Section 18D(c)(ii)
351 Section 18D assumes the existence of offensive conduct. That is, conduct which satisfies the elements of s 18C and that would be unlawful if not exempted by s 18D. Section 18D asks whether the offensive conduct (conduct that meets the requirements of s 18C) was done reasonably and in good faith in the pursuit of the activities identified in s 18D(a), (b) or (c).
352 There are two activities identified in s 18D(c). They are the making or publishing of a fair and accurate report and the making or publishing of a fair comment. The report or comment must concern an event or matter of public interest. Mr Bolt and HWT rely upon s 18D(c)(ii). The question raised here is whether the conduct which I have found meets the requirements for a contravention of s 18C ("the s 18C conduct") was done reasonably and in good faith in the pursuit of the making of a fair comment.
353 At common law, fair comment exists as a defence to a defamatory comment in order to facilitate freedom of expression on matters of public interest. The fundamental importance of facilitating freedom of expression has already been explained. It is of importance that on social and political issues in particular, people should be able to express their opinions. Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion. The fair comment defence at common law extends to protect opinions, even those that reasonable people would consider to be abhorrent. As Gleeson CJ said in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] "fair" does not mean objectively reasonable.
354 Like all good things, freedom of expression has its limits and that is also recognised by the common law defence of fair comment. Those limits are there to ensure that freedom of expression is not abused. One of the safeguards against such abuse is that the comment must be based on facts which are true or protected by privilege. That means that if the facts upon which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available: Cheng v Tse Wai Chun (2000) 3 HKCFAR 339 at 347 (Lord Nicholls of Birkenhead NPJ with whom the rest of the Court agreed); The Herald & Weekly Times Limited v Popovic (2003) 9 VR 1 [259]-[264] (Gillard AJA with whom Winneke ACJ and Warren AJA agreed).
355 That limitation is important in this case for reasons I will come to. But there are two further limitations which are also fundamental and which are also made clear in the authorities to which I have just referred. The fair comment defence only applies to a comment as distinct from a statement of fact. The basis for distinguishing between a comment and a statement of fact was discussed by Gummow, Hayne and Heydon JJ in Channel Seven Adelaide in a passage I will shortly set out. The comment must be recognisable as comment and the facts upon which the comment is based must be expressly stated, referred to or notorious. The facts upon which the comment is based must be, at least in general terms, explicitly or implicitly stated. The purpose of that requirement is so that the reader or hearer is put in a position to judge for him or herself whether the comment is well founded: see Tse Wai Chun at 347; Channel Seven Adelaide at [52] (Gummow, Hayne and Heydon JJ). As Lord Nicholls said in Tse Wai Chun at 352:
These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree.
356 If the reader is given sufficient material to understand the basis for the comment, the reader can evaluate it. If the comment is wrongheaded, reasonable people will be able to recognise it for what it is. That capacity, together with the requirement for true facts and honesty, are the fundamental safeguards against abuse.
357 Honesty requires that the maker of the comment genuinely believe the comment made. If the maker knew the comment was untrue, or was recklessly indifferent to the truth or falsity of the comment, the maker would be acting dishonestly: see Tse Wai Chun at 352. Section 18D(c)(ii) deals with that aspect expressly by requiring that the comment be "an expression of a genuine belief held" by the maker of the comment.
358 The parties accepted that by using the phrase "fair comment" in s 18D(c)(ii), Parliament intended to invoke the requirements of the common law defamation defence of fair comment. That view is supported by the observations made by Kiefel J in Creek at [32]. Although there are examples of the statutory use of the phrase "fair comment" where not all of the common law requirements have been found to be imported (see Pervan v North Queensland Newspaper Co. Limited (1993) 178 CLR 309), I accept that s 18D(c)(ii) is not such an occasion.
359 One of the difficulties with the s 18D case advanced by Mr Bolt and HWT is that they put their submissions in the absence of any recognition that the Court may find s 18C to have been satisfied by reference to one or more of the imputations upon which Ms Eatock relied. Somewhat like what might be done in a defence to a defamation case, Mr Bolt and HWT identified a comment or imputations said to be conveyed by the Articles. They then sought to justify that imputation by reference to s 18D. In doing that, they ran the same risk that a respondent runs in a defamation case, that the alternative imputations relied upon and sought to be justified will either not be accepted as having been conveyed by the publication or, alternatively, be regarded as separate and distinct from the defamatory imputations upon which the applicant relies.
