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    In Australia, Elizabeth Warren would still be 1/32 Cherokee

    In Australia, Elizabeth Warren would still be 1/32 Cherokee

    Huh? you say.  Pay attention, you’ll get an education like I just did.

    Andrew Bolt of the Herald Sun in Australia  linked to one of my Elizabeth Warren posts in his post titled, Cherokee no more.  The following sentences at the end of his post jumped out at me:

    I would like to discuss certain Australian analogies, but lawyers advise me the risks are now unacceptably high.

    Such are our disgraceful laws against free speech.

    What was that all about?

    Here’s what:

    Herald Sun columnist Andrew Bolt says a Federal Court judgment against him makes it a terrible day for free speech in Australia.

    Federal Court Justice Mordecai Bromberg has found Bolt breached the Racial Discrimination Act in two articles which implied some fair-skinned Aborignals were not really Aboriginal but claimed to be for the benefits.

    Federal Court Justice Mordecai Bromberg said it wasn’t covered by free speech or fair comment provisions because the articles had factual errors, distortions of the truth and inflammatory language.

    Outside court, Bolt said the judgment placed too many restrictions on the discussion of multi-cultural issues.

    The group of fair-skinned Aboriginal people who’ve won the Federal Court action against Bolt say they don’t expect the Herald Sun columnist to apologise for breaching the laws.

    Here are the provisions of the law in question:

    “(1)  It is unlawful for a person to do an act, otherwise than in private, if:

    (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

    (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

    One of Bolt’s colleagues noted the irony of the social media mob celebrating:

    The cesspool of hate that threatens to engulf most social media was at its vociferous worst when commenting on the Federal Court ruling that my colleague, Andrew Bolt, had violated Australia’s racial discrimination laws.

    Violent, obscene language that cannot be printed in a family newspaper was employed against Bolt by people who hide behind anonymous avatars.

    Serial Twitter offender and former Age columnist Catherine Deveny wrote: “The boys in the big house are going to love #Bolt. He has such a pretty mouth.”

    The Twitterati voiced delight as well: “Great victory against Andrew Bolt, hope one day he will be removed from radio and TV”.

    One tweet said: “now for Alan Jones”.

    The irony, of course, is that the chortlers are so stupid that they don’t realise they are next.

    The Federal Court has shown us that the Racial Discrimination Act can be used to silence unfashionable opinion.

    We are heading there, folks.  One can’t have a discussion about gay marriage without supporters of one man / one woman — the standard which has been in place for millenia, being accused of hate speech.  People who question climate change dogma are accused of hate speech.  Everything with which the left-wing disagrees now is hate speech.

    But we’re not Australia yet.

    In Australia, Elizabeth Warren would still be 1/32 Cherokee.  In the land of the free, she’s just someone who claimed to be Native American for benefits.

    Update: Victor Davis Hanson, Diversitygate:

    I guess some of us are on a different planet, because both Warren and Harvard University seem to have been unethical at best and unlawful at worst — if she or anyone from the Law School (no less!) signed forms or affidavits attesting to Warren’s Native American status in accordance with federal affirmative action/diversity guidelines.

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    Comments



     
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    Alex Bensky | May 15, 2012 at 6:46 pm

    Professor Jacobson, I have read about some Muslim and anti-Israel speeches and activities in Australia regarding Israel in particular and “Zionists,” as well as “Jew.” Seems to me this rhetoric is clearly intended to insult Jews and Israelis.

    So please link us to cases that impose the same standards on Muslims and anti-Israel people as imposed on Mr. Bolt.

    That bit about insulating people from “insult.” I am reminded of Groucho’s line in one of the Marx Brothers movies when a woman tells him, “I’ve never been so insulted in my life.” “Well,” Groucho replies, “it’s early yet.”

    Especially given that the left’s approach is pretty much that if a Matsuda Doctrine minority feels insulted, he is insulted, banning “insulting” basically suppresses free speech.

    That’s the idea, of course.


       
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      BannedbytheGuardian in reply to Alex Bensky. | May 15, 2012 at 10:16 pm

      In that case they can try their luck in the courts. The standards might or might not be be different if they are not a person of influence.

      Andrew Bolt is a serial talking head . I think he was the one that made me quit Sunday morning politics talkshows years ago .

      But if Andrew feels so strongly about things he should get himself elected to Parliment. There he would be protected by Parliamentary Privilege whereby you can say absolutely anything . You are immune from prosecution. .

      He could be parachuted into a safe seat -but then again -if he won -he would have to actually do some legislative stuff. Commenting /critic is so much easier.

      The ball is in his court.


         
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        brett_mcs in reply to BannedbytheGuardian. | May 15, 2012 at 10:52 pm

        Seems to me he has a lot more influence exactly where he is. Certainly more than the average polly.


           
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          BannedbytheGuardian in reply to brett_mcs. | May 16, 2012 at 1:22 am

          Not at all . If he was to win a seat then he could be a Minister if his party chose him.

          Ministers in the Westminster system have more power than pundits. (obviously )


         
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        Matthew Of Canberra in reply to BannedbytheGuardian. | May 16, 2012 at 7:11 am

        Andrew bolt in politics? Not a chance.

        He’s a classic talkback character – he has to control the microphone, and does not cope with not being the one asking the questions. Put him in a situation where people could actually answer back or cross-examine him and his routine would fall apart.

        I also suspect that it would be a pay cut, AND he’d have to turn up at public events and come face to face with the (fairly massive number of) people who can’t stand him. He wouldn’t be able to edit his statements first and run them past lawyers, he’d have to declare his interests and – here’s the worst bit – he’d actually be accountable to people.

        Oh, and once he’s in office, his personal affairs become a matter of public interest. It’d be a feeding frenzy. Every journalists who’s been held at bay by the herald sun layers would be off the leash and going through his rubbish bins.

        I think he’d rather remove his own liver with a spoon than run for office.


