be ‘real’ Aboriginalpeople. It is also used as amarker of advantage (and disadvantage):
    • “That’sthe sound of black people being elbowed out by white people shouting ‘butI’m Aboriginal, too’”(2A-8);
    • [You would havethought that public funds] “would at least go to people wholookedAboriginal” (2A-18) (Mr Bolt’s emphasis);
    • “white menclaiming prizes meant for black women” (2A-31);
    • “privilegedwhite Aborigine...underprivileged black Aborigine” (2A-36);
    • “Whiteuniversity lecturer...real draw-in-the-dirt Aboriginal artists”(2A-37);
    • “What’sa black Aboriginal artist from the bush to think, seeing yet another white manlope back to the city with thegoodies” (2A-39);
    • “Same withMcMillan. When a man as white as I, already a lawyer with a job, wins a prizemeant to encourage and inspire hard-struggleblack students, what must thoseAborigines conclude?” (2A-40).
46. Thereare three non-colour based references made to ancestry:
    • “‘American-Australian’father and a mother with only part-Aboriginal ancestry in her otherwiseIrish-Australianpast” (Mellor) (2A-21);
    • “Englishmother” (Cole) (2A-24);
    • “Right tocall himself Aboriginal rests on little more than the fact that his Indiangreat-grandfather married a part-Aboriginalwoman” (Graham Atkinson)(2A-28).
47. Theordinary reasonable reader would perceive that one of the core messages conveyedby the second article is that people who arenot really Aboriginal are takingbenefits that were intended for ‘real’ Aboriginal people. Thatmessage is intimatedby:
    • The heading– “White Fellas in the black”;
    • The sub-heading– “What’s an Aboriginal artist from the bush to think when heor she sees yet another white manlope off with a prize originally meant toinspire blacks?”; and,
    • The pull-outquote – “Mellor and McMillan are representatives of a booming newclass of victim you’d never haveimagined we’d have to support. They are ‘white Aborigines’”.
48. Thismessage is the subject of Mr Bolt’s second stated objection to the‘trend’. That objection is described asfollows:

...that the special encouragements and prizes we set asidefor Aborigines are actually meant for...well,Aborigines. You know, theones we fear would get nothing, if we didn’t offer a bit extra, just forthem.

(Mr Bolt’s emphasis) (2A-35)

49. Theexamples described or the references made in the article in support of thisobjection include:
    • Danie Mellorwinning the Telstra Award and Mark McMillan the Fulbright IndigenousScholarship, despite their non-Aboriginal appearance;
    • Mark McMillanwinning the Black Women’s Action in Education Foundation Scholarship“originally intended to help educateblack women, not white men”(2A-6);
    • “Hear thatscuffling at the trough? That’s the sound of black people being elbowedout by white people shouting ‘butI’m Aboriginal, too”’(2A-8);
    • “McMillan...hasreceived all the special help you once thought, when writing the tax man anothercheque, would at least go topeople wholooked Aboriginal, but which isincreasingly lavished on folk as pink in face as they are in politics”;(Mr Bolt’s emphasis)(2A-18);
    • “Thistrained lawyer [McMillan] has not just won several prizes intended forAborigines but has worked for Aboriginal groupsand been an Aboriginalrepresentative on several boards, including that of a local land council”and is a researcher for an“‘indigenous’ outfit” (2A-19& 20);
    • “the verypale Prof Larissa Behrendt, who may have been raised by her white mother buttoday, as a professional Aborigine, ischairman of our biggest tax payer-fundedAboriginal television service” (2A-20);
    • “Theblue-eyed and ginger-haired Mellor has been similarly privileged” (2A-21)despite his American-Australian fatherand part-Aboriginal mother;
    • “how canGraham Atkinson be co-chair of the Victorian Traditional Owners Land JusticeGroup when his right to call himself Aboriginalrests on little more than thefact that his Indian great-grandfather married a part-Aboriginal woman?”(2A-28);
    • “Lovely!Soon there’ll be no end of white men claiming prizes meant for blackwomen” (2A-31);
    • “So when aprivileged white Aborigine then snaffles that extra, odds are that anunderprivileged black Aborigine misses outon the very things we hoped wouldhelp them most” (2A-36);
    • “What's anAboriginal art prize for, if a man as white and cosseted as Mellor can winit” (2A-38);
    • “What’sa black Aboriginal artist from the bush to think, seeing yet another white manlope back to the city with thegoodies?” (2A-39); and,
    • “Same withMcMillan. When a man as white as I, already a lawyer with a job, wins a prizemeant to encourage and inspire hard-struggleblack students, what must thoseAborigines conclude?” (2A-40).
50. Thearticle will have been understood by the ordinary reasonable reader to draw aconnection between the people constituting the‘trend’ identifyingas Aboriginal and those people obtaining personal advantage. The suggestionthat personal advantageis a motivating factor for the alleged choice made isless pronounced than in the first article, but it is nevertheless made. Thereare a number of examples through which that suggestion is made:
    • AnnetteSax’s identification is said to have “fortuitously allowed her tomake the shortlist for the Victorian IndigenousArt Award, alongside otherAboriginal artists as pale as a blank canvas” (2A-25);
    • Tara June Winch“was just as lucky. She needed to write just one book – and say herdad had Afghan-Aboriginal ancestry– for the Australian Council to snapher up as its Indigenous Literacy Project Ambassador” (2A-26).

Other examples suggestive of the connection are set outat [49] above. Additionally, in his concluding remarks, Mr Bolt objects topeople “[s]eeking power and reassurance in a racial identity”(2A-42).

51. Inthe article, Mr Bolt describes the individuals he has identified as not“atypical or even rare” (2A-23) and says thathe has written before“of a dozen similar cases, several even more incongruous” (2A-27).
52. Atthe very end of the article, Mr Bolt gave the third basis for his objection. Hesaid that a noble Australian ideal is breakingdown. That noble ideal isdescribed as “that we judge each other by our character and deeds, and notour faith, fortune orfatherland” (2A-44). Mr Bolt says (at 2A-45 to46):

I've never before seen so many Australian-born people identifythemselves by their ethnicity, whether by joining ethnic gangs, livingin ethnicenclaves, forming ethnic clubs, demanding ethnic television, playing in ethnicsports clubs, or grabbing ethnic prizesand grants.

Why is that a problem? Because people who feel they owe most to their tribetend to feel they owe less to the rest. At its worst,it's them against us.

53. Thearticle ends with Mr Bolt questioning “how much is there left to hold ustogether” when “even academics andartists now spurn the chance tobe people of our better future – people of every ethnicity but none– and sign up insteadas white Aborigines, insisting on differencesinvisible to the eye...” (2A-48).
54. Themocking and derisive tone of the article is stronger than that of the firstarticle. A number of the individuals exemplifiedare derided and ridiculed. The article opens with the derisive comment that Mr McMillan and Mr Mellor“faced terrible racismjust because” (2A-1) of their skin colour. Mr McMillan is later portrayed, through comments ascribed to him, as someone whothinks that his pale skin colour has made him a “victim” (2A-15). The reader is told that comments about Mr McMillan’sidentity are made byhim seriously but are akin to comments from a comic satire. Mr McMillan’salleged confusion about hisown identity is said to have lead him to declarethat he is both a “proud gay” and a “proud father”(2A-18). The theme that these people see themselves as victims, with which thearticle opened and which lead to the group being describedas “a boomingnew class of victim” (2A-9), is continued through comments made aboutBindi Cole. Ms Cole is a photographerwho is said to be exploring “herown pain at being too white” (2A-24) through her photographic exhibitionin which blackpowder covers “her distressingly white face” (2A-24).
55. Theimputations which I have found would be conveyed to an ordinary, reasonablemember of the Australian community by the first articleare also conveyed by thesecond article. There is in this article a stronger contrast made between thegroup of people challengedand those people who are to be regarded as‘real’ Aboriginal persons. An imputation is conveyed thatopportunities whichshould have been conferred on genuine Aboriginal personshave instead been taken by people like those exemplified. The suggestedmotivation conveyed as the reason why the people in the ‘trend’identify as Aboriginal is confined to careeraspirations.

The First Blog Article – “One of these women isAboriginal”

56. Immediatelyunderneath the title of this blog article is a picture of two women. They lookquite similar. Both have pale skin andsimilar facial features and haircolouring. One of the women is readily recognisable as Anna Bligh, the currentPremier of Queensland. The article identifies Leeanne Enoch as the other personin the photograph and as “the first indigenous woman preselectedfor awinnable state seat by the ALP” (1B). The comparison invited by thephotograph, the heading and the content of the blogwould have prompted thereader to question Ms Enoch’s Aboriginality. The blog asks:
    • “Exactlyhow Aboriginal is Enoch?”;
    • “By whatsuperior right can she welcome me to ‘her’ country?”;
    • “Why isshe insisting on a racial difference the eye cannot even detect?”;
    • “Doesn’ther ancestry in fact make her more an oppressor than avictim?”.
57. MsEnoch is accused of “plucking one racial identity from the many open toher” and it is said that her career seems“to have relied to quitesome extent on her insisting on her Aboriginality”.
58. Theconduct criticised is suggested to extend to others beyond Ms Enoch by itsopening reference to “[t]his New Racism”which is said to be“becoming farcical”.
59. MrBolt suggests that we should “stop wasting our time on stressing suchtrivial – even non-existent – racial dividesand start judging eachother as individuals instead”.

The Second Blog Article – “Aboriginal man helped”

60. Thisblog article begins with a picture of Mark McMillan above what appears to be anextract from an announcement that Mr McMillanhas received the 2009 FulbrightIndigenous Scholarship. The article states:

It is wonderful to seea rare and wonderful opportunity like this being offered to someone from a racethat faces so much discriminationand poverty just because of the color [sic] oftheir skin:

61. Thereare two further references to the Fulbright Indigenous Scholarship. Theyare:
    • “(Hmm. Iwonder which Aborigines missed out on this scholarship, thanks toMcMillan’s entry.Maybe the judges could explain.)” (MrBolt’s emphasis); and
    • “It’ssome feat when Fulbright’s affirmative action – an indigenousscholarship – ends up leaving thisyear’s intake of Fellows lookingjust as white as ever”.
62. Asecond subject dealt with by the blog article is a reference to Mr McMillanhaving been chosen by Reconciliation Australia as theface of a campaign called“Which One of These Men is Aboriginal?” (Mr Bolt’semphasis). Mr Bolt explains that this is a campaign by Reconciliation Australia“to break down racist preconceptionsthat so hurt other members of his[McMillan’s] community ofwhite Aborigines” (Mr Bolt’semphasis). The blog article then extracts a list of qualifications taken from aReconciliation Australiapublication relating to Mr McMillan. That extractidentifies Mr McMillan as a 40-year-old Wiradjuri man and a Masters of Lawrecipient. It identifies a number of positions and board memberships held by MrMcMillan and turning to Mr McMillan’s personal achievementsthe extractsays: “He is a proud father of an 11-year-old son, a proud gay man, rugbyplayer, partner and active member ofhis community”. To that, Mr Boltcomments:

A gay white man with a law degree? Just the kind ofAboriginal who needs a special handout.

63. Asecond photograph appears in the blog article which shows a group ofindividuals. The photograph is accompanied with what wouldbe understood to bethe sarcastic comment; “that’s certainlynot Mark [MrMcMillan] in the middle of the back row” (Mr Bolt’s emphasis)because Mr McMillan “is Aboriginal, you see”.
64. Theblog article then extracts comments said to have been made by Mr McMillan thatare introduced with the mocking suggestion thatMr McMillan describes“the agony of not being discriminated againstfor beingAboriginal” (Mr Bolt’s emphasis). This appears to be followedthrough in Mr Bolt’s conclusion that “[r]acismsure has come a longway in this country if the problem now is that some people aren’t blackenough”.

THE ADMITTED FACTS

65. Bytheir pleadings both Mr Bolt and HWT have admitted that each of Ms Heiss, MsCole, Mr Clark, Dr Wayne Atkinson, Mr Graham Atkinson,Professor Behrendt, MsEnoch, Mr McMillan and Ms Eatock are of Aboriginal descent; that since each wasa child, at the times of publicationof each of the Articles, and at present,each person did and does genuinely self-identify as an Aboriginal person and didand doeshave communal recognition as an Aboriginal person. It is admitted thateach of these persons has fairer rather than darker skincolour. That each wasreasonably likely to be offended and was offended by the Articles or partsthereof is denied.
66. HWTadmits that Mr Bolt was its employee at the relevant time and that it isvicariously liable for his conduct under s 18E of theRDA, should the Court findthat his conduct was in contravention of s 18C. However, HWT denies liabilityas a principal in its ownright.

THE WITNESS EVIDENCE

Anita Heiss

67. MsHeiss is an author who lives in New South Wales. Ms Heiss gave evidence that sheis and has always been Aboriginal. Her maternalgreat-grandmother wasAboriginal, as was her maternal grandmother. Both her maternal grandmother andgreat aunt were part of theStolen Generation and were removed from theirfamilies along with other relatives. Ms Heiss’s mother is Aboriginal. Her fatherwas not Aboriginal, he was born in Austria. Her father did not seekto incorporate any Austrian culture, language or heritage intoher family life. Her father was part of the Aboriginal family and community in which Ms Heiss wasraised. She does not recall howshe came to know she was Aboriginal. She hasnever thought of having a choice about being Aboriginal. That is who she is andhasalways been as far as she can remember. She has five siblings, three havebrown skin and two are fair. All have the same parents.
68. Duringher childhood she had negative experiences at school and in her local communityassociated with being Aboriginal. She wasdisparaged as an “Abo”, a“Boong” and a “Coon”. She experienced a lot of racialabuse. Shehas also been exposed to negative reactions from people whoinitially had not realised that she was Aboriginal and who reacted badlywhenthey realised she was.
69. Whenshe attended university she became more conscious of what she regarded asinjustices perpetrated against Aboriginal people. She has held a range ofpositions connected with indigenous issues. She graduated with a PhD inCommunication in Media in 2001.Her studies were focused on indigenousliterature and publishing in Australia. She has served on numerous boards andcommitteesinvolved with indigenous issues. Some of those positions have hadsitting fees for meetings, most were voluntary. The paid positionsinvolvedmodest payments. She has performed a large amount of unpaid work dealing withAboriginal issues. She volunteers abouta day a week of her time.
70. Herevidence as to how and why she was offended by the Articles was extensive. Shefelt the irony of having previously been discriminatedagainst for being darkand now being discriminated against by Mr Bolt because she is not dark enough. She says Mr Bolt wants totake away her Aboriginal identity because of the wayshe looks. She is offended because of what she perceives to be Mr Bolt’sclaims that “we are not genuinely Aboriginal because of how welook”.
71. Sheis offended by what she called Mr Bolt’s suggestion that she chose heridentity to pursue better career options. She saysthat suggestion challengesher integrity, her ethics and her personal beliefs. She denies claimingAboriginal identity to advanceher career. Her career has been advanced throughstudy, training, goal-setting and hard work. She has pursued a career focusedupon Aboriginal issues because she wants to help the Aboriginal community towhich she belongs. She feels obligated to assist. She is insulted and offendedby Mr Bolt’s claim that benefits, awards and prizes that she and othershave gained were gainedbecause they identified as Aboriginal people. Sheaccuses Mr Bolt of mischaracterising her commitment to her community asself-advancement.
72. Sheis offended by Mr Bolt’s “blood quantum” approach to racialidentity and its focus on how people look. Sheis also offended that theArticles do not recognise Aboriginality in all its diversity noting that 32 percent of Australia’sAboriginal population live in metropolitan centres. She says the Articles ignore contemporary Aboriginal Australia. She finds thatoffensive.
73. Sheis also humiliated and insulted by the reference in the first article to awardsshe has won and the suggestion that these areencouragement awards as distinctfrom being recognitions of her achievements. She also points to a number offactual errors in theArticles which she found offensive, including MrBolt’s assertion that her mother is only part-Aboriginal.
74. Theevidence given by Ms Heiss was not contested and I have no reason to not acceptit as truthful. In particular, I find that byreason of Ms Heiss having beenraised as Aboriginal she has and does genuinely self-identify as Aboriginal. She has Aboriginal ancestryand communal recognition as an Aboriginal person. She is an Aboriginal person and entitled to regard herself as an Aboriginalpersonwithin the conventional understanding of that description. Thatconventional understanding is a matter with which I deal with at[172] to [190]below. She did not consciously choose to be Aboriginal. She has not improperlyused her Aboriginal identity to advanceher career. She is a person committedto her Aboriginal community and is entitled to regard her achievements as welldeserved ratherthan opportunistically obtained. I accept that she feelsoffended, humiliated and insulted by the Articles or parts thereof in themanneroutlined by her evidence.

Bindi Cole

75. MsCole is an artist who lives in Victoria. Ms Cole’s father is Aboriginaland her mother was not. Both her mother and maternalgrandmother were born inAustralia. Her mother did not identify herself as either English or Jewishalthough her mother had Englishand Jewish heritage. Ms Cole only learned ofher mother’s Jewish heritage a few years ago and after her mother’sdeath. Judaism had no influence in her upbringing.
76. Inher early childhood and until she was seven or eight years old, Ms Cole livedwith her mother, who was a single parent, in StKilda. Her father had been apart of her life until she was about six years old. When her mother becameunfit to look after herfrom the age of seven or eight, Ms Cole lived with herfather for a year before living with, and being looked after by, her paternalgrandmother. She lived with her paternal grandmother for the next four years. She lived in the country with her grandmother, hergrandmother’s eightchildren, cousins, aunties and uncles who were and who all identified asAboriginal persons. She laterreturned to Melbourne and continued to live withher grandmother. She was always surrounded by family who identified asAboriginal. She moved back to live with her mother at about the age of 13, butregularly visited and maintained strong ties with her maternalgrandmother. MsCole’s mother died when Ms Cole was 16. Her Aboriginal father had comeback into her life when she was about14 or 15 and she had been in regularcontact with him. She continued to maintain strong ties with her maternalgrandmother untilshe passed away when Ms Cole was 18. Ms Cole grew up in quitedisadvantaged circumstances.
77. Itwas Ms Cole’s Aboriginal grandmother who instilled in her a sense of pridein her Aboriginal heritage. However, Ms Colewas aware of her Aboriginalheritage before she went to live with her grandmother. Her mother always toldher that she was Aboriginal. Ms Cole has always regarded herself to beAboriginal. She did not choose to be Aboriginal.
78. In2008, Ms Cole learnt about her maternal heritage from her maternal grandmother. At about that time she began to describe herselfas of English, Jewish andWathaurung descent. She agreed that there was nothing to have precluded herfrom deciding to identifymore closely with her Jewish heritage but said thatthis was something she had not explored because she does not feel a connectionto her Jewish heritage.
79. MsCole studied to become an artist from about 2001. She is a photographer. Sheis recognised within the Koori community and thebroader Australian artcommunity as an Aboriginal artist. She has never applied for any positionsdesignated exclusively for Aboriginalpeople. She has worked hard foreverything that she has achieved. She works for herself and does not claimsocial security benefits. She applies for grant funding which is available tosupport artistic work. She probably applies for more non-Aboriginal fundingthan funding available to Aboriginal people. She applies for funding because itis there and available irrespective of whether thefunding is designated forAboriginal people. She works to support the Victorian Aboriginal artscommunity. That community has alwaysindicated support for her when shereceives funding for Aboriginal artists. Members of the Aboriginal communityhave not suggestedto her that she is taking their jobs. She has never hadanything but support from the Aboriginal community.
80. In2008, she photographed and exhibited a series of photographs called “NotReally Aboriginal”. This is the exhibitionwhich Mr Bolt refers to in thesecond article. Her idea for the series was to question the perception that ifa person does notfit the stereotype of an Aboriginal person, that person is notreally Aboriginal. Prior to making the series, she had experiencedchallengesto her identity from persons outside the Aboriginal community. Those challengeswere based on her appearance. The exhibitionwas a very personal expression ofher feelings about that issue. The exhibition was about challenging thestereotype of an Aboriginalperson being very dark-skinned and living in aremote community. The exhibition was about her saying that she was very proudofher family.
81. Thephotographs in the exhibition portray Ms Cole and members of her familyincluding her father. The photographs show people whohave pale skin colour,but whose faces have been painted black.
82. Atthe time of the exhibition, pamphlets promoting the exhibition were available onthe internet. I have examined those pamphletsin which Ms Cole as well asothers identified the purpose of the exhibition. That material identifies thatthe exhibition was intendedto challenge stereotypical assumptions about raceand identity and the stereotype that a person who is not dark-skinned and notfroma remote community is not really Aboriginal.
83. MsCole found the first article very upsetting. She had calls from her auntiesasking her “why are they saying that aboutus?” In her view, thearticle affected the whole Aboriginal community and Mr Bolt’s words“offended and hurt everyone”. The reference in both the first andsecond articles to her exhibition offended Ms Cole. She perceived Mr Bolt to bederiding herand giving no artistic reference to what she was trying to convey. She found his use of the phrase “distressingly white face”insulting, humiliating and offensive. She was intimidated by the Articles. Shefelt scared. She didn’t want to go out inpublic for a while. Shedidn’t want to be seen. It was very humiliating for her.
84. Sheperceived the Articles as reinforcing the stereotype of the “black”Aboriginal. Based on how she looked, Mr Boltwas denying that her Aboriginalitywas real. That made her feel that Mr Bolt was taking her identity away. It hurther and her family. She was very upset. She perceived Mr Bolt as saying thatshe was not legitimately Aboriginal because she was not dark-skinned enoughandinferring that she had not suffered. She found Mr Bolt’s focus on looksand his failure to address culture as offensive.
85. Shealso perceived that the Articles undermined her achievements. She perceived MrBolt as saying that she and the other named individualshad falsely claimed tobe Aboriginal to get ahead and access prizes as a rort. She perceived Mr Boltas labelling them as opportunistic. Ms Cole is offended by the suggestion thatthe only reason she says she is Aboriginal is to gain benefits.
86. MsCole was cross-examined, but in the main her evidence was not contested and Ihave no reason to not accept it as truthful. Inparticular, I find that byreason of Ms Cole having been raised as an Aboriginal person she has and doesgenuinely self-identifyas Aboriginal. She has Aboriginal ancestry and communalrecognition as an Aboriginal person. She is entitled to regard herselfto be anAboriginal person within the conventional understanding of that description. She did not consciously choose to be Aboriginal. She has not improperly usedher Aboriginal identity to advance her career as an artist. She is recognisedby her peers in the Aboriginalarts community as an Aboriginal artist and isentitled to regard her achievements as well deserved rather thanopportunisticallyobtained. I accept that she feels offended, humiliated,insulted and intimidated by the Articles or parts thereof in the manneroutlinedby her evidence.

Geoff Clark

87. MrClark is a former national chairman of the Aboriginal and Torres Strait IslanderCommission (“ATSIC”) who lives inVictoria. Mr Clark’s motheris Aboriginal. Both of his mother’s parents were Aboriginal. His motherwas born in theAboriginal community at the Framlingham Forest in Victoria. MrClark’s mother had several siblings, each of them had differentskincolour.
88. MrClark’s father was not Aboriginal. Mr Clark described him as Australian. As his name was McIntosh, Mr Clark’s motherhad told him that his fatherhad some Scottish ancestry. His father and mother were not married and neverlived together. He spentsome Christmas holidays with his father until he was15 years old but did not have extensive contact with him. His father had norole in, or influence on, Mr Clark’s upbringing or influence on hisidentity.
89. MrClark was essentially raised by his Aboriginal grandmother at Framlingham. Framlingham was established in 1861 and is one ofthe longest establishedAboriginal communities in Victoria. Apart from a six year period in the 1970s,Mr Clark has lived in Framlinghamnearly all of his life. This is where he andhis two sisters were raised. It is where he learnt his Aboriginal culturewatchinghis grandmother making traditional baskets and food and hunting andfishing with his Aboriginal uncles. He watched his uncles makingAboriginalcultural artefacts and his grandfather mixing traditional medicines andremedies. Traditional knowledge of sacred sitesand stories of the Aboriginalpeople were passed down to him by his relatives and other elders. He iscurrently a custodian of thisknowledge and an elder of the Tjapwhuurrungpeople.
90. Hewas educated at an entirely Aboriginal primary school at Framlingham. He becameexposed to racism and prejudice when he attendedhigh school at Warrnambool. This was confronting and challenging. It included his classmates talking abouttheir grandfathers goingout shooting and poisoning Aboriginal people in thelocal area. He was often confronted about his identity when classmates wouldsay that he was too white to be Aboriginal.
91. MrClark has only ever identified as an Aboriginal person. Mr Clark became activein Aboriginal issues in his mid 20s. His exposureto racism motivated hisinvolvement. He began attending meetings of Land Councils from the age of 25. His involvement was bothlocal and national. He was employed by the Aboriginalcommunity at Framlingham in 1979. He worked on Aboriginal community issuesattending national and state meetings including as an Aboriginal delegatedrafting a Convention of the International Labour Organisationdealing with therights of indigenous peoples. In 1999 he was elected as the ATSICrepresentative for Victoria. He held variouspositions at ATSIC including asits national chairman having been elected by Aboriginal people to represent themin nine separateelections.
92. MrClark found each of the Articles insulting and offensive. He regards Mr Bolt ashaving questioned his Aboriginality and suggestedthat he had disingenuouslychosen to identify as Aboriginal. He was outraged by Mr Bolt’s comments. He regards the firstarticle as having challenged his human rights, his identityand undermined everything that he has committed his life to. He regardstheArticles as at the very essence of prejudice and racism in Australia.
93. MrClark regards himself to have been disadvantaged in being Aboriginal “interms of the suffering, racism and prejudice youreceive” and was offendedby Mr Bolt’s suggestion that there has been an advantage for him inclaiming that he is Aboriginal. He was very offended by the Articles’concentration on skin colour as defining Aboriginal identity.
94. MrClark perceives the personal attack made in the Articles on the individualsnamed, as an attack on the collective rights of Aboriginalpeople. He regardsthe Articles as intimidating Aboriginal people from identifying as Aboriginal. He found the suggestion thathe and others are not genuine Aboriginal people tobe humiliating.
95. Detailsof Mr Clark’s life story and his identification as an Aboriginal personare available on the internet.
96. Theevidence given by Mr Clark was not contested and I have no reason to not acceptit as truthful. In particular, I find that byreason of Mr Clark having beenraised as an Aboriginal person he has and does genuinely self-identify asAboriginal. He has Aboriginalancestry and communal recognition as anAboriginal person. He is an Aboriginal person and entitled to regard himself asAboriginalwithin the conventional understanding of that description. He didnot consciously choose to be Aboriginal. He has not improperlyused hisAboriginal identity to advance his career. He is a person committed to hiscommunity who has regularly been elected torepresent it. He is entitled toregard his achievements as well deserved rather than opportunistically obtainedby reason of hisidentification as an Aboriginal person. I accept that he feelsoffended, humiliated and insulted by the Articles or parts thereofin the manneroutlined by his evidence.

Dr Wayne Atkinson

97. DrAtkinson is an academic who lives in Victoria. He is the brother of GrahamAtkinson, who also gave evidence in the proceeding. Dr Atkinson’s parentsare both Aboriginal persons and descendants of the Yorta Yorta and Dja DjaWurrung tribal groups ofcentral Victoria and the Murray Goulburn Region. Allfour of Dr Atkinson’s grandparents were of Aboriginal descent. All ofhisgreat grandparents were of Aboriginal descent except one of his greatgrandfathers, Thomas Shadrach James. Thomas James wasborn in Mauritius and wasof Indian heritage. He arrived in Australia in the late 1800s and worked as ateacher in Aboriginal communitieswhere he met and married Dr Atkinson’sgreat grandmother.
98. DrAtkinson was raised by his maternal Aboriginal grandmother until his earlyteens. He grew up with his cousins on the riverbanksof Mooroopna in anAboriginal fringe camp on the ancestral land of the Yorta Yorta. Both Englishand Aboriginal language were usedin daily conversation at home. His siblingsand cousins are all Aboriginal people who identify as such. He grew up with hisAboriginalitycontinually being reinforced by his parents, grandparents,relations, elders and many significant Aboriginal leaders.
99. DrAtkinson says that he has lived every day of his life as an Aboriginal person. At no stage of his life has he regarded himselfas choosing or electing to beAboriginal. Being Aboriginal is what and who he is and always has been.
100. Heexperienced racism in primary and secondary school. He dropped out of school atyear eight in order to find work to assist hisfamily. He worked mostlyunskilled and semi-skilled jobs. After some 10 or 12 years of work, he beganhis studies wanting to followin the footsteps of some of his relatives and workfor his community learning more about its history and culture. Over the courseof his life, Dr Atkinson has sought to make a contribution to his Aboriginalcommunity. He has contributed academically throughresearch and writing and tocommunity affairs through membership of a multitude of Aboriginal communitydecision-making bodies. His evidence included an impressive list of involvementin Aboriginal issues through various community structures over a period of30years. He is currently a member and a senior elder of the Yorta Yorta NationAboriginal Corporation. He was the principal claimantfor the Yorta Yortanative title claim and gave evidence of his genealogy and Yorta Yortaconnections for over a week during proceedingsrelating to that claim. Hecurrently teaches Indigenous Studies at the University of Melbourne and otheruniversities in Australiaand overseas as a Senior Lecturer and VisitingFellow.
101. Hehas always been recognised as an Aboriginal person by the Aboriginal community. He is a respected elder of both the Yorta Yortaand Dja Dja Wurrung peoples. This he says is something he has earned over many years. As an elder, he hasleadership, mentoringand education responsibilities and is a spokesperson forhis community. Over the course of his career, Dr Atkinson has held a rangeofpositions and has been awarded a range of grants and scholarships. Most havefocused on indigenous issues.
102. DrAtkinson’s evidence was that he is constantly dealing with attacks on hisidentity which he referred to as “personalisedattacks on [his] sense ofbeing and identity”. He has sought a legal remedy through this case inorder to defend his integrity. He perceives the Articles to be humiliatingbecause they question his identity and integrity. He thinks it offensive thatMr Boltexcludes people as not being Aboriginal because they do not have darkskin. He does not regard being Aboriginal as being about skincolour. He findsthe idea that he has to be sufficiently Aboriginal according to Mr Bolt to claimhis heritage and identity to beextremely offensive. He regards what Mr Bolthas said in the Articles to affect a huge number of people in the Aboriginalcommunity. He finds it ironic that Mr Bolt says that he is not genuinelyAboriginal, when all of his life he has suffered the deep consequencesofdiscrimination for being Aboriginal.
103. DrAtkinson perceives Mr Bolt’s assertion that his only claim toAboriginality is that his great grandfather Thomas James marriedhis greatgrandmother, to be highly offensive, insulting and totally inaccurate. He sayshe is angry that people like Mr Bolt getaway with terrible distortions of thetruth. He is distressed and agitated when powerful white people negateAboriginal historyand the right to be Aboriginal. He has a deep concern forthe children of relatives who he suggests will be subjected to similaridentityattacks as a result of the Articles. He is frustrated that after 30 years ofteaching about his history, people in positionsof authority and influence donot accept the reality of who he is and his family’s livedexperience.
104. Manyof the matters that he gave evidence about are on the public record includingevidence he gave on oath in the Yorta Yorta nativetitle case.
105. Theevidence given by Dr Atkinson was not contested and I have no reason to notaccept it as truthful. In particular, I find thatby reason of Dr Atkinsonhaving been raised as an Aboriginal person, he has and does genuinelyself-identify as Aboriginal. He hasAboriginal ancestry and communalrecognition as an Aboriginal person. He is an Aboriginal person and entitled toregard himself asan Aboriginal person within the conventional understanding ofthat description. He did not consciously choose to be Aboriginal. He has notimproperly used his Aboriginal identity to advance his career. He is a highlyrespected and committed member of hisAboriginal community and is entitled toregard his achievements as well deserved rather than opportunistically obtained.I acceptthat he feels offended, humiliated and insulted by the Articles orparts thereof in the manner outlined by his evidence.

