On Wednesday 28 September 2011,  the Australian Federal Court ruled in the case of Eatock v Bolt ([2011] FCA 1103), that popular right-wing commentator Andrew Bolt (pictured) had contravened Section 18C of the Racial Discrimination Act when he questioned the racial heritage of nine “fair-skinned Aborigines” in an article in the “Herald and Weekly Times”.

Section 18C states:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The applicants lead by Pat Eatock brought a class action against Bolt and the, Murdoch owned, “Herald and Weekly Times” after Bolt asserted that the applicants had chosen to identify themselves as “Aboriginal” and consequently won grants, prizes and career advancement, despite having fair skin and being of mixed heritage.

Justice Mordecai Bromberg found that “fair skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed in the newspaper articles”.

The Justice ruled that Bolt could not use public interest or fair comment defences because it was riddled with factual errors and not written in good faith.

The decision has generated significant debate about freedom of expression in Australia. George Brandis, the shadow Attorney-General has written in “The Australian” that if the Bolt decision is not overturned on appeal, that Section 18C of the Racial Discrimination Act in its present form should be repealed.

The publisher has 14 days to decide on whether it will appeal.

John Kelly is a litigation partner at Schillings