Hi Alan,

<<I wasn’t actually referring to that photo…[but] to Cohenite’s links to The Australian>>

Well if you were referring to the articles in the Australian you still haven’t excused yourself, since the comments in the newspaper are worse than the comments on the sign. Let me remind you of those comments (since in your knee jerk haste to attack your opponents it seems you have not given them due consideration)

One: “One day Australia will be ruled by sharia, no doubt,"
Two: "I hate the parliament. I hate [democracy] with a pure hate," he says. Moreover, it is obligatory for all Muslims to reject democracy, because it is a challenge to God's law: "
Three: “O Muslims stand tall, take the vow and pledge allegiance to none other than Allah and his Messenger and vowing allegiance w the Muslims while disloyalty to the disbelievers and their kufr [infidel] ways."
Four “"[When] American and Australian troops have gone there to kill Muslims (read fight anywhere involving Muslims) …, they deserve to die. Under sharia, yes they do. That is the judgment of sharia. They are eligible to be attacked."

And the same Sharia law he is spruiking also mandates the death penalty for: adultery, apostasy,homosexuality & the taking of intoxicants.

Then, you go on to say: << The child in your photo does not seem to be calling for the killing of anyone in particular>>
And you are right, s/he does not call for the death of any ONE individual –rather the death of ALL who insult the prophet.
But by the same token it might be hard to accuse Hitler of having antipathy for any ONE Jew –he just sought to kill ALL Jews.

And despite your best efforts to make it seem so, its hardly about the culpability of Jones vis-à-vis the child.But deeper issues involving two colluding memes:
The first: which seeks to stifle opposition by killing all who criticize/lampoon its icons ,and
The second: which stoops to ally itself with anyone who might bolster its defence of its own waning icons (Swan, Gillard &, Marx )

Alan, you are very biased; unbalanced even; I won't revisit the 'facts' of Eatock because they are irrelevant. It is sufficient based on the Judgement that a party have their feelings hurt by commentary to succeed under S. 18C. But even the spread of facts in Eatock seem only to have applied to her and Heiss; what facts were discussed in relation to the other litigants? In respect of them the judgement refers to a generic "fair-skinned Aboriginal people" who will be offended by the generic suggestion that some of them will have used aboriginality to claim benefits.

There is no wriggle room here for any criticism of any "fair-skinned Aboriginal".

Anyway, it seems to me that a generic muslim could invoke the same basis for litigation; say for example the claim that muslims are using legal rights in Australia to further their intention to replace the current legal system with sharia, and are therefore hypocrites and opportunists.

Do you think a generic muslim would have a claim against such a generic comment as that?

Hi Cohenite,

Section 18C requires that the articles were "reasonably likely to offend, insult, humiliate or intimidate another person or a group." Hence for Bolt to have breached the law, offence taken must be established.

Clearly the applicants had been offended. That wasn't hard to prove. Everyone knew this beforehand. HWT did not challenge this. But the contest wasn't about whether offence had been caused.

The case was about 18D, the critical section guaranteeing liberty of opinion and freedom of speech. "Freedom of expression is an essential component of a tolerant and pluralistic democracy," Bromberg asserted early.

The judge made it clear that 18D protects any opinion, however obnoxious — provided it is genuinely held, for academic, artistic or scientific purpose, or in the public interest, or in publishing a fair and accurate media report.

He repeatedly reinforced this: "Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion."

The issue was not Bolt's expressions of opinion, but whether the factual allegations on which his opinions were based were accurate. This question occupied most of the court's time and is the subject of the greater part of the judgment.

So the case was clearly not about freedom of opinion. It was about freedom to spread untruths.

"Untruths are at the heart of racial prejudice and intolerance."

Please read the judgment, Anthony.

Re: “what facts were discussed in relation to the other litigants?”

See paragraphs 383–406.

Summarised at 378: “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.”

Re: “Do you think a generic muslim would have a claim against such a generic comment as that?”

