The Silver Lining When Bill Leak Wins His Racial Discrimination Case

You win some, you lose some. And New Matilda editor Chris Graham thinks Aboriginal Australia is about to lose small, but ultimately win big.

In case you’ve been living under a rock, cartoonist for The Australian newspaper, Bill Leak is being taken to the Australian Human Rights Commission for his now infamous cartoon depicting Aboriginal men as so drunk and dysfunctional, they don’t even know the names of their own children.

Leak will almost certainly win his case. I’ll explain why shortly, but first a few important declarations.

Leak’s cartoon was, by most objective standards at least, racist. It perpetuated a stereotype about Aboriginal men which has no place in a national discussion, let alone a national newspaper.

There’s a great commentary here on occasional New Matilda cartoonist Reuben Brand’s website. Brand, who appeared on Melbourne shock jock Neil Mitchell’s program during the week, is forced to explain to a white, adult male why, exactly the cartoon is racist. Which saves me having to do it. Which I appreciate.

Apart from being racist, Leak’s cartoon also happens to be deeply ignorant about Aboriginal men.

I know a lot of blackfellas, and while many do not drink (the number of Aboriginal teetotallers as a percentage of the population is basically identical to that of non-Aboriginal people) most of the Aboriginal men I know do drink. However, of those, only a handful drink in quantities that you might consider to be problematic.

But of all the Aboriginal men I know – heavy drinkers, teetotalers, light drinkers and bingers – not one of them doesn’t know the name of their own child.

Colonisation has been effective in smashing many parts of Aboriginal culture. That was, after all, it’s intention. Language and ceremony, for example, in many (but not all) Aboriginal nations have been lost, or seriously damaged.

But despite our collective cruelty and oppression, the one thing whitefellas have never been able to smash has been the Aboriginal family unit. We’ve certainly damaged it in many instances, but we’ve never broken the connection.

Kin is at the core of Aboriginal existence. It always has been, it always will be. It’s one of the very ‘unAustralian’ features about Aboriginal people, and one of the things I really admire.

It was also something that I learned very early on in Aboriginal affairs. While I don’t know most of my cousins – and I have many – most Aboriginal people not only know their first, second, third (etc etc) cousins, but they see them regularly.

They know who their aunties and uncles are. They know where they fit in a kinship structure, and they value that deeply. And obviously, the overwhelming majority of Aboriginal men know precisely who their children are.

So Bill Leak’s cartoon – apart from being racist, not even remotely funny, and targeted at the most marginalized people in our society as opposed to holding truth to power – is also, broadly speaking, just plain wrong.

But – and it’s a BIG but – you’ll note I used the words ‘broadly speaking’. The fact is, Bill Leak’s cartoon wasn’t entirely wrong. Strictly speaking, there are Aboriginal men who don’t know the name of their children. It’s statistically impossible to be any other way. I don’t happen to know any Aboriginal men in that situation, but then I don’t know every Aboriginal man. And besides, the West Australian Police Commissioner, Karl O’Callaghan said it was true (during a debate over the death of a child in Kalgoorlie no less) so, you know, it must be.

The fact that O’Callaghan should no longer have a job aside, this is the part where I believe Leak will ‘walk free’ from the Australian Human Rights Commission (AHRC), albeit without his reputation intact.

Leak is accused of breaching the Racial Discrimination Act (RDA). You might remember that piece of legislation from such stunning public appearances as ‘Andrew Bolt vs Pat Eatock’, or Attorney General George Brandis and ‘everyone has the right to be a bigot’.

The legislation – specifically section 18c – has been at the centre of a seemingly never-ending storm of misfiring white synapses ever since Bolt was found, in 2011, to have breached the RDA. We’ll come back to Bolt shortly.

According to the AHRC, “Section 18c… makes it unlawful for someone to do an act that is reasonably likely to ‘offend, insult, humiliate or intimidate’ someone because of their race or ethnicity.”

If you only read that part of the legislation – and if you oinly listened to the bleating of Bolt, and others such as One Nation’s Malcolm Roberts and the Liberal Democrats’ David Leyonhjelm – Bill Leak is destined for martyrdom in the Grand Temple Of Political Correctness.

But what Bolt et al don’t tell you is that after Section 18c, comes an appropriately named section called ‘18d’. Go figure.

As the HRC explains, it “contains exemptions which protect freedom of speech. These ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18c, providing they are said or done reasonably and in good faith”.

In other words, 18d contains iron-clad, impenetrable protections for free speech, and Leak can almost certainly access them.

Some have suggested Leak will claim the ‘artistic defence’. I don’t anything about art, but I know what I like. I don’t like Bill Leak. I also think it’s unlikely Leak will go there, because while the cartoon clearly contains some artistic attributes, it is, in reality, political comment.

All Leak needs to do to gain the protection of 18d is demonstrate that (a) his cartoon was fair comment; (b) it was a matter of public interest; and (c) he drew it reasonably and in good faith. So how does he fare on each front?

