Fight the Power: Defamation as a Weapon Against Systemic Racism? 

The media's the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that's power. Because they control the minds of the masses. Malcolm X

Throughout my legal career, I have worked with and for, and socialised with, many Indigenous Australians. Without exception, each person has expressed in one way or another that they felt that Australian society did not value their lives in the same way that white Australians' lives were valued. These feelings were often felt most acutely in the context of the legal system.

Consequently, it appears to me that Indigenous people feel they are more likely than white people to suffer at the hands of the punitive side of the law, and less likely than white people to benefit from the protective and remedial side of the law. On top of that, based on my experience, it is much easier for white Australians to access and navigate the legal system, an arena that is still foreign and confusing for many Indigenous Australians.

There have been numerous reports over the last few decades that have verified not only the existence of these feelings, but also the existence of systemic racism within the Australian legal system and other institutions that impact the lives of Indigenous people.1

I worked on the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse and contributed to writing the report that came from that Inquiry, the Little Children are Sacred Report.2 The Board of Inquiry identified systemic racism as a key factor as to why Indigenous children were not being as protected as they could be, and made 97 recommendations aimed at bringing about positive systemic change. Instead of such change, Indigenous Australians got an additional dose of systemic racism in the form of the Intervention, yet another paternalistic policy that served to criminalise Indigenous Australians further.3

I also represented a number of children in the Royal Commission into the Protection and Detention of Children in the Northern Territory.4 That Royal Commission also recognised systemic racism as a key factor as to why Indigenous children were being taken into care and being detained.5 Again, recommendations were made aimed at positive systemic change. Again, over three years later, very little has been done to implement that change.6

I was not surprised at the huge number of protesters that were amassed in Australian cities in June 2020 to support the Black Lives Matter (‘BLM') movement. Nor was I surprised by the content of SBS's recent powerful documentary, Incarceration Nation.7 The protests and the program merely demonstrated that the frustration and anger against systemic racism extend beyond America and is felt just as strongly by Black, predominantly Indigenous, Australians.

My experiences have led me to the view that ridding society and the legal system of systemic racism is likely to be a long, slow process that is unlikely to ever be fully successful. Unfortunately, racism is deeply ingrained in Australian society. We have a pattern of doing the bare minimum, reacting to an extreme example (eg, seeing a child in a restraint chair), conducting an inquiry, then doing the bare minimum again until the next extreme example. Until this pattern is broken, there are, however, always small but significant things that we as lawyers and law students can be doing right now.

On 13 July 2013, Alicia Garza sparked the BLM movement with her simple but incendiary words, ‘I continue to be surprised at how little Black lives matter … Black people. I love you. I love us. Our lives matter'.8 If it had not before, the BLM movement has ensured that the onus is now squarely on everyone to be alert to anything that diminishes black lives and to try and do something about it.

This can be difficult in a practical sense. The insidious nature of systemic racism makes it very difficult to prove, the institutions perpetuating it will often deny its existence and it is often not clear what the remedies are for the individuals affected by it.

On numerous occasions, I have personally become aware of specific incidents of media reporting that have resulted in Indigenous persons feeling deeply upset, unfairly treated, and diminished in the eyes of the broader community. Until I commenced practising in the field of defamation, I had not considered that, short of advocating for massive systemic change, there was anything I could do that might assist in bringing some more immediate relief in these circumstances.

This article outlines four instances where, in my opinion, systemic racism in the media diminished the lives of Indigenous people: by misreporting a positive public appearance; misusing footage filmed for a positive purpose; bowing to and feeding the stereotypes of the angry activist; the juvenile delinquent and the dysfunctional community; and failing to protect a vulnerable Indigenous youth from a social media pile-on. In each case, the law of defamation was used to fight back against the perceived systemic racism and demonstrate that Indigenous lives do indeed matter.

I The Australian Media and Indigenous Australians

Only 3.3% of the Australian population identify as Indigenous, and according to Reconciliation Australia, 60% of Australians have never met an Indigenous person.9 Add to that a lack of Indigenous perspectives in the classroom, or only tokenistic inclusion,10 and it is clear that the portrayal Australians see through the media is often the only glimpse they have into the lives of Indigenous Australians. Consequently, the mass media wields extraordinary power to influence how Indigenous Australians are portrayed and perceived.

Since the first European settlement in Australia, Indigenous Australians have generally been perceived as either noble and traditional beings distant from the modern world, or as a savage threat to European ideals.11 In short, the dynamic has been ‘us and them'.

