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Hey hey it's a human rights violation


Black FacesHours before the National Human Rights Consultation Report was released on Thursday morning, I was listening to talkback radio in a rural area. The topic was the infamous Black Faces performance on Channel 9's Hey Hey It's Saturday the previous night.

Four out of five callers could not understand what the fuss was about. But one caller, who identified herself as a Koori, expressed alarm. She felt her hard won equality with other Australians was questioned by the Black Faces segment, and its apparent acceptance by the large majority of Australians.

A basic understanding of a human rights charter is that it shifts the human rights law making centre of gravity from politicians to the judiciary. Depending upon how it was formulated, a charter might give more grounds on which judges could decide whether proposed legislation was consistent with other legislated rights. Currently this is the task of political leaders, who would still be responsible for the drawing up of legislation that would be subject to judicial scrutiny.

It is worth considering, in general terms, the fate of a hypothetical proposed law that would impose sanctions on the licence of a broadcaster putting to air offensive material such as the Black Faces segment.

Politicians would base their decision on whether to support the law, on what the majority of Australians wants. That is their job. They would listen attentively to the radio talkback and do their best to follow the wishes of the four out of five callers who were indifferent to the Black Faces sketch or who thought it was funny. They would reject the proposed law.

Under a human rights charter, scrutinising judges would pay closer attention to views such as those of the Koori caller. They would cross examine representative Indigenous Australians to ascertain if the Black Faces performance did in fact contribute to the erosion of their right to be considered equal to all other Australians. They might then approve the law that would penalise Channel 9.

In such circumstances, there would of course be pressure on the judiciary to follow public opinion, or that of politicians. One possible illustration comes from another television comedy act that was deemed to have breached standards, the Chaser's Make a Wish Foundation skit from last June.

The ABC's own review processes approved the segment before it went to air, though management and the Chaser failed to anticipate the public response. The Chaser team maintains to this day that it was misunderstood by the public. It was intended as a parody against unthinking charity. The withdrawal of the segment, and the ABC's apology for it, was a capitulation to the public outcry. The socially constructive statement was lost, and unthinking charity won the day.

The implication for any version of a Human Rights Charter that could be introduced in the wake of the Consultation is that judges would need to act courageously and keep public opinion in perspective. The quality of judges Australia has had in recent years gives us cause for optimism.

Feature letter:
We're not racist, we're just havin' a larf!

Michael MullinsMichael Mullins is editor of Eureka Street.

Topic tags: michael mullins, human rights charter, jackson jive, red faces, hey hey it's saturday



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Existing comments

I thought the days of black and white minstrels was over. Apparently not!!

Ray Ham | 12 October 2009  

thanks for your views. if that foreigner hadn't had a prickle under his saddle, nothing would have been said. his prickle is the memory of his black-face appearance as a preacher a while back. the other hypocrite is Whoopie on friday [?] who seems to have fogotten attending a party in NY with her then boyfriend Ted Danson who was in blackface.

Americans should get a life and fix their own problems instead of sticking their noses into any we have, which we can work on ourselves without them telling us what to do.

jaymz | 12 October 2009  

The skit was innocuous.

The presence of a US guest judge was coincidental.

The lack of foresight to the cultural faux pas was palpable.

The segue to the Human Rights Charter and popular vs judicially-scrutinised legislation was masterful.

Thank you for the insight.

Bob GROVES | 12 October 2009  

When the prophet in the Old Testament speaks about "the abomination of abominations", I often think that he had a forevision of the obscenities poured out from the TV Stations.

Ray O'Donoghue | 12 October 2009  

American hypocrisy aside, if this skit is so offensive how come men in drag who parody women are acceptable?

Hilary | 12 October 2009  

In addition to my previous comment, here's another analogy, given to me by a friend:

This sort of 'joking' is that of the Bully's jester, you know the kind of high-up subordinate in the Bully's coterie who ridicules an appointed victim in order to debase & humiliate them while the coterie laughs as the Bully holds court. Unlike say the historical court jester who pokes fun at the foibles of the (semi)powerful, this 'humour' grinds down the disempowered often whilst demands are made that the victim agree how funny & well deserved the 'jest' is.

It is group-think & jeering not the companiable laughter of compassion or of wry acceptance of fate.

Again, it need not be conscious. Its very unconsciousness is what does the harm.

