ANALYSIS: Australian trial prompts questions on invisible ethnicity

By Sid Astbury Apr 22, 2011, 8:17 GMT

Sydney - Nine high-profile Australians who are white-skinned but claim Aboriginal ethnicity are suing a newspaper columnist for questioning their insistence on what he has called a 'racial difference that the eye cannot detect.'

They allege Andrew Bolt breached the Racial Discrimination Act when he wrote they had gained an advantage by 'plucking one racial identity' from among those available to them.

The case, now into its third week, has captivated Australia, where Aboriginal ethnicity is largely self-determined, but can bring preferential access to health, education and other services.

It has prompted some observers to say Australia should follow other countries and set rules for who is indigenous, and appoint a body to supervise the procedures.

It is also the first time the Racial Discrimination Act - rather than anti-defamation laws - has been used as defence against allegedly offensive comments.

The nine litigants have dropped their initial demand for a public apology, but are still hoping to extract a promise not to republish the comments in question.

Victory in the court will also determine who is ordered to pay the significant legal costs.

Lawyer for the litigants Ron Merkel said that Bolt's criticism of his clients for not appearing Aboriginal made no sense, as Australia's Aboriginal laws were not based on appearance anyway.

'There isn't the slightest doubt that it's a head-on assault on a large number of highly successful and high-achieving Aboriginal people,' he told the Melbourne court.

Indigenous Australians benefit from preferential access to healthcare, education and in the workplace. Qualification is by an identification with Aboriginals, ancestry, or acceptance by the Aboriginal community, not by any physical characteristics.

Merkel said Bolt had accused his clients of exploiting the absence of physical criteria, implying 'their choice for identifying as Aboriginal was opportunistic and for the purpose of providing them with financial and other benefits.'

The lawyer attacked Bolt for making a false distinction between 'genuine Aboriginal persons who are darker-skinned' and 'fairer-skinned Aboriginal persons.'

Around 500,000 of Australia's 22 million population claim Aboriginal heritage and are as a whole among the nation's poorest, least educated and most unhealthy people. They are vastly over-represented among people in the care of the state, in jail and on welfare.

But many have got on, making the most of their talents and the privileges accorded to indigenous people.

Bolt's controversial observation is that among the go-getters there is a preponderance of whiter-skinned people. Aboriginal activist Bess Price has called them 'white blackfellas.'

One of the litigants is Larissa Behrendt, the daughter of a Sydney air-traffic controller who claims to be half Aboriginal, and a white accountant.

Critics accuse her of inflating her claims to Aboriginal heritage in order to facilitate a law scholarship to Harvard University and a subsequent appointment as university professor at the age of 31. In 2009, she was named Indigenous Person of the Year.

'Outwardly she embodies a new cadre of urban, middle-class, prosperous Aboriginal professionals,' The Sydney Morning Herald said in a profile. 'She steps into Mazzaro Italian restaurant on Elizabeth Street in Sydney and kisses the waiters, who cry with delight: 'Larissa!''

As historian Keith Windschuttle has observed, Behrendt's background is 'about as culturally distant as it is possible to be from the sorry females in the blacks' camps of Alice Springs.'

Her case illustrates the question underlying the current trial. Who is the special treatment aimed at, and what is it intended to compensate?

Sydney University lecturer Antony Dillon makes the point that many claiming Aboriginality are so white-skinned that they are unlikely to face any disadvantage from prejudice. Yet they benefit from privileges not granted to non-Aborigines, said Dillon, who gladly declares himself part-Aboriginal.

'There is nothing offensive about the term part-Aboriginal, just like there is nothing offensive about the term part-Chinese or part-German,' he said.

Fair-skinned people calling themselves Aboriginal have also faced discrimination in the other direction.

Last year, Aboriginal rights lobby group Generation One apologized to a woman who was turned down for a job because her skin was not dark enough.

Tarran Betterridge, who had applied for a casual job handing out pamphlets in Alice Springs, said she was discriminated against on the basis of the colour of her skin.

'I just think it's unbelievable,' she said at the time. 'It's not really looking at the broader perspective that Aboriginal people in Australia don't necessarily look Aboriginal.'

It was a point taken up by Merkel in court-room blast at Bolt.

'What he says is that if you don't look Aboriginal, then you don't have to be,' Merkel said. 'He's living in a mindset frozen in history, frozen in a period of time.'

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