Sunday, December 22, 2013

A specious defence of Judge Mordecai Bromberg in the Bolt free speech case


The long and windy article below can be severely condensed with very little loss but I reproduce it in full for the sake of fairness.  The article simply regurgitates what Bromberg said about Andrew Bolt's wrong "facts" in Bolt's articles about white "Aborigines". 

Bromberg said he was not against free speech but merely opposed to Bolt making claims of fact that were not true. On that basis most issues of most Australian newspapers would be worthy of punishment.  They often present as facts things that are not true (many global warming claims, for instance).  The remedy for that however is for someone to present more accurate facts at a later date, not to involve the judiciary.  Note that this was not a libel case but an anti-discrimination case.

And the examples of wrong facts given are tendentious.  Everything Bolt said does have a basis in fact as far as I can see.  Bolt was condemned for saying that "Anita Heiss had won "plum jobs"" when the job concerned was an unpaid one.  But who says a "plum" job had to be a paid one?  For many people fame and prestige are a bigger prize than money and the job concerned would undoubtedly have conferred a modicum of fame and prestige. 

And note the hilarious claim below that  Heiss's other appointments were not prejudiced because "Neither the arts board position nor the university job was reserved for indigenous applicants".  Who said they were? The formal rules and the private criteria can be very different -- and given the ubiquity of "affirmative action" thinking among Leftists, there can be little doubt about what actually tipped the balance.

I could go on along those lines in discussing Bolt's other condemned facts but I think that readers can probably  do their own dissections without further help from me.

And in the end Bromberg lets his own case down by conceding that he really thought that Bolt was being racist.  Read with care the second-last paragraph below and you will see.  That Bolt was motivated solely by a disgust at Aboriginal welfare provisions being ripped off was clearly not visible to Bromberg.

I am not surprised that Bromberg was over-sensitive about matters involving race.  He is Jewish and Jews have a history which makes that understandable. But arriving at a strained judgment largely on the basis of his own sensitivities was very unjudicial.  He should have recused himself from the case.

During the 12 months since journalist Andrew Bolt was found guilty of breaching racial discrimination laws — on the basis that his published facts were wrong — error and invective have continued to warp the debate.

Has Australia just experienced one of the great media heists in modern history?

It's a year since the Eatock v Bolt decision was announced on September 28, 2011, in the Federal Court, a landmark case brought under Australia's Racial Discrimination Act. And much of the subsequent commentary has been — like the Andrew Bolt articles that triggered the case — filled with errors and designed to sting.

For example, Justice Bromberg's judgment has been seriously misreported. Parts of it have been ignored completely.

It's telling that we should still need to ask: What was the real reason Bolt and the Herald and Weekly Times (HWT) were found to be in breach of the Act? How many untruths were published? And what motivated this "offensive conduct reinforcing, encouraging or emboldening racial prejudice"?

The applicant was Pat Eatock, a fair-skinned Aborigine, who brought the suit on behalf of herself and others, who claimed Melbourne's Herald Sun had accused them of pretending to be Aboriginal to gain benefits fraudulently. Attempts at conciliation had failed.

Rupert Murdoch’s HWT declined to appeal. Instead, it commenced a vigorous — and extraordinarily successful — campaign in the court of public opinion to undermine the judgment.

The applicants claimed two of Bolt's articles published in 2009, titled 'It's so hip to be black' ('White is the New Black' online) and 'White fellas in the black', were derisive and riddled with fabrications.

Justice Bromberg found in their favour. His findings were "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 by the newspaper articles" (summary 17); and:

"I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D [guaranteeing free speech]. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language." (summary 23)

Rupert Murdoch's HWT declined to appeal. Instead, it commenced a vigorous — and extraordinarily successful — campaign in the court of public opinion to undermine the judgment.

To understand the process of attempting to undermine the judgment in the minds of readers, we need to grasp the intent of two provisions in the Racial Discrimination Act.

Section 18C requires that the articles were "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people …" Hence for the HWT to have been in breach of the law, offence taken must be established.

The judge found that the applicants had been offended. That wasn't hard. Both sides knew this to be so beforehand. The contest wasn't about whether or not offence had been caused.

The case was about 18D, the vital 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 in the proceedings.

The judge made it clear that 18D protects any opinion, however obnoxious or offensive — 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 central to the case was not whether Bolt's article was an expression of opinion, but whether the factual allegations on which that opinion was 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.

