Were you born in Australia?

Patrick McCauley lodged a complaint with the Australian Human Rights Commission regarding the SBS television documentary “Immigration Nation”. This is the reply he received. It makes interesting reading in light of the ongoing Bolt trial.

Monday, May 09, 2011 6:17 PM

Dear Mr McCauley,

I refer to your correspondence received by this Commission on 9 March 2011, regarding ‘Immigration Nation: The Secret History of us’ (the program), produced by Professor Henry Reynolds and others, which aired on SBS between January and February 2011. I apologise for the delay in getting back to you on this.

You say that the program about the White Australia Policy vilifies against Australians, claiming that it represents Australians as racist. You say that it misused certain images to give weight to this claim.

The Australian Human Rights Commission can consider complaints alleging racial discrimination and racial hatred under the Racial Discrimination Act 1975 (Cth) (the RDA). Racial hatred in defined under the RDA as an act of racially offensive behaviour, which occurs in "public" and is based on the race, colour, or national or ethnic origin of a person. The alleged act must be reasonably likely to have caused a person to feel offended, insulted, humiliated or intimidated.

The words “reasonably likely” mean that the test for offence, humiliation and intimidation must be an objective one. The Court has held that the act in question must have ‘profound and serious effects, not be likened to mere slights’. It is a question of fact in every case, depending on the context in which the allegedly offensive act occurred. 

Whilst I appreciate the concerns that you have raised, having considered the information you have provided, it is unclear whether your situation would be covered by the RDA.

It is unclear whether you are ‘aggrieved’ for the purposes of our law. The Commission can only accept a complaint lodged by an ‘aggrieved’ person or a complaint lodged on behalf of an ‘aggrieved person’. That is, a person who is of the race, national origin, colour or ethnic origin of the group that is claiming to have been targeted.  It is unclear whether you were born in Australia. [Emphasis added: QO.]

Putting that to one side, it is unclear whether Prof Henry [sic] produced the program on the basis of the race of Australian people. It would appear that he had made the program because of his views on the Australian Government’s White Australian policy, rather than because of the race of the Australian people. Furthermore,  is unclear whether the program that you have raised concerns about would reach the threshold for racial hatred, as defined under section 18C of the RDA.

I should also note that there is an exemption in section 18D of the RDA regarding media programs. It states:

Section 18C 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.

Again, I appreciate the concerns that you have raised.  However, from the information you have provided so far, it is unclear whether the situation you describe would constitute racial hatred in light of the objective test in section 18C and the potentially applicable exemptions.

If you have any questions about this letter or if you would like to provide more information for the Commission to consider, please contact me on XXXXXXXX.


[Name of sender removed: QO]
A/g Supervisor
Complaints Information Service

Australian Human Rights Commission
Level 8 Piccadilly Tower, 133 Castlereagh St, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001

Human rights: everyone, everywhere, everyday

See also:

Human Rights Commission website

Keith Windschuttle on the history “Immigration Nation” overlooked here…

John Izzard on “The Deceit of Immigration Nation” here…

Patrick McCauley on “SBS TV – A case of racial vilification” here…

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