Bill Leak is, presumably, enjoying his status as a one-man outrage generator. Why he’d want to be that person is unknowable. There is a case for not acceding to his desire by giving his work free publicity and leaving it known only to the demographically specific readership of The Australian. Faint hope though.
The giving and accepting of public outrage run in a recursive loop now; both parties to the bargain get the emotional feed they seek and the media gladly accept the bonanza of cheap and easy content generation.
[The nine-step Bill Leak outrage cycle]
Regrettably, the little sleeper known as “18C” is in the thick of this War of Perpetual High Dudgeon, in harness to the competing agendas of “That’s hate speech!” and “I’m being silenced!”
Which brings us to Leak’s extra-special cartoon effort from August. Inevitably, someone has lodged a complaint with the Australian Human Rights Commission that the cartoon’s publication contravenes section 18C of the Racial Discrimination Act. The AHRC is currently attempting to mediate a resolution. I expect this one will be heading to court.
Bill Leak, The Australian
The cartoon doesn’t bear much analysis in terms of its contribution to civic debate, but should the law prevent it?
So far as it’s relevant to this case, 18C goes like this:
It is unlawful for a person to do an act [which] is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a group of people; and the act is done because of the race, colour or national or ethnic origin of some or all of the people in the group.
The 18C anthem should (but rarely does) include its second verse, 18D:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
- in the performance, exhibition or distribution of an artistic work; or
- 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
- in making or publishing:
- a fair and accurate report of any event or matter of public interest; or
- 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.
If you read all that and wonder how it is that any complaint under 18C could ever succeed, well, yes, exactly. In fact, there have been few successful claims.
[Amending 18C is pointless — bigots already speak freely]
I am trying desperately to write this without giving Andrew Bolt any more oxygen, so just a reminder that the sole reason he lost his 18C case was that the Federal Court found the 18D defences to be unavailable to him because he had not acted reasonably and in good faith.
A more interesting reference point for Leak’s case is another cartoon that triggered a big 18C fight. In 1997, a cartoon in The West Australian newspaper provoked a complaint that went all the way to the High Court.
The cartoon referred to Yagan, who was an ancestor of the Nyungar indigenous group; there had been a controversial legal case over the return of his head from the UK, which was a big story in WA at the time. The cartoon sought to make fun of the subject with what I guess the cartoonist saw as some sharply pointed observations.
As with Leak, the Yagan cartoon sought to draw an unsubtle counterpoint between social/political theory and a particular viewpoint on Aboriginal lived reality. After a contested hearing, the Human Rights and Equal Opportunity Commission accepted that a reasonable person of Aboriginal descent would have found the cartoon offensive, insulting, humiliating or intimidating on various grounds, including the demeaning portrayal of Yagan, derogatory references to the spiritually significant Wagyl figure, treatment of death in a way that is offensive to Aboriginal people and reinforcement of the stereotype of Aboriginal people taking advantage of government grants.
So the cartoon did trigger 18C, but it failed to clear the hurdle of 18D. It obviously being an “artistic work”, the only question was whether the publisher had acted “reasonably and in good faith”. The commission said it had.
This is the critically important point about 18D — it’s a really high bar. The test from an earlier case, which the commission applied, was that to find a lack of good faith “requires the Commission to identify conduct that smacks of dishonesty or fraud; in other words something approaching a deliberate intent to mislead or, if it is reasonably foreseeable that a particular racial or national group will be humiliated or denigrated by publication, at least a culpably reckless and callous indifference in that regard.” Carelessness or casual indifference won’t suffice.
The Nyungar complainants kicked on to the Federal Court and then the full Federal Court. Both courts found that the commission had applied the correct legal test, and the appeals failed. The saga ended finally in 2005 when the High Court refused special leave to appeal to it.
[Take note, David Leyonhjelm: 18C is not all about Andrew Bolt]
The law hasn’t changed. The same principles will be in play if and when Leak has his day in court. It’s not a radical prediction to say that the cartoon will be found to fall foul of 18C; it’s patently offensive to Aboriginal people and directly targets them and nobody else. The only question will be whether Leak and The Australian acted reasonably and in good faith.
And there, in my opinion, the case will certainly fail. Leak’s cartoon is repulsive, pig-ignorant bile that was designed to hurt an already marginalised racial group and achieved that aim. However, in doing so, he was simply expressing a bigoted opinion, not telling deliberate lies.
