Showing posts with label racism. Show all posts
Showing posts with label racism. Show all posts
Sunday 17 August 2014
Thursday 1 May 2014
Australian Human Rights Commission submission on the proposal to repeal sections of the Racial Discrimination Act 1975
It is comforting to realise how little the far-right quisling, ‘Freedom Commissioner' Tim Wilson, actually counts when it comes to the Australian Human Rights Commission’s considered response to proposed bad law.
His perspective did not prevail in the Commission's submission and he was reduced to writing his own brief submission to the Australian Attorney-General who appointed him to his current position.
His perspective did not prevail in the Commission's submission and he was reduced to writing his own brief submission to the Australian Attorney-General who appointed him to his current position.
Australian Human Rights Commission 28 April 2014:
1. The Australian Human Rights Commission makes this submission to the Attorney-General’s Department in relation to the exposure draft Bill on proposed changes to the racial hatred provisions of the Racial Discrimination Act 1975 (Cth) (RDA).
2. The Commission welcomes the opportunity for community consultation on this important and complex issue. The Commission encourages the Attorney-General’s Department to make information about the key issues identified through the consultation process publicly available to inform future public debate.
3. The Commission’s general observations on the proposal to amend the RDA and its specific observations on the text of the draft Bill are as follows.
General observations on any proposal to change Part IIA
(1) The Commission considers that the exposure Bill as drafted should not proceed. This submission sets out concerns that any future draft Bill would need to appropriately address. The Commission looks forward to engaging with any future proposal.
(2) Any proposal to amend the law should involve extensive public consultation as it has the capacity to affect the human rights of all Australians, and particularly consultation with those communities whose members are most vulnerable to experiencing racial discrimination.
(3) Proposals to change the law are recent and it should be recognised that, in its current form, the Racial Discrimination Act as applied by the courts and administered by the Australian Human Rights Commission has successfully resolved hundreds of complaints about racial hatred over the past two decades. Any proposed change requires further justification.
(4) The Commission considers that the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice by the courts. That is, to confirm that Part IIA deals with ‘profound and serious effects, not to be likened to mere slights’.
(5) It is also important to recognise that racial vilification cannot be addressed only by legal prohibitions. Complementary education and awareness raising measures are also required to promote a culture of respect for human rights and responsibilities. The Commission will continue to play a key role in this regard.
Particular observations on the draft Bill
The Commission has a number of particular concerns about the exposure Bill as drafted. If, following the consultation described above, the Government were to proceed with the draft Bill, the Commission considers that each of the following amendments would be necessary.
(6) The Commission is concerned about the narrow definition given to ‘vilify’. It considers that if there is a change to Part IIA that includes a prohibition on ‘vilification’ then this term should be given its ordinary meaning, including conduct that is degrading.
(7) The Commission is concerned about the narrow definition given to ‘intimidate’. It considers that if there is a change to Part IIA that includes a prohibition on ‘intimidation’ then this term should be given its ordinary meaning, which recognises that intimidation is not limited to causing fear of physical harm but includes conduct causing emotional or psychological harm.
(8) The Commission considers that an assessment of whether an act is reasonably likely to contravene the law must be made ‘in all the circumstances’. The Commission considers that the words ‘in all the circumstances’ should be inserted into subsection 1(a) of the draft Bill following the words ‘is reasonably likely’. On the basis that the legislation and any extrinsic material make clear that all the circumstances of the act including the likely impact on the target person or group must be considered, the Commission does not express any other concerns about the proposed community standards test.
(9) The Commission considers that the exemption for artistic works should be retained. This could be effected by inserting the words ‘the performance, exhibition or distribution of an artistic work, or’ after ‘in the course of’ in subsection (4) of the draft Bill.
(10) The Commission is concerned about the breadth of the exemption in subsection (4) of the draft Bill. The subsection removes the requirement that acts be done reasonably and in good faith. At the very least, including a requirement of ‘good faith’ as a minimum would prevent racist abuse offered up in the course of public discussion being permitted.
(11) The Commission considers that employers are well placed to address the risk of racial vilification by putting in place programs including training and codes of conduct for employees. The Commission considers that existing section 18E, which provides for vicarious liability for racial vilification, should be retained.
