18C debate: Media needs freedom to cover all indigenous affairs

Cartoonists Paul Zanetti. Picture: Glenn Hunt

Seven years ago Bob Cronin, the editor-in-chief of West Australian Newspapers, learned first-hand about the practical impact of section 18C of the Racial Discrimination Act. It left him in a state of fury that is yet to subside.

This provision, in his view, is “bullshit” that needs to be ­repealed. It may have been ­intended to achieve a noble purpose but its practical impact has been to “encourage blackmail”.

Even worse, Cronin admits that for a time the impact of section 18C meant he considered having West Australian Newspapers abandon its coverage of Aboriginal affairs.

Cronin’s view has been ­informed by his struggle to defend a cartoon by Paul Zanetti that raised exactly the same idea that was floated in August by Bill Leak’s now famous cartoon in The Australian.

It’s an idea that is considered to be so dangerous, so offensive, that some people want it banned from public discourse. An agency of the federal government, the Australian Human Rights Commission, has initiated moves against Leak and this newspaper that could lead to the image that conveys this idea being declared unlawful.

There is a strong body of precedents for such a course — dating all the way back to Germany in the 1930s when the suppression of ideas was commonplace.

Cronin, who retires next week, believes the threat posed by section 18C is far more serious than many believe and the media has a responsibility to fight back against the suppression of ideas.

“You have to keep fighting these cases,” he says.

But he worries that the financial pressure on most of the mainstream media eventually could persuade some publishers to simply self-censor to avoid attracting the attention of section 18C.

“What worries me is that ‘publish and be damned’ might become a financial prophecy,” Cronin says.

“The media organisations could work more closely together on these matters, but if you think that is going to happen — particularly with Fairfax — well you are whistling Dixie.”

Just like Leak, Zanetti had wanted to force the community to think about the plight of children in dysfunctional families. This would have been unremarkable but for one fact — the children in both cartoons were indigenous.

Zanetti’s work was published on July 4, 2009, in the Kalgoorlie Miner,which at the time was under the editorship of John Horner. It led to complaints to the Australian Human Rights Commission, six months of legal correspondence and “conciliation” conferences ­before a settlement was put in place with the lead complainant.

At the heart of both cases is section 18C, which makes it unlawful to offend, insult, humiliate or ­intimidate people on the basis of their race, colour or national or ethnic background.

One of the problems with this law is its vagueness, which leaves the community uncertain about what can and cannot be said without inviting a complaint to the AHRC.

The reason for this is the fact the test for liability in section 18C does not rely on community standards. This means journalists and cartoonists whose work ­adheres to community standards can still be found to have breached section 18C.

When this law was invoked against journalist Andrew Bolt, his defeat in the Federal Court was mistakenly viewed by his critics as proof that he was out of step with Australian standards.

The judgment in that case shows that Justice Mordecai Bromberg believed he was obliged by section 18C to judge Bolt’s journalism according to the standards of a hypothetical reasonable representative of the group that had sued him.

His articles about light-skinned Aborigines were therefore judged according to standards that have little to do with those of mainstream Australia, and a great deal to do with those of the plaintiff.

Some may see this as clever — a way of ensuring that section 18C achieves its purpose. Others may view it as law that has been rigged.

This, however, is a problem with human rights legislation that is not confined to Australia.

In 2007, when Canadian commentator Mark Steyn and news magazine Maclean’s were accused of “hate speech” over an article about Islamic birthrates, they were required to appear before human rights tribunals in three jurisdictions.

In 2013, James Allan of the University of Queensland noted that in some of those tribunals “complainants had a 100 per cent success track record. Those accused of hate speech always lost.”

Steyn had been sued under section 13 of the Canadian Human Rights Act, which had served much the same purpose as section 18C. He eventually won and section 13 has been repealed.

In Australia, those who support the retention of section 18C need to consider the impact the law has been having. Has Bolt changed his wicked ways?

If the pursuit of the Kalgoorlie Miner by the AHRC was intended to bring the editor to heel, it failed.

When Horner was asked yesterday if he believed his newspaper had done anything wrong, his response was immediate: “Absolutely not. If presented with the same issue today and the same cartoon today, it would certainly get a run; no hesitation, ­regardless of what we were put through.”

Cronin is very clear that the settlement of that complaint was not put in place because WAN ­accepted it had engaged in wrongdoing. It was simply about the money. It was cheaper to settle than face the prospect of being sued under section 18C in the Federal Court.

“Our legal advice at the time was we should enter into the conciliation process because that is going to cost us money, but if we go into the Federal Court that is going to cost a truckload,” Cronin says.

But he drew the line at apologising and said that would happen only “over my dead body”.

“I believed that the cartoon, like the Leak cartoon, was expressing a point of view about a very serious issue, and unless you point out these issues nothing will be done about it. That’s why I was not going to apologise,” he says.

But the turmoil triggered by the affair came close to backfiring on those who believe Aboriginal ­affairs is given insufficient attention by mainstream Australia. “We almost stopped reporting Aboriginal affairs,” Cronin says.

There were several factors driving WAN towards that policy shift. As well as the complaint over the Zanetti cartoon, the company had been chastised by the Australian Press Council over a confronting front page photograph.

That ruling, handed down in 2010, concerned a complaint about the coverage in The West Australian of dire living conditions for Aborigines in Roebourne.

