CART (2)Sydney Writers' Festival
Walsh Bay, Sydney
22/05/2014
Why are we even having this conversation?
The politics of who is allowed to say what in Australia today.
Good afternoon fellow proponents of free expression and free speech.
It is my great pleasure to be here today in support of Sydney PEN by delivering the first of the 2014 Free Voices lectures.
On Wednesday week we will mark June 4 and the 25th anniversary since the tanks rolled into Tiananmen Square.
This is a fitting time to remember the brave actions of the students and others who took a stand for freedom against the might of the Chinese state; many of them – we never discovered exactly how many – paid with their lives.
This is also a fitting time to recall the people in China who are imprisoned as we sit here today because they tried to speak freely. The most famous of them of course is the Nobel Laureate Liu Xiaobo – and his wife Liu Xia who has been under strict house arrest in Beijing since 18 October 2010 – but there are, according to PEN International, “dozens of writers, journalists and bloggers [who] remain in prison simply for peacefully expressing their views”.[1]
Since the change of regime in China in March 2013, there has been “a noticeable deterioration” in the human rights situation, according to Tienchin Martin, President of the Independent Chinese PEN Centre.[2] And now there is the round-up as the Tiananmen anniversary approaches
And I should of course mention that PEN International has some 900 cases currently on its books of writers who have been imprisoned, disappeared, killed or otherwise suffered from attempting to exercise what ought to be the universal right to free expression.[3]
Freedom to write… freedom to read The PEN slogan. Why we are here. To reinforce our right to enjoy these freedoms – and to fight for those who are being punished for doing so.
Today I want to make special mention of Gao Yu.
Gao Yu is a journalist, aged 70, who, to the great consternation of friends and colleagues, went missing in China on 24 April 2014. It was feared that she, like several other journalists and lawyers, had been detained to get her out of circulation before June 4.
There was no information concerning her fate until 8 May 2014 when the official Chinese news agency Xinhua confirmed that Gao Yu was being detained by Beijing police on the charge of “leaking state secrets abroad”.
She is accused of leaking a secret document to editors of a foreign website in August 2013. Footage of her “confessing”, feared to have been taken under duress, was shown on state television. The PEN International website reports that Gao Yu’s whereabouts remain unknown, and there are serious concerns for her well-being.[4]
I met Gao Yu at the International PEN Asia and Pacific Regional Conference organised by Hong Kong Chinese-speaking PEN, Independent Chinese PEN and Sydney PEN and held in Hong Kong from February 2- 5, 2007. It was the first International PEN meeting ever to be held in China. It was a big deal and there was immense interest from PEN members across the region in coming to Hong Kong to be part of it.
I remember Gao Yu being present at a special women’s session that was part of the conference. It was held in a classroom – the whole conference was at a college far away from Hong Kong Island – and we all squeezed ourselves into student desk chairs as we tried, with very few common languages, to have a halting conversation about women and PEN.
I remember Gao Yu very clearly: her wide face and searching eyes. I remember being impressed by her dignity and by her eagerness to engage. She had someone with her who was able to do some interpreting so it was possible to at least partially overcome the hurdles of language. She, like the rest of us, was trying to make connections with women from different countries, all of whom wanted to fight for freedom of expression – in all its forms.
Gao Yu was one of 15 mainlander Chinese who managed to attend the conference; another 20 were denied permits or were sufficiently intimidated to stop them going.[5] Their absence was a chilling reminder that the issues the conference had been convened to address were far from academic. The presence of Gao Yu and others for whom simply being there was both an enormous political achievement and an expression of great personal courage, was a clear and present reminder of what can be at stake when we pursue free expression.
I THINK IT IS IMPORTANT when look at the debate about free speech in Australia today that we think about Gao Yu and the many thousands of others, including writers, who are imprisoned for trying to exercise the right to free expression.
Let’s give our debate some perspective as well as some context. I am not trying to argue for a hierarchy of worthiness when it comes to free expression – freedom after all is indivisible – but I will try to make the case that the argument we are currently having in Australia is not about free speech.
It is about race.
As we know, the federal Attorney General, Senator George Brandis has released an exposure draft of a racial vilification bill that represents a substantial watering-down of the relevant provisions of the present Racial Discrimination Act (1975) (Cth) (RDA).
Currently, Section 18C of the RDA makes it unlawful for someone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. Freedom of speech is protected by the Act’s
Section 18D that contains exemptions which ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, providing they are said or done reasonably and in good faith.[6]
According to Professor Simon Rice, Professor of Law at the Australian National University, the proposed amendments[7] would in effect allow “unconstrained racist speech”.[8] Furthermore, he argues, because artistic works would no longer be excempt under the proposed amendments, artists “would be less free to express themselves than would columnists and bloggers”.[9]
On this reading, the new laws – should they be enacted – appear to be tailor- made for columnists and bloggers. As indeed they are. In fact they are tailor-made for one particular columnist and blogger.
