I’ll do this post in 2 parts to avoid the word limit.

I don't know if we are in agreement about the alleged "errors of fact".

What I will say is this: Bolt can be a smart-arse, anyone who is in his sights is going to have their feelings hurt, and he has been a bit hazy in presenting what is a valid point.

Looking at that in the context of the facts and hurt feelings issues, which were the 2 actionable components of the litigants award we can say the following.

Bolt tried to impugn the right of the litigants to claim aboriginal status by mixing that up with their claimed right to compensation; the 2 issues are distinct; Bolt got that wrong but so did the Judgement.

The Judgement's mistake makes the errors of fact in regard to upbringing etc red herrings [and as I have shown problematic in any event]. They are irrelevant because the litigants were of equivalent aboriginality but were distinguished by their ability to achieve with and without compensation.

That is, some got to where they wanted to be on their own while others got compensation. That is the only relevant fact. And it defeats the litigants. It defeats them because racism must cover all the members of the race. If some are not affected then those who claim to be affected by racism must instead be disadvantaged by some personal attribute which is not a factor of race.

This is the point Bolt was trying to get at; namely whether personal attributes should be compensable. He made a mess of it by mixing it with the right to claim aboriginal status.

Part 2.

The 2nd issue of hurt feelings goes to the application of a community, objective standard, as opposed to a subjective standard.

This is a vexed issue. All torts rely on the community standard; a hurt feeling is not sufficient to ground an action in defamation; the community must recognise that untruths have been made and that the litigant is hurt by those untruths because they have affected his community reputation.

What was the untruth, or error of fact in the Bolt case; that some of the litigants succeeded with compensation, and some without. That cannot ground a case in defamation because the community cannot see any untruth in that.

All that is left is personal feelings. Should these be compensable? There has been a growth in areas of compensation for hurt feelings; for instance school bullying is actionable even though there are not errors of fact. For example a child may be taunted because he/she is fat; the fact that they are fat is beside the point.

Also, in the workplace people may be victimised without anything untruthful happening.

Obviously people should have their feelings protected in some instances. But the Bolt case stretches the law, as I said, because it rewards hurt feelings not only where the errors of fact are problematic but also in circumstances where the litigants were plainly not disadvantaged.

That is going too far and it is a bad Judgement for that reason.

Yes, Cohenite, Mr Bolt can be a smart+rse. But nobody cares about that. And no, a hurt feeling is not and should not be grounds for action in defamation. We agree on these.

But the judge made it clear the HWT was at fault not for hurting feelings but for the malicious fabrications throughout the two articles. The judge was specific. “Untruths are at the heart of racial prejudice and intolerance.” (390) Not mockery, derision and scorn.

He is explicit at para 425. He was “positively satisfied that Mr Bolt’s conduct lacked objective good faith” primarily because of the lack of care and diligence demonstrated by “the untruthful facts and the distortion of the truth.” The derisive tone, the provocative and inflammatory language and the gratuitous asides were secondary.

So, no, Mr Bolt was not “a bit hazy in presenting a valid point”. He had no case at all without resorting to the fabrication of the more than 20 outright lies detailed above, Thursday, 26 January 2012 9:05:07 PM.

The commentariat defending Mr Bolt would like us to think the errors of fact are “red herrings” and “irrelevant”. Is this because they do not want to be confronted with the ugly fact that most Murdoch commentators engage largely in MSU activism - making sh+t up?

This has now been proven time after time. Bolt was guilty of this in the Popovic matter:
http://www.theage.com.au/articles/2002/05/21/1021882053251.html

He was and continues to be guilty of this on the stolen generations:
http://www.themonthly.com.au/blog-name-ten-journalism-andrew-bolt-robert-manne-4088

He continues to be guilty of this on climate change:
http://theconversation.edu.au/drowning-out-the-truth-about-the-great-barrier-reef-2644

He is not alone, just the most widely-read. Glenn Milne and Piers Akerman are also serial offenders. Whole websites now exist to expose the MSU efforts of Murdoch employees on climate:
http://scienceblogs.com/deltoid/the_war_on_science/

The wilfully mendacious campaign on the broadband network was exposed emphatically here: http://www.presscouncil.org.au/document-search/adj1515-benaud-daily-telegraph-dec-2011/?LocatorGroupID=662&LocatorFormID=677&FromSearch=1

There are plenty of other recent examples for which links are available.

The bizarre thing to observe for this distance (Europe) is that so few Australians see this pattern of MSU activism as much of a problem. Is this now an accepted Australian community standard?

Alan

Precisely and sadly, precisely.

I think you have jumped the shark Alan; Murdoch bashing on the basis of "making sh+t up" about AGW; it is impossible to make stuff up about a fanciful notion which is itself made up.

You have either not understood my point or are wilfully ignoring it; the point again is that some of the litigants against Bolt had done well on their own initiative while others had sought and received compensation.

The point is, if all the litigants had equivalent aboriginality, why should some receive compensation?

This point defeats any claim that Bolt was being racist. To be racist one must be acting to the detriment to all emembers of that race [see Kartinyeri v The Commonwealth [1998] HCA 22, per Gummow & Hayne JJ]; Bolt clearly was not impugning all members of the aboriginal race.

And clearly not all members of the aboriginal race regard themselves as requiring compensation for being racially disadvantaged; in a 2010 survey 60% of the surveyed aboriginals were:

"in the labour force, working and living in capital cities and country towns; owning, buying or commercially renting their houses; and living like most other Australians."

Of the 40% who weren't the reason was primarily welfare dependence and lack of education in rural settlements; see:

http://www.cis.org.au/publications/policy-monographs/article/1238-indigenous-employment-unemployment-and-labour-force-participation-facts-for-evidence-based-policies

Make of that what you will.

Bonmot
<Cherful you obviously haven't read the Federal Court's ruling.
The law is the law - despite what your opinion is, despite what cohenite's is, despite what you think is the 'public'.

And sometimes the law is and has been shown in specific cases to be an ass