I like Paris in winter. There are fewer tourists and it is easier to tap into the rhythm of the city. Some days are crisp and clear, with blue skies and a light that accentuates the mildest of variations in the colours of the limestone. If you are really lucky, snow might have fallen overnight, creating a streetscape of such aching beauty that it is almost ethereal. But it was drizzling on 7 January 2015, the grey sky and bleak light a clumsy metaphor for the appalling chain of events that was about to unfold.
I was no more than a kilometre away from the headquarters of Charlie Hebdo at the time of the attack and became aware of it when my concerned mother, having heard the breaking news, rang to check that I wasn’t moonlighting as a cartoonist for a left wing newspaper. Within minutes, the power of the French state had visibly swung into action: there were blazing sirens, gun-toting police and soldiers everywhere. Within about an hour, the French President, François Hollande, was at the site of the attack, at a time when his safety could not possibly have been guaranteed. Over the succeeding hours the chaos seemed to intensify: at first two thought dead, then 10, 11, 12. We learned of the getaway of the attackers which, were it not so terrifying, might itself have been a caricature befitting a cartoon or video-game. And the local 24-hour news channels began voraciously generating and consuming content: endless loops of amateur video footage, interviews with eyewitnesses, national and international reaction, and bare rumour and speculation.
Then, as seems so often to happen in the immediate aftermath of tragedy, there was a kind of calm. By mid-evening on the day of the attack, tens of thousands of ordinary Parisians had spontaneously assembled at the recently renovated Place de la République, the splendid monument to the third republic which reigned from 1870 until 1940. There were similar scenes around the country. On the following morning, flags flew at half-mast, there was a national minute’s silence, and scores of kids at a Muslim school were filmed silently holding signs reading, ‘Pas en mon nom’ (‘Not in my name’).
We now know that that was just the eye of the storm. The Charlie Hebdo attackers had escaped the city, eventually barricading themselves in an industrial complex at Dammartin-en-Goële, north of Paris. Meanwhile, another deranged soul took hostages in a kosher supermarket less than five kilometres away from the scene of the earlier attack. I was watching coverage of the Dammartin-en-Goële siege in a café when news of the second crisis broke. There was a febrile tension in the air that I have not before experienced and will not easily forget. At the same time, though, there was an undeniable sense of shared humanity, revealed in the exchange of a polite smile with a passer-by on the street, or a conversation with a shopkeeper. Despite the fact that the crisis was not yet over, and there was no way of viewing what had occurred with detachment or perspective, life went on.
At the end of a ghastly three days, there were 17 dead and many more injured. At a unity march on 11 January, some 1.5 million people, led by 44 world leaders, assembled in the centre of Paris: the largest crowd since the liberation of the city in June 1944. What struck most about the crowds gathered around France and elsewhere, including at Federation Square and Martin Place, was the palpable sense of quiet resolution, and the simple elegance in the symbolism of silently raised pens and the three words, ‘Je suis Charlie’ (‘I am Charlie’).
Less than a week after the attack, a new issue of Charlie Hebdo, put out by the surviving staff, hit the newsstands. Almost 8 million copies were sold, a tad more than the usual print run of about 60,000. Even with that circulation, copies were hard to come by; I eventually managed to get my hands on a copy almost a week later.
As they fled the scene of the attack, one of the terrorists was heard to say, ‘We have killed Charlie Hebdo’. Nothing could be further from the truth. Far from killing Charlie, the attack gave birth to at least 8 million Charlies.
The mark of a society can be seen with clarity in its response to tragedy. On display in France was mostly the same determination that we have seen too many times in Australia in response to events like the Port Arthur massacre, the Bali bombing and the Martin Place siege, to name just three. Against that, there were also numerous attacks on mosques and a good deal of vile vilification of the Muslim community. But events like these strain not just the coherence of a society; they also challenge our lawmakers. In response to the heightened terror threat, our Parliament last year passed laws which, despite the government’s protestations to the contrary, restrict freedom of expression and of the press. Put simply, in our name, the Parliament responded to a threat to freedom by limiting freedom. Such responses appeal to the worst in our natures and reflect a general degradation of our public discourse into binary divisions between good and evil; member of Team Australia or apologist for terrorism. After the Charlie Hebdo attack, there were immediate calls in France for tougher anti-terrorism laws. But I discerned no stomach there for responding to an attack on press freedom by limiting press freedom; no appetite for delivering to the terrorists the precise result they had set out to achieve.
The stereotypical view is that there are fewer limits on freedom of expression in Australia than in France, but in truth the position is more complicated. Freedom of expression has no constitutional foundation in Australia, beyond a limited implied freedom protecting the reasonable discussion of government and political matters. As well as operating as a limit upon both federal and state legislative powers, the common law must conform with the implied freedom. The most significant restrictions on freedom of expression are to be found in the law of defamation which, in Australia, is largely a strict liability and personal tort, with disputes resolved through expensive and time-consuming civil proceedings, often resulting in substantial damages awards and crippling costs orders. The common law defence that has evolved to conform with the implied freedom does not appear ever to have operated to protect the press in a defamation action in Australia. On the other hand, restrictions on freedom of speech in Australia are generally civil in nature.