           
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          Cynicmonster in reply to Matthew Of Canberra. | May 16, 2012 at 10:33 am

          I’m guessing you don’t like Andrew Bolt…


             
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            Matthew Of Canberra in reply to Cynicmonster. | May 16, 2012 at 6:44 pm

            “I’m guessing you don’t like Andrew Bolt…”

            It’s not really that simple. I’ve never met the guy, and I don’t really know if I’d like him if I met him at, say, a BBQ. I’ve had a few email interactions, and on a personal level he seems like a decent enough sort of chap. Despite a few online spats, he’s never done anything to me to justify any serious, lasting personal animosity on my part. I still say he was extremely wrong about one thing he said about me, though. I’d be happy to see an acknowledgement of that. But I think I’ve razzed him enough about it that I’ll let it slide.

            I do have a beef with his approach to journalism, though. I dislike what he DOES, absolutely. I think he measurably lowers the intelligence and tone of political debate, and manages to misinform vast numbers of people about basic facts. But I don’t think it’s personal.


       
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      Matthew Of Canberra in reply to Alex Bensky. | May 16, 2012 at 6:59 am

      Alex Bensky –

      Probably the two most important cases have involved fred tobin, who was sent to the clink for redusing to take down some anti-semitic propaganda from his web site, and brendon o’connell, who was recently jailed in western australia for a number of things that he did, including some (alleged – I didn’t see all of it) nasty vilification and harrassment of jewish groups and individuals. He was prosecuted under hate speech law. My impression from his youtube videos was that he’s not an extremely nice fellow.

      Also, check out the “catch the fire ministries” case, where some muslims who were invited to an event where pastor danny nalliah was speaking took umbrage at some of the things he said (which is perfectly normal for any rational person – the guy’s a berk) and tried to sue under racial discrimination law … and failed (on appeal, it should be said)

      There was another case recently where an israeli dance troupe found themselves at odds with the organisers of a victorian folk dancing event – allegedly, the organiser insisted they call themselves a “jewish” group, and allegedly made an odd comment about not being responsible for the consequences if they didn’t. When they resisted, they were dropped from the program. Mediation involving the VHREOC led to an apology from the organiser(s?). (I’m wary of this one, because there hasn’t been a lot of objective coverage, and I still think there’s something odd about this story).

      And the first person charged under WA’s new racial vilification laws, in 2006, was a 14 year old aboriginal girl who called a 19 year old caucasian girl a “white s$%@”. I didn’t follow that one, so I can’t tell you how it worked out. The offense took place in kalgoorlie.

      WA’s laws seem to be the harshest, but they were written in the context of a history of nationalist groups who were causing trouble (again) around the time.

      So no, it doesn’t all go the way of aborigines.


         
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        Matthew Of Canberra in reply to Matthew Of Canberra. | May 16, 2012 at 7:01 am

        I should clarify – toben’s “antisemitic propaganda” was actually some material questioning the holocaust. The two things aren’t necessarily the same … the just seem to go together an awful lot.

        Matthew, you talk about the cases, but it sounds like you don’t really understand many of the cases you refer to, especially in WA (still you easterners seem to regard WA as some sort of fantasy land that doesn’t really exist, except as a source of money).

        The “Catch the Fire” case was a prosecution under Victoria’s laws, not the Federal law used against Andrew Bolt. Furthermore the Muslims weren’t “invited” but rather showed up looking for offence. The judgement against Nullah was that he got his audience to laugh at some passages of the Koran! Any atheists who post on the net laughing at Creationism had better watchout, or does this law only cover certain “minority religions” (in which case why not Pentecostal churches like “Catch the Fire” which are not really mainstream Churches).

        Regarding that WA case. The “nationalist groups” weren’t “re-emerging” as such. Rather that Jack Van Tongren (of Dutch and Indonesian extraction) who’d be jailed for his part in firebombings of Chinese restaurants in the 80’s was released from prison, and was soon re-arrested, in 2005. So we’re really talking about one man, and a couple of associates! As for the Aboriginal girl who was charged (she screamed racial abuse at a girl as she assulted her apparently), yes, you clearly didn’t follow that case. The then Attorney General, Jim McGinty (who was behind the law) came out and condemned the authorities for charging that girl, publicly stated that it was not meant to cover such acts (i.e. it did not cover Aboriginals racially vilifying others – or whites couldn’t be racially vilified in his view) and moved to change the act to ensure no such prosecution could happen! Tell me again that “doesn’t all go the way of aborigines”! A bit of an own goal there Matthew!

    […] to Native American ancestry. Michael Patrick Leahy at Breitbart.com and William A. Jacobson at Legal Insurrection, two of my favorites web sites and bloggers, have done an outstanding job of digging into the […]


     
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    BannedbytheGuardian | May 15, 2012 at 9:57 pm

    I read this & went to the gym & had a think.

    Unfortunately Prof is wrong on this comparison.

    It is not a crime in Australia to claim Indigenous status socially. It is fraud to claim ‘Aboriginal & Torres Strait Islander ‘ status for government benefits.

    98% of universities in Australia are state run & funded (+ student fees ). Therefore Elizabeth could not claim Indigenous status . !/32 would not cut it for some pretty good documentation is required.

    One note of difference in the pre Australia 7 colonies was that a portion of white blood pushed you off the reservation literally . You were not Quadroon /octaroon -you were white. Up untill 1960 officials took any children away from aboriginal mothers that were fathered by whites to be assimilated .

    This resulted in The Lost Generation where many people did not know they were part aboriginal until they were notified. The embryonic organisation collecting the data was officed on the next block . i talked with them on my way to the shops regularly in the mid 1980s & got lots of news & updates.

    Andrew bolt has the old view that any drop of white means you are not indigenous. His error was to attack people based on colour . Australian Aboriginals are not African & indeed can have the cutest blonde kids . Their genetic line is unique. I know several 1/2 aboriginal who are fairer than myself .

    The Australian government officially apologised in 2007 for breaking up indigenous families due to a child’s white heritage. This is a fact Andrew cannot undo.

    The law in case was introduced in 1975 & has rarely gone to this level. It has to be an outrageous attack & Andrew’s was.

    He judged a whole rash of persons wholly by their colour .

    Sorry but Andrew messed up bad .


       
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      brett_mcs in reply to BannedbytheGuardian. | May 15, 2012 at 10:49 pm

      “…breaking up indigenous families due to a child’s white heritage” being “raised” by an alcoholic mother who uses petrol soaked rags to keep it quiet.