Our racial vilification law, in the combination of 18C and 18D, sets a tough test. It favours freedom of expression, in the forms that 18D specifies, over the protection of racial and ethnic sensitivities no matter how acutely they are felt. In this way, we stand somewhere between the freedom to engage in hate speech, which the US constitution preserves, and the extensive restrictions on expression, which most of post-Holocaust Western Europe considered necessary given its history. Australia’s law leaves the field open for cartoonists, humourists, columnists and bloggers to express their prejudices and only risk a problem if they stray down the Bolt path of making stuff up.
The status quo is equally unsatisfying for both sides of the outrage industry. The agents of outraged sensibility are barking up the wrong tree if they think 18C is a potent weapon for curbing racist expression in Australian public discourse. And those demanding repeal or amendment of 18C obviously haven’t read 18D or don’t care to.
That equivalence of unhappiness is a sure sign that we’ve got the balance right.
Looked at the cartoon excellent social comment – An aboriginal law enforcement officer giving practical approach to another member of the same cultural group – fantastic juxtaposition showing the social dilemma.
Now there is a professional class of people – the offended – who use the multimillion dollar vehicles -the Commissions and Commissioners as a mouthpiece for their own grievances against the normal world -should these commissions be classed as variant of national mental health programs?
I have have a good academic suggestion – could an economics graduate or sociology graduate do a Ph.D in the number of Commissioner/Commisssioners in Australia- an Excel spreadsheet would suffice as a starting point.
Didn’t Crikey have an interesting article recently on the useless debt the nation is carrying ?
Let’s do the crowd sourcing thing -what can I be offended about? – I would like to join the OFFENDED [the OFDD community]- please leave list in the comments. OR have a plebiscite on the topic.
If you don’t agree with me you are a grubby OFFENDOPHOBE.
Michael Bradley: I feel you’ve abandoned your usually reliable judgement in this article- especially these two assertions without proof.
[1. ]”Leak’s cartoon is repulsive, pig-ignorant bile [2.]that was designed to hurt an already marginalised racial group and achieved that aim.”
1. Way over the top mate. We’ve had a Royal Commission into the issue Leak speaks of. Noel Pearson agrees with the sentiment of the cartoon, that parental responsibility is a key issue in indigenous communities. Community sentiment is divided on whether Leak’s view is racist or not. Personally, I think we need to be able to make generalisations about community groups; be they races, ethnicities, genders, religions, sporting clubs, nationalist political parties, news-groups owned by Rupert Murdoch, the ABC and Australian Tennis Players.
How else do you address issues arising out of structural defects or other causes within particular community groups? If you cannot discuss these matters without fear of a spurious and potential costly complaints, then we have a problem. Why no mention of the QUT students?
2. Are you a mind reader?
It is no answer to say section 18D provides exemptions to 18C. 18C already creates uncertainties about how vague terms like offend, insult and humiliate will be applied in any given situation. Section 18D compounds these uncertainties.
The tone of your article seems to brook no dissent – any disagreement would be viewed as prejudice. As if it’s only racists who defend 18C. That’s a bit of a gross generalisation, don’t you think?
And, not everyone agrees with the rather specious argument that 18D (which, tell Waleed also, most people DO know about now) mitigates the obvious subjectivity of 18C.
From ABC http://www.abc.net.au/news/2016-08-31/section-18c-too-broad-and-too-vague-and-should-be-repealed/7801244
“For example, all exemptions in 18D must be done “reasonably and in good faith”. This has been held to impose a “harm-minimisation requirement”. But what does this mean? Reasonable minds may differ whether a statement was a heartfelt opinion or an insult that could have been expressed more sensitively.”
How about Crikey speak to the ABC about reintroducing The Drum under an independent banner, and then perhaps the contest for clicks might not be such an obvious influence on editorial comment.
Hugh, I do not know if you are legally qualified. I am. There is a fundamental error in your proposition that 18D is ‘no answer’: its entire job is to provide an answer. That is its purpose, its job, its effect. IT IS PRECISELY RELEVANT. Amen
I doubt you are. Most lawyers don’t use capitals unnecessarily because it makes you sound ANGRY(!!&%*).
The point you object to was a quote from the ABC article written by 3 lawyers. My point being: not all lawyers agree that 18D rescues 18C.
Perhaps all the legalese hides an even more pertinent issue. Is the cartoon displaying a known fact? Namely, as Noel Pearson seems to suggest, many of the indigenous woes come about because of parental indifference. This being the case, Bill Leake has done what cartoonists are paid to do. To point out the good and the bad about society.