Moira Rayner | 12 October 2009  

When will we be mature enough to decry arrogant racism? Given our history, that defensive one of the little Aussie battler, it's going to take at least a Human Rights Charter administered independently of populists to let a bit of fresh air in.
It's not going to happen, is it.

Patrick Williams | 12 October 2009  

Aside from the skit, I do not share Michael Mullins's confidence in the judiciary. The Human Rights Charter could easily lead to a krytocrarcy, government by judges.

Mr Mullins stated, "Politicians would base their decision on whether to support the law, on what the majority of Australians wants." Unless I am mistaken, that is democracy in a nutshell. If the people don't like a government, for whatever reasons, it can vote them out of office.

I know that it is far from perfect and replete with faults. However, I prefer it to having an unelected and unanswerable elite deciding independently of the people what is right and wrong.

Patrick James | 12 October 2009  

I did not watch the recent Hey Hey revival show and make no comment on it. In its old hay day I watched it a few times with primary school nephew and nieces who liked a talking ostrich although an emu would have been more aptly "ozzie". They liked potty humour at the level of fart jokes. I did not like the show then but I still like earthy humour. I like limericks with a bite and jokes which are at the cutting edge. I like humour which helps us laugh at people with pretentions, at tall poppies, at emperors with no clothes, at the bride fair fat and wide who slips on a banana skin and falls on her side. We laughed at that in Grade three.

Such humour, for example, does help us laugh at the multimillionaire entertainer who covers up his racial heritage with changed skin colour and with plastic surgery to achieve a much changed nose.

Yet, from what I read, I believe the TV show was in very bad taste. Howeveer, I am reluctant to believe that we need "the law" to tell us what is good taste and what is bad taste. We are our own good judges in such matters. We can change to another channel.

Gerry Costigan | 12 October 2009  

I'm surprised no-one has yet commented on the fact that the supposed racist skit was perpetrated mostly by the children of immigrants - from India and the Middle East - who gained their medical qualifications in this supposedly racist country's educational institutions and practice their profession in our supposedly racist health services. Quite clearly these children of immigrants haven't adequately assimilated into our white guilt culture.

As for a legislative bill of rights, I hope to God it doesn't offer protection for us who ascribe to the Christian faith from being "offended" every time some tasteless comic suggests all priests are peadophiles or makes fun of our religion in some other way. May Australians always be free to give offense. We don't need such protection. If we did, our faith commitment would hardly be worthy of the name.

Felix Farrier | 12 October 2009  

I have heard some thought provoking points around this "incident" on HHIS and while I think the "performance" was lame and not funny at all I don't think it merits being categorised as a human rights violation either.

On reflection, the performers and presenters of the show may wish they had done things differently, but those who cry outrage at this incident run the risk of stretching it a little to give their own value platforms some airtime.

As the story goes if you cry wolf too often and too loudly in the long run it can work against a balanced and reasoned assessment of social issues.

I'm not in support of either the HHIS performers or presenters on this one......but equally I don't take seriously all the critics who have come out of the woodwork.

Why not ?

Well partly because it seems to me that in this PC world we have created for ourselves, there seem to be some "causes" or issues that get backed and some that don't.

Why is this?

Gary Panter | 13 October 2009  

Following on from my last comment,

I'd take the critics seriously if complete even handedness was applied to addressing inequities that raise their ugly heads everywhere.

To be inconsistent only gives rise to a perceived lack of credibility, which invites disrespect, followed by mudslinging and thus all go around in a great big circle with no one wanting to budge from their predjudices, and no improvements made.

Racism or perceived racism against those of a darker skin colour or particular racial group is unfortunately only one of the many inequities the world is full of.

To only address some forms of racism and some of the inequities du jour is lazy thinking, patronising, and in the long run will probably go towards undermining the good that could have been achieved.

Gary Panter | 13 October 2009  

This segment to me showed a lack of sensitivity to those recently bereaved.
It was overtly discriminatory. Darryl Sommer's response did nothing to ease my disappointment at this display. He may have lost the good standing he once appeared to have received. Am quite ashamed at this fiasco.

bernie Introna | 13 October 2009  

I watched this skit live.It never struck me for a moment that it was racist.The 'Hey Hey' show has been taking the mickey for many years.It's just a joke,Joyce.Lighten up.

rodney michael pyne | 15 October 2009  

Ray Ham Racism never stopped.

MagicQuinn | 15 October 2009  

Impersonators seek to look and sound like the people they impersonate; The Jackson Five have black skin - why not paint one's face black so as to look like the Jackson Five?