In 1990, the federal government conducted a National Inquiry into Racist Violence. Many people complained to the Inquiry about alleged racism in media reporting.12 This was recognised by the Inquiry as being due, in part, to there often being a gap between many white media representations of Indigenous people and Indigenous perspectives of their own situations.13

In 1992, a systematic survey of Australian mainstream media, including television, news, and radio, found that ‘the exclusion of (non-stereotyped) diversity is almost total in all the media studied' and that the only highly reported issues relating to multiculturalism (including but not limited to Indigenous issues) were immigration and Indigenous land rights, both of which were presented as ‘problems for the majority culture'.14

When the landmark Mabo v Queensland (No 2)15 decision was handed down by the High Court in 1992, the media, more often than not, portrayed it as a potential threat to the population as a whole, as opposed to belated justice for Indigenous Australians.16

It is no secret that throughout history, the mass media, in its various forms, has tended to support the power of the dominant group by presenting to the general public highly negative, emotion-evoking images of minority groups.17

It is also no secret that in Australia, those in power in the media are predominantly white and cater to a predominantly white audience and culture. As American academics Joshua Miller and Anne Marie Garran note,

The saturated ubiquity of whiteness in the media promulgates a covert, ongoing narrative of racism, while rarely drawing attention to racism as a central social problem. It is nearly impossible to withdraw or escape from this unending drumbeat of culture, style, morality, and meaning. It is the cloak that shrouds and obscures the web of racism by normalizing it. Recognizing, decoding, and resisting takes a great deal of time and effort.18

While things may well have improved since the 1990s, the cases below indicate that we still have a long way to go.

II Defamation

There are four essential elements to a cause of action in defamation:19

  1. Publication;
  2. Identification;
  3. Defamatory meaning; and
  4. Serious harm.

The general test for whether an imputation is defamatory is whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think less of a plaintiff.20

Serious harm in defamation

The serious harm element was added to the Defamation Act 2005 in NSW on 1 July 2021.21 It is an element that has existed in the United Kingdom for a number of years and the case law in that jurisdiction has stated that the question of whether serious harm has been suffered must be determined by reference to actual facts i.e. the impact of the statement and not just the meaning of the words.22 This element was not a factor in any of the below examples. However, even if it was, my professional opinion is that we would have had no difficulty establishing it as all the Indigenous persons impacted would have been able to give compelling evidence of the mental and emotional harm they suffered as a result of the publications.

Establishing the four elements is only the first step in determining whether a potential plaintiff in a defamation action is likely to succeed. There are a number of unique defences that might be raised to a claim of defamation. It is beyond the scope of this article to go into those defences; it suffices to say that the primary means of defending a claim of defamation is to prove that the defamatory meaning is true.

The remedy the court can provide for winning a defamation case is ‘damages' in the form of monetary compensation to be paid by the defendant. The purpose of awarding damages is to provide consolation for the person harmed, act as vindication for the person harmed, and act as reparation.23 The amount of damages can be increased when the conduct of the defamer aggravates the injury to the defamed. This may include conduct prior to publication, conduct after publication, and conduct at the trial itself. When settling a case before trial, a settlement may include the deleting of the defamatory material, if it is online, and a public retraction and apology as well as compensation.

III Limitations and Advantages

The law of defamation is designed to protect the reputations of individuals.24 In itself, the law of defamation is not designed to ensure that Indigenous people generally are protected from or compensated for systemic racism. However, it is arguable that each of the cases below has had an impact that extends beyond the immediate outcome for those directly involved, in that it resulted in a degree of accountability, and in some cases, adverse publicity that would act as a warning to media generally to be more mindful as to the possible influence of systemic racism on their reporting.

It is also arguable that defamation is a more effective weapon than other possible remedies, such as action under s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA'). In Eatock v Bolt,25 the Federal Court found that two articles written by Andrew Bolt contravened s 18C of the RDA. The consequence was that the Herald Sun was required to publish a ‘corrective notice' as specified in the judgment, and the Herald Sun and Bolt were restrained from republishing the offending articles, but not from saying the same things in different articles.26

The offending articles still remain online. These remedies are notably insubstantial and considerably less onerous than damages.

In the cases below, I chose defamation as the weapon of choice as the threat of damages is, in my experience, the one legal threat that inspires accountability greater than any other. In some of these cases, I also utilised s 18C of the RDA but as an adjunct to the defamation claim.