Venise -you are quite right – that is part of the malignancy of law and lawyers in our society- they miss the point that social problems and society are not dependent regulatory frameworks but upon the actions of the populace.
Most lawyers have only a law degree which ill prepares them for social interaction- law teaches the enforcement of rights not duties to society.
Fine if depressing summary, MD.
So the state of play is that 18D means that the only time 18C has a point is when ‘bad faith’ can be proven to judicial standards. In which case there would be other existing laws which aggrieved parties could equally use to proceed, right. Defamation laws; criminal laws relating to harassment, incitement, intimidation; even an APVO. Genuine bigoted abuse that has a reasonable prospect of successful prosecution under 18C/D just doesn’t, um…need 18C/18D. Indeed, there’s a strong argument that 18C/D would be your ‘worst’ legal avenue if you have a genuine (bigotry based) intimidation/harassment/etc issue, isn’t there? An AVPO or Commonwealth Section 15 (or referred State laws) angle doesn’t carry that 18D type ‘good faith’ disclaimer – set that ‘high’ bar – quite so dauntingly. If you are being provably threatened/harassed/etc under Riki all laws, say, whether or not it’s an art/fair opinion is not so explicitly relevant; safer to try to nail the grub who paints racist graffiti on your mosque wall under public order or vandalism laws, presumably.
But that, of course, removes the exceptionalist identity politics victimhood/privileged guilt trip element from the civic interaction, MD, which is of course what 18C/18D is really all about. It’s a ‘law’ put into place to do the impossible (and undesirable): make it vaguely ‘illegal’ (and thus vaguely ‘punishable’ by law) to say, vaguely, ‘yucky’ things. And the inevitable and mournful outcome of such legal fudging has (surprise) turned out to be that its most prominent use has been in response to expressed views that we as a society find unpalatable not because they are ‘bigoted’ (whatever that even means) but because they hit home and they sting, someone, somewhere, with the wherewithal to make a HREOC case of it (which invariably means they’re not really a ‘victim’ at all, except as knowingly chosen role play). 18C/18D exists primarily as a conspicuously compassionate sop to the troubled conscience of a society that can’t quite bear to square up fully to the truth about how we treat certain groups in practical outcome terms. We distract ourselves from our sustained failure to actually deal with the ongoing tragedy of indigenous Australia by screeching ‘racist!’ at Leak. We distract our moral gaze from our archepalago of offshore concentration camps by creating a vague, pointless law ‘against’ saying racist things about the Sand Niggers (oops, oh dear me, report me, Crikey) we keep locked up and rotting there. We channel moral indignation that would be better directed at an Israel that insists on violently aiding and abetting its kookier citizens to steal land that doesn’t belong to them…into increasingly contrived hysteria about ‘the new anti-semitism’, generally on little more basis that some harmless Hitler fetishist’s fringe-crank cyber-muttering. We increasingly devote millions and millions of public dollars and tens of thousands of decent and well-meaning but utterly effete man-hours, via legally and morally toothless ‘public shame frenzy’ contrivances just like this one, to what is an elaborate exercise in hand-wringing self-absolution. At least the Catholics get their sinners to reel off some Hail Maries as penance.
Michael, with respect this is shit law, shitly thought out, shitly framed, shitly prosecuted (ie almost never, and then only using existing laws’ metrics and benchmarks) and shitly wasteful to administer. It almost always has a shit (deeply unsatisfying) impact on complainants and defendants alike, providing little to no real recourse for authentic victims of hateful bigotry and endless rich pickings for the totes cynical: vexatious litigants, Op Ed grandstanders, ‘free speech’ obsessives, professional victims and would-be martyrs alike…
Sometimes when both sides in a case are equally unhappy with how a law functions in practice, it doesn’t mean you courty lot have ‘got the balance right’. It just means your law’s fucked.
PS: if you genuinely think Bill Leak has drawn a ‘racist’ cartoon here, you’re a philistine. Such a response is of the dismal family (minor twig!) of regarding Merchant as anti-semitic or Brideshead as elitist or Lolita as misogynist/sexually creepy. It’s just…thunderingly point-missing and tone deaf to talent. Dinner party conversations at your place must be a right hoot, mate!
Cheers, a good, illuminating article.
‘Riki laws’…. criminal law…grr spellcheck.