It is pretty amazing, when you think about it, that a piece of legislation could be amended just to suit one individual. It is even more amazing when you consider that the legislation in question has strong support in the community as evidenced by the fact that the S18C provisions are frequently used. (In my footnotes I include a reference to a in wonderful interactive feature, compiled by SBS that details the 79 cases that have been brought under S18C of the RDA since its inception.[10])
It is so amazing in fact that I think we should have a good look at how this came to be. We should be asking: why are we even having this conversation?
IT ALL STARTED on Wednesday 15 April 2009 when a journalist by the name of Andrew Bolt published an article entitled “White is the new black” on a blog associated with the Melbourne’s Herald Sun newspaper. Earlier in the day the same article had appeared in the newspaper itself, under the headline: “It’s so hip to be black”.
Let me just remind you of the opening words of this article:
Meet the white face of a new black race – the political Aborigine.
Meet, say, acclaimed St Kilda artist Bindi Cole, who was raised by her English-Jewish mother yet calls herself “Aboriginal but white”.
She rarely saw her part-Aboriginal father, and could in truth join any one of several ethnic groups, but chose Aboriginal, insisting on a racial identify you could not guess from her features.
She also chose, incidentally, the one identity open to her that has political and career clout”.[11]
I will leave to one side the preposterous notion that one can “choose” to belong to an ethnic group. I do not so much want to comment on the contents of the article as to establish an historical marker.
Following publication of the articles, the Herald & Weekly Times, publisher of the Herald Sun, was sued under the Racial Discrimination Act by Pat Eatock and a number of the other people named in Mr Bolt’s article. In October 2011, the Federal court found that Mr Bolt’s articles were “unlawful” under Section 18C of the RDA in that, inter alia, “the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have a fairer, rather than darker, skin…” [12]
Mr Bolt was “crushed” by the judgement, according to a profile of him by John van Tiggelen published in Good Weekend a few weeks afterwards.[13] But perhaps not the way some others might react to such a court finding.
You or I might feel “crushed” at being found by a court to have acted “unlawfully”. Not Mr Bolt. Instead he displayed utter defiance. He disagreed not just with the judgement itself but with the very law on which it was based.
A campaign to repeal Section 18C of this law began then – in October 2011.
Mr Bolt’s political mates rallied around him. The Institute of Public Affairs (IPA) quickly raised $100,000 to fund full-page ads in several newspapers that supported “freedom of speech for Andrew Bolt and every Australian”.[14] (I’d ask that you remember that last phrase).
Among those friends urging Mr Bolt to keep up the good fight was Tony Abbott, then Leader of the Opposition. The same day the newspaper ads appeared Mr Abbott dropped in on Mr and Mrs Bolt at their Melbourne home and ended up staying for dinner.[15]
NOW FAST-FORWARD two years: it is late 2013 and Tony Abbott has just become the Prime Minister of Australia. His Attorney General is George Brandis who announces that the repeal of what are now known – at least in News Ltd. newspapers – as “the Bolt laws” will be the very first piece of legislation he will introduce when Parliament resumes the following year. [16]
On 25 March 2014, Mr Brandis released the exposure draft of his proposed amendments to the RDA.[17] At the heart of the changes is the removal of “insult, offend and humiliate”, which Senator Brandis said amounted to protections against “hurt feelings”, SBS News reported.
“It was impossible to have a discussion on difficult issues without offending, insulting or even mocking someone with an alternate view,” Senator Brandis said.
“It is not, in the government’s view, the role of the state to ban conduct merely because it might hurt the feelings of others,” he told reporters in Canberra.
Release of the draft amendments came a day after Senator Brandis told the Senate that people had a right to be bigots.[18] It is widely believed that Senator Brandis, a lawyer, drafted the amendments himself.
SENATOR BRANDIS is a relatively new convert to the cause of free speech in Australia, according to the conservative Canadian journalist Brendan O’Neill. Writing about a lunch he had with Brandis in April this year, O’Neill referred to “two recent, specific things that made [Brandis] realize just what a mortal threat freedom of speech faces in the modern era”.[19]
“The Andrew Bolt case”, as Senator Brandis referred to it, was one of these two, recent specific things.
(The other, in case you are wondering, was “the climate change debate”.)
The draft amendments received almost no community support.
Senator Brandis told the Senate just last week that he had received “thousands” of submissions.[20] These are not being made public unless they are released by the submitting organisations. Among the organisations that have done so and have opposed the changes are: the Law Council of Australia, the Arab Council of Australia, the Chinese Australian Forum, the ACTU, the Lebanese Muslim Association and the Executive Council of Australian Jewry. Just four bodies have expressed public support for changes to the RDA.[21]
After the release of the exposure draft, virtually every ethnic group in Australia made representations. There were numerous delegations to the Attorney, to other Ministers, to Members of Parliament. There was also considerable opposition from within the government’s own ranks.
The sole Indigenous member of the parliamentary Liberal Party, Ken Wyatt, announced he would cross the floor to oppose the amendments, and several backbenchers whose electorates include voters from among the almost 190 nations that now make up Australia also expressed their opposition.