360 Having taken that course, Mr Bolt and HWT made no specific submissions as to why, if the Court was to make a finding of s 18C conduct on the basis of the imputations upon which Ms Eatock relied (or similar imputations), that conduct ought nevertheless be excused pursuant to s 18D. Instead, their submissions sought to defend the Articles (all four) as a whole on the basis that the imputations relied upon by Ms Eatock were not conveyed and that the only imputations conveyed by the Articles were that:
(a) racism is abhorrent and a gravely divisive social force, which is perpetuated by emphasising racial differences;
(b) in modern Australia, there is a discernible trend whereby persons of mixed genealogy, where that genealogy includes Aboriginality, identify as Aboriginal persons, where they could identify with another race or races, or with no race at all;
(c) the Applicant and the other individuals named in the Publications illustrate that trend, in that they are each persons who identify as Aboriginal persons, even though they could identify with another race or races, or with no race at all; and
(d) the trend is an undesirable social phenomenon because it emphasises racial differences, rather than common humanity.
361 Those imputations ("Mr Bolt's imputations") were then sought to be justified by reference to s 18D(b) and (c)(ii). In relation to s 18D(c)(ii), it was contended that Mr Bolt's imputations were a fair comment made on a matter of public interest. Consistently with their pleadings, Mr Bolt and HWT relied on the matter of public interest as being:
whether fair skinned-persons who, by reason of their genealogy are Aboriginal persons, tend to choose to identify as Aboriginal persons even if they could choose to identify as a member of another race or other races, or with no race at all; and if so whether that tendency is socially undesirable because of the emphasis it places on racial differences rather than common humanity.
362 Reliance was also placed on three further matters of public interest, which had not been pleaded but which were relied upon by Mr Bolt (for the first time) when cross-examined about the Articles, as follows:
(a) the people he [Mr Bolt] identified all had a public profile and were legitimate subjects for public scrutiny;
(b) some of the jobs, prizes and awards he referred to in the Publications were publicly or partly publicly funded; and
(c) there was a legitimate public debate to be had about whether there were more deserving recipients for some of the prizes and awards referred to in the Publications.
A further broader attempt to define the relevant matter of public interest was also relied upon in the final submissions made. It was described as "identity politics and the search for identity, in the context of prominent members of the community".
363 Mr Bolt's imputations were said to be an expression of genuine belief held by Mr Bolt. Mr Bolt gave evidence of that belief which was not contested.
364 Mr Bolt and HWT contended that the Articles contained no material errors of fact. A number of errors asserted by Ms Eatock were denied and others were dismissed as not relevant. That was said to be so because they were not material to the matters of public interest that the Articles were ventilating or capable of rationally affecting the substance of Mr Bolt's imputations.
365 It was then contended in relation to reasonableness, that each part of the Articles bore a rational relationship and was not extraneous to the matters of public interest relied upon and as to good faith, that Mr Bolt had conscientiously and honestly set out to advance the matters of public interest to which the Articles were directed.
366 Ms Eatock neither relied upon nor sought to impugn Mr Bolt's imputations. Ms Eatock contended that the Articles included other imputations extraneous to the imputation or the matter of public interest upon which Mr Bolt and HWT relied. My findings about the imputations which were conveyed by the Newspaper Articles are largely consistent with the imputations for which Ms Eatock contended. The imputations which I have found were conveyed by the Newspaper Articles are separate and distinct from the imputations for which Mr Bolt contended. They carry a decidedly different sting to that in Mr Bolt's imputations, which carries no suggestion of a lack of legitimacy in the identification as Aboriginal of the people with whom the imputations deal.
367 In essence, the s 18D case put by Mr Bolt and HWT sought to justify behaviour cleansed of the s 18C conduct which I have found occurred. As a result, much of what was put in reliance upon s 18D by Mr Bolt and HWT simply addressed the wrong target.
368 There can be no doubt that the defence of fair comment must address the meanings or imputations found by the Court to be defamatory. As Gummow, Hayne and Heydon JJ said in Channel Seven Adelaide at [83]:
The meaning found is the comment to be scrutinised for its fairness.
369 Their Honours observed at [85], that it is the meaning of defamatory words which is relevant to the fair comment defence in several ways including:
in determining whether the comment is fair; in determining the issue of malice, to which an absence of honest belief in the proposition stated is relevant; in determining whether the plaintiff's pleaded meaning was conveyed as a statement of fact or a statement of opinion; in determining whether the plaintiff's pleaded meaning and the defendant's comment relate to the same allegation; in determining whether the comment is based on facts which are true or protected by privilege, a question which cannot be answered without assessing what the comment means; and in determining whether the comment relates to a matter of public interest, which also depends on its meaning.
370 I need to evaluate whether the s 18C conduct which I have found occurred, is to be exempted from unlawfulness by s 18D and not whether Mr Bolt's imputations are to be excused.
