A group of Aboriginal applicants have today lodged a group complaint to the Human Rights Commission against the multinational suppliers of the free online App/Game ‘Survival Island 3 – Australia Story 3D’ for racial vilification under section 18C of the Racial Discrimination Act (RDA).
Survival Island 3 was developed by NIL Entertainment and made available worldwide online, including for download in Australia via a number of app stores including Apple iTunes, Amazon, and Google Playstore. The game creators and developers are located overseas.
Readers may remember the IndigenousX article written by Ray Wilson, who first made the app public on Facebook in a post that soon made news all around the country and quickly led to an online petition with over 80,000 signatures on Change.org and eventually led to the removal of the app from some of the larger app stores. The game involved bludgeoning an Aboriginal person to death, and although some people defended it by noting that there are games where people of all races and colours are killed, better comparisons asked people to imagine the outrage if a game allowed you to play a Nazi in World War II hunting Jewish people. It is not that it is impossible to have a game where an Aboriginal person could die or be killed, it is about the manner in which it was portrayed in this game. An important distinction to make.
The group lodging the complaint is made up of several prominent Indigenous voices, including Ken Canning, Sam Watson, Larissa Baldwin, Murrawah Watson, Joe Williams, and Georgia Mantle.
The group complainants hope that by taking this action it will help clarify whether making available games of this kind is acceptable under Australian law.
The game creators and developers are located overseas and it is not suggested that they are affiliated in any way with the companies that are subject to the complaint. The basis of the complaint is that companies that have provided or are providing access to the App have made available material that contravenes the RDA.
The complainants seek to compel Apple, Google and Facebook to:
- modify their policies and procedures to ensure that they do not make apps/games available on their platforms which contain material that is likely to offend, insult, humiliate or intimidate on the basis of race.
- publicly denounce NIL Entertainment for developing the Game.
- publicly apologise to Indigenous Australians for making the Game available on their platforms and services.
- make a donation to an Indigenous charity that educates the wider Australian community about issues related to cultural pride.
The group also seek to compel Facebook to remove the Group Page “Survival Island 3 Hunt the Aborigines”. Uncle Kenneth Canning wrote to Facebook and requested it voluntarily remove the Group Page. However, Facebook responded that the Group Page did not contravene its community standards. Mr Canning states in his complaint: “I am 63 years of age and have had first-hand experience of violence against Our Peoples. Given the history of the massacres of Aboriginal and Torres Strait Islander Peoples, I find such a game to be highly offensive.”
There have not been many apps including any reference to Indigenous Australians so far, and even less made by Indigenous people, and even fewer that are games – most thus far have been those based on promoting services or events.
This pattern will undoubtedly change as apps become easier to create and distribute, and hopefully the ongoing push to increase Indigenous engagement in Science, Technology, Engineering and Mathematics (STEM) will see more apps created by Indigenous people. There will likely to continue to be non-Indigenous people who create apps that seek to capitalise on Indigenous people, culture and issues and that fail to demonstrate respect, insight or understanding.
However, there are some recent examples of very positive Apps for indigenous knowledge in Australia including the “Welcome to Country” App developed by Tyson Mowarin that educates users about the diverse Indigenous nations that make up Australia. Each time a user crosses into a different nation, the app sends a push notification and a traditional owner welcomes them to country via video. Another example is the Yugambeh App, Queensland’s first Aboriginal language app created by the Yugambeh Museum in Beenleigh, south of Brisbane. The App is helping to keep dozens of Queensland Indigenous languages alive and teaching a new generation with a simple tap and swipe.
This case could be crucial to ensure that future app developers seek to work in partnership with Indigenous people and groups to ensure that we do not see a repeat of this kind of app. It could also serve as a clear warning to larger groups like Apple and Google to be more mindful of which games they choose to promote on their online stores and how they rate them, and to sites like Facebook who regularly come under criticism for their refusal to remove racist pages and posts online, and also for their lack of respect and awareness about Indigenous peoples and cultures.
Beyond the scope of online attitudes and behaviours though, this case will inevitably face fierce opposition from various media outlets, right wing commentators, and politicians who have been actively campaigning against 18C ever since Andrew Bolt was found by a court to have violated the Racial Discrimination Act. It is important to note that, in his ruling on this case, Judge Bromberg stated that: “I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.”