In Bolt's articles Bromberg found inferences which leave "an erroneous impression", "gratuitous references" based on "a selective misrepresentation", and omissions which "meant that the facts were not truly stated".

He found assertions "shown to be factually erroneous", comment that was "unsupported by any factual basis and erroneous", asserted facts that were "untrue" and several contentions that were "incorrect" or "grossly incorrect".

His key finding was that "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". (378)

“Freedom of expression is an essential component of a tolerant and pluralistic democracy,” Bromberg asserted early in the proceedings.

For example, Bolt wrote that Anita Heiss had won "plum jobs reserved for Aborigines" at Koori Radio, at the Aboriginal and Torres Strait Islander Arts Board and at Macquarie University. (381) The Koori Radio job was a voluntary unpaid position. Neither the arts board position nor the university job was reserved for indigenous applicants. Three untruths there. In one sentence. More damagingly, Bolt asserted that Heiss had made a conscious "decision to identify as Aboriginal" and was "lucky, given how it's helped her career". Bromberg found, however that Ms Heiss "has Aboriginal ancestry and communal recognition as an Aboriginal person." And further, "She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career."

Bromberg's conclusion was emphatic: "Untruths are at the heart of racial prejudice and intolerance."

The day after the judgment, the dissembling, the skewing of commentary away from the core of the judgment began. The Herald Sun led the resistance with a front page declaring 'THIS IS A SAD DAY' with a large photo of Andrew Bolt looking, well, sad. Bolt himself declared it a "terrible day for free speech in this country".

It was then widely asserted in Murdoch outlets, much of the rest of the media and even some legal opinions that the decision had attacked and diminished freedom of opinion.

A Herald Sun piece titled 'Ruling against Andrew Bolt will harm healthy debate', say libertarians' called for the Act to be reviewed.

The article quoted 10 'libertarian' commentators besides Andrew Bolt. On careful reading, however, only two were critical of the decision: academic and former Murdoch employee Andrew Dodd and Institute of Public Affairs director John Roskam.

The campaign was underway. Brendan O'Neill wrote in The Australian, "For simply expressing his opinion about the weird fluidity of modern-day identity politics, Bolt was found guilty of racial discrimination."

O'Neill called the judgment "shocking" and an "alarming attack on journalistic liberty", and described it as having "spectacularly illiberal implications" and as serving up "a double whammy of censure and censorship".

O'Neill's published article made no reference to the multiple errors of fact made by Bolt in his articles. He did quote paragraph 23 of the judgment, shown in full above, but the published piece omitted the two key phrases, thus:

"He [Bromberg] slated Bolt for 'the manner in which the articles were written', for their 'inflammatory and provocative language'."

What happened to "they contained errors of fact" and "distortions of the truth"? Gone. Edited out. Bolt himself was quick to quote O'Neill's treatise.

Former Liberal candidate Chris Kenny also railed in The Australianthat the finding "has drastic implications for free speech". He acknowledged there were misrepresentations. But, hey, so what?

"Errors are always unfortunate and sometimes egregious but in this case they are hardly the central point," Kenny wrote. "Some of what Bromberg cites as factual error is more a matter of emphasis. It is a canard to suggest the case was about disputed facts: it was about apparent offence caused by Bolt's controversial and strongly worded opinion."

Kenny then emphasised the key Murdoch talking point: "It is Bolt's opinions and the way they were expressed that are at the heart of this case, not his facts."

Incidentally, Kenny erroneously referred also to "the now banned columns". They were not banned. They are still accessible online, with the required corrective notice.

The Institute of Public Affairs (IPA) has vigorously backed News Limited. An article by the IPA's James Paterson achieved wide circulation the next day via The Drum. It was quick to assert that Bolt had been prosecuted "for expressing an unfashionable opinion".

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

That column — also posted on the IPA website — completely ignored the untruths, misrepresentations and omissions made by Bolt, noting disingenuously that he had merely written "a couple of controversial articles".

Not surprisingly, Fairfax media ran significantly different analyses. "Bolt was wrong. Spectacularly wrong," wrote David Marr in The Sydney Morning Herald.

"Freedom of speech is not at stake here," Marr argued. "Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism. He's saying that if Andrew Bolt of the Herald Sun wants to accuse people of appalling motives, he should start by getting his facts right."