A ‘Stirring' Up Trouble

In 2012, the ABC's nationally broadcast AM program included a segment stating that at the 40th anniversary commemoration of the Aboriginal Tent Embassy in Canberra, Anmatyerre Elder and activist Rosalie Kunoth-Monks OAM had, during a speech to the crowd, made inflammatory comments and stirred up trouble. In particular, it was alleged that, as the President of the Barkly Shire in the Northern Territory (‘NT'), she had called the community she represented ‘racist'.27

By the time of the broadcast, it was common knowledge that some people from the Tent Embassy rally had staged an impromptu protest at the Lobby restaurant. This resulted in significant police presence and the eventual escorting of then Prime Minister Julia Gillard by security personnel into a waiting car because of concerns for her safety, in the course of which Ms Gillard lost a shoe, earning her the title ‘Gingerella' amongst the protesters.28

Ms Kunoth-Monks was not present at that protest, but the implication in the ABC report was that she had contributed to ‘stirring it up' by calling the community she represented as ‘racist'.29 The allegations against Ms Kunoth-Monks were based on what the ABC was told by a young NT politician who had been in the vicinity at the relevant time.

Ms Kunoth-Monks contacted me in a state of extreme distress. She said she had spoken calmly but passionately at the Tent Embassy about the plight of her people, yet, in the media, she was essentially reduced to a stereotype of an angry black woman stirring up trouble by calling people racists. She felt that her standing in the community had been lowered.

The first thing I did was listen to a recording of Ms Kunoth-Monks' speech. This is a version of that speech:

… thinking of the plight of the first Australians this Australia Day still brings a lot of pain … The acknowledgement of black people as the first residents of this land is denied by our government. The acknowledgement of the fact that … one of the oldest cultures in the world is still continuing. There certainly isn't pride or goodwill shown by our government. I think this is a crying shame. It is also a heartless uncaring attitude by those who are supposed to be representing us … I would like to say a few words in Albert Namatjira and my language … ‘Today I see you all, those that live here, 40 years you've sat here, for 40 years you've spoken in vain to the government. This place is also Aboriginal peoples. We still do not understand as we continue talking. This language is precious.' (Translated from Arrernte.) This is the first language of the land of Australia. And with that brothers and sisters, if you will excuse me, I will end it.30

It is ironic that, in her speech, Ms Kunoth-Monks seems to be touching on issues that are directly relevant to questions of systemic racism, but in doing so, ultimately becomes another victim of it.

I was at a loss to understand why the ABC would run the report they did when it appeared that they had not even heard the speech and they had not in fact spoken directly to Ms Kunoth-Monks. I consequently accepted instructions from Ms Kunoth-Monks to institute a defamation action in the NT Supreme Court. One of the imputations pleaded at trial was that the plaintiff demeaned her local community by accusing it publicly of being racist.31

Justice Dean Mildren, who presided over the trial, listened to Ms Kunoth-Monks' speech and the speeches of others leading up to hers, and concluded:

The overall impression was that there was still a need for Aboriginal people to fight for equality, justice, better housing and social services, the preservation of Aboriginal culture and identity, and self-determination, and that this was an occasion to remember their past leaders who had fought for change, and the need to ensure that there would be future leaders who could carry on the fight.32

The trial went for five days in Alice Springs and culminated in a judgment in favour of Ms Kunoth-Monks.33 Justice Mildren stated:

I do not have any doubt that it would lower the plaintiff's estimation in the minds of ordinary right-thinking Australians for her to deliberately stir up trouble by stating that her own community was racist.34

Justice Mildren went on to find that the ABC had failed to establish the truth of the above imputation (given the content of the speech, how could they?) and that they had no other successful defences to that imputation.35 Through the use of the law of defamation, Ms Kunoth-Monks felt that she had been vindicated.36 The Judge also awarded Ms Kunoth-Monks $125,000 in damages, plus her legal costs to be paid by the ABC.37

In my opinion, systemic racism created an environment that permitted a story like this one to be run without the proper checking of facts and actual sources. I believe it also contributed to influencing what the NT politician believed she had heard and to what the reporter was prepared to believe. One would hope that, after losing this case, the ABC reflected on these things. In this way, Ms Kunoth-Monks' case could be an example of how a defamation action on an individual, ostensibly micro scale, could potentially compel accountability at a macro level.

Then again, whilst this was a significant win by an Indigenous person against a media giant, it failed to generate the same publicity seen in defamation cases involving people like Geoffrey Rush or Rebel Wilson.

