Federal Court of Australia Finds that Offensive Publications Breached Racial Discrimination Act

London, 12 October 2011  

On 28 September 2011, the Federal Court of Australia issued its judgment in Eatock v Bolt [2011] FCA 1103, a case brought under the Racial Discrimination Act 1975 against the author and publisher of allegedly offensive newspaper articles.  

Ms Eatock brought proceedings against Mr Andrew Bolt and the Herald Sun Newspaper (HWT) in relation to articles written by Mr Bolt and published by HWT in print and on the Herald Sun website. Ms Eatock argued that the articles contravened section 18C of the Racial Discrimination Act 1975, which states: 

(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 Court found that the imputations conveyed by the articles were as follows: 

There are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent [...] 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.

The Court concluded that both Mr Bolt and HWT had engaged in conduct which contravened section 18C of the Racial Discrimination Act 1975. In reaching its decision, the Court rejected the argument that it should apply “community standards” in determining whether the imputations were reasonably likely to cause offence. Instead the Court considered their likely impact upon “reasonable”, yet tolerant, members of the group to which the allegedly offensive conduct was directed. In carrying out its assessment against this standard the Court relied heavily upon the historical context, reasoning that: 

It will be of no surprise that a race of people subjected to oppression by reason of oppressive racial categorisation will be sensitive to being racially categorised by others. I accept that to be the case in relation to Aboriginal Australians. 

In assessing whether the articles were written and published because of racial or other considerations, the Court found that the author’s motivation was apparent from the content of the articles.

Mr Bolt and HWT could not rely upon the defences of “fair comment” and public-interest publication because, inter alia, the acts complained of were not done reasonably and in good faith. 

The Court did not make an order for relief, but directed the parties to confer with a view to agreeing on orders to give effect to the Court’s reasons for judgment.  

To read a summary of Eatock v Bolt, click  here.  

To read the Court’s judgment, click here