Andrew Bolt’s defence QC has mounted a torturous argument to show his high-profile client failed to fall foul of the Racial Discrimination Act in the Federal Court this morning.
In an extended to-and-forth with one-time ALP pre-selection contender Justice Mordy Bromberg, Neil Young, for Bolt, argued his client had cast no aspersions over the Aboriginality of the nine applicants suing him, but was simply concerned with “the consequences for the rest of Australia” of the failure of the nine to identify with other aspects of their heritage.
Counsel for the applicants, led by Ron Merkel and Herman Borenstein, have argued this week that in the four 2009 articles at the centre of the case, Bolt suggested “white Aborigines” were illegitimate and therefore not eligible for prizes and benefits.
But Young shot down that interpretation: “He’s not using white as any term of abuse, he’s not using white as any racially-related basis for criticism or to generate offense, he is simply using it as a signifier of mixed heritage in the same way as the individuals have used it as a signifier of a cultural problem.”
Justice Bromberg questioned that logic: “As I understand it the case that’s being put against you is that white is used as a signifier of illegitimacy. That’s the case that it seems to me needs to be grappled with.”
The distinction is crucial because if Bolt did intend to mock the applicants for their whiteness, Justice Bromberg would have no choice but to rule against him. The recent addition to the Federal Court hinted that if he could be convinced Bolt was writing about illegitimacy of pale-skinned Aborigines, then he would have breached the Act: “I don’t think you’ll have a lot of trouble persuading me that any entree into the debate as to who should be regarded as an Aboriginal would offend the Act.”
A more pertinent question, Bromberg said, would be whether the offence was also “serious and profound” as previously set out by Justice Susan Kiefel. The statement followed a long period of parrying over the question of Aboriginal legitimacy.
Bromberg: “The thing I’m somewhat confused about I must say … it seems to be a debate about legitimacy. It’s a debate about whether certain people should be regarded as Aborigines.”
Young: “No it’s largely a debate of the consequences of applying certain rigid rules to that classification.”
Bromberg: “Then legitimacy for particular consequences? It’s not a debate about who is an Aboriginal?” He added if Young was right, “you’re able to say he wasn’t engaged in a debate about the legitimacy of white men and women claiming to be Aboriginal”.
Young: “All we can say is he explicitly disavows any challenge to his legitimacy, it’s the whole premise of the article that they are legitimately Aboriginal based on their heritage.”
“It depends on what article you’re talking about,” Bromberg responded.
Bolt inserted a disclaimer in one article, titled “White is the new black”, that he was “not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons”.
“I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs,” he said.
The genuineness of that statement and the “true reason” for the articles is expected to be closely scrutinised by Merkel, for the applicants, in his closing address.
Many of the articles contained images and links to pictures of the fair-skinned nine as a visual compare and contrast exercise next to suggestions they were “scuffling at the trough” with darker-skinned Aborigines for benefits and prizes.
Yesterday afternoon was taken up by an extended hair-splitting discussion between Young and Bromberg over the precise definition of Section 18 C of the Act, and some other “difficult issues” in the case.
Under the Act, Young argued that not only would the applicants need to prove that a “broader group” was likely to be offended by Bolt on the grounds of race, but would also have to prove the articles had a racial motive. It was not enough to simply cause offense to the individuals.
Young, who apparently once rang The Age to complain when the initials “QC” failed to appear after his name in print, said section A of the Act should be interpreted as offensive on the grounds of race, as opposed to a gratuitous aside relating to, for example, someone’s clothes: “If all you can point to is some aside … it may be a stinging and hurtful and gratuitous aside, but if it’s not race related it doesn’t get across the threshold.”
Bromberg responded: “You would say for instance — to use an example that came up in the course of cross examination — to someone being ‘gay’ wouldn’t fall into that category.”
On Wednesday, Bolt fired back when it was suggested by Herman Borenstein SC that he had used the word “gay” as an insult in relation to Sydney law academic Mark McMillan. But even if the term was intended to be offensive, Young maintained it was irrelevant: “This Act is not designed to give remedies for any slight of any kind … this is about racial insults.”
Citing Justice French, Young argued the nature of the offence must be “profound and serious … applying the standards of a robust multicultural society in which we have robust debate”: “When one analyses the articles … they are nowhere the standard or level of racial insult.”
Young also maintained the applicants’ statement of claim was “circular”, “didn’t make sense” and “was not a properly constituted group action”, although Bromberg said it was “a bit late in the day” to be raising such a fundamental objection: “The articles make it very clear that these people are entitled to call themselves Aboriginal … Casey Donovan is praised for saying ‘I’m Aboriginal but also have other strands in my heritage’. ‘Half white’ were her words.”
“He’s doing that to make the point that each of these individuals should of course claim that they are Aboriginal but without denying the other influences from their heritage. He makes that point again and again. He does not deny they are genuine Aboriginals or suggest any lack of bona fides. He’s saying it’s a narrow view … in the sense that you have other cultural influences.”
In an extended back and forth lasting nearly two hours, the duo dueled over why it was necessary for Bolt to refer to the colour of the Aboriginals concerned, if he had already made the applicants’ mixed heritage clear elsewhere in the article by reference to, for example, their English or Scottish grandparents.
However, Young maintained Bolt used the reference to light skin as an “entree card” to explore the subjects’ mixed background. His motive was not, in itself, race based:
“Mr Bolt never used the fact that they are fair skinned as a basis for attacking their capacities or anything like that. He says that’s been their entree card to a greater level of career success and certainly a greater level of comfort in their background than many other Aboriginal people who in his view are more deserving and that’s where the benefits and prizes should be specifically directed.”
The repeated mention of “light skin” in the articles served only as a stepping stone or “clue” to his contention the applicants were less deserving of benefits than those Aboriginals with lesser resources. While race was relevant when the applicants’ raised it themselves, Bolt’s main thesis centred on material disadvantage.
But Bromberg seemed unconvinced: “In terms of his thesis, it could have been dealt with without reference to colour.”
Young approvingly cited Behrendt’s argument that it was “ludicrous” that Aboriginals with only a tenuous genetic connection to Aboriginal relatives be able to access voting rights and benefits. He said a similar argument had been made by Bolt, despite Behrendt suggesting in the witness box that she was misquoted.
But Bromberg suggested that, in fact, the Behrendt and Bolt were arguing different things: “To put it in a way that she [Behrendt] didn’t … the debate there is whether someone is a genuine Aboriginal for the purpose of obtaining a benefit. You say that Mr Bolt isn’t concerned with the notion of genuineness and what I’m saying then is aren’t therefore we dealing with different debates?”
The reasonable and good faith provisions of Section 18 D of the Act also got a workout, with Young arguing Bolt was simply proffering his views on an issue of concern in the community — namely the divisiveness of identification with a particular ethnic group to the exclusion of others.
Bolt’s overall thesis was reiterated by Young: “Because of their European Heritage and skin colouring, the opinion Mr Bolt expresses is that the individuals, by an act of will, could make a choice to embrace all aspects of their heritage, instead they’ve made a choice to emphasise only one aspect of their the heritage. His view is that the societal consequences of that could be deleterious in the long run.”
Bromberg: “I accept that he is entitled to have that view and put it strongly but that’s not what we’re talking about is it … what we’re talking about is the way that is expressed … and whether the expression included gratuitous comments that were insulting and that’s the heart of the complaint as I understand it.”
The case continues this afternoon with closing arguments from Merkel. Merkel’s submission is set to stretch all the way to next Tuesday.