In his piece about identity politics, Mr Kelly wrote about the reaction to the Four Corners program about the abuse of young aboriginals in detention in the Northern Territory.   Mr Kelly said that the media had been reluctant

….to mention, let alone canvas, the underlying causes – the breakdown of the indigenous social and family order through a range of issues including family dislocation, neglect, violence, parental abuse and drunkenness.

Mr Kelly referred to a commentator who referred to ‘the politically correct ‘selective outrage’ and [who] told the ABC that ‘Blackfellas’ had ‘to take responsibility for their own children,’ and another indigenous commentator who told the newspaper that ‘this was primarily about children who had been failed by their families rather than race’.  Mr Kelly said that ‘then an honest debate had been sanctioned.’

Australia, once famous for its straight talking, seems a frightened country.

Why were the alleged failures of parents of black children relevant to a story about revealed cruelty and mistreatment by government of the products of those failures?  We are again talking at a very general level but how does the suggestion that children have been let down by their parents bear on the actual mistreatment shown in the program?  I don’t get the point.  Are we, God-like, apportioning some kind of universal blame?  I don’t know.

Perhaps the problem comes from the author’s reference to ‘the underlying causes’ – causes of what?  The mistreatment of aboriginals in detention, which was the subject of Four Corners, or the miserable condition of blackfellas at large?  If the latter, how do you avoid going back to 1788?

The cartoonist, Bill Leak, had a cartoon depicting three figures in the outback.  A Northern Territory copper holds a kid by the scruff of the neck before his father.  Both blackfellas are depicted as ugly – some would say Neanderthal – and in bare feet.  Dad holds a can of beer.   The copper says: ‘You’ll have to sit down and talk to your son about personal responsibility.’  Dad replies: ‘Yeah, right, what’s his name then?’

 

What that cartoon means to you will probably vary on where you come from.  It will mean some things to some white people and some other things to some coloured people.  What it suggests to me is that blackfellas are drop-out drunks incapable of being responsible for their children.  On that meaning, the cartoon is plainly racist, since it denigrates a people by reference to their race.  I find it hard to see how you could avoid saying the cartoon is tasteless and, yes, offensive.  How would you like it if someone said that about you?

 

Mr Kelly has a very different and very clear view.  He says that Mr Leak has made clear the purpose of the cartoon.

… If you think things are pretty crook for children in the Don Dale Youth Detention Centre, you should have a look at the homes they came from.  It wasn’t hard to get.  But the fascinating thing about Leak’s piece was the feedback he got that people couldn’t understand his cartoon.

That’s right, they didn’t get it – surely a victory for a politically correct, dumbed down education system and the spread of identity politics culture where such images turn the brain into a non—functioning, non—computing defence mechanism.

Well, if that was Mr Leak’s purpose, he failed to make it clear to me.  And what does it add to the Four Corners story to say that the victims of the government were worse victims of their own upbringing.  How is that allegation relevant?  Well, it might be relevant if you are trying to spread responsibility for the unhappy fate of these people.  ‘Responsibility’ is the dominant word in the cartoon; Mr Leak omits it from his description of his purpose; Mr Kelly says that the cartoon depicts an ‘irresponsible indigenous father who couldn’t recall the name of his son.’

The real problem with the cartoon is that it can have no relevance to the news story unless the shoddy beer-can-bearing black father is said to be typical of blackfellas – and on no view is any such proposition attractive.  And the problem for Mr Kelly is that his inability to see how other people might react differently to the cartoon reveals that he is used to speaking to the true believers who are happy to share the same bubble.

Mr Kelly then offers himself some gratuitous legal advice, saying of s.18C that ‘on racial issues, the test is subjective – whether the individual is offended.’  Mr Kelly wants a reference to ‘community values’.  If it is the law that a person can succeed under this statute simply by saying that ‘I personally am offended – at being described as of Scottish descent when I’m really Irish – even though no reasonable member of the community in my place would be offended’, then I agree with Mr Kelly that the law needs some attention.  But I very much doubt whether that is the law.

 

As it seems to me, at the core of people’s worries about this statute, is the fear that ‘offensive’ is too plastic or personal or variable to be safely made the criterion of a law.  People think that the law should be made of sterner, clearer stuff.  They fear that it will be too hard to draw the line.  People might then be inhibited in what they say – the law may have ‘a chilling effect’.

 

The answer is that exactly these kinds of issues arise a lot of the time in all areas of our law without giving rise to the suggestion that as a result the relevant law should be abolished.  So much of our law is founded on moral questions of degree or issues of current standards or practice.  Was he honest?  Was she careful?  Did he break his word?  Did she intend to be legally bound?  Did he mislead her?  Did she lie to him?  Would what he said make others think less of her?  Did he mean to hurt her when he said that?  Was she offended by that remark?  What did he mean when he said that?  In that meaning, was it true?  Was it fair comment?  Will he get a fair hearing?  Will my renovation annoy my neighbour?  Will it be bad for the amenity of the area?  Was her purpose proper?  Was he acting with a good conscience?  On a bad day, a judge might ask you whether you have come to court with clean hands.  (That is the very wording of the law.)

 

Dealing with the issue of whether conduct is offensive in a legal sense is neither harder nor easier than any of those questions of degree that have either a moral base or that relate to conduct in the community at large – if you like, community values.

 

And of course there will be laws against offensive behaviour – such as a depraved professional man ogling or pawing schoolgirls on a tram; or a jilted suitor standing outside a church shouting that the bride is a slut and that her mum is worse; or a bystander abusing veterans in an Anzac Day march as war criminals; or a drunken blackfella bursting into the best pub in Kununurra and throwing up in front of a busload of Japanese senior citizens.  We have laws to allow police to intervene in such behaviour because in our opinion, it would be uncivilised for any of our citizens to be exposed to the hurt caused by that kind of offensiveness without protection from their government.

 

The other reason for these laws is related to the first – these kinds of offensiveness constitute a breach of the peace in themselves, and they are likely to lead to worse breaches of the peace if people ae left to help themselves.

 

And, yes, these laws could be abused, and they were abused by the police in the past before compliant magistrates, but the answer is to control the abuse, and not to abolish the law.  All this seems obvious.  Do those who want to abolish s 18C – Mr Kelly is not one of them – want to exclude behaviour that offends on the grounds of race – when that kind of offence is likely to be the most wounding and also the most likely to start a fight?

 

And, yes, laws against offensive language or behaviour do have an inhibiting effect – or, if you prefer, a chilling effect – on the way people behave.  Most laws are made for precisely that purpose.

 

Finally, where and when was the Golden Age of Mr Kelly’s ‘old Australian character’ when the nation was ‘famous for its straight talking’?  Assuming that Mr Kelly is not talking of the time of the White Australia Policy, when did we use to talk straight, and when did we stop?

 

If Mr Kelly is talking of times before laws were made against offensive language or behaviour, he will have to go back before the First Fleet to seek his Arcadia.

 

Poet of the month: Kenneth Slessor

Waters – Part I

This Water, like a sky that no one uses,

Air turned to stone, written by stars and birds

No longer, but with clouds of crystal swimming,

I’ll not forget, nor men can lose, though words

Dissolve with music, gradually dimming.

So let them die; whatever the mind loses,

Water remains, cables and bells remain,

Night comes, the sailors burn their riding-lamps,

And strangers, pitching on our graves their camps,

Will break through branches to the surf again.