The Bolt case: racial defamation done cheap

I was all set to fulminate against the evils of section 18C of the Racial Discrimination Act in the wake of the Federal Court’s verdict against Bolt and publisher News Ltd in Eatock v Bolt.

And then it turns out the the Bolt case is not, after all, the perfect opportunity to argue bravely for freedom of expression.

Because Eatock v Bolt turns out to be very much like a defamation trial. One of the two things that the Bolt case makes clearest is that if you’re defamed in an issue about race, and you care about redress rather than money (refreshing!), then the Racial Discrimination Act is the best place to go. Someone else pays the costs and the burden of proof is much lower.

That we have essentially a special offence of racial defamation in Australia is a peculiar result of the Act that I had not realised until now. If like me you don’t much like affirmative action, this is not a good result for the country, regardless of what you think about defamation law. But it’s not as bad as result as it might have been if the case had been decided on other grounds.

OK, step back. As Jonathan Holmes has eloquently pointed out, section 18C is awful legislation. It was inserted into the Act in 1995 by the Keating government with the rest of Part IIA of the Act. Part IIA is headed “Prohibition of offensive behaviour based on racial hatred”, but section 18C it doesn’t fight racial hatred at all. Instead it outlaws certain types of speech and writing so long as they are reasonably likely to offend some people, and as long as the utterances in question are said or written because of those people’s race. This is bad and stupid in its own right, because almost anything you might say or write about race is reasonably likely to offend someone. The Act is also apt to make a lot of people feel that their views are being censored. The likely end result is racial disharmony, the opposite of the result this lousy law was supposed to have.

It’s an awful law, but it’s a simple one. Someone in a racial group felt offended. Bolt was referring to their race. It didn’t matter whether Andrew Bolt was the lovechild of Mark Twain and Mother Teresa; on the face of it, he’d breached the Act. (Bromberg J’s judgment takes a long time to get to this point.)

The legal question then was whether Bolt could use one of the Act’s exemptions. The Act exempts speech and writing in various circumstances where it’s “said or done reasonably and in good faith”, fairly and in the public interest. You might think this would cover most of what a newspaper columnist would write. This is where I was all set to write about Bolt being punished for his opinions.

And this is where we get to the second thing that the case makes clear. If Bromberg J’s summary is anything like correct, Bolt really can be monumentally sloppy with the facts. I was all set to excoriate Bromberg for interpreting the exemption too narrowly, and punishing Bolt for his expression of opinion. But it turns out the case is not about Bolt’s opinion. The judgment says (from point 378, if you’re reading it) that Bolt’s work on the facts was so bad that it didn’t get close to meeting the standard for the exemption.  Bolt said a bunch of things about the plaintiffs’ backgrounds which were wrong. He didn’t do basic checks of publicly-available information that he could have found with a minute’s Googling. Bromberg J says that he did not have to make too difficult decisions on the balance between free speech and the Act’s aims, and if his facts about Bolt are right, I can see the judge’s point.

Julian Disney from the Press Council responded to the verdict by suggesting that it showed opinion articles have to be fair and balanced. The essence of opinion writing is that it is unfair and unbalanced, so I am glad that Disney – whom I generally admire – is wrong here. Rather, the verdict seems to show that if you write about racial issues and get a lot of facts badly wrong in a way that offfends people, you may be able to get your case heard as racial discrimination, instead of going to what I suspect is the extra expense of a defamation trial. Oh, and you probably have a better chance of winning.

The judgment itself notes the close parallel with a defamation case:

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.

As I said, the idea of a special ethnic defamation code is hopelessly unsatisfactory, even if you think defamation itself is a good legal principle. Other people have made worse misrepresentations than Andrew Bolt and got away with it because section 18C of the Racial Discrimination Act didn’t cover their statements. And section 18C is an outrage anyway, outlawing statements on the basis of the “offence” they might create. It really should be repealed.

But if people start telling you Bolt was punished for his opinions, be just a little sceptical. He was punished for much the same reason as anyone on the losing end of a defamation case.

Update: I have removed a line from this article stating that “Bolt should never have had to face a court examination”. If you believe defamation law is good law (I’m ambivalent) then it’s arguable that Bolt deserved to be in court.

Update 2: Predictably, the idea that Bolt was found guilty because he got his facts wrong is now being ignored by Bolt sympathisers and opponents alike, and not just at News Ltd. Listen to Neil Mitchell interview Geoff Clark here. Note how Geoff Clark unfairly represents the judgment as declaring Bolt a racist. (Note also how Mitchell’s intelligence and civility contrasts with that of one or two Sydney commercial talkback hosts. Some Melburnians don’t understand how lucky they are.)

About David Walker

David Walker edits INTHEBLACK magazine (intheblack.com), Australia's largest-circulation business magazine, and runs publishing consultancy Shorewalker DMS (shorewalker.net). David has previously been chief operating officer of publishing firm WorkDay Media, director of communications and advocacy for the Business Council of Australia, director of policy and communications for the Committee for Economic Development of Australia, site director for online finance start-up eChoice and an editor and columnist at The Age. He has written professionally on economics, business and public policy since 1987 and spent three years in the Canberra Press Gallery. Contact him on 03 8899 7790 or email [email protected]
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182 Responses to The Bolt case: racial defamation done cheap

  1. Pedro says:

    The big jump from defamation to 18C is that the first protects the reputation of the person and the second the feelings. I think that makes is qualitively something very different. True defamation is a remedy for damage suffered (however nebulous that might sometimes seem in individual cases) and proof of the damage is an element of the claim.

  2. whyisitso says:

    “(Bromberg J’s judgment takes a long time to get to this point.)”

    Taking a long time seems to be a characteristic of Blomberg J. He took five a nd a half months to deliver his verdict measured from the last hearing date to yesterday.

  3. whyisitso says:

    Thank you David for your thread. I came to this site because I thought i’d check out some left-wing opinions (I’ve already been to Larartus Prodeo, and also read David Marr’s rant in this morning’s SMH, and half expected to see a thread by Ken Parish, who does from time to time comment on legal issues from a left ish direction. I’d place your position as somewhat right of centre.

  4. Fran Barlow says:

    While I share your objections to the formulation of s18C (I imagine I could write a more easily testable standard) I don’t agree that Bolt could have been monumentally sloppy and enjoyed relief under s18D. His sloppiness subverted his good faith relief claims, and Bromberg specifically noted the probability that others would rely on his facts as having been vetted. The News Ltd Code of Conduct runs in part as follows:

    1. Accuracy

    1.1 Facts must be reported impartially, accurately and with integrity.

    1.2 Clear distinction must be made between fact, conjecture and comment.

    1.3 Try always to tell all sides of the story in any kind of dispute.

    1.4 Do not knowingly withhold or suppress essential facts.

    1.5 Journalists should be reluctant to rely on only one source. Be careful not to recycle an error from one reference source to another. Check and check again.

    So readers had a form of warranty about the professional practice of Bolt (laughable since it is not known to have been enforced but there you have it)

    He can’t claim 18D with that in the baggage he took to court.

    Bolt might have made his trolling claims of misuse of identity for personal profit at the expense of authentic recipients (i.e those having the requisite amount of melanin in their faces to satisfy him) of a program to which he objects in toto (again one coughs at the hypocrisy) if he hadn’t actually referred to any specific living person and avoided the terrible and crushing sanction of having a correction and apology published on his behalf of course.

  5. Niall says:

    All the legal mumbo-jumbo, pseudo-political posturing and outraged cries of censorship because a minority had been picked on entirely misses the point. The law as written stands, regardless of what anyone thinks or doesn’t think about it. Bolt knew this and if he claims he didn’t he doesn’t deserve the oxygen news Limited afford him. He did wrong and was duly found wanting. End-Of-Story.

  6. jtfsoon says:

    He did wrong and was duly found wanting. End-Of-Story.

    Fair enough Niall. Are you going to turn yourself in?

  7. Gehard Giedrojc says:

    Looks like the apologists are starting to come out in force. Expect to see a lot more in the Murdoch press.

  8. Andrew Norton says:

    It’s a little technical in its legal analysis, but this article by Darryn Jensen highlights a contrast between Victorian and Commonwealth racial vilification law. The Commonwealth law deals with hurt feelings while the Victorian test deals with how the speech might affect the views other people (would it affect their opinions in a seriously negative way).

    While I do not personally support either law, the Victorian approach seems better if the underlying purpose is to avoid stirring up racial hatreds.

  9. Pedro says:

    At 241:
    “It is thus the risk of a person or one or more people within a particular group of people being offended, rather than the actuality of offence that is being assessed. Proof of actual offence for a particular person or group is neither required nor determinative, although evidence of subjective reaction is relevant to whether offence was reasonably likely”

    and 253:
    “For the reasons I have just outlined, that contention must be rejected. It is the values, standards and other circumstances of the person or group of people to whom s 18C(1)(a) refers that will bear upon the likely reaction of those persons to the act in question. It is the reaction from their perspective which is to be assessed:”

    Yes, it is about freedom of speech (at 255):
    “But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said.”
    and at 263:
    “It seems to me that s 18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.”

    “There is good reason to try and restrict continued access to, and dissemination of, the Newspaper Articles by the public.”
    LOL, the damn things are attached to the judgement!

  10. KB Keynes says:

    Bolt was sloppy with the facts as David has shown in the Judgement.

    If he had not been so lazy and catallaxian with the facts it seems this may never have happened.

    Bolt’s free speech is only restricted because if he is incapable of finding and then stating facts.

  11. jtfsoon says:

    Bolt’s free speech is only restricted because if he is incapable of finding and then stating facts.

    Homer, is your self-awareness really that limited?

    If ‘finding and then stating facts’ is an offence you’d be clapped up in irons forever

  12. KB Keynes says:

    It happens every day at Catallaxy as I have shown.

    nice egg all over your face though.

  13. JC says:

    Lol Homer, are you self aware?

    Dude, if accuracy was any measure of guilt, you would be on death row without the possibility of appeal.