I imagine most people didn't laugh because they think people with black skin are side shows to be ridiculed and laughed at - they laughed because the impersonation was so hilariously bad.

I think we should have more confidence to laugh at black people doing something funny and yes, white people impersonating black people doing something funny - after all it's their singing and dancing, not their race that is humorous.

Mr. James advances a fallacious argument when he says:
"The Human Rights Charter could easily lead to a krytocrarcy,"
then adds later;
"If the people don't like a government, for whatever reasons, it can vote them out of office."

Parliament can amend the HRC at will - so if the people don't like the rights that courts are protecting it can vote out the government that set them and vote in one that will be representative.

Judges are bound by all constitutionally enacted legislation, which the parliament can change at any time - the HRC won't change anything. That's its real fault.

Chris Bisset | 16 October 2009  

Mr Bisset, if you are right in saying that the people can vote in a government that will legislate rights that represent the people's will, then my argument is fallacious. However, I am not sure that this happens in practice.

For instance, there are activist judges in America who interpret marriage to include same-sex couples, despite this being against the law of the state. I cite the following example. http://www.intellectualconservative.com/article2883.html.

Judges in Britain have also used the Human Rights Legislation in very elastic ways to overrule other laws. In one case a judge overruled a deportation order on an illegal Pakistani immigrant. This man had killed a local girl in a drink-driving accident. He served three years in prison and was to be deported. However, since he had had a child to a British resident, he could not be deprived of his 'right' to a family life. Hence he was allowed to stay in Britain.

I fear that judges' personal biases will lead them to interpret Human Rights Legislation so broadly that they will in effect have a free hand to rule as they wish.

Patrick James | 17 October 2009  

Hilary, it's unacceptable because the history of blackface is derogatory. In the past, blacks were not permitted to perform stage shows, and white performers painted their faces black to demoralise, insult and ridicule the blacks. It served to further subjugate blacks. Patrick James, unfortunately, democracy in itself is not enough to grant equality to all. Under current Australian legislation, 51% of the population can vote for a party that actively discriminates against the other 49%, and there is nothing the 49% can do but vote, and hope that someone in the 51% will swap sides. Even then, there is nothing that will ensure that any discriminatory laws will be abolished as we have no laws that protect human rights, such as a Bill of Rights, whereby individuals can fight an unjust law. The reason that judges are unelected is to protect the judiciary from being influenced by any particular political party. Without the power for a third body, separate from parliament having the power to object to laws that potentially oppress a minority, we are nothing more than a democratically elected tyranny.

Lauryn | 20 October 2009  

It seems there are still those who brand Harry Connick Jr a hypocrite for criticising the blackface segment without understanding his criticism. Anyone who actually saw his preacher segment would realise that he was dressed as a Southern preacher, not a black southern preacher, not in blackface, just a southern preacher. Harry criticised the use of blackface, not impersonation. It is a relatively simple distinction that has been missed in the hysteria that followed his perfectly reasonable and low key objection to what was in his country a very objectionable skit.

As for those who found the skit innocuous, you are kind of missing the point. Who gives a toss if you weren't offended. The fact is you are not black so why the hell would you be. Hell of a lot of white folk weren't offended by the lynching of black folk in the deep south last century. Does that mean it wasn't offensive? A lot of white Australians use racist labels to describe indigenous Australians and a lot of other Australians aren't offended by this. Does that mean it is not offensive?

Interesting to listen to the howls of "we are not racist" from people who obviously are and maybe are a little uncomfortable with that fact.

Kevin07 | 20 October 2009  

Lauryn, I am aware of what you say. You put it well when you say that we could have a 'democratically elected tyrannay.' But who judges the judges?

Michael Mullins and other posters here have great confidence that the judiciary will be defenders of human rights. But what if judges start to interpret and apply rights that these people don't agree with.

Another current article on this site, the one on the Tamil asylum seekers, is generating many posts. A good number of posters are expressing disappointment and disgust with Kevin Rudd. He is now no different to the much hated and reviled John Howard.

Imagine a situation where the decision about allowing these Tamils into Australia landed before a human rights judge. What would all those in favour of the Tamils being admitted say, if a judge decided that their human rights had not been infringed? What if the judge said that the Rudd government was within in its rights to keep these people out of Australia? Where to then?

For better (as it has mostly been) or worse, parliament must remain supreme in expressing the people's will. The judiciary must be independent of but not above our law makers.

Patrick James | 21 October 2009  

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