The two senior silks representing nine prominent members of the Aboriginal community in the Andrew Bolt race case have concluded their submissions with a passionate plea for Judge Mordy Bromberg to ban the Herald Sun from publishing “unlawful” stories in the future.
Winding up after seven full days of evidence in the Federal Court this morning, Herman Borenstein and Ron Merkel reiterated their demand for an apology from the Herald and Weekly Times (although not from Bolt), and told Bromberg to rule the four offending 2009 articles at the centre of the case be removed from the internet.
The duo are also asking that Australia’s most popular daily newspaper be banned from publishing “substantially similar” content in the future.
Perhaps responding to widespread criticism that the case represented an unjustified attack on free speech, Merkel said he “wanted to make something clear”:
“We’re not trying to attack the expression of attitudes in an abstract sense in a debate about where fair skinned or mixed descent fit in society and on sociological and other issues. The applicants are not here to try and do some mental cleansing about all of these issues. They’ve lived with it all their lives. The reason that this case went over the top … is they constituted highly personal, highly derogatory, highly insulting offensive attacks on a group of individuals … who are among the leaders of the Aboriginal community in this country.”
Merkel warned against a “narrow form” of relief to avoid further cases in higher authorities, and said the Herald Sun would be able to deal with any finding banning similar Bolt-style screeds in the future. “If the Herald Sun wishes to embark upon this in another context, then it is a matter for them to determine whether … it breaches the Act,” he said.
Earlier, Borenstein continued his attack on Bolt’s evidence in the witness box, advising Bromberg to be “cautious” in his interpretation of the master rhetorician’s responses under oath, which he said “lacked credibility”.
The Herald and Weekly Times also came in for a bollocking for publishing the stories, for which there was “no evidence” they constituted fair comment under section 18D of the Act. An “unsupported lack of facts” rendered the defence null and void and the “public interest” clause was also rendered inoperable by the personal nature of the attacks.
Section 18D of the Racial Discrimination Act states that otherwise unlawful breaches are permissible if they were done “reasonably and in good faith” and were of a “genuine purpose in the public interest”.
Bolt remained exasperated throughout this morning’s proceedings, despite the reassuring presence of the Herald Sun’s Terry McCrann at his side. At one point Bromberg winced when McCrann’s mobile went off, forcing the veteran business scribbler to beat a hasty retreat to the exit to place it on silent.
Yesterday afternoon, Borenstein conducted an extensive trawl through the detail of Bolt’s articles to rebut any suggestion Bolt could get off on free speech grounds. Borenstein said Bolt had failed to contact his targets, had displayed a “complete lack of genuineness” in his approach and hadn’t conducted research in line with the duties of a professional journalist:
“What he’s doing is bringing into question the genuine heartfelt, honest, self identification of these people on a basis which is misleading, incomplete and a misrepresentation of the real facts. And at the heart he leaves out the element which he himself acknowledges as significant, the cultural background.
“Now, both objective or subjectively, how can that be defended as being either reasonable and in good faith? It’s derogatory, it’s a putdown of these people that are identifying as Aboriginal even though they’ve got a small part of their heritage as Aboriginal and they’re white.”
Bolt wrote the articles without referring to the importance of cultural background in determining an Aboriginal person’s identity, despite admitting in court that he viewed that aspect as important. Instead, he focused solely on descent and skin colour.
Borenstein said Bolt was effectively blaming the vicitm: “Instead of looking at the racists and writing about the racists and why they are wrong … and why they are misguided … what he’s done has written this diatribe which offends and insults and impugns and accuses the victims of the racism and says ‘you should be remorseful!'”
There was also an interesting discussion on freedom of speech and how it applied to bloggers as opposed to News Limited columnists. The court heard the two were effectively working to different standards.
Bromberg noted “the right to freedom of expression is exercised not simply by journalists, it’s exercised by a whole lot of people like bloggers who aren’t journalists … are they also required to check their sources, contact the person they want to write about in order to escape an allegation their comments were not made in good faith?”
Borenstein responded: “The obligation will vary … depending on what resources and facilities are available.
“If you’re talking about a senior journalist of a kind that Mr Bolt is in a huge newspaper organisation … you would obviously expect more from a person like that … than you would from someone who has no particular skills and [is] barely literate if you like and just posts a blog.”
But Bromberg seemed perplexed at the inference of inequity: “That would lead to a circumstance where a blogger who’s not a journalist, just an individual sitting at home at their computer … that person would have greater access to the freedom of expression or freedom of speech than the journalist in the context of this Act.”
This morning, Borenstein continued the theme, citing the judgement in the Marcus Einfeld speeding ticket case in which the disgraced judge seemed to be held to a higher threshold owing to his standing in the community.
The case continues this afternoon with a closing rebuttle from Neil Young QC, for Bolt and the Herald Sun.
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