• Aboriginal dancers perform the WugulOra Morning Ceremony at Walumil Lawn at Barangaroo Reserve as part of the 2016 Australia Day celebrations in Sydney. (AAP/Dean Lewins)
COMMENT: There has been an amazing amount of misinformation about 18C from various journalists and commentators in the 5 years since Andrew Bolt was rightly found to have been in breach of 18C of the Racial Discrimination Act.
By
Luke Pearson

21 Nov 2016 - 5:55 PM  UPDATED 21 Nov 2016 - 5:55 PM

Among the more egregious of these has been the idea that 18C prevents people from talking about issues of Aboriginal culture and identity – whether it be about ‘fair-skinned’ Aboriginal people, Indigenous funding, or domestic violence.  

There is nothing about 18C which prevents anyone sharing any opinion about any of these topics, and the exemptions offered by 18D further ensures that these topics are open for discussion. The most recent article making these false assertions was from chris mitchell* in, no surprises here, the australian. In this article mitchell laments how white people like andrew bolt aren’t allowed to have opinions about the topics mentioned above, for legal reasons, and then goes on to share his opinion about those topics. He writes: “Bolt is understandably sensitive to the legal position he faces after the Bromberg judgment. But he is dead right when he implies privately that the issue of light-skinned, self-identifying Aborigines needs to be discussed.”

“The losers when people who are largely of European heritage and live a mainstream middle-class life win prizes and preferment because of claimed indigeneity are the really disadvantaged, whom most Australians would rightly think deserve the hand-up being awarded so often today to those who hardly need it.”

There you go, chris mitchell, you just talked about the thing that you said needs to be discussed but can’t be.

There you go, chris mitchell, you just talked about the thing that you said needs to be discussed but can’t be. Maybe you are quietly hoping that you too will have an 18C claim made against you, because you know that 18D allows you to talk about it, or maybe you are sincerely ignorant to the fact that you are talking about the thing you think you can’t talk about. 

18C doesn’t prevent you from talking about any of what you are saying, and the Bolt case highlighted this point: “Nothing in the order for relief should be taken to suggest that it is unlawful for a publication to deal with racial identification. Mr Bolt and HWT [Herald and Weekly Times] were not found to have contravened section 18C of the RDA simply because of subject matter of the articles, but rather because of the manner in which that subject matter was dealt with.”

Simply put, he said things about people that simply weren’t true, and that any decent journalist would have very easily found weren’t true, so much so that the only conclusion was that he racially vilified people for the key purpose of racially vilifying them. So even if the changes to 18C from ‘insult’ and ‘offend’ to ‘vilify’ were made it probably wouldn’t have helped Bolt in his case because he racially vilified people, unreasonably and in bad faith.

Various newspapers, but particularly the australian, have been publishing articles for years blaming violence in Aboriginal communities on traditional culture, or questioning Indigenous funding, or aspects of Indigenous identity, and even though I find many of these articles to be painfully ignorant, racist, offensive and insulting, I am aware that they are within their legal rights to talk about these issues and share these opinions, even if I think they often border on advocating for cultural genocide. This is an important distinction. Much of the anti-18C rhetoric has been built around the idea that ‘just because someone is thin-skinned and easily offended, it shouldn’t be against the law’.

Much of the anti-18C rhetoric has been built around the idea that ‘just because someone is thin-skinned and easily offended, it shouldn’t be against the law’.

The Human Rights Law Centre, a not-for-profit organisation, released a myth-busting document about the case after the misinformation about the legislation started doing the rounds. In it they write: “There is no general right not to be offended in Australia. The price of free speech is that we accept that people should generally be able to say offensive things. But there are limits to the kinds of offensive things we can say. Our laws make it a criminal offence to use profane or indecent language or behave in an offensive or insulting way in public. Our sexual harassment laws make it unlawful to engage in unwanted or unwarranted sexual behaviour that is offensive. The racial vilification laws make it unlawful to do things that are reasonably likely to “insult, offend, humiliate or intimidate” on the grounds of race. The Courts have interpreted the laws sensibly and have said the laws only apply to behaviour that has “profound and serious effects, not to be likened to mere slights”.”