No. Of course not. We can make whatever generic comments we like – as long as they are not riddled with blatantly false assertions about the actions and motivations of named individuals.

Anthony, please read the judgment.

Please the Judgement intones Alan.

Read and disagreed with; I mean you contradict yourself when you say:

"Section 18C requires that the articles were "reasonably likely to offend, insult, humiliate or intimidate another person or a group." Hence for Bolt to have breached the law, offence taken must be established."

This has NOTHING to do with facts; in Eatock only Eatock and Heiss are mentioned in the context of factual "errors". Cole, who is mentioned at paragraph 383, is not associated with any error of fact; about her Bromberg says:

"This is a comment. The facts upon which the comment is based are not stated, referred to or notorious."

A comment; ie islam is an eschatological, barbarous religion; Joe Blow is a muslim; therefore he is an eschatological barbarian.

Queue here behind Bromberg's judgement for remedies for hurt feelings. The reason being, as S 18D says:

Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Bromberg held that Bolt did not have a case to answer against Cole, or indeed any of the other litigants except Eatock and Heiss because he found he based his comments on errors of fact.

continued

Part 2

Those particular errors of fact aside do you not understand that generic comments are still potentially caught by Bromberg's net because a particular person individually, or as a member of group, can still claim because S 18C says this:

(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 'error of fact' is that the person/group can simply say they are not eschatological barbarians.

Bromberg has fastened on problematic errors of fact to mask this universality and contradiction between the 2 sections, 18C and 18D of the RDA.

We have already seen this happen in Victoria when muslims sued on the basis of quotes taken from the Koran pursuant to a similarly worded Act. The fact that the muslims ultimately and only partially lost can provide no great comfort that Bromberg's judgement will not cover such matters.

Hi Cohenite.

Re: “This has NOTHING to do with facts”.

Correct. 18C serves only to establish offence. This is necessary for the case to proceed.

For example, if I claimed all Aborigines were exceptionally talented at mountaineering and gave factually incorrect examples of blackfellas who had climbed Everest, action against me would fail. My allegation would not be "reasonably likely to offend, insult, humiliate or intimidate another person or a group."

That’s all 18C does. There was no argument about 18C. Only about 18D – freedom of speech.

Re: “only Eatock and Heiss are mentioned in the context of factual "errors".

Incorrect, Anthony.

1. Ms Cole: “The facts upon which the comment is based are not stated, referred to or notorious.” (383)

2. Re [group] biology: “To some extent, the biological examination was shown to be factually erroneous” (392)

3. Re [group] cultural upbringing: “the absence of any significant cultural reference leaves an erroneous impression.” (392)

4. Errors re [group] culture: “references, where given, were erroneous.” (398)

5. Omissions re [group] culture: “Those facts were relevant ... Their omission meant that the facts were not truly stated.” (398)

6. Mr Clark being non-Aboriginal (400)

7. Ms Cole’s mother: “That statement is factually inaccurate” (402)

8. Ms Cole’s father: “That statement is factually incorrect” (402)

9. Ms Cole’s grandmother: “Mr Bolt disingenuously explained the omission as due to a lack of space” (403)

10. Prof Behrendt: “The factual assertions … were also erroneous.” (404)

11. 12. Atkinsons in first article: “The facts given are grossly incorrect.” (406)

13. Atkinson in second article: Also “grossly incorrect.” (406)

14. McMillan: “gratuitous references … based on a selective misrepresentation” (413)

Re: “Bromberg held that Bolt did not have a case to answer against Cole, or indeed any of the other litigants.”

Incorrect. See above.

Re: “Bromberg has fastened on problematic errors of fact to mask this universality and contradiction between the 2 sections, 18C and 18D of the RDA.”

(a) No, there is no contradiction. Just different hurdles to jump.

(b) So you accept there were “problematic errors of fact”, Anthony?

Cheers, AA