Acknowledgement: I would like to acknowledge the traditional custodians of the land on which this paper was written; the Dharawal people, their elders past, present and emerging. Indigenous Australians are the longest surviving culture on earth and their knowledge, history and culture have been used to inform this research. This land was, is and always will be Dharawal land.
Cultural Disclaimer: This paper may include the names and words of Indigenous people who are deceased.
April 15, 2021, marked the 30th anniversary of the Royal Commission into Indigenous Deaths in Custody. Whilst the 1991 royal commission was momentous in its recognition of systematic abuses against Aboriginal and Torres Strait Islanders, little has improved with regards to the welfare of Indigenous people in the justice system.[1] Since the findings of the royal commission were published in 1991, 475 Indigenous people have died in custodial settings; 8 of those individuals have died since March 2021 alone.[2]
Among the 339 recommendations made by the royal commissions, the Australian media and its journalists were highlighted as having a specific role to play in rectifying the culture that fosters Indigenous inequality.[3] The recommendations suggested the implementation of better funding for Indigenous media organisations, recognition of excellence in Indigenous affairs reporting, specialised cultural training for student journalists, better cooperation between media organisations and Indigenous communities, and the establishment of codes of practice within media organisations relating to reporting on and interacting with Indigenous communities.[4]
Whilst improvements have been made within the industry in relation to Indigenous affairs over the past 30 years, the full implementation of the royal commissions’ recommendations has not been met.[5] This paper will argue the need for an industry wide code of practice for reporting Indigenous affairs, further funding for Indigenous media organisations and Indigenous representation in non-Indigenous organisations, and law reforms which will provide a stronger support for an industry code of practice.
Aboriginal and Torres Strait Islander peoples have had a fraught relationship with the Australian media since colonisation.[6] Through the mediation of day-to-day news to the general public, the Australian media holds power over the way in which the general public understands and views issues.[7] Due and Riggs argue that the Australian mainstream media holds a key role in the perpetuation of negative stereotypes about Indigenous people, actively contributing to the cycles of disadvantage faced by Indigenous Australians.[8] As many non-Indigenous Australians rarely, if ever, have direct access to Aboriginal and Torres Strait Islander peoples, the media is often the only point of reference they have for Indigenous communities.[9]
Hollinsworth argues that historically the Australian media has sensationalised Indigenous issues, placing emphasis on conflict, violence and trauma.[10] When reporting on Indigenous affairs, the media often follows a social narrative of failure.[11] Reporting habitually focuses on statistics regarding poor health, family violence and criminality, and often features fatalistic language which constructed an image of the inevitability of disadvantage and the lack of ‘conceptual space’ for change or solutions.[12] Brough believes this portrays to the general public that Indigenous issues are ‘incapable of improvement.’[13]
The disconnect between media representations of Indigenous peoples and their lived experience has resulted in a deteriorating relationship between the community and the media.[14] As Indigenous Australians become further disenfranchised by their portrayal in the media, the less inclined they are to participate in the processes of news media, resulting in the perpetuation of disengaged reporting and a lack of accurate representation in Australian mass media.[15] This destructive relationship was initially highlighted by the Royal Commission into Indigenous Deaths in Custody as a foundation of the culture which perpetuates the cycle of disadvantage faced by Indigenous Australians.[16]
In response to recommendations made by the royal commission, media organisations such as the Australian Broadcasting Commission, the Special Broadcasting Service and Screen Australia produced cultural protocols as guidelines for sensitive reporting of Indigenous affairs.[17] The protocols endorse the adherence to a set of ethical principles which work to protect, promote and develop Indigenous culture, languages and heritage.[18] As non-Indigenous people are not always familiar with the cultural norms and laws that surrounds Indigenous affairs, protocols such as the ABC’s Indigenous Content Editorial Policy and the SBS’s ‘The Greater Perspective’ protocol act as guidelines for appropriate and responsible ways to communicate and work with Indigenous communities and culturally sensitive material.[19]
Cultural protocols such as those at the ABC and SBS encourage the recognition of “Indigenous ownership of Indigenous knowledge”.[20] They also provide agency for Indigenous people in the cultural exchange process, allowing them the opportunity to decide what information can be used and how.[21] Anderson and Younging provide the consideration of protocols as not only a bridge between what Indigenous rights are protected by law but as a springboard for future law reform:
It is useful to consider protocols as a very specific instrument for pushing the limits of law in terms of providing specific, context-driven approaches… as well as bridging the sizable gap between what the law says and how it actually works in contexts that require new forms of knowledge management.[22]
As protocols become more commonplace in the media industry, cultural standards will begin to emerge that can establish a foundation for the enforcement of cultural norms through policy and legislation.[23] As the creation and enforcement of cultural protocols is solely the responsibility of individual media organisations, this limits the extent to which Indigenous communities can be protected from culturally insensitive reporting.[24] Industry regulators such as the Australian Communications and Media Authority and co-regulators such as the Media, Entertainment and Arts Alliance and the Australian press Council can adjudicate decisions regarding official complaints.[25] However, the power to fine, charge or otherwise punish media organisations and/or specific journalists who are in breach of codes of ethics, codes of ethics and/or cultural protocols remains restricted.[26]
There have been instances where media organisations and/or individuals have been held to account for harm done to the Indigenous community through their reporting or other forms of publication. These instances have usually involved breaches of Australian laws and have been pursued in the courts by individuals or groups and not by industry regulators.
