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March 30th 2011 print

Michael Connor

Justice in Melbourne: 1

Herman Borenstein, SC, to Andrew Bolt: “Don’t trust lawyers, Mr Bolt.”


Don’t trust lawyers, Mr Bolt.
                          Herman Borenstein, SC, to Andrew Bolt,
                          30 March, 2011 


The trial of Andrew Bolt began in Courtroom 1 of Melbourne’s Federal Court on Monday. Bolt is standing trial for supposed offences against Articles 18C and 18D of the Racial Discrimination Act for four articles he published in 2009 concerning a number of prominent and fair skinned Aborigines. His class action opponents are nine people who identify as Aboriginal: Pat Eatock, Geoff Clark, Bindi Cole, Larissa Behrendt, Anita Heiss, Leeanne Enoch, Graham Atkinson, Wayne Atkinson and Mark McMillan. Though all have made witness statements only three were called this week for cross examination.

Appearing before Justice Mordy Bromberg are the prosecuting lawyers Ron Merkel, QC, and Herman Borenstein, SC. Representing the Herald Sun and Andrew Bolt is Neil Young, QC.

Mr Merkel’s opening on Monday took the case into the headlines and history books. He linked Andrew Bolt to the racist ideology of eugenics and the Holocaust. When he said that “Andrew Bolt has a mindset frozen in history, frozen in a point of time”, there were supportive noises from the trial spectators who were obviously very unsympathetic towards Bolt. Claiming a “eugenics approach” for Bolt he went on to say that “This sort of thinking led to the Nuremberg race laws.” Merkel also revealed a new marker in our contemporary politics of grievance by twice stating that “part Aboriginal is an insulting term.” In his second usage the complaint was elevated to “very insulting”.

Mr Merkel also said, “This case is not about free speech.” It was a sunny day outside.

There was talk of compensation, if the complainants won. It seems there had been no previous discussion of this with the defence lawyers. Mr Merkel said that these financial considerations could be dealt with in “subsequent hearings" after this case concludes.

Pat Eatock, Bindi Cole and Larissa Behrendt were cross-examined by Mr Young for the defence. When Eatock was asked when she and her sister (who had different views of their genealogy) had started researching their family history she replied: “That’s two questions.” Artist Bindi Cole, who has Jewish ancestry on her mother’s side, was asked if she could choose to develop the Jewish aspect of her heritage. She replied: "If I wanted to I could.” Professor Behrendt, who is a law professor, had to be reminded at the start of her interrogatory that she should face and direct her replies to the judge. After their brief appearances came the turn of Andrew Bolt. He spent over a day and a half in the witness box.

Asked if the statements in his articles were correct and if he held the views they expressed Bolt replied firmly: “They are and I do.”

Before taking questions from the prosecution Bolt requested permission to make a statement about the matters raised in Merkel’s opening which had flooded the newspapers. When Merkel objected that the court was not a forum for making a speech. there were sniggers in the audience. When reference was made to the specific remarks Bolt found objectionable the trial transcript was referred to. Only then was it discovered that neither the defence nor Judge Bromberg had received copies. A 10 minute recess was called while this was rectified. When the case resumed the objectionable matters were referred to and Mr Merkel claimed misrepresentation and that they had been taken out of context. Bolt looked away shaking his head as Mr Merkel said: “This court is the occasion of giving evidence.” Questioned by Mr Young, his own lawyer, Bolt said, “Mr Merkel crossed the line.” The audience found this amusing.

The prosecution’s  cross examination was handled by  Herman Borenstein. Bolt was cool and clear. Geoff Clark who was sitting in the courtroom was used to make some of his points. “I’m sorry to keep picking on you Geoff," Bolt said. "Someone like Geoff Clark is a racist.” It was a colourful occasion.

Asked if he knew that the people he had written about would be offended Bolt replied: “I knew they wouldn’t like it.” And asked how he thought they would respond he said, “I hoped remorseful, but clearly not.”

Bolt has a clear idea of why he is on trial: “I know all about destroying people when you don’t agree with them. That’s why I’m here.”

When talking of modern race politics Bolt commented: “It will lead to trouble.” And of modern identity politics in Australia he commented,  “They are pixels in a picture of madness.”

Questioned about the term "Austrian Aborigines”, which he had used when talking of an Aboriginal writer of part Austrian descent, Bolt explained that he had taken the term from an article in The Age newspaper about the same writer, but “they’re not sitting here in the dock for using it.”

During their interrogatory battle Mr Borenstein said of a statement made by Bolt, “How do we know your not making it up to get yourself out of a jam?” Bolt replied firmly, “I’m not in a jam.”

On the topic of Welcome to Country and Acknowledgement of Traditional Owners ceremonies Bolt spoke of them as a “new tradition”, and said they were “entrenching division”.

Following a long examination of words and paragraphs used in Bolt’s articles he was asked by Mr Borenstein about their “vibes”. Mr Young objected, successfully. As this line of proceeding progressed Bolt said that Borenstein’s questioning was “like taking a steamroller to satire.” Asked to explain why he had chosen to use certain words he replied, “I watch too much Monty Python.”

Borenstein’s remark that “Satire can cover a multitude of sins”, drew a response from the accused: “It’s not a sin, satire.” And then he added “I didn’t know satire was a crime, yet.”

In one article Bolt had talked of a self identified gay man. When Borenstein criticised him for doing this Bolt asked his own question: “Why do you consider gay to be an insult?” As Mr Borenstein continued in this vein Bolt passionately defended  himself from the accusations he said had been made about him by the trial lawyers: “This trial is being used to smear me.” He claimed he was “defending my right to free speech”: “You have picked out four articles, I am being tried for my bad opinions.”

The interrogation of Andrew Bolt finished this afternoon, the trial continues.

See also:

Justice in Melbourne: 2

Justice in Melbourne: 3