Graham Atkinson

106. GrahamAtkinson is a member of the Board of Native Title Services Victoria, he is aCouncillor appointed to the Victorian AboriginalHeritage Council and is alsoChair of the Dja Dja Wurrung Clans Aboriginal Corporation. He lives inVictoria. I have dealt withGraham Atkinson’s ancestry in setting out thedescent of his brother Wayne.
107. Grahamis the youngest of seven siblings, each of whom have always identified asAboriginal. He grew up in Echuca where his motherand father settled in theearly 1940s. His family was always recognised as an Aboriginal family. Theywere one of the first Aboriginalfamilies in Echuca to buy their own block ofland and build a house.
108. Hehas always known that he was Aboriginal and has always identified as anAboriginal person. That is not something he has everhad to think about. Itwas never a matter of choice. At school, he was regarded by others asAboriginal as were his brothers. The skin tone of his siblings and his own skintone varies. When he was young his skin was very dark, as he got older it hasbecomelighter. Other members of his family were also very dark, but it varied.
109. Heand one of his cousins were the only Aboriginal students when he attendedtechnical school. He was then subjected to racism fromnon-Aboriginal students.He was taunted as a “Blackie”, “Abo”,“Boong” and “Nigger”. He got support from his parentsand siblings to deal with racism and that strengthened his self-esteem and pridein his identityas an Aboriginal person. He also experienced racism whilstserving in the army, including in Vietnam.
110. Theracism that he encountered spurred him to “fight to get a better deal forAboriginal people”. After he left thearmy he took up studies andgraduated with a degree in Social Work. In 1977 he was one of only threeAboriginal students at MelbourneUniversity. In 1994 he also obtained a Mastersof Business Administration.
111. Asone of very few tertiary qualified Aboriginal people living in Melbourne at thetime, he was often asked to apply for positionsand support causes dealing withAboriginal issues. He wanted to advance Aboriginal people and it was logicalfor those in controlto seek out the few qualified Aboriginal people available. In his career he has never used his Aboriginal identity opportunistically. Hispositions were always based on his qualifications for the job.
112. Giventhat both of his parents are Aboriginal and each of their parents had Aboriginalancestors, when he read the first articlehe was highly offended that Mr Bolthad said that he identified as Aboriginal only because Thomas James had marriedhis great-grandmother. He perceives that in both the first and second articles,Mr Bolt suggested that he is not a “real” Aboriginal. He regardsthe attribution of identity based on skin colour as making no sense. SomeAboriginal people are really dark. Some Aboriginal peopleare not. He thinksit is offensive in a historical sense as well because it ignores theassimilation process and the taking of Aboriginalwomen by white settlers, incircumstances where children of mixed race were reared in the Aboriginalcommunity. In his view, MrBolt ignores the government process of assimilationand “reduces us again to that invisible group of people that governmentpolicies or government authorities tried to create in the past”. Hestated that in Mr Bolt differentiating between Aboriginalpeople with lighterand darker skin, Mr Bolt was repeating the same discredited approach whichoccurred with early governmental assimilationpolicies. That he finds offensiveand hurtful.
113. Heis offended that Mr Bolt presumes to validate or not validate who he is. Hestated that he wants to live a normal life and nothave to defend his identity. In his view, it is not for Mr Bolt to define his Aboriginality. He expectsmainstream society to affordhim the respect of not questioning who he is.
114. Heis offended by Mr Bolt’s suggestion that because of the colour of his skinhe cannot genuinely identify as an Aboriginalperson. He is also offended bythe mocking and scepticism of the achievements of the individuals named in thearticles. In hisview, the people named are not “professionalAborigines”. By that comment he perceives Mr Bolt to be insinuating thathe and those people are part of an Aboriginal industry, where Aboriginal peopleconsciously or opportunistically use their Aboriginalidentity for financialgain. He perceives Mr Bolt to have put him in that category when he has neverbeen in that category. Heis offended by that because he wants to see“the best outcome for Aboriginal people”. His time and aspirationshavebeen consumed by “trying to get a better deal for Aboriginalpeople”. He regards the language used by Mr Bolt as ofa passing era inAustralian society. In his view, it is dismissive and serves to undermine theachievements of Aboriginal people.
115. Healso perceives Mr Bolt’s articles as implying that, in order to begenuinely Aboriginal, a person must be in disadvantagedcircumstances. Heregards that suggestion as completely misconceived and offensive, as within theAboriginal community there isa diversity of experiences ranging from extremedisadvantage to people who have been successful.
116. Theevidence given by Graham Atkinson was not contested and I have no reason to notaccept it as truthful. In particular, I findthat by reason of Mr Atkinsonhaving been raised as Aboriginal, he has and does genuinely self-identify as anAboriginal person. He has Aboriginal ancestry and communal recognition as anAboriginal person. He is an Aboriginal person and entitled to regardhimself anAboriginal person in accordance with the conventional understanding of thatracial description. He did not consciouslychoose to be Aboriginal. He has notimproperly used his Aboriginal identity to advance his career. He is a personhighly committedto his community and is entitled to regard his achievements aswell deserved rather than opportunistically obtained. I accept thathe feelsoffended, humiliated and insulted by the Articles or parts thereof in the manneroutlined by his evidence.

Professor Larissa Behrendt

117. ProfessorBehrendt is a law professor and author who lives in New South Wales. ProfBehrendt gave evidence that she is and has alwaysbeen an Aboriginal person. Her father was Aboriginal and her paternal grandmother was Aboriginal. Herpaternal grandmother livedin an Aboriginal camp before she was taken away fromher family by the Aborigines Protection Board. Prof Behrendt’s paternalgrandfather was not Aboriginal. He was born in England and came to Australia asa child. Prof Behrendt’s mother and maternalgrandmother were born inWestern Australia and are not Aboriginal. Her maternal great-grandmother camefrom England.
118. ProfBehrendt referred to Mr Bolt’s reference in the first article to her“looking almost as German as her father”(1A-14). To her knowledge,there is no German descent on either her father or mother’s side of thefamily although she assumesthat because of her father’s Germanic surname,there may have been some German descent. Her paternal grandfather came toAustraliafrom England. Mr Bolt also referred to her father as being white. Her father had dark skin.
119. Herfather was a prominent, well-respected member of the Aboriginal community. Hewas an expert on oral histories and his worksare held by the AustralianInstitute of Aboriginal and Torres Strait Islander Studies. A detailed obituarywas published in theSydney Morning Herald on his death about two and ahalf years ago. It reported that he was Aboriginal and reported hiscontribution to the Aboriginalcommunity.
120. ProfBehrendt’s father was always part of her family during her upbringingincluding after her parents separated when she was15 years old. Her motherexplained to her and her brother that they were Aboriginal and was alwaysstrongly supportive of theirAboriginal identity. Her father’s negativeexperiences as an Aboriginal had sometimes made him self-conscious about hisAboriginality,but his attitude changed in the 1980s when he became more activein the Aboriginal community. Prof Behrendt was about 11 years oldwhen herfather started to reconnect with his Aboriginal family and became part of it. At that time her father became active intelling Prof Behrendt about hisfamily’s stories, the dreamtime stories and Aboriginal traditions. Herfather also startedteaching her and her brother Aboriginal languages. ProfBehrendt’s upbringing and experience up to that time was as an Aboriginalperson, but her father’s role during that period reinforced heridentification. She became proud of her Aboriginal heritageand culture andalso became conscious of social justice issues in relation to Aboriginal people.
121. ProfBehrendt has identified as an Aboriginal person since before she can remember. She denies Mr Bolt’s suggestion that shechose to be Aboriginal and saysthat she never had a choice, she has always been Aboriginal and has“identified as Aboriginalsince before I can remember”.
122. ProfBehrendt began to experience racism when she began her schooling. She wasteased for being “black”. Prof Behrendtwas motivated to become alawyer because her grandmother had been removed from her family by what ProfBehrendt regarded as a racistpolicy. She graduated in law at the University ofNew South Wales and completed a Masters and then a Doctorate in law at HarvardLaw School. She was not the beneficiary of any special admission program forAboriginal people. She competed with everyone elsefor her place at Harvard. Prof Behrendt has held several positions that she could only have held as anAboriginal person. She hasalso won and been nominated for a number of awardsfor which only Aboriginal persons were eligible. That she has obtained thosepositions and awards is regarded by her as indicative of her acceptance as anAboriginal person by the Aboriginal community. Shehas been recognised as anAboriginal person in the wider community as well, including by winning a numberof awards such as the VictorianPremier’s Literary Award for Indigenouswriting.
123. Inthe second article Mr Bolt referred to Prof Behrendt as a “professionalAborigine” who is “chairman of our biggesttaxpayer – fundedAboriginal television service” (2A-20). Prof Behrendt believes this is areference to the NationalIndigenous Television Service established in about2006. She was approached to be the Chair of the service for a three yearappointmentfor which she received $20,000 per year. She worked extraordinarilyhard for at least two days a week as Chair and voluntarily steppeddown at theend of her appointment. She did not accept the appointment for the money. Shedid so because of her view that therewas a need for Aboriginal people to havetheir own voice in contemporary Australia.
124. ProfBehrendt read the first article in the days following its publication. It wasemailed to her by a number of Aboriginal friendsand colleagues who wereoffended by its content. Prof Behrendt found the first article to be offensivebecause she regarded it asan attack on who she is as a person. She viewed thearticle as undermining what she had worked very hard for by implying that sheclaimed to be Aboriginal to receive certain benefits.
125. Sheperceives Mr Bolt as saying that she is “too blonde and too light to beAboriginal” and that she is “not Aboriginalenough”. That iscompletely insulting to her. She regards Mr Bolt’s conduct in writing theArticles as both intimidatingand humiliating to her because he invites membersof the public, who know nothing about her, to challenge her integrity andidentitybased on how she looks. By doing that, she regards Mr Bolt to havehumiliated her in front of her family, friends and work colleagues.
126. ProfBehrendt regards the Articles as communicating that she and other Aboriginalpeople, who are fairer rather than darker skinned,and who have some Aboriginaldescent, are not genuinely Aboriginal. She perceives Mr Bolt as saying that inidentifying as Aboriginal,she is being dishonest and pretending to beAboriginal to get benefits. For Mr Bolt to say that she is not Aboriginalenough becauseof her skin colour is a denial of her race and identity.
127. Shealso found Mr Bolt’s reference to her as a “professionalAborigine” (1A-14 and 2A-20) to be hurtful, insultingand offensive. Sheperceives that as suggesting she identifies with her race, not because she isAboriginal, but because she wantsto exploit the system because identifying asAboriginal is lucrative. She found Mr Bolt’s reference to her as“meinliebchen” (1A-17) particularly offensive, patronising anddenigrating.
128. ProfBehrendt expressed concern that the Articles sent a message to young Aboriginalpeople that if you are light-skinned and identifyas Aboriginal you will bepublically attacked and criticised in the same way as she perceives that she wasattacked by Mr Bolt. She regards that message as very intimidating.
129. ProfBehrendt is regarded as an expert on Aboriginal issues and her perspective isvalued. A book that she has written is on thecurrent Victorian Certificate ofEducation reading list. She believes that the first article has undermined herprofessional integrity. She perceives it as questioning her credibility tooffer views from an Aboriginal perspective. This she finds humiliating andhurtful.
130. Informationabout her is widely available on the internet. That material includesphotographs of Prof Behrendt with brown hair. Those photographs were availableon the internet at the time of the publication of the first article. The firstarticle containsa picture of Prof Behrendt with blonde hair. Prof Behrendt haddyed blonde hair between 2003-2009 but not at the time the Articleswerepublished.
131. Althoughshe was cross-examined, the evidence given by Prof Behrendt to which I havereferred was either not contested or takes accountof what she said incross-examination. I have no reason to not accept her evidence as truthful. Inparticular, I find that by reasonof Prof Behrendt having been raised as anAboriginal person she has, and does genuinely, self-identify as Aboriginal. Shehas Aboriginalancestry and communal recognition as an Aboriginal person. Sheis an Aboriginal person and entitled to regard herself as such withintheconventional understanding of that description. She did not consciously chooseto be Aboriginal. She has not improperly usedher Aboriginal identity toadvance her career. She is a person highly committed to her community. She isentitled to regard herachievements as well deserved rather thanopportunistically obtained. I accept that she feels offended, humiliated andinsultedby the Articles or parts thereof in the manner outlined by herevidence.

Leeanne Enoch

132. MsEnoch works for the Australian Red Cross in the position of Queensland Director,Aboriginal and Torres Strait Islander Partnerships. Ms Enoch lives inQueensland. Ms Enoch’s father is Aboriginal. Her mother is not. Bothher paternal grandmother and grandfatherwere Aboriginal. Ms Enoch’scultural upbringing and that of her siblings was very much dominated by herfather’s sideof the family. She has always identified as Aboriginal. She spent the earlier part of her childhood on North Stradbroke Islandmixingwith her family, the majority of whom were Aboriginal. Her mother has alwaysbeen accepted as part of her father’sextended Aboriginal family. She hashad only sporadic contact with her mother’s side of the family.
133. Hermother fully supported her Aboriginal identity and her education in Aboriginalculture. She was very much influenced by herpaternal grandmother as she wasgrowing up. As the eldest grandchild of the eldest son (her father), she hadparticular Aboriginalcultural and family responsibilities and she was groomedfor those responsibilities from a young age.
134. MsEnoch is fair-skinned and looks very much like her mother. She has threeyounger brothers all of whom are darker than her.
135. MsEnoch has not questioned her identity. She never chose at any particular timeto be an Aboriginal person. That is who she is. She has always been recognisedas being an Aboriginal person by the Aboriginal communities in which she grew upand the communitiesin which she has lived. She has a large network ofAboriginal friends and colleagues. They have all recognised her as being anAboriginal person.
136. MsEnoch began to face challenges about her identity when her family leftStradbroke Island and while she was attending school. It was only when teachersand students came into contact with her father that they first realised that shewas Aboriginal. Thiswas an issue for the children who asked whether she hadbeen adopted. Because of her fair skin, she has experienced people beingracisttowards Aboriginal people, whilst not realising that she is Aboriginal andlikely to be deeply offended.
137. MsEnoch trained as a teacher and then worked as a teacher for 10 years. She wasrecognised as an Aboriginal person in her workin schools and assisted withAboriginal cultural awareness programs. Ms Enoch left teaching to work insocial policy, focusing onAboriginal issues. She has held a range ofpositions. She has not gained her various qualifications through special accessprovidedfor Aboriginal people. Nor, to her knowledge, have any of thepositions she has held been identified for or reserved for Aboriginalpeople. Many of the positions that she has held have been positions in which anindigenous person was preferred, although many ofthose roles have also sincebeen filled by non-Indigenous persons.
138. MsEnoch joined the Australian Labor Party some six years ago. She stood as acandidate for election because she desired to makea difference.
139. MsEnoch is the subject of the first blog article. Her first reaction to it wasdismissive on the basis that she thought no onewould read it. She became morealarmed when she saw the first article and realised that everyone in her familyand community wouldsee it. Both her father and many of her relatives have beenupset by Mr Bolt’s comments. Compounding the offence that sheexperienced, Ms Enoch was upset by the effect of the comments on her father andalso on her children, particularly her oldest sonwho is fair, unlike heryounger son who is darker. For her eldest son, the Articles have beenconfronting and have exacerbated hisown identity issues.
140. MsEnoch found it highly offensive that Mr Bolt stated she was “not reallyAboriginal” or “not genuinely Aboriginal”because of her skinand hair colour. She perceived Mr Bolt as suggesting that she had chosen toidentify as Aboriginal to furtherher political career and that she hasconstructed her career as a bureaucrat suggesting that she is some kind of sellout, ridingon her Aboriginal heritage. In the context of her care for hercommunity, her care for the quality of her work and that money isvery muchsecondary for her, she found Mr Bolt’s insinuations untrue and insulting. That was so because she perceives Mr Boltto be saying that her hard work, skilland talent are of no significance. Many of her friends and colleagues wereupset by the Articlesas well as Aboriginal elders to whom she showed theArticles.
141. Theevidence given by Ms Enoch was not contested and I have no reason to not acceptit as truthful. In particular, I find that byreason of Ms Enoch having beenraised as an Aboriginal person she has and does genuinely self-identify asAboriginal. She has Aboriginalancestry and communal recognition as anAboriginal person. She is an Aboriginal person and entitled to regard herselfas such withinthe conventional understanding of that description. She did notconsciously choose to be Aboriginal. She has not improperly usedher Aboriginalidentity to advance her career. She is a person interested in advancing theinterests of her community and is entitledto regard her achievements as welldeserved rather than opportunistically obtained. I accept that she feelsoffended, humiliatedand insulted by the Articles or parts thereof in the manneroutlined by her evidence.

Mark McMillan

142. MrMcMillan currently lives in the United States of America, he is a lawyer and anAppeals Court judge (for sovereign American Indians)in Arizona. MrMcMillan’s father was born in Sussex, England. He was not Aboriginal. MrMcMillan’s father was notinvolved in raising Mr McMillan. Mr McMillanwas raised by his mother and his grandmother. Both have Aboriginal ancestry. Mr McMillan’sgreat grandmother was the child of an Aboriginal woman and anon-Aboriginal man. Mr McMillan was raised by his mother until he waseightyears old and then moved to Trangie where his maternal grandmother lived. Fromthat point he was raised by his mother andgrandmother. His family were allrecognised as part of the Trangie Aboriginal community.
143. Growingup, Mr McMillan and his siblings all knew they were Aboriginal. Whilst growingup in Trangie, Mr McMillan and his siblingswere told stories about theirAboriginal relatives, including about their maternal great grandmother who wasthe last Aboriginallanguage speaker in the town. Those stories helped to shapehis identity as an Aboriginal person.
144. MrMcMillan has always actively and willingly identified as an Aboriginal person. His identity and his pride in being an Aboriginalperson were reinforced by hisgreat grandmother, grandmother and mother as he was growing up. The Aboriginalcommunity accepts himas Aboriginal. His great grandmother, grandmother,mother, aunties and uncles were all involved in the Trangie Aboriginal LandCouncil. That Council has also recognised him as Aboriginal. Two years ago hewas elected to the Board of the Council.
145. Growingup, Mr McMillan experienced racism. He was called an “AlbinoBoong”.
146. MrMcMillan began his work career at ATSIC as a clerk in 1996. Three years laterhe was awarded an Aboriginal undergraduate studyaward from ATSIC. He studiedlaw at the Australian National University. He was selected to participate infurther study throughan exchange program in Canada. To be selected, he competedwith non-Aboriginal and Aboriginal people. He was admitted as a solicitorin2001. He obtained a research position working with Prof Behrendt at theUniversity of Technology, Sydney. In 2003, he appliedfor and was accepted tothe University of Arizona’s Indigenous Peoples Law and Policy program. Heobtained a scholarship whichwas open to both Aboriginal and non-Aboriginalpeople alike. Mr McMillan is also a recipient of the FulbrightScholarship.
147. MrMcMillan perceives that in the Articles, Mr Bolt is implying that he is
     
     “not Aboriginal enough”, that he is “too white to beAboriginal” and therefore he is “not really Aboriginal”. MrMcMillan finds that offensive. He also perceives Mr Bolt to be inferring thathe has only identified with his Aboriginal heritagefor political or economicpurposes. Mr McMillan perceives Mr Bolt in this respect to be denying him hisAboriginality and inferringthat he is not genuine in his identification, butonly engaging with his Aboriginality for personal gain.
148. Mr McMillan was very offended and insulted by a number of particular commentsmade of him by Mr Bolt. He perceived that Mr Bolt’scomments about himbeing a “proud gay” and a “proud father” together withother comments made in the secondarticle about Mr McMillan having suffered“shocking pain havingnot been discriminated against for beingblack” (Mr Bolt’s emphasis), involved Mr Bolt taking quotes from anarticle thathe had written for the Australian Broadcasting Corporation(“the ABC article”). Mr McMillan was offended, insulted andhumiliated by the fact that quotes from the ABC article were taken out ofcontext by Mr Bolt.
149. MrMcMillan referred to the comment in the second blog article that he is “agay white man with a law degree” and “justthe kind of Aboriginalwho needs a special handout”. He found that comment offensive andhumiliating. The comment assumesthat he has not suffered disadvantage and thathe has been given a handout. From his perspective, he was awarded ascholarship,not a handout, and the comment denigrates his achievement by sayingthat he received it only because he is Aboriginal. He agreesthat was a factor,but he was also given a scholarship because he had both a Masters in Law and aBachelor of Law.
150. MrMcMillan was offended, insulted and humiliated by the comment in the secondarticle about “scuffling at the trough”. He perceived Mr Bolt to besuggesting that he identified as Aboriginal only for some financial gain. Hewas also offended at MrBolt’s treatment of his receipt of the BlackWomen’s Action in Education Foundation Scholarship. He regards MrBolt’saccount as misleading because the scholarship was open toindigenous men and women.
151. Asa result of seeing the Articles, Mr McMillan was contacted by a personrepresenting the Australian American Fulbright Commission.Whilst that personconfirmed the Commission’s support for him, he was asked how theCommission should respond to any mediaenquires made to the Commission about MrMcMillan. Mr McMillan was humiliated by the conversation. He perceived thatwhat was beingasked of him was confirmation of his Aboriginality. Similarly,the Director of the program with which he is currently involved attheUniversity of Arizona also spoke to him about the Articles. Whilst again MrMcMillan was given support, he was embarrassed andhumiliated by theseconversations because he had to assure the organisations concerned that he wasAboriginal and had not been dishonestabout his Aboriginal identity. MrMcMillan was both humiliated and insulted by the fact that the Articles put himin a positionto have to justify his identity.
152. MrMcMillan was also offended, insulted and humiliated by Mr Bolt’s use ofcolour as the determinant of race. He was alsooffended by the suggestion thathe and others were taking money from more deserving “black”Aboriginal people and thathe and others had not suffered disadvantage. MrMcMillan did in fact experience disadvantage in his life. For Mr McMillan, hisAboriginality is more than an attribute, it is how he sees himself as a humanbeing. It was hurtful for him to have people talkingabout his Aboriginalidentity in the abstract and it was hurtful for him to have his Aboriginalidentity challenged.
153. Theevidence given by Mr McMillan was not contested and I have no reason to notaccept it as truthful. In particular, I find thatby reason of Mr McMillanhaving been raised as Aboriginal he has and does genuinely self-identify asAboriginal. He has Aboriginalancestry and communal recognition as anAboriginal person. He is an Aboriginal person and is entitled to regard himselfas an Aboriginalperson within the conventional understanding of thatdescription. He did not consciously choose to be Aboriginal. He has notimproperlyused his Aboriginal identity to advance his career. He is entitledto regard his achievements as well deserved rather than opportunisticallyobtained. I accept that he feels offended, humiliated and insulted by theArticles or parts thereof in the manner outlined by hisevidence.

Pat Eatock

154. MsEatock was born in Brisbane in 1937. She is now retired and lives in New SouthWales. Ms Eatock’s mother was born in Scotlandand came to Australia inabout 1928. Ms Eatock’s Aboriginal heritage comes from her father. Herpaternal grandfather wasAboriginal and her paternal grandmother had anAboriginal mother and a non-Aboriginal father.
155. MsEatock’s evidence was that a lot of her Aboriginal identity was formed bynegative experiences of being Aboriginal. Shehas identified herself asAboriginal since she was a teenager. The Aboriginality of her family was nottalked about much at homeas she grew up because it was something her father wasvery ashamed of. Her parents were also scared that the children’sAboriginalitywould be discovered and that they would be taken away.
156. Asshe was growing up she experienced a number of incidents which she nowrecognises to have involved racial discrimination but which,at the time, shehad not appreciated as instances of racial discrimination. Whilst at primaryschool, she did not think of herselfas being Aboriginal and perceived that onvarious occasions when she was picked on, that was for other reasons. She andher siblingsthought that her father was somehow at fault but they didn’tknow exactly why. Ms Eatock stated that she first encounteredher Aboriginalityat the age of five at a primary school in Ingham. The playground at the schoolwas divided by a fence. “Whitekids” played on one side of thefence and “black kids” on the other. As they had a“white” motherand fair skin, Ms Eatock and her sisters were put toplay with the “white kids”. Her father had been away working, butwhen he returned home on leave it was realised at the school that Ms Eatock hadan Aboriginal father. She and her sisters were takenout of the“white” children’s playground and put in the“black” children’s playground. Complaintswere then made byparents who saw apparently “white” children playing on what theyperceived to be the wrong side ofthe fence. As a result Ms Eatock and hersisters were removed from the “black” children’s playgroundand put inwith the “white” children again. For Ms Eatock, this washer first identity crisis.
157. MsEatock left school at age 14 in 1951. This was the first time she identifiedherself in public as an Aboriginal person. Shedid that because shedidn’t want to be accused of hiding her racial background. On oneoccasion when she was 16 years old,this led to her boss coming to her house andasking whether she could adopt Ms Eatock and give her a better life.
158. MsEatock performed a range of jobs in factory settings until she married in 1957. She was at home caring for her children until1973 when she commenced tertiarystudies. During that period and at other times she has experienced racism butsaid that becauseshe was not perceived to be Aboriginal she used to experiencea different type of racism. Often people would make racist remarksaboutAboriginal people in her presence. Ms Eatock found experiences of that kindstressful. Her way of dealing with it was topre-empt it by telling people atthe outset that she was Aboriginal or wearing clothes that announced herinvolvement with Aboriginalissues.
159. Inthe 1960s, Ms Eatock went to hear Faith Bandler speak at a political meeting. This meeting awakened her to the nature of Aboriginaldisadvantage. As a resultof what she had learnt, she decided to be more assertive about herAboriginality. That, however, wasnot really a matter of choice for her. Itwas driven by her sense of oppression and the recognition that she needed tobecome moreproactive about who she is.
160. Aftergraduating with a Bachelor of Arts degree in 1978, Ms Eatock was employed as atemporary clerical assistant in the Departmentof Aboriginal Affairs. She thenmoved to a different Departmental job, but from 1980 to 1987 she was unemployed.She undertook furthertraining in 1986. She worked in the TAFE sector from 1987until 1991. She became a lecturer in Aboriginal Community Developmentin late1991. From 1992 until 1996 she was unemployed, although involved in unpaidactivity developing an Aboriginal televisionstation.
161. In1996 she was granted a disability support pension which was later converted intoa senior’s pension. She has had some weeksof employment since that time,has done further studies and volunteered to promote various Aboriginal issues. She lives in a onebedroom Department of Housing flat in Sydney. She does notown a car or other significant assets and has no meaningful savings.
162. Shehas been involved in a lot of work with the Aboriginal community, including aspart of the Aboriginal Tent Embassy in Canberrain 1972 and 1973. She has stoodfor election in the Australian Capital Territory as an independent Aboriginalcandidate. She hasattended conferences and other events as a person active inAboriginal affairs. In that involvement, she was recognised as an Aboriginalperson by the people she met.
163. MsEatock’s evidence was that she was horrified, disgusted, angry and upsetand felt sick in the stomach when she saw Mr Bolt’sArticles. Sheperceived Mr Bolt as disconnecting her from her Aboriginality in every way. Shestated that she was offended in apersonal way because what Mr Bolt wrote was adenial of who she is, her life’s work and her ethics. Part of the offencesheexperienced related to Mr Bolt saying she had only begun to identify as anAboriginal person when she was 19. She perceived thatMr Bolt attacked heridentity in saying that she chose to identify as an Aboriginal person forself-gain and that she had “thrived”as an Aboriginal bureaucrat andacademic. In her view she has done anything but thrive. She has been moredisadvantaged than advantagedby identifying as Aboriginal. In total, she hashad only six to six-and-a-half years of employment since 1977. She perceives MrBolt’s articles as racist and she remains deeply offended.
164. MsEatock was cross-examined, but the evidence I have referred to was largelyuncontested. I have no reason to not accept Ms Eatock’sevidence astruthful. I find that Ms Eatock does genuinely self-identify as Aboriginal. She has Aboriginal ancestry and communalrecognition as an Aboriginal person. She did not choose to be Aboriginal. Her identity is a product of herupbringing. In heradult life she chose to be proactive about her Aboriginalidentity. She is an Aboriginal person and is entitled to regard herselfas anAboriginal person in accordance with the conventional understanding of thatracial description. She has not improperly usedher Aboriginal identity toadvance her career. Her professional career involved significant unemployment. She is a person committedto her community and is entitled to regard herachievements as well-deserved rather than opportunistically obtained. I acceptthatshe feels offended, humiliated and insulted by the Articles or partsthereof in the manner outlined by her evidence.

Andrew Bolt

165. MrBolt gave evidence. I have considered all of his evidence and deal with itlater in these reasons in conjunction with the particularissue to which thatevidence is relevant.

HWT

166. Nowitness evidence was given on behalf of HWT. To some extent Mr Bolt gaveevidence about the operations of theHeraldSun.

ABORIGINAL IDENTITY

167. Itis necessary to make some observations about Aboriginal identity. The manner inwhich Aboriginal people have identified, and havebeen identified, by otherssince the British settlement of Australia is a background matter of somesignificance to a number of issuesin the case, including whether the Articleswere reasonably likely to offend and the extent to which Mr Bolt should haverealisedthat to be so. In the context of a challenge made to the legitimacy ofa person’s racial identification, the extent to whichthat identificationis generally accepted, and thus, the extent to which the person challenged has alegitimate expectation thattheir identity will be respected, has a rationalbearing upon the nature and extent of any offence that may be generated by thechallenge. The extent to which racial categorisation has been a matter ofhistorical sensitivity for a particular race of people is also relevantto thelikelihood of offence.
168. Bothparties relied upon judicial authorities and tendered many articles intended toassist me in forming a view on these matters,as well as relying on the natureand extent to which Aboriginal identity has been a matter of publicinterest.

Aboriginal Sensitivity to Racial Categorisation

169. TheAustralian Law Reform Commission’s 2003 Report on the Protection of HumanGenetic Information considered whether a biologicalbasis for the identificationof a race was justifiable. It noted (at [36.41]) that one of the outcomes of theHuman Genome Projectand other scientific research is “that there is nomeaningful genetic or biological basis for the concept of‘race’”.Human beings are 99.9 per cent genetically identical.Some 95 per cent of human genetic variation occurs within racial groups whereas,on average, a genetic variation of five per cent occurs between racial groups. The ALRC observed at [36.42] that:

It is now well-accepted amongmedical scientists, anthropologists and other students of humanity that‘race’ and ‘ethnicity’are social, cultural andpolitical constructs, rather than matters of scientific ‘fact’.