371 Ms Eatock contended that the conduct she complained of failed to meet the requirements of s 18D(c)(ii). She said that the requirements for a fair comment were not satisfied. That was said to be so because the conduct was not based on true facts which were expressly stated, referred to or notorious, or sufficient to put the reader in a position to judge for him or herself how far the comment was well-founded. Ms Eatock relied on many statements in the Newspaper Articles said to be factually wrong or distorted to deny the fair comment defence and at the same time to deny that reasonableness and good faith were established. No issue was raised as to the expression being Mr Bolt's "genuine belief" as required by s 18D(c)(ii).
372 Central to the sting of the conduct which I have found was reasonably likely to offend, were the imputations conveyed that the people in the 'trend' had chosen to identify as Aboriginal, that their choices were not genuine and that they were driven by ulterior motives including career and political aspirations. I have earlier set out the words utilised in the Newspaper Articles which stated or implied a deliberate or conscious choice to identify (see [29] and [41]). The assertion that a choice was made to identify as Aboriginal was made in relation to most of the individuals identified in those articles. An issue arises as to whether those statements are statements of fact or are to be characterised as comments.
373 The imputation which conveys the choice said to have been made to identify as Aboriginal persons must be regarded as a comment. The imputation is about the group of people in the 'trend'. The reader would assume that Mr Bolt is not familiar with the circumstances of all the people in the 'trend' and thus not stating as a fact, in relation to each such person, that the person made a conscious choice to identify as an Aboriginal person. However, the Newspaper Articles set out and examine a range of facts about particular individuals. The reader will have seen that Mr Bolt collected information about those individuals and because they are given as examples of the 'trend', the reader will have understood that Mr Bolt's comments about the people in the 'trend' is an extrapolation made from the facts stated about the identified individuals. Those facts include the statements, usually expressly but sometimes impliedly made, that various individuals chose to identify as Aboriginal. It is those statements about the choices made by the individuals which will be understood by the reader as the basis for the comment conveyed in the imputation about the choice made by the people in the 'trend'. If presented as facts, those statements made of the individuals must be proven to be true for the imputation to be regarded as fair comment.
374 Mr Bolt and HWT contended that those statements were themselves comment and not presented as facts. It was said that the statements were deductions from facts, but the other facts from which those deductions were said to be made were not identified and are not apparent.
375 In Channel Seven Adelaide at [35]-[36] Gummow, Hayne and Heydon JJ discussed the law about distinguishing a comment from a fact:
[35] Distinguishing fact and comment. In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:
"The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule ... that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated." (Emphasis added)
In Goldsbrough v John Fairfax & Sons Ltd, Jordan CJ said that for the defence of fair comment to succeed, "it is essential that the whole of the words in respect of which it is relied on should be comment". He continued:
"It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear 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, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts." (Emphasis added)
A "discussion or comment" is to be distinguished from "the statement of a fact". "It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated." As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of "comment" as "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc". It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction 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 to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact". (Emphasis added)
[36] The question of construction or characterisation turns on whether the ordinary reasonable "recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered" not "an exceptionally subtle" recipient, or one bringing to the task of "interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at".
(Original Emphasis. Footnotes omitted.)
376 As the above extract shows, a comment must "be indicated with reasonable clearness by the words themselves". Where a comment is not clearly identified, there is a tendency for courts to hold the statement to be a fact: Gatley on Libel and Slander 11th ed paragraph 12.13, citing Australian Ocean Line Pty Ltd v Western Australia Newspapers (1985) 58 ALR 549 at 594 (Toohey J). To be a comment, the statement must appear as an opinion, deduction or conclusion from facts "which are at the same time presented to, or are in fact present to the minds of the readers". Gummow, Hayne and Heydon JJ in Channel Seven Adelaide placed particular emphasis on that requirement.
377 The statements in question appear in an opinion piece, but they appear to be presented, amongst other obvious facts (such as the ancestry of the person concerned), as facts about a particular individual. The statements are put in definitive terms and not in evaluative terms - "she also chose" (1A-4); "she too, has chosen" (1A-7); "she chose to be" (1A-15); "started to identify as Aboriginal when she was 19" (1A-27); "also identified herself" (2A-25). The statements are not put as a deduction from other facts which are presented or referred to in the articles. Whilst questions of this kind are sometimes difficult, in my view, the reader will have regarded the statements as assertions of fact and not comment.
378 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. Nine of the eighteen individuals named in the Newspaper Articles gave evidence. Each of them had been raised to identify as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal.
379 Secondly, the imputations which I have found were conveyed, convey not only the making of a choice but that the choice was made for the purpose of facilitating career opportunities and political activism. Again, the imputation is made of the people in the 'trend' and it is to be understood as a comment because it is an extrapolation from observations made in relation to the individuals dealt with. Those observations about the individuals are also presented as comments. They would be understood as Mr Bolt commenting as to what motivated the choice made by the individuals. The pattern involves Mr Bolt pointing to various jobs or awards the individuals have obtained which are either said or suggested to be reserved or intended for Aboriginal recipients. The jobs or awards obtained are the implied motivations for the individuals choosing to identify as Aboriginal. Additionally, political activism is the suggested motive for Ms Eatock and Ms Cole.