This was a minority view, however, drowned out by louder voices. Among lawyers to comment was Professor James Allan of the University of Queensland. In The Australian he called for the Act to be repealed. "Start with section 18C, the provision relied on against Bolt," he wrote.

Allan continued, "But on top of that, Bromberg decided that the onus of proof for triggering the section 18D exemption lay on Bolt and, anyway, that the articles as written were not reasonable nor written in good faith. It is not at all clear on what basis the judge comes to those latter conclusions other than he thinks Bolt was being gratuitously offensive, that Bolt made a few factual errors…"

Firstly, onus of proof for 18D has always been on the respondent. (paragraph 337) It rests with the applicant for 18C.

Secondly, the judge made the basis for his conclusions perfectly clear: "The deficiencies I have relied upon … are about deficiencies in truth. The lack of truth in conduct which contravenes 18C, seems to me to have an obvious bearing on whether the conduct should be exempted from unlawfulness by s 18D." (386)

Thirdly, there were not "a few factual errors". There were many. Some "grossly incorrect".

So how many errors were there? In all the volumes of commentary it seems no-one has counted them.

The Herald Sun's hometown rival newspaper, The Age, began a list in the early aftermath of the judgment, in an article gleefully titled "Andrew Bolt: Australia's least accurate columnist?"

The Age was content to stop at 13. Bromberg in fact identified at least 19 errors — in two articles. (Paragraphs 351 to 413)

Since the judgment, comments in the blogosphere have amplified the flawed analysis of the judgment and Bolt's professionalism.

Henry Thornton declared, "Bolt's mistake was to put unwelcome truths into print, to point out that the Emperor has no clothes …" Again, there's no reference whatsoever to the untruths.

And, bizarrely, "Honesty about this [Aboriginal and Torres Islander] industry is now a violation of the law as understood by the political activists who have captured control of the judicial system."

Sustained commentary throughout the past year has reinforced these strained interpretations. Despite claiming that he had been gagged, Bolt himself has maintained a continual offensive.

Last month, in The Australian Financial Review, Bolt told former opposition leader Mark Latham he was still "very depressed, very alarmed and very cynical about these laws".

"What does it say about free speech?" he asked the former Labor leader. "My columns were figuratively burned — that's what it was, it was book burning."

The remarkable success of the Murdoch campaign was confirmed last month when Opposition Leader Tony Abbott promised to repeal part of the Racial Discrimination Act.

"The article for which Andrew Bolt was prosecuted under this legislation was almost certainly not his finest. There may have been some factual errors. Still, if free speech is to mean anything, it's others' right to say what you don't like, not just what you do. It's the freedom to write badly and rudely," Abbott reassured the IPA.

Wrong and wrong. There's nothing 'may have been' about the errors. They were clearly identified — 19 of them. And the Act does not impede bad or rude writing. It impedes fabrication.

What the judge has made of the year's commentary we don't know. But we do have the view of one of his former associates.

Earlier this month Benedict Coyne, who previously spent time as Justice Bromberg's associate, responded to Mr Abbott's promise. "Mr Bolt's shoddy journalism, however, is an unlikely candidate, on its merits, to give rise to a reconsideration of part IIA of the RDA.

"The lesson that is ripe to be drawn from the facts of this litigation is, we suggest, not that section 18C should be repealed but, rather, that Mr Bolt should go back to journalism school."

Finally, why so many untruths in Bolt's pieces? Were they accidental? How so with "editorial oversight by an editor of the Herald Sun, whose function is to check articles and identify any changes that may be required"? (13)

These questions are left hanging in Bromberg's paragraph 458 regarding remedy, which has not been referred to in any analysis on record: "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."

So the question was left open: if, as Bolt and the HWT maintain, the articles were not indeed "racial vilification" and were not based on "racial hatred", then what were they?


Now Bromberg is doing his best to send Toyota Australia broke

Judges have discretion for a reason and Bromberg could easily have been unobstructive to Toyota.  But he's got a job for life so why should he care about other people's jobs?

TOYOTA will challenge a court ruling that barred it from asking its workers to sacrifice wages and entitlements in an effort to slash costs at its Melbourne plant.

The Federal Court last week ordered the company to abandon putting a vote on a new workplace agreement to the 2500 workers at its Altona plant.

But Toyota lodged an appeal against the decision on Thursday.

