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Kaymolly Morrelle


Friday 1 April, 2011 — The Federal Court is sitting in Melbourne to hear the Human Rights case VID770/2010  Pat Eatock v Andrew Bolt and Anor (others). This case tests the issues of racial discrimination v freedom of speech in the field of media opinion, according to Sections 18C and 18D of the Commonwealth Racial Discrimination Act (1975).

In September 2010, Ms Pat Eatock and eight other Aboriginal applicants brought the case against Melbourne journalist Mr Andrew Bolt and the Herald and Weekly Times Inc., publishers of the Herald Sun. The applicants allege unlawful discrimination, offended by Bolt’s 2009 comments in two columns and two blog posts that questioned their Aboriginal identity.

In his 2009 article ‘White is the new black‘, Bolt wrote that Ms Eatock and the other eight applicants were ‘fair Aborigines’, ‘white Aborigines’–  ‘professional Aborigines’ who ‘chose’ to identify as Aboriginal. Bolt wrote that the decisions they and others made to identify as Aboriginal gave them professional benefits.

Justice Mordy Bromberg is presiding in Courtroom One on Level 8. Bolt is no longer required in the witness box and sits to the judge’s left of centre, in the front row of the public seats behind his lawyers. He sits leaning forward, tight-lipped, gazing at the carpet. He sometimes exhales tensely, audibly, shaking his head slowly, tightlipped — apparently irritated at the arguments presented by Mr Ron Merkel QC, counsel for the nine plaintiffs.

Courtroom One looks out over parkland through windows inscribed with the wording of the Australian Constitution. Etched in semi-opaque capital letters, the words run together across the clear glass with neither spaces nor punctuation. When the court building was opened 12 years ago, the then Chief Justice Michael Black described the window design as “a veil of words”. Interviewed on Radio National’s Law Report, the Chief Justice added “…but it’s not oppressive, it’s transparent. The law is about words, but it’s also about other things, including I’d like to think, life, truth.”

Today, the applicants, respondents, supporters and members of the media share the public seating in Justice Bromberg’s court. We listen as judge and counsel work, sometimes tediously, to unravel the veiled wording of the Discrimination Act.

We gaze out, beyond the lettering of our Constitution, to the high ground originally known as ‘Brejerrenewyn.’ Courtroom One is level with the tops of the Moreton Bay Fig trees in the Flagstaff Gardens across La Trobe Street. The trees have spread wide, planted in a different century on the fledgling colony’s highest vantage point above the harbour. This high ground continues to be an important site for the Wurundjeri, Boonerwrung, Taungurong, Djajawurrung and Wathaurung people of the Kulin Nation.

Kaymolly Morrelle attended the hearing VID770/2010 PAT EATOCK v ANDREW BOLT AND ANOR. at the Federal Court of Australia, Melbourne, on 1, 4 and 5 April, and 28 September, 2011. Closing submissions were completed on 6 April. Justice Bromberg reserved his decision…


Wednesday, 28 September, 2011:  A morning of victory in Melbourne, Australia for human rights and freedom from racial discrimination in print and online – and also for some soul-searching by sections of the media.


– Victory at the Federal Court, Melbourne: (L-R) Cathy Eatock, Graham Atkinson, Wayne Atkinson, Pat Eatock (seated), Geoff Clark. Photo: Kay Morrelle  © ksmorrelle 2011

Australian Federal Court Justice Mordecai Bromberg determined that the media articles were reasonably like to offend, insult, humiliate and intimidate ‘fair-skinned’ Aboriginal people. He ordered the publishers to remove the offending articles from print and online publication, with particular consideration for the future detrimental effect they could have on young Aboriginal people reading them.

Justice Bromberg’s decision was a victory for Ms Pat Eatock, the group of applicants and their supporters. It remains a controversial judgement, central to issues of free speech and media freedom, human rights and protection from racial discrimination.


Pat Eatock (seated) speaks to the media after today’s decision. Photo: Kay Morrelle ©ksmorrelle 2011

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