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April 06th 2011 print

Michael Connor

Justice in Melbourne: 3

On Monday, Eatock v Bolt resumed in Courtroom 1 of Melbourne’s Federal Court.


Andrew Bolt’s inverted commas


On Monday, Eatock v Bolt resumed in Courtroom 1 of Melbourne’s Federal Court. Ron Merkel, QC, continued the prosecution’s submission, which he had begun on Friday afternoon.  The prosecution lawyers  had been busy. They revealed that they no longer demanded an apology from Andrew Bolt – because they were sure he had no intention of offering one. But they maintained their desire for an apology or apologies from the Herald and Weekly Times, and an injunction banning Bolt and the newspaper either reprinting the articles or publishing substantially similar ones. The articles are here and here.

Merkel touched on the “relief” he was asking for and suddenly the numbers of offended people who were to be satisfied if Andrew Bolt is found guilty grew in numbers.

He began outlining his case and Justice Bromberg said with a slight smile, “So I have nine cases, not one?”

“As I will seek to explain, eleven,” said Merkel.

Eleven? As Merkel explained there were nine persons to be considered individually; then there was the group as a whole; then there was a much larger group outside the courtroom –  “Aboriginal persons who have lighter rather than darker skins and identify as Aboriginals and have done so since their formative years.” As Merkel later explained that description had been created by the prosecution.

As this was going forward or somewhere Andrew Bolt leant forward in his seat and shook his head.

The perplexed judge asked Merkel a question: “What evidence do I have beyond the nine?” Merkel replied, “You don’t.”

Merkel’s ensuing oration threw out terms like blood mixture, culture, biological descent, and ethnic origin. He also mentioned, again, that the usual criteria used in Australia for people to classify themselves as Aborigines is not a legal definition. Country towns were also explored by Merkel. He talked of a hypothetical country town where racism is rampant and stated that we do have some Australian country towns where this is the case.

He introduced “a hypothetical surrogate” and said that “The unawareness is based on the facts which the hypothetical surrogate has.” He also said, “Identity is a personal issue for every person.” Some in the gallery looked a little dazed.

The lunch break finally came and few of the public who had been sitting in the gallery returned for the afternoon session.

“The sting in the articles is complex,” said Merkel. It seems there is a difference between “Welcome to Country” and recognition of traditional owners ceremonies. Andrew Bolt had got them confused, said Merkel, and it appears this is one of the reasons he is on trial.

At one point the Judge asked where in a sentence Bolt had offended. Merkel replied that you have to read all the paragraph to understand it: “everything connects”. He also said, “Every time I read these articles something else pops out of the words.”

Merkel said that Bolt’s articles were cleverly constructed with “a sub thesis” and “There is stereotyping, and an extraordinary stereotyping. And unprecedented.” Also, “The stereotyping is there. And the sting at the very end.”

Perhaps for the first time in our history a writer’s inverted commas became the subject of a court case. Merkel was very critical because Bolt used words from an article by Age writer Martin Flanagan and placed those words, Austrian Aborigines, between inverted commas. Merkel said that the phrase was “derisory”. “Martin Flanagan did it,” said the Judge. Merkel conceded that when Flanagan did so "it had its own humour about it” and that no one was going through his text with a fine toothcomb. Bolt, in the front row, was again shaking his head. The Judge asked if the sting in Bolt’s text made the satire offensive: “Would the satire be offensive if the sting wasn’t in it?” Merkel considered that Bolt was guilty of taking material “out of context”.

Referring to  Pat Eatock Merkel said, “The public is basically being told this woman is a fake.”

Andrew Bolt was consistently criticised by the prosecution for supposed errors in his writing. At one point Merkel had the Judge handed a text and then misquoted the date, there was some confused activity as the prosecution lawyers attempted to sort it out. “The date’s on the top,” said the Judge.

The meanings of Bolt’s texts sometimes seemed conspiratorial to Merkel. “Don’t know what’s going on here, Your Honour. Maybe Cronulla.”

The nine claimants were described as “the people young Aborigines would aspire to be”, and as “role models for Aboriginal Australians.” Also, “If the nine were offended, there are thousands in their position.” When Merkel said that the  extended list of Bolt’s victims was perhaps not well expressed and that his charges were "unprecedented” the Judge replied “You have convinced me of that.”

Merkel said that “these articles strike to the heart of a person’s right to self identify.” He also said that Bolt had challenged artist Bindi Cole, “for having an art exhibition.” He also said that Bolt’s writing expressed “The chilling message. ‘It’s them against us.’”

After the case finishes it may be some time before a judgement is handed down.

Read also:

Justice in Melbourne: 1 is here…

Justice in Melbourne: 2 is here…