Eatock v Bolt is a prominent example of an instance in which Australian laws have served to protect Indigenous Australians in a media setting in the absence of cultural protocols.[27] Decided on September 28, 2011, the case found Andrew Bolt had breached the Racial Discrimination Act 1975 s.18C when, in 2009, he published false assertions in two separate articles questioning the blood quantum of fair-skinned Indigenous Australians.[28] Under s. 18C of the Racial Discrimination Act 1975 (Cth):
- It is unlawful for a person to do an act, otherwise than in private, if:
- The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and,
- 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.[29]
When considering this case, it is important to note that the presence of ‘fair-skinned’ Indigenous Australians is a direct result of the historical mistreatment of Aboriginal people.[30] This is specifically with regards to policies of assimilation and integration with which the Australian Government removed Indigenous children from their families and systematically attempted to erase Indigenous culture.[31] In his decision, Justice Bromberg found that Mr Bolt had made the following imputations:
- That the fair-skinned Aboriginal people names in the article identified as Indigenous people for political reasons, or to enhance their career prospects (e.g., by pursuing opportunities reserved for Aboriginal people); and
- The fact of a fair skin colour indicates that a person identifying as Aboriginal is not in fact ‘sufficiently’ Aboriginal for the identification to be genuine.[32]
Justice Bromberg found that Mr Bolt’s imputations had breached s 18C and were not published in good faith or in the interest of the public.[33] The judge did not order an apology as he did not believe Mr Bolt would be genuine, however, he did order a corrective notice be published twice in the opinion pages of the Herald Sun.[34] The articles remain available via the internet alongside the corrective notice.[35] Whilst the condemnation of Mr Bolt’s actions indicate an improvement in the attitudes towards denouncing discriminatory behaviour, the lack of industry wide protocol or legislation enables future discriminatory acts to occur.[36]
Such an example are the remarks made eight years after Eatock v Bolt on Channel Seven’s morning show, ‘Sunrise’. The popular morning show featured a segment in which an all-white panel made comments in support of removing children from Indigenous communities in the Northern Territory.[37] Commentator, Prue MacSween, went as far to suggest that some children were rightfully removed during the Stolen Generations and that the government should consider doing it again.[38] Members of the Yirrkala Aboriginal Community sued the television network for defamation, breach of privacy, breach of confidence, racial discrimination and breach of Australian consumer law for the comments made.[39] The network settled the matter out of court for an undisclosed amount and were also ordered to publicly apologise to the community.[40] The ACMA also ordered a court-enforceable independent review of the production processes which led to the comments being aired on national television.[41] The ACMA found that Seven West Media was in breach of the industry’s code and ordered that Sunrise’s editorial staff undertake mandatory cultural sensitivity training.[42]
Whilst both instances are examples of occasions in which Australian legislation has protected the interests of Indigenous Australians, the prevalent culture still fosters discriminatory and harmful behaviours toward Indigenous Australians. An industry wide cultural protocol and further law reforms are needed in order to generate a greater culture of respect and understanding of Indigenous cultural norms. [43]
As the current cultural protocols are ‘primarily ethical in nature’, legislation and common laws regarding culturally sensitive reporting and interactions with Indigenous affairs would strengthen the protections afforded to the sacred knowledge and cultural materials of Indigenous Australians.[44] The Aboriginal Justice Advisory Council have argued that protocols are useful ‘only to the extent that the provisions are understood, adhered to, and performed’, and have stated that sui generis (specific) legislation is needed to protect Indigenous culture.[45]