170. Despitewhat is now known about the invalidity of biology as a basis for race orethnicity, legal definitions of Aboriginality, atleast until the 1980s,exclusively concentrated on biological descent. Dr John Gardiner-Garden, in hisreport titled “DefiningAboriginality in Australia” (Department ofthe Parliamentary Library, Current Issue Brief No.10 2002-03) noted that forAboriginalpeople, loss of identity began with the dispossession of their lands.Dr Gardiner-Garden’s report summarised the legislativeposition on racialcategorisation at page 3 as follows:

Although in the first decadesof settlement Aboriginal people were grouped by reference to their place ofhabitation, in subsequentyears, as settlement resulted in more dispossessionand intermixing, a raft of other definitions came into use. The most commoninvolved reference to ‘Blood-quotum’. ‘Blood-quotum’classification entered the legislation of New SouthWales in 1839, SouthAustralia in 1844, Victoria in 1864, Queensland in 1865, Western Australia in1874 and Tasmania in 1912. Thereaftertill the late 1950s States regularlylegislated all forms of inclusion and exclusion (to and from benefits, rights,places etc.)by reference to degrees of Aboriginal blood. Such legislationproduced capricious and inconsistent results based, in practice, onnothing morethan an observation of skin colour.

(Footnotes omitted.)

171. Itis a notorious and regrettable fact of Australian history that the flawedbiological characterisations of many Aboriginal peoplewas the basis formistreatment, including for policies of assimilation involving the removal ofmany Aboriginal children from theirfamilies until the 1970s. It will be of nosurprise that a race of people subjected to oppression by reason of oppressiveracialcategorisation will be sensitive to being racially categorised by others.I accept that to be the case in relation to AboriginalAustralians. Atparagraph 36.7 of its report, the ALRC acknowledged that sensitivity with anextract from the final report of theRoyal Commission into Aboriginal Deaths inCustody in the following terms:

No area of research and commentaryby non-Aboriginal people has such potential to cause offence as does that whichattempts to define‘Aboriginality’. This determination ofnon-Aboriginal people to categorise and divide Aboriginal people is resented formany reasons, but principally, I suspect, because the worst experiences ofassimilation policies and the most long term emotionalscars of those policiesrelate directly to non-Aboriginal efforts to define ‘Aboriginality’and to deny to those foundnot to fit the definition, the nurture of family, kinand culture. To Aboriginal people there appears to be a continuing aggressionevident in such practices. (Footnote omitted.)

The Conventional Meaning of “Australian Aboriginal”

172. Amove away from the use of biological descent as the exclusive determinant ofAboriginality can be traced back to the 1967 Referendum,when s 51(xxvi) of theAustralianConstitution was amended with the effect that the CommonwealthParliament gained the power to legislate with respect to Aboriginal people. Asthe ALRC report identified, the Commonwealth subsequently enacted a number ofstatutes for the purpose of providing rights and privilegesfor indigenousAustralians. In the early 1980s a new three-part definition of an Aboriginal orTorres Strait Islander was proposedby the Commonwealth Department of AboriginalAffairs. As the ALRC report describes at [36.14], the definition was in thefollowingterms:

An Aboriginal or Torres Strait Islander is a personof Aboriginal or Torres Strait Islander descent who identifies as an Aboriginalor Torres Strait Islander and is accepted as such by the community in which he[or she] lives.

173. DrGardiner-Garden’s report and the ALRC report (at page 4 and [36.15]respectively) observe that the three-part definitionwas adopted by all FederalGovernment Departments as their ‘working definition’ for determiningeligibility to accesscertain services and benefits.
174. Withthe enactment of theAboriginal Land Right Acts 1983 (NSW), thethree-part definition found its way into legislation and from about that timethe definition came to be the subject ofjudicial consideration.
175. Themeaning of “Aboriginal race” arose before the High Court in theCommonwealth v Tasmania[1983] HCA 21;(1983) 158 CLR 1 (theTasmanian Dam Case),although only two of the judges (Brennan and Deane JJ) discussed its meaning.Deane J at 273-4 considered that the phrase “peopleof any race” ins 51(xxvi) of theConstitution has a “wide and non-technicalmeaning”. In that respect Deane J relied onKing-Ansell v Police[1979] 2 NZLR 531 andMandla v Dowell Lee [1983] 2 AC 548 (to which Ilater refer at [310]-[312]). Deane J thought that the phrase “people ofany race” was appositeto refer to all Australian Aboriginals collectivelyand also to any identifiable racial sub-group among Australian Aboriginals. Deane J continued at 274:

By “Australian Aboriginal” Imean, in accordance with what I understand to be the conventional meaning ofthat term, aperson of Aboriginal descent, albeit mixed, who identifies himselfas such and who is recognized by the Aboriginal community as anAboriginal.

176. BrennanJ at 243 considered that a biological element was an essential element ofmembership of a race. Membership of a race couldbe proved by proof of descentfrom ancestors who are acknowledged members of the race. Brennan J otherwiseidentified cultural andsociological factors as indicative of a race.
177. Inhis later judgment inMabo v Queensland (No 2)[1992] HCA 23;(1992) 175 CLR 1 at 70,Brennan J took an approach reflective of the three-part test which Deane Jhad described as the “conventional meaning”of an AustralianAboriginal:

Membership of the indigenous people depends onbiological descent from the indigenous people and on mutual recognition of aparticularperson’s membership by that person and by the elders or otherpersons enjoying traditional authority among those people.

178. InAttorney-Generalof the Commonwealth v Queensland(1990) 25 FCR125, the meaning of “Aboriginal” in Letters Patent authorising theRoyal Commission into Aboriginal Deaths in Custody wasconsidered by a FullCourt of this Court (Jenkinson, Spender and French JJ). The QueenslandGovernment had challenged the inquiryby the Royal Commission into the death ofa 17 year old boy in custody on the basis that he was not Aboriginal. Thefather of theboy was born in Holland. His mother was of Aboriginal descent. He had light skin and blonde hair. It was not at issue that hehad significantAboriginal descent. The extent to which he had identified as an Aboriginal andbeen recognised as such by the Aboriginalcommunity had been the subject ofdifferent findings by the Royal Commission on the one hand and the trial judgeon the other.
179. Itwas in that context that the Full Court considered whether proof of Aboriginaldescent was sufficient and held that it was forthe particular purposes at hand.French J considered the three-part test propounded by Deane J in theTasmanian Dam Case. French J noted the constitutional context in whichthose criteria were stated and thought it unsurprising that emphasis shouldbeplaced upon elements of self-identification and communal recognition as well asdescent. He thought that the three-part test“should not be seen asrepresenting the contemporary content of the word ‘Aboriginal’irrespective of context orpurpose”: at 147. French J determined that forthe purposes of the Letters Patent, the better view was that Aboriginal descentwas a sufficient criterion for classification as “Aboriginal”irrespective of self-identification or communal acceptance.In that respect,French J took a broader view of “Aboriginal” than is required by thethree-part test. His Honour leftopen “the question whether a person withno Aboriginal genetic heritage may be regarded as Aboriginal by reason ofself-identificationand communal affiliation”: at 148.
180. JenkinsonJ considered that “Aboriginal” in its ordinary use applied to aperson thought to be a descendant or thoughtpossibly to be a descendant of thepeople who occupied Australia before British settlement. Descent, “atleast as a real possibility”,was essential: at 126. At 126-127 the judgesaid:

I would find that, in reference to him who identifies himselfas a person of Aboriginal descent and who is recognised as Aboriginalby theAboriginal community, the word “Aboriginal” will be used,notwithstanding that he is thought to be in only smallpart of Aboriginaldescent, or to be not certainly, only possibly, of Aboriginal descent at all.

181. SpenderJ considered that the modern use of “Aboriginal” “refers tothose who are descended of such people, whollyor in part”: at [132]. Where the extent of Aboriginal descent might be regarded as insignificant,self-recognition or recognitionby persons who are accepted as being Aboriginalmay have an evidentiary value. Once it is established “that the person isnon-trivially of Aboriginal descent”, Spender J thought that the personfalls within the ordinary meaning of the word “Aboriginal”:at133.
182. Themeaning of the phrase “Aboriginal persons” was later examined byDrummond J inGibbs v Capewell[1995] FCA 1048;(1995) 54 FCR 503. The Court examinedthat phrase in the context of its use in theAboriginal and Torres StraitIslander Commission Act 1989 (Cth) (“the ATSIC Act”). The caseinvolved a challenge to the validity of elections held for positions in theAboriginaland Torres Strait Islander Commission. The ATSIC Act restricted theright to stand for election and to vote to “Aboriginalpersons”.
183. Byreference to the preamble and objects of the ATSIC Act, Drummond J (at 506)thought that the phrase was an intended referenceto persons who weredescendants from the inhabitants of Australia immediately prior to Europeansettlement. At 507 the judge noted,by reference to observations made by Lush JinRe Bryning[1976] VicRp 8;[1976] VR 100 at 103, that it has long been accepted thatthere remain very few Aboriginal persons in Australia who are not of mixeddescent andthat the description ‘Aboriginal’ is ordinarily used inAustralia to describe such persons. Drummond J accepted thatAboriginals ofmixed descent came within the expression “Aboriginal persons”.
184. Thejudge made a number of further observations about the ordinary understanding of“Aboriginal”. At 511 he said:

Although an opportunisticclaim by a person to identification as an Aboriginal would not, I think, beregarded by ordinary Australiansas sufficient to attract to that person thestatus of "Aboriginal" even if he could prove he possessed a small quantum ofAboriginalgenes, in my opinion a person of limited Aboriginal heritage whonevertheless genuinely identified himself or herself as Aboriginalwould belikely to be described by ordinary Australians as an Aboriginal, even withoutAboriginal communal recognition as such. Ofcourse, genuine self-identificationplus Aboriginal communal recognition would very likely lead to a person withonly a small degreeof Aboriginal descent being described in ordinary speech asan Aboriginal. Counsel for the Minister referred to the possibility oftherebeing many persons of limited aboriginal descent who learn of that fact onlyafter a time, but who then feel a genuine desireto proclaim theirAboriginality; counsel referred to past government policies of separatingAboriginal infants from their familiesand of seeking to integrate them intowhite society. I do not think that Australians using their ordinary manner ofspeech woulddeny to such persons who discovered their Aboriginal heritage inmaturity and who genuinely desired to acknowledge that heritagethe description"Aboriginal". Communal Aboriginal recognition as an Aboriginal person would notin such a case be required beforethe person would be so described.

185. DrummondJ stated at 512 that in determining whether a person is Aboriginal, the smallerthe degree of Aboriginal descent, the moreimportant will be the place ofcultural or social circumstances attending the valid characterisation of thatperson as an Aboriginalperson. In that respect, the judge was of the view thatin current ordinary usage, a person with a small degree of Aboriginal descentbut who genuinely identified as Aboriginal and had Aboriginal communalrecognition would be described as an Aboriginal person and,may be so describedwhere only one of those two factors was present.
186. Shawv Wolf(1998) 83 FCR 113 raised the same legal issue as considered inGibbs v Capewell. On that occasion, whether particular persons were“Aboriginal persons” within the meaning of the ATSIC Act was thesubject of challenge in relation to elections held in Tasmania. This case, asother evidence before me shows, was part of a significantbattle which largelysplit the Tasmanian Aboriginal population in what appears to have been a contestfor control of Aboriginal organisationsin Tasmania which began from about 1995.InShaw v Wolf,Merkel J held that, for the purposes of the ATSIC Act,some degree of descent was necessary but was not of itself a sufficientconditionof eligibility to be an “Aboriginal person”: at 118. Thejudge applied the three-part test and observed that descent,self-identificationand communal recognition are interrelated and in order to understand the natureof that relationship, it wasnecessary to consider the sociological context inwhich identification as an Aboriginal person occurs in Australia: at 118.
187. InPatmore v Independent Indigenous Advisory Committee[2002] FCAFC 316;(2002) 122 FCR 559, aquestion was referred to a Full Court (Gray, Merkel and Downes JJ) in relationto a challenge to the validity of certain rulesmade pursuant to the ATSIC Act. Merkel and Downes JJ referred toShaw v Wolf and the three-part test at[56]:

As was made clear in Shaw v Wolf at 117-122 the question ofwhether a person is an Aboriginal person can be a vexed and difficultquestionrequiring inquiry into the person’s descent, self-identification andcommunal recognition as an Aboriginal person.

The three-part test was also applied to determine whether a person was an“Aboriginal person” inRe Watson (No 2)[2001] TASSC 105 (CoxCJ).

188. Theauthorities to which I have referred, make it clear that a person of mixedheritage but with some Aboriginal descent, who identifiesas an Aboriginalperson and has communal recognition as such, unquestionably satisfies what isconventionally understood to be an“Aboriginal Australian”. Forsome legislative purposes and in the understanding of some people, compliancewith oneor two of the attributes of the three-part test may be regarded assufficient. To some extent, including within the Aboriginal community,debateor controversy has occurred as to the necessary attributes for the recognitionof the person as an Aboriginal. Those controversieshave usually occurred inrelation to whether a person meets the necessary criteria, rather than as to thecriteria itself. Thosecontroversies have however from time to time focusedupon whether a person with no or no significant Aboriginal descent should beaccepted as an Aboriginal person.
189. Aperson possessing all three attributes identified by the three-part test clearlysatisfies the conventional understanding of anAboriginal person. Consistentlywith the authorities to which I have referred, in the knowledge of thepossession of those threeattributes, such a person would be described byordinary Australians as Aboriginal. In my view, such a person would be entitledto expect that other Australians would recognise and respect his or heridentification as an Aboriginal Australian. I do not wishto suggest that aperson with less than the three attributes of the three-part test should not berecognised as an Aboriginal person. That question does not arise fordetermination in this case.
190. Theconventional understanding is not, however, the universal understanding. Theperception of many Australians of an Aboriginalperson will no doubt beinfluenced by stereotypical images of dark skinned Aboriginal persons in outbackAustralia. It is likelythat a person with each of the attributes of thethree-part test and fair skin colour will, from time to time, be challenged astohis or her Aboriginality. The evidence from the witnesses called by MsEatock demonstrates that to be so. Other material tenderedis confirmatory. That material also shows that from time to time prominent people, amongstothers, have raised concerns that identificationby others as Aboriginal peopleinvolves opportunism. An example is given in Dr Gardiner-Garden’s report(at page 5) and involvesa call made in 1988 by the then Victorian StatePresident of the RSL, Mr Bruce Ruxton who urged the FederalGovernment:

To amend the definition of Aborigine to eliminate thepart-whites who are making a racket out of being so-called Aborigines atenormouscost to the taxpayers.

PART IIA OF THERACIAL DISCRIMINATION ACT

The Legislation

191. TheRDA was first enacted in 1975. I will later refer to the purposes of theenactment of the RDA which are set out in its preamble. The RDA was amended in1995 to insertPart IIA into the Act. The provisions of Part IIA which arerelevant for determining the issues in this case are as follows:

Part IIA—Prohibition of offensive behaviour based onracial hatred

18B Reason for doing an act

If:

(a)an act is done for 2 or more reasons; and

(b)one of the reasons is the race, colour or national or ethnic origin ofa person (whether or not it is the dominant reason ora substantial reason fordoing the act);

then, for the purposes of this Part, the act is taken to be done because ofthe person’s race, colour or national or ethnicorigin.

18C - Offensive behaviour because of race, colour or national or ethnicorigin

(1) It is unlawful for a person to do an act, otherwise than inprivate, if:

(a) the act is reasonably likely,in all the circumstances, to offend, insult, humiliate or intimidate anotherperson or agroup of people; and

(b) the act is done because of the race, colour or national or ethnicorigin of the other person or of some or all of the peoplein the group.

Note:Subsection (1) makes certain acts unlawful.Section 46P of theAustralian Human Rights Commission Act 1986 allows people to makecomplaints to the Australian Human Rights Commission about unlawful acts.However, an unlawful act is not necessarilya criminal offence.Section 26says that this Act does not make it an offence to do an act that is unlawfulbecause of this Part, unless Part IV expressly saysthat the act is anoffence.

(2) For the purposes of subsection (1), an act is taken not to bedone in private if it:

(a) causes words, sounds, images orwriting to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearingof people who are in a public place.

(3) In this section:

"public place"includes any place to whichthe public have access as of right or by invitation, whether express or impliedand whether or not a chargeis made for admission to the place.

18D - Exemptions

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

(a)in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debatemade or held for any genuine academic, artistic or scientificpurpose or anyother genuine purpose in the public interest; or

(c)in making or publishing:

(i) a fairand accurate report of any event or matter of public interest; or

(ii)a fair comment on any event or matter of public interest if the commentis an expression of a genuine belief held by the personmaking the comment.

18E Vicarious liability

(1)Subject to subsection (2), if:

(a)an employee or agent of a person does an act in connection with his orher duties as an employee or agent; and

(b)the act would be unlawful under this Part if it were done by theperson;

this Act applies in relation to the person as if the person had also done theact.

(2)Subsection (1) does not apply to an act done by an employee or agent of aperson if it is established that the person took allreasonable steps to preventthe employee or agent from doing the act.

192. Thereare aspects of Part IIA which are at issue and call for interpretation. Anumber of well known principles of interpretationare to be applied. Firstly,the provisions do not create a criminal offence. If they had, a narrowerapproach to construing thescope of the conduct caught by Part IIA would havebeen warranted: compareColeman v Power(2004)[2004] HCA 39;220 CLR 1 at[185] (Gummowand Hayne JJ). Secondly, for the fundamental common law right of freedom ofexpression to be eroded, clear words are required:Coleman [185], [188](Gummow and Hayne JJ) and [313] (Heydon J). Thirdly, the context in which wordsare utilised is vital to a proper understandingof their intended meaning:Coleman [12] (Gleeson CJ), [59] (McHugh J), [177] (Gummow and Hayne JJ)and [306] (Heydon J). Context is provided by the surrounding words,but mostimportantly by the “purpose of the enactment”:Coleman[59](McHugh J).Section 15AA of theActs Interpretation Act 1901 (Cth)requires that a construction which promotes the object and purpose of thelegislation be preferred to a construction that wouldnot.
193. Next,it is necessary to observe that the provisions in question are broken up intothree distinct elements. Ultimately, each ofthese elements is brought togetherin answer of the single question of whether the act in question was unlawful. The first element(s 18C(1)(a)) concerns the likelihood of the impugned actcausing offence (unless otherwise apparent, I use that word as shorthandfor“offend, insult, humiliate or intimidate”); the second element (s 18C(1)(b)) concerns the reason for the impugnedact; and the third (s 18D)is an exemption for justifiable expression which, if satisfied, negates anyfinding of unlawfulness whichwould otherwise have been made. Whilst eachelement is not to be construed entirely divorced from the next, each element hasitsplace and should primarily be taken into account when the structure adoptedbyPart IIA calls for it to be considered.
194. Theconstitutional validity ofPart IIA was upheld by a Full Court of this Court inToben v Jones[2003] FCAFC 137;(2003) 129 FCR 515 (Carr, Kiefel and Allsop JJ). Mr Boltand HWT recognised that I am bound to follow that judgment, but formallyreserved their position.

An Overview

195. Thelegislative history and the purpose and policy ofPart IIA need to be examinedfor a number of reasons before I turn to consider each of the provisions of thePart. Firstly, Mr Bolt and HWTrelied upon the heading toPart IIA as anoverarching element in the proper interpretation of the provisions in question. Secondly, the purpose and policy ofPart IIA reveals that there are twofoundational values whichPart IIA is concerned with. As those values throwlight upon Parliament’s intention, they should also be examined at theoutset.

The Heading toPart IIA

196. PartIIA was not included in the RDA when it was originally enacted in 1975. TheRacial Hatred Act 1995(Cth)insertedPart IIA into the Act in1995. The heading to Part IIA is “Prohibition of offensive behaviourbased on racial hatred”. However,the heading suggests a narrower fieldof operation for Part IIA than the words utilised in Part IIA and thelegislative history reveal. Those words and the legislative history do notsupport Mr Bolt’s contention that the operation of Part IIA is restrictedtoextreme racist behaviour based upon racial hatred or behaviour calculated toinduce racial violence. The following legislative historyand judicialconsideration of it confirms that conclusion.
197. Thepreamble to the RDA refers to the International Convention on the Elimination ofall Forms of Racial Discrimination (“CERD”)and recitesParliament’s desire to provide for “the prohibition of racialdiscrimination and certain other forms of discriminationand, in particular, tomake provision for giving effect to the Convention”. From its inception,the RDA has included provisionswhich address discriminatory conduct, that is,inequality of treatment based on race, colour, descent or national origin. However,despite a number of unsuccessful attempts, the RDA does not include aprovision which implements in full, the obligation containedin Art 4(a) of CERDto create a criminal offence prohibiting conduct of the kind there dealt with. Article 4(a) refers to racialhatred and is in the followingterms:

States Parties condemn all propaganda and all organizationswhich are based on ideas or theories of superiority of one race or groupofpersons of one colour or ethnic origin, or which attempt to justify or promoteracial hatred and discrimination in any form, andundertake to adopt immediateand positive measures designed to eradicate all incitement to, or acts of, suchdiscrimination and,to this end, with due regard to the principles embodied inthe Universal Declaration of Human Rights and the rights expressly setforth inarticle 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideasbased on racial superiority or hatred, incitement toracial discrimination, aswell as all acts of violence or incitement to such acts against any race orgroup of persons of anothercolour or ethnic origin, and also the provision ofany assistance to racist activities, including the financing thereof;

198. Aproposed criminal offence proscribing the promotion of racism in the mannercondemned by Art 4(a) formed part of the Racial DiscriminationBill introducedin 1974 but which was rejected by the Senate. The failure to enact thatprovision (cl 28) led to Australia depositinga reservation to Art 4(a) on 30September 1975. As Allsop J recounts inTobenat [123], a furtherunsuccessful attempt was made in 1992 to revisit the issue, including by theenactment of a combination of criminaland civil provisions. The legislativehistory leading to the enactment of Part IIA is comprehensively set out in thejudgment ofAllsop J inToben. The judge also describes State andTerritory Acts enacted in the 1980s and early 1990s and a number of reportspublished at thattime which dealt with racial vilification.
199. ABill was once again introduced in 1994. TheRacial Hatred Bill 1994 (“the1994 Bill”) contained a Part 2 which dealt with proposed amendments to theCrimes Act 1914(Cth) and aPart 3 which proposed the insertion ofPartIIA into the RDA. The Explanatory Memorandum to the 1994 Bill (“theExplanatory Memorandum”) described the intent of theproposed legislationas “to strengthen and support the significant degree of social cohesiondemonstrated by the Australiancommunity at large”. However, anexamination of the provisions of Parts 2 and 3 show that different approacheswere contemplatedin furtherance of that common goal.
200. Part2 sought to create a number of criminal offences. The first was directed toprohibiting racially based threats of physicalharm. The subject of the secondwas racially based threats to destroy or damage property and the subject of thethird proposed offence(cl 60) was the incitement of racial hatred. Clause 60 was in the following terms:

A person must not, with theintention of inciting racial hatred against another person or a group of people,do an act, otherwisethan in private, if the act:

(a)is reasonably likely, in all the circumstances, to incite racial hatredagainst the other person or group of people; and

(b)is done because of the race, colour or national or ethnic origin of theother person or of some or all of the people in the group.

Penalty: Imprisonment for 1 year.

(2) For the purposes of subsection (1), an act is taken not to be done inprivate 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 haveaccess as of right or by invitation, whether express or implied and whether ornot acharge is made for admission to the place.

201. TheExplanatory Memorandum described the proposed criminal offences as giving effectto, and wholly based upon, Australia’sobligations under Art 4 ofCERD.
202. Theproposed civil provisions (which became Part IIA of the RDA) made no referenceto the incitement of racial hatred and did notrequire an act to intentionallyinflict harm as an element of breach. Instead, the civil provisions focusedupon racially offensivebehaviour and (by what became s 18D) included freespeech protections which were not included in the proposed criminal offence ofinciting racial hatred.
203. Notonly were (what became) ss 18C and 18D of the RDA significantly different fromthe proposed cl 60 of the 1994 Bill, these provisionstook a new and differentapproach than the approach which had until that time been taken by provisionsdealing with racial vilificationby both State and Territory legislatures. Itwas also different to the approach taken by the failed 1992 Bill. Having setout thelegislative history, Allsop J inTobenat [128] identified thedifference in approach from other civil provisions as follows:

Thecivil provisions (now found, relevantly, in ss 18B, 18C and 18D of the RD Act)were new in their terms and structure. They weredifferent from the variousprovisions of the State and Territory Acts and the provisions in the 1992 Bill.The 1992 Bill had usedthe words "hatred, serious contempt or severe ridicule"and recklessness or intent was required. Under the new provisions, no intentorrecklessness was required; but s 18D had a body of justified conduct. The wordsof Part IIA, especially s 18C, did not requirethere to be an expression ofracial hatred, or intended "vilification"; s 18C did not refer to incitement toviolence. Rather, PtIIA of the RD Act had a less charged body of expression. Itworked in the following way. Reading ss 18B, 18C and 18D together asa cohesivewhole, acts were made unlawful which reasonably caused offence etc (see s18C(1)(a)) to a person or persons in circumstanceswhere one of the reasons (sees 18B as to more than one reason) for the act in question was the race etc (sees 18C(1)(b)) of theperson or persons reasonably likely to be offended and wherethe act was not justifiable as a form of expression contemplated bys 18D.

204. Afurther distinction between the proposed cl 60 and what became ss 18C and 18Dwas the means of addressing the mischief to whichthe provisions were directed. Unlike the proposed criminal offence, the civil provision was (as theExplanatory Memorandum explained)to form a part of the Commonwealth scheme ofhuman rights administration based on the conciliation of complaints under theHuman Rights and Equal Opportunity Commission Act1986 (Cth) (nowentitled theAustralian Human Rights Commission Act 1986(Cth)). In thatrespect, the Explanatory Memorandum said:

Part 3 will add offensivebehaviour because of race, colour and national and ethnic origin as additionalgrounds for investigation and conciliationunder that scheme. The emphasis istherefore to promote racial tolerance by bringing the parties together todiscuss the act thesubject of complaint and arrive at a conciliated and agreedoutcome... The proposed prohibition on offensive behaviour based onracialhatred would be placed within the existing jurisdiction of HREOC to conciliateand/or determine complaints alleging breachesof theRacial Discrimination Act. This victim-initiated process is quite different from the criminal offenceregime where the initiative for action generally involvespolice and prosecutionauthorities.

205. Unlikethe “offence” contemplated by Art 4 (a) of CERD, the provisions ofPart IIA “are set in a framework of conciliation in cognatelegislation...”:Tobenat [135] (Allsop J);BrophovHuman Rights and Equal Opportunity Commission[2004] FCAFC 16;(2004) 135 FCR 105 at[68](French J). For the civil provisions, racial tolerance was to be promotedthrough remedial measures encouraging understanding andagreement, rather thanpunishment, deterrence and the stigma of a criminal conviction.
206. Section18C does not refer to racial hatred or hate. It is not concerned withincitement:Catch the Fire Ministries Inc v Islamic Council of Victoria Inc(2006) 15 VR 207 at [140] (Neave JA). The act whichs 18C(1)(a) makesunlawful is not dependent upon a state of emotion which has either motivated theact or which is sought to be incited in others. The “intensity of feelingof the person whose act it is, is not necessary to be considered”:Creek v Cairns Post Pty Ltd[2001] FCA 1007;(2001) 112 FCR 352 at[18] (Kiefel J). Theemotions upon whichs 18C(1)(a) turns are those of a victim and not of anaggressor. The emotions of hurt or offence or fear need to be demonstrated, nothate orincitement to hatred. An act that hurts or offends a victim may bedriven by hatred or may incite hatred of the victim by others,but hurt oroffence may be the product of a benevolent intent and may incite negativeattitudes to the victim which fall short ofenmity. The section refers to thereason for the act being done as simply “race, colour or national orethnic origin”. The act need not be based on racial hatred:Creekat [17]-[18] (Kiefel J). As Allsop J said inTobenat [136]:

Many acts comprehended byss 18B,18C and18D will involve anexpression of racial hatred, though other acts may not.

Part IIA encompasses conduct extending beyond expressions of racial hatred:Bropho[68] (French J).

207. Boththe words utilised ins 18C and the legislative context in whichPart IIA wasenacted, demonstrates that the mischief which those provisions seeks to addressis broader than conduct inciting racial hatredand extends to conduct at a lowerlevel of transgression to the objective of promoting racial tolerance. WhilstPart IIA is headed “Prohibition of Offensive Behaviour based on RacialHatred”, the phrase “racial hatred” should,for the reasonsgiven by Allsop J inToben (and followed by French J inBropho at[68]), be seen to have been used as a “convenient short-hand”for a broader concept:Tobenat [130]-[131] and [137].
208. Theuse of the word “hatred” in the heading toPart IIA is not to be“seen as a control upon otherwise clear words that were deliberatelychosen, as a departure from previous models”(Tobenat [137](Allsop J) or as creating a separate test confined to racial hatred: (Creekat [18] (Kiefel J)). No member of the Full Court inToben was of theview thats 18C was to be read down as applying only to cases of racial hatred. No member of this Court has adopted that view in any other case. A number ofjudges of this Court have construedPart IIA as extending beyond the limits orboundaries of the prohibitions contemplated by Art 4 of CERD and therebyencompassing conduct extendingbeyond expressions of racial hatred and as“intended to pursue a policy of eliminating racial discrimination andpromotingunderstanding among races”:Tobenat [136] (Allsop J) andsee [19], [20] (Carr J) and [50] (Kiefel J);Brophoat [68] (FrenchJ).
209. Otherjudicial statements have identified the underlying purpose ofPart IIA asintending to regulate conduct which stimulates contempt or hostility betweengroups of people within the community by loweringregard for, and demeaning theworthiness of, the person or persons subjected to the conduct:Bropho at[138] (Lee J); or as seeking to control “socially corrosiveconduct”:Bropho at [138] (Lee J); or as seeking to eliminateracial discrimination:Scully at[240] (Hely J); and as seeking topromote racial tolerance:McGladev Lightfoot[2002] FCA 1457;(2002) 124 FCR 106at[90] (Carr J).
210. Thatall Australians should be able to live their lives free from the harm caused bythe dissemination of racial prejudice is not,however, the only value thatPartIIA of the RDA seeks to promote and protect. The terms ofs 18D together withthe Explanatory Memorandum and the Second Reading Speech to the 1994 Bill(“the Second Reading Speech”)make it abundantly clear that freedomof expression was also regarded as an important value which Parliament intendedshould, inthe circumstances defined by s 18D, be balanced against the objectiveof promoting racial tolerance and proscribing inappropriateracially basedbehaviour. The Second Reading Speech described the provisions of Part IIA asbalancing free speech against the rightsof Australians to live free of fear andracial harassment: see furtherCreek at [32] (Kiefel J); andBropho at [3] and [62] (French J).
211. Aproper understanding of what Part IIA seeks to achieve requires an understandingof the two foundational values upon which thePart is founded. Whilst to someextent those values are complementary of each other, Part IIA puts them incontest and then seeksto identify a point of balance at which harmony betweenthem is to be found. Whilst the terms of Part IIA provide the boundarieswithinwhich that search for harmony is to be undertaken, the search inevitablyinvolves evaluative judgment. Judgments of the kindthat the Court isauthorised and required by the legislature to make:Bropho at [93](French J). That evaluation is much assisted by an analysis and understandingof the nature and content of the two competingvalues which largely control thebalancing exercise which Part IIA requires. It is to that analysis I nowturn.

