Opinion: 18C

Now the canonisation of the controversialist cartoonist Bill Leak is more or less complete, with a memorial service in his honour late last week attended by the Prime Minister and other luminaries, it might not be a bad idea to stand back and ask a few simple questions.

Where does this leave the cause of free speech in this country, and what might be done to guard against the misuse, even abuse, of statutes under the Racial Discrimination Act in an environment unfriendly to journalists in any case, grappling with some of the more restrictive defamation laws in Western democracies?

And, how do we elevate that debate beyond the tedious culture wars in which the right assails the "progressive left", having weaponised itself with the phrase "political correctness" as a sort of battering ram to "offend, insult, humiliate or intimidate" its opponents?

The latter are the politically charged words that appear in sub-section 1 a) of Section 18C of the Racial Discrimination Act of 1975  – amended in 1995 to bolster the "hate speech" element – and ones now that are subject to endless disputation to no-one's advantage.

Since an acceptance of a nation's laws rest to an extent on consent, it makes little sense to persist with wording of a statute that divides rather than unites. What is required is a consensus view in which both sides of the argument feel they can live with the result.

In that case, the Turnbull government should press forward with changes to 18C that would modify the wording to accommodate legitimate concerns about limitations on free speech, and the misuse to which the section can be put with recent cases.

These include the journalist Andrew Bolt case of 2011, in which Bolt was accused of insulting light-skinned people of Aboriginal descent in a matter that should never have been brought under 18C, and more latterly in pursuit of the late Bill Leak over his cartoon depicting a drunken Aboriginal unable to recognise his son.

The cartoon was jarring, it was awkward, in the minds of some it was racist, it could be said to have fallen back on a dated stereotype, it might have pandered to racist impulses in society, but it also contained a truth.

Alcohol abuse is endemic in many – by no means all – Aboriginal communities.

I don't for one minute believe Bill Leak was a racist, but I agreed with former Fairfax colleague David Marr's observation in The Guardian that if we are to uphold free speech principles, then if people want to describe the Leak cartoon as racist they should be free to do so.

In considering free speech issues and the role of cartoonists in particular, it might be useful to reflect on this country's extraordinary tradition of black-and-white artistry from the earliest days to the present, including the work of Pat Oliphant, arguably Australia's most successful cartoonist, syndicated worldwide in hundreds of publications.

Like Leak, Oliphant has been a controversialist, memorably offending the Catholic church on one occasion by depicting priests streaming out of Saint Paedophilia's Catholic Church, devilish expressions on their faces, pursuing a gaggle of altar boys down the street with the caption "The Annual Running of the Altar Boys".

The church was outraged at this perceived sectarianism, papers cancelled their syndications, but Oliphant was shielded from silly reference to a human rights commission or some other such watchdog by America's robust first amendment culture: "Congress shall make no law … abridging the freedom of speech."

Regrettably, our own founding fathers did not see fit to include such a provision in the Australian constitution, leaving us to make do with an implied right under sections 7 and 24 dealing with representatives elected on the basis of free speech.

We would have saved ourselves a lot of trouble – and newspapers much expense in frivolous defamation suits – if a clear-cut first amendment right had been enshrined in the constitution.

What then should be done to resolve an issue that is proving a distraction – and source of division in conservative ranks – from other tasks such as the May budget?

In honour of Bill Leak and other controversialist cartoonists, writers and artists, 18C should be redrafted with the words "offend, insult, humiliate" to be replaced with what George Williams, dean of the law school at the University of New South Wales, describes as a more demanding standard such as "degrade, intimidate or incite hatred".

Those words could be further refined, but simply replacing "insult, offend and humiliate" with the word "harass", as some are suggesting, would not be enough.

Similarly, fiddling with procedural requirement around 18C referrals to the Human Rights Commission would be insufficient.

In his submission to a parliamentary committee reviewing 18C, Williams made the useful suggestion that the federal Parliament should enact a statute giving "general protection for freedom of speech".

I couldn't agree more.

Tony Walker is a Fairfax Media columnist and Vice Chancellor's fellow at La Trobe University.

This column first appeared in the Sydney Morning Herald.

Photo: Flickr, Nathan