Andrew Bolt will not be forced to apologise over a series of articles on lighter-skinned members of the Aboriginal community, the Federal Court was told this morning.

Submitting an amended application in the case, Ron Merkel QC, for the nine Aboriginal applicants, revealed that after a weekend of pondering, Bolt was in the clear over the four 2009 yarns. However, his publisher, the Herald and Weekly Times, will still be asked to run a prominent apology in the Herald Sun.

HWT is the second respondent alongside Bolt in the case led by Aboriginal activist Pat Eatock under section 18 C of the Racial Discrimination Act.

Bolt, who seemed relieved when the argument was put, famously published a 2006 book entitled Still Not Sorry, encompassing his controversial views.

Merkel outlined his reasoning: “It’s clear that the first respondent has no intention of retracting anything he had said in his articles in respect of he might call ‘exaggerations’ or … ‘minor factual errors’ and given that approach to the case by him we don’t seek that this court propose an order on him that might be presented as something contrary to his conscience.

“This case is not about what Mr Bolt thinks, it’s purely about what he wrote in these articles irrespective of what he might believe in [with regard to] sociology or his other views on Aboriginality in Australia.”

There was nothing controversial about the HWT apology, Merkel said, “but it is a matter of great significance to the individuals involved”.

Merkel also revealed that the applicants, including Professor Larissa Behrendt and former ATSC Commissioner Geoff Clark, wouldn’t be demanding further compensation in another case. Last week, he had suggested individual financial claims could be considered if the case was successful. For their part, Bolt’s lawyers had flagged an elevation to the High Court — citing implied free speech provisions under the Constitution — if Justice Mordy Bromberg ruled against them.

“We’ve come to the conclusion … that this hearing should resolve all matters in dispute,” Merkel said. “There will be no further hearing and no further evidence.”

In addition to an apology, the applicants are seeking a ban on future articles on the same theme and a declaration the four articles in question were unlawful.

Merkel, who started his address with the admission that “Your Honour’s life as a judge is not meant to be easy”, outlined his complex reasoning, including a Spaghetti Nation-style assessment of different permutations and combinations of the nine individual claims and the offended groups.

What is in good faith and what is reasonable had to be considered in the context of the nine applicants, in addition to the broader groups, he argued.

“So I’ve got nine cases, not one?” Justice Bromberg remarked drolly.

“You’ve got, as we will seek to explain, 11,” responded Merkel, with a hint of reticence in his voice.

But Merkel said the complexity would be softened when the articles were examined, owing to their blunt approach.

Following an exchange over whether the articles constituted a “trend” following an underlying theme, or whether they should be treated individually, Merkel took an all-encompassing approach to the question of offence under the Act.

“We stand or fall on trend, stand or fall on each article alone, or stand or fall on parts of each article,” he said.

If Justice Bromberg agrees with that assessment, a judgment in the case, which has already stretched into a second week, could be prolonged. However, to assist his Honour some of the theoretical offence attributed to the nine could be applied more broadly to light-skinned Aborigines in general.

The case continues the afternoon with an exploration of the free speech provisions of 18 D of the Act, with a submission from Merkel’s colleague Herman Borenstein, SC.

Peter Fray

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