  14. David Walker says:

    Pedro, I agree with all of your points above, with this rider: while Bromberg spent a lot of time philosophising in the first half of the judgment, none of that is really crucial to the case.

    Bromberg’s judgment is indeed instructive insofar as it shows what a certain type of judge might do with a future section 18C case. And of course it’s a gift to News Ltd commentators who want to make a free-speech point. But the first half of Bromberg’s judgment could be happily condensed to a page or three. It isn’t crucial to the ultimate Bolt verdict. I was trying to restrict my comments to the Bolt case only.

    Pedro’s final point at #8 above is a brilliant example of the pointlessness of trying to suppress speech in the age of the Internet.

  15. TimT says:

    The judgement is well known now and it’s already had a great deal of discussion – but it would be nice to look again at what Bolt actually wrote to be able to judge for ourselves. I presume the articles are all off line now.

    I did read at least some of the offensive articles before this all went to court and can’t recall now any examples of egregious errors.

    There was the customary exaggeration and rhetorical positioning, true, and Bolt’s views stated with his customary, er, forcefulness, but surely nothing that should have seen it end up in court.

    Every time a MSM blogger or columnist writes a contentious article will editors busy themselves with referring to the particulars of the Bolt court judgment? I doubt it. This case may not have killed free speech – but it’s certainly weakened it.

    The appropriate way to contest Bolt’s columns/blog posts would surely have been through argument.

  16. TimT says:

    Sorry, shouldn’t have sent so early –

    The appropriate way to contest Bolt’s columns/blog posts would surely have been through argument through media sources – newspapers, blogs, radio, and television – NOT the courts.

  17. KB Keynes says:

    JC you and Soony have bloody noses from all the times you have attempted to show I am wrong but ended up showing the opposite.

  18. KB Keynes says:

    Tim T he said one plaintiff got a cushy job because of her skin only problem was it was a voluntary job i.e she didn’t get paid.

    Memory not to good

  19. jtfsoon says:

    that’s very violent imagery, Homey. I’m very offended on behalf of the Catallaxian eastern suburbs salon tribe.

  20. TJW says:

    The original articles are at the end of the HTML version of the judgement at Austlii. The resolution is pretty low so they’re a bit hard to read.

  21. Ken Parish says:

    Jason

    Homer may not have intended violent imagery. He’s probably imagining giving you and Joe a figuratively but accidental bloody nose while riding his Pymble Pony Club steed into the Catallaxian eastern suburbs salon.

  22. David Walker says:

    Andrew, thanks for the link to the Darryn Jensen piece, which well depicts the perils of racial speech law. One irony of the Bolt case, at least on my reading, is that the rationes decidendi (ie. strict legal reasons) for the decision represent one of the few ways that the case could have been decided without, in Jensen’s terms, “ensnaring the court in a political dispute”.

    Lots of people want to turn the Bolt case into just such a political dispute, because like me they want to get Part IIA of the Racial Discrimination Act repealed. Sadly, on a careful reading the rationes decidendi of the case are arguably not ideally suited to that end.

    Bromberg J also threw in a huge volume of obiter dicta (comments in passing) which inserted unnecessary political flavour back into the case, and that has helped people who want to represent the case as being highly political. Bromberg will be paying for that for some time in the court of public opinion, but it probably doesn’t affect the legal reasoning. The ultimate verdict could just as well have happened in a defamation case, without Bromberg’s unnecessary comments, except that defamation trials are more expensive. As a defamation verdict, it would be much less widely depicted as an offence against free speech.

    TimT (and everyone, including Ken and Nick): it’s interesting to contemplate what would be the legal and broader civil effects of putting the Bolt articles up on the Internet – at Troppo, even – for the purpose of discussing the operation of the Racial Discrimination Act.

  23. KB Keynes says:

    ken.

    I believe you are thiking of this.
    to cause to bleed, as by a blow or accident: to bloody someone’s nose.

  24. whyisitso says:

    it’s interesting to contemplate what would be the legal and broader civil effects of putting the Bolt articles up on the Internet – at Troppo, even

    Surely after this verdict this would be a very game, even reckless thing to do.

  25. derida derider says:

    Yes, whyisitso, you might then face the draconian sanction, as Bolt is, of having to issue a correction and apology.

    Personally I think they should have sued him for libel. The monetary penalty mught make the man a little more careful next time to to pay some regard to fact.

  26. Niall says:

    Droll Jason and entirely out of context. Apart from the fact that my statements were never cast as being “in the public interest”. If that’s the best you can do it’s little wonder the blogosphere sees so little of you.

  27. KB Keynes says:

    Whyisitso,
    It wouldn’t happen at Troppo as people here get the facts right on the other hand it is a regular occurrence at Catallaxy so you may warn them.

  28. Ken Parish says:

    While “whyisitso” is lurking, I should point out re his comment #3, that I’ve consistently expressed the view, over many years and at least 5 separate posts at Troppo and its predecessors, that racial and religious vilification laws are fundamentally objectionable on democratic/freedom of speech grounds e.g. this post from 2004 and this much more recent one which is actually in part about the Bolt case.

    However I also agree with David Walker that this isn’t the case to be using as a vehicle for fulmination because Bolt just got his facts so egregiously wrong. In fact it would appear that the complainants almost certainly could have sued Bolt and/or News successfully for defamation. Moreover you have to wonder why they didn’t. As far as I can see there is nothing in the RDA or the Australian Human Rights Commission Act that displaces the usual litigation rule that costs follow the event. David says that “Someone else pays the costs and the burden of proof is much lower.” The first part of that statement is certainly true of the initial proceedings before the Racial Discrimination Commissioner and the the Human Rights Commission. But AFAIK it isn’t true of litigation before the Federal Court (which is constitutionally necessary to enforce any decision for separation of powers reasons).

    As for the “burden of proof is much lower”, I guess that’s true to the extent that, as Pedro notes at #1, the complainants only need to prove that they were offended, not that their reputations were damaged (as in the tort of defamation). However, in other respects the elements necessary to make out a defence/exemption under s18D seem fairly similar to the elements of fair comment and/or qualified privilege in defamation law. As I say, it appears that the complainants would have had little difficulty proving reputational damage in the requisite way under defamation law, and Bolt is unlikely to have been successful in establishing any of the recognised defamation defences. Maybe the complainants really WERE just concerned about the issue of principle rather than making a fast buck by suing for defamation. IMO that is very much to their credit. But that doesn’t render racial vilification laws including the RDA any more defensible as far as I’m concerned.

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  30. Yobbo says:

    Moreover you have to wonder why they didn’t.

    I think more than anything, they didn’t sue him for defamation because suing him under this law means they get to play the racist card with Bolt forever and ever. Andrew Bolt, the convicted racial abuser.

  31. KB Keynes says:

    No Yobbo ,

    For one time It would be nice if you took off your one eyed glasses.

    I am told this action allowed them to take a class action. They could not do this under libel laws.

    They merely wanted to make a point. They made it.

    Bolt was ‘egregiously wrong’ in his facts as Ken says.
    Of course he couldn’t apologise for this.
    All he had to do was get his facts right. That is a hill too far away for Bolt.

    Catallaxy types still cannot come to terms with this.

  32. JC says:

    Was he Homes? He didn’t appear to be wrong with the most pertinent facts. Most Australians have a deep concern over Aboriginal welfare and how they are getting on. As someone who 90% sides with libertarian views I’m willing to tolerate affirmative action programs for aboriginals(at least, I don’t support them but tolerate them,)… any freaking thing to get them out of the mess of the lives for most Aboriginals…

    What do we see?

    We see a bunch of pics of white looking people that culturally belong to the a Australian (western) way of life knocking off the loot that was meant for (who we thought to be) visually apparent Aboriginals. That was the basic thrust of Bolt’s concerns.

    If you say what he wrote about this had mistakes… I’m sure there may have, but it sounds to me that it would most likely be about someone’s birthday or the mother’s maiden name… like you’re asked to verify passwords.

    The grants that have been glommed were never intended for this lot, as far as most Australians think…at least how I read it.

    • Sam says:

      Your the perfect example of the intollerance/racial profiling bolt was sued for, his factual efforts in this story has had his desired effect, to you it doesnt matter if he was proven wrong by Australian law or if you have any knowledge of Aboriginality yourself as bolts reinforcments are enough for you, its easy being lazy and letting people tell you, do your own research you lazy buggers

  33. KB Keynes says:

    A perfect example.

  34. whyisitso says:

    the complainants only need to prove that they were offended

    I thought they weren’t actually required to even do that.

  35. Anthony says:

    I don’t get what’s going on in this thread (and a few earlier ones). Someone called KB Keynes keeps getting referred to as “Homer” or “Homes”. That person in turn seems the most belligerent and offensive commentator around, in that they hurl personal abuse at other commentators. Once, I recall, the Club Troppo threads were a site for intelligent discussion and exchange of views – or was I dreaming?

  36. whyisitso says:

    Unquestionably Bolt got some facts wrong. But the Professor elegantly (as ever) demolishes Marr’s pretensions .

    Getting facts wrong is a perennial quality of SMH and ABC journos, which Media Watch nearly always ignores.

  37. whyisitso says:

    Anthony, it pays to know a little history. His name is Homer Paxton, aka the Eastwood troll. He changes his pseudo fairly often in a fairly transparent way, but the more experienced commenters know who he is. I don’t think you can blame this blog as to its credit it isn’t moderated (at least these days, although it went through such a phase some years ago when I was disqualified for using a pseudonym.

  38. rog says:

    The idiot known as JC out bolts Bolt in discrimination.

  39. Ken Parish says:

    I didn’t know the Bunyip was blogging again. Why wasn’t I told?

  40. JC says:

    The idiot known as JC out bolts Bolt in discrimination.

    Rog.. your sentences are getting smaller and smaller again. Perhaps you would be so kind as to explain exactly what is bigoted.