Justice Mordy Bromberg found that Toyota breached the Fair Work Act by putting "further claims" in an enterprise agreement with the unions.

In his judgment, Justice Bromberg said Toyota proposed in November to vary the agreement by reducing employee entitlements, including wages.

But a group of four Toyota workers argued the proposal had breached the agreement and contravened section 50 of the Fair Work Act, and won the court's approval.

Toyota Australia president and chief executive Max Yasuda last week said the decision was a blow to the company's efforts to remain competitive in Australia.


Australia allegedly has its "hottest" year

While the global temperature remained stable, with annual average temperatures varying up and down by only tenths and hundredths of a degree -- So extra heat in Australia was balanced out by less heat in other places. In every year, some places will diverge (up or down) from the average more than other places do.  That's how an average arises

2013 will go down as the year that registered Australia's hottest day, month, season, 12-month period - and, by December 31, the hottest calendar year.

Weather geeks have watched records tumble. These tallies include obscure ones, such as the latest autumn day above 45C (Western Australia's Onslow Airport at 45.6C on March 21), the hottest winter's day nationally (29.92C , August 31), and even Wednesday this week, with the hottest-ever 9am reading (44.6C, at Eyre weather station near the WA-South Australian border).

"We're smashing the records," says Professor Andy Pitman, director of the ARC Centre of Excellence for Climate System Science at the University of NSW.  "We're not tinkering away at them - they're being absolutely blitzed."

Global interest in Australia's extraordinary year of heat flared early on. In January, when models started predicting heat that was literally off the charts, the Bureau of Meteorology added new colours to the heat maps - deep purple and pink - to accommodate maximum temperatures of 50-54 degrees. Moomba fell a shade short, reaching 49.6C on January 12.

But for Dr David Jones, head of climate analysis at the bureau, the year's stand-out event was a whole month largely overlooked by a media diverted by the football finals and federal elections. "From a climate point of view, what happened in September was probably the most remarkable," he says.

September's mean temperature soared to be 2.75 degrees above the 1961-90 average, eclipsing the previous record monthly deviation set in April 2005 by 0.09 degrees. Maximums were a stark 3.41 degrees over the norm, with South Australia's top raised by 5.39 degrees and NSW's by 4.68.

The heat swept away the previous September mean record by 1.1 degrees.

"To have 103-104 years of observations, you don't expect to break the record for a continent for a month by a degree," Jones says. "We're very fortunate we haven't had a month that anomalous in the middle of summer."

Summer heat

Summer was a scorcher. Sydney clocked its hottest day in records going back to 1859, with the mercury peaking at 45.8C on January 18. Hobart notched up 41.8C on January 4, its hottest in 120 years of data.

January baked, becoming Australia's hottest single month in the hottest-ever summer. The duration and area affected by the heatwaves - rather than heat spikes - came to characterise much of the year of exceptional conditions.

"January was incredibly hot for such a long time for such a large area," Jones says. "In many ways we were very fortunate not to have had a frontal system like Black Saturday [in 2009] to draw down that hot air into a coastal zone with a gale-force wind."

Fires destroyed hundreds of properties in Tasmania in January, and a similar number in NSW in October. The latter came after a remarkably warm and dry stretch, in which Sydney marked its hottest July and September, and second-warmest August and October.

Sydney's record year

"August was the first month in 2013 to see year-to-date records for Sydney," says Dr Aaron Coutts-Smith, head of climate monitoring in NSW for the bureau. "September onwards pushed us ahead."

Sydney's year will break the city's record for maximum and probably also mean temperatures, Coutts-Smith says. The former was running at 23.6C before Friday's blast of summer heat - well ahead of the previous high of 23.3C set in 2004.

The harbour city's average maximum is about 1.9C above the long-term norm - enough to match a typical year in Byron Bay, about 800 kilometres up the coast.

Australians might want to get out a map to consider conditions further north than where they live. Hot years are now about two to three degrees warmer than cool ones 100 years ago.

"It's a very large change," Jones says. "That's the equivalent of moving in the order of 300-400 kilometres closer to the equator."

Nowhere below average

For Australia, the year to beat for heat was 2005, when national mean temperatures were 1.03 degrees above the long-term average. As at the end of November, the country was tracking 1.25 degrees above the norm, with a hotter-than-usual December expected.

