Australian Freedom Commissioner, Tim Wilson -Image, www.sbs.com.au

Australian Freedom Commissioner, Tim Wilson -Image, www.sbs.com.au

When one looks up the definition of Ideological Zealot in the dictionary, there is every possibility that you will come across a picture of our Freedom Commissioner in Australia, Tim Wilson. His ideological zeal was laid bare this week when discussing the Charlie Hebdo issues he said “Charlie Hebdo and the events in Paris have clearly demonstrated around the world that people think people should have the freedom to offend or insult and that is a very different thing from public harassment.

The Human Rights Commissioner said despite the Act not applying directly to issues of religion, “there is no ambiguity that Charlie Hebdo would be censored in Australia”.

So let us look at that statement and the Act in some detail. The Australian Human Rights Commission that is the body dealing with the application of the Act (Racial Discrimination Act 1975) describes the issue as follows:

Racial Hatred Defined

Since the introduction of provisions dealing with racial hatred in 1995, the Racial Discrimination Act makes it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race. Specifically, the Act states:

It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people, and (b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group. 

A variety of acts can constitute racial hatred, including speaking, singing and making gestures in public, as well as drawings, images, and written publications such as newspapers, leaflets and websites.

There are three essential components of this unlawful conduct:

1) The act must be done in public; 2) It must be reasonably likely to offend, insult, humiliate or intimidate the people against whom it is directed; and 3) It must be done because of the race, colour or national or ethnic origin of the group against whom it is directed.

These elements are considered individually below. It should be noted that some public acts are exempt from the provisions. The exemptions are outlined later in this section.

1) The act is done “otherwise than in private”

The legislation requires that the act be done “otherwise than in private”. Words, sounds, images or writing communicated to the public are acts done ‘otherwise than in private’. As the Internet is one means by which words, sounds, images and writing are communicated to the public, the legislation clearly applies to this medium. In addition, any act done in a public place or within sight or hearing of people who are in a public place is an act done ‘otherwise than in private’. A public place is defined by the Act as “any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission”. Consequently, in addition to the Internet, the legislation applies to behaviour in shops, pubs, streets, talkback radio, workplaces, public transport, sporting arenas and parks.

Conversely, if the act happens in private, for example, as part of a private telephone conversation or in a private place, such as a person’s home, it is not unlawful.

2) The act is reasonably likely to offend, insult, humiliate or intimidate

The victim’s perspective is the measure of whether an act is likely to offend, insult, humiliate or intimidate. For example, if derogatory comments are made against Indigenous people, the central question to ask is whether those comments are likely to offend or intimidate an Indigenous person or group, not whether they have this effect upon a non-Indigenous person.

At the same time, the victim’s response to the words or image must be reasonable. That is, the “yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of relations among racial groups.” This is called the ‘reasonable victim’ test. The ‘reasonable victim’ test allows the standards of the dominant class to be challenged by ensuring cultural sensitivity when deciding the types of comments that are considered offensive.

3) The act is done because of the race, colour or national or ethnic origin of the group

The conduct must be racially-based in order for it to be covered by the legislation. There might be several reasons for an offensive communication and, in such cases, it is only necessary that one of these reasons be race, colour or national or ethnic origin.

So what do we learn from the above? Clearly the issue comes down to whether the act of vilification that is undertaken on the basis of the “race, colour or national ethnic origin of the group”. Therefore it then comes down to examine if Charlie Hebdo’s cartoons would have been done on the basis of someone’s “race colour or national origin”.

The cartoons in question herein related to the depiction of the Prophet Mohammed. He is a prophet in the religion of Islam. There is no doubt that Islam is a religion. In Perth alone, Islam covers around 53 or more ethnic groups such as Malaysian Muslims, Somali Muslims etc. So Islam is not a race, ethnic group or colour. Therefore, nothing that Charlie Hebdo did/does in the area of Islamic ridicule will fall for consideration under section 18c of the Act. But what of the cartoons they have done in respect of the Pope (Benedict) kissing one of the Vatican Guards? Again, clearly the offence is directed to the Catholic religion and would not be considered under section 18c. And finally what of the cartoons they have done in respect of the Holocaust and related matters of Jewry?

I have addressed this issue before in the pages of The Stringer. My analysis then was as follows:

“Then commenced a fairly extensive process of research to determine which groups would be covered and which would not. The case of Mandla v Dowell-Lee in the United Kingdom (which also has application here in Australia) was one of the significant cases examined. The main issues to come out of that case were as follows:

In the United Kingdom the landmark legal case Mandla v Dowell-Lee placed a legal definition on ethnic groups with religious ties, which in turn has paved the way for definition of ethnoreligious group. Both Jews and Sikhs were determined to be ethnoreligious groups under the Anti-Discrimination (Amendment) Act 1994 (see above).