    While there I would suggest you do two things,

    1. Go look in the mirror and debate with yourself if you’re indeed the real bigot.

    How many times have you referred to me as a “dago” at Catallaxy. Would it be less than 30?

    Don’t get me wrong, as I found your inferred racial superiority amusing.

    2. Explain exactly what you consider is bigoted in thinking that money and resources should be doled out to people that seem to have not much of a racial tie and even less culturally to what and who they claim they are.

    Would you like to explain that to a “dago”, Rog?

    Lastly, keep your personal grudges at the blogs where they started and please if I annoy you ignore my comments like I have done with yours up to now as they aren’t any better than the past.

    Oh that’s right, you don’t go to that “other” website because people laugh at most of the things you say. Remind me the one qualifier they use in responding to you… “shut up Rog”. Is that it? That’s it isn’t it.

  41. Ken Parish says:

    On reflection I want to retract or at least heavily qualify my statement at #28 that:

    the elements necessary to make out a defence/exemption under s18D seem fairly similar to the elements of fair comment and/or qualified privilege in defamation law.

    In fact, as the ABC’s Jonathan Holmes argues, the s18D defence/exemption is radically different from and much harder to make out than the defamation defence of fair comment:

    Defamation law doesn’t require fair comment to be reasonable, as we’ve seen. It doesn’t require it to be ‘in good faith’. But the exemptions listed in section 18D of the Racial Discrimination Act, including fair comment, only apply to “anything said or done reasonably and in good faith”.

    And Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won’t necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which “reasonable people might find abhorrent”.

    On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because “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.”

    And he specifically mentions, not just the wrong facts, but “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.”

    I strongly recommend Holmes’ article. It’s the most sensible, non-partisan analysis I’ve so far read on the case. Bolt might well have lost a defamation case, had one been launched, by failing to make out a defence of fair comment due to his numerous factual errors, but this case is nonetheless a good example of why s18C of the RDA is so fundamentally objectionable in the sense and for the reasons Holmes argues.

  42. whyisitso says:

    I didn’t know the Bunyip was blogging again. Why wasn’t I told?

    He’s more RWDB than ever, Ken. Much more to my taste than yours!!

  43. Ken Parish says:

    “Much more to my taste than yours!!”

    Not at all. Even if it’s very splenetic (maybe even especially so), I really enjoy intelligent right wing polemic. It’s just that there’s so little that merits the first adjective.

  44. Ken, you may find Legal Eagle’s post on this issue worth a look:

    http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/

    I am actually very surprised that the plaintiffs did not make use of defamation, because that would have had the salutary effect of emphasizing Bolt’s inaccuracies. As it is (apart from blogs like this one, and ours), Bolt is getting the opportunity to run the ‘free speech’ argument for all it’s worth, simply because — as you say — the relevant provisions of the RDA are such bad law, based on nebulous notions like ‘offence’ and ‘insult’.

    Obviously, group proceedings are easier to bring in the Federal Court, and a defamation case may require the plaintiffs to bring their claims as single plaintiffs (which may well exclude the weaker claims), but that seems minor when one considers how the ‘free speech’ angle is being played.

  45. Crank says:

    Rest In Peace, my good friend Common Sense.
    Anybody who thinks the Bolt case outcome is a good thing is blind. The potential escalation of this precedent will quell anybody wanting to voice an opinion about anything, and ultimately it will cost lives. Some may judge that as a harsh or over-the-top statement, but sadly it is not. History tells us it is true.
    Wake up Australia, not that the country needs you anyway.

  46. rog says:

    I am thinking that the RDA is an imperfect law (are laws ever “perfect”?) which was well applied.

    LE’s post is comprehensive. Taking one of the earlier points re skin colour in families – light skin kids can be treated just as badly as their darker siblings once it is established that they come from an Aboriginal family. It can start in school or earlier.

    Much of the discussion of the RDA is of the defendants position without much attention being given to the plaintiffs. Even Bolt did not dispute that he was untruthful and racist. The argument seems to be centered around his right to be untruthful and racist.

  47. rog says:

    As to the use of RDA over existing laws of defamation, perhaps because defamation apply to the individual whereas the RDA allies to a general discrimination?

  48. Pedro says:

    David and Ken, clearly the errors of fact are relevant to the case, but only to the exclusion of the defence. Bromberg J makes it clear that 18C is easy to trigger. With the discussion on tolerence I think we might have the start of a general rule as to the application of 18D; that being said, I have not had time to carefully read the whole thing. The fact that a comment has to be both reasonable and in good faith allows a judge to set the bar high.

    If you look at the discussion in 340 through 350, Bromberg seems to be doing just that. The emphasis is on minimising the harms attached by 18C and the explanation of 18D indicates that a lot of care is required to ensure that the minimisation requirement is observed. Having set the bar, his Honour then demonstrates that Bolt, through the factual errors and other issues of tone, has travelled under it with no risk of a bump to the head.

    The discussion in 410 through 415 shows that there was more than just an issue of errors of fact. The clear effect of the judgement is that any article that may be offensive on racial grounds has to be written very carefully indeed.

    I agree with who ever said that making the racist point is the likely reason for the case being under 18C and not defamation.

    The Holmes article was excellent.

  49. whyisitso says:

    Even Bolt did not dispute that he was untruthful and racist.

    I must have missed Bolt’s admission that he was racist, Rog. Can you give me a link or some other reference to that. I’ve read elsewhere that Bolt has strenuously denied he’s racist.

  50. whyisitso says:

    The Bolt case is already affecting other cases. In this case, for example, the magistrate felt constrained to say (see last sentence in report) “However, he said he was not criticising any culture that engaged in arranged marriages.”

    You must never, even in a judicial setting, criticise any aspect of a minority culture. The fact that the whole case involved overturning the effect of a cultural matter makes that last caveat “legal speak” at its most bizarre.

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  52. KB Keynes says:

    It does seem ,assuming they all got competent legal counsel, that one of the reasons they took action under this act rather than defamation is that they would not receive any monies simply win a case.

    In this way Bolt loses out twice.
    His many inaccuracies are now part of the verdict.
    His implication that the plaintiffs were only out to get money because of their ‘alleged’ aboriginality is seen for the absurdity it is.

  53. Yobbo says:

    If they weren’t out to get money, why did they apply for the scholarship that exists to give them money?

    Think before you post Homer.

  54. KB Keynes says:

    Yobbo you are comparing apples with oranges.

    Suggest you think before you comment

  55. I think Yobbo is right about the desire to attach the ‘racist’ slur to Bolt’s name, hence the RDA. It is, however, a high risk strategy, as I point out here:

    http://skepticlawyer.com.au/2011/09/30/this-is-a-sad-day-for-adequate-research/

  56. David Walker says:

    I agree strongly with Ken’s comments at #41 above and with his praise for Jonathan Holmes’ analysis of the case.

    The issue which Holmes leaves undiscussed – probably because he is not a lawyer – is the issue of whether Bromberg J’s objectionable comments at points 424 and 425 will actually be relied on by other judges. They are arguably, in legal terms, obiter dicta – that is, comments made in passing but not actually crucial to the deciding of the verdict.

    Bromberg’s distaste for Bolt’s opinions colours his verdict all the way through. This seems to be rather useful, because it flags the ways in which an opinionated judge might suppress opinions he doesn’t agree with. In that sense, the judgment moves us one step closer to the goal of repealing Part IIA of the Act.

  57. whyisitso says:

    because it flags the ways in which an opinionated judge might suppress opinions he doesn’t agree with.

    Ah yes, the old activist judge syndrome. I do recall Ken defending that process many years ago.

  58. Yobbo says:

    http://www.youtube.com/watch?v=5hfYJsQAhl0

    Standard response to all of Homer’s posts from this point on.

  59. KB Keynes says:

    Yobbo,
    I don’t post, David did that. I merely comment.

    Just think before you comment and you will be okay.

  60. Andrew1 says:

    According to either a lateline or 7.30 report on this topic a while back, Larissa Behrendt is married to Michael Lavarch, the Attorney General who was responsible for s 18C of the RDA. He appeared on the program vigorously defending the law. Maybe they just wanted to test the statute out and make an example of its uses?

  61. KB Keynes says:

    Well this decision has certainly stopped Bolt from commenting hasn’t it?

    good to see he has apologised for the egregious errors he made?

  62. JC says:

    good to see he has apologised for the egregious errors he made?

    Homes, explain eggsactly what were these egregious errors that made narrative in incorrect. List them.

  63. KB Keynes says:

    Don’t have to JC you lazy coot.They are in the judgement.

    I can tell you he accused one person of gaining employment because of her ‘aboriginality’. only one problem. The person concerned had hardly had a job since 1977!

    I think in itself would win the Catallaxy award in accuracy.

    don’t worry about any facts JC you just lie there in your ignorance and prejudice.

  64. JC says:

    So you’re saying that these people weren’t after any money/grants/jobs at all, Homer?

    Read what i asked. How do those errors materially change the narrative of his argument. List them and explain it.

  65. JC says:

    Homer:
    As an aside…..
    Do yourself a real favor. Stop mentioning the CAT in every single comment you make, as it really does make you appear sour and bitter. It’s also boring and I don’t think you’re sour and bitter :-) Get over it. Move on.

  66. Paul Bamford says:

    I won’t be crying any crocodile tears for Andrew Bolt – he got stung, bigtime, by the bee he has in his bonnet about people who are too melanin deficient to qualify (according to his criteria) as “real darkies”.

    That said, I’m not a big fan of the law he was tried under either – as David’s post states clearly:

    … if you’re defamed in an issue about race, and you care about redress rather than money (refreshing!), then the Racial Discrimination Act is the best place to go…

    I suggest that most people who are defamed probably do care more about redress than money. That, given the choice between monetary compensation for damage to their personal reputations and the redress of having their defamers eat crow, they would choose the latter: a very big, very prominent, crow-eating “I/We were wrong” on the part of their defamers/detractors.

