twtmore

Dodd claims:

“In essence this case was lost on this point - the belief by the judge that ‘people should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying’.”

Nonsense. The case was lost because Andrew Bolt imputed that some people are too fair-skinned to be genuine Aboriginal people, that those people choose to falsely identify as Aboriginal for personal gain, and that fair-skinned Aboriginal people were likely to be “offended, insulted, humiliated or intimidated”.

Unfortunately, it seems that Dodd hasn’t bothered reading the full judgment before condemning it. For example, he writes that:

“Controversially, the judge also ruled that it's the group of people who have been offended that should determine whether or not a comment is offensive. In other words, the views of an average Herald Sun reader are not important here. It's the views of Aboriginal people that matter.”

That’s true, as far as it goes. But if Dodd had read the full judgment he would know that Justice Bromberg also said, at [299]:

“I should add that if, contrary to my view, the assessment of the reaction of the ordinary representative of the group should be made by reference to the imputations conveyed to the ordinary and reasonable reader…, I would in any event have reached the same conclusions as those here expressed.”

He also claims that “[t]he Judge clearly believes they were not written with a genuine public interest in mind”. Again, this is contradicted by the actual basis for his Honour’s decision (at [437]):

“Ms Eatock … conceded that the pursuance of the public interest raised by [Bolt’s] Amended Defence was a genuine purpose in the public interest. Given the way in which the issue was dealt with by the parties, I will proceed on the basis that drawing attention to the socially undesirable racially divisive consequences of the ‘trend’ is a genuine purpose in the public interest.”

And the crux of Dodd’s argument is this:

“There is clear logic in the judge's ruling, but my contention is that it fails to establish why Bolt’s writings did not qualify under the freedom of expression exemptions within the Act...”

Justice Bromberg devoted 33 pages of his judgment to this question. In essence, his Honour found that Bolt resorted to untruths, distortions, omissions, provocative and inflammatory language, and gratuitous asides --- and that a person making a reasonable argument in good faith would not stoop to such dishonest tactics.

Again and again, his Honour found that Bolt’s articles contained falsehoods or significant omissions:

“The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts asserted in the Newspaper articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue. … Some of the facts relied upon as the basis of the comments made about motivation have been proven to be untrue. … Each of these assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. … The comment is unsupported by any factual basis and is erroneous. … That statement is untrue. … The omission occurred in circumstances were the facts were likely to be either publicly available or readily obtainable, including by Mr Bolt contacting the individuals concerned. Mr Bolt presented evidence of having undertaken some online research about the individuals, but it was not evidence upon which I could be satisfied that a diligent attempt had been made to make reasonable enquiries. … Mr Bolt disingenuously explained the omission as due to a lack of space. … The facts given by Mr Bolt and the comment made upon them are grossly incorrect.“

As his Honour explained at [386], “[t]he lack of truth in conduct which contravenes 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness by s 18D.”

So, what does this mean for free speech? Will it, as Chicken Little Dodd suggests, “silence debate on irksome and uncomfortable topics”?

No.

What it will do is require journalists to conduct proper research, to present their arguments based on facts, and to tell the truth.