Former Federal Court Judge Ron Merkel has delivered a swingeing salvo against Andrew Bolt and the Herald Sun this afternoon, linking Bolt again to the eugenics movement and raising the spectre of the popular scribe’s take on the Stolen Generations.

Commencing his final submission in the case pitting Bolt against nine prominent members of the Aboriginal community, Merkel attacked the inferences drawn by the four 2009 articles at the centre of the case.

“Mr Bolt’s assumption is because you’ve got mixed descent or you are white you have a choice to renounce who you are,” he thundered.

“But they never had the choice that Mr Bolt ascribes to them…throughout their whole lives they have identified as Aboriginal persons.”

“That’s the real sting that you’ll see in these articles.”

Bolt had strongly suggested that a number of “professional Aborigines” had identified as Indigenous to access publicly funded benefits and prizes. He argued the “trend” was divisive for Australian society and that it led to the diversion of public funds originally destined for the darker skinned.

In fact, a fiery Merkel argued, none of the applicants had a choice owing to their genealogical descent. Most, like Wayne Atkinson and Pat Eatock, had identified as Aboriginal since childhood.

In the case of Atkinson, Merkel said he began to identify as Aboriginal forty years ago at the time there was “shame in being understood to be Aboriginal, at the time their relatives were being removed by the government”.

“None of them had a choice,” said Merkel.

Questioned by Justice Bromberg over whether they could have picked another part of their heritage beyond their Aboriginality, Merkel was resolute: “That may be so in Mr Bolt’s imagination, but it is nowhere to be found in the evidence.”

“It’s this absurdity of biological descent…it’s inherently likely to offend by saying to people ‘you aren’t really what you are, you could have chosen to be something that you aren’t’.

“It’s probably about as most offensive you can get in this area.”

Bolt and Herald and Weekly Times editor-in-chief Phil Gardner repeatedly shook their heads during Merkel’s submission, with an extra long shake when the word “eugenics” was used. Bolt had attacked Merkel on Wednesday, glaring from the witness box and alleging the case had been set up to “smear” him in public.

Merkel picked up the cudgels again. “I’m not calling Mr Bolt a member of the eugenics movement…but this focus on biological descent as a criteria of who you are and what your identity is highly offensive, particularly for Aboriginal people that have suffered so much because of this approach.”

Merkel also argued that the article should be read in the context of how the “targeted group” would interpret the articles, rather than a broader cohort such as Herald Sun readers or the entire Australian nation as previously argued by Neil Young QC, for the defence. The distinction was “central to the case,” Merkel said.

“Your Honour has been taken to very few of the paragraphs in the articles and we say of this bland assertion that these articles don’t carry imputations, they don’t carry anything personal about certain aspects of the individual’s lives.

“One of the problems with this case which has beset the case from the time Mr Bolt wrote these articles…is how out of context so much has been taken.”

Earlier, when the court resumed after the lunch break, Young, summing up for Bolt, reiterated his stance that the articles simply argued that claimants’ decision to identify solely as Aborigines was divisive and that their claim on the public purse was unfair.

He also signalled a possible constitutional challenge to the ruling if Justice Bromberg found in favour of the applicants.

The case is expected to conclude on Tuesday following a further day-and-a-half of submissions from Merkel and his colleague Herman Borenstein SC.

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