According to Human Rights Commissioner Tim Wilson, many of the
Charlie Hebdo cartoons would be banned in Australia due to the
controversial section 18C of the Racial Discrimination
Act. However, upon further reading of the Act and the relevant
case law it seems that court ordered censorship of any
cartoonists' works is quite unlikely to occur.
Section 18C makes it unlawful for a person to do something in
public that is reasonably likely to offend, insult, humiliate or
intimidate another person or a group of people because of their
race, colour or national or ethnic origin. On the surface, this
appears to support Wilson's comments made to ABC Radio on 13
January 2015 that "there is no ambiguity that Charlie Hebdo
would be censored in Australia". However, the ambiguity arises
out of section 18D. This section exempts certain acts, including
artistic work, that are done reasonably and in good faith.
The Bropho cases applied sections 18C and 18D to a
satirical cartoon published in the West Australian
newspaper in 1997. The cartoon implied a desire by some Aboriginal
people to take advantage of public funding to travel to England
through the depiction of an Aboriginal dreamtime story and the
boxed head of historical Aboriginal leader Yagan. The Human Rights
and Equal Opportunity Commission held the cartoon infringed section
18C, but found it to be an 'artistic work' protected by
This is not to say that all cartoons will be protected by
section 18D. The cartoon must be done reasonably and in good faith.
However, the High Court when considering whether to allow an appeal
of the Bropho decision recognised the practical difficulty
in applying these concepts to a cartoon which intends to lampoon or
In dismissing the appeal of Bropho, the Full Court of
the Federal Court considered the meaning of 'reasonably and in
good faith' in the context of section 18D. The court held
artistic work will be done 'reasonably' if it is done for
the purpose to advance the artistic expression. As for 'good
faith', the artist must honestly and conscientiously endeavor
to consider and minimise the harm it will inflict on people. The
artist must also not use the freedom of speech and expression as a
cover to racially offend, insult, humiliate or intimidate
Charlie Hebdo may argue that its cartoons are an ironic and
satirical comment on racism and made reasonably and in good faith
without targeting any particular group. Difficulty for cartoon
artists in Australia may arise if they are found to more interested
in justifying or perpetuating negative racial stereotypes than
making an artistic contribution or comment. As the law in Australia
stands, it seems unlikely that cartoons like those in Charlie Hebdo
would be censored.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).