    Perhaps that’s why Eastock et al went Bolt and the Herald & Weekly Times (aka News Limited under the Racial Discrimination Act rather than defamation law. A defamation action could – and most likely would – have been settled with a cash payment out of News Limited’s defo petty cash box. Taking action under the RDA opens the possibility of some real redress in the form of a prominent retraction (“Bolt got it wrong and our editorial staff got it wrong by not pulling his head in”).

    Perhaps the solution is (yet another) review of defo law, looking at providing real redress when people are defamed – such as the court ordered publication of a retraction with equal prominence to the original defamatory accusation. I don’t believe that this would infringe the right of free speech of either Andrew Bolt, his employers or anyone else. You’d still be free to publish whatever libels and slanders you liked, so long as you were prepared to cop the embarrassing and brand compromising consequences when you were wrong.

  67. KB Keynes says:

    JC as I said they are listed in the judgement.

    I have already given but one example.

    Another is a person who took an unpaid job.

    If you cannot figure out ask some-one

  68. Yobbo says:

    I think it’s pretty obvious they went him under the RDA because Racism is the single worst thing a political commentor can be accused of. Just making stuff up? Nobody cares about that.

    They want people to think “Racist” when they think about Andrew Bolt. “Convicted Racist Andrew Bolt”. It makes it much easier to dismiss any of his comments in the future. That’s why they went for the RDA rather than defamation.

    • Sam says:

      All your comments are about race, talk abut the law for once, your as pre occupied with race as much as bolt is, just look at a list of bolts posts, 9 to 1 in favour for race related issues, issue is the key word, must be sad being scared of anything different, humanity is great, harden up a little its not that scary

  69. rog says:

    Yobbo is quite right, whilst it was easy to dismiss Bolts comments in the past it is even easier now.

  70. TimT says:

    Surely they would have decided to prosecute bolt under the RDA not simply because they wanted to dismiss Bolt’s arguments (they would do that anyway) but to use him as an example to deter other media editors/producers and journalists/writers/columnists/presenters from dealing with contentious topics.

    What would Bolt care? People already saw him as evil incarnate, and they will keep on doing so now, so he can just continue writing about what he’s already written about with his customer, er, insouciance and bonhomie. No, it’s everyone else who doesn’t want to be seen to be like bolt that this is targeted at.

  71. TimT says:

    Apologies, everyone, for the spelling and grammatical errors. ‘Bolt’, not ‘bolt’, ‘customary’, not ‘customer’. I should have done a re-read.

  72. KB Keynes says:

    TimT it would only deter other people from dealing with similar topics if they are ‘sloppy’ with getting facts as well.

  73. TimT says:

    Or if they were dealing with contentious topics, or made an argument in which a reader may have to make a subjective judgment. Oh, I’m sure there’s plenty of potential ‘borderline’ cases that editors and producers will be umming and ahing about in the future.

  74. Paul Bamford says:

    Re #70:

    Who’s actually been deterred from expressing, or publishing, a frankly racist opinion by this judgement? Even while the Bolt case was sub judice there were opinionistas (notably at Quadrant) who were willing to run the Bolt “Too white to be real abos” argument and Bolt himself, while he protested that he was being sat on by News Limited’s lawyers, was happy to link to posts (notably at Quadrant) making the same arguments he’d make himself on the subjects of aboriginality and pigment deficiency.

    As for #68 – well, yes demonstrating that Bolt is a racist according to the Racial Discrimation Act might be a good enough reason to use the RDA, rather than ordinary defo law in this case.Thing is, leaving the RDA aside, there’s a lot of evidence that Bolt really is your common or garden racist. Who else but a racist would

    (a) campaign publicly for restricting aborigianl scholarships, art prizes etc, to “real darkies”;

    (b) insist that everyone else emulate his noble renunciation of his Dutch heritage in favour of an Australian identity that we can all share with people who used to be Dutch until they grew out of it?

  75. Pedro says:

    Homer, you should the judgement, or at least the comments of the who have. The idea that only the sloppy have anything to worry about can’t survive a proper read. It’s pretty clear that you now can’t say anything about race unless you are very careful. Claims in support of the NT intervention could fall under 18C at which point you have to prove the defense should apply.

  76. Bill Posters says:

    The idea that only the sloppy have anything to worry about can’t survive a proper read.

    Yes, they can. Bolt’s failure to get his facts straight is at the core of the judgment.

    As for people demanding to be spoon-fed a list of errors: pathetic. They are, indeed, laid out clearly in the judgment.

  77. Tel says:

    They want people to think “Racist” when they think about Andrew Bolt. “Convicted Racist Andrew Bolt”. It makes it much easier to dismiss any of his comments in the future. That’s why they went for the RDA rather than defamation.

    Agreed, and what’s more someone who makes money out of the controversy of being politically incorrect, and calculatedly provocative, like Andrew Bolt does should be prepared for this. Most important principle of law is that if you want to go out on a limb and make yourself a into test case to set a precedent, then don’t leave anything to chance.

    The modern and accepted approach to news is the Edward Bernays approach… someone in government (or big corporation) instructs the PR department to write a press release, the lazy journalists reprint the press release with a bit of entertaining, empty banter as introduction and a snappy headline. They never do any fact checking, full safe in the knowledge that they have sold out their integrity in return for political protection. Gradually, google is replacing this aggregation task with some statistical pattern matching algorithms and we can say goodbye to the middle men. Every new generation of readers is more cynical than the previous, and that’s a good thing.

    However, to the extent that Andrew Bolt is willing and able to offer an alternative to the Edward Bernays approach, he does need to make the extra effort to either do his own fact checking, or pay someone to do it for him (which I’m sure he has the budget for). When someone calls him out on a factual detail, then the gentlemanly thing to do would be to offer a correction immediately. If the original point was strong, and the factual details were only peripheral to that point, then the original point still stands. If the original point was weak then admit you have made a blunder, and move on to more pertinent points.

  78. Tel says:

    It’s pretty clear that you now can’t say anything about race unless you are very careful.

    It’s always been that way, and this holds for political incorrectness regardless of the topic. Try watching some old Japanese movies.

  79. Fran Barlow says:

    This topic raises the broader question of how one may seek to reconcile what most of us imagine is a public good — freedom of the media — with other public goods we seek — accuracy, intellectual rigour in public commentary, social inclusion and so forth.

    In my opinion, attempts by the state to use the force of law to regulate what may be uttered are an incipient hazard to confidence in the transparency of governance, and should only be entertained within very narrow and carefully defined limits and then only according to transparent protocols. There used to be an unofficial “d-notice” system in this country, and even then I found that dangerous.

    It seems to me however that it would be possible to have a system in which breaches of the professional code of practice developed not by the state but by journalists might be judiciable. Breaches, rather than being punished by swingeing fines, could be entered, along with the reasoning, into a public register. So much of the media as declared itself to be compliant with good practice would be obliged to publish prominently extracts about their publications from the register on a daily basis listing the number of breaches and outstanding unresolved complaints that had been held to have sufficient merit to be the subject of judicial review. Any journalist or regular columnist who appeared would be obliged to have their “stats” (including mentions) alongside their by-lines. Those that declined would be deemed to be outside the system and would not be able to make claims to be amidst the responsible press.

    Publications within the system could declare sections of their copy to be non-judiciable — since they were not intended as “news or serious comment” but something else (e.g. advertising, entertainment etc. ) Such sections could be marked with an appropriate “wash” or watermark. e.g yellow wash for ranting blogs, blue for advertising, etc … a specific disclaimer would attach warning that the group offered no warranty as to the accuracy of the copy, that the copy might well include serious errors of fact or inference and that readers should seek reliable sources of information upon which to rely before drawing conclusions.

    People could then make up their minds how much weight to give to the claims being made.

  80. Dan says:

    Fran: that’s brilliant!

  81. whyisitso says:

    Fran, that’s straight out of “1984′!

  82. whyisitso says:

    However, to the extent that Andrew Bolt is willing and able to offer an alternative to the Edward Bernays approach, he does need to make the extra effort to either do his own fact checking

    If I wanted to illustrate what the meanng of the expression “double standard” is, I’d use this quote as exhibit 1.

  83. Dan says:

    [email protected] – yes, media accountability is a slippery slope to three eternally warring mega-states dominated by propaganda, repression, strict delineation of class, and frustrated sex drives.

  84. Tel says:

    whyisitso: you might want to consider bringing some facts of you own into the picture, such as find a Bolt article where he has merely cut and paste from a press release.

  85. Tel says:

    Here’s an example to help, government press release here:

    http://www.nbnco.com.au/news-and-events/news/a-new-era-of-broadband-service-begins-in-first-sites-as-trial-ends.html

    A number of RSPs have already released their broadband and telephone pricing plans, with a range of plans offering different price points and service levels for broadband, voice and bundled services – and more are expected in the near future.

    SMH, slavish copy with minimal words changed:

    http://www.smh.com.au/business/nbn-delivers-first-customer-bills-20110930-1l0a0.html

    Several retail service providers have already released their retail prices for services on the NBN and are ready to start taking orders from customers within the first release sites.

    Fact checking on “14000 premises” connected? Reference to source of information? Supporting sources? Naaaa.

  86. Fran Barlow says:

    whyisitso said:

    Fran, that’s straight out of “1984′!

    Gosh … I missed the whole opt out feature of regulation in Orwell’s most famous work. It’s obviously a radically different book from the one I recall. I had no idea that it was all about empowering end users of media to make an informed judgement.

    If you’re right, the book has obviously been cited wrongly on a very large scale. People keep saying it’s all about a world of stultifying conformity backed by state coercion.

    Thanks for bringing this to my attention.

  87. KB Keynes says:

    Pedro.

    If you are trying to say read the judgment I have.

    Boly was not ‘sloppy’ He was much worse.

    for example

    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

    I am staggered by this. how could he make such an accusation without any knowledge of the what jobs she had had in her life.

    This is the very point catallaxians want to avoid. HE patently didn’t do any homework at all.

    One other aspect which has been missed is what were the Management of the HWT were thinking of?