(12) The Commission considers that a person who engages in racial vilification should not be able to avoid liability by arguing that the act was also done for another reason. Section 18B provides that if an act is done for two or more reasons and one of those reasons is the race of a person, then the act is taken to be done because of race. Each of the federal discrimination Acts contains a provision equivalent to section 18B and its removal would make Part IIA inconsistent with all other federal anti-discrimination law. The Commission considers that this provision should be retained.
4. The right to freedom of expression is of fundamental importance, and extends to expression that may be regarded as deeply offensive. It is not, however, an absolute or unfettered right and carries with it special duties and responsibilities.
5. Racial vilification can also harm the freedom of those who are its targets. It can have a silencing effect and harm the ability of victims to exercise their freedom of speech, among other freedoms.
6. It is important to retain strong and effective legal protections against racial vilification. Such laws send an important message about civility and tolerance in a multicultural society, and ensure those who experience the harms of racial vilification have access to a legal remedy.
7. Throughout this submission, the Commission has been particularly concerned to ensure that it strikes the appropriate balance between freedom of expression and freedom from racial vilification.
8. In this submission, the Commission reflects on three areas of particular expertise relating to the draft Bill:
o how the draft Bill relates to Australia’s international human rights obligations;
o how the draft Bill would alter the existing level of protection of both freedom of expression and freedom from racial hatred; and
o the social harm that can result from racial vilification.
9. The Commission is uniquely placed to comment on these issues given our legislative mandate under the RDA and Australian Human Rights Commission Act 1986 (Cth),[1] and our role in investigating and conciliating complaints alleging breaches of section 18C of the RDA.
10. In the submission, we use case studies of matters dealt with under the legislation to provide concrete examples of how the proposed changes would alter the level of protection that currently exists.
11. This submission addresses the following issues in turn:
a. Australia’s international obligations to provide for freedom of expression while also protecting people from racial hatred;
b. the background to the enactment of Part IIA of the RDA, and how it currently operates;
c. in particular, a description of the seriousness of the conduct caught by Part IIA in the context of the recent public debate;
d. the Commission’s concerns about aspects of the draft Bill;
e. other measures to combat racial hatred in Australia.
12. In addition to this submission, the Human Rights Commissioner has also prepared an additional letter. It contains comments that are intended to complements this submission, and provide further elaboration on the key points of concern to the Human Rights Commissioner.
Read the rest of the submission here.
Monday 28 April 2014
Andrew Bolt still incorrectly insisting his articles found to have breached Australia's Racial Discrimination Act were banned.
In September 2011 News Corp journalist Andrew Bolt was found to have contravened section 18C of the Australian Racial Discrimination Act in two published articles and, these articles were not exempt under section 18D of the same act.
Subsequently both Mr. Bolt and the Abbott Government have sought to characterise the judgement in Eatock v Bolt as an attack on a citizen’s right to freedom of speech:
Brandis is stinging about this case. The judge ‘engaged in an act of political censorship’, he says, with a journalist ‘prohibited from expressing a point of view’. – Australian Attorney-General Senator George Brandis
Both are intent on repealing sections 18b, 18c, 18d and 18e of the Racial Discrimination Act 1975.
This is Andrew Bolt in 2014 furthering the notion that his published words were banned by the Federal Court of Australia.
In the Herald Sun, 12 March 2014:
I could prove that my banned articles argued against racism and racial division by republishing them - but the Federal Court has ruled that I may not. Mein Kampf can be published, but my articles fighting racism cannot.
In The Australian, 2 April 2014:
I should add that in banning two of my articles, the judge ruled my argument to be factually wrong in the case of those I mentioned.
In the Herald Sun, 20 April 2014:
But it’s not just global warming. Brandis said he was then horrified by “an act of political censorship” — a judge’s banning of two articles in which I questioned why certain fair-skinned Aborigines identified solely as Aboriginal.
The truth of the matter is that the original articles in question were neither banned nor their contents censored by the court.
In fact the court specifically allowed those two articles to remain online:
Both 2009 articles are still available in their entirety on the Herald Sun website – here and here. The newspaper proprietor has now prefaced both with the court-ordered statement.
