Erin Molan defamation case judge ‘challenged’ by racism definition

“This was a particularly worthy case for a jury, but that wasn’t to be.”

On hearing submissions from Mr Smark about the distinction between saying something racist and being a racist, Justice Bromwich recalled making a comment in 1980 that “burned at me for years”.

Without repeating the comment, he admitted that “objectively speaking it was racist”.

“I’ve felt bad about that for 41 years,” he said. But: “I don’t think that incident alone makes me racist”.

When it came time for the Daily Mail’s barrister, Bruce McClintock SC, to make his arguments, he too noted that “we’ve all done things” that are regrettable, “particularly when young”.

“If someone makes one racist remark they may not be a racist,” he said. But “in this case, your honour, there’ a plethora of things we would say add up to racism.”

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He added that there was also a “ton of evidence” that Molan “was conscious that what she was doing was racist”.

In her evidence, Molan asserted that she wasn’t mocking Pacific Islander names when she uttered “hooka looka mooka hooka fooka” because mocking involves “cruelty”. Mr McClintock said the judge would reject that and “adopt a definition of mocking or mockery that only means making fun of.”

He said that doesn’t make it any less racist.

“To make a joke about people’s names, a racially-based joke about people’s names, is really in my submission completely disgraceful,” he said.

Mr McClintock referred to the wording of section 18C of the Racial Discrimination Act, which describes an act which is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and which 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”.

He said that the names of Pacific Islander NRL players, which he contended Molan was mocking, are “a racial characteristic. Once that’s accepted, it’s racist.”

Justice Bromwich has reserved his judgment.

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