380 Some of the facts relied upon as the basis of the comments made about motivation have been proven to be untrue.
381 In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won "plum jobs reserved for Aborigines" at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a "plum job" was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.
382 Mr Bolt wrote that Ms Eatock "thrived as an Aboriginal bureaucrat, activist and academic" (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst 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 by access to "political and career clout" (1A-4). This is a comment. The facts upon which the comment is based are not stated, referred to or notorious.
384 The deficiencies to which I have referred to so far, are material and constitute a significant distortion of the facts upon which a central part of the offensive imputations were based. On the basis of those deficiencies, I am satisfied that the offensive imputation was not a fair comment and that s 18D(c)(ii) is not available to exempt the offensive conduct from being rendered unlawful.
385 That conclusion is also reinforced by some of the other deficiencies relied upon by Ms Eatock, which I shall identify shortly. Ms Eatock relies upon the deficiencies I have dealt with already and other deficiencies to contend that, even if the conduct was fair comment, it was not done reasonably and in good faith. Ms Eatock's contentions about unreasonableness and lack of good faith are based on two aspects of Mr Bolt's conduct. Firstly, what she says Mr Bolt did, that is, what he wrote. Secondly, Ms Eatock relies upon what she says Mr Bolt should have done but failed to do. In both respects, Ms Eatock contends that the conduct was not reasonable nor in good faith.
386 The deficiencies I have relied upon in arriving at the conclusion that the s 18C conduct was not fair comment are about deficiencies in truth. The lack of truth in conduct which contravenes s 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness by s 18D.
387 The incursion made into freedom of expression by defamation law is largely based upon a refusal to excuse an absence of truth or falsity in a defamatory statement. Even where a lack of complete truth may be excused by the law because of a higher than usual value placed on the freedom of expression involved, the law requires that the publisher of defamatory statements demonstrate that reasonable measures were taken to adhere to the value of truth and the protection of reputation. Beyond honesty of purpose, those measures include the publisher having taken reasonable steps to verify the accuracy of statements made and where practicable and necessary, seek responses from those whose reputations are at stake: Lange at 574 (qualified privilege for governmental and political communications); and see Reynolds v Times Newspapers Limited [2001] 2 AC 127 at 205 (Lord Nicholls of Birkenhead) (qualified privilege for political information); Morgan v John Fairfax and Sons Limited (No 2) (1991) 23 NSWLR 374 at 388 (Hunt A-JA) (statutory qualified privilege).
388 In the context of statutory qualified privilege, the Privy Council said in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364-365:
There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts upon which it comments.
389 The majority of the Supreme Court of Canada said in Church of Scientology at [137] in evaluating the impact of defamation law on freedom of expression:
Surely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility.
In a passage relied on by Callinan J in Lenah Game Meats at [341], the majority in Church of Scientology said (at [106]) that defamatory statements were very tenuously related to the core values which underlie freedom of expression.
390 The protection of reputation through defamation law and the protection sought to be provided by s 18C are both infused with the need to protect social standing and public esteem. That feature of s 18C was emphasised by Lee J in Bropho at [138]. Just as an adherence to the value of truth protects reputation, so too will it serve to protect the values which s 18C seeks to foster. The protection of reputation and the protection of people from offensive behaviour based on race are both conducive to the public good: Scully at [239] (Hely J). Untruths are at the heart of racial prejudice and intolerance. When not misused, truth will not generally cause the kind of offence s 18C is concerned with. Untruths generally will and regularly do. The more a comment made on the basis of asserted facts is based on true facts rather than untruths, the more likely it is that any offence, insult, humiliation or intimidation arising from the comment will be minimised. A conscientious approach to freedom of expression is required by s 18D. Expressions made on the basis of untrue or distorted facts or without due care to avoid distortions of the truth are not likely to involve a conscientious approach to the task of honouring the values asserted by the RDA.
391 There is a further element to the conduct which I consider to be both significant to the sting of the imputations conveyed and also significant in terms of Mr Bolt's conduct. The asserted lack of genuineness in the Aboriginal identification of the people in the 'trend' is clearly an imputation which is conveyed as a comment. The comment is made by reference to the examples given. There is, as I have earlier found, an impression conveyed of a deficiency of Aboriginality which is largely made by reference to a biological examination based upon the skin colour and biological descent of each of the individuals examined.