Freedom from racial prejudice and intolerance

212. Atthe heart of any attempt to secure freedom from racial prejudice and intoleranceis the protection of equality and the inherentdignity of all human beings. These are the values that infuse international human rights:R v Keegstra[1990] 3 S.C.R. 697at 754-755 (Dickson CJ, delivering the judgmentof the majority); Waldron J, “Dignity and Defamation: the Visibility ofHate”,(2009-2010) 123 Harv. L. Rev. 1596 at 1610-1611. Those values arereflected in both the preamble and text of CERD. Equality of treatment for allpersons irrespectiveof race, colour, descent, national or ethnic origin is atthe foundation of CERD. So much is obvious from the definition of racialdiscrimination which CERD has adopted. That definition emphasises that themischief of racial discrimination is:

any distinction, exclusion,restriction or preference based on race, colour, descent or national or ethnicorigin which has the purposeor effect of nullifying or impairing therecognition, enjoyment or exercise, on an equal footing, of human rights andfundamentalfreedoms in the political, economic, social, cultural or other fieldof public life.

213. Thoserights and fundamental freedoms are comprehensively listed in Art 5 of CERD, andby category, include political, civil, economic,social and cultural rights ofthe kind that may be expected in an open and pluralistic democracy. They arerights which Art 5 guaranteesto all, without distinction as to race, colour, ornational or ethnic origin.
214. Ingiving effect to CERD, the RDA has taken the words of the definition of racialdiscrimination and imported them directly intos 9(1) of the RDA, which makesunlawful an act meeting that description. The full and equal enjoyment orexercise, free of racialdiscrimination, of the rights and fundamental freedomsspecified by Art 5 of CERD is an objective or value that the RDA seeks topromote and protect. A manifestation of racial discrimination is inequality oftreatment by the denial or diminishment of accessto the fundamental rights ofdemocratic citizenship. Without such access, both equality and human dignityare denied. But beforeexploring that further, it is necessary to look to thesource of racial discrimination because that will take us closer to theparticularsubject matter of Part II of the RDA.
215. Racialdiscrimination is a product of the dissemination of racial prejudice. At thecore of racial prejudice is the idea that somepeople are less worthy thanothers because of their race. The dissemination of racial prejudice usuallyinvolves attributing negativecharacteristics or traits to a specific group ofpeople. As Neave JA said inCatch the Fire at[176]:

Attributing characteristics to people on the basis of theirgroup membership is the essence of racial and religious prejudice andthediscrimination which flows from it.

The attribution of negative characteristics will often, although notinvariably, involve the use of stereotyping. As Kleg statesinHatePrejudice and Racism(State University of New York Press, Albany, 1993) at155:

The effects of stereotyping lie at the base of prejudice. Stereotypic beliefsform the rationale for feelings of disdain and disparagement.When tied toprejudiced attitudes, stereotypes help create a number of behaviors ranging fromavoidance to violence.

216. Ascribingnegative traits to people by reason of their group membership disseminates theidea that members of the group are not worthyor less worthy and are thusdeserving of disdain and unequal treatment. As Dickson CJ said delivering thejudgment of the majorityinKeegstra at 756:

The message ofthe expressive activity covered by s 319(2) [racial hatred] is that members ofidentifiable groups are not to be givenequal standing in society, and are nothuman beings equally deserving of concern, respect and consideration. The harmscaused bythis message run directly counter to the values central to a free anddemocratic society, and in restricting the promotion of hatredParliament istherefore seeking to bolster the notion of mutual respect necessary in a nationwhich venerates the equality of allpersons.

The majority inKeegstra found that hate speech was not only anaffront to individual dignity but noted the potential risk “thatprejudiced messageswill gain some credence, with the attendant result ofdiscrimination, and perhaps even violence, against minority groups in...society”(at 748).

217. Similarly,the majority of the Canadian Supreme Court inCanada (Human RightsCommission) v Taylor[1990] 3 SCR 892 at 919 (Dickson CJ, delivering themajority judgment) said:

...messages of hate propaganda underminethe dignity and self-worth of target group members and, more generally,contribute to disharmoniousrelations among various racial, cultural andreligious groups, as a result eroding the tolerance and open mindedness thatmust flourishin a multicultural society which is committed to the idea ofequality.

218. Thetrend of western democracies to regulate the dissemination of racial prejudiceis summarised by Tsesis in his article “Dignityand Speech: The Regulationof Hate Speech in a Democracy,” (2009) 44 Wake Forest L.REV.497. Tsesisidentifies that trend asgrounded in securing for all citizens “theprerequisites of a life worthy of human dignity”: at 521.
219. Thevalues of dignity and equality are also what Professor Michael Chesterman in hisbookFreedom of Speech in Australian Law: A Delicate Plant(Ashgate,2000) regards as at the core of racial vilification laws in Australia. Chesterman correctly observes that if racial vilificationgoes unchecked withina community, “equality between groups of citizens and the dignity andsecurity of individual citizensare threatened” (at 193). As Chestermansays, racial vilification, or “discrimination in verbal form”,infringes“the fundamental liberal-democratic principle that all membersof the community as a whole should be treated as equal to eachother” (at194). After reviewing racial vilification laws in Australia including the RDA,Chesterman considered (at 248) thatthe broad policy underlying those lawsas:

...based on the proposition that where a single nationalcommunity contains numerous more or less identifiable racial and ethnic groups– including both indigenous inhabitants and many groups composed of recentmigrants - encouraging tolerance and mutual civilityamongst them is anespecially important aim to be pursued. If these things are not done, thedignity of individual citizens andtheir claim to equal treatment under the laware placed in jeopardy.

220. Chestermanargues, correctly in my view, that the protection of reputation as dignity maybe discerned within Australian vilificationlaws. Chesterman’s conceptionof reputation as dignity is taken from American scholar Robert Post’s viewthat the lawof defamation intertwines three concepts of reputation –‘honour’, ‘property’ and ‘dignity’:at215-216 citing Post R, “The Social Foundations of Defamation Law:Reputation and theConstitution” (1986) 74 California L.Rev 691. At 215,Chesterman outlines Post’s argument that in a “communitariansociety”defamation law “has a dual purpose” (both public andprivate):

[B]y vindicating the plaintiff’s claim to a goodreputation, it both protects his or her entitlement to full membership withinthe community and maintains, through definition and enforcement, rules of‘civility’ by which the community is constituted. Accordingly, whena plaintiff succeeds in a defamation claim, ‘the court, speaking for thecommunity at large, designatesthe plaintiff as worthy of respect.

(Footnote omitted).

221. AsMilo states, by reference to the jurisprudence of the South AfricanConstitutional Court, “dignity may be regarded subjectively,as aperson’s sense of intrinsic worth: ‘human beings are entitled to betreated as worthy of respect and concern’”(footnote omitted): seeMilo D,Defamation and Freedom of Speech(2008, Oxford University Press,Oxford), at 35. Milo makes the further point, that reputation encompasses boththe private and publicaspects of an individual’s dignity and that –

...it is especially the publication of false statements, orexpressing opinions on the basis of false facts, that demonstrates a lackofrespect for a person’s moral integrity. (Footnote omitted)

222. Theconnection between dignity, reputation and social standing and the private andpublic interest involved in the protection ofdignity, is also stronglyadvocated by Waldron. Waldron argues (at 1610) that hate speech or what hecalls ‘group defamation’are reputational attackswhich:

[A]mount to assaults upon thedignity of the personsaffected –dignity, in the sense of these persons’ basicsocial standing, of the basis of their recognition as social equals, and oftheir statusas bearers of human rights and constitutional entitlements.

(Original emphasis)

223. Waldroncontends that dignity is “a matter of status – one’s status asa member of society in good standing”(1611-1612). Waldron’s‘dignity assurance’ (“a pervasive, diffuse, ubiquitous,general, sustained and reliableunderpinning of people’s basic dignity andsocial standing, provided by all for all” – at 1630) echoes whatDicksonCJ inKeegstra referred to at 756 as the “ mutualrespect” necessary to venerate the “equality of allpersons”.
224. Waldronmakes an important distinction in analysing the kind of respect that a dignityassurance is intended to protect. He saysat 1628-1629:

It isimportant to distinguish between two senses of respect that might be in playhere: what Stephen Darwall has called “appraisalrespect” (in whichone’s estimation of people varies by their merits, their virtues andvices, their crimes, their viewsand so on) and “recognitionrespect” (which is fundamental to the dignity of persons and invariant inthe face of differentialmerit, even commanding how people are to be treatedwhen they are guilty of terrible crimes).

(Footnote omitted.)

225. Itis ‘recognition respect’ that Waldron says is to be protected fromgroup defamation. It is ‘recognition respect’that thedissemination of racial prejudice undermines. Racial vilification will usuallyinvolve negative attacks on another person,not based on what that person hassaid or has done but principally because of negative characteristics (real orimagined) which areascribed to the group to whom that person belongs. Theessence of racial vilification is that it encourages disrespect of othersbecause of their association with the racial group to whom they belong. Thatkind of stigmatisation and its insidious potentialto spread and grow fromprejudice to discrimination, from prejudice to violence, or from prejudice tosocial exclusion, is at thefundamental core of racial vilification. In a freeand pluralistic society, every citizen is entitled to live free of inequalityoftreatment based upon a denial of dignity of the kind that ‘recognitionrespect’ confers.
226. Itis in this respect that I perceive equality and dignity to provide theunderlying rationale for protecting both individuals andsociety from the illsof the dissemination of racial prejudice. These are the underlying valueswhich, in my view, s 18C is directedto protect. They are consonant with thecommitment to equal dignity for all persons upon which CERD is based and whichthe RDA wasenacted to give effect to.

Freedom of expression

WITHOUT Freedom of Thought, there can be no suchThing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech;which is the Right of every Man, as far as by it, he does not hurt or controlthe Right of another.

Benjamin Franklin,

The New England Courant, Issue 49, 9 July 1722

227. Thepromotion of freedom of expression has broad origins. The development of theconcept of freedom of expression as a central componentof democracy in themodern era is largely attributed to the writings of English philosopher andfather of liberalism, John Locke.Locke’s writings on modern liberalismlater influenced the American founding fathers, including James Madison andThomas Jefferson,to formulate and institute the first and perhaps mosthistorically significant constitutional protection for the freedom, the FirstAmendment to the AmericanConstitution.
228. Liberal-democraticthinking identified three main pillars or foundational arguments that justifythe existence of the principle offreedom of expression; firstly, the pursuitand discovery of truth (also known as the ‘argument from truth’);second,the harvest of self- fulfilment (also known as ‘the argument fromautonomy’); and thirdly, the enablement of democraticgovernance (alsoknown as ‘the argument from democracy’); Keegstraat 727-728;andColeman at [333] (Heydon J); and seeCarmi G,“Dignity – The Enemy from Within: Theoretical and ComparativeAnalysis of Human Dignity As A Free Speech Justification”(2006-2007) 9 U.Pa. J. Const. L. 957; Chesterman M,Freedom of Speech in Australian Law,Chapter 2; Barendt E,Freedom of Speech(2nded, Oxford University Press, 2005) at 6-23; Weinstein J “Extreme Speech,Public order, and Democracy: Lessons fromThe Masses” in Hare I andWeinstein J (eds),Extreme Speech and Democracy (Oxford University Press,2009) pp 23-30.
229. Theright to freedom of expression has been recognised within the realms ofinternational law, the constitutions of many nationsand in the common law. Both international and regional human rights instruments provide for theprotection of the right of freedomof expression including the:InternationalCovenant on Civil and Political Rights,Art 19;United NationsDeclaration of Human Rights,Art 19; andthe European Convention on HumanRights, Art 10.
230. TheAustralianConstitution protects freedom of communication on matters ofgovernment and politics as an indispensable incident of the representativegovernmentwhich the AustralianConstitution has created:Lange v AustralianBroadcasting Corporation[1997] HCA 25;(1997) 189 CLR 520 at 559-562;Colemanat[195]-[196](Gummow and Hayne JJ)and at[320] (Heydon J); This implied freedom of political communication does not confer personal rightson individuals but precludes thecurtailment of the protected freedom by theexercise of legislative or executive power:Langeat 560.
231. Thecommon law recognises freedom of expression. InLange, the High Courtunanimously stated at 564:

Under a legal system based on the commonlaw, “everybody is free to do anything, subject only to the provisions ofthe law”,so that one proceeds “upon an assumption of freedom ofspeech” and turns to the law “to discover the establishedexceptionsto it.

(Footnote omitted)

232. Anumber of decisions of this Court suggest that freedom of expression at commonlaw is not simply residual. In that context, thefollowing observation of AllenTRS in his article “The Common Law asConstitution: Fundamental Rights andFirst Principles” inCourts of Final Jurisdiction: The Mason Court inAustralia, Saunders C (ed) (Federation Press, 1996) at 148, has beencited with approval inMinister for Immigration and Citizenship v Haneef[2007] FCAFC 203;(2007) 163 FCR 414 at[113];Evans v The State of New South Wales[2008] FCAFC 130;(2008)168 FCR 576 at[72] (French, Branson and Stone JJ) andBropho at [72](French J):

Liberty is not merely what remains when the meaning ofstatutes and the scope of executive powers have been settled authoritativelybythe courts. The traditional civil and political liberties, like liberty of theperson and freedom of speech, have independentand intrinsic weight: theirimportance justifies an interpretation of both common law and statute whichserves to protect them fromunwise and ill-considered interference orrestriction. The common law, then, has its own set of constitutional rights,even if theseare not formally entrenched against legislative repeal.

233. Whethera positive or residual right, freedom of expression at common law enjoys specialrecognition. As the Full Court said inEvans at[74]:

Freedom of speech and of the press has long enjoyed specialrecognition at common law. Blackstone described it as "essential to thenatureof a free State":Commentaries on the Laws of England, Vol 4 pp 151-152.In 1891 Lord Coleridge said in Bonnard v Perryman [1891] 2 Ch 269 at284:

The right of free speech is one which it is for the public interest thatindividuals should possess, and indeed that they shouldexercise withoutimpediment, so long as no wrongful act isdone.

See alsoR v Commissioner of Metropolitan Police; Ex parte Blackburn (No 2)[1982] 2 QB 150 at 155;Wheeler v Leicester City Council[1985] UKHL 6;[1985] AC1054;Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109at 203.

234. InAustralian Broadcasting Corporation v Lenah Game Meats Pty Ltd(2001) 208CLR 199,Callinan J referred to free speech as “a matter offundamental importance in a democratic society”: at [277]. InColeman at [185], Gummow and Hayne JJ spoke of expression as afundamental common law right.
235. Whilstthe importance and fundamental nature of freedom of expression is recognised ineach of the international, constitutionaland common law spheres to which I havereferred, the fact that the right is not unqualified is also unequivocally thecase in eachsphere.
236. Thenon-absolute and qualified nature of the implied freedom of politicalcommunication has been expressly stated by the High Courton many occasions. That freedom is not absolute; “It is limited to what is necessary for theeffective operation of that systemof representative and responsible governmentprovided for by theConstitution”:Langeat 561. There are manyexamples of the High Court finding that laws which intrude upon free politicaldiscourse are nevertheless constitutionallyvalid because those laws reasonablyserve a countervailing public purpose: seeLevyv State of Victoria& Ors[1997] HCA 31;(1997) 189 CLR 579, Cunliffe v Commonwealth[1994] HCA 44;(1994) 182 CLR272, Langer v Commonwealth[1996] HCA 43;(1996) 186 CLR 302, Theophanous v Herald& Weekly Times[1994] HCA 46;(1994) 182 CLR 104, Stephens v West AustralianNewspapers Ltd[1994] HCA 45;(1994) 182 CLR 211andLange. See alsoChesterman M,Freedom of Speech in Australian Lawat 25-26.
237. Inthe United States and in relation to the First Amendment, the content of and theextent of the restriction on freedom of expressionis more limited than inAustralia.However, European and Australian approaches are based ondifferent traditions including a greater deference to political authority. Thatthe Australian constitutional and legal context in relation to freedom ofexpression is different to that of the United States,has been stated a numberof times by the High Court: seeColemanat [188] (Gummow and Hayne JJ);Australian Broadcasting Corporation v O’Neill[2006] HCA 46;(2006) 227 CLR 57 at[113]-[114] (Kirby J);Theophanous133-134 (Mason CJ, Toohey &Gaudron JJ);Lenah Game Meats(at [201]-[202] (Kirby J). That “nottoo much can be taken from the American jurisprudence” was also recognisedby AllsopJ inTobenat [148].
238. Theright of freedom of expression at common law is, by definition, qualified bythose exceptions otherwise provided by law. Thelaw of defamation imposessignificant limitations on freedom of expression. Other laws imposinglimitations include laws dealingwith blasphemy, contempt of court and ofParliament, confidential information, the torts of negligent misstatement,deceit and injuriousfalsehood. Further, a wide range of legislative provisionsdealing with obscenity, public order, copyright, censorship and consumerprotection place restrictions on the exercise of the right to freedom ofexpression. These laws recognise that there are legitimatecountervailinginterests which require the imposition of limitations upon freedom ofexpression.
239. InKeegstra, the Canadian Supreme Court considered the extent to which theright to freedom of expression could permissibly be qualified by legislationwhich made racial hatred (as defined) a criminal offence. In that context, theCourt examined the qualified nature of freedom ofexpression by reference to itsunderlying rationale embodied in the three pillars to which I have alreadyreferred. Relevantly,the majority said:

[(i)In relation to thepursuit of truth:]

... the argument from truth does not provide convincing support for theprotection of hate propaganda.

... the greater the degree of certainty that a statement is erroneous ormendacious, the less its value in the quest for truth. Indeed,expression can beused to the detriment of our search for truth; the state should not be the solearbiter of truth, but neither shouldwe overplay the view that rationality willovercome all falsehoods in the unregulated marketplace of ideas. There is verylittlechance that statements intended to promote hatred against an identifiablegroup are true, or that their vision of society will leadto a better world. Toportray such statements as crucial to truth and the betterment of the politicaland social milieu is thereforemisguided: at 762-763.

[(ii)In relation to individual self-fulfilment or autonomy:]

...such self-autonomy stems in large part from one's ability to articulateand nurture an identity derived from membership in a culturalor religiousgroup. ... The extent to which the unhindered promotion of this message furthersfree expression values must thereforebe tempered insofar as it advocates withinordinate vitriol an intolerance and prejudice which view as execrable theprocess of individualself-development and human flourishing among all membersof society: at 763.

[(iii) In relation to participation in democratic governance:]

... expression can work to undermine our commitment to democracy whereemployed to propagate ideas anathemic to democratic values.Hate propagandaworks in just such a way, arguing as it does for a society in which thedemocratic process is subverted and individualsare denied respect and dignitysimply because of racial or religious characteristics. This brand of expressiveactivity is thus whollyinimical to the democratic aspirations of the freeexpression guarantee: at 764.

240. Withthat broad overview, I turn now to consider the specific legislative provisionsrelied upon and their application to the conductwhich Ms Eatock contends is acontravention ofPart IIA.

WERE THE ARTICLES REASONABLY LIKELY TO OFFEND?

Section 18C(1)(a) – Legal principles

The Nature of the Assessment to be Made

241. Section18C(1)(a) requires an assessment to be made of the reasonable likelihood of aperson or group of people being offended, insulted,humiliated or intimidated(which, as a short-hand, I will refer to as “offended”) by the actof another person. Thatcalls for an assessment of the reasonably likelyreaction of the person or people within the group concerned. It is thus theriskof a person or one or more people within a particular group of people beingoffended, rather than the actuality of offence that isbeing assessed. Proof ofactual offence for a particular person or group is neither required nordeterminative, although evidenceof subjective reaction is relevant to whetheroffence was reasonably likely:Scully at [99]-[101] (Hely J);Hagan vTrustees of the Toowoomba Sports Ground Trust[2000] FCA 1615at[28](Drummond J) andMcGlade at [44]-[45] (Carr J).
242. Theassessment required by s 18C(1)(a) is obviously to be conducted objectively andnot subjectively:Bropho[66] (French J);Haganat [15] (DrummondJ);Creekat [12] (Kiefel J);Scully at [99] (Hely J);McGlade [42]-[45] and [47] (Carr J).

Whose Reaction is to be Assessed?

243. Theassessment needs to be undertaken by reference to a “person or group ofpeople”. Section 18C(1)(a) does not identifythe persons or group ofpersons that should be considered as the possible victims for the purpose ofdeciding whether the impugnedact was reasonably likely to cause offence. Thatis true also of other legislative provisions and is most notably the case forwhatwass 52 of theTrade Practices Act 1974 (Cth) (and nows 18 ofSchedule 2 of theCompetition and Consumer Act 2010 (Cth)) (“theTrade Practices Act”). The principles developed by the law relating tomisleading and deceptive conduct provide some assistance to the way inwhich theassessment required by s 18C(1)(a) should be approached. Parity of reasoningwith the law relating to misleading and deceptiveconduct was utilised forsimilar purposes inCatch the Fire: see at [18] (Nettle JA), at [132](Ashley JA) and at [158] (Neave JA).
244. AsGibbs CJ said inParkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd[1982] HCA 44;(1982) 149 CLR 191at 199, in the absence of the provision expresslystating the possible victims, “consideration must be given to the class ofconsumers likely to be affected by the conduct”. Following the approachtaken inPuxu, inCampomar Sociedad, Limitada v Nike International Ltd[2000] HCA 12;(2000) 202 CLR 45, the High Court observed at [103], that where the conductin question is not directed to identified individuals but is instead directedatmembers of a class “in a general sense”, it becomes necessary toisolate by some criterion a representative memberof the class or group ofpeople whose reactions are being assessed. In that sense, the enquiry isabstract and is made with respectto a hypothetical individual who, for thepurpose of the assessment, is adopted as a representative member of the class. Where thetarget is an identified individual, the assessment need not proceed onthe basis of that person being reconstructed. As French CJsaid inCampbellv Backoffice Investments Pty Ltd[2009] HCA 25;(2009) 238 CLR 304 at[26]:

Inthe case of an individual it is not necessary that he or she be reconstructedinto a hypothetical, "ordinary" person. Characterisationmay proceed byreference to the circumstances and context of the questioned conduct. The stateof knowledge of the person to whomthe conduct is directed may be relevant, atleast in so far as it relates to the content and circumstances of the conduct.

245. GleesonCJ, Hayne and Heydon JJ inButcher v Lachlan Elder Realty Pty Ltd[2004] HCA 60;(2004)218 CLR 592 identified the two points of view from which allegedly misleadingconduct can be analysed in the following passage at [36]:

Questionsof allegedly misleading conduct, including questions as to what the conduct was,can be analysed from two points of view.One is employed in relation to "membersof a class to which the conduct in question [is] directed in a general sense".The other,urged by the purchasers here, is employed where the objects of theconduct are "identified individuals to whom a particular misrepresentationhasbeen made or from whom a relevant fact, circumstance or proposal was withheld";they are considered quite apart from any classinto which they fall. Adoptionof the former point of view requires isolation by some criterion or criteria ofa representativemember of the class.

(Footnotes omitted)

246. Adistinction between an identified person and a group of people is found in thewords of s 18C(1)(a). The provision acknowledgesthat conduct may be reasonablylikely to offend a “person” on the one hand or a “group ofpeople” on theother. It seems to me that the reference to a“person” must be intended as a reference to an identified person (orpersons)that the conduct in question was directed at. In that respect, theprovision is addressing an act directed to an identified individualorindividuals. In contrast, the reference to “a group of people” isdealing with a class to whom the conduct was directedin a general sense. Thatdistinction facilitates what logic suggests are the different approaches to betaken in the assessmentprocess between a claim of personal offence and a claimof group offence.
247. Thedistinction utilised by the law on misleading and deceptive conduct is basedupon reasoning which, in my view, applies with equalforce to s 18C(1)(a). Whilst the decided cases on s 18C(1)(a) have not expressly drawn attention tothe law on misleading and deceptiveconduct, that the same approach is to betaken in relation to s 18C(1)(a) is implicit in the reasoning of those cases:Creek at [13] (Kiefel J);Scully at [108] (Hely J);McGladeat [52], [60] and [88] (Carr J).
248. Thedichotomy between conduct directed to an identified individual, on the one hand,and conduct directed to a group of people ina general sense on the other, workswell in the ordinary case. There will, however, be cases where the conduct maybe directed toidentified individuals, as well as a group of people of whichthose identified individuals form part. Indeed, for the reasons thatI laterset out, the Newspaper Articles can be characterised as doing exactly that,because they are directed to individuals identifiedas examples of people in awider group. In that sense, the Newspaper Articles are directed both at theindividuals and the widergroup of which the individuals form a part. Thequestion arises as to which of the two points of view is the conduct to beanalysed,when it is directed at both identified individuals and also at a groupof people into which those individuals fall?
249. Asimilar dilemma arises in relation to cases involving allegations of misleadingand deceptive conduct. In.au Domain v Domain Names[2004] FCA 424;(2004) 207 ALR 521,Finkelstein J considered the issue at [17]-[20]. This particular difficulty ofidentifying the correct point of view from whichconduct is to be analysed wasalso touched upon by Gleeson CJ, Hayne and Heydon JJ inButcher at [37]. The approach suggested by those authorities is that where conduct is directed toa person as an individual as well as apart of a wider group, the conduct of therespondent should be analysed in relation to the identified person alone ratherthan byreference to the hypothetical representative. But that will only be sowhere the applicant alleges that he or she was misled ratherthan alleges thatmembers of the wider group (of which the applicant is one) were misled. AsFinkelstein J said in.au Domain at [18], the answer to the dilemmainvites attention to the nature of the claim made (and seeButcher at[37]).
250. Iintend to adopt that approach, as the reasoning to which I have referred appearsapposite for s 18C(1)(a). Where allegedly offensiveconduct is directed at bothan identified person and a group of people and the claim made is that both theidentified person or personsand the group of people were offended, the conductshould be analysed from the point of view of the hypothetical representative inrelation to the claim that the group of people were offended, and in relation toeach of the identified persons where a personaloffence claim has been made. Ifno claim of personal offence is made and only a claim of group offence is made,the conduct is tobe analysed from the point of view of the hypotheticalrepresentative of the group, despite the fact that the conduct is directedatboth identified individuals and the group of people of which they formpart.
251. Agroup of people may include the sensitive as well as the insensitive, thepassionate and the dispassionate, the emotional and theimpassive. Theassessment as to the likelihood of people within a group being offended by anact directed at them in a general sense,is to be made by reference to arepresentative member or members of the group. For that purpose the“ordinary” or “reasonable”member or members of thegroup are to be isolated:Nike at [102]. In that way, reactions whichare extreme or atypical will be disregarded. I have deliberately referred tothe reasonablemember or members (plural) of the group because as Dowsett J saidinNational Exchange Pty Ltd v Australian Securities and InvestmentsCommission[2004] FCAFC 90 at[24]:

Such a test does notnecessarily postulate only one reasonable response in the particularcircumstances. Frequently, different persons,acting reasonably, will respond indifferent ways to the same objective circumstances. The test of reasonablenessinvolves the recognitionof the boundaries within which reasonable responseswill fall, not the identification of a finite number of acceptable reasonableresponses.

252. Asthe observation of Dowsett J suggests, it is necessary to bear in mind thatconduct may be directed at a diverse group of people. A diverse group willlikely comprise discernible sub-groups. Reactions to the same conduct may varyas between sub-groups. Thatmay be because of an extra attribute common to thesub-group. An example from the decided cases is “young and impressionableJews” who were regarded as a vulnerable sub-group of Australian Jewry byBranson J inJones at [96]. Additionally, it may be appropriate in somecases of alleged group offence to assess the reaction of those within a grouptowhom the conduct is particularly targeted and thus most likely to have beenoffended. Finkelstein J in.au Domain expressed that approach when at[21] he said:

Logic demands that if one is dealing with a diversegroup then, for the purpose of determining whether particular conduct has thecapacity to mislead, it is necessary to select a hypothetical individual fromthat section of the group which is most likely to bemisled. If the court issatisfied that this hypothetical individual is likely to have been misled bythat conduct, that would besufficient.

The Relevance to the Assessment of Community Standards

253. MrBolt contended that the objective nature of the assessment required by s18C(1)(a) imported an objective assessment of communitystandards and that thesame standard applied irrespective of whether group offence or personal offencewas alleged. Acceptance ofthat contention would see a reasonable person testsubstitute the reasonable representative test and result in the perspectiveclearlyrequired by the words of s 18C(1)(a) to be ignored. For the reasons Ihave just outlined, that contention must be rejected. Itis the values,standards and other circumstances of the person or group of people to whom s18C(1)(a) refers that will bear uponthe likely reaction of those persons to theact in question. It is the reaction from their perspective which is to beassessed:Creekat [16] (Kiefel J);Scully at [108] (Hely J). Further, to import general community standards into the test of the reasonablelikelihood of offence runs a riskof reinforcing the prevailing level ofprejudice. To do that would be antithetical to the promotional purposes ofPartIIA. Such an approach has been rejected in relation to sexual harassment:Ellison v Brady[1991] USCA9 109;924 F.2d 872 (9th Cir. 1991) at878-879;Stadnyk v Canada (Employment and Immigration Commission)(2000)38 CHRR 290 at [11];and seeCorunna v West Australian Newspapers Ltd(2001) EOC 93-146 at[75467]-[75468]. Sexual harassment legislation is the arena from which thewords “offend, insult, humiliate or intimidate”were deliberatelyborrowed: see Explanatory Memorandum at 10 and the Second Reading Speech to theRDA at column 3341.
254. However,there is one aspect of general community standards that should be imported intothe assessment. InPuxu, and by reference to the intent of the provisionthere under consideration, Gibbs CJ at 199 said:

The heavy burdenswhich the section creates cannot have been intended to be imposed for thebenefit of persons who fail to take reasonablecare of their own interests.

As the High Court observed inNike at [102] there is “anobjective attribution of certain characteristics” to the ordinary orreasonable member of the class. That attribution occurs by reference to theobjectives of the legislation in question.

255. Itseems to be that in the context of provisions which seek to promote racialtolerance and proscribe intolerance, the purposes ofthe RDA are to be served byobjectively attributing to the “ordinary” or“reasonable” representative of thegroup, characteristics consistentwith what might be expected of a member of a free and tolerant society. Whilstthe following observationsmade by Nettle JA inCatch the Fire at [96]were made in relation to provisions dealing with religious vilification and in acontext more akin to s 18D than s 18C, Ithink that the observations made arehelpful in relation to identifying the characteristics attributable to theordinary or reasonablerepresentative in the application of the test required bys 18C(1)(a). Nettle JA said:

In my view one is entitled toassume that a fair and just multicultural society is a moderately intelligentsociety. Its members allowfor the possibility that others may be right.Equally, I think, one is entitled to assume that it is a tolerant society. Itsmembersacknowledge that what appears to some as ignorant, misguided or bigotedmay sometimes appear to others as inspired. Above all, however,one is entitledto assume that it is a free society and so, therefore, one which insists uponthe right of each of its members toseek to persuade others to his or her pointof view, even if it is anathema to them. But of course there are limits.Tolerance cutsboth ways. Members of a tolerant society are as much entitled toexpect tolerance as they are bound to extend it to each other. And,in thescheme of human affairs, tolerance can extend each way only so far. Whensomething goes beyond that boundary an open and justmulticultural society willperceive it to be intolerable despite its apparent purpose, and so judge it tobe unreasonable for thepurpose for which it was said.

