It's Racist And It's Art
Sydney Morning Herald
Friday February 27, 2004
A court decision has protected cartoonists and offended Aboriginal elders, reports Leonie Lamont.
THE cartoon might have been a ``serious slur on Aboriginal people" which breached the Racial Discrimination Act. But a newspaper was still entitled to publish it, said the Federal Court, in a landmark decision pitting freedom of artistic expression against the freedom not to be racially vilified. At this point artistic expression has won out unless the High Court decides otherwise.
In 1997 The West Australian published a cartoon by Dean Alston, ``Alas Poor Yagan", about the return of the head of an Aboriginal warrior hero, Yagan, from an English museum. Earlier this month, in a split decision, the full court of the Federal Court found that although the cartoon was at the ``most serious end of the spectrum" in its breach of the Racial Discrimination Act, it fell under the ``artistic works" exemption.
Justices French and Carr found that the newspaper had published the cartoon ``reasonably" and in ``good faith" in order to further discussion and debate.
It was not a view held by the dissenting judge, Justice Lee. He said the evidence of the newspaper's editor, Paul Murray, ``that he made a judgement call, knowing that the cartoon would receive some opposition, did not show that the racially offensive consequences of publication . . . had been duly considered".
``Unless good cause is shown for the conduct concerned, it is in the greater public interest that the right of free expression be controlled by removing from public discourse racially based acts that offend, insult, humiliate or intimidate members of a race within the community," he said.
The Sydney writer Craig McGregor, who has written extensively on cartooning, said he was relieved that the court hadn't diminished existing rights to freedom of artistic expression.
``Though the provisions about racial vilification are very important, you have to keep in mind the context of the current Australian media, the current Australian political situation," he said. ``Australia has very fierce defamation laws, and these have tended to stifle democratic expression . . . cartoonists are far freer than writers or journalists.
``I'd hate to see that freedom broken down, even though it might be seen to be in a good cause."
The Herald's editorial cartoonist Alan Moir said the freedom of cartoonists could be traced back to a celebrated libel case in France in the 1840s brought by the king, who disliked being depicted as a pear a buffoon by the cartoonist Charles Philipon. Although the king won, the downside for aggrieved litigants was so much mockery that a convention developed not to take cartoonists to court.
In a more litigious society, Moir said, the Federal Court decision signalled to him that the convention's days were numbered. ``Cartooning's great weakness is that all it takes is one precedent and all cartooning would be subject to that principle," he said. The judgement ``fortified existing areas. It's not saying that it's carte blanche. It is saying to be very careful."
It wasn't hard to find the racial card in the history of Australian cartooning. Moir pointed to ``shocking" vilification of Aborigines and Jews in publications such as The Bulletin during the 19th and 20th centuries.
Aboriginal elder Ken Colbung, who featured in The West Australian cartoon, said along with the right to publish came a duty to exercise that right responsibly. ``Culturally it was harmful because it tended to say the white man is superior to the Aboriginal elder," he said.
``We follow the line of people we are descended from, our ancestors provide us with that guide," he said, explaining how deep was the offence at the mockery of Yagan and the Dreamtime serpent, the Wagyl.
He believed the Racial Discrimination Act's standards were less diligently applied when it came to Aboriginal complainants.
Hannah McGlade, a human rights solicitor who originally lodged the complaint, agreed. ``It seems that the Jewish community in Melbourne has had some success [enforcing the act] . . . I'd like to see judicial authorities give Aboriginal people that same level of impartiality. Why is it when it comes to the laws to protect Aboriginal people they are so easily outmanoeuvred?
``We know as a civilised society that racial vilification only causes harm and bad relationships between people. It is not what we as an Australian nation say we aspire to; we respect people's rights not to be vilified. That doesn't mean that a cartoon can't be satirical, or raise racial issues, but when it attacks people on the basis of race in such a serious manner as this did, it is no longer acceptable.
``There are very broad exemptions in the legislation and they are wide enough to allow for artistic freedom and freedom of political expression. This cartoon overstepped that."
The Perth barrister Greg McIntyre, SC, confirmed he'd been asked to advise about a High Court challenge and believed there were likely grounds for appeal. The possibility of an appeal is being pursued by Robert Bropho, one of the elders who believe they were portrayed in the cartoon.
© 2004 Sydney Morning Herald