“Until you’ve experienced racism, you can’t imagine what it’s like, “ Theresa Gambero, a conservative Liberal from Brandis’s home state of Queensland, told reporters. “Growing up, I received racist taunts… When you’re Italian, they call you a wog. I remember when I was made school prefect people saying it’s not fair a wog being made prefect”.[22]
The Prime Minister was unmoved.
“We all believe in freedom of speech,” Mr Abbott told the coalition party room in March this year. “Everyone is against racism; everybody thinks that Andrew Bolt should not have been prosecuted”.[23]
In other words, these changes to Australia’s race laws are being imposed not because of any community demand but at the behest of an aggrieved individual who happens to have friends in high political places.
ALL THIS IS BEING done in the name of free speech which is something we of course all support. But do Mr Bolt and his ideological bedfellows?
They say they do.
“Free speech is important,” wrote News Limited columnist Chris Kenny in April this year. “It is the most fundamental right; forming the very foundation of the democratic society that underpins all the freedom and prosperity we enjoy”. [24]
So you would expect him to be a staunch defender of free speech. You’d expect him to belong to the school of defending to the death the right to say things even when you disagree with them. Even when they are directed against you.
Right?
Wrong. Mr Kenny has one standard for his own free speech and another for other people’s. When you prick people like Mr Kenny, they don’t bleed. They burst into tears and run sobbing to their lawyers.
This is what happened earlier this year when the ABC satirical program The Chaser depicted Mr Kenny in a supposed sexual act with a dog. Did Mr Kenny defend to the death The Chaser’s right to that free speech which forms “the very foundation of the democratic society that underpins all the freedom and prosperity we enjoy”?
No he did not.
Rather, he sued the ABC for defamation.
This supposed champion of free speech used the most speech-restricting laws existing in this country to extract an apology from the public broadcaster because he was offended at how he was depicted in a skit in a program that is clearly satirical.[25]
His feelings were hurt. So he sued.
Just this past Monday he was back in court, with Mr Kenny contesting the court’s decision that any reasonable viewer would conclude that the image of Mr Kenny having sex with a dog was “concocted”.[26]
So even though the ABC’s managing director had made a grovelling apology to him, Mr Kenny has insisted on using the law to trammel on the free speech rights of the Australian Broadcasting Corporation, the presenter of the offending segment, Andrew Hansen, and the production company, Giant Dwarf.
So much for free speech being “the most fundamental right” of our society.
Similarly Mr Bolt, who likes to portray himself as the uber-victim in the constraints to free speech contained in the RDA, doesn’t like it when his own feelings get hurt.
The most recent example was in March this year after Marcia Langton made some comments about Mr Bolt on the ABC’s Q&A program.
This is Mr Bolt’s comment, on his blog, of what happened:
“STRANGE, after all I’ve been through, but Monday on the ABC may have been finally too much for me,” he wrote. “You see, I was denounced on Q & A — on national television — as a racist. I watched in horror as Aboriginal academic Marcia Langton falsely accused me of subjecting one of her colleagues — “very fair-skinned, like my children” — to “foul abuse … simply racial abuse”.[27]
There is a lot more. You can read the entire blog in the link I have provided in the footnote. Mr Bolt demanded an apology from Professor Langton – and got one. He also demanded an apology from the ABC – and got that too.
Was he satisfied? No.[28]
There was an earlier example back in October 2011 when I wrote a profile of Mr Bolt for The Monthly[29] that reported a number of facts that he found unpalatable. He demanded that the entire magazine be pulped.[30]
Is this the action of a man who believes in the untrammelled right to free speech?
Demanding that because he objected to a few paragraphs in one article, that a whole issue of a magazine be destroyed? (He did not get his way).
Or are Mr Bolt and Mr Kenny only concerned only about certain types of free speech?
Why aren’t they campaigning for the repeal, or watering down, of the biggest single obstacle to free speech in this country – Australia’s defamation laws?
Why do they so staunchly repudiate vilification on the grounds of gender or sexual orientation while fighting for the right to say whatever they want about a person’s racial identity?
There are currently no protections from vilification and harassment on the basis of sexual orientation or sex and/or gender identity in federal law.[31] People can – and, sadly, do – with total impunity use abusive and derogatory language about gender and sexual orientation. (I have of course documented the way such language was used to denigrate and undermine the authority of the former prime minister Julia Gillard.[32])
Mr Bolt not only does not make use of the legal right to comment disparagingly on people’s sexual orientation that he seeks in relation to race, he in fact goes to considerable lengths to distance himself from any homophobic remarks posted by followers on his blog.
I reported in my profile of Mr Bolt in The Monthly the following exchange on his website that took place on 11 October 2009. The postings were in response to an image of journalist David Marr, taken during an appearance by both men that morning on Insiders on ABCTV in which they had had a rather testy exchange. Mr Bolt had posted the image on his website:
“’I saw an expression like that on an egg-bound chook once, said “Jackie of Gaia!”