That distinction is important because many people, including Bolt himself, have wilfully misinterpreted this point to assert that Bolt got in trouble simply for talking about Aboriginal identity, rather than the reality that he was found to have breached the RDA because he wilfully and maliciously misrepresented information for the purpose of racially vilifying numerous people.
This latest case, and its eventual success or failure, will likely play an important role in influencing people’s attitudes to the ongoing need for protection against racial discrimination and vilification.
The group is being represented by a prominent pro bono legal team including Sydney barrister Craig Leggat SC instructed by human rights lawyer Benedict Coyne from law firm Boe Williams Anderson. Mr Coyne stated: “My clients have launched their claim under section 18C of the RDA alleging that the App is offensive, humiliating and intimidating on the basis of race and that its promotion should not be supported in the public domain. It is hoped that this action will assist in defining the bounds where free speech ends and where racial vilification begins.”
My Coyne continued: “Whilst there has been significant controversy and misconception about the scope and application of section 18C in recent years, our law entitles people in our country to take action where public statements or content goes beyond free speech and enters the realms of racial vilification. It is important that we reflect on the intergenerational trauma of indigenous Australians. The RDA seeks to protect vulnerable and marginalised minorities from racially based offensive, insulting and humiliating conduct by publicly outing such malicious mischief and sending a strong and educative message to the broader Australian community that racism is not acceptable in a civilised country such as ours.”
This is the case that will be tried in the courts of public opinion. Should people have legal protection against racial discrimination and vilification? The case that will be played out in the courts will potentially have a huge impact on people’s understanding of that question.
Opponents of 18C will inevitably argue that everyone is equal under the law, and that free speech is compromised if people aren’t allowed to actively incite racism – even if it involves malicious and intentional misrepresentation of information and defaming of individuals. There is already a dearth of online opinion regarding Survival Island 3 highlighting that often in online shoot and kill games characters of all ethnic and racial persuasions are targets of the player. However, such perspective betrays the key misconception of opponents of section 18C in that they do not understand the experiences of individuals and groups who have been subject to gross racial discrimination, racial vilification, racial hatred, xenophobia and even genocide. Indeed, in the aftermath of the Eatock v Bolt case we saw a whole lot of privileged white men opining on how they did not see the necessity for a ‘low threshold’ of “mere offence” in section 18C because apparently we all live in a robust democracy and should be able to take it on the chin. Of course, these white commentators have neither been racialised in their lives, nor marginalised let alone racially discriminated against or subject to the levels of ongoing intergenerational trauma that Aboriginal Australians have to cope with.
In these situations, it becomes crucial to seek to understand the legacies of unresolved intergenerational trauma from relatively recent genocidal policies. This means that offensive behaviour on the basis of race is worlds apart from the arguments we see between privileged white men during Parliamentary question time. The legacy of race in Australian history is not a level playing field. The RDA seeks to protect vulnerable and marginalised peoples from racially based offensive, insulting and humiliating conduct by publicly outing such malicious mischief and sending a strong message to the broader Australian community that racism is not acceptable in the 21st century.
The truth though is that all people are not treated equally under our law, and that the dangers of inciting racial hatred and misinformation against Aboriginal people and various other groups is likely to have very real negative impacts that will further entrench personal and systemic racism and discrimination and that has in the recent past led to violence and racist policies (not mutually exclusive) being enacted.
Cases like Bolt vs Eatock could have easily been fought and won under defamation law, but the impacts of the racial vilification impacted on many other Aboriginal people as well, as was intended. That is why it was important to fight it under the RDA.
Cases like Survival Island 3 though, where no individuals were named but many Aboriginal people were affected, could not fall under defamation law and can only be addressed under 18C. This why the RDA is so important; racism, even when aimed at the individual, impacts on the group in a way that defamation law doesn’t recognise.
Every other day we hear racist comments from politicians arguing for more racist policies and practices and these show us the implications of just how quickly Australia could revert to the overt racism of yesteryear, and reminds us that we need to be vigilant to ensure that history does not repeat itself. We need to explore ways to strengthen protections from racial discrimination and vilification, yet at the moment we are struggling to keep the insubstantial protections that exist.
Whether we see these laws strengthened, watered down, maintained, or removed altogether, will likely depend on the outcome of cases like this one.
And in an atmosphere where members of the extreme right are increasingly able to dictate terms on policies impacting directly on race, gender and sexuality, these sort of protections are going to be of the utmost importance.
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