Indigenous Cultural and Intellectual Property (ICIP) affords Indigenous Australians the right to control the usage of cultural knowledge, art, song, dances, rituals, symbols as well as other sacred cultural materials.[46] Australia does not currently have a law that prevents the alteration, distortion or misuse of these cultural artefacts.[47] Adjacent to this issue is the lack of legislation or law protecting the cultural privacy of Indigenous Australians.[48] The Privacy Act in Australia does allow for some protections of the sacred knowledge of Indigenous groups; however, it does not prevent access to sacred sites, nor does it afford Indigenous communities the control over recordings or viewings of cultural customs and expressions.[49] The protection of and control over the media representations of Indigenous cultural customs and sacred sites are particularly important to not only preserve ancient cultural practices, but to also ensure they are only viewed by those with strict cultural permissions e.g., men’s and women’s business.[50] Reforms to the Privacy Act or the establishment of a sui generis cultural privacy law could give Indigenous Australians further protection of their cultural norms.[51]
The inclusion of Aboriginal and Torres Strait Islander people in all processes of reporting Indigenous affairs is essential not only to publishing stories that are well researched and culturally sensitive but to also ensure that Indigenous people feel appropriately recognised and represented by the media.[52] A 2020 report published by Media Diversity Australia revealed that only six per cent of presenters, commentators and reporters across 81 news programs on free-to-air television had Indigenous or non-European backgrounds.[53] The report also revealed that 100 per cent of free-to-air television news directors had Anglo-Celtic backgrounds; free-to-air board members were also overwhelmingly Anglo-Celtic with only one board member amongst a group of 39 who had an Indigenous background.[54] It is important to note that this study did not acknowledge the contributions of the National Indigenous Television to media diversity, however, the report is still indicative of the lack of representation of Indigenous Australians in mainstream media.[55]
Further funding for the independent Indigenous media sector would allow for greater development of Indigenous-led content, training and opportunities in the media landscape.[56] This is not only applicable to just the Indigenous owned and/or run media organisations such as NITV, Koori Radio, Radio Larrakia and the Central Australian Aboriginal Media Association but also for the hiring and promotion of Indigenous staff in other mainstream media organisations.[57] McCallum et al. illustrate how upskilling and hiring Indigenous people often results in further training opportunities for the wider Indigenous community as individuals often educate people within their spheres on ways they can create and manage their own media.[58]
Sweet argues that a decolonised approach to Indigenous affairs reporting would allow greater representation of Indigenous peoples not only as sources but in newsrooms and in media management both within and beyond the realm of Indigenous affairs.[59] In 2019, the ABC unveiled its Diversity & Inclusion Plan 2019-2022 which detailed the ways in which the national broadcaster aims to establish an inclusive culture that represents the diversity of the wider Australian public.[60] Indigenous Australians currently make up 2.7 per cent of the ABC’s workforce; the plan set the target of increasing employment representation of Indigenous Australians to 3.4 per cent by 2022.[61] The plan also details the contribution of Aboriginal and Torres Strait Islander exclusive committees and teams who will be tasked with advising the national broadcaster on issues relating to both the production of Indigenous specific content and the overall culture of the workplace.[62]
Establishing workplace diversity and cultural targets is a step in the right direction in improving relations between the Indigenous community and the Australian mass media.[63] Janke argues that a National Indigenous Cultural Authority should be formed to contribute to the protection of Indigenous Cultural Intellectual Property. A National Indigenous Cultural Authority would:
“Develop policies and protocols within various industries, authorise Indigenous cultural consent through a permission system, monitor the exploitation of cultures, create strategies to educate and raise awareness of ICIP among the public and advance ICIP nationally and internationally.”[64]