Andrew Bolt has used the strike key to alter the first online article, It’s so hip to be black (also titled White is the new black), so that the original despite looking almost as German as her father has turned into despite looking almost as German as her father name and had an English father has been altered to had an English a Scottish father.
However, in neither online article does it appear he has attempted to alter gross errors of fact identified in the judgment summary of Eatock v Bolt [2011] FCA 1103 (28 September 2011).
Therefore, Andrew Bolt’s articles dated 15 April and 21 August 2009 were never censored or banned.
Anyone with an Internet connection almost anywhere in the world can still read the ugly tripe he wrote.
The Abbott Government's response to the Federal Court judgment is a massive over-reaction not supported by a majority of the general public.
Bolt's freedom of speech is intact. His right to use words to publicly offend, insult, humiliate or intimidate another person or a group of people1 based on race, colour or national or ethnic origin2 and, to employ untruthful facts and the distortion of the truth3 in order to do so, is not.
1. & 2. Wording found in Racial Discrimination Act 1975
3. The statement untruthful facts and the distortion of the truth is taken from the judgment summary of Eatock v Bolt [2011].
Tuesday 22 April 2014
Siv Parker: Part Two - A dedication to storytelling
The politics maelstrom of Indigenous issues can distract from
what my preferred work is these days, having first spent thirty years in
Indigenous affairs - I am a storyteller. I’d like to dedicate Part Two of my
Easter long read guest spot to story telling, and also acknowledge the great
loss to her family, community, friends and admirers of an Indigenous writer of
international renown who passed recently.
Doris Pilkington Garamara the novelist and
screenwriter was best known for her book filmed to international acclaim -
‘Rabbit Proof Fence’ [2002]. An award winning writer, her accounts of child
removal practices and the impact on their mothers in WA is an exceptional
contribution to Australian literary and cultural life, and provided the
narrative for the findings of the Bringing Them Home report.
I was working in the arts and through
some contacts we’d gotten hold of a copy of Rabbit Proof Fence from the
Director, Phillip Noyce, with permission to hold a free community viewing. The
small hall was full with mostly Aboriginal people. The audience was deathly
quiet for the duration of the movie. And then in one of those lucky
connections, I was invited to chaperone the author for a Q & A screening at
Albury/Wodonga.
On protocol – and there are many that
ensure the respectful
and effective approach to Indigenous filmmaker - if an older Aboriginal
lady is touring with a film – her film - my inclination would have been for her
to be accompanied by a member of her own family. I felt a tremendous honour to
be asked but I felt embarrassed that the organizers had thought it more
appropriate to have me – a stranger – escort her, especially as they’d
gone to the trouble to have me travel from outback NSW to the NSW/Victoria
border city.
It was at the town’s main cinema
complex, and mostly women, it looked like we’d have a fairly substantial pool
to throw up questions during the Q and A with the author scheduled to
immediately follow the screening.
Following introductions, Doris and I
returned to the Lobby. I recall there were some occasional chairs but set well
apart. To sit together we shared a seat for one. I’d just met someone I was in
awe of and now I was trying not to squash her.
I hope she knew I was doing my best to
ensure her comfort for the two day visit, especially as her gentle words and
determined spirit went on to inspire a change of direction in my life. It was
because of her that I decided I too wanted to win the David Unaipon award. (I
won in 2012). Like her, my first books will see the light of day when I’m
starting my 50s and a grandmother. And just like many Aboriginal writers today,
I write because we have stories that we want people to know. With so little
research, some may be the first time these stories are told beyond the circle
of family or community. Or they supplement research by filling in the gaps of
the lived experiences.
Screenings are synchronized down to the
minute and she was a professional. My most vivid memory of this remarkable,
talented and dignified woman was when we moved to the door to wait for the
credits to roll.
You may recall the ending, the final scene is of the two sisters – Molly and Daisy – as they were when Rabbit Proof was filmed.
You may recall the ending, the final scene is of the two sisters – Molly and Daisy – as they were when Rabbit Proof was filmed.
‘I never watch that scene’ she told me,
so she stood outside the door, in a deserted lobby while I waited at the back
of the cinema till they’d faded from view, before walking Doris down to the
front as the lights come up and the audience broke into warm applause. It had
clearly been a harrowing experience for some, and many looked tear stained and
haunted.
