Do people have the right to be bigots? Free speech and racial discrimination in Australia

I am currently exploring the complexities of Identity Politics in contemporary Australia with a particular focus on Indigenous Identity and I am doing this through looking on two Indigenous Australians who have written on this topic: the writer and campaigner, Anita Heiss and the journalist Stan Grant.

In March, 2014 the Federal Attorney-General, Senator George Brandis said “People do have a right to be bigots. In a free country people do have rights to say things that other people find offensive or insulting or bigoted.”

This arose in a discussion in the Senate over sections to the Racial Discrimination Act (1975) and in particular in reference Sections 18C “Offensive behaviour because of race, colour or national or ethnic origin”  and 18D   “ Exemptions” (see these extracts at the end)

Photograph of Anita Heiss by Amanda James. Source:    
 /* Style Definitions */
	{mso-style-name:"Table Normal";
	mso-padding-alt:0cm 5.4pt 0cm 5.4pt;

Photograph of Anita Heiss by Amanda James.

Senator Brandis was making reference to a particular Racial Discrimination case in 2009. Andrew Bolt a conservative columnist for the Murdoch Press, wrote two articles headlined ‘Its hip to be black’ and ‘White Fellas in the black’. His overall claim was that many people falsely claimed an Indigenous background and then used this to bolster their own careers.

 The general tone of Bolt’s article, in which he challenged the professional reputations of many, can be seen in what he said about Anita Heiss These extracts came from Anita’s book “Am I Black enough for you?”:

Heiss’s father was Austrian, and her mother only part-Aboriginal. What’s more, she was raised in Sydney and educated at Saint Claire’s (sic) Catholic College. She too could identify as a member of more than one race, if joining up to any was at all important.

As it happens her decision to identify as Aboriginal, joining four other ‘Austrian Aborigines’ she knows was lucky, given how it’s helped her career.

The deceit begins with Bolt stating that Anita’s mother was ‘only’ part-Aboriginal whereas her mother’s experiences are those of the majority of urban Aboriginal people. In fact Anita’s maternal grandmother was one of the “Stolen Generation’, being taken, with her sister, from her family in 1910 and spending time up to 18 in control of Welfare and in Institutions - the Cootamundra Domestic Training Home for Aboriginal Girls and the Home of the Good Shepherd in Sydney.

Anita’s mother, Elsie, was born on Erambie Mission in Cowra, where she also lived under the Aborigines Protection Act. At seventeen she moved to Sydney and lived with her aunt in Redfern, the inner city centre of Aboriginal life.

The second deceit of Bolt was the claim that Anita got jobs in preference to others because of this Aboriginal identity. (The term “Austrian Aborigines” was not hers but that of a journalist). In fact she got jobs because of her qualifications and experience, including her own experiences of discrimination, direct connections with a wide range of Indigenous family members and life experiences; her writing career is due solely to her own abilities (including a PH D) and these life experiences.

The Judge’s decision that Freedom of speech provision did not apply had to do with was to do with the careless way Andrew Bolt had written. In the summary of the judgement the judge said he took into account “… the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.”

In fact the falsehoods perpetrated and the implications of corrupt behaviour could form a basis for a case of libel.


Section 18 (D) Exemptions
Section 18 (C) 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.

Andrew Keese

Web designer, web developer and online marketing consultant. Co-owner of Silver Vine, a web design agency located in Melbourne and specialising in Squarespace.