The establishment of a central authority for the protection of Indigenous cultures in the media could also extend to the oversight of an industry-wide cultural protocol and could be responsible for any breaches made by individuals or organisations.[65] It is essential to ensure that from the conception through to the implementation of such programs, committees and organisations that Indigenous people are involved and consulted.[66]
Providing institutionalised cultural sensitivity training throughout all journalism and media courses will enable future generations of journalists and content creators to engage with Indigenous communities responsibly and respectfully.[67] Mason et al. argue the importance of developing critically reflexive media skills that enable individuals to become “capable and confident enough to tell cross-cultural stories… as a way of countering misrecognised relations of dominance in the journalists field, and beyond to other fields and the broader society.”[68] Students should develop a firm foundation of critical thinking and cultural sensitivity through the integration of specific subjects focusing on historical context, forming connections to local Indigenous groups and engaging with Indigenous made content and publications.[69] By engaging future generations of journalists and content creators in these experiences before they enter the workforce, the adherence to cultural protocols will eventually become second nature.[70]
Finally, further recognition and acknowledgement of excellence in reporting Indigenous affairs can also be established to encourage other Indigenous and non-Indigenous Australians to participate in the creation and promotion of Indigenous led stories.[71] By highlighting and rewarding appropriate reporting and content creation in collaboration with Indigenous communities, other individuals and media organisations may be incentivised to follow suit.[72] Acknowledging the contribution Indigenous Australians make to the media landscape would also work to encourage future generations of Indigenous journalists and media creators to participate in the industry.[73] Indigenous cultures are continually evolving, and the ongoing participation of Aboriginal and Torres Strait Islander peoples is essential in ensuring that progress is perpetual in Australian media.[74]
The Black Lives Matter movement has pushed journalism to not only draw more attention to the issues faced by Indigenous Australians but to also highlight and provide space for the voices and achievements of individuals in the Indigenous community.[75] However, there are still vast improvements to make in order to eliminate the disadvantages and discrimination faced by Indigenous Australians, particularly on the stage of Australian mass media.[76] It is imperative that relationships between Indigenous communities and the Australian media have an opportunity to heal through the implementation of cultural protocols, stronger laws relating to ICIP and cultural privacy, and greater representation of Indigenous people in the media outside of being subjects or sources.[77] As Hollinsworth argues, “Media representations can kill people, or at least contribute to their deaths.”[78] This is no more evident than in the vast number of lives lost by Indigenous people in custody.[79] Until the media fully commits to implementing the recommendations put forth by the Royal Commission into Indigenous Deaths in Custody, we must do better.
[1] Frances Mao, “Why Aboriginal people are still dying in police custody” BBC News Sydney (2021) < https://www.bbc.com/news/world-australia-56728328>.
[2] Ibid.; Laura Chung, “Family wants answers following eighth Indigenous death in custody” The Sydney Morning Herald (2021) < https://www.smh.com.au/national/nsw/family-wants-answers-following-eighth-indigenous-death-in-custody-20210511-p57qwd.html>.
[3] Wendy Bacon, “A Case Study In Ethical Failure: Twenty Years Of Media Coverage Of Aboriginal Deaths In Custody” (2005) 11(2) Pacific Journalism Review : Te Koakoa.
[4] Elliott Johnston, Royal Commission into Aboriginal Deaths in Custody, National Report (Australian Government Publishing Service, 1991). < http://www.austlii.edu.au/au/other/IndigLRes/rciadic/>.
[5] Bonita Mason, “Reporting Black Lives Matters: Deaths In Custody Journalism In Australia” (2020) 26(2) Pacific Journalism Review : Te Koakoa.
[6] Diana Plater, “Aboriginal People And The Media – Reporting Aboriginal Affairs” (1993) Aboriginal Justice Issues.
[7] Amy Thomas, Andrew Jakubowicz and Heidi Norman, “Condescending And Disempowering, Australia’s Media Have Systematically Thwarted Aboriginal Aspirations” Guardian Australia (2020) <https://www.theguardian.com/commentisfree/2020/mar/16/how-the-media-fails-aboriginal-aspirations>.