In Australia today, depicting Aboriginal men as drunk, delinquent fathers is considered ‘fair comment’. It may be vulgar (it is), and it may not be the thinking in the future (not all that long ago we considered Aboriginal people flora and fauna), but it’s undeniably the standard our society currently accepts.

As for the public interest test, dysfunction in Aboriginal communities is undeniably a ‘public matter’. That’s not to suggest the conversation should be had in the way Leak seeks to prosecute it, but the public interest test is broad, and for good reason – it protects the rights of everyone to debate important things. It doesn’t really prescribe how that debate should be had. So he’ll pass that test as well.

Finally, there’s the matter of ‘reasonable’ and ‘in good faith’.

This is where it gets a little confronting. I understand that in penning his toxic cartoon, many NM readers will feel Leak didn’t act reasonably, nor was he acting in good faith. But again, it’s about how his actions are viewed in the eyes of the law.

To pass the ‘good faith’ test, the view you expressed has to have been an honestly held belief. I don’t think Bill Leak will have trouble convincing anyone that he honestly believes in the smut he draws, confidence and ego being things which Leak appears to have more than an ample supply of. Indeed, a week after the furore surrounding his cartoon, he was on ABC’s 7:30 program arguing he was proud he’d sparked an important discussion.

He also penned this cartoon in response, placing himself as the heroic, beaten down victim in it all (and yes, many, many people have suggested I’m the angry leftie in the cartoon… I sincerely doubt that’s true… and my beard is nowhere near that luscious).

He also need only point to a catalogue of his past works to prove that he’s ‘honestly’ long held the belief that Aboriginal culture is violent, drunken and inferior.

Here’s a few examples.

And in Leak’s defence, he can also point to cartoons which are decidedly more sympathetic to the Aboriginal cause.

In short, the only way Leak could lose is if it was demonstrated that he didn’t act in good faith, and that the views expressed in his cartoon weren’t his honestly held beliefs. I don’t think on the balance of probabilities that that’s possible.

Which brings us neatly back to ‘good faith’, and Andrew Bolt, and why he’s still sulking about his mantle as one of the nation’s few convicted racists.

Bolt lost his case in the Federal Court because he was found by Justice Mordecai Bromberg not to have acted in good faith. Namely, his series of articles, which claimed that specific (and prominent) Aboriginal people only identified as Aboriginal later in life so that they could win government benefits and plum jobs – were littered with errors.

The late great Pat Eatock was the lead litigant in the case, but it also included Professor Larissa Behrendt, Mark McMillan, Anita Heiss, Bindi Cole, Geoff Clark, Dr Wayne Atkinson, Graham Atkinson and Leeanne Enoch.

While there were many errors in Bolt’s reporting, my favourite related to Anita Heiss, who Bolt claimed only identified as Aboriginal in order to win a job on Sydney’s Koori Radio.

It was a voluntary position.

The upshot was that Justice Bromberg found Bolt couldn’t possibly have acted in good faith, because his articles were so repeatedly, spectacularly wrong. After all, it’s one thing to make an error – that doesn’t in and of itself negate the ‘good faith defence, because you can make an error in good faith. But it’s another thing altogether to do zero fact-checking, and instead wax ‘racist lyrical’ about shit of which you have absolutely no knowledge. Andrew Bolt, take a bow.

The case of Bill Leak, however, is clearly different. It contains no ‘factual errors’ because while it obviously infers all Aboriginal men are deadbeat dads, it doesn’t actually say that.

It’s not a factually baseless cartoon, it is in the public interest, and I sincerely doubt anyone can prove Leak didn’t act in good faith. Which leaves a sour taste in my mouth, and probably yours. But it’s a taste we’ll probably have to swallow.

I don’t like what Bill Leak draws. Indeed, I don’t like what I think Leak is… a privileged white buffoon who never outgrew a childhood compulsion to attract attention, any attention, good or bad. But I also think that if we’re to accept the victories attached to sections 18c and d, we have to accept the defeats as well.

And so what’s the worth of the RDA then, if it doesn’t protect Aboriginal people and other minorities from cartoons like those drawn by Bill Leak?

The Racial Discrimination Act has a very difficult job to do. It has to balance the rights of minorities not to be targeted (by powerful white men) against the needs of a society to genuinely embrace free speech.

Of course, views will vary widely on how effective the RDA is in doing that, but my view – for what it’s worth – is that for all our society’s faults, free speech is a one of the good cornerstones of it, and I happen to think the current legislation has the balance pretty right.

And while I have no real skin in this game – racial discrimination never effects a man like me – if a Bill Leak win deals another substantial blow to Andrew Bolt and his ilk, and casts more light on the lie that white free speech is under threat, I think that’s a price we have to be willing to pay.

Sometimes, you lose a battle, but you still win the war.