‘Poor fellow is chronically constipated,’ responded Fay of Charlestown.
‘I doubt that, Fay,’ chimed in Alan Jansen. ‘Given what Marr proudly admits to, constipation is unlikely to be a problem’.”
When David Marr became aware of these comments he protested to Mr Bolt who immediately removed them and posted the following grovelling apology: “David has alerted me to a comment which snuck through our moderation and which abuses him in homophobic terms. I am mortified it got through, and have instantly removed it. I apologise to David and have banned the person who put it up”.[33]
Mr Bolt is to be congratulated for dealing so promptly and unambiguously with those comments.
But why is he so inconsistent when it comes to comments about race?
Why does Mr Bolt continually post photographs of fair-skinned Aboriginal people on his blog with the accompanying comment No Comment?
Since the federal court ruling in October 2011, Mr Bolt has posted more than 25 such photographs of named individuals, with the accompanying No Comment implying that he is prohibited from talking about these people, or giving reasons for their photographs being posted.
In fact, the very posting of the photographs, given the notoriety of the article that was the subject of the federal court finding, is itself an inflammatory comment.
According to Chelsea Bond, writing on The Drum opinion website:
The tactic of ‘no comment’ is cleverly deployed to cast the same aspersions about these people that he did toward the original 18 individuals who featured in the articles at the heart of the aforementioned court case. ‘No comment’ is also a useful device to masquerade himself as the “muzzled” victim who has allegedly been silenced by the powerful Left or the powerful Blacks. Though the fact that now even school children are the target of his attention makes clear that he has exercised no restraint, and knows no boundaries in his Aboriginality crusade.[34]
Mr Bolt likes to refer to his “now-banned articles”.[35] The Freedom Commissioner, Mr Tim Wilson, wrote recently that S18C “was successfully used to silence News Limited columnist Andrew Bolt from discussing the Aboriginal identity of fair-skinned Australians.”[36] And Mr Kenny has claimed, not only that “two thoughtful but strident columns published in the Herald Sun by Andrew Bolt in 2009 were found to be in breach of the law and have been banned” but that “It is now against the law to republish these articles”.[37]
Each of these claims is false.
Mr Bolt’s articles are not “banned”. “HWT is not prevented from continuing the publication of the Newspaper Articles on the internet archives of the Herald Sun for historical or archival purposes,” says the Federal Court judgment, “provided that a corrective notice is prominently displayed immediately adjacent to those articles.”[38]
Second, Mr Bolt is not prohibited from “discussing the Aboriginal identity of fair-skinned Australians” as Commissioner Wilson claims. In fact, the Federal Court judge specifically stated that his order in relation to the Newspaper Articles (as they are described throughout the judgment) “does not restrain the publication of other articles which deal with the arguments raised by the Newspaper Articles”.[39]
Third, it is utter nonsense to claim, as Mr Kenny does, that it is “against the law to republish these articles”. It is not. And to underscore this, I have republished the article in full as an Appendix to this speech.
I have obtained a QC’s opinion that I am perfectly entitled to do so:
The order was made against Bolt and the HWT. It is therefore not a breach for you to publish it. A separate doctrine applies to a person who deliberately tries to frustrate or get around an order but you are not in that territory. In any event the Judge made an exception even for the HWT for archival or historical reasons. In the realm of discourse you are in there is no real risk of breach of the letter or spirit of the order.[40]
IF HE CHOSE TO, Mr Bolt could lead a sophisticated and nuanced debate about race in this country. Imagine the influence he could have if he were to display the same anger and intolerance towards racist attitudes as he does towards homophobia. If he wanted, he could guide his millions of readers towards tolerance and understanding. Instead, he stokes the fires.
In October 2012 Mr Bolt devoted a post on his blog to photographs of two groups of people using blackface. One was a group of white people pretending to take part in an Aboriginal ceremony. The other was a group of Aborigines whose faces had been exaggeratedly blackened. (Interestingly they were photographed by Bindi Cole, one of the fair-skinned people named by Mr Bolt in the article he was sued over.)
“There is a very interesting and important discussion to be had about this,” Mr Bolt wrote. “But because of legal action taken against me, it is too dangerous for me to comment. I must also prevent you from commenting.”[41]
It is quite preposterous for Mr Bolt to claim that it is “too dangerous” for him to discuss this. He is not prohibited from doing so. So why does he keep maintaining that he is?
It’s hard not to conclude that these so-called advocates of free speech seem to want only one thing: the right to offend people about their racial identity or skin colour. I cannot find any example of their claiming, either by argument or by usage, the right to offend any other groups of people.
How do we explain why the rabid campaign for free speech concentrates just on racial vilification at the expense of many other, far more egregious, restrictions on free speech in Australia today?
We can’t.
The only explanation is that the current so-called debate about free speech is not about free speech at all.
It’s about race.