[8] Clemence Due and Damien W Riggs, Representations Of Indigenous Australians In The Mainstream News Media (Post Pressed, 2011).
[9] David Hollinsworth, “’My Island Home’: Riot and Resistance in Media Representations of Aboriginality” (2005) 24(1) Social Alternatives.
[10] Idid.
[11] Mark Brough, “A Lost Cause? Representations of Aboriginal and Torres Strait Islander health in Australian newspapers” (1999) 26(2) Australian Journal of Communication.
[12] Ibid.
[13] Ibid.
[14] Melissa Sweet et al, “Decolonising Practices: Can Journalism Learn From Health Care To Improve Indigenous Health Outcomes?” (2014) 200(11) Medical Journal of Australia.
[15] Kerry McCallum and Kate Holland, “Indigenous and multicultural discourse in Australian news media reporting” (2010) 32(2) Australian Journalism Review.
[16] Johnston, Royal Commission into Aboriginal Deaths in Custody, (1991).
[17] Lester Bostock, The greater perspective: Supplementary guidelines (Special Broadcasting Service, 2018) <http://media.sbs.com.au/home/upload_media/site_20_rand_1735771747_the_greater_perspective_sbs_supplementary_guidelines_2018.pdf>; Australian Broadcasting Commission, ABC Editorial Policies: ABC Indigenous Content (ABC, 2015) < https://edpols.abc.net.au/guidance/abc-indigenous-content/>; Terri Janke, Pathways & protocols: A filmmaker’s guide to working with Indigenous people, culture and concepts, (Screen Australia, 2009) <https://www.screenaustralia.gov.au/getmedia/16e5ade3-bbca-4db2-a433-94bcd4c45434/Pathways-and-Protocols.pdf>.
[18] Terri Janke, Indigenous cultural protocols and the arts (Terri Janke Pty Limited, 2016) <http://docs.wixstatic.com/ugd/7bf9b4_9be09e2471b44893919b8127cd18e3b8.pdf>.
[19] Ibid.; ABC, ABC Editorial Policies: ABC Indigenous Content (2015); Bostock, The greater perspective: Supplementary guidelines (2018).
[20] Janke, Indigenous cultural protocols and the arts (2016).
[21] ABC, ABC Editorial Policies: ABC Indigenous Content (2015); Bostock, The greater perspective: Supplementary guidelines (2018).
[22] Jane Anderson and Gregory Younging, “Renegotiated relationships and new understandings: Indigenous protocols”, in P.W. Elliott & D.H. Hepting (eds), Free Knowledge: Confronting the commodification of human discovery, (University of Regina Press, 2015).
[23] Ibid.
[24] Australian Law Reform Commission, Privacy protocols for Indigenous groups, in For Your Information: Australian Privacy Law and Practice (ALRC Report 108), Vol.1, Sec. 7, (Australian Law Reform Commission, 2010) < https://www.alrc.gov.au/publication/for-your-information-australian-privacy-law-and-practice-alrc-report-108/7-privacy-beyond-the-individual/traditional-laws-and-customs-of-indigenous-groups/>.
[25] Mark Polden and Mark Pearson, The Journalist’s Guide to Media Law: A Handbook for Communicators in a Digital World (Taylor & Francis Group, 2019).
[26] Ibid.
[27] Eatock v Bolt (2011) FCA 1103.
[28] Ibid.
[29] Racial Discrimination Act 1975 (Cth) s.18C.
[30] Sarah Joseph, “Free Speech, Racial Intolerance and the Right to Offend: Bolt before the Court” (2011) 36(4) Alternative Law Journal.
[31] Ibid.
[32] Eatock v Bolt (2011).
[33] Ibid.
[34] Ibid.
[35] Marie Iskander, “Balancing Freedoms And Creating A Fair Marketplace Of Ideas: The Value Of 18c Of The Racial Discrimination Act” (2014) 8(10) Indigenous Law Bulletin.
[36] Katharine Gelber and Luke McNamara, “Freedom Of Speech And Racial Vilification In Australia: ‘The Bolt Case’ In Public Discourse” (2013) 48(4) Australian Journal of Political Science.