      There was nothing to apologise for and the Labor party’s ‘apology’ was a meaningless stunt.


         
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        BannedbytheGuardian in reply to brett_mcs. | May 16, 2012 at 1:27 am

        It was not the Labor Party’s apology it was as The Australian Government on behalf of the Australian people. It was clearly a platform in their recent election which they won overwhelmingly.

        Since when is a Government not a Government -when you say it is not ?

      “Banned” you really need to do a bit more real research and a bit less time “thinking” whilst you’re at the gym, or “talking” to some people back in the ’80’s. The Law under which the case against Andrew Bolt was based is not the 1975 Racial Discrimination Act. It is an “anti-hate speech” law inacted by the then Attorney General Michael Lavarch (who happens to be the partner of one of the plantiffs) in the mid-1990’s!

      Most Australian Aboriginals are at least “part white”, so to claim that ALL who had a “white father” were taken “away from aboriginal mothers that were fathered by whites to be assimilated” sounds like heavy exaggeration. One of my best frends in primary school was an adoptive aboriginal child, but he was born in the ’70’s – long after your 1960 cut off! The “appology” was basically a political move, and it took place in 2008, not 2007. As for this assertion of yours “bolt has the old view that any drop of white means you are not indigenous”, where did you get that from? I read the offending articles. The people concerned don’t have a “single drop” of “white blood”, but have predominately non-aboriginal ancestry. We’re talking grandparents and great-grandparents here. His “point”, such as it was, is that these people would be unlikely to face discrimination in the street based upon there aboriginal heritage because they don’t look aboriginal. Affirmative action programs are set up to compensate for discrimination based upon race, so why are people who are “less likely” to suffer discrimination taking the positions these programs make available? You could say there was an insinuation that people are more likely to indentify as aboriginal to gain such employment when they otherwise may not have so identified. I suspect this was the “offence” the group were really against.

      Other than that, Andrew Bolt is a hate figure amongst much of the cultural left in Australia, which I suspect has led too many to simply celebrate that he’s been silenced on this issue, and not consider the ramifications – surely debating what makes someone aboriginal is a serious and legitimate issue. I should also point out that the Judge concerned is the left wing son of a Communist, and heavily political.


         
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        BannedbytheGuardian in reply to PT. | May 16, 2012 at 2:04 am

        In the 70s there were many children up for adoption – less so after the Whitlam Gov introduced single parent support. That some were Aboriginal is not the issue . At this date it is unlikely he was ‘Stolen ‘- just given up.

        The raids into Aboriginal rural communities had largely ceased by the 60s . The referendum of the early 60s brought indigenous under federal protections. Some states eg Qld & WA were outrageous.

        This Michael Lavarch (Labor ) Hate Speech law you say is 1990s. Ok Bolts side had power 1996-2007 & indeed a rare House & Senate majority for 3 years 04-07 so why did their Attorney General not rescind it at any time ? Because they approved of it . So don’t play the party line here.

        I also think you ought use a capital letter if using “Aboriginal and Torres Strait Islander. Indigenous could be ok small letter. We don’t spell british or american like that do we ?

        Some respect. Even if you don’t think so there still are peoples entitled to a formal adjective or noun. After all it wa the late 1950s when the last f the nomadic Aborigines in SA came in from the desert.

          You’re pretty prescious “Banned”. Need to put in a capital at all times????? Get over yourself. I’m pretty sure you’re only saying to you can accuse me of racism. Some Aboriginal Activists don’t even like the term – they may call themselves “Koori” (although that’s really only a term that applies in some parts of the East Coast – geographical parocialism applies in all communities I guess). For someone who claims to be up on all this, you’re remarkably ignorant. There were “uncontacted tribes coming in from the desert” in the mid 1980’s – and at least one of the members of the 1984 group decided he didn’t like the community, and went back into the bush alone (he’s probably still out there).

          As for your other “points”. There is indeed a big argument as to why the Libs didn’t recind Lavarch’s law when they were in power – I’m pretty sure they opposed it when it went through in the first place. Has it occured to you that no one, not even the ALP in the 1990’s, imagined that the law could be used as it was in that case? The law contains caveits which supposedly let journos and opinion writers (like Andrew Bolt) off if discussing issues of legitmate public importance (and whether Aboriginal programs are appropriately targeted, and who can legitmately claim Aboriginal identity are surely matters of public importance and interest). Perhaps it slipped their mind? Perhaps in the absence of any prosecutions, they thought it was a deadletter law? More probably it was not only so long in the past they forgot, but they were more interested in getting their contentious stuff through, like welfare cuts, the GST and WorkChoices, they decided they didn’t want to be accused of “racism” either. You could say the same thing about the ALP not reverting to pre-1996 HECS rates, the GST and all manner of things Howard did that they apparently hated at the time. BTW, pointing out that the law WASN’T Whitlam’s 1975 Racial Discrimination Act, but a much more recent Michael Lavarch act is hardly promoting a “Party Line”!

          I also don’t see the point of your comment “That some were Aboriginal is not the issue”. Why would you think that anyone prior to the 1960’s wasn’t “given up”? My friend (won’t mention his name) lived with his white adoptive mother. Why wouldn’t he qualify as “stolen” under your definition? Or do you take the Bolt line that the child had to clearly be taken for purely racist reasons?


             
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            Leo Lane in reply to PT. | May 16, 2012 at 4:33 am

            The Liberals had quite enough to do , BbtG, in dealing with the economic mess that Labor left when Keating, the world’s worst Treasurer until Swan, went out of office leaving a deficit of $90 bn.

            The current leader of the Opposition has pledged to repeal the law when he is returned to office.

            Labor has also provided in their Fair Work Act, for an employer in an action by an employee, to be deemed guilty until proven innocent.

            The current Labor Attorney General was unaware of the provision until she made a fool of herself publicly, and was put right, so do not be too hard on the Liberals for not knowing every piece of scurrilous legislation which Labor has passed. Labor members do not know it themselves, even if they are a lawyer and occupy the post of Attorney General.