B ‘Caged Delinquent'

In 2017, the Centralian Advocate (the flagship Murdoch publication in Alice Springs) published a full-page coloured photograph of an 11-year-old Indigenous boy, Darren.38 The photo showed Darren close up, peering through a chain mail fence, and mentioned his full name.39 The headline to the article was ‘YOUTH CRISIS: TOWN SPLIT OVER KIDS'. The article itself concerned an Alice Springs Councillor's intention to introduce a curfew ‘as the youth presence on Alice Springs streets seems to worsen'. The background leading up to the taking of the photograph was as follows.

It was school holidays, and Darren and his brother had been dropped off at the Youth Community Centre by his father so that they could engage in activities with cousins and friends. No permission was sought by the Centralian Advocate from Darren or his parents before the picture was taken or before it was published. Again, like the above example, this raises issues of potential breaches of the Media, Entertainment & Arts Alliance (MEAA), Journalist Code of Ethics and the Australian Press Council Statement of General Principles.40 The problem is that neither code is enforceable, which only serves to further highlight defamation action as a viable option for redress.

When the publication came to the attention of Darren's parents, they were deeply embarrassed and distressed. To them, and many others, it portrayed Darren as being a criminal who had been caged behind a fence. They felt it lowered the estimation of Darren and his family in the eyes of the community. I consequently accepted instructions from the family to institute a defamation action in the NT Supreme Court.

The Statement of Claim filed with the NT Supreme Court against the Centralian Advocate stated that the publication implied the boy was ‘a criminal, a delinquent, that he is imprisoned or detained, and that he is contributing to a crisis situation'. That matter ultimately settled out of court, and the terms of that settlement are confidential.41

It is inexplicable that a young boy having harmless school holiday fun turns into a front-page photo that, in my opinion, was intended to depict a juvenile delinquent caged by a wire fence. The media would never dare to exploit the image of a white child in the same way for the purpose of a sensationalised story as they know that there would likely be consequences. Yet, as with the other cases profiled here, it appears Indigenous people are fair game for misrepresentation due to the lack of accountability for media organisations and the prevailing status quo that equates Indigeneity with dysfunctionality. Again, in this case, the hope is that the defamation action forced some accountability upon the relevant media organisation and that it may in future give them pause before using an Indigenous child in this manner.

C ‘Violent Criminal'

On 25 July 2016, the ABC Four Corners program aired an episode about the treatment of children in detention in the NT. 42 That segment featured chilling and now infamous footage of an Indigenous youth, Dylan Voller, strapped and cuffed to a mechanical restraint chair with his head covered by a spit mask. Dylan was a primary witness in the subsequent Royal Commission into the Protection and Detention of Children in the Northern Territory.43 Consequently, there were numerous reports in the media featuring Dylan, with headlines such as ‘Dylan Voller's list of jailhouse incidents tops 200'44 and ‘Dylan Voller's violent past detailed at Don Dale Royal Commission'.45

Such reports were often posted on the Facebook pages of media companies, on platforms where the public could comment. Predictably, many comments launched into abusive, vitriolic and sometimes racist tirades against then 19-year old Dylan, which deeply affected his mental health, culminating in allegations he had committed specific and highly serious violent and sexual crimes. These allegations were complete fabrications.

I was approached by Dylan seeking legal redress and we launched defamation proceedings in 2017 against The Sydney Morning Herald, The Australian, the Centralian Advocate and Sky News Australia.

Media companies defend defamation claim based on other authorship

The media companies argued that they should not be held responsible for comments made by the general public. Rather, it should be the responsibility of the individual affected to scour the media companies' Facebook pages for defamatory material and alert them to it so they can remove it. Our response was that, if a media entity created a platform such as a public Facebook page and posted content that is reasonably likely to invoke negative commentary, then that entity should have a responsibility to monitor any comments and remove any defamatory material. In my opinion, this responsibility should increase when the subject of the commentary is vulnerable, such as an Indigenous youth.

At first instance, Justice Rothman in the Supreme Court of NSW agreed with us, finding that the media companies were publishers and noting:

… the operation by the defendant, in each of these proceedings, of their public Facebook page has little to do with freedom of speech or the exchange of Ideas … Rather, the media companies' use of a public Facebook page is about their own commercial interests … Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.46

The NSW Court of Appeal agreed,47 and ultimately so did the High Court.48 Justices Gageler and Gordon stated:

… the appellants' attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequence.49

In reaching their conclusion, the High Court did not make new law, but rather reaffirmed a 200-year-old principle that if a person (including a media company) ‘has intentionally lent his assistance to [a publication's] existence for the purpose of being published, his instrumentality is evidence to show a publication by him'.50 In short, by intentionally setting up a Facebook page, posting content on it and encouraging people to comment on that content, the media companies had intentionally lent their assistance to the publication of the comments. This is not the end of this particular matter as the media companies may still argue that they had certain defences.