AND THIS IS WHY we in Australia at present find ourselves looking at just one law – because one individual disagreed with a court judgment. We are not having a discussion, let alone a debate, about free speech.
We should be looking at all of the restraints on free speech in Australia and deciding, as a nation, where the appropriate balance needs to be set between freedom of expression and protection of individuals.
We should also be widening the discussion to cover freedom of information as well as free speech.
At the same time as it is championing the right to “be a bigot”, the Abbott government is clamping down on the public’s right to information.
This is a government of secrets (except where releasing previously confidential cabinet papers might embarrass their predecessors) and apparently it intends to stay that way. The Abbott government will not confirm the commitment by the previous government to join the Open Government Partnership, a multilateral organisation that promotes transparency.[42]
This government denies Australians information about what is happening with asylum-seekers both en route to Australia and in offshore detention.
The government has closed down websites that provided useful, even potentially life-saving, information to citizens.
Two examples are the websites of the Climate Commission and the Department of Health’s star rating food site which had been developed by a COAG process to enable food manufacturers to label their products with easy-to-understand nutritional information.[43]
(The very first act of the Abbott government after it was sworn in was to abolish the Climate Commission. Tim Flannery who had been the Chief Climate Commissioner said afterwards that what upset him most, more than the actual abolition of the Commission, was the taking down of the website: “We had taken two and half years building it, and it was purely factual,” he told me.[44])
The very welcome Prime Minister’s report Closing the Gap is full of information, it lists targets and it charts progress against those targets.[45] And, Mr Abbott promises in the introduction to the report, it will continue to do so:
Future Closing the Gap reports will provide more data that better answer the questions we have about what is happening to Indigenous people across our country.
Yet this same government has tried to drastically water down the Workplace Gender Equality Act 2012 that provides for similar reporting on the basis of gender.
We know from the days of the Howard government, when virtually all reporting of women’s employment, pay and other indicators of progress were shut down,[46] that loss of data means inability to monitor which very quickly leads to the stalling of progress, even to going backwards.
If free speech is a key basis of democracy, so is information and that is something that is being increasingly restricted under the current government. Yet you don’t hear the so-called free speech crowd complaining about this.
I WANT TO CONCLUDE by saying that the best way to acknowledge and honour the suffering of those who are imprisoned around the world for trying to exercise freedom of expression would be for us to have an open, honest and comprehensive debate in this country about free speech.
A debate that was not just about an aggrieved individual and a law he fell foul of, but which canvassed all of the restrictions to speech and information in Australia today. These are many and we in PEN are open to both acknowledging this and to exploring how to remove barriers to freedom of expression.
But you’d never know it from the current political chatter about who is allowed to say what.
Once we might have thought it inconceivable that we would even be having this conversation.
Who could have imagined that a Prime Minister and an Attorney General would be leading the argument for the right to racially vilify?
Yet this is where we are in Australia today.
APPENDIX:
I republish the full text of Andrew Bolt’s article “White is the new Black”, together with the Corrective Notice ordered by the Federal Court to be published in the Herald Sun and online, to demonstrate that the article is not “banned” or that it “cannot be reprinted” (as claimed by Mr Bolt and his supporters).
I encourage people to read the article and the Federal Court judgment as an accompaniment to, and amplification of, my speech.
Column White is the New Black
APRIL15, 2009(2:05pm)
EATOCK v BOLT AND THE HERALD & WEEKLY TIMES PTY LTD – CORRECTIVE NOTICE – ORDERED BY THE FEDERAL COURT OF AUSTRALIA
In legal proceedings brought by Pat Eatock against Andrew Bolt and The Herald & Weekly Times Pty Ltd, the Federal Court of Australia ordered that this notice, including the following declaration made by the Court on 19 October 2011, be published in the Herald Sun in print and online.
The reasons for judgment of the Federal Court of Australia in this matter (including a summary of those reasons) are accessible from the Federal Court website [and in relation to the publication of this notice online – “and via the following link (http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html)”].
The Court declares that:
On 15 April 2009, the Herald and Weekly Times Pty Ltd published in the Herald Sun newspaper an article written for publication by Andrew Bolt under the title “It’s so hip to be black”.
On or about 15 and 16 April 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White is the new black”.
On 21 August 2009, the Herald and Weekly Times Pty Ltd published a second article written for publication by Andrew Bolt in the Herald Sun newspaper under the title “White fellas in the black”.
On 21 August 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White fellas in the black” (collectively “the Newspaper Articles”).
The writing of the Newspaper Articles for publication by Andrew Bolt and the publication of them by the Herald and Weekly Times Pty Ltd contravened s 18C of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:
(a) the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have a fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are and are recognised as Aboriginal persons, because the articles conveyed imputations to those Aboriginal persons that:
(i) there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and
(ii) fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
(b) the Newspaper Articles were written and published, including because of the race, ethnic origin or colour of those Aboriginal persons described by the articles; and
(c) that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth) because the Newspaper Articles were not written or published reasonably and in good faith:
(i) in the making or publishing of a fair comment on any event or matter of public interest; or
(ii) in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.