             
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            BannedbytheGuardian in reply to PT. | May 16, 2012 at 6:43 am

            To Leo Lane.

            Australia’s financial reforms under paul Keating are what allowed it to not collapse in the GFC. They alsp pulled in the powers of the unions It did not become The banana republic then or now.

            $90 billion ? Tell that to the Americans with their 16 trillion . LOL. It was Keating intro of Superannuation which gave Australia a buffer .So many aspects of todays wealth are directly from 1990 -96. management. The full interview is up on the ABC website.

            As to Wayne Swan -did you see the ex Treasury Secretary on the 7.30 report . He was very positive about the Rudd governments financial .

            I don’t deal in the future . Just now & the past is enough.


             
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            PT in reply to PT. | May 18, 2012 at 4:06 am

            “Banned” the “reforms” you speak of didn’t occur from 1990-96 (Keating took over as PM at the very end of 1991 BTW). The main reforms took place in the mid-80’s when Bob Hawke was Prime Minister. The floating of the currency; the deregulation of financial markets; even the beginning of privatisation (although how much that had to do with “pulling through” the GFC is surely debateable). Name one thing that that Keating did AFTER he became PM that was a huge reform that helped the economy through the late crisis! Most of the big stuff for which he is credited took place when he had Hawke to hide behind (they were also attacked by the left as being “Thatcherite”). He didn’t curtail Union power either. They got the ACTU to sign up for “The Accord” which effectively kept wage rises below the CPI Rate! The trade off was that the national secretary, Bill Kelty, got a seat on the Board of the Reserve Bank! Or are you referring to the attacks on unions, such as the notorious Robe River dispute? They didn’t change the laws to allow that – that was “private action” by certain companies and activist groups like the HR Nicholls Society. The Government actually tut tutted about “how bad” it was – of course they didn’t lift a finger to help their “union brothers”, is that what you really mean? As for Ken Henry: isn’t he the man who design magic taxes? A tax which can massively increase the tax burden on a particular industry, but this tax makes it grow faster? Perhaps Obama should get him to go to Washington and set up a tax on the Auto industry! It’s sure to boom, and end the deficit! Detriot would become a boom town! This man claimed the government could tax 80% to 90% of mining profits and have no effect on investment levels! So no, I’m not surprised that he didn’t criticise the “cash splash” stimulus – particularly since he was intimately involved in drawing it up in the first place! What’s he going to say? Yes, I needlessly flushed 10’s of billions down the toilet? He actually admitted much of the money was wasted, he just tried to say it “wasn’t important”!

            Anyway, the point that the former government had more on it’s mind than repealing or amending Lavarch’s Racial Villification law stands. The current Government hasn’t repealed the GST, even though they campaigned against it when it came in. They didn’t repeal the changes to Hecs, or a whole legion of things that Howard did they said they opposed. Does that mean it had bi-partisan support?

          Looking again as our post “Banned”, I really have to take issue with this paragraph:

          “This Michael Lavarch (Labor ) Hate Speech law you say is 1990s. Ok Bolts side had power 1996-2007 & indeed a rare House & Senate majority for 3 years 04-07 so why did their Attorney General not rescind it at any time ? Because they approved of it . So don’t play the party line here.”

          It isn’t “I say”. Lavarch became Attorney General in 1993. Keating was voted out an real landslide (much greater than the ALP’s win in 2007 which was about the same as Howard’s win in 2004) in 1996. It was definitely Lavarch’s law. He was interviewed a number of times about the case, and claimed his law was “about right” since Andrew Bolt could still write and Alan Jones could still broadcast! Of course this was the first legal test of the law, certainly in these circumstances. Why do you feel it necessary to claim that “I say” it was in the 1990’s? The law was clearly Lavarch’s work, and he was only Attorney General in the mid-1990’s. Yet you claim to educated and informed on these issues! BTW I actually left party politics out of this. I didn’t say it was a “Labor law” that was invoked, and stating it was Lavarch who introduced it, I thought I was clearly indicating that it was some 20 years more recent that you thought it was. Hope you’re better on your other facts.


         
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        poochymumma in reply to PT. | May 16, 2012 at 2:27 am

        Andrew Bolt just didn’t dare to question someone’s heritage.

        He used his high profile and wide spanning reach to make untrue and derogatory comments about these people, wholly based on the colour of their skin and their apparent lack of Aboriginal heritage.

        For example, let’s take a look at Anita Heiss (A Witness in Eatock v Bolt)who has an Aboriginal mother and Austrian father. Anita was raised in an Aboriginal community by her mother, maternal grandmother, maternal aunty (all of which are of Aboriginal descent) and father (whom did not introduce any Austrian heritage into their family’s upbringing). Anita has five siblings (all with the same parents) three are brown skinned and two are fair skinned.

        With these facts in mind, Andrew Bolt attacks her publicly accusing Anita of ‘making the decision ‘to identify as Aboriginal for professional gain…. all based on his justification that her fair skin and apparent lack of Indigenous heritage. Now apply her upbringing and skin colour of her siblings… and go figure.

        Andre Bolt got it completely wrong. He used his power and his articulate and manipulative way with words to make what seemed like a fair argument. It’s just a pity for him that there were so many factual errors found in his articles, which at the end of the day meant he really didn’t have a proper argument against fair skinned aborigines.

        Take a look at the case for yourself:
        http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html


         
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        BannedbytheGuardian in reply to PT. | May 16, 2012 at 4:57 am

        Section 18c of The racial discrimination Act 1975. Is what the Australian media & bloggers & “Maws ” above are saying is the law in question.

        Yours is the only reference to Lavarch’s 1990s law . Or was it an amendment ?

        Either way -long time law in a fairly recent social development. I did not write the law -mate. Don’t blame me.

          It was definitely Lavarch’s Racial vilification law. As I pointed out to you “Banned” he was interviewed on the subject. The man wasn’t even in Parliament in 1975, so why on earth would they interview him about the Racial Discrimination Act (which is about racial discrimination BTW, not about making it “illegal” to say “racist things”). As for it being an “old law”, there is a difference between a law that’s 15 years old, and hasn’t really been tested, and a law that’s 35 years old is there not? Why don’t you do some basic research on this case? You are quite ready to decry our ignorance of it.