Unlike the other case studies presented here, the actual reporting by the media was not defamatory but some of the public comments in response to the reporting were. The problem, as we saw it from a policy perspective, was that the media organisations failed to accept responsibility for providing a platform for racist and defamatory content from members of the general public that was targeted at a young and vulnerable Indigenous youth. At the very least, our view is that these organisations had a duty to constantly monitor their Facebook pages and ensure objectionable content was removed. There appeared to be no understanding, acceptance or care that opening up an Indigenous youth to a public attack that included racism and defamation could have serious consequences for his mental health.

The media's lack of accountability in gatekeeping their own social media pages again potentially reflects how systemic racism fosters indifference to the reputation and character of Indigenous Australians. Further, the tragedy of the overrepresentation of Indigenous Australians in the prison system is too often exploited to feed stereotypes of the supposed intrinsic criminality and anti-social behaviour of Indigenous people. Consequently, in many pockets of the community, Dylan Voller will forever be maligned as a criminal and a prisoner and nothing beyond that. In the context of such unfortunate circumstances, the media should be held to a much higher standard than they currently perceive they need to be.

But once again, it is hoped that by taking action, Dylan may have given big media some pause to think about their actions. Dylan has expressed the view to me that it has been worth going through the stress of legal action, not just for his own vindication, but also if it ends up providing a measure of protection to other vulnerable Indigenous persons from unregulated, untruthful and defamatory social media attacks.

D ‘Dysfunctional Community'

Perhaps one of the starkest examples of how ready Australian media is to dismiss Indigenous communities as dysfunctional and exploit and misrepresent the vision of Indigenous Australians is the case involving the Sunrise breakfast program on Channel Seven.

On 13 March 2018, the program broadcast a segment with the title, ‘Aboriginal Adoption: Proposal for White Families Should Take in Abused Kids.'51 That segment utilised historical footage that depicted Indigenous people from a particular community as a backdrop to a panel discussion. A filter was applied to the footage to create a slight blurring effect. Despite that, nine adults and six children were easily identifiable.

The segment began by displaying an article from Brisbane's Courier-Mail newspaper with a very large headline, ‘Save Our Kids' and a subheading, ‘Let White Families Adopt Aboriginal Children: Feds'.

The panel consisted of host Samantha Armytage and guests, Prue MacSween and Ben Davis, all persons of a Caucasian Australian background. An edited version of the discussion is as follows:52

Armytage: A Federal Government minister has suggested white families be allowed to adopt abused Aboriginal children to save them from rape, assault and neglect. And currently they can only be placed with relatives or other Indigenous families. But Children's Minister David Gillespie says relaxing the rules is a better alternative to creating an abandoned or damaged generation … I guess, post Stolen Generation, there's been this huge move to leave Aboriginal children where they are, even if they're being neglected in their own families.

MacSween: … it's a no-brainer as far as I'm concerned. You know, we can't have another generation of young Indigenous children being abused in this way, and this conspiracy of silence and this fabricated PC outlook that, you know, it's better to leave them in this dangerous environment.

So, good on you, David Gillespie, and please don't worry about the people that would cry and hand wring and say this would be another Stolen Generation. Just like the first Stolen Generation where a lot of children were taken because it was for their wellbeing … we need to do it again, perhaps.

Davis: I'm with Prue, good on David Gillespie for standing up and saying what a lot of politicians were and are afraid to say, because of the fear of being labelled racist. I mean, this politically correct nonsense has got to go … We need to be protecting kids, we need to be protecting Aboriginal kids … and putting them back into that culture; what culture are they growing up and seeing? Well, they're getting abused, they're getting hurt and they're getting damaged.

Armytage: Yeah, let's hope some sense prevails there.

The segment sparked community outrage and passionate protests outside Channel Seven's studio.53

The Australian Communications and Media Authority (‘ACMA') found Seven incited contempt because the segment ‘directed very strong negative feelings towards Indigenous people, even though this may not have been the licensee's intention'.54

That finding highlights the insidious nature of systemic racism and the deep challenges in trying to combat it. All Seven had to do in this case was say that they did not intend to incite contempt against Indigenous people. Without an admission, it is impossible to prove otherwise. And, of course, it is possible that they did not have this intention. But rather than focusing just on intention and effect, there should have been a deep examination into the culture and attitudes that existed at Seven that allowed a segment like this one to exist in the first place.

