Charlie Hebdo would have risked being censored by the courts, but self-censorship is the reality of Section 18C of the Racial Discrimination Act.
Let's be perfectly clear: Charlie Hebdo would have been a legal publication in Australia. But it would have faced regular efforts to have it shut down or censored under State and Federal laws.
In Australia the primary legal weapon used against Charlie Hebdo would have been 18C which makes it unlawful to offend, insult, humiliate or intimidate on the basis of race, colour, national or ethnic origin.
18C doesn’t cover religion, but Charlie Hebdo published many offensive cartoons on race as well as ethno-religious topics that are covered by 18C.
This is outlined in the explanatory memorandum to the Bill that introduced 18C.
The memo said “it is intended that Australian courts would follow the prevailing definition of “ethnic origin” … [which] involves consideration of one or more of characteristics … this would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims”.
It’s this interpretation that led to former Sydney Morning Herald columnist, Mike Carlton, facing a complaint under 18C because of his disgraceful anti-Semitic language.
18C would have been used against Charlie Hebdo because it sets a low bar to restrict free speech. Administratively, 18C also makes it very easy to take an action; all you need is an aggrieved party and an arguable case.
Charlie Hebdo’s publishers would then have been caught up in regular disputes and subsequent legal battles if they refused to back down.
After significant cost and time, courts would have to test whether each cartoon enjoyed exemptions under the impossibly opaque Section 18D of the Act which requires publications to be made reasonably and in good faith.
Many cartoons were satirical, but they were also designed to strongly provoke and didn't seek to minimise the offense caused. That may mean they wouldn't always be covered by the exemptions. Each one would have to be assessed on its merits.
Even if 18D did apply in all cases that doesn't justify 18C. 18D doesn’t protect free speech. Arguing it does is absurd. In practice 18C declares you guilty, 18D allows you to profess your innocence.
Censorship doesn't just occur because a court silences a voice. Censorship also occurs because bad laws allow publications to be bullied through legal processes until their only viable option is to cower and self-censor.
For Charlie Hebdo it would have been destroyed through a thousand 18C complaints.
The Charlie Hebdo massacre is a tragedy, and it should be a reminder that we need to defend free speech even when speech offends and insults.
Offence and insult are subjective and emotional responses to the actions of others. Individuals can be offended and insulted by just about anything, even when it is not intended. For that reason, a law that prohibits speech that merely offends and insults sets the bar too low. Instilling these principles in law ultimately leads to self-censorship.
Take the example of Anthony Mundine. Last year he did an interview on Channel 7's Sunrise program. During Andrew O’Keefe’s interview Mundine repeated his view that Aboriginality and the "choice" of homosexuality were incompatible and that homosexuality shouldn't be shown on "prime time" television. The basis of his comment was "Aboriginal law".
Mundine has probably taken too many bouts to the head during his time in the boxing ring, and his comments are both stupid and offensive. We can say both those things. And in a free and democratic country Mundine should be allowed to say stupid and offensive things.
But that doesn’t mean the basis of his offensive comments is wrong. Across the country I've met with gay and lesbian Aboriginal Australians who have told me horrible stories of how they’re treated.
Not that poor treatment of gay and lesbian people is limited to Aboriginal culture. Many ethnic cultures engage in even more horrific treatment of gay and lesbian people, including in Australia.
But if we want to harshly criticise the justification of Mundine’s commentary we risk offending his ethnic origins. Because of 18C Australians have to cautiously discuss the topic, especially non-Aboriginal Australians.
The example highlights a fundamental flaw of 18C. The assumption behind the law is that racism essentially comes from the dominant racial group against minorities. That isn't the case. Sometimes minorities judge each other horribly and harshly.
One of the cheap party tricks of 18C’s defenders is asking the leading question “what is it that you want to say that you can’t currently say?” The assumption is that you want to say something racist. That isn’t the case.
When Mundine made his despicable comments I self-censored my response because of 18C and the risk that I’d offend or insult his heritage.
Would I have been let off because of 18D? Possibly. I can’t say with confidence my comments would have been in “good faith”.
Regardless, I don’t fancy being hauled through the Human Rights Commission or a court for refusing to apologise. So the easier answer is to self-censor rather than fully criticise another’s bigotry.
Chalk that up as a victory for social inclusion and harmony. 18C gives legal privileges to some to be bigots. Meanwhile we allow the law to intimidate others into self-censorship if they want to respond.