View a full copy of the Federal Court decision.
—————————
MEET the white face of a new black race – the political Aborigine.
Meet, say, acclaimed St Kilda artist Bindi Cole, who was raised by her English-Jewish mother yet calls herself “Aboriginal but white”.
She rarely saw her part-Aboriginal father, and could in truth join any one of several ethnic groups, but chose Aboriginal, insisting on a racial identity you could not guess from her features.
She also chose, incidentally, the one identity open to her that has political and career clout.
And how popular a choice that now is. Ask Annette Sax, another artist and – as the very correctAge newspaper described her – a “white Koori”.
Her father was Swiss, and her mother only part-Aboriginal. Racially, if these things mattered, she is more Caucasian than anything else. Culturally, she’s more European. In looks, she’s Swiss.
But she, too, has chosen to call herself Aboriginal, which happily means she could be shortlisted for this year’s Victorian Indigenous Art Award.
Shall I go on? Not yet convinced that there is a whole new fashion in academia, the arts and professional activism to identify as Aboriginal?
Not yet convinced that for many of these fair Aborigines, the choice to be Aboriginal can seem almost arbitrary and intensely political, given how many of their ancestors are in fact Caucasian?
Then meet now Tara June Winch, who is just 26 and has written only one book, Swallow the Air, yet is already an ambassador for the Australia Council’s Indigenous Literacy Project.
Yes, indeed, because despite her auburn hair and charmingly freckled face, she, too, is an Aborigine, who claims her “country is Wiradjuri”.
Yet her mother, who raised her in industrial Wollongong, is in fact boringly English, and her father has both Afghan and Aboriginal heritage.
She could call herself English, Afghan, Aboriginal, Australian or just a take-me-as-I-am human being called Tara June Winch. Race irrelevant.
Instead, she’s an official Aborigine, and hired as such in a nation that now institutionalises even racial differences you cannot detect with a naked eye.
Larissa Behrendt has also worked as a professional Aborigine ever since leaving Harvard Law School, despite looking almost as German as her father name, and having been raised by her white mother.
She chose to be Aboriginal, as well, a member of the “Eualayai and Kammillaroi nations”, and is now a senior professor at the University of Technology in Sydney’s Indigenous House of Learning.
She’s won many positions and honours as an Aborigine, including the David Unaipon Award for Indigenous Writers, and is often interviewed demanding special rights for “my people”.
But which people are “yours”, exactly, Larissa? And isn’t it bizarre to demand laws to give you more rights as a white Aborigine than your own white mum?
How much more of this madness can you take? Meet now Associate Professor Anita Heiss, who says she’s a “member of the Wiradjuri nation” who prays to Biami, the tribe’s creator spirit.
Heiss’s father was Austrian, and her mother only part-Aboriginal. What’s more, she was raised in Sydney and educated at Saint Claire’s Catholic College. She, too, could identify as a member of more than one race, if joining up to any at all was important.
As it happens, her decision to identify as Aboriginal, joining four other “Austrian Aborigines” she knows, was lucky, given how it’s helped her career.
Heiss not only took out the Scanlon Prize for Indigenous Poetry, but won plum jobs reserved for Aborigines at Koori Radio, the Aboriginal and Torres Strait Islander Arts Board and Macquarie University’s Warawara Department of Indigenous Studies.
I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.
I’m saying only that this self-identification as Aboriginal strikes me as self-obsessed, and driven more by politics than by any racial reality.
It’s also divisive, feeding a new movement to stress pointless or even invented racial differences we once swore to overcome. What happened to wanting us all to become colour blind?
Of course, the white Aborigine – or “political Aborigine” – is not new.
In 1972, Pat Eatock, founding secretary of the Aboriginal Tent Embassy, officially became the first Aborigine to stand for federal parliament in the ACT, even though she looked as white as her Scottish mother, or some of her father’s British relatives.
Indeed, Eatock only started to identify as Aboriginal when she was 19, after attending a political rally, so little did any racial difference matter to her before her awakening to far-Left causes.
But she thrived as an Aboriginal bureaucrat, activist and academic, leading the way for Leeanne Enoch, who stood for Labor in last month’s Queensland election as its “first Aboriginal candidate” in a winnable seat, despite looking as Aboriginal, or not, as Premier Anna Bligh.
The white Aboriginal artist, too, is more than 15 years old. Kim Scott was hailed as the first Aborigine to win the Miles Franklin Award, and calls himself a Noongar, despite conceding that the Aborigines who did not know him called him wadjila – a white.
No doubt he has Aboriginal ancestry, but why does he not also identify with his obvious European background?
That is now a question even for our most famous Aboriginal leaders. Geoff Clark, the last chairman of ATSIC, the Aboriginal “parliament”, had an English a Scottish father. Lowtija O’Donohue, another ATSIC chairman, had an Irish father. Blue-eyed Michael Mansell, the Tasmanian firebrand, clearly has more European than Aboriginal ancestry.
