We defend Charlie Hebdo’s right to speak, but in Australia, its humour might be unwelcome and illegal
Since the murderous attack on those behind the French satirical magazine, Charlie Hebdo, people in democratic countries around the world have reaffirmed their commitment to concepts often last considered in the schoolroom: libertarianism, autonomy, and ‘freedom of expression’.
So too, Prime Minister Tony Abbott has urged Team Australia’s media not to “engage in self-censorship” as a result.
Yet self-censorship is part of the Australian media’s DNA. Our media must navigate our tolerance levels, and our laws, on a daily basis as part of the pre-publication process. Likewise, not all freedom of expression is created equal. Freedom of expression in Australia is more fettered than in some other jurisdictions such as the United States.
Much is off-limits for Australian humour. Our sacred cows include our soldiers (such as the Anzacs), our revered citizens (such as Dame Quentin Bryce), tragedies we have endured (such as the Port Arthur murders), and our native animals (such as koalas).
‘Sacred Cows’: The Chaser’s bread and butter
Sacred cows were bread and butter for The Chaser, one of the few high profile satirical skit shows Australia has seen on television in the last 10 years (with Chris Lilley a close second). Members of the group learnt to their peril (and that of their show) that the Australian tolerance for ‘edgy’ subject matter was limited. Examples included “The Eulogy Song” (17 October 2007). Intended to skewer the view that people with flaws during life are often disproportionately hailed as “top blokes” after their death, few deceased celebrities escaped The Chaser’s notice: Peter Brock, Princess Diana, Donald Bradman, Steve Irwin, Stan Zemanek, Jeff Buckley, John Lennon and Kerry Packer all rated a mention. Negative media attention followed, and then Prime Minister John Howard reportedly told cast members during his regular morning walk that “You blokes are a lot funnier when you pick on someone who’s alive”.
However, it was the ‘Make a Realistic Wish Foundation’ skit (3 June 2009) which arguably led to the premature demise of the series. Set in a terminally ill children’s ward of a hospital, and intended to spoof the Make-a-Wish Foundation, the premise appeared intended to undermine the charitable purpose of making children’s wishes come true if they were unlikely to live for very long. The public outcry was led by the next Prime Minister Kevin Rudd, who reportedly said that “…having a go at kids with a terminal illness is really beyond the pale, absolutely beyond the pale”. The broadcaster, the ABC, then apologized and suspended The Chaser from air for two weeks.
What is the Australian sense of humour?
Australians are citizens of a young democracy, relative to many other democracies. With Australia’s recent heritage firmly rooted in tales of convicts, Ned Kelly, larrikin behavior and mateship, our humour is more inclined to leave puppies and small children alone, but to attack the “tall poppies” who “ask for it”. Perhaps this general tone of irreverence in our daily interactions means our humour is not so hard edged.
Ian Mylchreest argues in Crikey that Australians do not get political satire at all, contrasting our approach to The Daily Show and Stephen Colbert in the USA. That said, from personal experience, the cynical, often sarcastic humour so bread and butter for Australians sharing a laugh at a barbecue, can often disappear over the heads of our more literal-minded American friends.
Against this backdrop, consider how well Charlie Hebdo’s humour might work here. A cartoon of a Muslim man and journalist pashing each other? A cartoon of an incontinent Pope? A cartoon of a naked woman with a burqa coming out of her behind? Maybe Tony Abbott was right when suggesting that Australian Catholics are used to being the butt (pardon the pun) of jokes, but it is hard to recall much of this in, say, the last 35 years, and certainly not in the vein of some of Charlie Hebdo’s confronting cartoons.
French satire is different
Perhaps the traditions and conventions hardwired into its citizens since ancient times drive some French satirists to deliver their humour with an extreme, serrated edge. Perhaps they feel the need to smack people around the head to get them to challenge the institutions so central to their identity. Someone who sits apart from this cannot possibly know, which is why it is worth reading two very interesting articles from Vox.com explaining Charlie Hebdo’s contribution to French satire generally, and analyzing some of Charlie Hebdo’s controversial covers.