See further,McGlade at [88] (Carr J).

256. Inmy view, the burdens created byPart IIA were not imposed for the benefit ofpersons whose intolerance to the points of view of others is the true cause ofthe offence, insult,humiliation or intimidation that those persons experienced.In those situations it may be properly said that it is the intoleranceof thereceiver of the message rather than the intolerance of the speaker that isresponsible for causing the offence.

“In all the circumstances”

257. Thenext issue is the reference in s 18C(1)(a) to “in all thecircumstances”. That needs to be firmly kept in mind. It requires thatthe social, cultural, historical and other circumstances attending the person orthe people in the group be consideredwhen assessing whether offence wasreasonably likely.

“Reasonably Likely”

258. Iturn then to consider the phrase “reasonably likely”. That phrasehas been the subject of judicial consideration,as has the word“likely”. Many of the cases are summarised by McClelland CJ inAttorney General for the State of New South Wales v Winters[2007] NSWSC1071. As the judge said at [32], including by reference to the HighCourt’s decision inBoughey v The Queen[1986] HCA 29;(1986) 161 CLR 10, themeaning to be given to the word “likely” may vary depending on itscontext. In the context ofs 52 of theTrade Practices Act, Bowen CJ, Lockhartand Fitzgerald JJ said inGlobal Sportsman Pty Ltd v Mirror Newspapers[1984] FCA 180;(1984) 2 FCR 82 at 87:

Conduct is likely to mislead or deceiveif that is a “real or not remote chance or possibility regardless ofwhether it is lessor more than fifty per cent”; cfTillmannsButcheries Pty Ltd v Australasian Meat Industry Employees’ Union[1979] FCA 85;(1979) 27 ALR 367 at 380;[1979] FCA 85;42 FLR 331, per Deane J at 346;Sheen v Fields PtyLtd(1984) 51 ALR 345;58 ALJR 93.

259. InDepartment of Agriculture and Rural Affairs v Binnie[1989] VicRp 73;[1989] VR 836, theVictorian Supreme Court considered the meaning of the phrase “reasonablylikely”. Marks J (with whom Young CJ andTeague J agreed) stated at842:

The expression "reasonably likely" is substantially idiomatic,its meaning not necessarily unlocked by close dissection. In its ordinaryuse,it speaks of a chance of an event occurring or not occurring which is real--notfanciful or remote. It does not refer to a chancewhich is more likely than notto occur, that is, one which is "odds on", or where between nil and certainty itshould be placed.A chance which in common parlance is described as "reasonable"is one that is "fair", "sufficient" or "worth noting".

260. Inthat case, Young CJ observed further that “reasonably” was aqualifying adverb “which requires the word ‘likely’to begiven a meaning less definite than probable”: at 837. The approach of theCourt inBinnie has been taken up in a number of decisions of this Courtsummarised and applied by Cowdroy J inAutomotive, Food, Metals, Engineering,Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd[2011] FCA 181;(2011) 277 ALR 388 at[18]-[19]. I can see no reason why the expression“reasonably likely” as utilised in s 18C(1)(a) should not begiven the meaningidentified inBinnie as speaking “of a chance ofan event occurring or not occurring which is real – not fanciful orremote”.
261. Whetherthe act in question is reasonably likely to have caused offence is to beassessed on the balance of probabilities:Brophoat [65] (French J). Theonus of proof on that, and the other elements of s 18C, rests with theapplicant.

“Offend, insult, humiliate or intimidate”

262. Lastly,it is necessary to consider the words “offend, insult, humiliate orintimidate”. Hely J inScully at [103] (as well as Carr J inMcGladeat [52]; Branson J inJonesat [90]; and French J inBrophoat [67]) identified the ordinary meaning of these words byreference to their dictionary definitions:

Dictionary definitions ofthe terms used in s 18C are as follows:

Offend

•"1.To irritate in mind or feelings; cause resentful displeasurein.

2. To affect (the sense, taste, etc) disagreeably."

(Macquarie Dictionary 3rd Ed)

• In its chief sense "to hurt or wound the feelings or susceptibilitiesof; to be displeasing or disagreeable to; to vex, annoy,displease, anger; toexcite a feeling of personal annoyance, resentment or disgust in (any one)."

(Oxford English Dictionary)

Insult

•"To assail with offensively dishonouring or contemptuous speech oraction; to treat with scornful abuse or offensive disrespect;to offer indignityto; to affront, outrage."

(Oxford English Dictionary)

Humiliate

• "To lower the pride or self respect of; cause a painful loss ofdignity to; mortify."

(Macquarie Dictionary)

•"To make low or humble in position, condition or feeling; tohumble."

(Oxford English Dictionary)

Intimidate

•"1. To make timid, or inspire with fear; overawe; cow.

• 2. To force into or deter from some action by inducing fear."

(Macquarie Dictionary)

•"To render timid, inspire with fear; to overawe, cow; in modern useespecially to force to or deter from some action by threatsor violence."

(Oxford English Dictionary)

263. Theordinary meaning of these words is potentially quite broad. To“offend” can mean to hurt or irritate the feelingsof anotherperson. If the concern of the provision was to fully protect people againstexposure to personal hurt, insult or fear,it might have been expected that theprivate domain would not have been excluded by the phrase “otherwise thanin private”found in the opening words of s 18C(1). The fact that it is,suggests that the section is at least primarily directed to serve publicand notprivate purposes:Coleman at [179]. That suggests that the section isconcerned with consequences it regards as more serious than mere personal hurt,harmor fear. It seems to me that s 18C is concerned with mischief that extendsto the public dimension. A mischief that is not merelyinjurious to theindividual, but is injurious to the public interest and relevantly, thepublic’s interest in a socially cohesivesociety.
264. Thatis not to say that protecting the public good may not be coextensive withprotecting private interests. Proscribing offensiveconduct in a public placenot only preserves public order but protects against personal offence. Thewounding of a person’sfeelings, the lowering of their pride, self-imageand dignity can have an important public dimension in the context of an Actwhichseeks to promote tolerance and social cohesion. Proscribing conduct withsuch consequences will clearly serve a public purpose. Where racially baseddisparagement is communicated publicly it has the capacity to hurt more than theprivate interests of thosetargeted. That capacity includes injury to thestanding or social acceptance of the person or group of people attacked. Socialcohesion is dependent upon harmonious interactions between members of a society.As earlier explained, harmonious social interactionsare fostered by respectfulinterpersonal relations in which citizens accord each other the assurance ofdignity. Dignity servesas the key to participatory equality in the affairs ofthe community. Dignity and reputation are closely linked and, like reputation,dignity is a fundamental foundation upon which people interact, it fostersself-image and a sense of self-worth:O’Neillat [160]-[161] (KirbyJ) andHill v Church of Scientology of Toronto[1995] 2 S.C.R. 1130[117] and [120].
265. Thedefinitions of “insult” and “humiliate” are closelyconnected to a loss of or lowering of dignity. Theword“intimidate” is apt to describe the silencing consequences of thedignity denying impact of racial prejudice aswell as the use of threats ofviolence. The word “offend” is potentially wider, but given thecontext, “offend”should be interpreted conformably with the wordschosen as its partners.
266. InBropho,Lee J considered the words “humiliated” or“intimidate” and said at [138]:

Humiliation orintimidation involves more than destruction of self-perception or self-esteem ofa person. It affects others in thecommunity by lowering their regard for, anddemeaning the worthiness of, the person, or persons, subjected to that conduct. It stimulatescontempt or hostility between groups of people within thecommunity and it is the intent of the Act that such socially corrosiveconductbe controlled.

267. Inmy view, “offend, insult, humiliate or intimidate” were not intendedto extend to personal hurt unaccompanied by somepublic consequence of the kindPart IIA is directed to avoid. That public consequence need not be significant.It may be slight.Conformably with what I regard as the intent of Part IIA, aconsequence which threatens the protection of the public interest soughtto beprotected by Part IIA, is a necessary element of the conduct s 18C is directedagainst. For the reasons that I have soughtto explain, conduct which invadesor harms the dignity of an individual or group, involves a public mischief inthe context of anAct which seeks to promote social cohesion.
268. Itis for those reasons that I would respectfully agree with the conclusion reachedby other judges of this Court, that the conductcaught by s 18C(1)(a) will beconduct which has “profound and serious effects, not to be likened to mereslights”:Creekat [16] (Kiefel J);Bropho at [70] (FrenchJ);Scullyat [102] (Hely J); or, as Branson J put it inJonesat[92] “real, offence”.

Section 18C(1)(a) - Application of Principles to the facts

Whether a group or personal offence claim was made?

269. Aclaim made by an individual relying upon a contravention of s 18C(1) of the RDAmay be brought on the basis that an impugned actoffended a “person or agroup of people”. I have referred earlier at [243] to [252] to thedifference between a claimfor personal offence and a claim of group offence. For reasons there identified, different principles apply to the assessment ofthe likelihood of offence for personal offence claims and for group offenceclaims. It is necessary for me to consider and resolvewhether claims ofpersonal offence have been made in this case. Whilst Mr Bolt and HWT acceptedthat a group offence claim was made,they disputed that Ms Eatock had madeclaims of personal offence in relation to named individuals. The dispute wasmainly agitatedby reference to the pleadings but the way in which the case wasrun may also be relevant.
270. MsEatock contended that her case raised a personal offence claim in relation toherself and the eight other persons who gave evidencefor her. There are somesuggestions in the pleadings of a personal offence claim for each of the ninewitnesses. However, thosesuggestions are countered by a range of suggestionsto the contrary. Ultimately, I have come to the view that the pleadings do notspecify with sufficient clarity that personal offence claims were being pressedfor each of Ms Eatock and her witnesses.
271. Whilstthere are specific allegations made relating to each of the individuals inquestion, when Ms Eatock’s pleadings turnto the conclusions to be drawnfrom the primary material facts pleaded, those conclusions suggest that only agroup offence claimis being pursued. That can be seen in particular fromparagraphs 88, 89 and 90 of the Amended Statement of Claim which is wherethecontraventions of s 18C of the RDA are alleged. The alleged contraventions,insofar as the requirements of s 18C(1)(a) are concerned,rely on the facts andcircumstances pleaded at paragraph 88 only. They do not rely upon the personalcircumstances of each of thewitnesses nor on the allegations earlier pleadedthat each of the witnesses were reasonably likely to be offended. Instead,paragraph88 speaks in collective terms and alleges that the Articles werereasonably likely to offend, insult, humiliate or intimidate “thegroupmembers”.
272. Thephrase “group members” is defined in the Amended Statement of Claimand describes a wide class not limited to thenine witnesses. Paragraph 11 ofthe Amended Statement of Claim is as follows:

The group members towhom this proceeding relates are persons (thegroup members) who:

(a)by a combination of descent, self identification and communal recognitionare, and are recognised as, Aboriginal persons;

(b)are Aboriginal persons who have a fairer, rather than a darker skin;and

(c)were reasonably likely to be offended, insulted, humiliated orintimidated, and were offended, insulted, humiliated or intimidatedby [theArticles] or parts thereof.

(Original emphasis)

273. Themembers of the group referred to are fair skinned Aboriginal persons who, by acombination of descent, self-identification andcommunal recognition are, andare recognised as, Aboriginal persons. I regard paragraph (c) of the definitionas inessential forthe purposes of identifying the group of people which theAmended Statement of Claim seeks to identify for s 18C(1)(a) purposes. As thedefined expression “group members” is also used to define the classfor the purposes of the representative natureof this proceeding, paragraph (c)of the definition should be read as confined to that purpose.
274. Thefunction of pleadings and the need for reasonable clarity was recentlyconsidered by a Full Court of this Court inBetfair Pty Ltd v Racing NewSouth Wales & Anor[2010] FCAFC 133;(2010) 189 FCR 356 at[52] (Keane CJ, Lander andBuchanan JJ). Ms Eatock’s pleadings have not stated with reasonableclarity that a case based on thepersonal offence of the nine witnesses wasbeing pressed. My observations about the Amended Statement of Claim arereinforced bythe nature of the relief sought in the Amended Application, which,like the concluding allegations in the Amended Statement of Claim,are alsocouched in collective rather than individual terms.
275. Beyondher argument on the pleadings, Ms Eatock contended that the personal offenceclaims were “in the ring”. As theFull Court said inBetfairat [55]:

...mere infelicity of drafting will rarely be allowedto defeat a case on its merits if the merits of the case have been made apparenton the evidence without unfairness to the other party.

276. However,a clear assertion by counsel for Ms Eatock of personal offence claims was notmade until closing submissions. Those submissionsfollowed the closingsubmissions of Mr Bolt and HWT. Whilst the case was run largely by reference tothe evidence of the nine witnesses,that evidence was also relevant to a claimof group offence and that circumstance, of itself, should not be regarded assufficientto have made it clear to Mr Bolt and HWT that the nature of thecontest included claims of group offence as well as claims of personaloffence. For those reasons, I consider that the personal offence claims contended for byMs Eatock were raised too late and Ms Eatockought not be permitted to pursuethem in this proceeding.
277. Thatconclusion disposes of the need to include the first and second blog articles inthe conduct which is to be assessed. As Iunderstand the final submissions madefor Ms Eatock, the first blog article was only pressed in relation to thepersonal offenceclaim relating to Ms Enoch and the second blog article was onlypressed for the personal offence claim relating to MrMcMillan.

Is the claim of group offence established?

278. Havingdetermined that no personal offence claims have been made, it would not beappropriate to determine whether from the perspectiveof any particularindividual, the Newspaper Articles were reasonably likely to offend. Thatdetermination needs to be made fromthe perspective of the“ordinary” or “reasonable” member of the group inrespect of which the claim was made. As is apparent from the relief sought byMs Eatock, the claim made was that “some or all” members of thegroup wereoffended. As I see nothing impermissible in an applicant narrowingthe allegation of a group offence to a sub-group or sub-groupswithin the groupclaim, whether there was a reasonable likelihood of offence may also be assessedfrom the perspective of the ordinaryor reasonable member of a sub-group orgroups. I have referred to the authorities which support the validity of thatapproach at[252] above.
279. Byher submissions, Ms Eatock sought to confine her claim of offence to two groups.I will deal with each in turn.

The Broad-group claim

280. Thefirst group was said to be constituted by:

Aboriginal persons ofmixed descent who have a fairer, rather than darker skin, and who identify asAboriginal persons in accordancewith the popular meaning of those words.

281. MsEatock’s reference to “popular meaning” was a reference to thethree-point test for Aboriginality to which Iearlier referred. In simpleterms, the broader group is said to be made up of people who, like each of MsEatock and her witnesses,have fair skin and who by a combination of descent,self-identification and communal recognition are, and are recognised as,Aboriginalpersons. This group is the group of people which the “groupmembers” definition in the Amended Statement of Claim relevantlyidentifies.
282. Theordinary person within that group is, I would infer, a person who is likely tohave had similar life experiences and many ofthe same attributes as those ofthe witnesses called for Ms Eatock. For the purpose of the exercise, genderneed not be allocatedto the hypothetical ordinary person being considered, butfor convenience I will assume that the person is female. On the basisof theevidence given by Ms Eatock’s witnesses together with the findings earliermade about Aboriginal identity (see [167]-[190]),I would infer that typicallysuch a person:
     • will, like mostpeople, have been raised to identify with a particular racial identity;
     • will not havechosen to identify as an Aboriginal person as a conscious choice but will havebeen raised to identify as an Aboriginalperson and identified as such sincechildhood;
     • will have anon-Aboriginal parent or earlier ancestor;
     • will have hadsignificant exposure to Aboriginal culture;
     • will regardherself as genuinely Aboriginal and entitled to be recognised as such by therest of the community;
     • will regard hercultural and lived experiences as an Aboriginal person to be a vital aspect ofher identification as an Aboriginalperson;
     • will besensitive to appearance based, or purely biologically based assessments ofracial identity which give little or no regardto her cultural and livedexperiences;
     • will besensitive to suggestions that she is not Aboriginal or not sufficientlyAboriginal to be identifying as such, particularlywhen made by non-Aboriginalpeople;
     • will haveexperienced racism from non-Aboriginal persons;
     • will have,because of her appearance, experienced challenges to her identity as anAboriginal person and has or does feel vulnerabilityas a result; and
     • will have strongfeelings of solidarity with other Aboriginal people who, like her, have paleskin and are exposed to challenges totheir identity by reason of theirappearance.
283. Forsuch a person, the Newspaper Articles would at least have conveyed theimputations which I have listed at [37] and [55]. Butit is likely that thederogatory nature of those imputations would have been conveyed in starker termsthan that which I have determinedwould be conveyed to an ordinary reasonablemember of the Australian community. By that, I mean that for such a person,each ofthe Newspaper Articles are likely to have conveyed a stronger sense offalsity, dishonesty and pretence to the message that the identificationasAboriginal persons by the people in the ‘trend’ was not legitimateor genuine. Additionally, such a person will bemore sensitive to the use ofappearance and in particular pale skin colour as an indicator ofnon-Aboriginality and an imputationthat a genuine Aboriginal person does nothave pale skin will be more readily conveyed than for an ordinary member of theAustraliancommunity.
284. Inmy view, from the perspective of an ordinary member of a group of Aboriginalpersons of mixed descent who have fair skin and whoby a combination of descent,self-identification and communal recognition are, and are recognised as,Aboriginal persons, the imputationsconveyed by the Newspaper Articles wouldhave included that:
     • Thereare fair-skinned people in Australia with essentially European ancestry but withsome Aboriginal descent, of which the identifiedindividuals are examples, whoare not genuinely Aboriginal persons but who, motivated by career opportunitiesavailable to Aboriginalpeople or by political activism, have chosen to falselyidentify as Aboriginal; and
     • Fair skin colourindicates a person who is not sufficiently Aboriginal to be genuinelyidentifying as an Aboriginal person.
285. Theimputations I have found are similar to those contended for by Ms Eatock. Theyare not more injurious than those pleaded:Chakavarti v Advertiser Newspapers(1998) 193 CLR 519 at[53]-[55] (Gaudron and Gummow JJ).
286. Inmy view, from the perspective of the group members, the imputations listed areconveyed by each of the Newspaper Articles, otherthan that the second articledoes not convey political activism as a motivation for the choice to identify asan Aboriginal person. Taking the two articles together, the imputationsconveyed are as set out above. It is convenient that I proceed to assess theimputations as collectively conveyed by both of the articles. This is the waythe parties approached the case (in that each propoundeda single set ofimputations for all of the Articles), and that seems to me to be justified. Although separated by significant time,the Newspaper Articles deal with largelythe same subject matter and many of the same named individuals. The secondarticle refersto Mr Bolt having written earlier about “similarcases” (2A-27). It is likely that the attention of many members ofthegroup of people concerned, would have been drawn to both articles and that manywould have read or re-read both articles together. In any event, theconclusions I have arrived at would not be different if the reaction to thearticles was to be assessed articleby article rather than collectively.
287. Whilstthe Newspaper Articles identified named individuals, those individuals areportrayed as examples of a ‘trend’involving a wider group ofindividuals. The wider group is identified primarily by skin colour andheritage – “whiteAborigines” or similar description. Afair-skinned Aboriginal person with the attributes that I have identified who isnotnamed in the articles will perceive that the people identified have similarattributes to her and that they are put up as examplesof people like her. Sheis reasonably likely to perceive the articles as speaking indirectly of her andto her.
288. Shewould be reasonably likely to fear that there will be many people who will readand agree with the imputations conveyed by theNewspaper Articles and will, as aresult, attribute to her the negative characteristics attributed by the articlesto those namedwithin them and which are ascribed more generally to “whiteAborigines”.
289. Thenature and extent of the offence actually experienced by the witnesses calledfor Ms Eatock, whilst not determinative of theissue I need to resolve, isinstructive. I well appreciate that some of the offence experienced by thewitnesses called, was attributableto comments entirely personal and peculiar tothem. For example, the “mein liebchen” comment made in relation toProfBehrendt or the factual errors in the Newspaper Articles which were onlylikely to produce offence for the particular individualswho were dealt with andwere aware of the nature and extent of the error. No doubt, being personallynamed in a popular newspapercontributed to the sense of outrage as well.
290. However,for the most part, the offence experienced by the witnesses called relates toimputations which are likely to cause offencegenerally to members of the grouphere being considered, including because of the wide range of common attributeswhich the witnessescalled and this wider group are likely to share.
291. Oneof those attributes is that the ordinary person in the group is, as a result ofher life experiences, likely to be particularlysensitive to challenges to heridentity. She will be aware that her appearance does not fit the stereotypicalimage of an Aboriginalperson that many people in the Australian community have.She will be resistant to attempts to define her by her appearance withoutregardto the cultural and social bonds which have fashioned who she is. She will,like all of us, regard her identity as the distinguishingfeature of herpersonality. A vital feature of crucial importance to her self-worth,self-image and personal dignity. Her Aboriginalidentity, as many of thewitnesses said, is who she is.
292. Sheis also likely to be sensitive about attempts by non-Aboriginal persons todefine Aboriginal identity. She will have a legitimateexpectation that peopleshould respect her identity and will be likely offended and insulted when theydo not.
293. Iconsider it reasonably likely that the ordinary person within this group wouldhave been offended and insulted by her perceptionthat the Newspaper Articleswere challenging the legitimacy of her identity and that of others like her. Itis reasonably likelythat she will also have been offended and insulted by whatshe would have perceived to be Mr Bolt’s concentration on skin colourasthe defining determinant of racial identity.
294. Shewill have been conscious of Mr Bolt’s standing as a popular columnistwriting in a highly popular newspaper. She willhave thought that thestereotype of the “white Aborigine” which the Newspaper Articlesportray will be seen, read andprobably accepted as the truth by many. She willhave been conscious that, given her appearance and her identification as anAboriginalperson, others may perceive her to have falsely chosen to identify asan Aboriginal person and done so for opportunistic or politicalreasons, justlike those people that Mr Bolt wrote about. That will be very offensive andinsulting to her because it is not true. Her Aboriginal identity is importantto her. It is who she is. The thought that others may regard her as fake ordishonest abouther identity will likely be highly offensive and insulting.
295. Itis also reasonably likely that she will be humiliated and intimidated by herperception of the capacity of the Newspaper Articlesto generate negative orconfronting attitudes to her from others – work colleagues andacquaintances who seemingly pause tostudy her appearance as she passes andothers to whom she is introduced as an Aboriginal person. She will have aheightened fearof experiencing unpleasantness of the kind experienced by MrMcMillan when he perceived that he was being asked to justify or confirmhisidentity by his University and to the Australian American FulbrightCommission.
296. Thetrepidation in her reaction will likely have been sharpened by the stinging toneand language utilised by Mr Bolt. The mockery,derision, sarcasm anddisrespectful way in which Mr Bolt attacked the subjects of the NewspaperArticles will resonate with her. There is a real chance that pressure will havebeen imposed to negate her identity. She may now think twice about assertingherAboriginal identity in public generally or in particular public settings. That will be particularly the case, if she is young orotherwise vulnerable inrelation to challenges to her Aboriginal identity. Vulnerability in relation toidentity will not be outof the ordinary for people like her.
297. Actswhich are reasonably likely to cause offence, insult, humiliation orintimidation of that kind have “profound and seriouseffects” andare caught by s 18C(1)(a). That kind of likely offence is not to be likened to“mere slights”. Ithas a real potential to lower the pride andself-image of the person or group attacked and thereby inhibit the participatoryequalityin the affairs of the community which the group and its members areentitled to enjoy. Conduct with these consequences threatensthe dignityassurance which all citizens are entitled to be accorded. The reactions which Ihave concluded were reasonably likely,are not reactions likely to be caused bythe intolerance of the people affected.
298. Iam satisfied that at least some members of this group were reasonably likely tohave been offended, insulted, humiliated or intimidatedby the imputationsconveyed by the Newspaper Articles and set out at [284] above.
299. Ishould add that if, contrary to my view, the assessment of the reaction of theordinary representative of the group should be madeby reference to theimputations conveyed to the ordinary and reasonable reader (see [37] and [55]above), I would in any event havereached the same conclusions as those hereexpressed.

The Narrower Sub-Group

300. Counselfor Ms Eatock identified a second group as the witnesses who gave evidence forMs Eatock. There were nine such witnessesincluding Ms Eatock herself. Each ofthose nine persons meet the definition of a person in the broad group, and as Ihave foundthat it is reasonably likely that people in that group would havebeen offended, insulted, humiliated or intimidated, it is unnecessarythat Iconsider the position of a sub-group. However, in case I am wrong in relationto my findings as to the broad group, I willindicate the findings I would makein relation to the sub-group.
301. Firstly,it seems to me that if a claim is to be narrowed to identify a group more likelyto have been offended, the sub-group needsto be identified by a commonattribute rationally related to the question of whether offence was reasonablylikely. The fact thateach of the nine witnesses gave evidence, includingevidence of actual offence, is not in my view a common attribute of asufficientlyrational kind to justify those people being considered a propersub-group. However, each of those witnesses does share a commonattribute. Each of them was identified and criticised in the Newspaper Articles. Most werecriticised in both of those articles. The fact that they were all publiclynamed and directly criticised provides a common attribute rationally related towhether theywere reasonably likely to be offended. It matters not whether theanalysis proceeds on the basis of a sub-group for each of theNewspaperArticles. The result is the same. The personal identification and directcriticism engaged in by Mr Bolt against theseindividuals serves to add apersonal dimension to the attributes of the ordinary and reasonable group memberbeyond those attributesthat I have identified for the broader group.
302. Thisadditional attribute and its personal dimension, serves to strengthen the extentof offence, insult and humiliation which Ihave determined was reasonably likelyfor the broader group. I would have made the same findings I have made for thebroader groupwith one exception. I would not have found a reasonablelikelihood of intimidation because the representative member of this sub-groupis likely to be mature aged and experienced in Aboriginal issues, and thuslikely to be resilient to being intimidated by the imputationsconveyed.

WERE THE ARTICLES WRITTEN AND PUBLISHED BECAUSE OF RACE, COLOUR OR ETHNICORIGIN?

Section 18C(1)(b) – Legal Principles

Causal Nexus

303. Section18C(1)(b) specifies the causal nexus between the act reasonably likely to offendand the racial or other characteristic orattribute of one or more of thepersons reasonably likely to have been offended:Haganat[16](Drummond J);Creekat [19] (Kiefel J);Toben at [31] (Carr J) and [65] (Kiefel J);Bropho [71] (French J). That nexus or linkis concerned with the reason that the act was done. But before searching forthe reason forthe act, it is necessary to clearly identify the act inquestion.
304. The“act” that s 18C(1)(b) is dealing with is the same “act”which s 18C(1)(a) deals with. It is the actwhich was reasonably likely tooffend. A publication, a speech or other communication may have many parts anddifferent parts maybe motivated by different reasons. Section 18C(1)(b) isaddressing the causal link that led to “the act” that meetsthedescription in s 18C(1)(a). Sometimes, the whole of a publication willconstitute the offensive act. But where a publicationin part or in parts isinoffensive and in part offends in the manner contemplated by s 18C(1)(a), itwill be what actuated the offensiveparts of the publication that is relevantfor consideration under s 18C(1)(b).
305. Thatis not to say that the entirety of a publication or communication may not berelevant to a consideration of whether s 18C(1)(a)is satisfied, even as to apart of a publication. InCreek, Kiefel J assessed the reason for theinclusion of a photograph which accompanied a newspaper article. It was thephotograph andnot the narrative that was said to constitute the offendingconduct and Kiefel J correctly, in my view, focused upon the reason forthatpart of the publication when she considered s 18C(1)(b).
306. PartIIA recognises that an act may be done for two or more reasons and that if oneof the reasons is the race, colour or nationalor ethnic origin of a personthen, the act is taken to be done because of one or more of those attributes: s18B. It is not necessarythat such a reason be the dominant reason or asubstantial reason for the doing of the act: s 18B(b). Nevertheless, the reasonwillneed to be an operative reason in the sense that it was involved inactuating the act. So much is apparent from the phrase “becauseof”utilised by s 18C(1)(b). That phrase poses the “centralquestion” of why the act was done and motive, purposeand effect may allbear upon that question:Purvis v State of New South Wales (Department ofEducation and Training)[2003] HCA 62;(2003) 217 CLR 92 at[236] (Gummow, Hayne andHeydon JJ).
307. Ins 18C(1)(b), the central question is whether the act was done including becauseof the race, colour or national or ethnic originof one or more of the personsreasonably likely to have been offended. The question is not whether the actwas done to cause offence,but the fact of the likelihood of offence flowingfrom the act will assist a conclusion that the act was done because of the raceor other attribute of the person or persons likely to have been offended:Toben at [67]-[68] (Kiefel J) and [154] (Allsop J). That conclusion mayalso be assisted by the fact that there is a disconformity betweenthe act andthe respondent’s evidence as to his or her motivation for the act. Thus,a publication which contains unnecessaryasides which appear to have no realpurpose other than to disparage will tend to evidence that the publication waswritten includingfor the purpose of disparaging:Tobenat [77] (KiefelJ).
308. Thetest has been expressed in different but not inconsistent ways:
     • “whetheranything suggests race as a factor in the respondent’s decision topublish”: Creek at [28] (Kiefel J);Scully at [114] and[116] (Hely J);Jonesat [99] (Branson J);
     • Didconsiderations of race actuate or motivate the conduct?:Creek at [28](Kiefel J);
     • Was the act“plainly calculated to convey a message about” or concerned with theracial group?:Jones at[99]-[100] (Branson J);Toben at[38] (Carr J), [65] (Kiefel J), [154] (Allsop J);Scully at [117]-[118]and [224] (Hely J);McGlade at[66] (Carr J).

Race, Ethnic Origin and Colour

309. Section18C(1)(b) requires that the impugned act be done because of “the race,colour or national or ethnic origin” ofsome or all of the people in thegroup said to have been offended. Whilst Mr Bolt’s case denied that hewas motivated by thoseattributes, it was not seriously contested thatAboriginal persons constitute a “race” or are of a common“ethnicorigin”.
310. Theattributes described in s 18C(1)(b) have an obvious overlap and it would bewrong to approach the question of construction onany other basis. Acombination of these attributes is often used in legislation dealing withdiscrimination or prejudice, so asto ensure that there is no loophole forevasion:King-Ansellat 542 (Richardson J) and at 537 (Woodhouse J). MsEatock contended that “race”, “ethnic origin” and“colour”are to be understood in their ordinary or popular meaning. The Explanatory Memorandum was reasonably comprehensive in outliningwhat wasintended and how the terms should be construed. The following appears at2-3:

The terms ‘ethnic origin’ and ‘race’are complementary and are intended to be given a broad meaning.

The term ‘ethnic origin’ has been broadly interpreted incomparable overseas common law jurisdictions (cfKing-Ansell v Police[1979] 2 NZLR per Richardson J at p. 531 andMandla v Dowell Lee [1983] 2AC 548 (HL) per Lord Fraser at p. 562). It is intended that Australiancourts would follow the prevailing definition of“ethnic origin” asset out inKing-Ansell. The definition of an ethnic group formulated bythe Court inKing-Ansell involves consideration of one or more ofcharacteristics such as a shared history, separate cultural tradition, commongeographicalorigin or descent from common ancestors, a common language (notnecessarily peculiar to the group), a common literature peculiarto the group,or a religion different from that of neighbouring groups or the generalcommunity surrounding the group. This wouldprovide the broadest basis forprotection of peoples such as Sikhs, Jews and Muslims.