    Why didn’t anyone ask Bolt what his sources were for his accusations?

    They deserve everything they get in this.

  88. Yobbo says:

    Thing is, leaving the RDA aside, there’s a lot of evidence that Bolt really is your common or garden racist.

    As opposed to people who offer scholarships and jobs to only people of a particular race.

  89. Dan says:

    Yobbo: you haven’t read any the reports relating to Indigenous wellbeing in this country; say, COAG’s Closing the Gap targets, have you?

    If you had, you would not embarrass yourself by trolling so glibly.

  90. Dan says:

    Isn’t it weird that the right harps on endlessly about “individual responsibility”, but when one of their most odious and overexposed fails spectacularly to exercise it, they can’t rush to his side fast enough?

    I’m sure I’ll be laughing after the vomiting stops.

  91. Fran Barlow says:

    Yobbo said:

    As opposed to people who offer scholarships and jobs to only people of a particular race.

    The problem with racism is that it tends to perpetuate social exclusion. Giving scholarships and jobs only or perhaps principally to those from a particular ostensible ethnicity (or sex or gender group) generally fails the test of equity.

    Yet an affirmative action policy that resulted in diminishing the award of scholarships and jobs to a limited range of ostensible ethnicities and meant that those from traditionally marginalised groups began to win them, would be warranted. It would not be racist or sexist or “genderist” because it would be approaching equity.

    There can also be occupationally relevant reasons for a person to be of a particular ethnicity in some cases. Thus, rape crisis centres often privilege women in centres dealing mainly with female clients. Having someone from a particular ethnicity deal with a problem arising within that community might be more useful. That’s not racist. The law does provide exemptions when there are grounds for it.

    FTR, as a general rule, I’m opposed to affirmative action when this means reservations of this kind. I’d sooner work on the back end — doing what is needed to reduce the need for quotas to overcome disadvantage. Thus, we work on ensuring greater pools of suitably qualified persons from historically marginalised communities qualify on merit. We should also keep a scorecard at the award point and where there seems to be a continuing statistical anomaly challenge orgainsations to show that their policies really were working to overcome disparities. Only when all else has failed should we start looking at firm quotas.

    Little of this is germane here of course since as we have seen, Blot was simply lying to underpin his venting.

  92. Dan says:

    You’re wonderful, Fran. I can’t be arsed explaining things properly to the likes of Yobbo (who I’d imagine will, with not inconsiderable effort, fail to grasp your point), but I’m glad you can.

  93. john says:

    Fran You say it well!

    Opinion is much much cheaper to produce than journalism. With opinion, there is no need to extensively research and there is no risk of spending money on projects that do not in the end deliver a entertaining result, the massive shear volume of modern media publishing ‘channels’ makes it ,I fear, inevitable that excellence will be completely drowned in a sea of yellow.

  94. Fran Barlow says:

    Thanks John and Dan … I’m glad you found my remarks useful.

    My twitter feed is @fran_b__ should you be so inclined …

  95. Yobbo says:

    Yobbo: you haven’t read any the reports relating to Indigenous wellbeing in this country; say, COAG’s Closing the Gap targets, have you?

    No, I haven’t, Dan. But then I don’t really need to read them to know that many indigenous people are disadvantaged in Australia.

    But that was kind of Bolt’s point. The people who he called out in the original article were not from disadvantaged backgrounds. The affirmative action quotas are not means-tested, they are based purely on race.

    If you want to help disadvantaged people, then offer scholarships and jobs to people from disadvantaged backgrounds, not simply to anyone who can prove Aboriginal ancestry.

    Not all aboriginal people are struggling, and not all white people are wealthy. That is why race-based quotas and affirmative action are stupid, and that is exactly what Bolt is saying.

  96. Yobbo says:

    Larissa Behrendt’s father was an Air Traffic Controller and her mother a naval officer. She was hardly disadvantaged.

    She was nevertheless the beneficiary of affirmative action in her gaining admission into both UNSW law and later Harvard. Purely because she is 1/4 Aboriginal.

  97. Dan says:

    Fran’s already pointed to the fact that having Indigenous people in positions of prominence and influence has benefits beyond those just for the specific person concerned.

  98. Yobbo says:

    Fran’s posts are just a Rorschach test Dan. They don’t say anything, you just read into them whatever you want to read.

  99. KB Keynes says:

    oh dear Yobbo hasn’t read the judgement.
    this is 122

    Prof Behrendt began to experience racism when she began her schooling. She was teased for being “black”. Prof Behrendt was motivated to become a lawyer because her grandmother had been removed from her family by what Prof Behrendt regarded as a racist policy. She graduated in law at the University of New South Wales and completed a Masters and then a Doctorate in law at Harvard Law School. She was not the beneficiary of any special admission program for Aboriginal people. She competed with everyone else for her place at Harvard. Prof Behrendt has held several positions that she could only have held as an Aboriginal person. She has also won and been nominated for a number of awards for which only Aboriginal persons were eligible. That she has obtained those positions and awards is regarded by her as indicative of her acceptance as an Aboriginal person by the Aboriginal community. She has been recognised as an Aboriginal person in the wider community as well, including by winning a number of awards such as the Victorian Premier’s Literary Award for Indigenous writing.

    Any time you wish to say you have ‘Bolted’ yourself you can

  100. Yobbo says:

    She was not the beneficiary of any special admission program for Aboriginal people. She competed with everyone else for her place at Harvard.

    She was selected ahead of other, more academically capable applicants for diversity reasons Homer. One of the students who missed out on a place challenged her offer.

    Ivy League Universities do not have written affirmative action policies, but it is well known that being a minority increases your chances of admission, because universities like to have a “culturally diverse” student populace.

  101. Neil H says:

    She was selected ahead of other, more academically capable applicants for diversity reasons Homer. One of the students who missed out on a place challenged her offer.</code.

    How fascinating that in some sort of dispute between an Aboriginal person and somebody else, Yobbo automatically assumes that the Aboriginal person is the one in the wrong. That's assuming that this alleged dispute ever occurred of course. Maybe it did, but the details presented about it (who complained? what did they specifically allege?) seem awfully sketchy for such a serious accusation.

    I suspect that the only people who "know" that universities unofficially offer more places to minorities are white people who missed out on a uni placement. It's rumour based on sour grapes, not fact.

  102. FDB says:

    She was selected ahead of other, more academically capable applicants for diversity reasons Homer. One of the students who missed out on a place challenged her offer.

    Ivy League Universities do not have written affirmative action policies, but it is well known that being a minority increases your chances of admission, because universities like to have a “culturally diverse” student populace.

    Well, case closed then I guess.

    That’s fucking pathetic Yobbo. No self-identified Aboriginal person of whatever skin colour could hold a university position without you assuming it’s an example of Secret Affirmative Action.

    Fucking. Pathetic.

  103. Yobbo says:

    I suspect that the only people who “know” that universities unofficially offer more places to minorities are white people who missed out on a uni placement. It’s rumour based on sour grapes, not fact.

    http://www.lagriffedulion.f2s.com/color_of_meritocracy.htm

    Or, you know, actual statistics.

  104. Yobbo says:

    Well, case closed then I guess.

    You guys act as if claiming that affirmative action occurs is somehow controversial? In fact it was established policy at most US universities to set aside places for minorities only – until it was outlawed in a lot of states in the late 90s. Now applicants are assessed on their entire application, rather than just high school scores, and cultural/ethnic diversity makes up part of that application.

    This is not controversial or speculative at all, it’s just fact and I’m surprised you guys aren’t already aware.

  105. Yobbo says:

    That’s fucking pathetic Yobbo. No self-identified Aboriginal person of whatever skin colour could hold a university position without you assuming it’s an example of Secret Affirmative Action.

    Of course they could FDB. Most Australian university courses select people based purely on their tertiary entrance scores. So anyone who gained access to those courses under the normal admission stream earned their place purely on merit.

    American Ive League Universities however, do not extend offers based purely on test scores. They require a written application and interview process, and they absolutely do take ethnic diversity into account when recruiting. In fact, most of them stress this proudly in their mission statements.

  106. FDB says:

    You guys act as if claiming that affirmative action occurs is somehow controversial?

    I can’t believe you think that’s all you have claimed. You asserted that it occurred in a particular case, with zero evidence. Neither you nor Bolt seems to understand the importance of this.

    Tell me, how would an Aboriginal person with a university place avoid your accusation? Renouncing their Aboriginality would seem their only option.

  107. KB Keynes says:

    Really Yobbo,

    provide evidence. I did

  108. FDB says:

    So anyone who gained access to those courses under the normal admission stream earned their place purely on merit.

    It’s interesting that you accept she earned her place at UNSW, but didn’t at Harvard.

    What gives?

    Did Harvard knock back your application to study Game Theory or something?

  109. Yobbo says:

    They don’t do this for reasons of disadvantage though. Since, as I noted earlier, it’s racist to assume that someone is disadvantaged based on their skin colour. And Americans realise this more than most other countries, since race relations are a very hot topic there.

    They do it because they “want the ethnic mix of their campus to reflect the ethnic mix of the wider community”. If they recruited based on test scores alone then 85% of their student body would be white or asian.

  110. KB Keynes says:

    here is Yobbo thinking courtesy of Catallaxy.

    Our Friend sinclair Davidson, the Goebbels of Catallaxy, wrote of the Bolt Show Trial. Ni I kin you not that is the name of it. Very Goebellian indeed.

    First some sense from tom Nash then some typical catallaxy thinking from Resident intellectual Mark Hill.

    Actually, the issue is not Bolt’s supposedly “unwelcome truths” but his numerous lies and fabrications. The Sunday Age on page 5 today sets them out clearly.

    Just as Bolt’s many of climate change talking points (linked to and repeated so often on Catallaxy) have been shown on places like Deltoid to dodgy, misleading and/or clearly false, so with many of the points in his aboriginal article.