       
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      Maws in reply to BannedbytheGuardian. | May 15, 2012 at 11:04 pm

      “Up untill 1960 officials took any children away from aboriginal mothers that were fathered by whites to be assimilated .”
      Kindly provide proof of this.
      By the way, just because Lefties wanted to feel good by apologising for this, doesn’t mean this actually happened.

      “Andrew bolt has the old view that any drop of white means you are not indigenous. His error was to attack people based on colour ”
      If you had bothered to read the article in question (which is now illegal in Australia) Bolt did not “attack” people based on their colour. He questioned whether these people were in fact the people who most needed Government assistance.


         
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        BannedbytheGuardian in reply to Maws. | May 16, 2012 at 2:11 am

        The other side of the equation is The Federal Intervention. No way that could be done on the non Indigenous population.

        Under Federal Law & under Left & Right Federal governments -Indigenous have special status.

        The Australian people have not rescinded these powers -nor has it been on any election platfom.

          “Banned”, yes Aboriginals do have “special status”, but not the way you make out. The Constitution states that if it is deemed necessary to make laws for a specific race of people, it is the Federal Government (and the Feds alone) which has the power to make such laws. Prior to 1967 Aboriginals were excluded from this, leaving the States with the authority to make laws specific for Aboriginals.

          As for the intervention. Constitutionally there is no reason why this couldn’t have been done with another group. If Tenant Creek (also in the Northern Territory) had widespread violence, the Feds could send in the Army. Canberra has authority over the NT (and the ACT) in a way they don’t over the States. The Constitution also allows the Feds to pass laws against other “races”. They could pass a law, for example, requiring all those of predominately Irish decent to wear green or orange! Or more likely, they could pass a law allowing polygamy for Middle Eastern Muslims, whilst banning it for everyone else! Even those campaigning to supposedly remove this “racism” from the Constitution still want the Feds to be able to make “race based laws” – they just want the laws “restricted” to being “in favour of” the race concerned. This is actually a result of the “Intervention” where that section of the Constitution invalidated their litigation. But they seem to forget that the intervention could easily be claimed to be “in favour” of Aboriginals in that it was about protecting Aboriginal women and children from widespread violence. Whether something is “in favour” of a race or not is often in the eye of the beholder! Even your “child stealing” scenarios could be sold as a “benefit” and thus be legal
          !


             
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            BannedbytheGuardian in reply to PT. | May 16, 2012 at 5:05 am

            So you agree. The Australian people are ok with Parliament having these powers. They are & have been ok with The racial Discrimination Act 1975.

            Again they can change the Constitution at any time with a referendum. What is the number -3 times in 100 years or such. One being against the banning of The Communist Party & the other the transfer of authority re Aboriginals .


             
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            PT in reply to PT. | May 16, 2012 at 5:26 am

            “Banned” are you deliberately being obtuse, or do you simply have difficulty in understanding? The Constitution gives the Feds the right to pass special laws for any and all races, and only the Feds (i.e. the State’s can’t do so). It doesn’t single out the Aboriginals any more. It used to, but only to the extent of leaving it to the States to enact any special laws for Aboriginals (and the old chestnut the census issue, which was about the apportion of seats in Parliament, not this “flora and fauna” stuff).

            Also this is plain stupid and ignorant: “What is the number -3 times in 100 years or such. One being against the banning of The Communist Party & the other the transfer of authority re Aboriginals”. The Communist Party referendum actually DIDN’T change the Constitution. The Constitution didn’t give the Feds the right to ban political parties (outside of emergency wartime powers anyway), and the Government of the day wanted the power. There have been 6 successful Constitutional amendments. There was the Chifley Government’s extention of Federal Power over social services (the only one carried without bi-partisan support). The Casual Senate Vacancy amendment of 1977. Several on State Debts over the years. The retirement of Judges (also 1977) and the giving citizens in the Territories the right to vote in Constitutional referenda. There were actually two YES votes for Aboriginals in 1967. One in transferring the powers, and the other to remove the exclusion on counting them in the census. It’s odd that you actually quoted a NO vote as a successful referendum.

            None of this has any baring on the point of issue BTW.


             
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            BannedbytheGuardian in reply to PT. | May 16, 2012 at 7:02 am

            So Australians can & have changed the Constitution.

            What LI readers do not understand is that most things are left to the Parliament & Judiciary of the day to decide. For example there is no Bill of rights.

            Each & every thing bar the base constitution is in the hands of the people.

            (I once found a foreigner probably looking for amnesty trying to locate The australian Bill of Rights at the National Library. I was happy to tell her -don’t bother . There ain’t any.

            BTW are you Andrew’s love interest ?


             
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            PT in reply to PT. | May 18, 2012 at 2:18 am

            Accusing me of “Bolt’s love interest” is pretty foul “Banned” and says at lot more about you than me. I actually disagree with him on a number of issues, and disagree with him on some points of the particular articles as well! Besides, what does that have to do with the issue? It seems that you (and possibly Matthew) are happy with the judgement because you can now claim that Andrew Bolt is “officially racist” and that he is now constrained in what he can say. That is very far from the Voltaire position. The “tone” and “reading between the lines” comments by Bromberg should also be of concern. “Reading between the lines” is often another word for “projection” and “prejudice”. Bromberg decides that whilst Bolt’s words say one thing, he knows he means THIS! He might have been right in this instance (only Andrew Bolt himself can say for sure), but can you not see the precidence this sets? It’s hardly the blood libel type posters that used to be put up about Jews.

            You’re quite right about the “Bill of Rights” stuff – an over-rated concept IMHO, although I would imagine the original English Bill of Rights still has legal force here. But the reason for not having it is that rights ultimately depend upon the vigilance of the population in ensuring that rights are maintained over time. Certainly the US Bill of Rights didn’t protect these rights with respect to black citizens in the Jim Crow era.


         
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        Matthew Of Canberra in reply to Maws. | May 16, 2012 at 6:26 am

        None of those articles are “illegal” in australia. They are all still online. They DO have a disclaimer at the top saying they were the subject of a legal ruling, and spelling out the problems the judge saw with them, but there is nothing stopping anyone from reading those articles until such time as NEWS decides to take them down – which is entirely up to them.

