The Herald Sun has launched an unprecedented bid to publish the totality of “proceedings, argument and evidence” in the Andrew Bolt racial discrimination case, sparking fears of a massive media campaign to bag the trial in the eyes of the public.

As the case brought by nine prominent members of the Aboriginal community wound up last night, Neil Young, QC, for Bolt and the Herald and Weekly Times, dropped an eleventh hour bombshell, asking Justice Mordy Bromberg to order the release the full transcript of the proceedings exclusively to News Limited in the “public interest”.

But Ron Merkel, QC, for the nine, was sceptical at the manoeuvre, demanding a more formal application, including affidavits, to make the reason for the request clear.

“It’s an extraordinary application, it’s unprecedented in our experience. I have no idea what purpose it’s being put forward,” adding that it “could potentially raise serious issues for the parties, for witnesses and the court.”

The unusual request has sparked concerns the Herald Sun is planning a page-one splash decrying the case as an affront to free speech before the judgement is handed down in about a month. The formal application would be made in the next seven days, with Merkel, for the applicants granted a further 10 days to respond.

In the James Hardie asbestos case, transcripts were released each day. But Merkel maintained the circumstances were different this time around given HWT is a party to the case.

“The difference is…a party is seeking to publish a transcript that has resources of its own…if this were an application by The Age it may have a difference context.  But this is an application by a party that controls its own website and publishes its own newspaper.”

The copyright in the case is currently held by the Commonwealth of Australia. It can be accessed by the public in the court file, but only at a prohibitive cost.

Young  maintained the request was in the “public interest” and related to “the principle of open justice”.

Earlier, Bromberg ripped a hole in a major element of Bolt’s defence, hauling Young over the coals for failing to tell him how the offence caused by four 2009 Bolt columns would be read by a “reasonable member” of the community.

Young had posited that Bromberg should consider two articles and two blog posts from the perspective of a community member “with a general interest in Aboriginal issues”. By contrast, Merkel and Herman Borenstein, for the nine, said the level of offence should be assessed through the eyes of lighter-skinned Aborigines generally and should also encompass young Aborigines who considered the applicants role models.

Counsel for the applicants — led by veteran activist Pat Eatock and including Professor Larissa Behrendt and Geoff Clark — have combed over the pieces, highlighting instances of damning rhetoric, while Young had mostly confined himself to esoteric arguments over the application of the Racial Discrimination Act.

Young was forced to deliver an off-the-cuff run through after Bromberg said he hadn’t “been taken to detail of the articles.”

“I don’t have an analysis from you, from your reasonable person, of the articles. Don’t I need to be taken to the articles and be told [how] the articles would be read by the reasonable person…as the eyes that you say I should look through?”

“I’ll do it but I won’t do it word by word, I’m not taking 5 hours to do it,” Young snapped back.

Bromberg asked Young how seemingly cynical phrases like “political Aborigine” and the “the white face of the new black race” in the story ‘White is the new black‘ would be interpreted by the lay reader.

According to Young, “political Aboriginal”, far from being pejorative, “was simply a Aboriginal who is takes actions or makes demands in the public domain.”

But Bromberg seemed bemused, retorting that “surely Aboriginal people have been doing that for a long, long time.”

Young then claimed the new black race was merely “a new group within society of people of Aboriginal descent who are politically active”.

In the four articles, Bolt had strongly suggested that Aborigines had identified as such in order to access benefits and prizes originally destined for the darker skinned. Bolt’s defence has rested on the unlikely proposition that the choice was “incidental”.

Earlier, Young shot down the applicants’ claim that the “mere mention of biological descent” and skin colour was enough to cause offence on its own, again slamming Merkel’s earlier allusions to Nazi eugenics programs and the Stolen Generations.

While the formal submissions have ceased, it seems the case — involving eight extended days of debate and hundreds of thousands of dollars in News Limited legal fees — still has a fair way to run.

*As this matter is still before court, Crikey is not allowing comments on this article. If you wish to respond email [email protected].

Peter Fray

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