The term “race” would include ideas of ethnicity so ensuring thatmany people of, for example, Jewish origin would becovered. While that termconnotes the idea of a common descent, it is not necessarily limited to onenationality and would thereforeextend also to other groups of people such asMuslims.

311. Thispassage from the Explanatory Memorandum was relied upon by Hely J inScullyto find that Jews in Australia were a group of people with an “ethnicorigin” for the purposes of the RDA: at [112]-[113]. On the basis ofKing-Ansell, a Full Court of this Court inMiller v Wertheim[2002] FCAFC 156 at[14] (Heerey, Lindgren and Merkel JJ) also accepted thatJewish people in Australia comprise a group of people with an “ethnicorigin”for the purposes of the RDA.
312. InKing-Ansell, the New Zealand Court of Appeal (Richmond P, Woodhouse andRichardson JJ) was asked to construe s 25(1) of New Zealand’sRaceRelations Act 1971. An element of an offence under that section includedintent to excite hostility or ill will against a group of persons on the groundsof colour, race, or ethnic or national origin of that group. TheRaceRelations Act 1971 was enacted including in order to implement CERD. Inthat context, Richardson J considered the meaning of “race” and“ethnic origin” and stated at 542:

Race is clearly usedin its popular meaning. So are the other words. The real test is whether theindividuals or the group regardthemselves and are regarded by others in thecommunity as having a particular historical identity in terms of their colour ortheirracial, national or ethnic origin. That must be based on a belief sharedby members of the group.

and at 543:

...a group is identifiable in terms of its ethnic origins if it is a segmentof the population distinguished from others by a sufficientcombination ofshared customs, beliefs, traditions and characteristics derived from a common orpresumed common past, even if notdrawn from what in biological terms is acommon racial stock. It is that combination which gives them an historicallydeterminedsocial identity in their own eyes and in the eyes of those outsidethe group. They have a distinct social identity based not simplyon groupcohesion and solidarity but also on their belief as to their historicalantecedents.

Those passages were approved by the House of Lords inMandlaat 564. In that case, the Court was dealing with whether Sikhs were to be regarded as a“racial group” for the purposesof theRace Relations Act1976. The answer to that central question depended on whether Sikhs were agroup defined by reference to “ethnic origins”. The main purpose ofthe 1976 Act was to prohibit discrimination against people on racial grounds andto make provision with respectto relations between people of different racialgroups. In answering the central question raised, Lord Fraser of Tullybelton(withwhom the other judges agreed) relevantly said at 562:

For a group to constitute an ethnic group in the sense of the Act of 1976, itmust, in my opinion, regard itself, and be regardedby others, as a distinctcommunity by virtue of certain characteristics. Some of these characteristicsare essential; others arenot essential but one or more of them will commonly befound and will help to distinguish the group from the surrounding community.Theconditions which appear to me to be essential are these: (1) a long sharedhistory, of which the group is conscious as distinguishingit from other groups,and the memory of which it keeps alive; (2) a cultural tradition of its own,including family and social customsand manners, often but not necessarilyassociated with religious observance. In addition to those two essentialcharacteristics thefollowing characteristics are, in my opinion, relevant; (3)either a common geographical origin, or descent from a small number ofcommonancestors; (4) a common language, not necessarily peculiar to the group; (5) acommon literature peculiar to the group; (6)a common religion different fromthat of neighbouring groups or from the general community surrounding it; (7)being a minority orbeing an oppressed or a dominant group within a largercommunity, for example a conquered people (say, the inhabitants of Englandshortly after the Norman conquest) and their conquerors might both be ethnicgroups.

313. Iagree that the words “race” and “ethnic origin” shouldbe given their broad popular meanings. In popularusage, the terms are oftenused interchangeably. Attempts to draw a meaningful distinction between“race” and “ethnicorigin” are likely to be illusive,although “race” can be used to identify a category of people made upof manyethnic origins (for instance the Caucasian race).
314. Inmy view, Australian Aboriginal people are a race and have common ethnic origin. They are a group of people who regard themselvesand are regarded by others ashaving the two essential distinguishing conditions referred to by Lord Fraser inMandala – a long shared history and a culture distinctly of theirown. An act done because a person or a group of people are Aboriginalpeople is,in the terms of s 18C(1)(b), done because of the race or ethnic origin of theperson or group.
315. Theword “colour” is a word of many applications but it is here to beconstrued by reference to the words that surroundit in s 18C(1)(b). The use ofcolour as a characterisation is no doubt a response to historical systems ofidentification of differentpeoples even though those systems may now beregarded as lacking justification. As De Plevitz and Croft record in theirarticle“Aboriginality Under the Microscope: The Biological Descent Testin Australian Law” (2003) 3(1) QUT Law and Justice Journal1-17, theorigins of speciation are based on physical similarities. The discovery in 1781of an old skull in the Caucasus Mountainsof Russia provided the catalyst forthe classification of peoples into racial sub-species. As Europe and Asia wereseparated bythe Caucasus Mountains, Europeans were classified as Caucasians. Human kind was then further classified into five sub-species basedon place oforigin: Caucasian, Asian, African, American and Australasian. As De Plevitz andCroft observe at 7:

Later taxonomy overcame the classificatoryproblems produced by migration and intermarriage by classifying races on thebasis of skincolour: white, black, yellow, brown and red (the natives of thecontinents of America). The peoples of Oceania were an enigma becausePolynesians were sometimes classified as “white”. Generally howeverOceanians were “brown” and included Melanesiansand AustralianAborigines.

(Footnotes omitted)

316. Theword “colour” is utilised in s 18C(1)(b) to refer to skin-colourwhen used as an indicator of race including as anindicator of a broad racialsub-species like the Caucasians. Accordingly, an act based on the skin-colourof a person when usedto connote race, is an act done “because of”the “colour” of the person within the meaning of that word ins18C(1)(b) of the RDA.

S18(1)(b) – Application of Principles to the Facts

317. Ihave found that a group of people were reasonably likely to have been offendedby the Newspaper Articles. The race and ethnicorigin of the people within thatgroup is Aboriginal. Aboriginal people are, for reasons already explained, arace or ethnic groupfor the purposes of s 18(1)(b).
318. TheNewspaper Articles are about fair-skinned and mixed descent Aboriginal peoplewho identify as Aboriginal people and they arethe subjects of the imputationsconveyed. The imputations conveyed by the Newspaper Articles address the race,ethnicity and colour(as an indicator of race or racial attribute) of thosepeople. The imputations are “plainly calculated to convey a messageabout” that topic including that the people concerned are not sufficientlyof Aboriginal race, colour or ethnicity.
319. Iappreciate that sometimes the same words may convey different meanings todifferent people, even different reasonable readers. It seems to me howeverthat a journalist can be expected to perceive the meaning conveyed by thearticles that he or she writes,including the possible meanings which are likelyto be conveyed to the reader:Bonnick v Morris[2003]1 AC 300 at 310 (Lord Nicholls of Birkenhead).
320. Therace and skin colour of the people whose racial heritage is examined by theNewspaper Articles are essential to the message conveyed. The asserted choiceto identify as Aboriginal people is a matter focused upon in each of thearticles.
321. MrBolt is an experienced journalist. He has high level communication skills. Hiswriting displays a capacity to cleverly craftlanguage to intimate a message. Iconsider it highly unlikely that in carefully crafting the words utilised by himin the NewspaperArticles, he did not have an understanding of the meaninglikely to be conveyed by those words to the ordinary, reasonable reader. I amsatisfied that he understood that the Newspaper Articles will have conveyed theimputations which I have found were conveyedto the reasonable ordinary reader. At the very least, I am well satisfied that Mr Bolt understood that at least onemeaning conveyedby the Newspaper Articles was that the Aboriginality of thepeople in the ‘trend’ was questionable. I need not considerforcurrent purposes, whether Mr Bolt would have appreciated the imputationsconveyed to the group members. That might be a relevantand necessaryconsideration in other cases.
322. Inwriting those parts of the Newspaper Articles which conveyed the imputationswhich I have found were conveyed to the ordinaryreader, with the understandingwhich I attribute to Mr Bolt, I find that Mr Bolt plainly intended to convey amessage about the Aboriginalidentity of the people he wrote about. In thosecircumstances I have no doubt that one of the reasons which motivated Mr Boltwashis desire to convey a message about the Aboriginality and thus the race,ethnic origin and colour of the people dealt with by theimputations. I amsatisfied that Mr Bolt wrote those parts of the Newspaper Articles which conveythe imputations, including becauseof the race, ethnic and origin and colour ofthe people who are the subject of them.
323. Iam firmly of the view that a safer and more reliable source for discerning MrBolt’s true motivation is to be found in thecontents of the NewspaperArticles themselves rather than in the evidence that Mr Bolt gave, including thedenials made by him asto his motivation.
324. WhatMr Bolt wrote was either written contemporaneously with or proximate to, theformation of Mr Bolt’s motivation. Not surprisingly,given the lapse oftime, Mr Bolt had some difficulty recalling his thinking processes at the timeof writing and at times duringhis evidence frankly admitted that he was“reconstructing”. Additionally, having observed Mr Bolt, I formedthe viewthat he was prone to after-the-fact rationalisations of his conduct. I note in this respect in particular that Mr Bolt’sstated motivation forwriting the Articles evolved during his cross-examination. I deal with thatmatter further at [362] and [444].
325. AsKiefel J said inTobenat [63], the inquiry as to motive or reason is notto be limited to the explanation given by the person whose conduct is at issueor that person’s genuine understanding as to his or her motivation as“their insight may be limited” and they “mightnot always be areliable witness as to their own actions”. The inquiry “is as tothetrue reason ortrue ground for the action” (originalemphasis). What the person actually said or did may be a more reliable basisfor discerning thatperson’s true motivation. In making thoseobservations Kiefel J followed her approach inCreek at [22]-[23]. Theapproach has been followed by Carr J inToben at [31] and by French J inBropho at [71].
326. MrBolt’s counsel argued that Mr Bolt wrote about the choices made toidentify as Aboriginal and not the race, colour or ethnicorigin of the peoplewho had made those choices. Whilst I accept that Mr Bolt was motivated to writeabout what he perceived tobe the identity choices made, I do not accept thatrace, colour and ethnic origin were not motivating reasons.
327. MrBolt was not content with conveying a message that people should not choose aracial identity. The Newspaper Articles soughtto convey the message thatcertain people of a certain racial mix should not identify with a particularrace because they lack asufficiency of colour and other racial attributes tojustify the racial choice which they had made. Race, colour and ethnicity werevital elements of the message and therefore a motivating reason for conveyingthe message, even if the message is to be characterisedas ultimately aboutchoice of racial identity. In a provision which requires that only one of thereasons for the act in questionwas either race, ethnicity or colour, MrBolt’s contention must fail even if it were accepted that his primarymotivation wasto write about choice of identity.
328. MrBolt’s counsel also sought to draw a distinction between a motivatingreason and a “step” or “buildingblock” in themotivating reason. The submission is reminiscent of the distinction sometimessought to be drawn between a reasonand a factor in a reason. In relation to aprovision which, for current purposes, has similarity to s 18C(1)(b), such adistinctionhas been rejected:Barclay v The Board of Bendigo RegionalInstitute of Technology and Further Education[2011] FCAFC 14;(2011) 191 FCR 212 at[30](Gray and Bromberg JJ). I see no basis for drawing the kind of distinctionwhich Mr Bolt contended for in relation to s 18C(1)(b)of the RDA.
329. Noevidence was given on behalf of HWT as to its motivation for publishing theArticles. HWT contended and I accept, that it isthe publisher of opinionpieces from a variety of people. HWT says that it published the Articles in theordinary course of itsbusiness and that Ms Eatock has failed to show thatHWT’s publication of the Articles had anything to do with the race, colouror ethnic origin of Aboriginal persons.
330. Onthat argument, a publisher (who is not the employer of the author) would escapeliability irrespective of the content of whathas been published, on the basisthat the content is somebody else’s opinion and the publisher was merelymotivated to publishthe opinion in the ordinary course of its business. Ifthat were right, the most racially offensive of material could be publishedandrepublished without restraint. Such a result would seem to be at odds with theobjectives of Part IIA of the RDA.
331. Theremay well be cases where the motivations of a publisher are entirely free from orindependent of those of the author in relationto a particular article. Thatmay be the position where the publisher is a mere passive conduit of informationor comment: seeSilberberg v The Builders Collective of Australia[2007] FCA 1512;(2007)164 FCR 475. Where however, a publisher is aware that the author’smotivation includes the race, colour, national or ethnic origin of thepeoplethe article deals with, then it seems to me that it can be said that the act ofpublication (as an act in aid of the disseminationof the author’s intent)was done because of the racial or other attributes which motivated theauthor.
332. Thisis a case in which the motivation of the author to communicate a message aboutthe Aboriginality of the people dealt with bythe Newspaper Articles wasapparent from the articles that HWT published. The evidence is that HWT was,through its editors andsub-editors, involved in the editorial oversight of theNewspaper Articles. In the absence of evidence to the contrary, I wouldinferthat HWT knew of and understood the contents of the Newspaper Articles and wasaware of the imputations conveyed by them tothe same extent as I have found forMr Bolt. I am somewhat reinforced in that view because the headings,sub-headings and pull-outquote (second article) utilised show an editorialunderstanding of the racial theme in the Newspaper Articles. In aiding thedisseminationof the imputations conveyed and thus Mr Bolt’s motivationfor conveying them, HWT published the Newspaper Articles includingbecause ofthe race, colour or ethnicity of the Aboriginal people the subject of thoseimputations.
333. Finally,I should say something about the contention of Mr Bolt and HWT that for conductto fall within s 18C(1)(a) or (b) it needsto involve a racial slur.
334. Inseeking to promote tolerance and protect against intolerance in a multiculturalsociety, the RDA must be taken to include in itsobjective tolerance for andacceptance of racial and ethnic diversity. At the core of multiculturalism isthe idea that people mayidentify with and express their racial or ethnicheritage free of pressure not to do so. Racial identification may be public orprivate. Pressure which serves to negate it will include conduct that causesdiscomfort, hurt, fear or apprehension in the assertionby a person of his orher racial identity. Such pressure may ultimately cause a person to renouncetheir racial identity. Conductwith negating consequences such as those that Ihave described, is conduct inimical to the values which the RDA seeks tohonour.
335. Peopleshould be free to fully identify with their race without fear of public disdainor loss of esteem for so identifying. Disparagementdirected at the legitimacyof racial or religious identification of a group of people is a common cause forracial or religious tension. A slur upon the racial legitimacy of a group ofpeople is just as, if not more, destructive of racial tolerance than a slurdirectedat the real or imagined practices or traits of those people.

DOES THE FREEDOM OF EXPRESSION EXEMPTION APPLY?

Section 18D – Legal Principles

Burden of Proof

336. Thereis contest between the parties as to who bears the burden of proof in relationto the exemption provided for by s 18D.
337. InMcGlade, Carr J at [67]-[69] addressed the issue of onus of proof. HisHonour referred toScullywhere Hely J assumed that the onus rested onthe respondent: at [127]-[128]. Carr J then referred toJones at [101]where Branson J said: “The onus of proof with respect to an exemptionprovided by s 18D rested on the respondent...”. Carr J continued at [69]:

I respectfully agree with their Honours. In my view, the exemptionsprovided by s 18D of the Act fall within the following descriptioninVines v Djordjevitch[1955] HCA 19;(1955) 91 CLR 512 at 519-520:

"... it may be the purpose of the enactment to lay down some principle ofliability which it means to apply generally and then toprovide for some specialgrounds of excuse, justification or exculpation depending upon new or additionalfacts. In the same waywhere conditions of general application giving rise to aright are laid down, additional facts of a special nature may be made agroundfor defeating or excluding the right. For such a purpose the use of a proviso isnatural. But in whatever form the enactmentis cast, if it expresses anexculpation, justification, excuse, ground of defeasance or exclusion whichassumes the existence ofthe general or primary grounds from which the liabilityor right arises but denies the right or liability in a particular case byreasonof additional or special facts, then it is evident that such an enactmentsupplies considerations of substance for placingthe burden of proof on theparty seeking to rely upon the additional or special matter."

(Footnotes omitted.)

338. InToben at [41],Carr J recounted the approach that he had taken tothe question of onus inMcGlade and determined the s 18D issues raised bythe appeal on the basis that the onus rested with the respondent. Kiefel J at[78] expressedher general agreement with the reasons for judgment of Carr J. At [159]-[161], Allsop J also agreed with Carr J expressing hisspecificagreement with the reasons of Carr J dealing with the failure of the evidence toestablish that the publication in questionwas done reasonably and in goodfaith. In those circumstances, it seems to me that I am bound by the decisionof the Full CourtinToben to impose the onus of proof under s 18D uponthe respondents. Further, inBropho both Lee J at [141] and Carr J at[172] acknowledged that the respondent in that caseborethe onus of proof in relation to s 18D. However, the issue of onus does notappear to have been contested in that case and onlyFrench J referred to itother than in passing. His Honour was of the view that the question of theburden of proof should not beregarded as settled: at [75]. His Honour did notexpress a concluded view on that issue but the central point that French J seemsto me to have been driving at has not so much to do with whether a respondenthas the burden of proof in relation to primary factsrelevant to theconsiderations required by s 18D, but that the process of making assessments ofreasonableness and good faith whichare required by s 18D “is not soreadily compatible with the notion of the burden of proof”: at [77].
339. MrBolt and HWT rely on the reasons of French J for the proposition that s 18D doesnot impose an evidentiary burden on them. AsI have indicated, I regard myselfas bound by the Full Court decision inToben. In any event, all of thejudges who have expressed a concluded view on this issue favour the impositionof the burden of proofon the respondent. I should follow those earlierdecisions unless I was of the view that they were plainly wrong:BHP Billitonv NCC[2007] FCAFC 157;(2007) 162 FCR 234 at[88]-[89] (Greenwood J, with whom Sundberg Jagreed). I am not of that view, as I regard s 18D as falling within thedescription inVines v Djordjevitch[1955] HCA 19;(1955) 91 CLR 512 at 519-520. I am reinforced in that view by the Explanatory Memorandum which at [11]specifically deals with the question of onus and supportswhat I regard wasParliament’s intention that the onus “rests on the respondent toshow, on the balance of probabilities,that his or her action falls within oneof the exemptions in s 18D”.

Reasonably and in good faith

340. Section18D of the RDA provides that s 18C does not render unlawful anything said ordone “reasonably and in good faith”,if done in furtherance of oneor other of the pursuits identified in paragraphs (a)-(c) of s 18D.
341. Themeaning of the phrase “reasonably and in good faith” is at issue. Ms Eatock contends that the word “reasonably”imports therequirements identified by French J inBropho at [79]-[82]. Thoserequirements may be summarised as follows, noting however that French J at [82]specifically stated that hedid not intend to set out an exhaustive account ofthe concept of reasonableness:
     • A thing done“reasonably” must bear a rational relationship to that activity andis not disproportionate to what is necessaryto carry it out;
     • “Reasonably”imports an objective judgment;
     • It allows thepossibility that there may be more than one way of doing things“reasonably”;
     • The judgmentrequired involves assessing whether the thing was done “reasonably”not whether it could have been done morereasonably;
     • That judgment“will necessarily be informed by the normative elements of ss 18C and 18Dand a recognition of the two competingvalues that are protected by thosesections”;
     • Considerationswhich may have a bearing on whether an act is done reasonably include time,place, audience, and whether or not gratuitouslyinsulting or offensive matters,irrelevant to the question of public interest under discussion, have beenincluded.
342. MrBolt and HWT contended that the word “reasonably” is much moreconfined than the analysis of French J suggests. Theycontended that“reasonably” requires only that the impugned act be“rationally related to the matter of publicinterest being pursued”.That approach adopts the rationality element of French J’s analysis buteschews the elementof proportionality and the need for the assessment to beinformed by the “normative elements” to which French J referred,that is, the purpose of Part IIA including the “recognition of the twocompeting values that are protected by those sections”.The approach isalso at odds with the view of Lee J inBropho at [136] that thereasonableness of the act is to be judged against the possible degree of harm itmay cause to the ills which theRDA seeks to guard against.
343. Asto “good faith”, Ms Eatock again primarily relied upon the analysisof French J inBrophoand contends that both Lee and Carr JJ took similarapproaches. The reasons for judgment of French J at [83]-[102] identified thefollowing matters as relevant to a conception which French J considered had bothsubjective and objective elements:
     • As Part IIAcondemns racial vilification of the defined kind but protects freedom of speechand expression, the good faith exerciseof that freedom “will, so far aspracticable, seek to be faithful to the norms implicit in its protection and tothe negativeobligations implied by s 18C. It will honestly andconscientiously endeavour to have regard to and minimise the harm it will, bydefinition, inflict”: at [95];
     • Good faith istherefore to be tested both subjectively and objectively: at [96];
     • “[G]oodfaith requires more than subjective honesty and legitimate purposes. Itrequires, under the aegis of fidelity or loyaltyto the relevant principles inthe Act, a conscientious approach to the task of honouring the values assertedby the Act. This maybe assessed objectively”: at [96];
     • A personexercising a protected freedom of speech or expression under s 18D “willact in good faith if he or she is subjectivelyhonest, and objectively viewed,has taken a conscientious approach to advancing the exercising of that freedomin a way that isdesigned to minimise the offence or insult, humiliation orintimidation suffered by people affected by it”: at [102];
     • A person whoexercises the freedom “carelessly disregarding or wilfully blind to itseffect upon people who will be hurt byit or in such a way as to enhance thathurt may be found not to have been acting in good faith”: at[102].
344. MrBolt and HWT contended that “good faith” involved no objectiveconsideration but only an assessment of whether theimpugned act was honestlyand conscientiously pursued in the course of dealing with the matter of publicinterest. Mr Bolt and HWTrelied onCatch the Fire at [92]-[93]. Theyfurther contended that French J’s view that the words “reasonablyand in good faith” requiredobjective fidelity to the norms in s 18C ofthe RDA was not part of the ratio ofBropho and ought not be followed. Whilst their submissions observed “echoes” of the approach of FrenchJ in the judgment ofLee J, those echoes were dismissed on the basis that Lee Jwas in dissent.
345. AlthoughLee J was in dissent in the result, Lee J was not in dissent on the point ofprinciple here being addressed. His Honour’sapproach required that eachof the words “reasonably” and “good faith” beinterpreted as requiring the minimisationof the harm that s 18C seeks toavoid: see at [136]-[141] and [144]. At [144], Lee J said:

In shortthe risk of harm from the act of publication must be shown to have been balancedby other considerations. The words “ingood faith” as used in s 18D import a requirement that the person doing the act exercise prudence, cautionand diligence,which, in the context of the Act would mean due care to avoid orminimise consequences identified by s 18C. (see:Mid Density Developments PtyLtd v Rockdale Municipal Council[1993] FCA 408;(1993) 44 FCR 290 per Gummow, Hill,Drummond JJ at 298).

346. Thatestablishing “good faith” required that both a subjective andobjective assessment be satisfied was emphasised byLee J at[141]:

The question whether publication was an act done in goodfaith must be assessed, in part, by having regard to the subjective purposeofthe publisher but overall it is an objective determination as to whether the actmay be said to have been done in good faith,having due regard to the degree ofharm likely to be caused and to the extent to which the act may be destructiveof the object ofthe Act. (See:Cannane v J Cannane Pty Ltd (In liq)[1998] HCA 26;(1998) 192 CLR 557 per Kirby J at 596-597.)

347. Inmy view, Lee J’s approach is consistent with that taken by French J. Thereasoning of Carr J inBropho is not inconsistent with that taken byFrench and Lee JJ. Carr J considered the words “reasonably and in goodfaith”as a composite expression noting that both objective and subjectiveconsiderations were relevant. At least French and Lee JJ interpreted“ingood faith” as including an objective satisfaction of whether the freedomof expression in question had been exercisedin a manner designed to minimiseoffence, insult, humiliation or intimidation.
348. Thatrequirement also finds support in the judgment of the Court inTobenwhere Carr J (with whom Kiefel J agreed at [78] and Allsop J agreed at[159]-[161]) said at [44]:

...a reasonable person acting in goodfaith would have made every effort to express the challenge and his views withas much restraintas was consistent with the communication of those views.

349. Theminimisation of harm by reference to the objectives of s 18C is, I think,imported into the words “reasonably and in goodfaith” becausenon-compliance with that requirement (in the pursuit of an activity described byparagraphs (a), (b) or (c)of s 18D) is a basis for the impairment of the rightsor freedoms protected by s 18C. Where rights and freedoms are in conflict,theimpairment of one right by the exercise of another is often subjected to a testof proportionality. Proportionality, in thesense that the measures adopted arerationally connected to the objective of the competing right, and that the meansused to impairthe protected right is no more than is necessary to achieve theobjective of the competing right. I can see no reason why a requirementofproportionality is not apt in the context of the balancing exercise involved ins 18D.
350. MrBolt and HWT contended that the approach of French J in construing a requirementof proportionality, had the effect of prioritisingthe norms sought to beprotected by s 18C over those protected by s 18D, so that s 18D was effectivelysubjugated to the norms ofs 18C. Mr Bolt and HWT are right to say thatParliament intended a balancing of the competing rights and not the subjugationofone over the other. However, Mr Bolt is wrong to suggest that a balance isnot achieved by the construction which French J (andLee J) adopted. Onthat construction, neither of the competing rights is supreme or unbending. Each must to some extent give wayto the other. The right to be free of offencegives way to the reasonable and good faith exercise of freedom of expression.Theright to freedom of expression is limited to its reasonable and good faithexercise having regard to the right of others to be freeof offence. Therequirement of proportionality does not involve the subjugation of one rightover the other and is consistent withachieving a balanced compromise betweenthe two.

Section 18D – Application of Principles to the Facts

Section18D(c)(ii)

351. Section18D assumes the existence of offensive conduct. That is, conduct whichsatisfies the elements of s 18C and that would beunlawful if not exempted by s18D. Section 18D asks whether the offensive conduct (conduct that meets therequirements of s 18C)was done reasonably and in good faith in the pursuit ofthe activities identified in s 18D(a), (b) or (c).
352. Thereare two activities identified in s 18D(c). They are the making or publishing ofa fair and accurate report and the making orpublishing of a fair comment. Thereport or comment must concern an event or matter of public interest. Mr Boltand HWT rely upons 18D(c)(ii). The question raised here is whether the conductwhich I have found meets the requirements for a contravention of s18C(“the s 18C conduct”) was done reasonably and in good faith in thepursuit of the making of a fair comment.
353. Atcommon law, fair comment exists as a defence to a defamatory comment in order tofacilitate freedom of expression on matters ofpublic interest. The fundamentalimportance of facilitating freedom of expression has already been explained. Itis of importancethat on social and political issues in particular, peopleshould be able to express their opinions. Those opinions will at timesbeill-considered. They may be obstinate, exaggerated or simply wrong. But that,of itself, provides no valid basis for the lawto curtail the expression ofopinion. The fair comment defence at common law extends to protect opinions,even those that reasonablepeople would consider to be abhorrent. As Gleeson CJsaid inChannel Seven Adelaide Pty Ltd v Manock[2007] HCA 60;(2007) 232 CLR 245 at[3]“fair” does not mean objectively reasonable.
354. Likeall good things, freedom of expression has its limits and that is alsorecognised by the common law defence of fair comment. Those limits are there toensure that freedom of expression is not abused. One of the safeguards againstsuch abuse is that thecomment must be based on facts which are true orprotected by privilege. That means that if the facts upon which the commentpurportsto be founded are not proved to be true or published on a privilegedoccasion, the defence of fair comment is not available:Cheng v Tse Wai Chun[2000] HKCFA 35;(2000) 3 HKCFAR 339 at 347 (Lord Nicholls of Birkenhead NPJ with whom therest of the Court agreed);The Herald & Weekly Times Limited vPopovic (2003) 9 VR 1 [259]-[264] (Gillard AJA with whom Winneke ACJ andWarren AJA agreed).
355. Thatlimitation is important in this case for reasons I will come to. But there aretwo further limitations which are also fundamentaland which are also made clearin the authorities to which I have just referred. The fair comment defence onlyapplies to a commentas distinct from a statement of fact. The basis fordistinguishing between a comment and a statement of fact was discussed byGummow,Hayne and Heydon JJ inChannel Seven Adelaidein a passage I willshortly set out. The comment must be recognisable as comment and the facts uponwhich the comment is based mustbe expressly stated, referred to or notorious. The facts upon which the comment is based must be, at least in general terms,explicitlyor implicitly stated. The purpose of that requirement is so that thereader or hearer is put in a position to judge for him or herselfwhether thecomment is well founded: seeTse Wai Chunat 347;Channel Seven Adelaideat [52] (Gummow, Hayne and Heydon JJ). AsLord Nicholls said inTse Wai Chun at 352:

These safeguardsensure that defamatory comments can be seen for what they are, namely, commentsas distinct from statements of fact. They also ensure that those reading thecomments have the material enabling them to make up their own minds on whetherthey agreeor disagree.

356. Ifthe reader is given sufficient material to understand the basis for the comment,the reader can evaluate it. If the comment iswrongheaded, reasonable peoplewill be able to recognise it for what it is. That capacity, together with therequirement for truefacts and honesty, are the fundamental safeguards againstabuse.
357. Honestyrequires that the maker of the comment genuinely believe the comment made. Ifthe maker knew the comment was untrue, orwas recklessly indifferent to thetruth or falsity of the comment, the maker would be acting dishonestly: seeTse Wai Chun at 352. Section 18D(c)(ii) deals with that aspect expresslyby requiring that the comment be “an expression of a genuine beliefheld” by the maker of the comment.
358. Theparties accepted that by using the phrase “fair comment” in s18D(c)(ii), Parliament intended to invoke the requirementsof the common lawdefamation defence of fair comment. That view is supported by the observationsmade by Kiefel J inCreekat [32]. Although there are examples of thestatutory use of the phrase “fair comment” where not all of thecommon lawrequirements have been found to be imported (seePervan v NorthQueensland Newspaper Co. Limited[1993] HCA 64;(1993) 178 CLR 309), I accept that s18D(c)(ii) is not such an occasion.
359. Oneof the difficulties with the s 18D case advanced by Mr Bolt and HWT is that theyput their submissions in the absence of anyrecognition that the Court may finds 18C to have been satisfied by reference to one or more of the imputations uponwhich Ms Eatockrelied. Somewhat like what might be done in a defence to adefamation case, Mr Bolt and HWT identified a comment or imputationssaid to beconveyed by the Articles. They then sought to justify that imputation byreference to s 18D. In doing that, they ranthe same risk that a respondentruns in a defamation case, that the alternative imputations relied upon andsought to be justifiedwill either not be accepted as having been conveyed bythe publication or, alternatively, be regarded as separate and distinct fromthedefamatory imputations upon which the applicant relies.
360. Havingtaken that course, Mr Bolt and HWT made no specific submissions as to why, ifthe Court was to make a finding of s 18C conducton the basis of the imputationsupon which Ms Eatock relied (or similar imputations), that conduct oughtnevertheless be excusedpursuant to s 18D. Instead, their submissions sought todefend the Articles (all four) as a whole on the basis that the imputationsrelied upon by Ms Eatock were not conveyed and that the only imputationsconveyed by the Articles were that:

(a)racism is abhorrent and agravely divisive social force, which is perpetuated by emphasising racialdifferences;

(b) in modern Australia, there is a discernible trend whereby persons ofmixed genealogy, where that genealogy includes Aboriginality,identify asAboriginal persons, where they could identify with another race or races, orwith no race at all;

(c) the Applicant and the other individuals named in the Publicationsillustrate that trend, in that they are each persons who identifyas Aboriginalpersons, even though they could identify with another race or races, or with norace at all; and

(d)the trend is an undesirable social phenomenon because it emphasisesracial differences, rather than common humanity.

