Andrew Bolt loses his "Section 18C" case – aka "Free Speech Betrayal Day"

September 28, 2018

On 28 September 2011, the Federal Court of Australia handed down its decision in the section 18C class action case of “(Pat) Eatock v Bolt” – aka “the 18C Bolt decision”, finding that two articles written by Herald Sun newspaper columnist, Andrew Bolt had breached section 18C of the Racial Discrimination Act 1975 (RDA or the Act) and that the Act’s section 18D exemptions did not apply.

The two articles were entitled, “It's so hip to be black” (printed edition), republished as “White is the new black” (website edition, both on 15 April 2009) and “White fellas in the black” (print and online, 21 August 2009). The articles implied that “fair-skinned” people identifying as Aboriginal may have be doing so by choice and for personal gain. 

The ruling required that the articles be removed and never republished - and that the owner of the “offending” newspaper and website, the Herald & Weekly Times, issue a public apology (see further details below).

The conduct and outcome of the case were and remains highly controversial, igniting community debate about freedom of speech, identity politics, “feels versus reals” and the definition and arbiters of “reasonable opinion”.

Then Opposition Coalition leader, Tony Abbott, condemned the decision and pledged to repeal section 18C if elected as Prime Minister to ensure free speech was restored. Yet in government, this repeal pledge was abandoned and section 18C - involving the words “… offend, insult, humiliate or intimidate another person or a group of people” – was never modified and remains so today. A ham-fisted attempt to modify - but not repeal - the section was defeated in the Senate by a leftist combination of Labor Opposition, Greens and crossbench senators. 

Since this controversial 2011 case, there have been several other high profile cases involving the late Bill Leak (cartoonist for News Corp, particularly The Australian newspaper), the QUT students, Sonia Kruger and 7's Sunrise program – with more likely to come, especially if future Race Commissioners of the Australian Human Rights Commission make habits out of “touting for business”.

Mark/commiserate this day as “Free Speech Betrayal Day” – where basic freedoms of speech were curtailed, aggressive offence-taking was indulged and section 18C was weaponised – by:

  • reading the summary verdict of the Eatock v Bolt case
  • exploring further the details and criticisms of the case, and section 18C more generally
  • seeing this IPA commentary and submission to a Parliamentary Committee on section 18C
  • scanning our Action Plan post on the birth (15 September 1995) of section 18C in the dying days of the then Keating Labor government
  • apprising yourself of the Conservative Party’s policies around section 18C and the Australian Human Rights Commission
  • signing our “Free Speech Petition” and standing up for the right to speak, and/or
  • sharing this Action Plan post on social media with family, friends, conservatives, classical liberals, those that understand the cancer of identity politics and those knowing that once your freedom of speech is denied, it is very hard to fight for and maintain your other rights.

Further details on the Bolt-section 18C case

The case’s presiding judge was Justice Mordecai Bromberg – a person that had run unsuccessfully for Labor preselection in Melbourne in 2001. In fact, according to a “very surprised” Labor Senator Kimberley Kitching in 2016, Bromberg back then:

“… was an active ALP person, he was active enough that he was in a faction, he ran for preselection... Obviously he would have had some views about [Andrew Bolt], and perhaps he was not the best person to hear [the] case.”

The main prosecuting lawyer for the nine plaintiffs in the class action was Ron Merkel QC. In mounting his case against Bolt, Merkel sensationally made reference to eugenics, Nazis, anti-Semitism, the Holocaust and more. He also said that, “Mr Bolt is entitled to express his opinions as fully and wholesomely as he wishes. The question is not a challenge to Mr Bolt's, we say, flat-earth thinking – it’s a challenge to what he's written.”

Herman Borenstein, SC, also for the nine plaintiffs, said that (according to the SMH) instead of writing about racists, Bolt had “written this diatribe which accuses the victims of racism and says, 'You should be remorseful.’”

Two months after the case was decided (November 2011), Merkel QC penned a column in The Australian replete with conflation, contortion, “feels over reals” and mental gymnastics to try and explain to a highly sceptical public the “legal error” of Bolt’s ways – which Andrew Bolt and James Allan (UQ) responded to.

A month after that (December 2011), Merkel was awarded the 2011 Human Rights Medal by the Australian Human Rights Commission – the very body that handles complaints brought under section 18C (et al) – for “his extensive human rights advocacy”.

But ironically, nearly two decades earlier (in 1994, just one year before the birth of section 18C of the RDA), Merkel published a Quadrant essay entitled, “Does Australia Need a Racial Vilification Law?” where he argued quite persuasively the case against, and his opposition to, the introduction of racial vilification laws. 

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