"As best as we can tell, not a single part of Australia has seen below-average temperatures for this year," Jones says, noting that the country hasn't had a cooler-than-average year for almost two decades.

Global temperatures are rising too. Last month was the hottest November in records going back to the 1880s, the US government reported this week. That put 2013 on track to be the fourth-hottest on record - behind 2010, in first place, and 2005 and 1998, roughly equal second.

Jones dismisses claims regularly aired by climate sceptics that the planet stopped warming in 1998.

Really?  Only in his dreamworld.  Below is the actual global temperature record for the 21st century.  It oscillates but there is no rising trend. Note that it is calibrated in tenths of one degree.  ALSO note that what he says about 1998 is absolutely false.  Can we trust ANYTHING he says?  It seems not.  The data for the graph is from the University of East Anglia, a pro-Warmist outfit

"Certainly there is no global surface data set which shows 1998 was the warmest on record." Globally, the climate system holds significant heating momentum as humans continue to burn fossil fuels and drive the emission of other greenhouse gases.

Carbon dioxide levels rose 2.2 parts per million to 393.1 in 2012, bringing atmospheric levels to 41 per cent higher than in pre-industrial times, the World Meteorological Organisation said last month.

"If you actually look at the amount of heat that the earth's absorbing, it's tracking up almost monotonically," Jones says.

Wake-up call

Pitman says 2013's likely global ranking of fourth-hottest year ever is exceptional not least because the most significant driver of climate variation - the El Nino-Southern Oscillation in the Pacific - remains in neutral mode. He likens this to the surprise when an athlete at sea-level breaks a record that had been set at high altitude.

"We shouldn't be breaking records in any years other than an intense El Nino," he says. "Quite why the globe is as warm as it appears to be is worrisome."

By extension, the next El Nino - in which the central and eastern Pacific Ocean usually warms up and eastern Australia gets drier conditions - has the potential to exceed this year's record-breaking Australian heat.

"If we get that additional anomaly, it might even be enough to trigger an awakening in the eyes of some of our leaders," Pitman says.


Scott Morrison's new rules to put asylum seekers back in detention

New rules to stop refugees being a 'nuisance'

Immigration Minister Scott Morrison has identified asylum seekers congregating in large numbers in apartments as the type of "antisocial" behaviour that could see them thrown into detention under a new code of conduct for more than 20,000 irregular immigrants living in the community on bridging visas.

Under previous arrangements, anyone on a bridging visa alleged to have broken the law and facing criminal proceedings was returned to detention while the matter made its way through the courts, but the new code greatly widens the types of behaviour that can lead to the penalty.

These include "antisocial and disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community".

"There have been complaints … about antisocial behaviour in terms of overcrowding in particular accommodation that have caused a nuisance to nearby residents and distressed elderly residents," Mr Morrison said on Friday. "Currently there's no provision to manage that behaviour."

People on bridging visas have limited work rights and receive less than $250 a week in welfare payments. They can wait up to five years to have their refugee status determined under the "no advantage test" introduced by the former Labor government.

As a result, many can be crammed into accommodation to save money, although Mr Morrison said this was not necessarily the type of overcrowding that would be deemed antisocial.

He pointed to "large numbers of people turning up to particular places and places that are being rented and that is not where they were living".

Labor's immigration spokesman Richard Marles said the code and definition of antisocial behaviour "reeks of being mean for the sake of it".  "If people are breaking the law, there should be consequences," Mr Marles said. "But one of the key standards in Australia is the standard of fairness.  "A situation where you don't break the law but you have simply upset someone and, without being tested, put in detention or even sent offshore is concerning. That is not fair."

Disobeying road rules, failing to comply with an instruction to undertake health treatment or refusing to co-operate with officials as they review their refugee claims are also deemed to be breaches of the code.

"I think it is quite helpful to be quite specific with people who are given the opportunity to live in the community what is expected of them," Mr Morrison said. "To assume they just know is naive."

He noted that, in serious cases, they could be sent to Nauru and Manus Island.

Meanwhile, Mr Morrison said he did not "backflip" when reversing his freeze on protection visas for asylum seekers, arguing the regulation was no longer necessary because he had introduced stronger rules.

But legal experts and the Greens say Mr Morrison is engaged in legal "trickery" and his regulation will either be struck down by the High Court or reversed when the Senate reconvenes in February.


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