    If Catallaxians have any concern for rigour, its time they faced up to the fact that this Right Wing Attack Dog really is just a dog.

    The troll formerly known as Tom N.

    2 Oct 11 at 10:38 am
    Maybe.

    But he has (or should have) a right to say it.

    Despite his many mistakes, you have taken what he said out of context.

    His key message is that less deserving people are getting AA and they embellish their past. He is correct

    He also days later there is no such thing as a ‘white’ aborigine.

    wow we must add biology to the vast amounts of subjects he is ignorant about.

    one of the best economists in the market during the 80s/90s was an aborigine who was whiter than me and had red hair to boot.

    not only that he was realted to the late Dave Sands.

  111. Neil H says:

    http://www.lagriffedulion.f2s.com/color_of_meritocracy.htm

    Or, you know, actual statistics.

    Oh gosh, look at all those numbers! Clearly using numbers means accuracy!

    Well, not really. From the site:
    Each fall Berkeley admits about 3500 freshmen. Some seats go to nonresidents, but assume for simplicity that Californians fill the 3500 slots.

    That “simplicity” is simplistic nonsense. An nationally renowned elite school will, by definition, attract admissions from around the country. Where is the *national* breakdown of who applies to Berkeley, hm? And where is the comparison to the *national* alleged ability averages? Funny how this site (which, incidentally, approvingly quotes Nazi apologist Pat Buchanan) conveniently skips over these essential details for “simplicity”. I’m not going to comment on the practice of picking and choosing standard deviations from unrelated surveys to come up with an alleged recially-based IQ average until someone with more experience in statistics than me has a look at it. It sounds fraudulent.

    Then of course this dubious statistical chicanery has only been applied to undergraduate applications at Berkely, when Professor Behrendt studied as a postgrad at Harvard.

    So no, I’m still going with the “sour grapes” theory myself to explain why people think Professor Behrendt didn’t earn her Doctorate, since there’s no real statistical evidence to suggest racial preferencing.

  112. Yobbo says:

    It’s interesting that you accept she earned her place at UNSW, but didn’t at Harvard.

    What gives?

    Because Australian Universities recruit for most courses based on school results alone, but American universities do not.

  113. Yobbo says:

    That “simplicity” is simplistic nonsense. An nationally renowned elite school will, by definition, attract admissions from around the country

    Berkeley (full name: The University of California, Berkeley Campus) is a state school and therefore has to give preference to Californian residents by law.

  114. Yobbo says:

    So no, I’m still going with the “sour grapes” theory myself to explain why people think Professor Behrendt didn’t earn her Doctorate

    If she completed the course then she earned her doctorate. The point is that being of a minority ethnicity makes it easier to gain a placement in an elite US school, all other things being equal.

  115. Peter says:

    @60

    And what would be wrong with that?

  116. Yobbo says:

    It sounds fraudulent.

    It doesn’t “sound fraudulent” at all. It’s just a shock to you because you had no idea that US universities offer places based partly on race. Now you do, welcome to reality.

    which, incidentally, approvingly quotes Nazi apologist Pat Buchanan

    Actually it quotes Pat Buchanan and then, using statistics, explains why he is wrong.

  117. Neil H says:

    Berkeley (full name: The University of California, Berkeley Campus) is a state school and therefore has to give preference to Californian residents by law.

    I ask again: what’s the actual breakdown for state and non-state admissions? It still hasn’t been provided. This source of statistical distortion isn’t something you can just gloss over for “simplicity”.

    You’ve also now admitted that Berkeley makes selection by something other than cognitive ability, and also something other than race. So how can you tell which factors affect decisions?

    I also just realised something: the site’s statistical operations assumes that everybody in California to Berkely. It simplistically decides that the average racial IQ of Berkeley applicants is exactly identical to the average racial IQ of the general population, and that you can judge eligibility for admission based on the average abilities of the whole population, not just the small and unrepresentative subsegment of the population that (1) applies to university at all, and (2) applies to Berkeley. This is obviously wrong.

    All a higher proportion of black, Asian or other ethnic minorities gaining admission relative to average ability in the general population would indicate, if such a disparity even exists (still unproven since even you have now admitted that there are distorting factors that render “cognitive ability” inaccurate as a measurement), is that the average racial distribution of IQ among Berkely applicants is different to that of the average population. Can you disprove this with your statistics? No you can’t.

    The point is that being of a minority ethnicity makes it easier to gain a placement in an elite US school, all other things being equal.

    Professor Behrendt is not Asian, is not African-American, in fact is not of any ethnicity listed on your website, did not apply as an undergraduate, and did not apply to Berkeley. In what way does the so-called statistical evidence presented apply to her situation in any way whatsoever?

  118. Yobbo says:

    All a higher proportion of black, Asian or other ethnic minorities gaining admission relative to average ability in the general population would indicate, if such a disparity even exists (still unproven since even you have now admitted that there are distorting factors that render “cognitive ability” inaccurate as a measurement), is that the average racial distribution of IQ among Berkely applicants is different to that of the average population. Can you disprove this with your statistics? No you can’t.

    Neil, why are you still pretending that this is even up for debate? Racial preference exists in US university intakes. The supreme court ruled 5-4 it is legal to take race into account in admissions.

    http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke

    It’s not a secret.

    http://www.diversityweb.org/digest/f98/farreaching.html

    Black undergraduate students have lower SAT scores than other races. They are admitted with lower average scores for diversity reasons. This is not contested by anyone, except you.

  119. Neil H says:

    Ah, I apologise for not noticing the Harvard “statistics” further down in the article. The numerous errors in the Berkeley section occupied my time.

    Buchanan’s articles have become rallying points for Euro-Americans resentful of abuses inflicted upon them by the ruling diversity elite.

    Disagreeing with the specifics of Buchanan’s examination of Harvard, they still approve of the Nazi apologist’s opposition to the “diversity elite”, although they disagree with him that Harvard is an example of this (for them it’s Berkeley). Fascinating that in this examination of Harvard students, they openly admit that trying to judge the membership of universities by comparing it to the make-up of the population as a whole (both university and non-university) is the wrong thing to do. Despite having done exactly that when examining Berkeley.

  120. Yobbo says:

    Neil, you’ve beclowned yourself in this thread. I’m not going to jump through any more of your hoops until you concede that race is a factor in US university admissions. Because the universities themselves do not hide the fact that it is a factor. In fact they are proud of it.

  121. Neil H says:

    Black undergraduate students have lower SAT scores than other races. They are admitted with lower average scores for diversity reasons. This is not contested by anyone, except you.

    All I’m contesting is that Professor Behrendt “was selected ahead of other, more academically capable applicants for diversity reasons” as you originally claimed. You’ve tried to prove the existence of covert anti-White discrimination in the selection process for Freshman (irrelevant to her situation as a postgrad, but whatever). You presented flawed statistics to “prove” that academically capable white and asian people were missing out on university placements which I then demonstrated as flawed.

    Going back to your original claim, since you’ve now switched from using “cognitive ability” to using SAT scores as a measurement of what you mean by “academically capable”, I should point out that those two things are not the same. I don’t dispute that many factors go into selection, and neither do you. In fact you’ve now introduced two: geographic location and SAT score results. Neither one of these applies to Professor Behrendt’s situation, obviously. So I still don’t know where you’re getting your claim that Professor Behrendt’s postgraduate study was awarded to her on racial grounds. You understand that the processes of evaluation for Freshman and postgraduate applications aren’t remotely the same right?

  122. Yobbo says:

    So I still don’t know where you’re getting your claim that Professor Behrendt’s postgraduate study was awarded to her on racial grounds.

    Never claimed that. Just that it’s a beneficial factor in gaining admission.

    You’ve tried to prove the existence of covert anti-White discrimination in the selection process for Freshman

    It’s not covert and there’s no need for me to prove it. Universities have gone to the supreme court to defend their right to favour minorities in selection, and won.

    Until you admit that there’s nothing more to talk about.

  123. Neil H says:

    Neil, you’ve beclowned yourself in this thread. I’m not going to jump through any more of your hoops until you concede that race is a factor in US university admissions. Because the universities themselves do not hide the fact that it is a factor. In fact they are proud of it.

    You want me to admit racial quotas exist in American universities? Racial quotas exist in American universities, including Harvard. But Harvard engages in no “unofficial discrimination” that you accuse Professor Behrendt of benefiting from, as your own evidence has shown:

    http://www.lagriffedulion.f2s.com/color_of_meritocracy.htm

    Enrollment at Harvard is not exactly a mirror of America, but in a meritocratic society, our elite schools would no more mirror our population than does the National Basketball Association..Strip away the rhetoric and we are left with a reflection of how intelligence is distributed in America.

    Let’s see, where did Professor Behrendt get her Doctorate again? And did she get it through an allocated quota or through undergoing a selection process?

  124. Yobbo says:

    From the harvard law school application website:

    Each application is considered in its entirety, including transcripts, extracurricular and community activities, work experience, personal background, letters of recommendation, personal statement, LSAT score(s), and LSAT writing sample. Through individual consideration, the admissions committee seeks not only to identify individual characteristics that are important to academic success in law school, but also other qualities that promote vitality, diversity, and excellence in the student body.

  125. Yobbo says:

    What could be more diverse than a student who is not only from a foreign country, but from a disadvantaged minority in that foreign country?

  126. KB Keynes says:

    Yobbo at 123

    So I still don’t know where you’re getting your claim that Professor Behrendt’s postgraduate study was awarded to her on racial grounds.

    Never claimed that. Just that it’s a beneficial factor in gaining admission.

    Yobbo at 101

    She was not the beneficiary of any special admission program for Aboriginal people. She competed with everyone else for her place at Harvard.

    She was selected ahead of other, more academically capable applicants for diversity reasons Homer. One of the students who missed out on a place challenged her offer.