In France, by contrast, freedom of expression is described as ‘one of the most precious’ of human rights in article 11 of the Declaration of the Rights of Man and of the Citizen (1789), and is further protected by article 10 of the European Convention on Human Rights (1950). Defamation law in France, although also a civil wrong, is basally criminal in nature, with disputes usually resolved quickly in summary proceedings. There is a defence in French law for publishing a defamatory statement in good faith which has no real counterpart in Australian law. The maximum fine for a private defamation, such as a defamatory statement made in a meeting or a document of limited circulation, is €38. The maximum fine for public defamation is €12,000, or €45,000 if the statement concerns the public functions of certain public officials. Maximum fines rise to €750 for private, and €45,000 for public, defamations that are published because of the ethnic, national, racial or religious origins, gender, sexuality or handicap of a person or group. Very modest damages awards are occasionally made, sometimes in amounts as low as €1; the rationale being that the finding of the court and the imposition of a fine will vindicate the reputation of the defamed person or group better than an award of damages.
The publisher of Charlie Hebdo has been prosecuted in France for defamation and related offences on 48 occasions since 1992, most often at the instigation of extreme right wing politicians and groups, other media organisations and journalists, and Catholic and Muslim associations. It lost nine of those cases. Its most famous loss followed publication in 1998 of a cartoon lampooning hunger-striking Algerians. On that occasion, the publisher was fined 30,000 francs (about $1,200 at the time) and the cartoonist given a three month suspended sentence.
In 2007, Muslim groups took action against the publisher of Charlie Hebdo after it republished caricatures of the prophet Mohammed that had earlier appeared in a Danish publication, Jyllands-Posten, provoking protests around the Muslim world that resulted in some 200 reported deaths, as well as attacks on Danish and other European embassies and churches. The action against the publisher of Charlie Hebdo failed. In 2011, Charlie Hebdo published a special edition bearing the masthead Charia Hebdo, with Mohammed named as guest editor. The offices of the publisher were firebombed the night before the issue hit newsstands. The office of the publisher and several of its senior staff have since had around-the-clock police protection. In 2012, the newspaper published a satire of the wildly popular French film, ‘Intouchables’, in which the Mohammed was depicted in a wheelchair, being pushed by a rabbi. An action brought against the publisher for blasphemy failed.
Having pored over several issues of Charlie Hebdo, I have come firmly to the view that nothing remotely like it is or could be published in Australia. The newspaper is not a tame or safe read. Each edition contains scores of cartoons and satirical text. Its favourite targets are right wing politicians and religious leaders; the most common sources of humour are unbridled ridicule and sex. Through humour and caricature, it questions orthodoxy, shows contempt for authority and is relentlessly provocative.
To Australian sensibilities, much of what appears in Charlie Hebdo is shockingly politically incorrect and juvenile. But the value in freedom of speech lies not in the expression of what we agree with, or in tolerating opposing views; it lies in celebrating the right of dissent. Charlie Hebdo is uproariously funny, and while it is sometimes gratuitous, more often there is a political point underlying the humour.
At a cultural level, we do not share France’s long tradition of outrageous and subversive satire. The Australian tall poppy syndrome permits open mockery of politicians, business leaders and figures from the worlds of sport and entertainment. Some racial stereotyping is tolerated, at least when engaged in by members of the group in question or portrayed in a relatively affectionate sense—think of Wogs out of Work or Black Comedy. But a line is generally drawn in modern Australia—perhaps because of lingering shame about our treatment of Aboriginal and Torres Strait Islander peoples and the White Australia policy—at the negative stereotyping of racial groups.
Religion, too, is a delicate subject for satire in Australia, although there is at times an exception for criticism of mainstream Christianity. In France, by contrast, a deep national commitment to a radical form of secularism seems to have fostered an environment where every form of belief can be held up to uncensored contempt and ridicule, and policies such as the banning of the wearing of burqas in public places are surprisingly uncontroversial.
At a legal level, a patchwork of hate speech laws was introduced from 1989 onwards in Australia. The provisions bear some similarities, in form, to the laws on group defamation that operate in France, but Australian provisions have generally been interpreted in a manner that is more restrictive towards freedom of expression, and our adversarial system seems to have led to controversies being more drawn out (and no doubt more expensive to pursue and defend) here than in France.