They also state “Mr Bolt’s articles didn’t fall within the exemption because the court found that his articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language. This meant that he could not rely on any of the free speech exemptions.”

18C doesn’t stop anyone from talking about any issue whatsoever; it does however prevent people from using ‘multiple errors of material fact, distortions of the truth and inflammatory and provocative language’ in clear efforts to racially vilify people. If people think 18C should be changed from ‘offend’ and insult’ to ‘vilify’ because that would be a stronger threshold then okay, that’s fine. The main problem I have with this seemingly never ending ‘debate’ is when people pretend that 18C prevents from talking about any issue to do with any aspect of Indigenous identity or policy, because it simply doesn’t.

The main problem I have with this seemingly never ending ‘debate’ is when people pretend that 18C prevents from talking about any issue to do with any aspect of Indigenous identity or policy, because it simply doesn’t.

That’s not to say that I don’t get annoyed when people write racist opinions and try to present them as fact, of course I do. I don’t look forward to every other hearing what the latest racist article that has been published is. I don’t just think is a sad indictment of just how popular racism in our country still is, I think it is why racism is still so popular.

As for actual conversations around matters of public interest, I am all for them. The application of the three point criteria for Aboriginal identity isn’t perfect, and people can and should talk about ways it could be improved. Indigenous funding is a dog’s breakfast, even more so after the introduction of the so-called Indigenous Advancement Strategy, and this too should be looked at critically and again, it already can be.

It would also be great if there were more sincere attempts to understand the complexities of contemporary Aboriginal identities and how they have been impacted on by the countless government policies

It would also be great if there were more sincere attempts to understand the complexities of contemporary Aboriginal identities and how they have been impacted on by the countless government policies that have attempted to define and quantify Aboriginality in Australia’s history. For example, there is a document on the Australian Parliament House website called ‘Defining Aboriginality in Australia’, which mentions that “'Blood-quotum' classifications entered the legislation of New South Wales in 1839, South Australia in 1844, Victoria in 1864, Queensland in 1865, Western Australia in 1874 and Tasmania in 1912. Thereafter till the late 1950s States regularly legislated all forms of inclusion and exclusion (to and from benefits, rights, places etc.) by reference to degrees of Aboriginal blood. Such legislation produced capricious and inconsistent results based, in practice, on nothing more than an observation of skin colour.”

That is interesting information, and can help provide context to the current conversation that people like to pretend isn’t the continuation of a 200 year old conversation about how Aboriginal people should be defined and controlled. Even the comments made by andrew bolt were not remotely new. bruce ruxton expressed similar sentiments years ago when he asked the Federal Government to amend the definition of Aboriginality “to eliminate the part-whites who are making a racket out of being so-called Aborigines at enormous cost to the taxpayers.” It is also interesting to note that the footnote for that quote on the aph.gov.au website article is, you guessed it, the australian, in 1988.

ruxton’s quote always reminds of another famous quote made in the 1980s, lang hancock’s ‘solution to the Aboriginal problem’: “Those that have been assimilated, earning good living wages among the civilised areas, that have been accepted into society and have accepted society and can handle society I’d leave them well alone. The ones that are no good to themselves and can’t accept things, the half-castes, and this is where most of the trouble comes, I would dope the water up so that they were sterile and would breed themselves out in future, and that would solve the problem.”

I wonder if that quote would get flagged under 18C as it currently stands, or if people think this is an example of the sort of Free Speech debate that we should be having and that 18C is stopping? It certainly didn’t stop gary johns from writing an article in the australian arguing that women on the dole should be forced onto contraception, or calling Aboriginal women ‘cash cows’ on the bolt report, “Look, a lot of poor women in this country, a large proportion of whom are Aboriginal, are used as cash cows, right? ... They are kept pregnant and producing children for the cash. Now, that has to stop." – Not quite a call for sterilisation, but not quite as far away from lang hancock’s comments as I would like either, given that the latter were made over 30 years later.

So, again, what exactly does 18C stop anyone from talking about? It certainly doesn’t seem to have slowed the australian down all that much?

 

*Differences of opinion are important in media, like the how the australian’s editors don’t think the word Indigenous deserves a capital I, and I don’t think the people I mentioned in my article, or the australian itself, deserve capital letters either.