According to Human Rights Commissioner Tim Wilson, many of the Charlie Hebdo cartoons would be banned in Australia due to the controversial section 18C of the Racial Discrimination Act. However, upon further reading of the Act and the relevant case law it seems that court ordered censorship of any cartoonists’ works is quite unlikely to occur.
Section 18C makes it unlawful for a person to do something in public that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin. On the surface, this appears to support Wilson’s comments made to ABC Radio on 13 January 2015 that “there is no ambiguity that Charlie Hebdo would be censored in Australia”. However, the ambiguity arises out of section 18D. This section exempts certain acts, including artistic work, that are done reasonably and in good faith.
The Bropho cases applied sections 18C and 18D to a satirical cartoon published in the West Australian newspaper in 1997. The cartoon implied a desire by some Aboriginal people to take advantage of public funding to travel to England through the depiction of an Aboriginal dreamtime story and the boxed head of historical Aboriginal leader Yagan. The Human Rights and Equal Opportunity Commission held the cartoon infringed section 18C, but found it to be an ‘artistic work’ protected by section 18D.
This is not to say that all cartoons will be protected by section 18D. The cartoon must be done reasonably and in good faith. However, the High Court when considering whether to allow an appeal of the Bropho decision recognised the practical difficulty in applying these concepts to a cartoon which intends to lampoon or ridicule.
In dismissing the appeal of Bropho, the Full Court of the Federal Court considered the meaning of ‘reasonably and in good faith’ in the context of section 18D. The court held artistic work will be done ‘reasonably’ if it is done for the purpose to advance the artistic expression. As for ‘good faith’, the artist must honestly and conscientiously endeavor to consider and minimise the harm it will inflict on people. The artist must also not use the freedom of speech and expression as a cover to racially offend, insult, humiliate or intimidate people.
Charlie Hebdo may argue that its cartoons are an ironic and satirical comment on racism and made reasonably and in good faith without targeting any particular group. Difficulty for cartoon artists in Australia may arise if they are found to more interested in justifying or perpetuating negative racial stereotypes than making an artistic contribution or comment. As the law in Australia stands, it seems unlikely that cartoons like those in Charlie Hebdo would be censored.
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