Indigenous not helped by speech ban

IT IS taking quite a long time to break down the misconception that people who are not dark-skinned cannot possibly be Indigenous or Aboriginal.

That misconception comes with the assertion that a lot of people are only calling themselves Indigenous to pick up new found benefits like native title, educational and other prizes and special social welfare provisions.

The misconception is quite widespread. But Aboriginality is not skin deep. It is a question of identity.

Put crudely, in 1788 all Aborigines were very black. Whites arrived, and with them, rape, seduction, enticement and misrepresentation by white males. The result was pregnancies and, typically, mum doing the bringing up of the “half-caste” who was paler but still brought up Aboriginal.

In subsequent generations, more rape, seduction, enticement and misrepresentation by white males resulted in more pregnancies (including those of half- and quarter-caste women) and more off-spring being brought up by Aboriginal mothers.

It did not take very many generations before quite a few fairly white people were brought up by Aboriginal mothers and identified themselves as Aborigines. And moreover, suffered the same disadvantage in health, education and housing as Aborigines with darker faces.

The test for Aboriginality is not darkness of face. The test is do you claim to be and are you accepted by others as Aboriginal.

So how can this misconception, and others, be overcome? By communication, of course. You have to give people the evidence that the world is round. You have to tell them why it is round. Otherwise, they will go on believing what their eyes tell them – that it is flat.

The freer the communication, the quicker the truth comes out. Attempts at suppression will not prevent the truth from coming out, but they will certainly delay it.

Former University Vice-Chancellor Don Aitkin has now come under fire for his writing about skin colour and Aboriginality. He is being sued for $6 million in the Federal Court by Ngambri elder Shane Mortimer for writing in his blog that Mortimer looks “about as Aboriginal as I do” and that Mortimer’s “constant references to his ‘ancestors’ make me scratch my head”.

Aitkin questioned the authenticity of the possum-fur coat Mortimer was wearing at a welcome-to-country ceremony at Parliament House.

Immediate comparisons were made with the case of Andrew Bolt who was found to be in breach of the Racial Discrimination Act last year for articles suggesting that a dozen named Aborigines with fairly pale skin were abusing their identification as Aborigines to scoop up various prizes, government subsidies and the like which should have been reserved for “genuine” (very black) Aborigines.

Now Aitkin is no Bolt. Quite the opposite. Aitkin’s blog, which I read fairly regularly, is invariably measured and thoughtful. Bolt is almost invariably inflammatory. Aitkin acknowledges the test for Aboriginal identification and has done an immense amount of good work in the Aboriginal cause.

But they have several things in common. They are both excellent writers and good communicators. And they are being sued because they have offended Indigenous people.

At the time of the Bolt case I wrote that it was bad policy to make racially offensive speech unlawful, unless it incited violence. Yes, we should have laws against discrimination in employment, accommodation and the like, but making speech unlawful on the ground on offensiveness or insult to plaintiffs is flawed, and the Bolt case and the Mortimer-Aitkin case illustrate the point.

In Bolt’s case the law has been counter-productive. He is not apologetic. He will not change his view. And worse, he finds opportunities to recast his view in a way which will not be contrary to the law.

In short, the law and the case brought against him have got his back up. You do not change people’s view by suing them. They will continue to assert they are right – usually more vigorously than before.

Further, the case led more people reading the articles than would have otherwise and it led to Bolt being made a free-speech martyr.

And the law was made an ass because it has been shown to be impotent in enforcing its suppression order because the articles can be found on the net. The internet is like that – suppression is a challenge to be overcome; not meekly obeyed.

The counter-productive nature of the Bolt case is now laid bare by the Mortimer-Aitkin case. You could argue that the latter was spawned by the former. Moreover, I daresay many people upon reading about the $6 million lawsuit might well have said this is ridiculous, or worse that the Racial Discrimination Act has enabled offended people to get money through a lawsuit based on a racial element. The creation of those views will not help Aboriginal people.

We should leave regulation of speech to the criminal law and law of defamation which are racially neutral. If you incite violence through speech it is criminal. If you damage reputation in an unjustified way through speech, you pay compensation.

Mortimer should sue for defamation. He might assert, for example, that Aitkin’s blog carried the defamatory imputation that he was a fraud.

As things stand, this $6 million case will put the frighteners on anyone who might want to write or speak publicly about race. That is counter-productive for Aboriginal people.

The only way to get a more informed view about Aboriginality and greater acceptance that there is much work to be done to improve the lot of Indigenous people is through freer communication. If the price of that is the occasional misguided, inflammatory or even offensive writing, it is worth paying.

Prohibition and suppression have never worked.
CRISPIN HULL
This article first appeared in The Canberra Times on 17 November 2012.