    Yobbo obviously doing a Mark Hill impression or has no memory

  127. Neil H says:

    Each application is considered in its entirety, including transcripts, extracurricular and community activities, work experience, personal background, letters of recommendation, personal statement, LSAT score(s), and LSAT writing sample. Through individual consideration, the admissions committee seeks not only to identify individual characteristics that are important to academic success in law school, but also other qualities that promote vitality, diversity, and excellence in the student body.

    I take it I’m supposed to read “diversity” as code for “race” (although it could just as easily refer to nationality – would you be complaining so much if Professor Behrendt got her place in part by virtue of being Australian?). “Personal background” could refer to most anything, so I’m ignoring it.

    Very well, I admit that out of the many non-academics factors that go into the selection process, “diversity” is one that has a slight influence on the selection process. But I don’t concede that the possible “race” subsegment of the “diversity” subsegment of the large list of factors going into the selection, some of them related to academic ability and some of them not, indicates that Professor Behrendt deserved her postgraduate placement any less than (and actually considerably more than), say, a white person who scraped through their undergraduate degree but has a really neat letter of recommendation from a friendly professor. I don’t concede that “sour grapes” is irrelevant to your claim that Professor Behrendt somehow deprived a white person of a degree.

  128. Yobbo says:

    I take it I’m supposed to read “diversity” as code for “race”

    Yes, you are. Because that’s what it means both in theory and practice.

  129. Yobbo says:

    “Personal background” could refer to most anything, so I’m ignoring it.

    Well, you can be pretty sure that it doesn’t refer to any of the other things that they listed separately.

  130. Neil H says:

    Yes, you are. Because that’s what it means both in theory and practice

    .

    So not sexual diversity then?

  131. Yobbo says:

    I don’t concede that “sour grapes” is irrelevant to your claim that Professor Behrendt somehow deprived a white person of a degree.

    Or, more likely, an asian person – who are the biggest victims of affirmative action programs in the US.

  132. Yobbo says:

    So not sexual diversity then?

    There’s no question on the application form for sexual orientation. But there is for race, so you do the math.

  133. Neil H says:

    Or, more likely, an asian person – who are the biggest victims of affirmative action programs in the US.

    what affirmative action program are you talking about? There was no such program here.

  134. Neil H says:

    There’s no question on the application form for sexual orientation. But there is for race, so you do the math.

    Alright. Diversity != race.

    Diversity can include race as a subset? Correct.

    Diversity cannot exclude race as a subset? False.

    I’m still more concerned about that “letter of recommendation” thing. It seems much more open to abuse than “diversity” in terms of getting people in who can’t keep up with the academic demand.s

    Of course, you’ve already admitted that Professor Behrendt *could* keep up with the academic demands, so….

  135. Yobbo says:

    Diversity means race in terms of University Admissions Neil. Just admit it and move on. It doesn’t mean they are trying to balance the number of Collingwood fans vs Essendon fans, Crossword vs Soduku lovers, or Cat vs Dog people. It means racial diversity.

  136. Neil H says:

    Diversity means race in terms of University Admissions Neil. Just admit it and move on.

    Um, no. I’ve listened to far too many leftie academics to think it could ever be as narrow a definition as that.

    It doesn’t mean they are trying to balance the number of Collingwood fans vs Essendon fans, Crossword vs Soduku lovers, or Cat vs Dog people.

    Never said it did.

  137. FDB says:

    So Yobbo, it seems you’re perfectly comfortable with asserting that Prof Behrendt’s position at Harvard was awarded without merit. Or at least that there must have been candidates whose applications, taken on academic merit alone, should have been given precedence.

    I ask you again – what basis do you have for this assertion?

    Not to put too fine a point on it, it appears to me that the only basis you have is prejudice.

    Incidentally, the only argument I find persuasive against affirmative action is that it results in anyone from a ‘disadvantaged minority’ having their credentials routinely questioned for no other reason than that they are suspected to have benefited from such a program.

    Catch-22 much?

  138. Yobbo says:

    I’ve listened to far too many leftie academics

    I think we found your problem. It’s been educational.

  139. Neil H says:

    I think we found your problem. It’s been educational

    .

    I never said I agreed with them :P. I lean libertarian some ways, classical conservative some others, socially democratic in others. The old “brainwashed by lefties” canard is just how neoconservatives and the more bigoted paleocons dismiss evidence and arguments they don’t like. My terrible “leftie-addled” mind calls that ad hominem.

    Still no evidence that Professor Behrendt unfairly deprived a white person (or an Asian if you prefer) of a degree.

  140. Yobbo says:

    Incidentally, the only argument I find persuasive against affirmative action is that it results in anyone from a ‘disadvantaged minority’ having their credentials routinely questioned

    You don’t find that people being excluded from things on the basis of race a good enough argument against it?

    There’s not really an issue with questioning credentials. If you’re good enough to pass, then you deserve the degree you earned.

    But to be able to pass you firstly have to gain entrance, and being born the right colour certainly helps in that regard, at least in the US. Almost every university course has more applicants than there are places.

  141. Yobbo says:

    And I should note that in many university degrees, getting into them is far harder than the degree itself, simply because there are so few places. Medicine is the classic example. Engineering is a much tougher degree than medicine, but your average University has 25 spots for medicine each year, and 800 Engineering spots.

    So the real challenge in getting a degree in Medicine is achieving high enough grades to get into a medical school, rather than passing medical school. You don’t have to be a genius to pass the course, but you do have to be genius to be admitted. (or, you know, “diverse”).

  142. Neil H says:

    you do have to be genius to be admitted. (or, you know, “diverse”).

    Or have a good spread of “extracurricular and community activities”. Or else a good element of “work experience”. Failing that, you can bolster your case with “letters of recommendation”.

    Of all these many forms by which university admission can be leveraged, none of which directly demonstrate any actual academic ability, you pick out “diversity”, and ONLY “diversity”, as something bad because it’s not directly related to individual academic ability?

    How very interesting.

  143. Yobbo says:

    Yes, I pick out “diversity” as something bad because all the other things can be accomplished through hard work and committment, whereas nothing you can do can change your race.

    You know, the whole racism thing.

  144. Neil H says:

    Yes, I pick out “diversity” as something bad because all the other things can be accomplished through hard work and committment

    So you’ve given up on claiming that universities should only select people based on academic merit?

    whereas nothing you can do can change your race.

    Andrew Bolt’s whole premise of his article decrying Professor Behrendt (among others) was that you could indeed do exactly that. Did you read it?

  145. Yobbo says:

    No, the premise of his article was that if you are trying to help disadvantaged people, you should offer scholarships and assistance to people who have experienced actual disadvantage, rather than just wealthy, middle class people of a certain ethnicity.

  146. Dan says:

    I, for one, am reassured that, unlike Harvard’s admissions board, Yobbo is able to distinguish between worthy and unworthy candidates for postgraduate study at the aforementioned institution.

  147. FDB says:

    Yobbo:

    You don’t find that people being excluded from things on the basis of race a good enough argument against it?

    No, I don’t. The entire point of it is to redress, by means of a blunt instrument, a racial imbalance. It would be lovely if this could be done without racism, but it cannot.

    I note that you have utterly failed to address my main question, viz:

    Yobbo, it seems you’re perfectly comfortable with asserting that Prof Behrendt’s position at Harvard was awarded without merit. Or at least that there must have been candidates whose applications, taken on academic merit alone, should have been given precedence.

    I ask you again – what basis do you have for this assertion?

    Will you address it?

  148. Paul Bamford says:

    Engineering is a much tougher degree than medicine, but your average University has 25 spots for medicine each year, and 800 Engineering spots.

    Now there’s an assertion worthy of Andrew Bolt himself.

  149. Dan says:

    Hey Paul, who said that? That’s complete toss. I know plenty of engineers and plenty of doctors and I know for *damn* sure who worked harder during their degrees. Not that either are easy, of course.

  150. Tel says:

    Just out of interest, I searched and reasonably easily found:

    http://diversity.berkeley.edu/sp_expected_outcomes

    Intergroup disparities in the enrollment, retention, and graduation rates of undergraduate and graduate students are eliminated.

    Sounds like a pretty clear policy of “positive” discrimination, by forcing the stats to balance. The trouble with attempting to do this, is firstly that there are an arbitrarily large number of so called “groups” out there (depending on how you want to define it), and every so called “group” has fuzzy edges, resulting in difficult marginal cases.

    So somewhere under all those stats are a bunch of half-this half-that people who were thrown into whichever bin seemed reasonable at the time, and the ongoing force of immigration plus random interbreeding will guarantee that problem becomes more difficult over the years. Then they will be stuck with the job of dismantling the apparatus.

    Anyhow, I still hold that if Bolt’s objective was to point out that racial identity in marginal cases opens a can of worms, then he has at least drawn attention to a sticky subject… but there would have been more elegant and polite ways to achieve this. La Griffe du Lion shows more class than Bolt.

  151. KB Keynes says:

    FDP,

    He ain’t going to

  152. Peter Patton says:

    Yobbo

    Because Australian Universities recruit for most courses based on school results alone, but American universities do not.

    You’re 10-15 years behind the times. I don’t have the exact stats breakdown – others here will – but the % of folks in 1st year at Australian universities, who are there just because of their ATAR school from last year’s HSC has been decreasing for years. In many degrees (again, don’t know the exact figures), the % is dropping close to 50%.

    Australian universities not only admit a large number of mature-age folks, but a lot of full-fee paying Asian and other foreign students. None of these groups even have ATAR scores. Then, there are those who are starting another undergraduate degree, or transferring away from one. Even when we get to the 18 year olds who did their HSC last year, universities will tack on extra points to the ATAR score (max 99.95) for things like:

    1. 5.0 extra points If you live in the western suburbs of Sydney

    2. 10.0 bonus points of you did OK in English Extension 1, and even 10.0 for doing better not but better than 50.0 in the English For Dummies course!

    3. Up to 5 points if you are an elite athlete or musician.

    4. If you perform in the top 20% or so in any of the even least challenging subjects, such as Legal Studies, Business Studies, Aboriginal Studies. Now, most unis won’t apply these bonuses for courses like Medicine or Law.