361. Thoseimputations (“Mr Bolt’s imputations”) were then sought to bejustified by reference to s 18D(b) and (c)(ii). In relation to s 18D(c)(ii), itwas contended that Mr Bolt’s imputations were a fair comment made on amatter of public interest. Consistently with their pleadings, Mr Bolt and HWTrelied on the matter of public interest as being:

whether fairskinned-persons who, by reason of their genealogy are Aboriginal persons, tendto choose to identify as Aboriginal personseven if they could choose toidentify as a member of another race or other races, or with no race at all; andif so whether thattendency is socially undesirable because of the emphasis itplaces on racial differences rather than common humanity.

362. Reliancewas also placed on three further matters of public interest, which had not beenpleaded but which were relied upon by MrBolt (for the first time) whencross-examined about the Articles, as follows:

(a)the people he [MrBolt] identified all had a public profile and were legitimate subjects forpublic scrutiny;

(b)some of the jobs, prizes and awards he referred to in the Publicationswere publicly or partly publicly funded; and

(c)there was a legitimate public debate to be had about whether there weremore deserving recipients for some of the prizes and awardsreferred to in thePublications.

A further broader attempt to define the relevant matter of public interestwas also relied upon in the final submissions made. Itwas described as“identity politics and the search for identity, in the context ofprominent members of the community”.

363. MrBolt’s imputations were said to be an expression of genuine belief held byMr Bolt. Mr Bolt gave evidence of that beliefwhich was not contested.
364. MrBolt and HWT contended that the Articles contained no material errors of fact. A number of errors asserted by Ms Eatock weredenied and others were dismissedas not relevant. That was said to be so because they were not material to thematters of publicinterest that the Articles were ventilating or capable ofrationally affecting the substance of Mr Bolt’s imputations.
365. Itwas then contended in relation to reasonableness, that each part of the Articlesbore a rational relationship and was not extraneousto the matters of publicinterest relied upon and as to good faith, that Mr Bolt had conscientiously andhonestly set out to advancethe matters of public interest to which the Articleswere directed.
366. MsEatock neither relied upon nor sought to impugn Mr Bolt’s imputations. MsEatock contended that the Articles included otherimputations extraneous to theimputation or the matter of public interest upon which Mr Bolt and HWT relied. My findings about theimputations which were conveyed by the Newspaper Articlesare largely consistent with the imputations for which Ms Eatock contended. Theimputations which I have found were conveyed by the Newspaper Articles areseparate and distinct from the imputations for whichMr Bolt contended. Theycarry a decidedly different sting to that in Mr Bolt’s imputations, whichcarries no suggestion ofa lack of legitimacy in the identification asAboriginal of the people with whom the imputations deal.
367. Inessence, the s 18D case put by Mr Bolt and HWT sought to justify behaviourcleansed of the s 18C conduct which I have found occurred. As a result, much ofwhat was put in reliance upon s 18D by Mr Bolt and HWT simply addressed thewrong target.
368. Therecan be no doubt that the defence of fair comment must address the meanings orimputations found by the Court to be defamatory. As Gummow, Hayne and Heydon JJsaid inChannel Seven Adelaideat [83]:

The meaning found isthe comment to be scrutinised for its fairness.

369. TheirHonours observed at [85], that it is the meaning of defamatory words which isrelevant to the fair comment defence in severalways including:

indetermining whether the comment is fair; in determining the issue of malice, towhich an absence of honest belief in the propositionstated is relevant; indetermining whether the plaintiff’s pleaded meaning was conveyed as astatement of fact or a statementof opinion; in determining whether theplaintiff’s pleaded meaning and the defendant’s comment relate tothe same allegation;in determining whether the comment is based on facts whichare true or protected by privilege, a question which cannot be answeredwithoutassessing what the comment means; and in determining whether the comment relatesto a matter of public interest, which alsodepends on its meaning.

370. Ineed to evaluate whether the s 18C conduct which I have found occurred, is to beexempted from unlawfulness by s 18D and not whetherMr Bolt’s imputationsare to be excused.
371. MsEatock contended that the conduct she complained of failed to meet therequirements of s 18D(c)(ii). She said that the requirementsfor a fair commentwere not satisfied. That was said to be so because the conduct was not based ontrue facts which were expresslystated, referred to or notorious, or sufficientto put the reader in a position to judge for him or herself how far the commentwaswell-founded. Ms Eatock relied on many statements in the Newspaper Articlessaid to be factually wrong or distorted to deny thefair comment defence and atthe same time to deny that reasonableness and good faith were established. Noissue was raised as tothe expression being Mr Bolt’s “genuinebelief” as required by s 18D(c)(ii).
372. Centralto the sting of the conduct which I have found was reasonably likely to offend,were the imputations conveyed that the peoplein the ‘trend’ hadchosen to identify as Aboriginal, that their choices were not genuine and thatthey were driven byulterior motives including career and political aspirations.I have earlier set out the words utilised in the Newspaper Articleswhich statedor implied a deliberate or conscious choice to identify (see [29] and [41]). The assertion that a choice was made toidentify as Aboriginal was made inrelation to most of the individuals identified in those articles. An issuearises as to whetherthose statements are statements of fact or are to becharacterised as comments.
373. Theimputation which conveys the choice said to have been made to identify asAboriginal persons must be regarded as a comment. The imputation is about thegroup of people in the ‘trend’. The reader would assume that MrBolt is not familiar withthe circumstances of all the people in the‘trend’ and thus not stating as a fact, in relation to each suchperson, thatthe person made a conscious choice to identify as an Aboriginalperson. However, the Newspaper Articles set out and examine a rangeof factsabout particular individuals. The reader will have seen that Mr Bolt collectedinformation about those individuals andbecause they are given as examples ofthe ‘trend’, the reader will have understood that Mr Bolt’scomments aboutthe people in the ‘trend’ is an extrapolation madefrom the facts stated about the identified individuals. Those factsinclude thestatements, usually expressly but sometimes impliedly made, that variousindividuals chose to identify as Aboriginal.It is those statements about thechoices made by the individuals which will be understood by the reader as thebasis for the commentconveyed in the imputation about the choice made by thepeople in the ‘trend’. If presented as facts, those statementsmadeof the individuals must be proven to be true for the imputation to be regardedas fair comment.
374. MrBolt and HWT contended that those statements were themselves comment and notpresented as facts. It was said that the statementswere deductions from facts,but the other facts from which those deductions were said to be made were notidentified and are notapparent.
375. InChannel Seven Adelaideat [35]-[36] Gummow, Hayne and Heydon JJ discussedthe law about distinguishing a comment from afact:

[35]Distinguishing fact and comment. InBrentWalker Group Plc v Time Out Ltd Bingham LJ said:

"The law is not primarily concerned to provide redress for those who are thesubject of disparaging expressions of opinion, and freedomof opinion is(subject to necessary restrictions) a basic democratic right. It is, however,plain that certain statements which mighton their face appear to be expressionsof opinion (as where, for example, a person is described as untrustworthy,unprincipled, lasciviousor cruel) contain within themselves defamatorysuggestions of a factual nature. Thus the law has developed the rule ... thatcommentmay only be defended as fair if it is comment onfacts (meaningtrue facts)stated or sufficiently indicated." (Emphasis added)

InGoldsbrough v John Fairfax & Sons Ltd,Jordan CJ said that forthe defence of fair comment to succeed, "it is essential that the whole of thewords in respect of which itis relied on should be comment". He continued:

"It must be indicated with reasonable clearness by the words themselves, takingthem in the context and the circumstances in whichthey were published, thatthey purport to be comment and not statements of fact; because statements offact, however fair, are notprotected by this defence. In other words, it mustappear that they are opinions stated by the writer or speaker about facts,which are at the same time presented to, or are in fact present to, theminds of the readers or listeners, as things distinct from the opinions, so thatit can be seen whether the opinions aresuch that they can fairly be formed uponthe facts." (Emphasis added)

A "discussion or comment" is to be distinguished from "the statement of afact". "It is not the mere form of words used that determineswhether it iscomment or not; a most explicit allegation of fact may be treated as comment ifit would be understood by the readersor hearers, not as an independentimputation, but as an inference from other facts stated." As the passages quotedfrom Bingham LJand Jordan CJ above illustrate, the distinction between fact andcomment is commonly expressed as equivalent to that between factand opinion.Cussen J described the primary meaning of "comment" as "something which is orcan reasonably be inferred to be a deduction,inference, conclusion, criticism,judgment, remark, observation, etc". It follows that a comment can be made bystating a value judgment,and can also be made by stating a fact if it is adeduction from other facts. Thus, in the words of Field J:

"[C]omment may sometimes consist in the statement of a fact, and may be held tobe comment if the fact so stated appears to be adeduction or conclusion come toby the speaker from other factsstated or referred to by him, orinthe common knowledge of the person speaking and those to whom the words areaddressed and from which his conclusion may be reasonably inferred. If astatement in words of a fact stands by itself naked, without reference,eitherexpressed or understood, to other antecedent or surrounding circumstancesnotorious to the speaker and to those to whom thewords are addressed, therewould be little, if any, room for the inference that it was understood otherwisethan as a bare statementof fact". (Emphasis added)

[36]The question of construction orcharacterisation turns on whether the ordinary reasonable "recipient of acommunication wouldunderstand that a statement of fact was being made, or thatan opinion was being offered" not "an exceptionally subtle" recipient,or onebringing to the task of "interpretation a subtlety and perspicacity well beyondthat reasonably to be expected of the ordinaryreader whom the defendant wasobviously aiming at".

(Original Emphasis. Footnotes omitted.)

376. Asthe above extract shows, a comment must “be indicated with reasonableclearness by the words themselves”. Where acomment is not clearlyidentified, there is a tendency for courts to hold the statement to be a fact:Gatley on Libel and Slander 11th ed paragraph12.13, citingAustralian Ocean Line Pty Ltd v Western Australia Newspapers[1985] FCA 37;(1985) 58 ALR 549 at 594 (Toohey J). To be a comment, the statement mustappear as an opinion, deduction or conclusion from facts “which areat thesame time presented to, or are in fact present to the minds of thereaders”. Gummow, Hayne and Heydon JJ inChannel Seven Adelaideplaced particular emphasis on that requirement.
377. Thestatements in question appear in an opinion piece, but they appear to bepresented, amongst other obvious facts (such as theancestry of the personconcerned), as facts about a particular individual. The statements are put indefinitive terms and not inevaluative terms – “she alsochose” (1A-4); “she too, has chosen” (1A-7); “she choseto be”(1A-15); “started to identify as Aboriginal when she was19” (1A-27); “also identified herself” (2A-25). Thestatements are not put as a deduction from other facts which are presented orreferred to in the articles. Whilst questionsof this kind are sometimesdifficult, in my view, the reader will have regarded the statements asassertions of fact and not comment.
378. Thefacts in question have not been proven to be true. To the contrary, in relationto most of the individuals concerned, the factsasserted in the NewspaperArticles that the people dealt with chose to identify as Aboriginal have beensubstantially proven to beuntrue. Nine of the eighteen individuals named inthe Newspaper Articles gave evidence. Each of them had been raised to identifyas Aboriginal and had identified as such since childhood. None of them made aconscious or deliberate choice to identify as Aboriginal.
379. Secondly,the imputations which I have found were conveyed, convey not only the making ofa choice but that the choice was made forthe purpose of facilitating careeropportunities and political activism. Again, the imputation is made of thepeople in the ‘trend’and it is to be understood as a commentbecause it is an extrapolation from observations made in relation to theindividuals dealtwith. Those observations about the individuals are alsopresented as comments. They would be understood as Mr Bolt commenting astowhat motivated the choice made by the individuals. The pattern involves Mr Boltpointing to various jobs or awards the individualshave obtained which areeither said or suggested to be reserved or intended for Aboriginal recipients. The jobs or awards obtainedare the implied motivations for the individualschoosing to identify as Aboriginal. Additionally, political activism is thesuggestedmotive for Ms Eatock and Ms Cole.
380. Someof the facts relied upon as the basis of the comments made about motivation havebeen proven to be untrue.
381. Inthe first article (1A-21), Mr Bolt wrote that Ms Heiss had won “plum jobsreserved for Aborigines” at each of threenamed institutions orenterprises. Each of those assertions was erroneous. Mr Bolt accepted thatthey were wrong because they wereexaggerated. One of the positions that MrBolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaidposition. The other two positions were not reserved for Aboriginal people butwere positions for which Aboriginal people were encouraged toapply.
382. MrBolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activistand academic” (1A-28). The comment is unsupportedby any factual basisand is erroneous. Ms Eatock has had only six to six and a half years ofemployment since 1977. In the caseof Ms Eatock, Mr Bolt also suggested in thefirst article that she identified as an Aboriginal for political motives afterattendinga political rally (1A-27). That statement is untrue. Ms Eatockrecognised herself to be an Aboriginal person from when she waseight years oldwhilst still at school and did not do so for political reasons.
383. Further,Mr Bolt intimated that Ms Cole chose to identify as an Aboriginal motivated byaccess to “political and career clout”(1A-4). This is a comment. The facts upon which the comment is based are not stated, referred to ornotorious.
384. Thedeficiencies to which I have referred to so far, are material and constitute asignificant distortion of the facts upon whicha central part of the offensiveimputations were based. On the basis of those deficiencies, I am satisfied thatthe offensive imputationwas not a fair comment and that s 18D(c)(ii) is notavailable to exempt the offensive conduct from being rendered unlawful.
385. Thatconclusion is also reinforced by some of the other deficiencies relied upon byMs Eatock, which I shall identify shortly. MsEatock relies upon thedeficiencies I have dealt with already and other deficiencies to contend that,even if the conduct was faircomment, it was not done reasonably and in goodfaith. Ms Eatock’s contentions about unreasonableness and lack of goodfaithare based on two aspects of Mr Bolt’s conduct. Firstly, what shesays Mr Bolt did, that is, what he wrote. Secondly, Ms Eatockrelies upon whatshe says Mr Bolt should have done but failed to do. In both respects, Ms Eatockcontends that the conduct was notreasonable nor in good faith.
386. Thedeficiencies I have relied upon in arriving at the conclusion that the s 18Cconduct was not fair comment are about deficienciesin truth. The lack of truthin conduct which contravenes s 18C, seems to me to have an obvious bearing onwhether the conduct shouldbe exempted from unlawfulness by s 18D.
387. Theincursion made into freedom of expression by defamation law is largely basedupon a refusal to excuse an absence of truth orfalsity in a defamatorystatement. Even where a lack of complete truth may be excused by the lawbecause of a higher than usualvalue placed on the freedom of expressioninvolved, the law requires that the publisher of defamatory statementsdemonstrate thatreasonable measures were taken to adhere to the value of truthand the protection of reputation. Beyond honesty of purpose, thosemeasuresinclude the publisher having taken reasonable steps to verify the accuracy ofstatements made and where practicable andnecessary, seek responses from thosewhose reputations are at stake:Langeat 574 (qualified privilege forgovernmental and political communications); and seeReynolds v TimesNewspapers Limited[2001] 2 AC 127 at 205 (Lord Nicholls of Birkenhead)(qualified privilege for political information);Morgan v John Fairfax andSons Limited (No 2)(1991) 23 NSWLR 374 at 388 (Hunt A-JA) (statutoryqualified privilege).
388. Inthe context of statutory qualified privilege, the Privy Council said inAustin v Mirror Newspapers Ltd(1985) 3 NSWLR 354 at364-365:

There will of course be cases in which despite allreasonable care the journalist gets the facts wrong, but a member of the publicis at least entitled to expect that a journalist will take reasonable care toget his facts right before he launches an attack uponhim in a daily newspaper.If on inquiry it is found that the facts are not true and that reasonable carehas not been taken to establishthem courts should be very slow to hold that thenewspaper is protected by statutory qualified privilege. The public deserve tobeprotected against irresponsible journalism. The defence of comment providessuch protection by insisting upon the newspaper establishingthe substantialtruth of the facts upon which it comments.

389. Themajority of the Supreme Court of Canada said inChurch of Scientologyat[137] in evaluating the impact of defamation law on freedom ofexpression:

Surely it is not requiring too much of individuals thatthey ascertain the truth of the allegations they publish. The law of defamationprovides for the defences of fair comment and of qualified privilege inappropriate cases. Those who publish statements should assumea reasonablelevel of responsibility.

In a passage relied on by Callinan J inLenah Game Meats at [341], themajority inChurch of Scientology said (at [106]) that defamatorystatements were very tenuously related to the core values which underlie freedomof expression.

390. Theprotection of reputation through defamation law and the protection sought to beprovided by s 18C are both infused with the needto protect social standing andpublic esteem. That feature of s 18C was emphasised by Lee J inBrophoat [138]. Just as an adherence to the value of truth protects reputation, sotoo will it serve to protect the values which s 18Cseeks to foster. Theprotection of reputation and the protection of people from offensive behaviourbased on race are both conduciveto the public good:Scully at [239](Hely J). Untruths are at the heart of racial prejudice and intolerance. Whennot misused, truth will not generally causethe kind of offence s 18C isconcerned with. Untruths generally will and regularly do. The more a commentmade on the basis ofasserted facts is based on true facts rather than untruths,the more likely it is that any offence, insult, humiliation or intimidationarising from the comment will be minimised. A conscientious approach to freedomof expression is required by s 18D. Expressionsmade on the basis of untrue ordistorted facts or without due care to avoid distortions of the truth are notlikely to involve aconscientious approach to the task of honouring the valuesasserted by the RDA.
391. Thereis a further element to the conduct which I consider to be both significant tothe sting of the imputations conveyed and alsosignificant in terms of MrBolt’s conduct. The asserted lack of genuineness in the Aboriginalidentification of the peoplein the ‘trend’ is clearly an imputationwhich is conveyed as a comment. The comment is made by reference to theexamplesgiven. There is, as I have earlier found, an impression conveyed of adeficiency of Aboriginality which is largely made by referenceto a biologicalexamination based upon the skin colour and biological descent of each of theindividuals examined.
392. Nineof those individuals gave evidence. To some extent, the biological examinationwas shown to be factually erroneous. However,the absence of any significantcultural reference in the Newspaper Articles to the Aboriginal culturalupbringing of the individualsdealt with, leaves an erroneous impression. As Ihave found, each of the nine individuals who gave evidence have either alwaysidentifiedas Aboriginal or have done so since their childhood. They all had acultural upbringing which raised them to identify as Aboriginal. The fact thatthis is not disclosed to the reader of the Newspaper Articles in any meaningfulway creates a distorted view of thecircumstance in which the individualsexemplified in those articles identify as Aboriginal.
393. MsEatock argued that relevant facts upon which a comment is based need to beincluded in a publication and that here, referenceto the Aboriginal culturalupbringing of the individuals identified in the Newspaper Articles was notgiven. There is support forthe proposition that an omission of relevant factsupon which a comment is based negates the fair comment defence. InPetersonv Advertiser Newspapers[1995] SASC 5018;(1995) 64 SASR 152, Olsson J at 193said:

To establish the defence of fair comment the requirement isnot merely that the facts stated are true. Rather, it is that they betruly stated:Sutherland v Stopes[1925] AC 47 at 62-3,Thompson v Truth & Sportsman Ltd (No 4)[1932] NSWStRp 86;(1932) 34 SR (NSW) 21 at25.

The omission of a series of relevant facts, having the result that thefactual scenario represented in a publication is quite unbalancedandpotentially misleading to the average reader, results in a situation that thefacts have not, relevantly, truly been stated.

[Original emphasis]

See further Mullighan J at 201; andPopovicat [272] (Gillard AJA,with whom Winneke ACJ and Warren AJA agreed).

394. MrBolt and HWT argued that it is legitimate to frame a discussion about race byreference to biological descent alone. On an objectiveview, based on what Ihave found to be the conventional understanding of Aboriginal identity, culturalfactors are clearly relevantto a discussion about Aboriginal identity. However, I accept the contention of Mr Bolt and HWT that an opinion about racemay beexpressed by reference to biological descent alone. The personexpressing such a view may subjectively regard cultural referencesto beirrelevant. That subjective view should not deny the opinion the cover of afair comment defence, so long as an average readercan see that the opinion isbased on the asserted irrelevance of cultural reference and thus judge theopinion for what it is.
395. However,the actual circumstances of this case are somewhat different. Mr Bolt and HWTcontended that a cultural reference was givenby the Newspaper Articles. MrBolt’s evidence was that he accepted that cultural upbringing was both apart of the legal definitionof “Aboriginal” and also a part of thecommon understanding of race. Mr Bolt did not consider cultural reference tobeirrelevant to a discussion about race. Mr Bolt relied upon statements in theNewspaper Articles such as “raised by herEnglish-Jewish mother” asdemonstrating his inclusion of a cultural reference.
396. Whenthe Newspaper Articles are analysed, what is apparent is that the individualswho are examined are dealt with in one of twoways. The first is where nocultural reference is made at all and the individual’s identification isexamined purely by biologicalconsiderations, either through ancestry, skincolour or a combination of the two. Alternatively, both a biological and aculturalreference (usually oblique) are made in relation to the individual, butin every case the cultural reference suggests a non-Aboriginalculturalupbringing. Thus, in the first article:
     • “raised byher English-Jewish mother” (Cole) (1A-2);
     • “Culturally,she’s more European” (Sax) (1A-6);
     • “Yet hermother, who raised her in industrial Wollongong, is in fact boringlyEnglish” (Winch) (1A-11);
     • “she wasraised in Sydney and educated at St Claire’s Catholic College”(Heiss) (1A-19);
     • “from theage of 10 was a boarder at a Victorian Catholic school” (Dodson)(1A-32);
     • “havingbeen raised by her white mother” (Behrendt) (online version of 1A);
     • “raised byher white mother” (Behrendt) (2A-20); and
     • “raised byher English mother” (Cole) (2A-24).
397. Thus,the reader is presented with some cultural references. The reader is not likelyto assume that cultural reference was regardedby Mr Bolt as irrelevant to hisopinion about racial identification. To the contrary, the reader is presentedwith an opinion whichappears to be based, at least in part, upon culturalreferences as an indicator of race. The reader would presume that as ajournalist,Mr Bolt would have undertaken research and presented relevant facts.The fact that some research about cultural background has beenundertaken isevident. In that context, the reader would understand the assertion conveyedthat the individuals are not sufficientlyAboriginal to be genuinelyself-identifying as Aboriginal, to be based upon Mr Bolt’s research ofboth biological and culturalconsiderations.
398. Inpart, the cultural references where given, were erroneous. But morefundamentally, the Aboriginal cultural upbringing which wasavailable to bepresented at least in relation to nine of the eighteen individuals dealt with bythe Newspaper Articles, was notincluded. Those facts were relevant, in thecontext of a comment in part based upon cultural considerations. Their omissionmeantthat the facts were not truly stated. For that reason also, the offensiveimputation was not a fair comment.
399. Theomission of those facts is also relevant to the issue of reasonableness and goodfaith. The omission occurred in circumstanceswhere the facts were likely to beeither publicly available or readily obtainable, including by Mr Bolt contactingthe individualsconcerned. Mr Bolt presented evidence of having undertaken someonline research about the individuals, but it was not evidence uponwhich Icould be satisfied that a diligent attempt had been made to make reasonableinquiries.
400. DrAtkinson was raised in an Aboriginal fringe camp on the ancestral lands of hisAboriginal ancestors. Mr Clark was raised as Aboriginalin a well-knownAboriginal community in Victoria. Both those witnesses and others, gaveevidence that their life story and identificationwas available on the internet.All of Ms Eatock and her witnesses gave evidence that Mr Bolt had failed tocontact them to ascertaintheir circumstances and that if contacted they wouldhave told Mr Bolt of their circumstances as described in their evidence. InMrClark’s case, he was also well known to Mr Bolt. Mr Bolt had writtenabout him for over a decade.
401. Thereis other evidence which also suggests to me that Mr Bolt was not particularlyinterested in including reference to the Aboriginalcultural upbringing of theindividuals he wrote about.
402. MrBolt wrote that Ms Cole was raised by her “English-Jewish” or“English” mother (1A-2; 2A-24). That statementis factuallyinaccurate because Ms Cole’s Aboriginal grandmother also raised Ms Coleand was highly influential in Ms Cole’sidentification as an Aboriginal. He wrote that Ms Cole “rarely saw her part-Aboriginal father”(1A-3). That statementis factually incorrect. Ms Cole’s father wasAboriginal and had been a part of her life until she was six years old. Ms Colelater lived with her father for a year whilst growing up.
403. MrBolt’s documentary source for the statements he made in the articles abouthow Ms Cole was raised, expressly referred tothe involvement of Ms Cole’sAboriginal grandmother in Ms Cole’s upbringing. It quoted Ms Coleattributing to her grandmotherthe fact that she felt “staunchly proud andstrong” about being an Aboriginal person. Mr Bolt disingenuouslyexplainedthe omission as due to a lack of space.
404. Healso relied on that reason for the lack of cultural reference given in relationto Prof Behrendt. The factual assertions madethat Prof Behrendt was“raised by her white mother” (2A-20) were also erroneous. ProfBehrendt’s Aboriginal fatherdid not separate from her mother until ProfBehrendt was about 15 years old. Her father was always part of her familyduring herupbringing, even after that separation.
405. Inmy view, Mr Bolt was intent on arguing a case. He sought to do so persuasively.It would have been highly inconvenient to thecase for which Mr Bolt was arguingfor him to have set out facts demonstrating that the individuals whom he wroteabout had beenraised with an Aboriginal identity and enculturated as Aboriginalpeople. Those facts would have substantially undermined both theassertion thatthe individuals had made a choice to identify as Aboriginal and that they werenot sufficiently Aboriginal to be genuinelyso identifying. The way in whichthe Newspaper Articles emphasised the non-Aboriginal ancestry of each personserves to confirmmy view. That view is further confirmed by factual errorsmade which served to belittle the Aboriginal connection of a number oftheindividuals dealt with, in circumstances where Mr Bolt failed to provide asatisfactory explanation for the error in question.
406. MrBolt said of Wayne and Graham Atkinson that they were “Aboriginal becausetheir Indian great-grandfather married a part-Aboriginalwoman” (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that “his right tocall himself Aboriginal restson little more than the fact that his Indiangreat-grandfather married a part-Aboriginal woman” (A2-28). The factsgiven byMr Bolt and the comment made upon them are grossly incorrect. TheAtkinsons’ parents are both Aboriginal as are all four oftheirgrandparents and all of their great grandparents other than one who is theIndian great grandfather that Mr Bolt referred toin the article. Mr Bolt didnot seek to deny the evidence of Aboriginal ancestry given by the Atkinsons butinsisted that theirancestry was accurately conveyed by the statements made andextracted above.
407. Thedocumentary source upon which Mr Bolt relied for his statement that Ms Eatockonly started to identify as Aboriginal “whenshe was 19 after attending apolitical rally” (1A-27), was in evidence. That source made an incorrectassertion as to whenMs Eatock began “publicly” identifying asAboriginal. Mr Bolt repeated the error as to age (for which no complaint ismade) but left out “publicly”. The absence of that word created thefalse impression that Ms Eatock had not identifiedas an Aboriginal personbefore she was 19 years old and only upon attending a political meeting. In hisevidence, Mr Bolt was unimpressivelydismissive of the significance of thatomission.
408. MsEatock also relied on the provocative and inflammatory language utilised in theNewspaper Articles and its lack of restraint asdemonstrating an absence ofreasonableness and good faith. She also relied upon a number of what weredescribed as gratuitous statementsin the Newspaper Articles.
409. Whetheroffensive language makes a valid contribution to free and informed debate is amatter upon which members of the High Courthave taken different views. In thecontext of political discourse of the kind protected by the impliedconstitutional freedom ofcommunication on government and political matters, themajority inColeman viewed insult and invective as part and parcel ofpolitical communications: [81] and [105] (McHugh J); [197] and [199] (Gummow andHayne JJ); and [239] (Kirby J). The contribution made by insulting words tofree and informed debate was doubted by Callinan J at[299] and rejected byHeydon J at [330], [332] and [333].
410. Inmy view, even outside of political discourse, freedom of expression is notmerely a freedom to speak inoffensively:R (on the application of Gaunt) vOffice of Communications (OFCOM)[2011] EWCA Civ 692at[22] (LordNeuberger MR). But there are areas of discourse where incivility is lessacceptable, including because it is more damagingto social harmony. Additionally, a distinction may be drawn between harsh language directed at aperson and harsh language directedat a person’s opinion:R v Officeat [27] (Lord Neuberger MR);Catch the Fireat [34] (Nettle JA).
411. InBrophoat [69], French J recognised that freedom of speech is not limitedto expression which is polite or inoffensive. However, the minimisationof harmwhich French J spoke of involves a restraint upon unnecessarilyinflammatory and provocative language and gratuitous insults. The languageutilised should have a legitimate purpose in the communication of a point ofview and not simply be directed to disparagingthose to whom offence has beencaused:Tobenat [77] (Kiefel J).
412. Iaccept that the language utilised in the Newspaper Articles was inflammatory andprovocative. The use of mockery and derisionwas extensive. The tone was oftencynical. There is no doubt that the Newspaper Articles were designed to stingthe people in the‘trend’ and in particular those identifiedtherein. The language was not simply colourful, as Mr Bolt’s counseldescribed it. It was language chosen by Mr Bolt in writing articles intended toconfront those that he accused with “the consequencesof theiractions” and done with the expectation that they would be both“offended” and “upset” andin the hope that they wouldbe “remorseful” (the words quoted are Mr Bolt’s).
413. Ialso agree that the Newspaper Articles contain gratuitous references. Theemphasis on colour was gratuitous. References madeto Mr McMillan’ssexuality were further obvious examples. There were also gratuitous referencesto Mr McMillan pretendingto be a “victim”, which are based on aselective misrepresentation of what Mr McMillan actually said (2A-11 to 15). Iaccept that much of the mockery, derision and gratuitous asides were directed atnamed individuals but I reject the contentionof Mr Bolt and HWT that the impactis to be regarded as confined, in each case, to the person impugned. The toneand gratuitousnature of both the specific and general comments made contributedto the disrespectful manner in which the people in the ‘trend’weredealt with and contributed to the intimidatory effect of the articles.
414. Theextent of mockery and inflammatory language utilised by Mr Bolt to disparagemany of the individuals which the Newspaper Articlesdeal with, far exceededthat which was necessary to make Mr Bolt’s point. The treatment of MrMcMillan and Mr Mellor are perhapsthe most potent examples. The articles arereplete with comments and a derisive tone thathave little or nolegitimate forensic purpose to the argument propounded and in the context of thevalues which the RDA seeks to protectare not justified, including by anasserted need to amuse or entertain. In terms of the language utilised, I havein mind the followingexamples (each of which needs to be read in context, theemphasis in italics is mine):
     • “political Aborigine” (1A-1);
     • “professionalAborigine” (1A-14), (2A-20);
     • “thechoice to be Aboriginal can seem almostarbitrary andintenselypolitical” (1A-9);
     • “anofficial Aborigine and hiredas such” (1A-13);
     • “How muchmore of thismadness can you take?” (1A-18);
     • “self-obsessed”(1A-23);
     • “it isalso divisive, feeding a new movement to stresspointless or eveninvented racial differences” (1A-24);
     • “trivialinflections of race” (1A-34);
     • “howcomic” (1A-35);
     • “blacker-thanthou” (1A-37);
     • “toinventsuchracistandtrivial excuses todivide” (1A-38);
     • “scuffling at the trough” (2A-8);
     • “is that aman’s voice I now hear bellowing: ‘And I’manAboriginalwoman’(2A-8) (original emphasis inbold);
     • “you’dswear this isfrom a satire” (2A-16);
     • “surrendermy reason andpretend white is really black, just to aid someartist’sself-actualisation therapy” (2A-32);
     • “That wayliesmadness, wheretruth is just a whim and words meannothing” (2A-33);
     • “aprivileged white Aboriginesnaffles that extra” (2A-36);
     • “Seekingpowerand reassurance in a racial identity is not justweak(2A-42);
     • ....aborrowing of other people’s glories” (2A-42); and
     • “At itsworst,it’s them against us” (2A-46);
415. Inrelation to the sub-group constituted by the individuals named in the NewspaperArticles, the language, tone and gratuitous asidescontained in the NewspaperArticles were likely to have contributed to the likely offence, insult andhumiliation of the people inthat group. In relation to the broader group, Ihave found that the strong language utilised by the Newspaper Articles and thedisrespectfulmanner in which those articles dealt with those identified willhave heightened the intimadatory impact of the conduct. I regardthat impact asa particularly pernicious aspect of the s 18C conduct in the context of what theRDA seeks to achieve. That youngAboriginal persons or others withvulnerability in relation to their identity, may be apprehensive to identify asAboriginal or publiclyidentify as Aboriginal, as a result of witnessing theferocity of Mr Bolt’s attack on the individuals dealt with in thearticles,is significant to my conclusion that in writing the articles, Mr Boltfailed to honour the values asserted by the RDA.
416. MrBolt understood that he was writing about the identity of and a very personalaspect of the people he wrote about. He was extensivelycross-examined as towhether he had an appreciation at the time he wrote the Newspaper Articles, thatthe articles or parts thereofwould cause offence to the individuals dealt withby them. Mr Bolt acknowledged that he had appreciated offence would likely becaused to many of the named individuals. At times his acknowledgment wasqualified. He said he perceived the offence would havearisen out of the factthat he was contradicting or disagreeing with the persons in question. In myview, Mr Bolt was acutely awarethat both the content and tone of the articleswere reasonably likely to offend the people he identified in the articles, andnotsimply because they would perceive him to be contradicting them.
417. Thefollowing exchange in cross-examination is illustrative of both that awarenessand the underlying rationale for the vigorousapproach taken by Mr Bolt:

Do you agree, Mr Bolt, that where a person has made a heartfelt anda genuine honest identification of identity that to say that theidentificationis a self-obsession is likely to cause that person offence?

