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November 01st 2011 print

Michael Connor

The White Aborigines Trial

For a decision in the Bolt trial we waited from autumn into spring. On September 28, Justice Bromberg took about twenty minutes to read the summary of his decision to a packed courtroom. Twelve paragraphs into the thirty-paragraph document he said, “Mr Bolt and the Herald & Weekly Times relied upon the heading of Part IIA [of the Racial Discrimination Act] to contend that the operation of Part IIA is restricted to racist behaviour based upon racial hatred. I disagree.” It was clearly all over. How bad it will be for free speech is still not clear. Bromberg’s tone (a very important word in his decision) gave those last two words dramatic importance. The first culture wars trial finished with a clear victory for the Left, and a damaging result for free speech in Australia. The bad “Lavarch Law” brought a bad result.

(Photo above: White Aborigine Graham Atkinson gives black power salute outside the Federal Court.)

In the street behind the Melbourne Federal Court is the Koori Heritage Trust Cultural Centre. Bolt prosecutor Ron Merkel, QC, was one of its founders and has been a generous source of funds. On Bolt decision day I went there. The street window of the ground floor shop has a white lettered sign saying “Celebration Sale”; it was surely no more than an unhappy coincidence. The shop sells jewellery, cards, posters, DVDs, heavily messaged T-shirts—during the trial I had seen some of them worn in the courtroom. “Sorry” T-shirts are on sale less 50 per cent. There are Aboriginal flags on sticks and I had just seen some of these in the forecourt of the Court. They were being waved in the pleasure of victory for the television cameras, and in anger towards Andrew Bolt. The black, China-made, cotton T-shirts, with messages of land rights spelt out in yellow and red, are not ordinary clothes. The Cultural Centre shop is selling the “skin” of the white Aborigines. These clothes are racial identifiers. In a country where it is now unacceptable to associate black skin and Aboriginality, white people dress in these clothes to signal and assert their own Aboriginality. If that seems fanciful it is exactly what Pat Eatock claimed in her written trial submission:

As my health has deteriorated, I have become more accustomed to wearing clothes that clearly announce my involvement with Aboriginal issues, usually black trousers with T-shirts and with Aboriginal flag and appropriate slogans. I have been known to draw attention to these shirts as “my skin”. They certain [sic] allow my Aboriginality to be very visible to all.

When Ron Merkel read this out nobody wept at its sadness, or its emptiness. Andrew Bolt referred to the diaries of Victor Klemperer, a German Jew of the Nazi period, and he was treated with disdain by Herman Borenstein, SC, for doing so. Klemperer wrote of the everyday, mundane details of racial persecution. He wrote of being forced to wear the yellow star. On the day its wearing became compulsory for Jews he wrote: “Yesterday, as Eva [his Aryan wife] was sewing on the Jew’s star, I had a raving fit of despair.” It took him some days before he dared to walk outside. When he did so he wrote, “Every step, the thought of every step is desperation.” On one hand Pat Eatock’s longing to be publicly recognised as Aborigine in a free state, and on the other Klemperer’s horror of being forcibly branded a pariah in a racist state.

Bromberg paraphrased Eatock’s testimony in a way that trivialises the real experience of “racism”:

she has experienced racism but said that because she was not perceived to be Aboriginal she used to experience a different type of racism. Often people would make racist remarks about Aboriginal people in her presence. Ms Eatock found experiences of that kind stressful. Her way of dealing with it was to pre-empt it by telling people at the outset that she was Aboriginal or wearing clothes that announced her involvement with Aboriginal issues.

Pat Eatock’s clothes were chosen not just to show her “involvement with Aboriginal issues” but to mark her, in her own eyes, as an Aboriginal person. In this strange new Australia race is not a matter of skin colour but of clothing. Is Prada a race?

(Photo: Costume as race. Racial clothing outside the Court.)

I am writing this just days after the trial result. So soon after Justice Mordecai Bromberg gave his decision it is being pored over and analysed. There seems great uncertainty about what its implications will be for exercising free speech in Australia.