392 Nine of those individuals gave evidence. To some extent, the biological examination was shown to be factually erroneous. However, the absence of any significant cultural reference in the Newspaper Articles to the Aboriginal cultural upbringing of the individuals dealt with, leaves an erroneous impression. As I have found, each of the nine individuals who gave evidence have either always identified as Aboriginal or have done so since their childhood. They all had a cultural upbringing which raised them to identify as Aboriginal. The fact that this is not disclosed to the reader of the Newspaper Articles in any meaningful way creates a distorted view of the circumstance in which the individuals exemplified in those articles identify as Aboriginal.
393 Ms Eatock argued that relevant facts upon which a comment is based need to be included in a publication and that here, reference to the Aboriginal cultural upbringing of the individuals identified in the Newspaper Articles was not given. There is support for the proposition that an omission of relevant facts upon which a comment is based negates the fair comment defence. In Peterson v Advertiser Newspapers (1995) 64 SASR 152, Olsson J at 193 said:
To establish the defence of fair comment the requirement is not merely that the facts stated are true. Rather, it is that they be truly stated: Sutherland v Stopes [1925] AC 47 at 62-3, Thompson v Truth & Sportsman Ltd (No 4) (1932) 34 SR (NSW) 21 at 25.
The omission of a series of relevant facts, having the result that the factual scenario represented in a publication is quite unbalanced and potentially misleading to the average reader, results in a situation that the facts have not, relevantly, truly been stated.
[Original emphasis]
See further Mullighan J at 201; and Popovic at [272] (Gillard AJA, with whom Winneke ACJ and Warren AJA agreed).
394 Mr Bolt and HWT argued that it is legitimate to frame a discussion about race by reference to biological descent alone. On an objective view, based on what I have found to be the conventional understanding of Aboriginal identity, cultural factors are clearly relevant to a discussion about Aboriginal identity. However, I accept the contention of Mr Bolt and HWT that an opinion about race may be expressed by reference to biological descent alone. The person expressing such a view may subjectively regard cultural references to be irrelevant. That subjective view should not deny the opinion the cover of a fair comment defence, so long as an average reader can see that the opinion is based on the asserted irrelevance of cultural reference and thus judge the opinion for what it is.
395 However, the actual circumstances of this case are somewhat different. Mr Bolt and HWT contended that a cultural reference was given by the Newspaper Articles. Mr Bolt's evidence was that he accepted that cultural upbringing was both a part of the legal definition of "Aboriginal" and also a part of the common understanding of race. Mr Bolt did not consider cultural reference to be irrelevant to a discussion about race. Mr Bolt relied upon statements in the Newspaper Articles such as "raised by her English-Jewish mother" as demonstrating his inclusion of a cultural reference.
396 When the Newspaper Articles are analysed, what is apparent is that the individuals who are examined are dealt with in one of two ways. The first is where no cultural reference is made at all and the individual's identification is examined purely by biological considerations, either through ancestry, skin colour or a combination of the two. Alternatively, both a biological and a cultural reference (usually oblique) are made in relation to the individual, but in every case the cultural reference suggests a non-Aboriginal cultural upbringing. Thus, in the first article:
"raised by her English-Jewish mother" (Cole) (1A-2);
"Culturally, she's more European" (Sax) (1A-6);
"Yet her mother, who raised her in industrial Wollongong, is in fact boringly English" (Winch) (1A-11);
"she was raised in Sydney and educated at St Claire's Catholic College" (Heiss) (1A-19);
"from the age of 10 was a boarder at a Victorian Catholic school" (Dodson) (1A-32);
"having been raised by her white mother" (Behrendt) (online version of 1A);
"raised by her white mother" (Behrendt) (2A-20); and
"raised by her English mother" (Cole) (2A-24).
397 Thus, the reader is presented with some cultural references. The reader is not likely to assume that cultural reference was regarded by Mr Bolt as irrelevant to his opinion about racial identification. To the contrary, the reader is presented with an opinion which appears to be based, at least in part, upon cultural references as an indicator of race. The reader would presume that as a journalist, Mr Bolt would have undertaken research and presented relevant facts. The fact that some research about cultural background has been undertaken is evident. In that context, the reader would understand the assertion conveyed that the individuals are not sufficiently Aboriginal to be genuinely self-identifying as Aboriginal, to be based upon Mr Bolt's research of both biological and cultural considerations.
398 In part, the cultural references where given, were erroneous. But more fundamentally, the Aboriginal cultural upbringing which was available to be presented at least in relation to nine of the eighteen individuals dealt with by the Newspaper Articles, was not included. Those facts were relevant, in the context of a comment in part based upon cultural considerations. Their omission meant that the facts were not truly stated. For that reason also, the offensive imputation was not a fair comment.
399 The omission of those facts is also relevant to the issue of reasonableness and good faith. The omission occurred in circumstances where 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 inquiries.