Even Professor Mick Dodson, the Australian of the Year and a fierce advocate for a treaty between black and white, had a white father and from the age of 10 was a boarder at a Victorian Catholic school. Sign a treaty with yourself, Mick.
Or take the most prominent Yorta Yorta leaders – Melbourne University academic Wayne Atkinson and Victorian Traditional Owners Land Justice Group co-chair Graham Atkinson. Both are Aboriginal because their Indian great-grandfather married a part-Aboriginal woman.
I think it sad if we keep harping on about differences and rights based on trivial inflections of race.
And how comic it can be. We get fair-faced Dr Mark Rose, director of Melbourne University’s Centre for Indigenous Education, falsely claiming as “a member of the western Victorian Gundjitamara Nation” that the northern Australia didgeridoo is banned to women.
We get Daniel Browning, host of ABC radio’s Awaye! program for Aborigines, insisting he’s Aboriginal when he looks more like one of his West Indian ancestors, and could just as correctly claim to be South Sea Islander, English, Australian or who-cares.
To me, this blacker-than-thou offends the deepest humanist ideals, and our “enlightened” opinion is debased when it takes a Casey Donovan, a mere Australian Idol winner, to hint at the healthier truth, saying she’s proud of being Aboriginal, but “proud of being half-white, too”.
In fact, let’s go beyond racial pride. Beyond black and white. Let’s be proud only of being human beings set on this land together, determined to find what unites us and not to invent such racist and trivial excuses to divide. Deal?
[1] “Chinese writers in continuing peril” Sydney PEN Magazine November 2013 p. 27
[2] Sydney PEN Magazine Ibid.
[3] http://www.pen-international.org/wp-content/uploads/2011/11/Full-CL-January-December-2013.pdf
[4] http://www.pen-international.org/newsitems/china-veteran-journalist-gao-yu-f-charged-with-leaking-state-secrets-abroad-fears-for-safety-3/
[5] Stacy Mosher, “Hong Kong Literary Conference also hit by official interference”. No source. Mosher http://www.hrichina.org/sites/default/files/PDFs/CRF.1.2007/CRF-2007-1_Conference.pdf
[6] https://www.humanrights.gov.au/glance-racial-vilification-under-sections-18c-and-18d-racial-discrimination-act-1975-cth
[7] The proposed amendments are spelled out at: http://www.abc.net.au/news/interactives/racial-discrimination-act/
[8] Simon Rice, “This is free speech on steroids” The Drum 27 March 1914
http://www.abc.net.au/news/2014-03-27/rice-rights-for-holocaust-deniers/5349040 Accessed 21 May 2014
[9] Simon Rice Ibid.
[10] http://www.sbs.com.au/news/article/2014/03/27/interactive-race-discrimination-cases-brits-bolt
[11] Andrew Bolt, “White is the new black” Andrew Bolt Blog Herald Sun 15 April 2009
[12] “Eatock v Bolt and the Herald & Weekly Times Ltd; Corrective notice ordered by Federal Court of Australia” Herald Sun 22 October 2011 p. 19
[13] John van Tiggelen, “Gotcha! Andrew Bolt’s war on stupidity” Good Weekend 19 November 2011 p. 23
[14] Good Weekend Ibid.
[15] Good Weekend Ibid.
[16] Chris Merritt, “Attorney-General George Brandis’s first task: repeal ‘Bolt laws’ in the name of free speech” The Australian 8 November 2013
http://www.theaustralian.com.au/business/legal-affairs/attorney-general-george-brandiss-first-task-repeal-bolt-laws-in-name-of-free-speech/story-e6frg97x-1226755431421 Accessed 19 May, 2014
[17] http://www.ag.gov.au/consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx
[18] SBS New Report, “Insult, offend, humiliate to be removed from race law under planned changes.” 24 March 2014
http://www.sbs.com.au/news/article/2014/03/25/insult-offend-humiliate-be-removed-race-law-under-planned-changes
[19] Brendan O’Neill ‘The State should never be an arbiter of what people can think” [my emphasis]
17 April 2014 http://www.spiked-online.com/freespeechnow/fsn_article/the-state-should-never-be-the-arbiter-of-what-people-can-think#.U3cNgK2Syfs Accessed 16 May 2014
[20] Heath Aston and Michael Gordon, “Community groups reject Brandis race hate reform” Newcastle Herald [and other Fairfax media outlets] 15 May 2014
http://www.theherald.com.au/story/2282735/community-groups-reject-brandis-race-hate-reform/?cs=7
[21] Aston and Gordon Ibid.
