Attacks on free speech continue while legislation enables them

Leak’s cartoon of August 4, which is the subject of a complaint to the AHRC by a certain Melissa Dinnison, depicted an indigenous policeman returning an ­offending indigenous child to an irresponsible father.

If a cartoonist cannot make such a statement, at a time of documented child neglect in some indigenous communities, then there is no real future for this ­important art form in Australia.

I have admired Leak’s work for years, but not without ­occasional disagreement. In 1995 I was one of the numerous critics of the award-winning book The Hand that Signed the Paper by Helen Demidenko (as she then was, later reverting to the name Helen Darville). I criticised the book for what I regarded as its ­latent anti-Semitism and inaccurate history of the one-time communist regimes in eastern Europe.

Critics of The Hand that Signed the Paper included Louise Adler, Ramona Koval, Guy Rundle, Pamela Bone and Robert Manne. Supporters of Demidenko’s work included Leonie Kramer, Jill Kitson, David Marr, Michael Leunig and Andrew Riemer.

As Manne documented in The Culture of Forgetting (1996), none of the critics ofThe Hand that Signed the Paper urged that legal action be taken against the book or that it should be censored in any way.

Leak was on team Demidenko. On January 20, 1996, The Australian ran a Leak cartoon of someone who looked like me, dressed in a Nazi uniform, overseeing a woman who looked like Demidenko being burnt at the stake. As Manne described the cartoon, “in the background an ­assembly of wild-eyed fanatics bayed for her blood”.

I’m not sure that Leak would draw the same cartoon today. But he should be entitled to.

Leak’s cartoon of August 4 does not identify any particular person. That’s why Dinnison has had to take offence herself and on behalf of (unnamed) others. There are no adult women in Leak’s cartoon so she has no individual involvement in the work.

Appearing before the Senate legal and constitutional affairs committee on Tuesday, AHRC president Gillian Triggs said she was willing to work with Coalition MPs on a bill allowing to junk more readily frivolous complaints brought under the Racial Discrimination Act. This is a possible first step for needed reform in this area.

I had no problem with sections 18C and 18D when they were introduced by the Keating Labor government in 1995. But this was before the predilection to take ­offence became so prominent in Australia and elsewhere.

The evidence suggests many Australians are likelier to feel offended, insulted, humiliated or intimidated than was the case two decades ago.

The implications of the possible effect of 18C and 18D became clear after Justice Mordy Bromberg’s Federal Court decision in Eatock v Bolt in September 2011.

Several of what Bromberg called “fair-skinned Aboriginal people” took offence at comments made by News Corp columnist Andrew Bolt.

Sure, there were some errors in Bolt’s columns that mitigated against the respondent receiving protection under section 18D, which covers public comment done reasonably and in good faith. However, the disturbing fact in Bromberg’s judgment is that he found against Bolt not so much for what he wrote but for what he didn’t write.

The decision in Eatock v Bolt was not appealed. Consequently it is the definitive recent judgment so far with respect to 18C and 18D. In his decision, Bromberg made nine references to Bolt’s “tone” and said on two occasions that to fully understand Bolt’s column it was necessary to “read between the lines”. Now, tone is a subjective phenomenon. Moreover, reading between the lines requires a degree of imagination beyond the actual text.

Bolt went down on 18C for the written word. Leak may or may not end up before the Federal Court. If he does, it’s possible that his cartoon of August 4 may be judged on more than the text that accompanied his drawing and with reference to “tone”.

In the meantime, Leak and The Australian have been asked to file submissions in defence of the cartoon and to advise if the cartoonist and the newspaper would be willing to enter into a conciliation process to try to resolve the complaint. If the latter process takes place, it would require that one of Australia’s leading cartoonists be required to justify his art to a complainant in the presence of ­bureaucrats.

If, after such process, the complainant remains unsatisfied, she may take the matter to the Federal Court.

This is what has taken place with respect to three Queensland University of Technology students following the decision of a complainant to take offence that the students criticised the fact they were not permitted to use a computer room set aside for indigenous users that was vacant at the time.

The QUT students face a possible financial payment along with legal costs.

Once upon a time such matters were resolved in public debate. This was the case with Demidenko’s book two decades ago. And it should be the case with Leak’s cartoon. After all, Leak has been subjected to widespread criticism that has included the most unfair allegation that his August 4 cartoon was racist. And Leak, along with his supporters, has defended the work.

Unless the AHRC takes the ­unlikely step of declining to accept general offence as a cause for ­action, the attacks on free speech are likely to continue.

In the end, Tony Abbott gave up his attempts to reform section 18C because he determined that he could not get such legislation through the Senate. Malcolm Turnbull probably would face a similar reality if he moved in this direction.

So the silencing of Australia is not likely to be overturned by legislation in the near term.