I was there at the beginning, and I was there at the end. I was in the courtroom when wit and humour became a race crime. I saw the torture they inflicted on Andrew Bolt for his wrong ideas and the pleasure they got from hurting him. I heard meanness and I saw hatred on people’s faces—but they weren’t the ones on trial. During the lunch break on the first day a woman said loudly, “I’m interested in anything against Bolt. This time he has bitten off more than he can chew.” Back in the courtroom Eatock’s solicitor, Joel Zyngier, greeted her with a kiss.

Broadsheet newspaper readers saw the courtroom through the eyes of Karl Quinn in the Age and Michael Bodey in the Australian. Quinn, the Age entertainment editor, sometimes got a bit overexcited. At one point during Bolt’s cross-examination he threw himself forward in his seat, extended an arm and, making a pump action with his open hand, grunted aloud as he urged Bolt to respond to a question fired against him by Borenstein. Ironically, the next morning’s headline of the heavy-breathing journalist’s account read, “Deep sighs aside, Bolt keeps his cool in denying his columns were racist”. At the end of that day, as the courtroom cleared, the Age turned to the Australian and said, “Crikey!”

The following morning in the Australian Michael Bodey’s account of the cross-examination appeared on the same page as a story about abused journalistic practices at Crikey. As the trial lawyers discussed journalistic standards at the Herald and Weekly Times the internet journal had to remove material from its site after publishing reader comments abusing James Packer and slurring his wife. One comment, which involved their children, was so defamatory, said the Australian, that “it cannot be republished”. The day before, Crikey had piously reported on how offensive comments were removed from the Bolt blog.

(Photo: Andrew Crook, at top, with prosecution lawyers and litigant Graham Atkinson on the day of the verdict)

Crikey “senior journalist” Andrew Crook covered the trial in a string of gloating, self-righteous reports. After my first account of the trial was published in the May edition of Quadrant Crook wrote that I was part of a conservative plot “to go to war against Bromberg” if Bolt lost his case. Mixing his metaphors, he said that I was “opening the floodgates” (Crook writes like that) on Justice Bromberg: “Michael Connor noted the [failed ALP] Bromberg preselection bid, but added that because the case was still before the court he couldn’t draw any obvious conclusions.” He took a fact from my introduction of the judge and lawyers at the beginning of my article: “Judge Bromberg had been a St Kilda football player and had previously stood, unsuccessfully, for pre-selection as an ALP candidate.” He then jumped 4610 words to combine it with the very last line of my text. This final sentence was meant to remind readers that the case was sub judice: “Until the matter is decided, discussion of this case is necessarily constrained.” Clearly he distorted what I wrote. Yet Crook was in the courtroom as Bolt was severely criticised for minor and honest errors in his writing. It was as if—and this was spread widely across the Left’s commentary—what was happening to Bolt was only applicable to their conservative enemies. In general (there were some exceptions) they encouraged the assault on freedom of speech that the case represented. Fairfax journalist David Marr wrote of the outcome: “Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He’s attacking lousy journalism.” The Lavarch Law, the Racial Discrimination Act, was not written to attack bad journalism. If it was, then journalists like Andrew Crook should be on trial.

In court the defence was constrained by political correctness and the straitjacket on free speech which already exists and which prevents the honest examination of Aboriginality—except if you are Aboriginal. The defence did not question the claimed Aboriginality of the litigants even though this was what the prosecution said the case was about. Let me rewrite that sentence and change one word: The defence could not question the claimed Aboriginality of the litigants even though this was what the prosecution said the case was about.

(Photo: Media Conclave. The Australian, the Age and Crikey on the day of the verdict)

In the background to this case is the involvement of people who were not in court. Amongst them was Michael Lavarch, the partner of litigant Larissa Behrendt and the former Labor politician responsible for writing the Act which was used to attack Bolt. Choosing this law and Aboriginality successfully wedged the defence. It would have been impossible for them to question the self-proclaimed Aboriginality of the nine who had chosen to confront Bolt. If they had challenged this, the court would still be in daily session in Melbourne and the resources needed would have been beyond belief.