Whatever the case, jokes by Australians in Australia about Muslims, Blacks and Jews must be handled very carefully indeed. Usually, these jokes are completely off-limits. Most of us were brought up knowing that the only person who can use the term ‘Wog’, is someone who is one. Only if you identify yourself as a member of a particular racial or religious group will you be allowed to poke fun of it. John Safran, the Australian comedian and social commentator, explores controversial religious themes from the perspective of someone who went to a Yeshivah College. Similarly, almost all the members of a recent lauded, indigenous comedy skit show on the ABC, Black Comedy, were – well – black.
Legal risk: Free speech in Australia about race or religion
In Australia, in addition to peer pressure, the law also can also significantly curtail free speech.
Australia has many laws limiting our free speech. Free speech is not constitutionally protected like it is by the First Amendment in the United States or by the motto Liberté, Égalité, Fraternité in France.
In Australia, the media must consider, amongst many other things, the effect of privacy law, defamation law and copyright law (which does though have a specific exception for satire). True it is, those laws exist elsewhere as well. However, Australia does not have, for example, a public figure test like in the United States (a defamation defence if the target of the adverse imputation is a well known person).
More controversially, as the columnist Andrew Bolt discovered to his detriment, section 18C of the Racial Discrimination Act in Australia prohibits speech of a particular character concerning racial or religious topics.
Specifically, section 18C makes it unlawful for someone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. The test is arguably very close to a subjective one, namely, ‘If I feel offended, you have offended me.’
The Washington Post has re-published the offending cartoon of Muhammad which caused the 2011 fire bombing of Charlie Hebdo’s Paris offices. In the cartoon, Muhammad was depicted as saying: “100 lashes of the whip if you don’t die laughing”. This cartoon was regarded as blasphemous by practising Muslims.
If an Australian media outlet were to republish this image, the cartoon would likely fall foul of section 18C. True it is, such a cartoon is unlikely to comprise hate speech. In a carefully considered post in The Conversation, Sarah Joseph explains why:
“The Charlie Hebdo cartoons were generally more likely to offend members of the targeted group than to generate hatred against that group. For example, its depictions of Muhammad and Islam were more likely to offend and hurt Muslims rather than generate hatred by non-Muslims against them.”
Yet, whilst it might not constitute hate speech, the offence to Muslims described by Ms Joseph is exactly the kind of conduct capable of being caught by section 18C.
Section 18D of the Racial Discrimination Act does provide a defence, although it is fairly limited in operation (hence the failed attempt to modify this law by the Federal Government in 2014). Yes, the distribution of artistic works such as cartoons can attract the exemption. However, this must have been done “reasonably” and “in good faith”. These terms are extremely broad and generalised. It would be challenging in advance to work out what is ‘unreasonable’ and ‘bad faith’. In a risk averse culture, this might lead a media outlet to self-censor against publication at all.
The republication in Australia of Charlie Hebdo cartoons – as a gesture of solidarity – might well satisfy these requirements. However, consider this scenario. What if a member of the Muslim community in Australia wrote to the publisher and requested the image be taken down because of the offence caused? What if that request was refused? What might follow then? The legal position is by no means certain.
Absent the special circumstances surrounding the distribution of Charlie Hebdo cartoons, one can see why self-censorship of similar cartoons in Australia might well be a legal necessity.
How ‘I’m with Stupid’ created GLOBAL news headlines
If there is any doubt that free expression in Australia is not absolute, look no further than the incredulous Time Magazine article in the ‘World’ section about last week’s arrest of an Australian man wearing a T-shirt bearing the words “I’m with Stupid”. His sin? He proceeded to stand next to a candidate in the forthcoming Queensland State election. Time’s headline was: “A guy got arrested by 10 cops for wearing an I’m with Stupid T-Shirt”. Apparently he had violated public nuisance laws…
Fortunately, the spoof Twitter feed of the T-Shirt Assailant has had a field day with the arrest.
At the end of a tough few days, the following examples illustrate why laughter might just be the best remedy.
The Social Litigator 
One Response to “We defend Charlie Hebdo’s right to speak, but in Australia, its humour might be unwelcome and illegal”
[…] So, should people care about these sorts of remarks? If in France, the answer is likely “Mais NON!” As Charlie Hebdo has taught us, race is a topic to be pilloried in France’s rich history of satire. For my previous blog post of how Charlie Hebdo’s content would fare under section 18C, see here. […]