The questions were respectful and
reflected the extent to which the broader community were coming to terms with
the Stolen Generations. And then there was one that changed the mood.
I’d noticed her sitting in the middle of
the audience, by herself. Her arms were crossed in front of her body and she
sat tightly screwed into her chair. Horizontal stripes and a short neat
hairstyle.
Her question went something like ….’
Aren’t claims of stolen generations taking the black arm band movement too far.
And I don’t have anything to be sorry about because I wasn’t there’.
The question would have made more sense
if it had been asked when the audience member was still in a state of complete
ignorance rather than after having sat through 94 minutes of a dramatized
account of a true story.
And then I took the Tony Jones approach
and informed her ‘ I’ll take that as a comment’ but she would not be stopped
from commenting. On and on it went. Clearly distressed, she was now quite
agitated and talking over everyone in the cinema. Ok, she was yelling. And then
the audience started to murmur and hiss at her to stop.
It wasn’t a great way to finish the
event but most were already emotionally drained by the experience. Slowly
making our way to the exit and out on to the street and I saw the horizontal
tee coming our way.
And then my eye caught a face I knew.
Though I’d never met her, I was familiar with who Shellie
Morris was from seeing her in my travels in the Northern Territory. ‘I know
you’ she said, and we embraced on the footpath. Something about our public
display of affection stopped the horizontal tee in her tracks. She turned
around and walked away.
Over a decade later, maybe she feels the
same or maybe she has moved on like most people who accept this chapter in
Australia’s history.
At any time the exploits of
three children walking 2,400 kms (1500 miles) is an extraordinary story. At the
time there was a desire and a willingness to invest in the making and the
viewing of that film.
I’m frequently asked for recommendations
for Indigenous reading and I recommend all of Doris Pilkington Garimara’s works
:
Caprice, A Stockman's Daughter, (UQP, 1991)
Follow the
Rabbit-Proof Fence, (UQP, 2002)
Under the Wintamarra Tree, (UQP, 2002)
Home to Mother, (UQP, 2006) ** children’s version of
Rabbit Proof Fence
And where are we today? Stories about
identity and bigotry would seem to the order of the day. But there is far more
to the Indigenous experience than skin colour and how it feels to be racially
vilified. In the context of Indigenous diggers from over a hundred years ago,
no mention whatsoever is made of the colour of their skin, but they were
referred to as black trackers, and were expected to be willing to die for their
country.
If I was going to make comment at all it
would be this – when we are living, we’re directed to grow a thicker skin in
our determination to be treated as human, and accepted as Aboriginal, but when
we die, no one argues that we were Aboriginal. The test for identity is that a
person identifies, is accepted by and has connections with the Indigenous
community. There is no legal reference to skin colour.
And yet some continue to want to raise
it again and again if only to hear the sound of their own voice, much as the
wearer of the horizontal tee from Albury Wodonga. She had a freedom to speak,
and then as now I have freedom to decide how I respond, and these days I choose
writing and filmmaking. Just as I did a decade ago, I can continue to
acknowledge a wilfully blind point of view, and embrace the Aboriginal
experience.
BIO
Siv Parker is an award winning writer, blogger and
tweets from @SivParker. Her next publication is in a new anthology being
launched at the Melbourne Emerging Writers Festival in May 2014.
For more opinion by Siv Parker on racism and the RDA, please
read.
Repealing the race hate laws isn't
'freedom' to Indigenous people
Demonising people of colour is no way to
make society safer
http://www.theguardian.com/commentisfree/2014/feb/14/sexual-assault-western-sydney-race?CMP=ema_632&commentpage=2
Monday 21 April 2014
Siv Parker: Part One - On the RDA & opposing the repeal of 18c
If you have an interest in Australian
politics, you’d be aware that a Senator from Queensland who is also currently
Australia’s Attorney-General generated a flood of opinion when he
responded to a Question in the Senate with ‘People
have a right to be bigots, you know’.
Some days later, following an interview
with one of the Australian Human Rights Commissioners, an outspoken ‘repeal
advocate’ – the journalist followed the Commissioners line of argument with the
obvious question… culminating in the N-word
trending nationally.