It’s the public nature of it. Once you enter the public arena you mustbe prepared for debate, for disagreement and disagreementcan be bruisingit’s true. If they were private individuals privately identifying I wouldnot pick them off the street andsay, “Look at this person, this anonymousperson, ha, ha, ha”.

By a later answer, Mr Bolt agreed (without qualification) that he understoodoffence would likely to be caused by the accusationshe made. His answer abovereveals Mr Bolt’s view that the people he criticised were in the publicarena and therefore ‘fairgame’. Given that Mr Bolt denied anyintent to convey the imputations which I have found were conveyed, the publicbehaviourof the individuals that warranted the attack upon them seems to besimply the fact that they have publicly identified as Aboriginal. What MrBolt’s answer also reveals is a lack of appreciation by him of thereasonably likely impact his words would have uponthe wider community ofAboriginal people of mixed descent including those that I have described asyoung or vulnerable.

418. MsEatock also relied upon a number of principles taken from a “Statement ofPrinciples” issued by the Australian PressCouncil. Those principlesinclude the following:
     • Publicationsshould take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately misleador misinform readers either by omission orcommission.
     • Whereindividuals or groups are a major focus of news reports or commentary, thepublication should ensure fairness and balance inthe original article. Failingthat, it should provide a reasonable and swift opportunity for a balancingresponse in an appropriatesection of the publication.
     • News and commentshould be presented honestly and fairly, and with respect for the privacy andsensibilities of individuals. However,the right to privacy is not to beinterpreted as preventing publication of matters of public record or obvious orsignificant publicinterest. Rumour and unconfirmed reports should beidentified as such.
     • Publications arefree to advocate their own views and publish the bylined opinions of others, aslong as readers can recognise whatis fact and what is opinion. Relevant factsshould not be misrepresented or suppressed, headlines and captions should fairlyreflectthe tenor of an article and readers should be advised of anymanipulation of images and potential conflicts of interest.
     • Publicationshave a wide discretion in publishing material, but they should balance thepublic interest with the sensibilities oftheir readers, particularly when thematerial, such as photographs, could reasonably be expected to causeoffence.
     • Publicationsshould not place any gratuitous emphasis on the race, religion, nationality,colour, country of origin, gender, sexualorientation, marital status,disability, illness, or age of an individual or group. Where it is relevant andin the public interest,publications may report and express opinions in theseareas.
419. MsEatock contended and I accept, that the Australian Press Council’sPrinciples can be regarded as an industry standard. There was evidence thatthose principles are consistent with those adopted by HWT. She argued that thefailure of Mr Bolt and HWTto comply with those principles is demonstrative of alack of reasonableness and good faith. I need not assess the conduct in thatway. It is however of some comfort to the ultimate conclusions I have reachedto note that the normative standards of the industryin question recognise thatfreedom of expression is to be utilised fairly and with reasonablesensitivity.
420. Incoming to the view I have arrived at in relation to the reasonableness and goodfaith of Mr Bolt’s conduct, I have takeninto account the possible degreeof harm that I regard that conduct may have caused. As Lee J said inBrophoat [136]:

Such harm, in the context of the Act, would be theextent to which that part of the community which consisted of persons who heldracially–based views destructive of social cohesion, or personssusceptible to the formation of such opinions, may be reinforced,encouraged oremboldened in such attitudes by the publication...

421. MrBolt is a journalist of very significant public standing and influence. Hisevidence suggests that his columns are popular andwidely read. They will havebeen read by persons inclined to regard Mr Bolt as speaking with authority andknowledge. They willlikely have been read by some persons susceptible toracial stereotyping and the formation of racially prejudicial views. I havenodoubt that some people will have read the Newspaper Articles and accepted theimputations conveyed to the ordinary reader as trueand correct and thatracially prejudiced views have been “reinforced, encouraged oremboldened”.
422. Ihave also taken into account what I regard to be the serious nature of theoffensive conduct involved and its reasonably likelyconsequences upon theAboriginal people concerned. Beyond the hurt and insult involved, I have alsofound that the conduct was reasonablylikely to have had an intimidatory effecton some people.
423. Ihave taken into account the value of freedom of expression and the silencingconsequences of a finding of contravention againstMr Bolt and HWT. Given theseriousness of the conduct involved, the silencing consequence appears to me tobe justified. The intrusioninto freedom of expression is of no greatermagnitude than that which would have been imposed by the law of defamation ifthe conductin question and its impact upon the reputations of many of theidentified individuals had been tested against its compliance withthat law. Additionally, I take into account that the conduct was directed at an expressionof identity. An expression of identityis itself an expression that freedom ofexpression serves to protect. That expression also deserves to be consideredand valued. Identity has a strong connection to one of the pillars of freedomof expression – “self-autonomy stems in large partfrom one’sability to articulate and nurture an identity derived from membership in acultural or religious group”:Keegstraat 763.
424. Evenif I had been satisfied that the s 18C conduct was capable of being faircomment, I would not have been satisfied that it wassaid or done by Mr Boltreasonably and in good faith.
425. Inmy view, Mr Bolt’s conduct involved a lack of good faith. What Mr Boltdid and what he failed to do, did not evince a conscientiousapproach toadvancing freedom of expression in a way designed to honour the values assertedby the RDA. Insufficient care and diligencewas taken to minimise the offence,insult, humiliation and intimidation suffered by the people likely to beaffected by the conductand insufficient care and diligence was applied to guardagainst the offensive conduct reinforcing, encouraging or emboldening racialprejudice. The lack of care and diligence is demonstrated by the inclusion inthe Newspaper Articles of the untruthful facts andthe distortion of the truthwhich I have identified, together with the derisive tone, the provocative andinflammatory language andthe inclusion of gratuitous asides. For those reasonsI am positively satisfied that Mr Bolt’s conduct lacked objective goodfaith.
426. Thereis, as French J recognised inBrophoat [103], a potential for overlap inthe assessment of reasonableness and of good faith. Others judges have dealtwith reasonablenessand good faith as a composite expression:Tobenat[44] (Carr J) and at [159], [161] (Allsop J);Bropho at[173](Carr J). In analysing reasonableness on the one hand, and good faith on theother, Lee J inBropho at [136] and [141] considered that in both casesregard had to be given to the degree of harm likely to be caused to theprotectiveobjectives of the RDA.
427. Iagree that there is a very significant overlap between good faith, objectivelyassessed, and reasonableness. That is particularlyso because each assessmentrequires that the conduct in question be examined and assessed against itsimpact on the protective objectivesof the RDA. It is an assessment which inboth cases raises questions of proportionality:Bropho at [139] (Lee J). The lack of care and diligence which I have found in the context of the harmlikely to have been caused, leadsme to the conclusion that the expressiveconduct involved was not said or done reasonably.
428. WhilstMr Bolt and HWT focused their submissions on demonstrating rationality to the“matter of public interest”, I verymuch doubt that that approach iscorrect in relation to s 18D(c)(i) or (ii). It is a necessary element ofthe fair comment defenceat common law, that a report or comment be on an eventor matter of public interest. In my view that is the reason for the inclusionof that element into s 18D(c)(i) and (ii). That element is not there as areference point from which to assess the rationality betweenthe s 18C conductand the matter of public interest. It is there because it is one of therequirements for a fair report or comment. I appreciate that the observationsmade by French J inBropho at [81] may suggest the contrary position,although I note that at [82], his Honour indicated that he did not intend to puta definitiveview about the examples which he offered.
429. Differentconsiderations apply in relation to s 18D(b), where the relationship between theoffensive conduct and the genuine purpose“in” the public interestis a matter of more obvious relevance. If I am wrong and rationality to thematter “of”public interest is an additional relevant considerationon the question of reasonableness, I would adopt the same approach I haveapplied in relation to s 18D(b). The existence of some rationality does notchange my conclusion that the s 18C conduct was notdone reasonably in pursuanceof the making of a fair comment.

Section 18D(b)

430. MrBolt and HWT also rely upon s 18D(b) as a source of exemption. To be enlivened,the provision requires that the offending conductbe done reasonably and in goodfaith in the course of an expressive activity (statement, publication,discussion or debate) madeor held for a genuine purpose in the public interest.The provision assumes that genuine academic, artistic or scientific pursuitsarein the public interest and leaves open the possibility of other pursuits beingencompassed within its scope, but only if thosepursuits are genuine and in thepublic interest.
431. Thepursuit relied upon by Mr Bolt and HWT was described in the Amended Defence asMr Bolt expressing his genuinely held view inrelation to a matter of publicinterest. The matter of public interest was identified in the same terms as Ihave recorded at [361]above.That is, drawing attention to the‘trend’ and its alleged undesirable social consequences ofemphasising racial differencesrather than common humanity. A second matter ofpublic interest was relied upon in final submissions and identified as a“sub-theme”of the matter of public interest raised by the‘trend’. This was that the ‘trend’ has the undesirableconsequenceof operating to the disadvantage of more deserving members of theAboriginal community in Australia.
432. ForHWT, the “genuine purpose” was contended to be the purpose ofpublishing the Newspaper Articles to enable Mr Boltto draw attention to the‘trend’ he had perceived.
433. Thereseems to me to be a difficulty in the approach taken by Mr Bolt and HWT becauseof its focus upon a matter “of”public interest rather than agenuine purpose “in” the public interest. The provision requiresthat a genuine purpose“in” the public interest be pursued, notsimply a matter “of” public interest. A matter of public interestis broadly defined as a matter of interest or concern to people at large:London Artists Limited v Littler[1969] 2 QB 375, 391 (Lord Denning MR). It is a very broad field. To say that a discussion is “in” thepublic interestbecause it raises a matter “of” public interest isto say little more than that public discussion is in the public interestor, inother words, that the public exercise of freedom of expression is in the publicinterest. I doubt that this is what s 18D(b)has in mind by its requirementthat a genuine purpose in the public interest is being pursued. On that view, s18C (c) is renderedlargely superfluous.
434. Section18D(b) seems to be concerned to excuse conduct done reasonably and in good faithin the pursuit of a public benefit throughthe exercise of freedom ofexpression. The examples of purpose given in the provision (academic, artisticor scientific) reinforcethe point that an additional pursuit of public benefit,beyond freedom of expression, is contemplated by the provision. What theprovision is concerned with is the public interest use to which the freedom ofexpression is exercised and not merely freedom ofexpression itself.
435. The“genuine purpose” to which s 18D(b) refers does not appear to me tobe a reference to the subjective purpose of themaker or publisher. What theprovision calls for is the pursuance through a statement, publication,discussion or debate of a purposewhich is genuinely in the public interest. That calls for an objective consideration of whether the purpose is genuinely inthepublic interest.
436. Thatthe matters relied upon by Mr Bolt and HWT were matters of public interest wasnot contested. Nor was it contested that MrBolt was genuine in asserting hisviews on those matters. Other than putting evidence before me which I accept,that the generalquestion of Aboriginal identity has been a matter of publicinterest, no submission was made by Mr Bolt or HWT as to why drawingattentionto the ‘trend’ identified by Mr Bolt and its consequences, is ofpublic benefit and thus a genuine purposein the public interest. Thesubmission focused upon the matters being matters of public interest, not whydrawing attention to thematters was genuinely in the public interest.
437. MsEatock did not raise the construction issue I have just raised and conceded thatthe pursuance of the public interest raised bythe Amended Defence was a genuinepurpose in the public interest. Given the way in which this issue was dealtwith by the parties,I will proceed on the basis that drawing attention to thesocially undesirable racially divisive consequences of the ‘trend’is a genuine purpose in the public interest. I will deal separately with thesecond matter raised by the “sub-theme”.
438. MrBolt and HWT contended that the requirements of reasonableness and genuinepurpose were satisfied because the Newspaper Articleswere rationally related tothe matter of public interest sought to be advanced by Mr Bolt. However, forreasons I have already discussed,so far as the issue of rationality isconcerned, the question must be whether the s 18C conduct and, relevantly, theimputationswhich I have found were conveyed, are rationally related to thegenuine purpose in the public interest relied upon.
439. Theissue of rationality is not however the only consideration in assessingreasonableness and good faith, and I disagree with thecontention of Mr Bolt andHWT that it is. For the reasons already canvassed in relation to s 18D(c)(ii)the pursuance of an expressiveactivity reasonably and in good faith is also tobe assessed by reference to the extent of harm done to the protective objectivesof the RDA by the expressive conduct and whether a conscientious approach wastaken which gave sufficient regard to those objectivesincluding the minimisingof the potential harm.
440. Theexpressive activity relied upon by Mr Bolt and HWT for s 18D(b) is the same asthat for s 18D(c)(ii). The concession made thatit involves the pursuance of agenuine purpose in the public interest does not alter the relative value which Ihave ascribed toit in the balancing process. No particular importance to thepublic interest purpose was sought to be established. For the purposesof boths 18D(b) and (c)(ii), the expressive activity relied upon is an act of freedomof expression relating to the same matterof public interest. The conduct whichled to, and is encompassed by, the expressive activity is the same. The lack ofcare anddiligence which I have found is the same. My conclusion that theactivity was not pursued reasonably and in good faith is the sameand notaltered by a consideration of the extent of the rational connection between thes 18C conduct and the public interest purposerelied upon.
441. Iwill explain my views as to the extent of the rational connection I perceivethere to be.
442. Thesocially undesirable ‘trend’ put forward as the “genuinepurpose” by Mr Bolt and HWT involves a widerissue than that raised by theimputations which I have found were conveyed. Accepting that one of MrBolt’s motivations wasto draw attention to a ‘trend’ whichemphasised “racial differences, rather than common humanity”,whetherthe participants in the ‘trend’ had genuinely chosen toidentify as Aboriginal or not, the same socially undesirableconsequence wouldfollow. In other words, Mr Bolt could have made his point without attacking thebasis upon which the participantsin the ‘trend’ identified asAboriginal and without attributing to them ulterior motives for soidentifying.
443. Drawingattention to the basis upon which the participants so identified, may not havebeen irrelevant to the wider subject matter,but it was certainly not essentialto it and is best described as being of tangential relevance. In terms ofrationality, I acceptthere is a faintly rational relationship between thepublic interest purpose relied upon and the imputations, but the extent to whichthat relation contributes to the reasonableness of the conduct is notsignificant.
444. The“sub-theme” relied upon by Mr Bolt and HWT does not lead me to adifferent view as to whether the s 18D(b) exemptionis established. Thiscontention raised a different undesirable social consequence which bears norelation to that which was pleaded. As compared to that which was pleaded, thetopic has moved from the desirability of racially harmonious relations to aninjusticein the allocation of opportunities to Aboriginal people. That is anentirely different “genuine purpose”, which wasraised for the firsttime in the closing submissions of Mr Bolt and HWT having not being relied uponby Mr Bolt in his evidence-in-chief,despite that evidence addressing MrBolt’s purpose for writing the articles. It was not conceded as a“genuine purpose”by Ms Eatock. However, Ms Eatock did notseriously resist reliance being placed upon this matter, despite it beingoutside of thepleadings and raised as late as it was.
445. Iaccept that a rational relationship exists between asserting that a group ofadvantaged Aboriginal people have been the recipientsof awards andopportunities for Aboriginal people and the assertion that there needs to be amore just allocation of awards and opportunitiesto Aboriginal people so thatless advantaged Aboriginal people become recipients. But it is neither necessarynor essential to thelatter assertion to assert that the advantaged recipientsare not genuinely Aboriginal.
446. Anapproach rationally related to the making of a public interest point aboutinjustice in the distribution of opportunities to Aboriginalpeople would havedirected attention to demonstrating that all the people in the‘trend’ (not merely some) are advantaged,rather than that they areall of mixed biological heritage and of pale skin. A rationally relatedapproach would have directed primaryattention to the policies which served tocreate the alleged unjust distribution and the people responsible for them,rather thanon the choice made by the recipients of the opportunities toidentify as Aboriginal people. The extent to which the public interestmatterrelied upon and the imputations bear a rational relationship does notsignificantly contribute to the reasonableness of theconduct inquestion.

Section 18D and the position of HWT

447. Iam not satisfied that HWT has established that in relation to its act ofpublication, the s 18C conduct was done reasonably andin good faith.
448. Noevidence was led by HWT as to its conduct. HWT relied upon its long history ofpublishing articles, including opinion pieceson Aboriginal people. A selectionof articles was tendered. None were germane to the issues dealt with by theNewspaper Articles. It was not suggested that any of those articles, in someway counterbalanced or negated the offence caused by the Newspaper Articles.The articles tendered, evidenced the prior publication of “anodynematerial” which as Lee J said inBropho at [142] would not itselfshow that the publisher acted reasonably and in good faith in relation to thepublication which was reasonablylikely to cause offence.
449. HWThad the capacity to both appreciate that the imputations were conveyed by theNewspaper Articles and the editorial means to guardagainst that. Even if ithad been established that HWT was relying upon Mr Bolt to produce articles thatwere compliant with theRDA, including as to the question of reasonableness andgood faith raised by s 18D, HWT must stand or fall by the conduct of itsownjournalist.
450. Inthat respect I can see no reason why I should take a different approach to thattaken by the Privy Council inAustin v Mirror Newspapers Ltd, in relationto the failure of a publisher in a defamation case to establish reasonableconduct when relying upon a defence of statutoryqualified privilege. At 363the Court said:

A publisher that is a limited company can onlydischarge the duty to act reasonably through its servants or agents and in thepresentcase it seems clear that the company were relying upon Mr Casey toproduce an article that it was reasonable for them to publish.If in thesecircumstances it is found that the journalist not only got his facts wrong buthad also failed to take reasonable careto ascertain them the publishers of thenewspaper must stand in the shoes of their journalist for the purposes ofconsidering whethertheir conduct in publishing the article was reasonable. Thenewspaper, the publisher, cannot be allowed to hide behind their journalistonthe ground that it never occurred to them that their journalist would be socareless. The newspaper must stand or fall by theconduct of its ownjournalists. Very different considerations will of course apply to thepublication of an article by an independentcontributor who cannot be consideredas either the servant or agent of the newspaper. An independent contributor isin no sense thealter ego of a newspaper for the purpose of producing thearticle and in such circumstances his reliability and reputation will bea veryimportant matter in considering whether the conduct of the publisher wasreasonable in accepting and publishing the articleif it turns out to bedefamatory and untrue.

451. Finally,I should add that I am positively satisfied that the elements which needed to beestablished in order for s 18D to haveapplication, have not been established.In other words, if the burden of proof rested with Ms Eatock it has beensatisfied. Further,if it had been necessary to assess the s 18C conduct byreference to the narrower sub-group, I would have arrived at the sameconclusionsin relation to s 18D.

FINDINGS OF CONTRAVENTION AND RELIEF

452. Forthe reasons I have given I am satisfied that:
     • Some Aboriginalpersons of mixed descent who have a fairer, rather than darker skin, and who bycombination of descent, self-identificationand communal recognition are, andare recognised as Aboriginal persons were reasonably likely, in all thecircumstances, to havebeen offended, insulted, humiliated or intimidated by theimputations conveyed by the Newspaper Articlesthat:

.1There are fair-skinned people in Australia withessentially European ancestry but with some Aboriginal descent, of which theidentifiedindividuals are examples, who are not genuinely Aboriginal personsbut who, motivated by career opportunities available to Aboriginalpeople or bypolitical activism, have chosen to falsely identify as Aboriginal; and

.2Fair skin colour indicates a person who is not sufficiently Aboriginal tobe genuinely identifying as an Aboriginal person.

• That in Mr Boltwriting and HWT publishing those parts of the Newspaper Articles which conveyedthe imputations, they each did soincluding because of the race, ethnic originor colour of the Aboriginal persons there described;
• That the conductof Mr Bolt and HWT is not exempted by s 18D of the RDA from being unlawfulbecause:

.1it was not done reasonably and in good faith in themaking or publishing of a fair comment, within the terms of s 18D(c)(ii); or

.2done reasonably and in good faith in the course of any statement,publication or discussion, made or held for a genuine purposein the publicinterest, within the terms of s 18D(b).

453. Onthe basis of those findings, I am satisfied that each of Mr Bolt and HWT engagedin conduct which contravened s 18C of the RDA. In the case of HWT, I am alsosatisfied that as Mr Bolt’s employer, it is liable for the contraventionby Mr Bolt by reasonof s 18E of the RDA.
454. Therelief sought by Ms Eatock in relation to the Newspaper Articles may besummarised as follows:
     • A declarationthat the writing and publication of the Newspaper Articles by Mr Bolt and HWT,was unlawful;
     • An orderrestraining Mr Bolt and HWT from republishing or further publishing theNewspaper Articles or articles whose content is substantiallythe same as, orsubstantially similar to, that contained in the Newspaper Articles;
     • An orderrequiring Mr Bolt and HWT to remove the Newspaper Articles from any online siteunder their control or direction;
     • An order thatHWT publish an apology; and
     • Costs.
455. Thepower of the Court to grant relief of the kind sought is not in issue. Thepower is conferred bys 46PO(4) of theAustralian Human Rights Commission Act1986 (Cth).
456. Onthe basis that the Court finds a contravention of s 18C, Mr Bolt and HWT do notresist the making of a declaration. Injunctiverelief is not resisted but theform suggested by Ms Eatock is said to be too wide. An order requiring that anapology be publishedby HWT is resisted.
457. MsEatock contended that, rather than making orders at this juncture, it may beappropriate for the Court to direct the parties toendeavour to agree upon aform of relief consistent with my reasons for judgment. That suggested courseis not resisted by Mr Boltand HWT. I accept that such a course is anappropriate way in which to proceed. There is however significant disagreementaboutsome aspects of the relief sought by Ms Eatock which I need to resolve, inorder that the parties can sensibly put forward draftorders. There are alsothree matters in relation to relief for which I may need to receive furthersubmissions.
458. MrBolt and HWT contended that the terms of any declaration made should expresslystate that the conduct in contravention of s 18C“did not constitute andwas not based on racial hatred or racial vilification”. It is contendedthat the inclusion ofthese words will facilitate the educative effect of thedeclaration made and contribute to informed debate. I do not regard theinclusion of the words suggested as appropriate. The declaration the Courtmakes should be based only on proven facts and not onfacts or matters which theCourt has not been called upon to determine:Commonwealth v Evans[2004]FCA 654 at[57]-[59] (Branson J). Any necessary educative effect will beachieved by the terms of the declaration which will record the unlawful conductby reference to the precise terms of the provision contravened and by thepublication of the Court’s reasons for judgment.
459. Theterms of the declaration I have in mind should:
     • Identify theNewspaper Articles by title, and date and place of publication;
     • Identify thatthey were written by Andrew Bolt and published by the Herald and Weekly TimesPty Ltd;
     • Identify theimputations conveyed by the Newspaper Articles in the terms set out at[284];
     • State that themeaning conveyed by the Newspaper Articles contravened s 18C of the RDA and wasunlawful in that:

.1it was reasonably likely to offend,insult, humiliate or intimidate Aboriginal persons of mixed descent who have afairer, ratherthan darker skin, and who by a combination of descent,self-identification and communal recognition are, and are recognised asAboriginalpersons; and

.2the Newspaper Articles were written and published, including because ofthe race, ethnic origin or colour of those Aboriginal persons.

460. Allparties agree that any injunction made should be directed at the publication orrepublication of the articles themselves andnot at the imputation conveyed bythem. Mr Bolt and HWT oppose an order restraining the publication of articleswhose content issubstantially the same or similar to that of the articles whichhave contravened s 18C. Each of those positions is based upon therecognitionthat the orders which are made should be clear and precise including so thatfreedom of expression is not unnecessarilystifled.
461. Itis important that nothing in the orders I make should suggest that it isunlawful for a publication to deal with racial identificationincludingchallenging the genuineness of the identification of a group of people. I havenot found Mr Bolt and HWT to have contraveneds 18C simply because the NewspaperArticles dealt with subject matter of that kind. I have found a contraventionbecause of themanner in which that subject matter was dealt with.
462. Otherthan by prohibiting republication, controlling by an injunction the manner inwhich a subject matter is communicated is difficultin circumstances where thelanguage, tone and structure of the publications in question make a significantcontribution to the unlawfulmanner in which the subject matter was dealt with. Mr Bolt and HWT have not contended that a prohibition on republication shouldnot extend to the whole of each of the impugned articles and that seems to me tobe a sensible and practical approach. Such an orderwould prohibit publicationof any part of the articles and should state so clearly. For those reasons andbecause of the need forthe terms of an injunction to be clear and precise, Iagree with Mr Bolt and HWT that the terms of an injunction should not extendtothe publication of articles whose content is substantially the same as, orsubstantially similar to, that contained in the NewspaperArticles.
463. Inrelation to the order sought that HWT remove offending articles from any onlinesite under its control or direction, HWT contendsthat it would not beappropriate for that order to extend to the internet archives of theHeraldSun. It was contended, and I accept, that the internet archives of asignificant media organisation such as theHerald Sun serves an importantpublic interest by preserving and making available historical records of newsand information:Times Newspapers Limited (Nos 1 and 2) v United Kingdom[2009] EMLR 14, 45-48. If I were to accede to that qualification, HWT hasindicated its preparedness to consent to an order thatit publish permanentlyand prominently, on the internet versions of the Newspaper Articles, a copy ofthe declaratory relief grantedby the Court.
464. Ican well appreciate Ms Eatock’s purpose in seeking to have the NewspaperArticles removed from the online archive of theHerald Sun. There isgood reason to try and restrict continued access to, and dissemination of, theNewspaper Articles by the public. However,it seems to me that, in the age inwhich we live, any attempt made to restrict access to an internet publication islikely to becircumvented by access being made available on online sites beyondthe control of HWT. Ms Eatock’s legitimate objective wouldbe betterserved by maintaining the Newspaper Articles on the online site to which peoplelooking for them are most likely to goand including at that place a notice ofthe kind offered by HWT and to which I will refer further below. Accompanied byan appropriatecorrective notice, the contravening effect of the NewspaperArticles will be negated. The qualification of online archives in amannersimilar to that for which HWT contends is an approach adopted in moderndefamation cases in the United Kingdom, informed bythe reasoning of theEuropean Court of Human Rights:Loutchansky v Times Newspapers Ltd (Nos 2-5)[2001] EWCA Civ 1805;[2002] QB 783 at[74];Flood v Times Newspapers Ltd[2009] EWHC 2375;[2010] EMLR 8, at[230], approved on appeal [2011] 1 WLR 153 at [77]-[78];Budu v BritishBroadcasting Corporation[2010] EWHC 616 (QB), [79]-[80] and [93].
465. Thereis force in the contention of HWT that an apology should not be compelled by anorder of the Court because that compels a personto articulate a sentiment thatis not genuinely held. An apology is one means of achieving the publicvindication of those thathave been injured by a contravention of s 18C. Thepower granted to the Court to require a respondent to redress any loss or damageis a wide power. There are other means by which public vindication may beachieved.
466. Publicvindication is important. It will go some way to redressing the hurt felt bythose injured. It will serve to restore theesteem and social standing whichhas been lost as a consequence of the contravention. It will serve to informthose influenced bythe contravening conduct of the wrongdoing involved. It mayhelp to negate the dissemination of racial prejudice.
467. WhilstI will not order HWT to apologise, in the absence of an appropriate apology, Iam minded to make an order which fulfils thepurposes which I haveidentified.
468. Mypreliminary view is that a corrective order should be made which would requireHWT to publish a notice in theHerald Sunin print and online. The termsof the notice would include an introduction which referred to this proceedingand the order requiringits publication and set out the declaration made by theCourt. In order to give the publication of the corrective notice a prominenceand frequency commensurate with the publication of the Newspaper Articles and tofacilitate it being communicated to those likelyto have read the NewspaperArticles, I have in mind that the corrective order would require the publicationof the notice in theHerald Sunnewspaper and online, on two separateoccasions in a prominent place immediately adjacent to Mr Bolt’s regularcolumn.
469. Ihave indicated a preliminary view so that the parties can address me as to theirrespective positions by further submissions. I will also need to receivesubmissions from the parties on the question of costs, unless that and the othermatter I have identifiedare the subject of agreement.
470. Iwill make orders for the parties to confer as to the terms of the relief whichshould be granted and for the filing and exchangeof minutes of orders to giveeffect to these reasons and if necessary, short written submissions on the twoissues which I have identifiedif no agreement is reached on those issues.

Associate:

Dated:28 September 2011

1A –“It’s so hip to be black”





2A –“White fellasin the black”





1B –“One of these women isAboriginal”



2B –“Aboriginal man helped”