The Anti-Discrimination (Amendment) Act 1994 made reference to Mandla v Dowell-Lee which defined ethnic groups as:

  1. a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;
  2. a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant:
  3. either a common geographical origin, or descent from a small number of common ancestors;
  4. a common language, not necessarily peculiar to the group;
  5. a common literature peculiar to the group;
  6. a common religion different from that of neighbouring groups or from the general community surrounding it;
  7. being a minority or being an oppressed or dominant group within a larger community. For example, a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups

The significance of this case was that groups like Sikhs and Jews could be protected under the Race Relations Act 1976.

So the bottom line is that Charlie Hebdo’s cartoons of Mohammed would not have been censored in Australia. However any cartoons of the Holocaust and possibly of Sikh issues would have been censored. This is, by any logical consideration an outcome that is confusing and possibly anomalous.

The Freedom Commissioner, Mr Wilson is right when he asserts that Charlie Hebdo would have been censored in Australia. But the contradiction is that it would only have been censored in respect of racial groups and Jews and Sikhs. Is this an outcome we want?

Of course Mr Wilson was joined by the usual suspects in this area. Senator Dean Smith, Senator Corey Bernardi and David Leyonhjelm have all jumped on the Wilson bandwagon to also assert their desire to repeal section 18c.

“Senator Smith called on both sides of politics to “rise above partisan politics and build a legislative monument to the human price paid by France for its defence of freedom of expression”.

“By agreeing to remove the words ‘‘offend’’ and ‘‘insult’’ our parliament will have kept the protections against ‘‘humiliate’’ and ‘‘intimidate’’.

“There is no homage too large for the suffering, loss and fear experienced by our French friends.”

All of these senators and defenders of free speech were completely silent in the condemnation of the killings in Peshawar or the atrocities committed in Nigeria by the Boko Haram. Yet in the case of the French, Senator Smith indicates that “there is no homage too large”! At least be consistent Senator Smith. Human lives are of similar value irrespective of the colour of their skin or the national origins.

Finally in looking at the application of section 18c to Charlie Hebdo let us also look at the exemptions that apply herein:

Again we go to the Australian Human Rights Commission who say the following in relation to exemptions:

“Exemptions

To protect freedom of expression, the legislation sets out certain circumstances in which the prohibition will not apply, providing the person has acted reasonably and in good faith. First, if the communication is part of an artistic work it is not unlawful. Also excepted are academic and scientific works and debates or comments on matters of public interest. This permits a range of public policy issues to be debated such as multiculturalism, native title and so on. The media are given considerable scope in a third exception which permits fair and accurate reporting on any matter of public interest. This last exception enables the media to report on public issues, such as racial incitement or racially offensive conduct. It also allows editorial opinions and the like, providing they are published without malice.

Offensive racially-based material is permitted in these fields provided the person communicating the material has acted “reasonably and in good faith”. Good faith generally means that there is no improper motive, such as malice. A lack of good faith can be shown by a deliberate intention to mislead or by a culpably reckless and callous indifference to the offense or denigration caused by the communication. Carelessness or indifference is usually not sufficient to show a lack of good faith. Because of considerations of freedom of speech, wide latitude is generally permitted when determining what is reasonable.

At the time the legislation was introduced in 1995, the Government explained that, “It is not the intention to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes what he or she is saying.” “

No doubt some of you will throw the case of Andrew Bolt up at this point as a clear indication that the exemptions do not work. In the case of Bolt the following was found:

“Federal Court Justice Mordecai Bromberg found Bolt had breached the act because the articles were not written in good faith and contained factual errors. He set out to offend from the word go and in fact he acknowledged that in his evidence. He said the articles would have offended a reasonable member of the Aboriginal community”

Further analysis of the issue was conducted in The Drum recently:

“Why did Andrew Bolt miss out on 18D’s protection? Because it was found he was lacking good faith.

Back to Charlie Hebdo. When it published a cartoon of a French government minister, who was black, with a monkey’s body, it no doubt offended, insulted and humiliated the minister and it did so because of her race or colour. If it was published in Australia, it would certainly trigger 18C, and the freedom fighters rest their argument for the repeal of 18C at that point. But what about 18D?

A cartoon is an artistic work. Charlie Hebdo, in invoking 18D, would say that its cartoon was in addition fair comment, as well as reasonable and in good faith, because it was in fact an ironic comment on racism intended to point the finger at French racists who habitually portray black people as monkeys.

Whether that defence would succeed, I don’t know. It would require a deeper exploration of the context than my dodgy French language skills allow. But it’s completely wrong to say that cartoons like that could not be published in Australia. Mostly, they can. Section 18D is designed to protect artistic and literary freedom of expression, and the good faith exception is plenty broad enough to achieve that. The case law bears it out. Charlie Hebdo’s use of caricature and language at the outer edge of satire is in an entirely different universe from the publication of factually wrong statements about individuals for the purpose of denigrating them on racial grounds.”

The final word on all of this is to say that Tim Wilson is clearly wrong when he says that Charlie Hebdo would not be allowed to be published in Australia because of section 18c. That section would only apply to “race” issues and not “religious” ones. And the exemptions would apply to prevent any banning of the publication.