In the weeks since, public debate has
moved from emotional gut reaction, to personal disclosures of victims and
observers, and now we’ve arrived at the theoretical, touching on:
– the merits of bigotry (so
far nil that I could see);
– the risk to free speech
(those with the most strenuous complaints to the threats to their freedom of
speech, continue to have more access to speech, the means to pursue defamation
and at worst at slight risk of racial abuse);
– the case that was cited as central to
efforts to repeal (was lost because as per the finding the offending
articles 'included 19 errors of fact and one gross error of fact)'; and
– ‘what is freedom of speech?’ (falsely
attributed to Voltaire, and confusion around what John Stuart Mills actually
meant by ‘freedoms’ because few have actually read first hand, preferring
to be falsely informed or take a wild guess).
So how is your Easter? I’d wanted to use
my guest blog spot to share some of my thoughts on Indigenous story telling,
and what I think a person would do well to keep in mind when making use of the
new technology that continues to come our way.
But the furore
surrounding the proposed repeal of section 18c of the Racial Discrimination Act
has eclipsed my literary pursuits, with no sign of waning on Twitter – my usual
platform for commentary - until at least the deadline
for submissions. [30 April 2014]
Social media can’t force people read,
but it can give a voice to both the marginalized and the powerful. It magnifies
the cycle that surrounds many Indigenous issues – outrage, division, retreat –
because it is so easy to tap out a tweet, a blog or an opinion piece. However
Indigenous issues compete with 24 hour news cycles, engaging commentators and
professional provocateurs of social media, ensuring a constant flow of
tantalizingly, easily accessible information.
In short, people get bored or readily
distracted. If you’re not directly affected – if you can comfortably expect to
never be racially abused, and to very rarely be called upon to intervene when
you see it happen in front of – you have the luxury of taking quite a relaxed
point of view.
Yes, it pollutes your view of the world,
but how you engage in it, what depths you need to navigate to keep your chin
above its murky depths is a choice you get to make.
Indigenous people, especially those who
look a certain way – and depending on the situation it could be due to the
darkness or the lightness of their skin – are in perpetual readiness for
something to happen.
It may just be that comment – that you
have heard week in, week out for your entire life. It could be more pointed,
and depending on what circles you move in, it could feel like an interrogation
at a writers festival in front of an audience of two hundred people.
Or perhaps you wrote an opinion piece
that was shared on Facebook over 600 times and a whole lot of people wanted to
tell you what they thought about it, starting with ..I’m not racist but, or I
don’t agree that…, or ‘the author is deficient’ in some way – lets count them,
because of not fighting back and giving up (vague criticism); being too
conservative (vague again); being too opinionated; using the wrong tone;
suspected of merely having ‘a short term political agenda’; or my personal
favourite (not really) that I have ‘missed the real question’ altogether, despite
it being my opinion and my life.
It is just so…wearisome. In fact, if the
Indigenous person would just stop talking about it, we could all focus on
something more positive. Or lately, isn’t it better that people get to say
whatever vile lie that pops into their head. Isn’t that better than just
thinking it?
Well, no. It’s not. And the only people
with staying power in the racism debate are the victims of racial abuse, and
the people who think treating some people with the rough end of free speech is
what makes for a better society.
Rather than listen to someone tell me how
bereft they feel at not being able to racially insult people, I’d rather
discuss story telling. Stories that would have people less inclined to tolerate
and on occasion contribute to the continued ‘not racist but’ dehumanization of
Indigenous people.
If we talked more about the contribution
that Indigenous Australian’s have made to Australia, for instance. Not in the
thousands of deaths that made land available, but from the labour and land
management skills of the generations of Indigenous people that built
Australia’s prosperity.
An enduring example was the development
of the pastoral industry, and the proud tradition of Australian sheep and
cattle properties. Livestock only reached pastoral properties across Australia
because of the Indigenous jackeroos and jilleroos who drove on horseback from
one side of the country to the other, over the last hundred years.
My mother was a jillaroo, and came from
a family of station workers. Very few of them ever received a full wage, and
most died before the state (Qld,
NSW and WA) made arrangements to
make partial payment. Though ‘payment’ barely describes the paltry sums on
offer to workers, many of whom were already deceased.
