Federal Court judge Mordy Bromberg has questioned key elements of Andrew Bolt’s defence in a racial discrimination case brought by nine prominent members of the Aboriginal community this morning.

Giving his final submission to the court before the applicants sum-up tomorrow, Neil Young QC, for Bolt and the Herald and Weekly Times, reiterated Mr Bolt’s opinion on the issue of Aboriginal mixed descent published in four 2009 stories at the centre of the case.

“The publications in question concerned Mr Bolt’s genuinely held views in a matter of genuine public interest…in brief it is whether in modern Australia there is a discernable and socially undesirable trend whereby persons of mixed ancestry… could identity with another race or culture – or no race at all, [but instead] choose to identity solely as Aboriginal.”

Young said Bolt’s “sub theme” was that the trend has an undesirable consequence of discriminating against “more deserving members of the Aboriginal community”.

In one story, ‘White is the new black’, Bolt suggested that an Aboriginal scholarship won by several prominent Aborignes chafed with “racial reality”. According to Bolt’s evidence, “racial reality” referred to the polyglot nature of modern society rather than the reality of the race of the individual.

However, Justice Bromberg questioned whether a “reader of average intelligence” would have been able to deduce Bolt’s meaning.

Young, who ironically represented one of the applicants, Wayne Atkinson, in the landmark Yorta Yorta case, said Bolt’s thesis was that Aborigines with mixed descent had the opportunity to identify with many strands of the their heritage. Those with “thin strands” of Aboriginal descent were much less likely to be disadvantaged and could divert benefits away from more genuine recipients.

But Bromberg said Bolt’s articles “seem to be have been referenced on one hand, not by reference to a means test, but by reference to a skin test.”

Bolt said in his previous witness box evidence that the white skin of the Aborignies was only “a clue” to the other cultural and racial identifications available to them.

But Bromberg questioned the point of view of what a Herald Sun reader would understand — a relevant distinction under the Racial Discrimination Act.

Further, the Act was “founded on the notion that we have a society with different ethnic groups or races and we have to protect them for having so identified.”

“Arguably his [Bolt’s] thesis for dealing with racism is different to that underpinning the Act”.

Young later argued that Bolt was simply expressing an opinion and that the free speech provisions of the Act should protect him. He gave the example of Bolt standing on a street corner trumpeting his views “in the cut and thrust of debate”.

“That might depend on how he says it,” Bromberg responded.

Earlier, a relaxed Bolt entered the witness box for the last time under friendly questioning from his legal team over evidence provided to support his contention that more disadvantaged Aborigines had suffered from privileges doled out to other applicants with mixed heritage.

After reiterating his thesis, Bolt, who attended his son’s 11th birthday party last night, was finally excused, jokingly asking Bromberg to “promise” that he wouldn’t be called back.

Bolt’s legal team also entered as evidence two recent Quadrant articles – one penned by controversial historian Keith Windschuttle from December subtitled “Real Aborigines versus Phoneys’ and another by John Izzard on ‘Designer Ethinicity’.

“Anymore bedtime reading Mr Young?”, Bromberg joked, as the articles were handed up.

Bromberg also ruled against a late submission from Ron Merkel and Herman Borenstein, for the applicants, over evidence relating to Tara June Winch, whom Bolt described as an “official Aborigine”. Bolt had erroneously written that a prize won by Winch was auspiced by the Australia Council, and implied that it was lavished exclusively on Aborigines.

Yesterday, the popular polemicist conceded that he had also made an error in his references to Anita Heiss, who he wrote had snared “plum jobs reserved for Aborigines at Koori Radio, the Aboriginal and Torres Strait Islander Arts Board and Macquarie University’s Warawara Department of Indigenous Studies”.

In fact, the jobs were not reserved solely for Aborigines.

The case continues.

*For a detailed run down of yesterday afternoon’s proceedings, including Bolt’s fiery explosion, read Andrew Crook’s account here

Peter Fray

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