[22] Jonathan Swan, “Rebel MPs defy Tony Abbott and George Brandis on race hate laws” Sydney Morning Herald 24 April 2014
http://www.smh.com.au/federal-politics/political-news/rebel-mps-defy-tony-abbott-and-george-brandis-on-race-hate-laws-20140426-zqysw.html Accessed 22 May 2014
[23] Cited in Phillip Coorey, “Coalition faces upset over repeal of hate law” The Australian Financial Review 19 March 2014 p. 5
[24] Chris Kenny “Free speech is our most fundamental right” The Advertiser 5 April, 2014 http://m.adelaidenow.com.au/news/opinion/chris-kenny-free-speech-is-our-most-fundamental-right/story-fni6unxq-1226875413744 Accessed 17 May, 2014
[25] Matthew Knott, “ABC close to settling Chris Kenny dog sketch defamation case after apology” Sydney Morning Herald 14 April 2014
http://www.smh.com.au/federal-politics/political-news/abc-close-to-settling-chris-kenny-dog-sketch-defamation-case-after-apology-20140414-zquo3.html Accessed 16 May 2014
[26] Nicola Berkovic, ‘Chaster back in court on dog skit” The Australian 19 May 2014
http://www.theaustralian.com.au/media/chaser-back-in-court-on-dog-skit/story-e6frg996-1226922045475
[27] Andrew Bolt, “It feels like I have lost; do I run or resist?” Herald Sun 13 March 2014
http://www.heraldsun.com.au/news/opinion/it-feels-like-i-have-lost-do-i-run-or-resist/story-fni0ffxg-1226852869552 Accessed 21 May 2014
[28] Amanda Hoh and Alexandra Black, “ABC apology fails to appease Andrew Bolt” Sydney Morning Herald 18 March 2014
http://www.smh.com.au/entertainment/tv-and-radio/abc-apology-fails-to-appease-andrew-bolt-20140318-34yug.html Accessed 22 May 2014
[29] Anne Summers “The Bolt Factor. The making of an Opportunist”.” The Monthly October 2011. http://www.themonthly.com.au/issue/2011/october/1318315099/anne-summers/bolt-factor [Note: this web version includes an Editor’s Note that responds to a complaint by Mr. Bolt.]
[30] Andrew Crook, “Andrew Bolt’s secret ex-fiance revealed” crikey.com.au 18 October 2011
http://www.crikey.com.au/2011/10/18/bolts-secret-fiancee-revealed-how-can-andrew-possibly-argue-against-reality/ Accessed 20 May 2014
[31] https://www.humanrights.gov.au/publications/section-9-protection-vilification-and-harassment-basis-sexual-orientation-and-sex-andor
[32] Anne Summers Her Rights at Work. The Political Persecution of Australia’s first female Prime Minister. University of Newcastle 2012 Human Rights and Social Justice Lecture, 31 August 2012.
http://www.annesummers.com.au/speeches/her-rights-at-work-r-rated-version/
[33] Anne Summers Ibid.
[34] Chelsea Bond, “Andrew Bolt isn’t a racist, but…” The Drum 25 March 2014
http://mobile.abc.net.au/news/2014-03-25/andrew-bolt-isnt-a-racist-but/5344286
[35] Andrew Bolt, “It feels like I have lost; do I run or resist?” Herald Sun 13 March 2014
http://www.heraldsun.com.au/news/opinion/it-feels-like-i-have-lost-do-i-run-or-resist/story-fni0ffxg-1226852869552 Accessed 21 May 2014
[36] Tim Wilson, “Free Speech does not discriminate” Star Observer 6 December 2013
http://www.starobserver.com.au/opinion/soapbox-opinion/free-speech-does-not-discriminate/113715/comment-page-2 Accessed 21 May, 2014
[37] Chris Kenny Ibid.
[38] Federal Court of Australia. Eatock v. Bolt (no 2) [2011]FCA 1180 Reasons for Judgement no. 13
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1180
[39] Federal Court of Australia. Eatock v. Bolt (no 2) [2011]FCA 1180 Reasons for Judgment no. 12
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1180
[40] Private communication with the author.
[41]Andrew Bolt, “No Comment” Herald Sun 13 October 2012
http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/no_comment30/
[42] “Ill wind in Canberra on the transparency front” Open and Shut 20 February 2014
http://foi-privacy.blogspot.com.au/2014/02/ill-wind-in-canberra-on-transparency.html#.U30uzViSyfs Accessed 22 May 2014
[43] Amy Corderoy “Government official who opposed healthy food website owns shares in food lobbying company” Sydney Morning Herald 12 February 2014
: http://www.smh.com.au/federal-politics/political-news/government-official-who-opposed-healthy-food-website-owns-shares-in-food-lobbying-company-20140212-32h83.html#ixzz32OV2hymZ Accessed 22 May 2014
[44] Anne Summers, “The Accidental Activist” Anne Summers Reports No 6 February 2014 p. 22
http://www.annesummers.com.au/reports/anne-summers-reports-6/
[45] Australian Government Closing the Gap Prime Minister’s Report 2014
http://www.dpmc.gov.au/publications/docs/closing_the_gap_2014.pdf
[46] See Anne Summers The End of Equality. Work, Babies and Women’s Choices in 21st Century Australia Sydney, Random House, 2003 Especially Chapter Six: Cold Shoulder from Canberra