They were also constrained by another prosecuting strategy. Australia is a modern liberal democracy. The state and its people actively oppose any classification of its population in terms of race. This democratic impulse is now under stress because we have citizens who oppose this. Some want to be dealt with in terms of their religion and others in terms of their race, or the race they claim to be. Our normal modes of speaking and discussing matters of public interest are also constrained by political correctness which has not gone away but has become entrenched by our schools, universities and state-owned media. The language permissible for discussing Aboriginality in the courts, as in the media and even in private life, is a bogus construction which entrenches prejudice and intolerance and shelters deceit from criticism. Bolt was found guilty of breaking speech rules which were intended to constrain people like him. He has bad ideas, which he formulates with humour and clarity to a widespread audience, and he was prosecuted for this. He was found guilty of speaking freely.

Wayne Atkinson & Geoff Clark(Photo. Victory: Wayne Atkinson and Geoff Clark talk to the media.)

The defence argued that the case was about free speech. The prosecution mocked them, declaring it was about Aboriginality and knowing this would not and could not be contested. On Day 1, in his opening submission, Merkel said, “Now, Your Honour, what is unusual and extraordinary about the present case is, Mr Bolt, in his articles, has taken us back to that eugenic approach to Aboriginality.” On Day 7, Merkel said, “This is about race, it is about colour, it is about ethnic origin.” It was impossible for the defence to talk freely about race, colour and ethnic origin.

On the opening day, the number of litigants to be cross-examined by the defence was reduced from four to only three. The six who were not called provided written testimony and the judge refers to their documents in his decision. He talks of each individual and finishes each account with the same paragraph which begins, “The evidence given by [name] was not contested and I have no reason to not accept it as truthful.” The evidence which was thus conceded by the defence included the litigants’ claims to be Aboriginal. The judge’s paragraph ends, “I accept that [she/he] feels offended, humiliated and insulted by the articles or parts thereof in the manner outlined by his evidence.”

Pat Eatock, Bindi Cole and Larissa Behrendt were cross-examined. Pat Eatock’s evidence, said the judge, was “largely uncontested”; Bindi Cole’s was “not contested”; and Larissa Behrendt’s was “not contested or takes account of what she said in cross-examination”. In each case the judge accepted the evidence as “truthful”. When a person stated that they were Aboriginal because a family forebear was Aboriginal what did that actually mean? There was no investigation by the defence to work that out. Bindi Cole, for instance, said of her grandmother, “She knew she was Aboriginal because her mother told her she was Aboriginal I guess because she was black.” After the hearing and before the decision was handed down a video about Cole was placed on the Museum Victoria website. It included a photo of her father and his mother. The caption below the image of a light-skinned lady read “my Aboriginal grandmother”. There was no effort to establish factual documented genealogies.

Merkel invoked Nazi anti-Semitism, extermination and the Nuremberg Laws. Bindi Cole had a Jewish mother. As the judge, lawyers and some members of the audience well knew, in another time and place that would have made her Jewish by birth, and she would have been a victim of Hitler’s butchers. She represented her race as a personal decision. It was not far from Bolt’s own arguments that these individuals had made a decision from multiple choices available to them. Asked if she could “identify more closely with her Jewish heritage” she replied, “Yes, if I wanted to, I could.”

The defence could not safely question the litigants’ Aboriginality, but there was nothing in the Bolt articles which did so anyway. Yet, in his decision the judge says that this is permissible—provided he approves of the manner in which it is done:

It is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification including challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and the HWT to have contravened s 18C simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention because of the manner in which that subject matter was dealt with.

This is not what he said in court. On the morning of Day 5, Bromberg said to Bolt’s counsel, Neil Young QC: “Well, I don’t think you will have a lot of trouble persuading me that any entrée into the debate as to who should be regarded as an Aboriginal would offend the Act.”

Five and a half pages of the Bromberg judgment are spent discussing “The Conventional Meaning of ‘Australian Aboriginal’”. One of the legal precedents he cites is a judgment made by Ron Merkel. Nowhere in this section does the word “black” appear. “Dark” gets a single usage in a section on Australians and the “stereo-typical images” of Aborigines we hold. To illustrate his own assertion “that from time to time prominent people, amongst others, have raised concerns that identification by others as Aboriginal people involves opportunism”, he uses a 1988 quote from Bruce Ruxton. The assembled legal authorities here, the complexity and the confusion should suggest this is not a matter for the courts but for the parliament.

