The level of 'colour' in an Aboriginal person's skin is apparently a vexing social question if you are the Australian Attorney-General

In 2009 News Corp journalist Andrew Bolt wrote a series of articles which were published by The Herald And Weekly Times Pty Ltd.

These are some of the remarks that saw this journalist brought before the Federal Court under provisions of the Racial Discrimination Act 1975:

• "They are "white Aborigines" - people who out of their multi stranded but largely European genealogy, decide to identity with the thinnest of all those strands and the one that's contributed least to their looks"
• “Aboriginal artists as pale as a blank canvas”
• "despite looking almost as German as her name"
• "insisting on a racial identity you could not guess from her features"
• "white is the new black"
• “The new tribe of white blacks”"
• “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?"
•  “racial differences you cannot detect with a naked eye" [NyunggaBlack, 1 April 2014]

• “Meet the white face of a new black race -- the political Aborigine”
•  “ this self-identification as Aboriginal strikes me as self-obsessed, and driven more by politics than by any racial reality"
• “has also worked as a professional Aborigine ever since leaving Harvard Law School, despite looking almost as German as her father"
• “is often interviewed demanding special rights for "my people". But which people are "yours", exactly, mein liebchen? “ [Media Watch, 4 April 2011]

•        “pink in face” (McMillan) (2A-18);
•        “very pale” (Behrendt) (2A-20);
•        “blue-eyed and ginger-haired” (Mellor) (2A-21);
•         “white face” (Cole) (2A-24);
•         “pale as a blank canvas” (Sax) (2A-25);
•         “auburn-haired” (Winch) (2A-26);
•         “white university lecturer” (Mellor) (2A-37). [Eatock v Bolt [2011] FCA 1103 (28 September 2011)]

In its 2011 judgment summary the Federal Court clearly accepted that:

Collectively, eighteen individuals are named in the articles. Nine of those individuals gave evidence in this case. Each of them genuinely identifies as an Aboriginal person and has done so since their childhood. Each was raised to identify as an Aboriginal person and was enculturated as an Aboriginal person. None of them ‘chose’ to be Aboriginal. Nor have they used their Aboriginal identity inappropriately to advance their careers. Each is entitled to regard themselves and be regarded by others as an Aboriginal person within the conventional understanding of that description; and

I have concluded that from the perspective of fair-skinned Aboriginal people, the messages (or what lawyers call “the imputations”) conveyed by the newspaper articles which Mr Bolt wrote, included that:

•  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
• Fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles; and

I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language; and

Finally, in dealing with the formulation of the orders to be made by the Court, I have observed that 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 by challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.

Yet, in a 3 April 2014 op ed piece Australian Attorney-General George Brandis submitted to The Australian Jewish News in support of the Abbott Government’s proposed changes to the Racial Discrimination Act (1975) he stated this:

The significance of the Bolt case was merely that it showed the reach of the section in its current form, and that it could be used to prohibit the expression of a point of view about a vexing social question.

A vexing social question? In Australia during the 21^st century?

Surely by now Australian society recognises that family, kinship and tribal grouping within and across indigenous communities do not rely on skin colour as a determinate of cultural identity.

Equally, it defies belief that ordinary reasonable people would find Mr. Bolt’s quoted remarks in their entirety acceptable – even if George Brandis apparently does.

Finally, I draw the reader's attention to the fact that the Attorney-General  also stated in the op ed that; Naturally, I also consulted with others who brought different perspectives to the debate, including Andrew Bolt himself.