        Just one of many urban legends about that court case.

        Go to the news site and search for “so hip to be black”, “white is the new black” and “white fellas in the black”.

        And yes, I also think those titles are still creepy.


       
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      Cynicmonster in reply to BannedbytheGuardian. | May 15, 2012 at 11:36 pm

      I guess I see things a little differently to you. From what I understand children were not “taken away to be assimilated” simply because of the colour of their skin. Evidence given by the parents of some of the kids show that the parents (usually the mother) asked their child to be taken to remove them from dysfunctional societies (alcohol, abuse, etc.). I am not aware of any concrete evidence showing kids were removed simply because of their skin colour.

      The biggest problem is that this issue can no longer be openly discussed in Oz for fear of offending someone and being dragged throught the courts. No doubt you are aware that this issue is just as contentious within the aboriginal community for very much the same reasons that Andrew raised. However it is ok for an aboriginal to question a person’s heritage without fear of retribution. I am also sure you are aware of Anita Heiss’s latest book “Am I Black Enough For You?” (Anita being someone Andrew named in his article). When this was first published comments were available through both her publishing house and the ABC. Due to the majority of contributors answering her question in the negative, these comments were removed from these sites (although they may still be available on the Amazon site). When asked why they were removed, they claimed the comments were racist, however these forums were moderated. Why weren’t the racist comments removed by the moderators and the rest left? The fact is that while many were critical of her book, none were considered racist. It gives the impression that Anita was offended (or the response wasn’t what she expected) and so the comments removed.

      Andrew’s mistake was to name specific persons, but Oz has defamation laws, so one has to wonder why he wasn’t brought up on these charges if the named persons felt defamed. It seems they weren’t defamed (which would have resulted in a more serious result), but upset that someone dared question their heritage.

      Oh, and no doubt you are well aware that the apology given in 2007 was purely for political purposes. What has changed for the better since this apology was given, besides some people feeling better about themselves…?


         
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        BannedbytheGuardian in reply to Cynicmonster. | May 16, 2012 at 2:25 am

        I don’t know anything about Heiss” book . If she has a problem with her Aboriginal /Torres Strait Islander co -horts then that is between them. The name sounds like something out of a Lutheran Mission. I do not read the ABC.

        Defamation laws are civil & are judged on damage to reputation.

        But cheer up – julian Assange is on Andrew’s side. i seem to recall a lot of pressure on the Australian Attorney General & PM by Hilary clinton to prosecute Assange also. She even made a special visit to Canberra just before it broke.

        Unlike Bolt -Assange had broken not one Australian law. Blondes have all the fun.

          “Defamation laws are civil & are judged on damage to reputation”, precisely “Banned” which is why they used the Lavarch law, as it sets the bar very much lower.

          Pressure on Gillard and Roxon to prosecute Assange? Why? The man wasn’t in Australia, so Gillard had no more ability to prosecute him than the White House did. I do recall Gillard laying into Assange. Also, until he stands trial in Australia, how on earth would you know that “Unlike Bolt -Assange had broken not one Australian law”?

          Read the ABC? You mean the ABC’s website. The ABC is Australia’s public broadcaster, the direct equivalent of the BBC. Are you sure you were in Australia in the 1980’s talking to these groups?

          What does a Luthern mission have to do with it? Do you think Noel Pearson is any less Aboriginal for being a Luthern?

          The issue of Andrew Bolt’s articles is really who should be eligible for academic posts, and art prizes etc, which are specifically set up for Aboriginal people. In the US, blacks used to try to challenge the Jim Crow laws (in the early days at least) by getting someone who was 1/8th black to sit on the “whites carriage”. He looked white, and so they had no problems selling the ticket, or letting him sit there. But when the conductor came round, he’d tell them of his black heritage, and dare the conductor to shift him to the “coloreds carriage”. The point was that such a person was legally discriminated against due to his heritage, but when passing down the street, was not subject to racial harassment from Whites, and likely not subject to racial discrimination unless their “dark secret” was discovered. That was actually the point of the protest! In Australia, people of predominately white European decent, and who would likely not be seen as Aboriginal if they were walking down the street, or going for a job interview, are being given access to programs that are supposed to help people overcome disadvantage and discrimination. Is this right? Is this in keeping with what these programs are supposed to be about? That is surely a real debate that we should be having, and that does surely question whether the plaintiffs in this case are “black enough”.
          As for your assertion that if Andrew Bolt doesn’t like it, then he should enter Parliament, and work to becoming a Cabinet Minister! What can I say. There are protestors objecting to Woodside building an LNG plant at James Price Point (near Broome in the Kimberley). Would you suggest that they shouldn’t protest or picket, and should, instead, enter Parliament, become State Premier, and stop the deal? Are you suggesting those Aboriginal Activists should stop complaining, enter Parliament, and then they could do whatever they though they needed to do? Pompous double standard!


             
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            BannedbytheGuardian in reply to PT. | May 16, 2012 at 4:05 am

            The “Lavarch Hate Law ‘ survived 12 years of the ‘mini conservatives’ in power. So it must have bi partisan supoort. If it is on the statute thn it can be used. The judge -whom somebody here smeared as being a Communist descendant – simply applied it.

            If Andrew wants to change the law his best option is to enter Parliament.

            “reading the ABC -I assumed you were talking about The Drum website which I visited once.As for names – most Aboriginal people under controls were given names. Anita Heiss sounds like her ancestors were from a Lutheran Mission & Noel Pearson from a Qld State Authority & perhaps previously a white cattleman . I have never heard his Koori name-but I shall look into it. I like to give my indigenous countrymen the benefit of the doubt. BTW I can give the address -& you will find the places on Google. I am forgetting the name -I think it was Links.

            I am not discussing the American slave descendants. The topic is Australian indigenous -the better comparison is Indians.

            A decision has been made on the Gas field near Broome. The protesters could pursue it through the courts if they can find a law. So far they have not. There is nothing stopping them from getting on State & Federal ballots. I doubt they would get many votes . However Andrew possibly could if his views are as popular as he says they are. He could challenge Julia Gillard in her seat! Then presto he could be PM !