The Press Council found that the photograph and its caption ­“allowed the apparent thrust of the article to be distorted by focusing on conditions in one man’s kit­chen”. Cronin says this was a decision of lunatics.

“After we tried to do the right thing and just got smacked down … I just said to (editor) Brett McCarthy, ‘I don’t know whether it’s worth pursuing these things ­because nobody appreciates it; even the people we are trying to help don’t appreciate it.’ ”

During talks with the AHRC he says he made the point that Zanetti was not denigrating the entire indigenous community.

“I said, ‘Whatever you think this cartoon means, it doesn’t. It means there are some Aboriginal fathers who get drunk, beat their children and don’t look after them. It means that Australians, as a broad mass, should be far more concerned about those children than they are about Michael Jackson’s children,’ ” Cronin says.

While the commission’s ­medi­ation process is supposed to help resolve complaints, those talks take place in private and are not subject to independent scrutiny.

After taking part in this process in defence of the Kalgoorlie Miner, Cronin is not convinced that both parties received fair treatment.

“If you are a defendant before the commission, you are batting on the back foot,” he says.

“There is an assumption that this poor person has been offended and you are a media no-hoper and you have no concern for his sensibilities and the hurt you have caused.

“It’s a fairly unsatisfactory sort of process. There is no reporting and the arguments are not generally known.”

He points out that the commission is unable to impose its own decisions and the conciliation sessions therefore amount to little more than “a fireside chat”.

“But sitting behind that, all the time, is the fact that if you don’t reach an agreement you go to the Federal Court.

“The meter gets turned on and before you know it you have spent a lot of money.”

As part of the settlement he agreed to allow an Aboriginal elder to give talks to editorial staff at the Kalgoorlie Miner on cultural issues — an initiative that he ­believes was worthwhile.

Yet if those talks were intended to eradicate Zanetti’s dangerous ideas, they also failed. The cartoonist lives in Queensland and was unaware that journalists on the other side of the country who had little involvement with his work were being encouraged to become more culturally sensitive.

“It was completely pointless,” Zanetti says.

The other prong of the settlement was just as ineffective. It ­required WAN to agree to investigate employing an Aboriginal cadet journalist. Cronin says he checked with the journalism schools in Perth and found they had no indigenous students.

The entire affair, according to Zanetti, was ludicrous: “The Kalgoorlie Miner, like The Australian, had an editorial line that is strongly pro-Aboriginal.

“At least Bill (Leak) is lucky to have News to ­defend him. What about the solo blogger who would also be vulnerable under this law? That’s why it needs to be ­repealed.”

Cronin believes the impact of section 18C almost amounts to “blackmailing the media into not publishing in the first place, or ­caving in at conciliation and backing down”.

18c EXPLAINED

What is 18c of the Racial Discrimination Act?

The Act makes it unlawful to offend, insult, humiliate or intimidate people on the basis of their race, colour or national or ethnic background.

What is the test for liability?

The test does not rely on community standards. Instead, this law has been applied by the Federal Court based how the words or matter complained of would affect a reasonable representative of the group that has lodged the complaint.

How are 18C complaints dealt with?

The Australian Human Rights Commission is responsible for receiving 18C complaints and is required to attempt to resolve them through mediation. That process is not public and the way in which the law is applied by the commission during these sessions is not subject to scrutiny.

What has the Human Rights Commission said about the Bill Leak cartoon that is the subject of an 18C complaint?

Race Discrimination Commissioner Tim Soutphommasane has encouraged people to complain about the Leak cartoon. In the Leak case, this has given rise to concern about whether the commission - because of statements by Soutphommasane - is capable of fairly discharging its responsibilities.

What happens if mediation fails?

When mediation fails to resolve complaints, the next step is formal litigation before the Federal Court - which is what happened in the well-known complaint against journalist Andrew Bolt. For those without corporate backing, this can result in ruinous legal bills. In the Bolt case, Justice Mordecai Bromberg ruled that several articles about light-skinned Aborigines were unlawful. The judge had objected to the journalist’s “tone”.

What reforms have been suggested?

Some proposals to reform section 18C have focused on changing the law so speech that merely causes people to feel offended or insulted is no longer grounds for complaint. This is based on the view that robust debate on public policy is one of the hallmarks of a free society. They argue that while this may cause people to take offence or feel insulted it is the best method of exposing flawed arguments. Other proposals have gone further and would change the test for liability by requiring the courts to apply community standards - not the standards of a reasonable representative of those who lodge complaints. Others believe recent incidents show that section 18C imposes an intolerable burden on freedom of speech and should be abolished. Those who defend section 18C argue that the exemptions outlined in another provision - section 18D - provide sufficient protection for freedom of speech.This ignores the fact that substantial financial and reputational damage can be inflicted long before anyone accused under section 18C has an opportunity to invoke the exemptions in section 18D. Those who favour repeal of section 18C argue that it is unreasonable and a waste of public and private resources to force people to engage for years with the Australian Human Rights Commission, lawyers and the courts over what is, in essence, hurt feelings. This is believed to be behind the decision of some students at Queensland University of Technology to pay thousands of dollars to settle a complaint that was lodged against them. They had ridiculed a decision to exclude them from a computer rooms because they were not Aboriginal.