    5. But if your goal IS Medicine, you get significant bonus points if you are from the bush. Some unis do it via quota; say, each entry has 25% if its places reserved for bush people OR others willing to be bonded for 6 years. There’s usually a cut-off “Remoteness Area” score. Now, at UNSW, the ATAR for general admission to Medicine is around 99.8. I know of 1 bush kid who got in with 90.5. Of course, these places are usually bonded, meaning you have to bush for 5 or so years after you’ve graduated. Oh yeah, and you get paid $25,000 tax-free while you study.

    6. As far as extra points go, even better if you are an Aborigine, especially for Medicine, but also Law, et.al. Personally, I’m very cool with affirmative action for Aborigines, and a few other groups as well. But as we are now just discovering, how long ago are we allowed to dig back into our past to satisfy that first (of three) limb of getting the Aboriginal stamp of approval?

    Until a few years ago, there were no Aboriginal doctors in Australia. The first surgeon only started a couple of years ago. Here’s the UNSW’s “Medical’s Nine” for 2010.

    http://www.unsw.edu.au/news/pad/articles/2010/aug/Indig_medicine.html

  153. whyisitso says:

    Personally, I’m very cool with affirmative action for Aborigines, and a few other groups as well.

    I assume from the context you mean “cool” in the sense my granddaughter uses it?

  154. whyisitso says:

    1. 5.0 extra points If you live in the western suburbs of Sydney

    That’s interesting. Exactly what are the Western Suburbs of Sydney? It’s been said that Ashfield has been renamed as “The Pale”. Anything west of Ashfield is thus Beyond the Pale as far as the latte sippers of Glebe, Lilyfield and Balmain are concerned.

  155. Paul Bamford says:

    Bolt nails himself in an interview with The Australian:

    If our free speech depends on me in the end, then we really are stuffed.

  156. whyisitso says:

    The ban on free speech in the media is gaining momentum.

    Any comment on a political issue in the mainstream media is now to be construed as political advertising. Look out RWDB commentators on radio such as Alan Jones and the group at 2GB.

    It won’t affect the Left of course. Mike Carlton and David Marr will be exempt, as will the Head of the Government (no not Julia, she’s only the Prime Minister. It won’t be long before bloggers will be gone.

  157. Paul Bamford says:

    Any comment on a political issue in the mainstream media is now to be construed as political advertising. Look out RWDB commentators on radio such as Alan Jones and the group at 2GB.

    Would that be “cash for comment” Alan Jones, whyisitso? The bloke who took money from Telstra to stop slagging them on air and provide “on-air reads” written by Telstra themselves?

    Before we decry this as an attack on free speech, maybe we should wait for some more facts – then we might conclude that Phil Gould is perfectly entitled to express opinions that promote his interests as general manager of the Penrith Panthers just as Alan Jones is entitled to express the opinions that he’s paid to hold because that’s what freedom of speech is all about.

    That’s why we’re really stuffed if free speech depends on Andrew Bolt, Phil Gould or Alan Jones: these are guys whose only interest in free speech is blatantly venal. If you want a martyr to free speech in this country it’s time to look for someone who’s a lot less obviously self-serving in their exercise of that political right.

  158. KB Keynes says:

    Yobbo,
    Did you ever consider Bolt is the wrong person to defend at all. Consider the political implications If an investigative reporter does an expose’ on the same topic and finds actual evidence.
    The said persons could simply conflate that investigation with Bolt each and every time.

    The ‘free speech’ theme is a lemon. the day after who was on the cover on the HWT?

    Some restriction. He still cannot apologise.

  159. whyisitso says:

    only interest in free speech is blatantly venal

    Exactly my point. The left are so full of their own moral “virtue” and vanity, they regard anyone less “worthy” as not entitled to even open their mouths.

  160. KB Keynes says:

    Whyisitso,

    you are having yourself on.

    Why can’t you people just admit he got his ‘facts’ wrong, badly wrong.

    If Bolt had have done his homework we wouldn’t be talking about this now.

    He doesn’t and got caught out bigtime.

    By the way do you believe it was a ‘show trial’?

  161. whyisitso says:

    Facts? – when have the Leftie journalists ever been concerned about Facts?

  162. Dan says:

    “Two wrongs make a right, Lisa!”

  163. Pedro says:

    Homer, you really should read the judgement. If you did, you would see that wrong claims of fact are not the only free speech issue to come out of it. Feel free to come out in favour of 18C, but don’t bullshit about the issues in the case.

    Paul B, the problem with a partial attachment to free speech is that you might end up on the otherside of the argument one day. Proscriptions are all very well until there is a new Caesar.

    Here is the Gould story from the SMH

    “”The proposed mandatory pre-commitment that they’ve put forward is a rubbish policy. It won’t work, it won’t solve the problem they say they’re going to target, and it will do irreparable damage to the hospitality industry,” he said.

    “It won’t work and it will hurt, they are 100 per cent right. I’ve never seen a more stupid policy in all my life.”

    Mr Wilkie said the remarks were passed off as commentary when it sounded more like political advertising.”

    So, nothing to see here right? Gould will be investigated for saying that and nobody is worried about it?

  164. KB Keynes says:

    Pedro,

    don’t sprout cow manure.

    The patently false evidence of Bolt was the main issue .

    It meant he could not establish any credibility with regard to the topic.

    That is apparent to anyone who has read the judgement.

    Gould is saying contradictry things.
    If it doesn’t work then it will not affect revenues. It problem gamblers do provide 40% of revenues as the Productivity commission say they do then it will.

    Whyisitso ducks the issue alah catallaxy. no surprises there.

  165. KB Keynes says:

    I should ad two things to Whyisitso.

    1) the two events are not equivalent

    2) I wouldn’t take Bolt’s word for it.

  166. Pedro says:

    Homer, read the fucking case. It’s you and David Marr against the world you goose.

    On Gould, what the fuck are you trying to say? The guy makes a comment about a proposed policy and the two dopes dob him in. You think the important issue is whether his argument is a good one. The issue is whether you should be investigated for expressing an opinion, right or wrong, and how do we feel about pollies calling the cops when they don’t like your view.

    Jesus you’re obtuse.

  167. KB Keynes says:

    I have but you haven’t.

    Bolt had little credibility. why?

    I do not know what Marr has said but everyone who comments on legal matters are in agreement except YOU!

    Yes Pedro you have always like people who argue contradictory positions.

    How in the hell can a person who says two things which contradict each other make a good argument. That is pure catallaxian logic.
    It is your life.

  168. JC says:

    Homes

    Do me a favor sport. Can you please comment a little less; perhaps like cutting it down by 99%? The reason is I get an annoying bell from my email box and when I look to see who it is, I find out it’s another comment from you. I don’t want you in my life so much. Perhaps I speak for not just myself too.

  169. KB Keynes says:

    Easy solution JC. don’t come here.

    I am amused by someone who tells me to read the Judgement when I have quoted it twice merely on this very blog here.

    Must be late in getting the pills from the Chemist.

    That is our third person who has Bolted themself here.

  170. KB Keynes says:

    This is just for Pedro since he is clearly too lazy to read.

    This is what David highlighted above as the important bits of the decision.
    guess what it involves.
    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.
    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.
    Some of the facts relied upon as the basis of the comments made about motivation have been proven to be untrue.
    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.
    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.
    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.
    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.
    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.
    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.
    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).
    In the context of statutory qualified privilege, the Privy Council said in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364-365:

    you well and truly have Bolted yourself.

  171. Peter Patton says:

    Whyisitso

    I assume from the context you mean “cool” in the sense my granddaughter uses it?

    Not knowing your grandmother, I use “cool” the way it is ordinarily used in 2011. So, I am fine with AA policies for Aborigines in Australian universities, especially in Law, Medicine, Allied Health, etc.

  172. Pedro says:

    Homer, you don’t really even need to read the case, just all the earlier comments. Mulishly stubborn.

  173. KB Keynes says:

    comments such as these perchance

    I was all set to excoriate Bromberg for interpreting the exemption too narrowly, and punishing Bolt for his expression of opinion. But it turns out the case is not about Bolt’s opinion. The judgment says (from point 378, if you’re reading it) that Bolt’s work on the facts was so bad that it didn’t get close to meeting the standard for the exemption. Bolt said a bunch of things about the plaintiffs’ backgrounds which were wrong. He didn’t do basic checks of publicly-available information that he could have found with a minute’s Googling. Bromberg J says that he did not have to make too difficult decisions on the balance between free speech and the Act’s aims, and if his facts about Bolt are right, I can see the judge’s point.

    or this

    On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because “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.”

    And he specifically mentions, not just the wrong facts, but “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.”

    you obviously haven’t. Bolted again

  174. KB Keynes says:

    Imagine if Bolt had done his homework and showed just one example that was entirely correct in its facts.

    Would Bolt have had a court case brought against him?

    The answer is…..

  175. jtfsoon says:

    For the last time you dunce all that is irrelevant. It’s not exactly a sound principle of liberal democracy that you can avoid persecution for expressing controversial views if you can dot all the i’s and cross all the t’s.

  176. KB Keynes says:

    it isn’t dot the is and crossing the ts and that is patently dishonest to say even for you.

    Bolt didn’t do any homework at all i.e. he didn’t even look at ts or is let alone anything else. he did buggerall

    As all the people concerned and HWT lawyers knew this.

    Bolt would be free to make his accusations if he had done his homework,

    you appear to be wanting everyone the opportunity to libel anyone.

    sound liberal practices there.

    Try and guess why no case would have eventuated if Bolt has have done some homework.

  177. Pedro says:

    Homer, his Honour said that the tone was also a basis for rejecting the 18D defence claim. More importantly, do you think 18C should exist?

  178. KB Keynes says:

    and the basis of the tone was not related?

  179. KB Keynes says:

    It appears Catallaxy have again shown itself to put its foot in its mouth.

    Judy tried to show Summers was inaccurate however again it appears Bolt is again loose with the truth.

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