The point Alan is summed up at paragraph 401:

"There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about."

If people have a choice because there are competing cultural/upbringing elements in their life why is it a factual error to, as Bolt did, concentrate on the non-aboriginal part of their life which they have chosen?

You have not addressed the point I make about potential muslim litigation based on on S 18C and D, and using Bromberg's principle that, as I argue, any description of a person's life, even by ommission, can be construed as a factual error sufficient to ground action under those sections.

Hi Cohenite,

Re: “If people have a choice …”

Yes, that's precisely the lie at the centre of Bolt’s racism. He asserts they had a choice. Bromberg found they didn’t.

To accuse them of making a choice to effect financial fraud is a pretty appalling libel.

“Each of them genuinely identifies as an Aboriginal person and has done so since their childhood. Each was raised to identify as an Aboriginal person and was enculturated as an Aboriginal person. None of them ‘chose’ to be Aboriginal. Nor have they used their Aboriginal identity inappropriately to advance their careers. Each is entitled to regard themselves and be regarded by others as an Aboriginal person within the conventional understanding of that description.” (Summary 10)

Re your hypothetical Muslim litigation, Anthony, there are hurdles:

Are the allegations "reasonably likely to offend, insult, humiliate or intimidate”? If yes, 18C1a is satisfied and the case proceeds.

Do the allegations impact the group? If yes, 18C1b is satisfied.

Were they public allegations? If yes, 18C2 is satisfied.

Then we get to 18D and the exemptions for freedom of speech. It then depends on how and why the allegations are actually made as to whether exemptions apply. These are actually pretty broad, which is why cases are so rare.

With Bolt, the sheer volume of factual errors and serious omissions was overwhelming evidence of bad faith.

I listed for The Global Mail lawyers 22 errors, misrepresentations and omissions which Bromberg identified. I suggested we go with 19 to be safe from accusations of duplication. They accepted this.

How can any journalist make 22 errors? In two articles.

Bromberg’s answer to this is in the suck-it-up-princess paragraph, 458:

“Mr Bolt and HWT contended that the terms of any declaration made should expressly state that the conduct in contravention of s 18C ‘did not constitute and was not based on racial hatred or racial vilification’. It is contended that the inclusion of these words will facilitate the educative effect of the declaration made and contribute to informed debate. I do not regard the inclusion of the words suggested as appropriate.”

"Yes, that's precisely the lie at the centre of Bolt’s racism. He asserts they had a choice. Bromberg found they didn’t."

Bromberg was wrong; they did:

http://www.abc.net.au/unleashed/4281772.html

Your position is surreal; I'll leave it at this; I bet a muslim or islamic group will litigate in a similar vein; oh look, they already have:

http://www.thecourier.com.au/story/373248/now-broadcaster-told-to-say-sorry-over-vermin-comment/?cs=36

Hi again Anthony,

No, you can’t say Bromberg was wrong. You might not like him being right. But there you go.

Bolt and HWT had all the time in the world and boundless resources at their disposal to present their case. It failed spectacularly.

It failed because Bolt picked on the wrong blackfellas.

Now, if he had chosen your woman at the Drum, then no worries. He would have had his article, made his case, bolstered his opinion and been home free.

Ms Pholi clearly did have a choice, which she exercised twice – once to claim Aboriginality to gain advantage – and the second time to repudiate her Aboriginality to gain advantage.

But Bromberg found overwhelmingly that each of the nine applicants/witnesses “was raised to identify as an Aboriginal person and was enculturated as an Aboriginal person. None of them ‘chose’ to be Aboriginal. Nor have they used their Aboriginal identity inappropriately to advance their careers.”

If there was the slightest doubt, HWT would have appealed, wouldn’t they, Anthony? Bromberg was cautioned throughout by HWT’s counsel that they would take this all the way to the High Court.

Maybe that’s why the judgment is so meticulous, so excruciatingly detailed - and so long that hardly anybody has read it.

But it is also a watertight judgment. Not the slightest shadow of doubt that he got the law right and the decision right. Even if it hurts to admit it.