…from the quill of Antisthenes
It is too early to give justice to Justice Mordecai Bromberg’ decision in Pat Eatock -v- Andrew Bolt and The Herald and Weekly Times Pty Ltd yesterday. Four hundred and seventy paragraphs of careful legal writing on one hundred and fifty-five pages require careful reading. After all, The Racial Discrimination Act is no laughing matter. Unless you feel you are discriminated against; then you laugh all the way to the court.
Andrew Bolt’s article “It is so hip to be black” was published in Herald-Sun on 15th April, 2009. Its last paragraph reads:
I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.
Mr Justice Bromberg: The contents of that paragraph are incongruous and inconsistent with the contents of the article as a whole. That inconsistency, when the article is read as a whole, is likely to be understood as explicable on the basis that the disclaimer is intended as an exculpatory device (“merely formal”: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 at 557 (Burchett J)) rather than a genuine attempt to counter the contrary messages that the article otherwise conveys. Whether or not the paragraph was written with that intent, in my view it would be read and understood by the reader as merely formal and not really intended to distract from what is elsewhere said or suggested. (Page 24)
Now to paragraph 30 of the Summary of the Decision:
Finally, in dealing with the formulation of the orders to be made by the Court, I have observed that it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.
I wonder whether Mr Justice Bromberg’s own words would some unkind soul apply, mutatis mutandi, to his disclaimer, specifically to paragraph 30 of his Summary, i.e. that the content of that paragraph is incongruous and inconsistent with the content and import of the decision as a whole. Slightly editing Mr Justice Bromberg’s words – “That understanding would be reinforced by the artful manner in which the … disclaimer has been crafted.”
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