I’VE watched the debate over the amendments to section 18C the Racial Discrimination Act with deep frustration. The debate is sucking up oxygen from the important work this government needs to do and threatens the real change it has committed to deliver for indigenous people. And all this to appease Andrew Bolt.
The proposed amendments narrow the definition of racial vilification and introduce a “public discussion” exemption. An exemption so broad that protection from racial vilification might become something only to be enjoyed by people in the privacy of their own home.
The government says the changes are to protect the right to free speech; but at the same time haven’t followed a strict free-speech doctrine. Last week, the Attorney-General said that the laws would still apply to Holocaust denial (although he wouldn’t be drawn on a specific example). This shouldn’t matter if the motivation is to uphold the right to free speech. In America — where free speech is a constitutional right — even Holocaust denial isn’t prohibited.
As it happens, under the new laws people can incite hatred against Jewish people while participating in public discussion of a wide range of subjects. Holocaust deniers will have a wide berth to peddle their misinformation. Evidently, the drafters didn’t manage to find a form of words that would allow Bolt’s comments on the one hand but prevent public hate speech on the other.
Perhaps this is because they don’t appreciate why Bolt’s comments were so offensive to indigenous people.
Bolt was censured under section 18C for accusing named individuals of choosing to identify as Aboriginal for personal and political gain. He believes skin colour and ancestry proportions determine Aboriginality and these individuals did not meet those criteria.
The original inhabitants of Australia didn’t see themselves as an “Aboriginal race”. They were part of hundreds of separate tribal nations. I’m from the Bundjalung nation and also a descendant of the Gumbaynggirr and Yuin peoples.
On my desk there’s a photo of me with my children and my grandchildren. The people in this photo have a range of different skin tones, eye and hair colours. They are all my descendants and therefore they are all Bundjalung. To say that any of them are not Bundjalung would be like saying they are not part of my family.
In modern Western societies, family and nationality/citizenship are different concepts. I vote according to where I live. My nationality is based on birth and/or government recognition of citizenship, not on who my family is. There’s a distinction between the private and the public, family life and civic live.
In Aboriginal tribes, family and nationality/citizenship are the same. Traditional law is centred around the kinship system — a highly developed and complex system of rules that defined your position in the tribe, who you could marry and interact with and even your rights and responsibilities over land and sea. Your tribe is your family and your family is your tribe, despite being thousands of people spread over a wide geography. Some of your aunts and uncles are officially your mothers and fathers, providing a natural welfare system. Others play a role in your ceremony. Under traditional law, there’s no distinction between your family and your nationality, between the private and the public, between familial life and civic life.
Kinship systems have rules for how outsiders fit in. Because traditional law defines everything in the universe, an outsider can’t exist if not brought under traditional law.
European colonisation cut a swath through traditional societies. Aboriginal tribes had to adapt to new situations — having outsiders on their land who were not under traditional laws; being moved off their lands to settlements with other tribal groups; being prohibited from speaking their languages or practising ceremony.
Aboriginal women had children to non-Aboriginal men. Sometimes this was consensual. There were non-Aboriginal men like my Irish great-grandfather who married Aboriginal women and cared for them. There were also many instances where Aboriginal women were raped or pressured into situations they had no control over. Consequently, there have been “light-skinned” people in Aboriginal tribes for nearly as long as there have been Europeans on this continent. Traditional laws don’t define a tribal group’s members by physical appearance.
Having “white” people living in Aboriginal communities was a conundrum for authorities, especially in a segregated society. Governments tried to formally categorise people of indigenous descent based on “blood-quotum”, labelling them with terms like “half caste” and “quadroon”, usually based on appearance.
But Aboriginal tribal groups had defined themselves under traditional laws for thousands of years. We didn’t need government telling us who was in our tribe and who was not; who was in our family and who was not.
Many conservatives mistakenly believe Bolt was prevented from making legitimate comment on whether special benefits are being abused or misdirected. I agree that people should be free to comment and debate on those topics. But they already are. Bolt can talk freely about these issues without breaching section 18C.
Bolt can point out if someone with no indigenous ancestry receives a prize for people of indigenous descent. He can point out if a special benefit for people who are disadvantaged has been given to someone who doesn’t meet the relevant disadvantage test. No breach of section 18C.
Bolt can argue that a prize or benefit for indigenous people should have a disadvantage test, such as means testing or a condition the recipient be from a remote area. No breach of 18C there, either.
He can even argue there should be no prizes, awards or special benefits, whether given by government or the private sector, that are limited to people of particular ethnic or national backgrounds; that all prizes must be open to all people. Even that wouldn’t breach 18C.
However, if Bolt wants to argue that a prize or special benefits for indigenous people should only be awarded to people with dark skin or who are “full blood” then my sympathies end. Because that’s the mentality of the authorities-of-old who purported to define my tribe — my family — by appearance and by blood-quantum.
Since the judgment, Bolt regularly posts photos of indigenous people on his blog who don’t fit his view of what an Aboriginal person should look like with the caption “No Comment” and a statement that his lawyers won’t let him say anything more. Targets of his “No Comment” comment include schoolchildren who visited the Prime Minister and Josephine Cashman, a member of the Indigenous Advisory Council. Given the chance, perhaps he’d post my family photo to his “No Comment” series too.
If the RDA has “hair triggers” that go beyond what’s needed to keep racial vilification at bay, then let’s look at those in a logical and rigorous way. Indigenous and other community groups would be happy to participate in that conversation. I am happy to work with government on that too.
But let’s not cause division and upheaval over one newspaper columnist.
We have real, serious issues to address in this country. Whether Bolt can engage in his particular form of public shaming and bullying of people of indigenous descent is not one of them. And he seems to be doing it just fine, anyway.
Last February, Tony Abbott released the annual Closing The Gap report. It illustrated just how much work we have to do in indigenous communities. It was a sobering day, but also one of hope. Here was a prime minister and a government taking a new approach to indigenous affairs; cutting through the rhetoric and bureaucracy and focused on real, practical change. Such as the government’s Remote School Attendance policy, a community driven program that is designed to relentlessly address chronic truancy in remote indigenous schools.
That same day, the Indigenous Advisory Council first spoke with Mr Abbott and Minister for Indigenous Affairs Nigel Scullion about a radical proposal to divert all juvenile offenders out of detention and into jobs and education, starting with a pilot in Western Australia. They gave the proposal their backing and we are working right now with the WA government to implement it.
And these are just a start. This government has committed itself to making real change for indigenous people through commercial and economic development, through jobs and education. With real change occurring not in a generation, not in a decade, but now.
Let’s not squander that opportunity. Let’s get back to the real issues.
Nyunggai Warren Mundine is the managing director of Nyungga Black, executive chairman of the Australian indigenous Chamber of Commerce and chairman of the Prime Minister’s Indigenous Advisory Council.