The ACMA finding did not address the situation of the Indigenous people who featured in the footage used in the segment. That footage was taken years before for the purpose of a health campaign. The people depicted had given permission for it to be used to promote that health campaign in their own and surrounding communities. The filming had been undertaken at a centre set up to provide support to mothers of young children. The people depicted had never given Channel Seven permission to use that footage for their own purposes.55

The people depicted were devastated and deeply ashamed to see footage of themselves being used as a backdrop to dysfunctionality. These were people with strong families, with a strong and vibrant culture and deep care for their children. They felt that they, their families, their community and their culture had been diminished in the eyes of the Australian public.

Once again, it is inexplicable how footage of a health campaign came to be used in this manner and without the permission of those depicted. The media would never dare to use stock footage of children in Double Bay or Mosman in this way, but they had no issue in doing so when it involved Indigenous people from a remote community in the NT.

Hat trick of dysfunction

A Statement of Claim filed against Channel Seven in the Federal Court stated that the publication implied that those featured were members of a seriously dysfunctional family, a dysfunctional community, and a dysfunctional and harmful culture. It further alleged that it implied that the adults had abused, neglected and/or assaulted children; had left children in a dangerous environment; and were incapable of protecting their children.

Channel Seven attempted to have the Statement of Claim struck out but were defeated on every point.56 That matter also ultimately settled out of court, and the terms of that settlement are also confidential.57 Almost two years after the segment, Channel Seven published an apology. It was not read by Ms Armytage or any of the other hosts on Sunrise. It appeared immediately after advertisements and before it was obvious the Sunrise show had resumed, and it appeared in writing against a backdrop of Aboriginal art that came from a completely different geographical area to our clients that had no connection to them.58 That in itself was insulting and offensive but hardly surprising in the context of the previous 232 years. That apology would not have been published but for the defamation action.

If nothing else, the Sunrise case showed a media giant that Indigenous Australians were not just going to sit back and let themselves be portrayed in whatever manner the media saw fit. While the case was run for fifteen plaintiffs, the whole Indigenous community they came from was interested in the outcome, and numerous community members attended public meetings that we had in the community. Despite a general view that it lacked sincerity, the public apology was a rare victory for those who suffer daily as a result of systemic racism. Even so, the lacklustre method of conveying the apology and the lack of respect shown to the culture of the plaintiffs by using a backdrop of Aboriginal art that had no connection to them make it clear that there is a long way to go in changing attitudes towards Indigenous Australians in the media and in public discourse generally.

As at the time of writing this article, the Seven Network are again embroiled in controversy relating to reporting featuring an Indigenous person. On 3 November 2021, the Seven Network used Facebook photographs of an Indigenous man stating that he was the man arrested for the abduction of four-year-old girl Cleo Smith.59 The man had nothing at all to do with that crime and was devastated by Seven's actions.60 He has approached me to assist him with a defamation claim and proceedings have been filed against the Seven Network.61 The question that looms large is would this have happened to a White person? My opinion is that it is unlikely, and whether conscious or not there is something deeper operating in matters like this that contributes to a lesser standard of care than what would otherwise exist.

IV Systemic Racism Conclusion

If you asked any of the media companies involved in the matters above whether they felt that the decisions made relating to the above publications were influenced in any way by systemic racism, they would likely vigorously deny it. Indeed, it is impossible to prove in isolation that they were. My opinion is that systemic racism is so endemic in Australia that it would be impossible for the media to not be so influenced. However, I encourage the reader to form their own opinion — useful questions to ask are, would the mass media have acted in such a way if the subject was a white Australian, and if they did, what would have been the response from the subject, their family and the community? And what would the media company have done about it?

In each of the matters above, the initial action of the media companies was to vehemently deny any wrongdoing and to engage lawyers to dispute the claims (the one exception being the recent glaring error made by Seven, where they did immediately make an apology. Yet even in that case it is likely that there will be argument as to the appropriate compensation). The media companies know that defamation proceedings are technically complex, costly and lengthy. It can often turn into a war of attrition, and this is why so many defamation cases settle even when the person bringing the claim has a strong case.

Ideally, now that public discourse is more willing to acknowledge the existence of systemic racism, the media companies might question whether a certain portrayal of Indigenous Australians is being influenced by systemic racism and take action to balance that influence. Of course, there is sometimes going to be a fine line between reporting the truth without fear or favour and factoring in the possible influence of systemic racism, but this is a balancing exercise the media needs to start undertaking. Unfortunately, it is unlikely that media organisations will seriously undertake such introspection and caution of their own volition — at least in the foreseeable future. Instead, defamation litigation is one avenue by which some change can begin right now and where lawyers have a key role. By highlighting these cases, I have hopefully raised awareness amongst law students and the legal profession of the possible applications of defamation law in this context and encouraged more lawyers and firms to become involved in such matters.