Prosecuting lawyer Borenstein asked Andrew Bolt about the “vibes” in his articles. Young objected. Ten times in his decision Bromberg referred to the “tone” of Bolt’s articles and he chose debatable terms to describe it. The tone at different times was said to be “stinging”, “cynical”, “mockery”, “derisive”. That is one point of view. Another critic of Bolt’s writing, a Quadrant reader for instance, might see them quite differently. During the trial Bolt was criticised by the prosecution for his legitimate use of inverted commas. Bromberg’s reliance on his perceptions of the “tone” of Bolt’s writing may be something that an appeal court will have to deal with. From Australia’s writing establishment there has, so far, been not a murmur of protest. But what of the judge himself? Was he, perhaps, guilty of questionable “tone” in his humour? Is one person’s smile another’s smirk?

On the morning of April Fool’s Day, Young referred to Hagan v The Trustees of Toowoomba Sports Ground, and the following dialogue occurred:

Bromberg: This is the cartoon case, is it?

Young: No. This is the case about the grandstand at a rugby league ground in Toowoomba.

Bromberg: The grandstand with—

Young: That the local council named the—

Bromberg: Yes.

Young: —I’m trying to think of the man’s surname—the E.S. “Nigger” Brown Stand.

Bromberg: The “Nigger” Brown Stand. That’s right. 

The discussion continued as the lawyer made some point of law. What you can’t see in the official transcript is the smile on the judge’s face at the use of this naughty word, Nigger. I thought it was a smirk; I also thought, especially on a judge, that it was cynical and mocking.

During the trial the prosecution had great difficulty in pointing to the actual words that offended the Lavarch Act. The judge had a similar problem and resorted to these questionable interpretations of “tone”. They missed the point. The offence they should have been exploring wasn’t in the text, it was in the photographs. Eatock’s lawyers drew on an Australian Press Council “Statement of Principles” and some of this found its way into the judgment:

Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.

It was the photos, not the words, which caused the offence. The Bolt articles were accompanied by photos which showed happy, successful white-skinned people. They took offence from the juxtaposition of the word Aborigines and their own photographs, with those white faces, for they believed that this would provoke mockery from Bolt’s readers. Exposing their Aboriginal whiteness in public caused them unease. As the judge noted when citing Bindi Cole’s evidence: “She found his use of the phrase ‘distressingly white face’ insulting, humiliating and offensive.” The photos are preserved for posterity in the articles at the end of the judge’s decision. The white Aborigines were also judging themselves.

On Day 4 there was a moment that seemed the intervention of a novelist overdoing his coincidences. Young and Bromberg were wandering about in a rambling discussion which touched on white Aborigines and skin colour. Everyone in court was focused on what was happening at the front of the room when the door at the back opened and a black man and a white woman came into the courtroom. This gentleman was not dark-skinned, he was truly black. He could have been anyone, from anywhere. He could have been a judge, a lawyer, a litigant, an academic, anything. His companion had long blond hair. They sat at the back of the court. None of the white Aborigines, none of the lawyers, not even the judge paid them any attention. His mere presence in this white room was a dramatic moment which made everything happening seem even more bizarre. As he watched, Young was talking about multiculturalism:

there is a debate, for instance, in Germany and in France, where Angela Merkel [and] Nicolas Sarkozy have said that multiculturalist policies have not worked well in those societies. So there is a genuine debate about the matter. Mr Bolt is articulating an opinion in the context of a similar debate in Australia.

In the Left-dominated Federal Court of Australia it did not seem very smart to remind the judge, prosecuting lawyers and angry audience of yet another Bolt thought-crime. The discussion moved on to skin colour. Bromberg referred to a “skin test” and Young pointed out “that skin is not what he is concerned about. He said that time and time again.” His Honour replied, “Yes”, and just about here the black man left the court. If your eyes had wandered, as mine did, from the silent visitor to the rows of white Aborigines, and to the judge and lawyers, and to the media, the strangeness of what was taking place seemed obvious. But no one noticed, and besides they would not have cared.

The hearing ran across two weeks. One side was passionate about what they were doing. On the Monday of the second week the opposing lawyers were early in the courtroom and were chatting together. Merkel and his team had spent the weekend working on the case. Young told them he had spent the day before playing golf.