            Ya got anything else?


             
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            PT in reply to PT. | May 16, 2012 at 5:10 am

            It isn’t a “smear” “Banned”. Pretty sure Mordy’s mother was a Party member. The ABC even had his character boasting about it on their mini-series on the MUA dispute (Bromberg acted for the MUA). He’s certainly left wing.

            Lavarch’s law was opposed by the Opposition at the time. That isn’t the same as saying it had “bi partisan support”. The GST is still there despite the ALP being in power since 2007 – does that mean it had “bi-partisan support”? Given the publicity of the case, there is a fair chance the law may be struck out or amended if and when Abbott becomes PM. The trouble, of course, is that people like you would accuse any government of doing so of being “racist” and protecting KKK like groups.

            Would you suggest that anyone who doesn’t like any particular law has to enter Parliament? As for the James Price Point, one protester chained himself to the security turnstile at Woodside Plaza yesterday. Go and tell him that he shouldn’t protest, but should instead run for Parliament, or go to the court!

            BTW, I take it you are familiar enough to with the Westminster system to know that even if Andrew Bolt defeated Gillard in her own seat of Lalor, that would only make him an MP, not the Prime Minister. Why make yourself out to be an idiot?

            Talking about giving “indigenous countrymen” the “benefit of the doubt”… What do you mean? Giving Noel Pearson the “benefit of the doubt” that he’s actually Aboriginal? What on earth is the point of all this? Were you implying that Anita Heiss wasn’t Aboriginal due to her name? That’s no different to the worst intimation made on the Bolt articles (remember she was one of the plantiffs).

            Mordy Bromberg didn’t “simply apply the law”. In his judgement he was talking about “the tone” and “reading between the lines”. That’s a little more than simply applying the law, and it should ring warning bells. But I guess if you’re only interest is in playing party politics, and slamming one of your opponents, you can ignore that. Right?


             
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            BannedbytheGuardian in reply to PT. | May 16, 2012 at 7:18 am

            If Andrew won any seat & the Liberal /National Coalition also won the majority (or close minority ) then the MPs could elect Andrew as their leader.

            He would be PM. Easy Peasy -he just has to convince 30,000 voters & the other MPs.

            What have I got wrong? Do you vote PM in a special vote little box?

            The maritime Union case. I was on Port Phillip Bay sailing during that dispute. I remember the Guard dogs on the wharf. Mordy was on the MUA’s side & he was a Comunist.? So ? My forbears were MUA wharfies . We all have historical views but the case was judged by others. A lawyer is entitled to take sides. If you think Mordy erred here -take it up with the presiding superior.

            I am not arguing the law -just accepting the verdict . As has Andrew’s employer.


             
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            PT in reply to PT. | May 18, 2012 at 3:46 am

            “Banned” you made the specific comment that if he defeated Gillard her seat of Lalor he would be Prime Minister! To quote you directly, ” He could challenge Julia Gillard in her seat! Then presto he could be PM !”!!!!

            Bolt “might” be able to become PM. But he would have to be in Parliament for a decade! There have been a couple of parachuted reporters, but all on the other side of politics (none of them have ultimately been adornments for the ALP IMHO – I could say quite a bit about the parachuting of Alan Carpenter, and his almost single hindered – with McGinty – losing government to a dysfunctional rabble of an Opposition!). Why not call on Kerry O’Brian to run for Parliament? He opposed the Iraq War, probably opposes the Afghan War, and has plenty of other strong political views (affirmative action for one, where he was so busy prosecuting the “in favour” case that the poor man from the NAACP that was supposedly arguing for it was left just sitting in front of the camera with out any opportunity to say his piece!). Would you suggest that he just run for Parliament? Laurie Oakes is pretty shameless in his pushing of Kevin Rudd – why not say he should run for Parliament on the ALP ticket, and then he can lobby for Rudd’s return within the Caucus? Is it simply because Andrew Bolt is one of the relatively few in the media who’s on the right wing/conservative (sort of) side, that you want him out of the media? I think there is too much of the Andrew Marr defined “soft and squeegee” left (the new left of the ’60’s) dominance in the media to be healthy. The level of outrage you and Matthew seem to have over Andrew Bolt, and I’m sure it wasn’t over that set of articles, indicates that you think he’s extreme, not least because he stands out more in the overwhelming soft-left media in Australia. But you should be cautious in welcoming using the law to shut him up. Some years ago it promoted by some left wing lawyers and journalists that some of the anti-terror laws could be used to jail John Pilger. Now I don’t like Pilger much, but at least think enough to realise that a law that could be used against him may, in time, be used against me, or at least others who are less extreme. Has that not occurred to you? Can you not see the danger in legislating against “offence” particularly when some people are so ready to take offence?


           
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          tg818181 in reply to BannedbytheGuardian. | May 16, 2012 at 3:42 am

          “Andrew bolt has the old view that any drop of white means you are not indigenous.”

          Actually his argument is that any drop of black should not make you eligible for financial entitlements meant for individuals disadvantaged by their color.


       
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      BannedbytheGuardian in reply to BannedbytheGuardian. | May 16, 2012 at 8:53 am

      Haha -love the 34 dislikes.

      You guys can’t understand the fact that an American Professor of Law can be wrong about a law in a completely different system?

      Do you guys wear Wigs & Robes to court? No. So why expect the laws to be the same?

      Better luck next time. I am certain Andrew will be emailing his latest fro fros.