For many Indigenous persons from low socio-economic backgrounds, the cost of running a defamation action is prohibitive. All of the cases above were run on a no cost to the client basis, meaning that our clients were not required to pay anything from their own pocket as our fees were recovered from the defendant media companies. There are also difficulties for Indigenous people in being able to access legal help for cases like these. Often, they do not know that there is any legal avenue open to them and they do not have easy access to lawyers. Sometimes, there are significant language, cultural and geographical barriers to overcome. None of our clients in the Channel Seven matter could come to Sydney to access our help, so we had to go to them. We obtained instructions in a particularly remote part of northern Australia

with the extensive assistance of interpreters and cultural brokers. It is acknowledged that these can be challenging matters for legal firms to undertake. Nonetheless, they capture in concrete form the nexus between the law and social justice reform. Our post-colonial society is predicated on the relative powerlessness of Indigenous Australians in taking on the institutional levers that maintain the status quo of white dominance and Indigenous diminution. This is what systemic racism is. The media is a key part of this architecture, whether through lazy or indifferent journalism, a refusal to accept that their knowledge about Indigenous people is seriously lacking, actual hostility or bias, or a combination of these factors. Defamation litigation can operate as a counter-lever by forcing media organisations to be accountable for their reporting and to afford Indigenous Australians the respect and dignity to which they are entitled. A final verdict in court or a public apology, in addition to damages, is a small but significant way to make someone feel that their life does, in fact, matter.

Footnotes

1 See, eg, Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991); Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children Are Sacred (Report, 15 June 2007) (‘Little Children Are Sacred Report'); Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, 17 November 2017)

(‘Royal Commission into the Protection and Detention of Children'); Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Final Report, September 2006); Committee of Inquiry into Aboriginal Customary Law, Northern Territory Law Reform Committee, Aboriginal Customary Law (Report, November 2003).

2 Little Children Are Sacred Report (n 1).

3 See ‘The Intervention', Australians Together (Web Page, 7 October 2020) .

4 Royal Commission into the Protection and Detention of Children (n 1).

5 Ibid vol 1, 174–7.

6 Lorena Allam, ‘“System is Broken”: All Children in NT Detention Are Aboriginal, Officials Say', The Guardian (online, 31 May 2019)

australia-news/2019/may/31/system-is-broken-all-children-in-nt-detention are-aboriginal-officials-say>.

7 See ‘Incarceration Nation', Uncovered (Special Broadcasting Service, 2021).

8 Alicia Garza, ‘A Love Letter to Black People' (Facebook, 13 July 2013).

9 Reconciliation Australia, ‘Reconciliation and First Contact 2' (22 December 2016) Reconciliation News 10.

10 Michelle Bishop, ‘“I Spoke About Dreamtime, I Ticked A Box”: Teachers Say They Lack Confidence to Teach Indigenous Perspectives', The Conversation (Web Page, 29 April 2020) .

11 Andrew Jakubowicz et al, Racism, Ethnicity, and the Media (Allen & Unwin, 1994) 38, 57–60.

12 Irene Moss, ‘The Report of the National Inquiry into Racist Violence' (1991) 1(49) Aboriginal Law Bulletin 4–5.

13 Australian Broadcasting Corporation Message Stick, 'Cultural Protocols for Indigenous Reporting in the Media' 2 .

14 Philip Bell, Multicultural Australia in the Media: A Report to the Office of Multicultural Affairs (Australian Government Publishing Service, 1992) 78–9.

15 (1992) 175 CLR 1.

16 Jane Dunbar, ‘Newspaper Coverage of Mabo: An Evaluation of Performance' (1994) 16(2) Australian Journalism Review 116, 118, 122–3.

17 Catherine A Luther, Carolyn Ringer Lepre and Naeemah Clark, Diversity in U.S. Mass Media (Wiley-Blackwell, 2012).

18 Joshua Miller and Ann Marie Garran, ‘The Web of Institutional Racism' (2007) 77(1) Smith College Studies in Social Work 33, 60.

19 Rod Hollier, ‘Defamation Law in Australia', The Law Project (Webpage, 11 March 2020) 5.1 .

20 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 477 [36].

