Eatock v Bolt was a 2011 decision of the Federal Court of Australia which held that two articles written by columnist and commentator Andrew Bolt and published in The Herald Sun newspaper had contravened section 18C, of the Racial Discrimination Act 1975 (Cth) (RDA). The case was controversial and instigated community debate about freedom of speech.
Factual background
On 15 April 2009, The Herald Sun published an article authored by columnist Andrew Bolt in its print edition, entitled "It's so hip to be black", and republished the article on its website with the title "White is the new black". On 21 August 2009, a second article authored by Bolt was published in print and online entitled "White fellas in the black".
Pat Eatock, a woman of Aboriginal descent, brought proceedings in the Federal Court against Bolt and the proprietor of The Herald Sun, The Herald & Weekly Times Pty Ltd, suing on her own behalf and on behalf of people like her who have a fairer, rather than darker skin, and who are recognised as Aboriginal persons in Australia. Eatock alleged that the two newspaper articles authored by Bolt conveyed offensive messages about fair-skinned Aboriginal people, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Eatock sought a declaration that the articles contravened section 18C of the Racial Discrimination Act 1975, an injunction preventing publication or republication of the articles, and an apology from the newspaper.
Witnesses
The other Aboriginal people involved in the case and called as witnesses were Anita Heiss, Bindi Cole, Geoff Clark, Larissa Behrendt, Leeanne Enoch, Wayne Atkinson, Graham Atkinson, and Mark McMillan.
Relevant legislation
Section 18C of the RDA relevantly provided: "(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group." The exemption provision in section 18D relevantly provided: "Section 18C does not render unlawful anything said or done reasonably and 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 debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and 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 comment is an expression of a genuine belief held by the person making the comment."
Decision
Justice Mordecai Bromberg found that the two articles authored by Bolt conveyed the following imputations: That there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the identified individuals are examples, who are not sufficiently Aboriginal to be genuinely identifying as Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to identify as Aboriginal; and Fair skin colour indicates a person who is unlikely to be sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
Justice Bromberg found that it was reasonably likely that an ordinary person within the group of fair-skinned Aboriginal persons would have been offended and insulted by the newspaper articles, in particular the challenge to the legitimacy of the identity of those individuals and the concentration on skin colour as the defining determinant of racial identity. In addition, Justice Bromberg found that it was reasonably likely that Eatock would be "humiliated and intimidated by her perception of the capacity of the articles to generate negative or confronting attitudes to her from others". Justice Bromberg found that the articles were written "because of the race, colour or ethnic origin of those people". As such, Justice Bromberg held that the publication of the two articles contravened section 18C of the RDA.