400 Dr Atkinson was raised in an Aboriginal fringe camp on the ancestral lands of his Aboriginal ancestors. Mr Clark was raised as Aboriginal in a well-known Aboriginal community in Victoria. Both those witnesses and others, gave evidence that their life story and identification was available on the internet. All of Ms Eatock and her witnesses gave evidence that Mr Bolt had failed to contact them to ascertain their circumstances and that if contacted they would have told Mr Bolt of their circumstances as described in their evidence. In Mr Clark's case, he was also well known to Mr Bolt. Mr Bolt had written about him for over a decade.
401 There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about.
402 Mr Bolt wrote that Ms Cole was raised by her "English-Jewish" or "English" mother (1A-2; 2A-24). That statement is factually inaccurate because Ms Cole's Aboriginal grandmother also raised Ms Cole and was highly influential in Ms Cole's identification as an Aboriginal. He wrote that Ms Cole "rarely saw her part-Aboriginal father" (1A-3). That statement is factually incorrect. Ms Cole's father was Aboriginal and had been a part of her life until she was six years old. Ms Cole later lived with her father for a year whilst growing up.
403 Mr Bolt's documentary source for the statements he made in the articles about how Ms Cole was raised, expressly referred to the involvement of Ms Cole's Aboriginal grandmother in Ms Cole's upbringing. It quoted Ms Cole attributing to her grandmother the fact that she felt "staunchly proud and strong" about being an Aboriginal person. Mr Bolt disingenuously explained the omission as due to a lack of space.
404 He also relied on that reason for the lack of cultural reference given in relation to Prof Behrendt. The factual assertions made that Prof Behrendt was "raised by her white mother" (2A-20) were also erroneous. Prof Behrendt's Aboriginal father did not separate from her mother until Prof Behrendt was about 15 years old. Her father was always part of her family during her upbringing, even after that separation.
405 In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.
406 Mr Bolt said of Wayne and Graham Atkinson that they were "Aboriginal because their Indian great-grandfather married a part-Aboriginal woman" (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that "his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman" (A2-28). The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons' parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article. Mr Bolt did not seek to deny the evidence of Aboriginal ancestry given by the Atkinsons but insisted that their ancestry was accurately conveyed by the statements made and extracted above.
407 The documentary source upon which Mr Bolt relied for his statement that Ms Eatock only started to identify as Aboriginal "when she was 19 after attending a political rally" (1A-27), was in evidence. That source made an incorrect assertion as to when Ms Eatock began "publicly" identifying as Aboriginal. Mr Bolt repeated the error as to age (for which no complaint is made) but left out "publicly". The absence of that word created the false impression that Ms Eatock had not identified as an Aboriginal person before she was 19 years old and only upon attending a political meeting. In his evidence, Mr Bolt was unimpressively dismissive of the significance of that omission.
408 Ms Eatock also relied on the provocative and inflammatory language utilised in the Newspaper Articles and its lack of restraint as demonstrating an absence of reasonableness and good faith. She also relied upon a number of what were described as gratuitous statements in the Newspaper Articles.
409 Whether offensive language makes a valid contribution to free and informed debate is a matter upon which members of the High Court have taken different views. In the context of political discourse of the kind protected by the implied constitutional freedom of communication on government and political matters, the majority in Coleman viewed insult and invective as part and parcel of political communications: [81] and [105] (McHugh J); [197] and [199] (Gummow and Hayne JJ); and [239] (Kirby J). The contribution made by insulting words to free and informed debate was doubted by Callinan J at [299] and rejected by Heydon J at [330], [332] and [333].
410 In my view, even outside of political discourse, freedom of expression is not merely a freedom to speak inoffensively: R (on the application of Gaunt) v Office of Communications (OFCOM) [2011] EWCA Civ 692 at [22] (Lord Neuberger MR). But there are areas of discourse where incivility is less acceptable, including because it is more damaging to social harmony. Additionally, a distinction may be drawn between harsh language directed at a person and harsh language directed at a person's opinion: R v Office at [27] (Lord Neuberger MR); Catch the Fire at [34] (Nettle JA).
411 In Bropho at [69], French J recognised that freedom of speech is not limited to expression which is polite or inoffensive. However, the minimisation of harm which French J spoke of involves a restraint upon unnecessarily inflammatory and provocative language and gratuitous insults. The language utilised should have a legitimate purpose in the communication of a point of view and not simply be directed to disparaging those to whom offence has been caused: Toben at [77] (Kiefel J).