But for some, this is ancient history – Stolen Wages,
which were only relatively recently settled, is an awkward conversation,
particularly if your family or industry benefited from enforced servitude, and
is another example of why some observers encourage Indigenous people to grow
another layer to that thick skin they suggest will make racial insults easier
to bear.
So let’s confine our conversations to
timeframes and events that people are comfortable talking about. Let’s start
with the Boer War, 1902, when 50 black trackers
were rounded up and sent to South Africa.
Technically
the majority weren’t enlisted, though it’s highly unlikely that in 1901 black
trackers – at least fifty of them – decided to move to South Africa of their
own accord. There are records that they left Australia, but no confirmation
that they returned. Research is limited but indicates that return travel was
impaired by the White Australia policy in operation at the time. People are
very cautious in the telling of this sorry story and – to my mind – truly
shocking treatment of Indigenous people. ‘Leave no man behind’ is a mainstay of
war stories, after all. Descendants of these Indigenous service men
certainly didn’t forget – how could you, that’s the sort of story that
people would continue to tell for generations, regardless of your heritage.
There’s been a history of those who
remain unconvinced certain events occurred. This was certainly the case with
the Stolen Generation though these days – post The
Apology - people accept more readily that children were removed and their
families deeply traumatized.
Bio
Siv Parker is an award winning writer, blogger and tweets from @SivParker.
Links
Hansard Senate March 24 2014 Questions
without notice Racial Discrimination Act Senators Peris & Brandis
‘People have a right to be bigots, you
know’.
Human Rights Commissioner Tim Wilson
says race hate laws are bizarre, unequal
Amendments to the Racial Discrimination
Act 1975
Stolen Wages
Aboriginal pastoral workers seeking
compensation for years of unpaid labour
New project to shed light on legacy of
Indigenous diggers
Claims 50 Aboriginal trackers left
behind during the Boer War
Friday 4 April 2014
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 21st 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.
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.
Wednesday 2 April 2014
The madness that is the Australian far-right. WARNING: racially abusive term used by way of example
Former Institute of Public Affairs lobbyist Tim Wilson foreshadows the possibility that proposed Abbott Government amendments to the Racial Discrimination Act 1975 will allow anyone to call any Aboriginal person a nigger* in words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.
The Age 30 March 2014:
Racial discrimination laws have led to the ''bizarre'' situation where members of a community can use racially loaded language against each other while outsiders can't, Human Rights Commissioner Tim Wilson has said.
Asked whether he was referring to the word ''nigger'', Mr Wilson said: ''I won't say it, but that's right.''
Mr Wilson told Fairfax that repealing the so-called ''Andrew Bolt'' provision of the act, which makes it unlawful to insult or offend people based on their race or ethnicity, would restore ''equality'' to discrimination laws.
* Nigger is considered a racially abusive term usually used in connection with African-Americans or other persons considered to be ‘black’. In my experience this term is not universally used in indigenous communities.
Saturday 29 March 2014
Quote of the Week
People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive, insulting or bigoted.
[Australian Attorney-General Senator George Brandis on his feet in the Senate, Hansard 24 March 2014]
Thursday 27 March 2014
Abbott Government's get-out-of-gaol-free card for closet and open racists
Australian Attorney-General George Brandis’ announcement of his intention to weaken the Commonwealth Racial Discrimination Act 1975:
25 March 2014
The Government Party Room this morning approved reforms to the Racial Discrimination Act 1975 (the Act), which will strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech.
The legislation will repeal section 18C of the Act, as well as sections 18B, 18D, and 18E.
A new section will be inserted into the Act which will preserve the existing protection against intimidation and create a new protection from racial vilification. This will be the first time that racial vilification is proscribed in Commonwealth legislation sending a clear message that it is unacceptable in the Australian community.
I have always said that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.
This is an important reform and a key part of the Government’s freedom agenda. It sends a strong message about the kind of society that we want to live in where freedom of speech is able to flourish and racial vilification and intimidation are not tolerated.
The draft amendments are released for community consultation. The Government is interested in hearing from all stakeholders on the proposed reforms. Submissions can be made until 30 April 2014 at s18cconsultation@ag.gov.au.
A copy of the draft amendments is attached.
Part IIA—Prohibition of offensive behaviour based on racial hatred
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;
this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
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