21 Defamation Act 2005 (NSW) (‘Defamation Act') s 10A.

22 See Lachaux v Independent Print Ltd [2019] UKSC 27, [10]–[12].

23 Hollier (n 19) 3.1.1.

24 Defamation Act s 3(c).

25 (2011) 197 FCR 261, 266 [27], [29].

26 Eatock v Bolt (No 2) (2011) 284 ALR 114, [3]–[4].

27 ‘NT Aboriginal Figure Admits Role in Tent Embassy Protest', AM (ABC Radio National, 27 January 2012) (‘NT Aboriginal Figure Admits Role in Tent Embassy Protest').

28 Jessica Wright, ‘Shoe in Custody as Protesters Give Gingerella the Slipper', Sydney Morning Herald (online, 28 January 2012) .

29 NT Aboriginal Figure Admits Role in Tent Embassy Protest (n 27).

30 Kunoth-Monks v Healy [2013] NTSC 74, [24] (‘Kunoth-Monks v Healy').

31 Ibid [30].

32 Ibid [51].

33 Ibid [106].

34 Ibid [34].

35 Ibid [53], [78], [94], [100].

36 Lisa Cornish, ‘Aboriginal Elder Rosalie Kunoth-Monks Defamed by ABC and Rebecca Healy', News.com.au (online, 15 November 2013) .

37 Kunoth-Monks v Healy (n 30) [126].

38 Name changed for the purpose of this article.

39 ‘Youth Crisis: Town Split Over Kids', Centralian Advocate, (Alice Springs, 14 July 2017) now deleted online but discussed in ‘Centralian Advocate Sued for Using Aboriginal Child's Photo to Illustrate “Youth Crisis” story', ABC News, (online, 28 September 2018) .

40 Journalist Code of Ethics, Media, Entertainment & Arts Alliance (at 14 November 2018); Statement of General Principles, Australian Press Council (at 1 August 2014).

41 Lorena Allam, ‘Centralian Advocate Settles Out of Court over Front-Page Photo of Aboriginal Boy', The Guardian (online, 2 October 2018) .

42 ‘Australia's Shame', Four Corners (Australian Broadcasting Corporation, 2016).

43 Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, 17 November 2017) vol 1–2B, 4.

44 ‘Dylan Voller's List of Jailhouse Incidents Tops 200', The Australian (online, 20 December 2016)

politics/dylan-vollers-list-of-jailhouse-incidents-tops-200/news-story/ de5f97d67d643ea082360ea074a96cfd>.

45 Damien Murphy, ‘Dylan Voller's Violent Past Detailed at Don Dale Royal Commission', Sydney Morning Herald (online, 21 April 2017) <https://www.smh.com.au/national/dylan-vollers-violent-past-detailed-at-don-dale-royal-commission-20170420-gvotyb.html>.

46 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [207], [209], [224].

47 Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

48 Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.

49 Ibid [102].

50 Ibid [24] (emphasis in original).

51 ‘Aboriginal Adoption: Proposal for White Families Should Take in Abused Kids', Sunrise (Seven Network, 2018).

52 This episode is no longer available online. The transcript was prepared by the author from the episode and is also not available online.

53 Riley Stuart and Jodan Perry, ‘Sunrise Debate About Indigenous Children Sparks Large Protest in Sydney's Martin Place', ABC News (online, 16 March 2018) .

54 ‘Sunrise Broke TV Rules with Controversial Segment on Removing Indigenous Children', NITV News (online, 4 September 2018) .

55 This information was provided to the author by the plaintiffs and confirmed by the organisers of the relevant health campaign and the person who took the footage.

56 ‘Channel Seven Fails to Stop Aboriginal Group's Sunrise Defamation Lawsuit', NITV News (online, 13 June 2019) .

57 Calla Wahlquist, ‘Channel Seven Settles Defamation Case with Aboriginal Community over Sunrise Segment', The Guardian (online, 12 December 2019) .

58 Keira Jenkins, ‘Channel Seven Apologises to Yolngu Group over Controversial Sunrise Show', NITV News (online, 30 January 2020) .

59 Kylie Stevens and Padraig Collins, ‘Aboriginal Man Threatened with Spearing after He Was Wrongly Identified as Cleo Smith's Alleged Kidnapper Plans to Sue Channel Seven', Daily Mail (online, 5 November 2021) .

60 Lindy Kerin and Jodan Perry, ‘Aboriginal Man Wrongly Named as Cleo Smith Abductor Plans to Sue Seven Network', NITV News (4 November 2021) .

61 Michaela Whitbourn, ‘Man wrongly named as Cleo Smith abduction suspect launches defamation action against Seven' Sydney Morning Herald (online, 16 November 2021) .