412 I accept that the language utilised in the Newspaper Articles was inflammatory and provocative. The use of mockery and derision was extensive. The tone was often cynical. There is no doubt that the Newspaper Articles were designed to sting the people in the 'trend' and in particular those identified therein. The language was not simply colourful, as Mr Bolt's counsel described it. It was language chosen by Mr Bolt in writing articles intended to confront those that he accused with "the consequences of their actions" and done with the expectation that they would be both "offended" and "upset" and in the hope that they would be "remorseful" (the words quoted are Mr Bolt's).
413 I also agree that the Newspaper Articles contain gratuitous references. The emphasis on colour was gratuitous. References made to Mr McMillan's sexuality were further obvious examples. There were also gratuitous references to Mr McMillan pretending to be a "victim", which are based on a selective misrepresentation of what Mr McMillan actually said (2A-11 to 15). I accept that much of the mockery, derision and gratuitous asides were directed at named individuals but I reject the contention of Mr Bolt and HWT that the impact is to be regarded as confined, in each case, to the person impugned. The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the 'trend' were dealt with and contributed to the intimidatory effect of the articles.
414 The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt's point. The treatment of Mr McMillan and Mr Mellor are perhaps the most potent examples. The articles are replete with comments and a derisive tone that have little or no legitimate forensic purpose to the argument propounded and in the context of the values which the RDA seeks to protect are not justified, including by an asserted need to amuse or entertain. In terms of the language utilised, I have in mind the following examples (each of which needs to be read in context, the emphasis in italics is mine):
"political Aborigine" (1A-1);
"professional Aborigine" (1A-14), (2A-20);
"the choice to be Aboriginal can seem almost arbitrary and intensely political" (1A-9);
"an official Aborigine and hired as such" (1A-13);
"How much more of this madness can you take?" (1A-18);
"self-obsessed" (1A-23);
"it is also divisive, feeding a new movement to stress pointless or even invented racial differences" (1A-24);
"trivial inflections of race" (1A-34);
"how comic" (1A-35);
"blacker-than thou" (1A-37);
"to invent such racist and trivial excuses to divide" (1A-38);
"scuffling at the trough" (2A-8);
"is that a man's voice I now hear bellowing: 'And I'm an Aboriginal woman' (2A-8) (original emphasis in bold);
"you'd swear this is from a satire" (2A-16);
"surrender my reason and pretend white is really black, just to aid some artist's self-actualisation therapy" (2A-32);
"That way lies madness, where truth is just a whim and words mean nothing" (2A-33);
"a privileged white Aborigine snaffles that extra" (2A-36);
"Seeking power and reassurance in a racial identity is not just weak (2A-42);
….a borrowing of other people's glories" (2A-42); and
"At its worst, it's them against us" (2A-46);
415 In relation to the sub-group constituted by the individuals named in the Newspaper Articles, the language, tone and gratuitous asides contained in the Newspaper Articles were likely to have contributed to the likely offence, insult and humiliation of the people in that group. In relation to the broader group, I have found that the strong language utilised by the Newspaper Articles and the disrespectful manner in which those articles dealt with those identified will have heightened the intimadatory impact of the conduct. I regard that impact as a particularly pernicious aspect of the s 18C conduct in the context of what the RDA seeks to achieve. That young Aboriginal persons or others with vulnerability in relation to their identity, may be apprehensive to identify as Aboriginal or publicly identify as Aboriginal, as a result of witnessing the ferocity of Mr Bolt's attack on the individuals dealt with in the articles, is significant to my conclusion that in writing the articles, Mr Bolt failed to honour the values asserted by the RDA.
416 Mr Bolt understood that he was writing about the identity of and a very personal aspect of the people he wrote about. He was extensively cross-examined as to whether he had an appreciation at the time he wrote the Newspaper Articles, that the articles or parts thereof would cause offence to the individuals dealt with by them. Mr Bolt acknowledged that he had appreciated offence would likely be caused to many of the named individuals. At times his acknowledgment was qualified. He said he perceived the offence would have arisen out of the fact that he was contradicting or disagreeing with the persons in question. In my view, Mr Bolt was acutely aware that both the content and tone of the articles were reasonably likely to offend the people he identified in the articles, and not simply because they would perceive him to be contradicting them.
417 The following exchange in cross-examination is illustrative of both that awareness and the underlying rationale for the vigorous approach taken by Mr Bolt:
Do you agree, Mr Bolt, that where a person has made a heartfelt and a genuine honest identification of identity that to say that the identification is a self-obsession is likely to cause that person offence?
It's the public nature of it. Once you enter the public arena you must be prepared for debate, for disagreement and disagreement can be bruising it's true. If they were private individuals privately identifying I would not pick them off the street and say, "Look at this person, this anonymous person, ha, ha, ha".