Bolt is not the only guilty party in Bromberg’s decision. We are, too. Young made an accurate summary of the prosecution’s aim:

As we understand their submission, it is to the effect that the standard of reasonableness is not a community standard, it’s the perspective of the Aboriginals who regard themselves as referred to either directly or indirectly by the article. In our submission, that’s simply wrong.

Bromberg decided that it was Young who was wrong: “to import general community standards into the test of the reasonable likelihood of offence runs a risk of reinforcing the prevailing level of prejudice”. While this may be read as the leftist elitism we are daily confronted with, it may also reflect the Jewish experience which has marked the families of the judge and the prosecution lawyers. In Nazi-dominated Europe their families were torn apart by “the prevailing level of prejudice”; but to read tolerant Australia in this light is utterly intolerant and abhorrent. To consider that lawyers and a judge with postwar immigrant backgrounds think so little of this country that they believe minorities have to be protected from the majority represents the real failure of multiculturalism.
(Photo: Victory. Scene outside Court.)

The decision was given a few days after Andrew Bolt’s fifty-second birthday. The judge gave his summary and we all stood as he left the courtroom. Geoff Clark stepped into the centre aisle and began clapping. This was taken up by his supporters and there was some cheering. People then moved down to the forecourt where the media was spread out as a barrier facing the main doors. The wind was gusting as we waited. Some of the nine who had come to the final day talked to the media and their supporters. “That was bloody great. What a great day,” said a woman. “What can you say,” said one. “We won,” replied her companion.

(Photo: Victory. Pat Eatock outside the Court.)

Pat Eatock in her wheelchair came out with Geoff Clark and their legal team. Clark had put on his skin cloak. She had on a man’s black hat. Both had yellow makeup smeared across their faces. ‘‘The sword of justice has struck and cut off the head of the serpent,” said Clark. “Let’s hope it doesn’t grow two heads.” Eatock said it was the happiest day of her life. I believe this. She is a very political woman and understood the issues which were involved in this case. Amongst the insults I heard spewed on Bolt that day someone called out, when he spoke up for free speech, “He doesn’t get it.” They were quite wrong. Andrew Bolt does get it, though I’m not sure Geoff Clark does. And if Clark doesn’t get it, what really was going on during that trial?

(Photo: Victory. Geoff Clark in face makeup and cloak outside the Court.)

Clark, interviewed on 3AW by Neil Mitchell, said that he wanted Bolt to be “fair and balanced” in his future writings. Mitchell said, “On whose judgment?” Clark replied, “Well, on society’s judgment.” The case had been decided the day before from the point of view of those offended. He also said, and his words unfortunately mirrored the Federal Court decision, “Racism is entrenched in this society.” And he made a confession, “I’m probably racist meself [sic] in some regards.” Chillingly, he interpreted the outcome as a warning to other free thinkers, and there is no reason not to think that this is the view of those who brought this case into the Federal Court: “there has to be an example made”.

The flags from the shop around the corner were there on that windy day in Melbourne. We waited for Andrew Bolt. “Do you reckon he will go out the back door?” asked one of the nine. As we watched the doors an elderly lady came out, tripped, fell sideways and ended in agony on the ground. People gathered around her. An ambulance was called. She was still lying there when Bolt came out. It was a fitting if cruel symbol of Australian freedom. The media hemmed him in and he made a statement. He said it was a “terrible day for free speech”. He was loudly jeered. He turned to his persecutors and said quietly, “Can I at least have my free speech now?” He continued his statement:

It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves. I argued then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings. Thank you. 

(Photo: Defeat. Andrew Bolt outside the Court.)

He did not answer questions. As he moved away he was again jeered and insulted. The people who did this had been in the courtroom. They were dressed in clothes marked by Aboriginal colours, symbols and slogans. They were waving Aboriginal flags, and their skin was lighter rather than darker. Their behaviour was offensive, insulting, humiliating and intimidating. I was there. I was standing in front of a woman who called out, “That’s why you’re scum Bolt.” Another said, “What an evil person.” They were smiling, they were delighted with what they were doing. Later that afternoon an enormous thunderstorm hit Melbourne. The airport was twice closed, there was chaos and cancelled flights. The rain inundated the city. This was Melbourne, on the day Justice Bromberg gave his decision in September 2011.

Michael Connor’s previous report on the Andrew Bolt trial appeared in the May issue.