It is problematic for a law such as 18C to codify a subjective notion such as â€œoffendâ€ given that it means different things to different people. Like beauty, â€œoffenceâ€ is in the eye of the beholder. It is unlike beauty, however, in that beauty is incontrovertible while offensiveness is not. Offence can never be given; it can only be taken. This is because, to be offended, one must first choose to be.
As a cartoonist, I run the risk of “offending” someone, somewhere, every day.
A cartoon I drew in response to the Charlie Hebdo massacre in January last year, featuring an image of Mohammed, so “offended” the delicate sensitivities of certain terrorists fighting for Islamic State in Syria that they issued a fatwa against me, calling on fellow Mujaheddin in Australia to hunt me down and kill me. I had to move house and start getting used to living within the constraints of extreme security measures.
The extraordinary consequences I’ve had to endure as a direct result of having drawn a cartoon published in The Australian on August 4 this year provide another example of just how grave the risk can be.
The cartoon in question was drawn in the context of a raging debate about Aboriginal issues that had been triggered by an ABC Four Corners program about conditions inside a juvenile detention centre in the Northern Territory.
My intention was to draw attention to the fact the high level of parental neglect and abuse of children in many Aboriginal communities is one of the underlying reasons the disproportionately high number of 97 per cent of the inmates in the detention centre were indigenous.
It depicted an Aboriginal police officer, presenting a wayward child to his father, saying, “You’ll have to sit down and talk to your son about personal responsibility,” to which the father replies, “Yeah righto, what’s his name then?”
Someone, somewhere, claimed to have been “offended” by my cartoon and submitted a complaint to the Australian Human Rights Commission. The AHRC proceeded to put in train a process, the intention of which was not only to punish me for having made an entirely valid contribution to an extremely important public debate but to serve as a warning to anyone else naive enough to believe they lived in a free society in which they had the same right to express their opinions as anyone else.
While less murderous than the tactics deployed by Islamist terrorists, the actions taken by the AHRC were no less authoritarian and they sprang from the same impulse: to use whatever means at its disposal to silence those with whom it disagreed.
Section 18C of the Racial Discrimination Act was just the ticket. It provided it with the blunt and brutal weapon it was looking for.
Being made to live in fear and being forced out of my home by terrorists gave me first-hand experience of what it’s like to be subjected to the rules that obtain in jurisdictions where there is no freedom of speech.
At first I found it difficult to believe it possible that I could find myself in such a predicament. That abruptly changed when I was provided with access to Islamic State websites and chat rooms that featured exhortations from Middle East-based jihadists to their Australian counterparts to kill me, clues to my whereabouts for those trying to find me, and photos that would enable them to recognise me if they did.
Eighteen months later, I found it just as difficult to believe a complaint under 18C had been filed against me and I was subject to an investigation by the AHRC because a cartoon I had drawn was deemed likely to “offend” on the basis of race.
I firmly believe the most effective means of combating the enemies of freedom of speech is by exercising our freedom to speak and to express our views through any medium we choose, whether it be journalism, activism, comments on social media, performance art, conceptual art, satirical cartoons, or whatever other form of expression you can think of.
Freedom of speech is the principle that enables everyone to contribute to the marketplace of ideas, where bad ideas are challenged and replaced by better ones in an ongoing process, the purpose of which is eventually to arrive at the truth. It is not only essential for the maintenance of a free and civil society; it is the thing that created our free and civil society.
It is problematic for a law such as 18C to codify a subjective notion such as “offend” given that it means different things to different people. Like beauty, “offence” is in the eye of the beholder. It is unlike beauty, however, in that beauty is incontrovertible while offensiveness is not. Offence can never be given; it can only be taken. This is because, to be offended, one must first choose to be.
As a cartoonist I deploy the weapon of humour to make my points. I am simply not responsible if one of my cartoons fails to amuse someone, somewhere, who chooses to be offended by it instead.
Cartooning, by its nature, is always a controversial business. The cartoonist highlights topics of debate, such as family dysfunction in indigenous communities, through confronting, hard-hitting and pointed imagery. Those who claim to have been offended, of course have an equal right to write, or draw, opposing ideas. The hallmark of a robust liberal democracy is the freedom for its citizens to frankly exchange and debate opposing ideas. The attempt of 18C to make some opinions on these matters unlawful is therefore authoritarian and illiberal.
When it comes to investigations before the AHRC, the handling of my case was by no means unique. A Freedom of Information request by the Institute of Public Affairs earlier this year discovered that there were currently 18 such investigations, all related to 18C. As the IPA noted, the complaints reported in the news were “just the tip of the iceberg”.
Almost all of the complaints are investigated behind closed doors and, as happened in the case of three Queensland University of Technology students, the investigations can go on for months (or years) without the accused ever being told. In my case, I was put through two months of incredible stress by the AHRC’s investigation. The first complainant had never met me and didn’t have to justify anything she did. No one asked her any questions and it didn’t cost her a cent. While the AHRC eventually dropped the investigation after the complainant withdrew her complaint, the tortuous process had thrown my life into a state of utter chaos. (Two other complaints have been dropped.)
This in itself is just another part of the punishment I’ve been subjected to for daring to shine the spotlight on the truth of family dysfunction in indigenous communities. It also demonstrates just how opaque the processes of the AHRC are and how indifferent the commissioners are to the wellbeing of those they choose to persecute with section 18C. The punishment can also be financial. I was fortunate enough to have News Corp Australia backing me legally. If I had to pay the legal bills myself, the investigation would have left me financially ruined.
With these high personal and financial costs, the lack of transparency and undue delay in the resolution of cases, I submit that the present operation of the AHRC is unsatisfactory. I recommend that if complaints are to be referred to the AHRC, they must be resolved as expeditiously as possible with the accused parties made privy to the outcomes of the committee at the earliest convenience. Furthermore, people subject to investigations by the AHRC should not incur unreasonable costs and must, in all cases, be afforded natural justice.
I believe my case clearly demonstrates why Section 18C should be repealed. Not amended, not overhauled: repealed.
This is an edited extraction from Bill Leak’s submission to the parliamentary joint committee on human rights inquiry into freedom of speech in Australia.