Not equal when it comes to being offensive

LARISSA Behrendt, a professor of law and indigenous studies at the University of Technology, Sydney and of Aboriginal heritage, is suing Andrew Bolt under the Racial Discrimination Act for racial hatred.

Following the appearance of Aboriginal woman Bess Price on ABC1's Q&A on Monday, it is reported in this paper today that Behrendt tweeted, "I watched a show where a guy had sex with a horse and I'm sure it was less offensive than Bess Price."

I assume Behrendt was offended by Price's firm support for the Northern Territory Emergency Response. I guess one Aborigine hating another in public doesn't cut it under the Racial Discrimination Act. Price will have to be satisfied knowing Behrendt is a gross hypocrite.

Still, Price may take a closer look at the response to Behrendt from fellow "academic" Padraic Gibson of UTS. As reported in this newspaper today Gibson tweeted: "ha! Being offensive pays. BessP and her white husband make a $packet$ doing 'cultural awareness' for NTER."

I think Price may find that the old-fashioned law of defamation may be appropriate. Gibson is co-editor of Solidarity, a socialist magazine, an Aboriginal rights campaigner and "researcher" with Jumbunna, a unit of UTS through which Aborigines can "gain special entry to university". I trust the university reviews the roles of Behrendt, Gibson, Jumbunna and any persons in the university with similarly prejudicial views.

Behrendt, Gibson and others may like to reflect on where 20 years of racial hatred, of the white man, has landed Aborigines. They may like to consider that the two most egregious instances of public racial vilification in Australia in the past two decades were the Aboriginal deaths in custody report (1991) and the report on the separation of Aboriginal children and their families (1997).

The deaths in custody inquiry began knowing that black deaths in custody were at a rate similar to white. There was no agitation to investigate white deaths.

Within the first six weeks of the inquiry the research revealed that a black in custody was no likelier to die than a white in custody. Indeed, the death rate for a black male was no greater in custody than in the community. Moreover, not one of 99 cases of black deaths in custody revealed wrongdoing by prison officials.

And yet white society was publicly vilified for years during the inquiry. The assumption was that the white man had done in the black man.

Fortunately, but only incidentally, subsequent actions arising from the recommendations of the inquiry lowered white as well as black deaths in custody.

The speculative conclusion of the deaths in custody inquiry was that family separation was the principal cause of black incarceration. Apparently there was no interest in the causes of the incarceration of whites.

Speculation about the causes of black incarceration led to the second inquiry, into the separation of Aboriginal children from their families. It concluded that the commonwealth, that is, the white man, had deliberately set out to destroy Aboriginal culture by taking half-caste children and that this action was tantamount to genocide.

This outrageous public vilification was allowed to run at length until the test case - Lorna Cubillo and Peter Gunner - for the Stolen Generations was soundly defeated.

The separation of Aboriginal children inquiry was set up in 1995 under the Human Rights and Equal Opportunity Commission, the same group that now administers the provisions dealing with racial hatred. These provisions are being used to prosecute journalist and broadcaster Bolt before the Federal Court.

The provisions in the Racial Discrimination Act 1975 inserted by the Racial Hatred Act 1995 were strongly opposed by the Coalition on the grounds that it might infringe free speech. I, along with Graeme Campbell and Jim Snow, opposed the bill in the Labor caucus on the basis that it was as likely to incite ill feeling between racial groups as stop it.

The provisions make it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race, colour or national or ethnic origin if it is reasonably likely in all the circumstances to offend.

Fortunately, there are partial protections for free speech under the act, where "done reasonably and in good faith", someone can make public statements likely to offend in the course of, for example, 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.

These are the matters being tested in the Bolt case.

The most malleable part of the provision is to define what is "reasonably likely to offend, insult, humiliate or intimidate".

According to the HREOC, the victim's perspective is the measure of whether an act is likely to offend, insult, humiliate or intimidate. For example, if derogatory comments are made against Aborigines, the central question is whether those comments are likely to offend or intimidate an Aboriginal person or group. It is a very subjective test.

Granted, the victim's response to the words or image must be reasonable.

The "reasonable victim" test states that the victim "should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of relations among racial groups". The test allows the standards of the "dominant class" to be challenged by ensuring cultural sensitivity when deciding the types of comments that are considered offensive.

Almost certainly those who are politically active in ethnic or Aboriginal politics, such as Behrendt, are those who would be most sensitive to racial insults. Moreover, HREOC's role is to make people aware of their rights under the act, which may well make them more sensitive to insults.

It seems that HREOC has a conflict. It administers an act, the heart of which is reliance on sensitivity, the job of which may make people more sensitive.

Defamation laws have been available to "victims" for a very long time as a remedy for outrageous slurs. Apparently, the defamation laws were too insensitive.

What lies in people's hearts can be changed, but is it more educative or less educative to prosecute speech? Is racial hatred more or less likely in an overly sensitive electorate?

Following the Bolt case, it may be time to revisit public racial vilification and the role of HREOC.