[37] Calla Wahlquist, “Channel Seven settles defamation case with Aboriginal community over Sunrise segment” Guardian Australia (2019) < https://www.theguardian.com/media/2019/dec/12/channel-seven-settles-defamation-case-with-aboriginal-community-over-sunrise-segment>.
[38] Ibid.
[39] O’Brien Solicitors, “Residents of Yirrkala Aboriginal community and Channel Seven head to mediation in defamation case” (Media Release, 16 September 2019) < https://obriensolicitors.com.au/residents-of-yirrkala-aboriginal-community-and-channel-seven-head-to-mediation-in-defamation-case/>.
[40] Ibid.
[41] Hannah Blackiston, “Seven agrees to court-enforced independent review of Sunrise” Mumbrella (2019) < https://mumbrella.com.au/seven-agrees-to-court-enforced-independent-review-of-sunrise-584350>.
[42] Ibid.
[43] Janke, Indigenous cultural protocols and the arts (2016).
[44] ALRC, Traditional laws and customs of Indigenous groups, (2010).
[45] New South Wales Aboriginal Justice Advisory Council, Submission PR 501, (2007).
[46] “Indigenous Cultural And Intellectual Property (ICIP) (AITB) – Arts Law Centre Of Australia”, Arts Law Centre Of Australia (Webpage, 2021) <https://www.artslaw.com.au/information-sheet/indigenous-cultural-and-intellectual-property-icip-aitb/>.
[47] Australia Council for the Arts, Protocols for producing Indigenous Australian media arts, (Australian Council for the Arts, 2007) <https://www.australiacouncil.gov.au/workspace/uploads/files/media-protocols-for-indigenous-5b4bfd105bfa3.pdf>.
[48] ALRC, Traditional laws and customs of Indigenous groups, (2010).
[49] Ibid.
[50] New South Wales Aboriginal Justice Advisory Council, Submission PR 501, (2007).
[51] Ibid.
[52] Mason, “Reporting Black Lives Matters” (2020).
[53] Media Diversity Australia, Who Gets to Tell Australian Stories? (Media Diversity Australia, 2020) < https://www.mediadiversityaustralia.org/wp-content/uploads/2020/08/Who-Gets-To-Tell-Australian-Stories_LAUNCH-VERSION.pdf>.
[54] Ibid.
[55] Rhanna Collins, “The media diversity report excluded NITV, but we tell Indigenous stories everyday” Mumbrella (2020) < https://mumbrella.com.au/the-media-diversity-report-excluded-nitv-but-we-tell-indigenous-stories-everyday-639294>.
[56] Kerry McCallum, Lisa Waller and Michael Meadows, “Raising The Volume: Indigenous Voices In News Media And Policy” (2012) 142(1) Media International Australia.
[57] Ibid.
[58] Ibid.
[59] Sweet, “Decolonising Practices” (2014).
[60] Australian Broadcasting Commission, ABC Cultural Diversity Plan 2019-2022 (ABC, 2019) <http://about.abc.net.au/wp-content/uploads/2019/11/ABC-Diversity-Inclusion-Plan-201922.pdf>.
[61] Ibid.
[62] Ibid.
[63] Mason, “Reporting Black Lives Matters” (2020).
[64] Janke, Indigenous cultural protocols and the arts (2016).
[65] Ibid.
[66] Ibid.
[67] Bonita Mason, “FRONTLINE: Journalism Practice And Critical Reflexivity: A Death In Custody Interview” (2014) 20(1) Pacific Journalism Review.
[68] Bonita Mason et al, “Putting The Love Back In To Journalism: Transforming Habitus In Aboriginal Affairs Student Reporting” (2016) 1(1) Journal of Alternative & Community Media.
[69] Ibid.
[70] Ibid.
[71] Johnston, Royal Commission into Aboriginal Deaths in Custody, (1991).
[72] McCallum, “Raising The Volume” (2012).
[73] Plater, “Aboriginal People And The Media” (1993).
[74] Janke, Indigenous cultural protocols and the arts (2016).
[75] Mason, “Reporting Black Lives Matters” (2020).
[76] Ibid.
[77] Janke, Indigenous cultural protocols and the arts (2016).
[78] Hollinsworth, “’My Island Home’” (2005).
[79] Mao, “Why Aboriginal people are still dying in police custody” (2021).
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