Former Federal Court Judge Ron Merkel has raised the spectre of thousands of vulnerable young Aborigines suffering for years at the hands of Herald Sun columnist Andrew Bolt as the conservative scribe’s race case continued this morning

Merkel argued that Justice Mordy Bromberg should read the four 2009 articles at the centre of the case through the eyes of a broader group of fragile youngsters who count the nine applicants — including Professor Larissa Behrendt and Wayne Atkinson — as role models.

“If you’re a young person of Aboriginal descent and you see the persons you aspire to as leaders in the community being challenged, targeted or attacked, why would you go through that?,” he told the court. “It’s a double assault on this group. It’s a chilling assault on their own self respect, their own pride, but it’s also an assault on how they would see others viewing them.

“This is not just a flush of hyperbole or rhetoric, this is about the real world.”

The broadening out of the affected parties — from the nine light-skinned Aboriginals suing Bolt, to others with similar skin shade and now to young Aborigines struggling with their identity — has precedents in several previous racial discrimination cases. But Justice Bromberg didn’t appear convinced: “Are you asking me to infer that people were identified beyond … the statement of claim?”

“Not infer your Honour, the evidence is they were,” Merkel responded, later admitting that some of logic employed was “unprecedented”. Bromberg concurred: “I can tell you you’ve convinced me of that.”

Under section 18C of the Racial Discrimination Act, the offence in question can relate to insulting, humiliating or intimidating “a group” of people in addition to an individual. Merkel noted the potential for offence was large because the Herald Sun was Australia’s most read daily newspaper and Bolt wrote the nation’s most widely read blog.

But the extended logic didn’t seem to impress Bolt, who sat for long periods with his head in his hands, despite moral support from Herald Sun colleague Alan Howe seated one row behind him.

In a wandering morning of final submissions, Merkel reprised his blunt assessment of Bolt’s intention in penning the yarns: “There’s no doubt the message is that you’re fair enough or white enough … and you’re going out there and identifying in public … you’re not really genuine. The message is you’re fake. And why are they faking it? Because they’re rorting the system or they’re doing it for material gain.”

The articles had a “chilling effect”, Merkel said: “They strike at the heart of the persons’ right to self identify.”

Bromberg and Merkel also discussed Bolt’s defence that he was simply parrying with other public figures as part of the normal cut and thrust of political debate. The bushy-haired QC said many of the applicants, like artist Bindi Cole, could hardly be considered warriors in that regard simply because they held an exhibition or, like Sydney lawyer Mark McMillan, an academic post.

“It’s OK for you to be a closet Aboriginal, but as soon as you’re outside the front door you’re fair game,” said Merkel.

Yesterday afternoon, Merkel set out in painstaking fashion why specific passages from the two articles and two blog posts caused offence under the Act. The court tittered as the actual passages from Bolt’s stories were read out following days of esoteric argument about what may or may not have been in Bolt’s mind.

Merkel set out the “skilful”, but possibly discriminatory, rhetorical template employed by Bolt in his masterful “slides” between pejorative statements and individual anecdotes.

First, Bolt seems to identify an ancestor of the targeted group that is not Aboriginal — implying that they are not genuinely or sufficient Aboriginal — and then asserts they could choose an alternative identity. He then highlights the fair skin colour of the targeted person and juxtaposes the choice with a taxpayer-funded benefit better shunted to the darker skinned.

But, Merkel argued, the applicants do not have a choice, there is no such person as a “full blood” Aborigine and the “sting” in Bolt’s words — that the lighter skinned were “loping back to the city with the goodies” — was a complete fiction.

“It’s a downward escalator to a racist hell if one wants to start drawing distinctions of this kind,” he bristled. “What comes from them is demeaning denigration and a denial of the identity of individuals whose life experienced brought them up as who they are.”

He branded a “Clayton’s disclaimer” a sentence Bolt had inserted into a piece “White is the new black”, in which he said: “I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons.”

And after being presented with a series of factual howlers in Bolt’s columns, Justice Bromberg noted “Mr Bolt is not on trial for being a good or bad journalist”.

Even Herald Sun sub-editors were under the microscope. As Crikey reported yesterday, Merkel started by saying he would still be seeking an apology from the Herald and Weekly Times but that Bolt personally was off the hook.

“They made their own decision to publish these articles based on the Press Council privileges,” he said.

The article “It’s so hip to be black” was targeted because of its suggestive precede, which Merkel said ironically cut to the heart of what Bolt’s articles were about. “Why are so many people so eager to proclaim their Aboriginality despite it being such a small part of their heritage?” the print edition precede read.

Merkel said HWT employed “sub-editors trained to pick out the gist of what the article is”: “It’s very interesting for us to observe because the question raises the topic so completely disavowed by Mr Bolt.”

“The sting is that this would be totally uninteresting for any reader unless motive was at the forefront. It would just be a nice interesting sociological piece that would never see the light of day in the Herald Sun if he had an interesting discussion on identity politics.”

The case continues this afternoon, with strong indications it will slide into an eighth and final day tomorrow.

Peter Fray

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