[Read Justice in Melbourne: 1 here…]
"It’s [freedom of speech] not an unqualified right. Never has been."
Justice Mordy Bromberg,
31 March, 2011
Thursday morning Andrew Bolt was recalled to the witness box by defence lawyer Neil Young, QC. During questioning, which was mainly to clarify some of his earlier evidence, Bolt patiently explained to the judge, Justice Mordy Bromberg, how his blog works.
Throughout the trial the lawyers have made reference to a couple of bits of paper. These little things, heavily scarred with the bright ink of marker pens are the offending articles and they have produced a tsunami of paper. The prosecution and the defence use big white ring binders to collect all the articles, cases and judgements that they think are essential for the case. Heavy volume after volume of these things are opened, consulted, passed to the judge. It’s Dickensian. Almost two hours after going back into the box Bolt is excused and Young presents more papers to the judge. Included amongst these are two Quadrant articles – one by John Izzard and one by Keith Windschuttle – some of the media are piously shocked.
Mr Young begins his submission for the defence and it goes on all day. It is very legalistic. During it Mr Young reveals that he previously worked on the Yorta Yorta land rights case and represented one of the people who is now prosecuting Andrew Bolt. Young offers an imaginative example of a politician standing on a street corner attacking multiculturalism as an example of free speech. “Depends on how he said it,” says the Judge.
During his presentation Mr Young hints that whatever happens in this trial it may not be the last we will hear of Eatock v Bolt. He said that the case may have "constitutional issues” which would be examined “If this case goes further.” There are hints, from both sides, that whatever the decision for this trial the whole thing may go on, and on.
Mr Young continues after the lunch break and he suggests to the judge that the prosecution will argue that the articles should not be judged by community standards but by those of the Aborigines referred to in the articles. He’s right, they do argue this.
As the complex legal argument is explored into the afternoon some in the audience are drowsing off. New faces in the gallery, expecting the drama of yesterday, which has been widely reported in the media, must be feeling disappointed. Many spectators drift out; at the door they turn to bow politely in the direction of the judge. Those who escape miss a lively discussion, which Mr Young and the Judge seem to find interesting, about whether there is a difference between the words “because of” and “by reason of”. During his presentation Mr Young several times uses the phrase “Treaty rights”. This seems to be about rights and benefits which would flow to Aborigines if there were a Treaty. Finally the day ends.
On Friday, April Fools’ Day, Mr Young continued. The Judge suggested that part of the conflict concerns legitimacy: “Debate about whether certain people should be classed as Aborigines.” This is strenuously denied by Mr Young. He reasserts that Bolt’s thesis has to do with the consequences of a person claiming Aboriginality, and that his client was not involved in any debate as to who was or was not an Aboriginal. An hour and 25 minutes after having begun Mr Young says: “There your honour, I want to return to where I was yesterday.” As Mr Young talks the prosecution whisper amongst themselves, and shuffle papers. They are waiting.
After lunch the defence continues. Then, just after 3 o’clock, the prosecuting lawyer, Ron Merkel, QC, rises and begins his submission. He is cutting and dramatic. His attack asserts there were flaws in the defence submissions, material used by them was taken out of context, and that Andrew Bolt wants his clients to “renounce” their Aboriginality. Even the Judge queries that last assertion: “Do the articles really go so far as saying renounced?” Merkel also asserts that when Bolt used the word “us” in an article he was referring to the Herald Sun readers, to “white Australia”. He says of Bolt that “He knew very well that he was challenging their Aboriginality.” As the defence anticipated Mr Merkel wants the case judged not on the standpoint of the general public but from that of the “targeted group”. He reminds the Judge that “Freedom of speech is not a legal right” and that the case should be considered from the “perspective of the group likely to be offended and were offended” by Bolt’s articles. He stresses that the case involves the interests of persons of mixed parentage with fairer rather than darker skin.
On Monday, Andrew Bolt had been characterised as having a racist "eugenics approach" by Mr Merkel. The imputation had greatly offended Bolt. Merkel turned again to eugenics and said that he was “Not calling Mr Bolt a member of the eugenics movement.” A week in Courtroom 1 can be a very long time.
At 4.20 the sitting adjourned. The trial continues on Monday.