By a later answer, Mr Bolt agreed (without qualification) that he understood offence would likely to be caused by the accusations he made. His answer above reveals Mr Bolt's view that the people he criticised were in the public arena and therefore 'fair game'. Given that Mr Bolt denied any intent to convey the imputations which I have found were conveyed, the public behaviour of the individuals that warranted the attack upon them seems to be simply the fact that they have publicly identified as Aboriginal. What Mr Bolt's answer also reveals is a lack of appreciation by him of the reasonably likely impact his words would have upon the wider community of Aboriginal people of mixed descent including those that I have described as young or vulnerable.
418 Ms Eatock also relied upon a number of principles taken from a "Statement of Principles" issued by the Australian Press Council. Those principles include the following:
Publications should take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately mislead or misinform readers either by omission or commission.
Where individuals or groups are a major focus of news reports or commentary, the publication should ensure fairness and balance in the original article. Failing that, it should provide a reasonable and swift opportunity for a balancing response in an appropriate section of the publication.
News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.
Publications are free to advocate their own views and publish the bylined opinions of others, as long as readers can recognise what is fact and what is opinion. Relevant facts should not be misrepresented or suppressed, headlines and captions should fairly reflect the tenor of an article and readers should be advised of any manipulation of images and potential conflicts of interest.
Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.
Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas.
419 Ms Eatock contended and I accept, that the Australian Press Council's Principles can be regarded as an industry standard. There was evidence that those principles are consistent with those adopted by HWT. She argued that the failure of Mr Bolt and HWT to comply with those principles is demonstrative of a lack of reasonableness and good faith. I need not assess the conduct in that way. It is however of some comfort to the ultimate conclusions I have reached to note that the normative standards of the industry in question recognise that freedom of expression is to be utilised fairly and with reasonable sensitivity.
420 In coming to the view I have arrived at in relation to the reasonableness and good faith of Mr Bolt's conduct, I have taken into account the possible degree of harm that I regard that conduct may have caused. As Lee J said in Bropho at [136]:
Such harm, in the context of the Act, would be the extent to which that part of the community which consisted of persons who held racially-based views destructive of social cohesion, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the publication…
421 Mr Bolt is a journalist of very significant public standing and influence. His evidence suggests that his columns are popular and widely read. They will have been read by persons inclined to regard Mr Bolt as speaking with authority and knowledge. They will likely have been read by some persons susceptible to racial stereotyping and the formation of racially prejudicial views. I have no doubt that some people will have read the Newspaper Articles and accepted the imputations conveyed to the ordinary reader as true and correct and that racially prejudiced views have been "reinforced, encouraged or emboldened".
422 I have also taken into account what I regard to be the serious nature of the offensive conduct involved and its reasonably likely consequences upon the Aboriginal people concerned. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have had an intimidatory effect on some people.
423 I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law. Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued. Identity has a strong connection to one of the pillars of freedom of expression - "self-autonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious group": Keegstra at 763.
424 Even if I had been satisfied that the s 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith.
425 In my view, Mr Bolt's conduct involved a lack of good faith. What Mr Bolt did and what he failed to do, did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt's conduct lacked objective good faith.
426 There is, as French J recognised in Bropho at [103], a potential for overlap in the assessment of reasonableness and of good faith. Others judges have dealt with reasonableness and good faith as a composite expression: Toben at [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 the other, Lee J in Bropho at [136] and [141] considered that in both cases regard had to be given to the degree of harm likely to be caused to the protective objectives of the RDA.
427 I agree that there is a very significant overlap between good faith, objectively assessed, and reasonableness. That is particularly so because each assessment requires that the conduct in question be examined and assessed against its impact on the protective objectives of the RDA. It is an assessment which in both 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 harm likely to have been caused, leads me to the conclusion that the expressive conduct involved was not said or done reasonably.
428 Whilst Mr Bolt and HWT focused their submissions on demonstrating rationality to the "matter of public interest", I very much doubt that that approach is correct in relation to s 18D(c)(i) or (ii). It is a necessary element of the fair comment defence at common law, that a report or comment be on an event or matter of public interest. In my view that is the reason for the inclusion of that element into s 18D(c)(i) and (ii). That element is not there as a reference point from which to assess the rationality between the s 18C conduct and the matter of public interest. It is there because it is one of the requirements for a fair report or comment. I appreciate that the observations made by French J in Bropho at [81] may suggest the contrary position, although I note that at [82], his Honour indicated that he did not intend to put a definitive view about the examples which he offered.
429 Different considerations apply in relation to s 18D(b), where the relationship between the offensive conduct and the genuine purpose "in" the public interest is a matter of more obvious relevance. If I am wrong and rationality to the matter "of" public interest is an additional relevant consideration on the question of reasonableness, I would adopt the same approach I have applied in relation to s 18D(b). The existence of some rationality does not change my conclusion that the s 18C conduct was not done reasonably in pursuance of the making of a fair comment.