        “Banned” do you really understand much about the legal system? Like the US, Australia operates under the system of Common Law. In fact US decisions are cited in Australian cases as “precedent”. In fact in various Aboriginal land rights decisions, Canadian court decisions have been cited! US judges don’t wear wigs (BTW they only wear them in Australia in criminal cases, not civil ones), but they do wear robes! By this decision, Justice Bromberg had defined what is “reasonable” and “good faith” and how narrow the “factual” element can be. Take the case of Elizabeth Warren. There seems to be some sort of dispute as to which ancestor was Cherokee. Let’s say that Bolt had written an article whereby it he said it was her great-grandmother, but the claimed wedding certificate “proof” was for her great-great-grandmother, he would have had the same “inaccuracies” quoted by Bromberg as invalidating the “fair comment” defence. The fact that Warren herself seemed to be in some confusion as to whom the native ancestor was is irrelevant. There are publications by at least one of the plaintiffs in the Bolt case where even she made the mistake about her own heritage that invalidated Bolt’s defence! I would suspect it was a “typo” and was a result of poor proofreading rather than her being unsure of her heritage, but do you see how low the bar is? Bolt had “no defence” because a) Bromberg decided he knew what Bolt was saying even if it wasn’t in the text and b) he said that one of the plaintiffs had a German father, when it was her grandfather! The other point, which you don’t seem to grasp, is that there is no hard and fast rules to determine who is, and who isn’t Aboriginal under Australian law at present. In fact that was part of the attack on Bolt! He as accused of having a “Nuremberg laws” approach to Aboriginality! There is no law to define how much of your heritage has to be “Aboriginal” in order to be Aboriginal. It is almost a question of self-identification, although there is the “accepted by an Aboriginal community” clause. This, in fact, is the crux of the issue. Bolt was questioning how much Aboriginal heritage you really need to qualify as being Aboriginal, and hence be eligible for targeted Academic positions, scholarships, prizes etc. He was also raising the question if people would choose to identify as Aboriginal in order to get access to such targeted positions etc when they otherwise may not (and would likely not see random acts of prejudice against their Aboriginal heritage). You claim that “proof” is required, yet one of the more prominent Aboriginal activists, one of the founders of the tent embassy, apparently is of Afro-American, and not Aboriginal, decent! These are genuine questions, both for Aboriginals, and the wider community. But the precedent of this case will no doubt make many vary of raising them. There will be fear that if you get one fact wrong, even off by a few degrees, then the defence the Lavarch act supposedly provides to enable proper discussion is dismissed, and you will be subject to prosecution for “offending” someone. Why do you think that a few of your fellow travellers, who are by no means part of the Andrew Bolt cheer squad, are against this judgement? Bromberg claims his judgement shouldn’t be seen as saying this issue cannot be publicly discussed, but it isn’t clear to me how it can really be discussed. At the least you’d have to talk about hypothetical examples, are these not “inaccurate” since such people don’t exist? But they would still offend people such as the plaintiffs who could, reasonably, claim that the discussion insinuates that they aren’t Aboriginal, and have only taken on the identity to gain professional benefit! Remember it talks about an individual or a group. Only another legal case can establish if the law would extend that far – but who would dare after the Bolt ruling? It is quite easy to intimidate people into silence with such judicial activism.


     
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    Mercedes Dancer | May 16, 2012 at 2:17 am

    The “Stolen Generation” was in part due to the practice of tribes in the bush, killing any infant that was too white.

    There was allegation about children being removed by force from rather nasty circumstances, this is done today by the various child services agencies.

    Request for proof normally always go unanswered as there appears to be little in the allegations.

    Persons of Indian Descent and other East Asian groups do lay claim to Indigenous Heritage.

    One of the more tragic events is the treatment of children by their own kind in the outback.

    Venereal Disease in toddlers has been reported in isolated instances along with the culture of supplying your sister to your mates for a “gang bang”

    Attempts to assist have been hampered by small groups self serving, one example is Ray Robinson who has been convicted of crime, taking the best part of $100,000 to renovate his home under the guise of cooking school rooms.

    The Territory Intervention has failed several times and tribal groups regularly fight with sometimes horrific consequence.

    Bolt does indeed push his own barrow but the LIP has much to answer for in particular the lack of result for billions in cash every year.


       
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      BannedbytheGuardian in reply to Mercedes Dancer. | May 16, 2012 at 5:23 am

      Well yes they are very far from a perfect people. Sometimes there is little one can do .

      For example schooling . Kids just disappear for weeks when a relative (there are hundreds ) dies & they have to go on Walkabout for Sorry Time.

      But on the other hand they are an amazing people . Inge Clemminger writes of the love affair & then breakup that has continually been going on in cycles between whites/ Indigenous since 1788. In my family we had very close relationships with Aboriginal community . Then the heartbreak. You let ne family in & next month there are 4them & all their relatives are visiting. Then they steal everything. Then there are fights. Then there is suicide. Then there are the children of the suicide lady coming to ask -Why did she do it? We were invited to the funeral of an elder & then we were uninvited.Then they blamed my Mum for it & beat her up.

      They have 60,000 years of genetic lineage & it is not WASP!

      Their circle of hope & then destruction will never be broken. But at least they have not been wiped out & of that I am very happy.


     
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    Matthew Of Canberra | May 16, 2012 at 6:12 am

    I see that andrew bolt is still trying to find ways to get other people to publish his followers’ comments.

    The comparison with warren is ridiculous (although, that said, I think the hoopla about warren is also ridiculous). Bolt’s articles weren’t about genuinely debating anybody’s ancestry. He singled out a number of political enemies and attacked their motives for claiming to be aboriginal, implying that they had somehow done well out of doing so, at the expense of other people. If you took out the bogus claims about the things they’d allegedly gained, and if you took out the inaccuracies about their personal histories and families, there wasn’t anything worth writing about.

    I’m not alone in wishing the plaintiffs had used our defamation laws, though. It would have avoided all this poker-faced “woe is me” piety, and it might have cost the herald sun a lot more money. I’m no law-talking-man, but I think they would have had a pretty good case. The test for defamation was lowered somewhat by the previous government under the guise of “harmonization”.

    And despite the supporters and their carefully constructed (after the fact) rationalisations, the focus of the three articles that got bolt pinged seemed worryingly obsessed with skin color, as if that was the most important factor determining ethnicity (and worthiness). That was just plain creepy.

    If I was looking for a poster boy for free speech, I’d be choosing somebody other than andrew bolt. His record was very patchy before he turned his court loss into a dog whistle. He conspicuously supported a mandatory national internet filter (with a secret black list). He’s had little to say about some other very important free speech cases in recent years (including one where somebody was actually jailed for racial vilification), and other australian journalists dropped tantalising hints into various articles about the dangers of criticising bolt in print.


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