The most well-known Australian provisions are those in sections 18C and 18D of the Racial Discrimination Act 1975 (Cth), inserted following the passage of the Racial Hatred Act 1995. Those sections provide:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.[]
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
In the most prominent case concerning the operation of sections 18C and 18D of the Racial Discrimination Act, in which I was led by Neil Young QC for the unsuccessful publishers, Bromberg J surveyed the authorities and relevantly concluded, by way of summary, that:
- whether conduct is reasonably likely to offend, insult, humiliate or intimidate a group of people for the purposes of section 18C calls for an objective assessment of the likely reaction of those people, measured by reference to an ordinary and reasonable member of the group, or a sub-group of the group, and their values and circumstances;
- in order to establish that an act was done reasonably and in good faith for the purposes of section 18D, the actor must ‘evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted’ by the Racial Discrimination Act, by taking care and diligence ‘to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct’ and ‘to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice’; and
- the use of provocative and inflammatory language or gratuitous asides, and the inclusion of errors or distortions of fact, all tell against conduct having been engaged in reasonably and in good faith.
Cartoons are capable of being challenged under section 18C of the Racial Discrimination Act. In September 1997, The West Australian published a cartoon titled ‘Alas poor Yagan’ which, over eight panels, lampooned a controversy that had erupted in connection with the return to Australia of the head of Yagan, an Aboriginal leader who had died at the hands of settlers in 1833. The head had been discovered in a graveyard in Liverpool. The cartoon had ‘reflected upon the mixed ancestry of some of the Aboriginal people involved’ and implied ‘an unseemly desire on the part of some of them to take advantage of public funding to travel to England’. The last panel of the cartoon showed Yagan’s head in a crate marked ‘fragile’, with the thought bubble, ‘Crikey—give me a warm beer in a quiet pommy pub any day…’ A Commissioner of the Human Rights and Equal Opportunity Commission ruled that the cartoon had, among other matters, treated the issue of death in a manner which caused offence to Aboriginal people, and had reinforced a misinformed and stereotypical view of Aboriginal people taking advantage of government grants. The requirements of section 18C were thus satisfied. However, the Commissioner found the exemption in section 18D to have been made out, principally because the cartoon had been published after a series of articles and editorial comments in the newspaper which had treated the issue in a serious and balanced way and which ‘in the main, encouraged unity in, and support of, the Aboriginal community.’ An application for judicial review of the Commissioner’s decision was unsuccessful, as was an appeal from that decision to the Full Court of the Federal Court.
In 2013, the incoming Coalition government famously promised to repeal sections 18C and 18D, before reversing its policy in August 2014 in the interests of ‘preserving national unity’.
The view to which I have come about the compatibility of Charlie Hebdo with Australian cultural and legal norms can be illustrated with three examples taken from the pages of the 14 January issue of the newspaper, published in the immediate aftermath of the terror attack.
In the first cartoon, four emaciated but smiling figures are shown in a sweatshop maniacally churning out ‘Je suis Charlie’ t-shirts. One of the figures says, ‘Our hearts are with you’. The caption reads, ‘Meanwhile in Bangladesh’.
This cartoon would be likely to be offensive and insulting to at least some reasonable members of the Bangladeshi community: it implies that they are malnourished, work in sweatshops, and revel in the opportunity to profiteer from terrorism. The threshold in section 18C thus appears easily to be crossed. Nor would the cartoon be likely to be protected by section 18D as it has been interpreted in the authorities: it reinforces negative racial stereotypes; and any valid political point about profiteering from terrorism could just as easily have been made without singling out a group on the grounds of its race, colour or national or ethnic origin.
In the next cartoon, malevolent looking religious leaders are seen hovering over a globe of the world. One is obviously Catholic, another obviously Jewish, the third perhaps Russian Orthodox. The Catholic figure says, ‘I’ll keep the Western sector, you keep the Eastern sector’. The caption reads, ‘Yalta at the Vatican’, implying that the world would have been carved up on religious grounds if priests and rabbis had presided over the Yalta conference held in the last months of World War II, or perhaps that religious leaders in fact pulled the strings at Yalta. The cartoon plays on ethno-religious stereotypes, with no attempt made to minimise the offence that might reasonably be felt by at least some members of the groups depicted. The political point being made is obscure, or at least unlikely to be clear to many ordinary readers of a satirical newspaper published 70 years after the event being parodied.
Lest there be any doubt about the likely reaction were a cartoon like this one to be published in Australia (other than, obviously, for the purpose of deconstructing it), consider the controversy that erupted last July when Fairfax newspapers published a cartoon illustrating an article by Mike Carlton that was critical of Israel’s policy towards Gaza. The cartoon depicted an elderly man with a large nose, wearing a yarmulke and sitting on a hill in an armchair bearing the Star of David. The man was seen watching over explosions in Gaza, holding a remote control. Publication of Carlton’s article and the cartoon provoked a deluge of criticism that culminated in Carlton’s resignation, a call for a boycott on Fairfax, an adverse finding by the Australian Press Council, and the eventual publication of an apology. The apology said that the cartoon was ‘menacing’, because it ‘closely resembled illustrations that had circulated in Nazi Germany … that continue to haunt and traumatise generations of Jewish people’.
Finally, a triptych, about which readers can make up their own minds:
The first frame depicts a queue at the office of Erasmus, an organisation that helps students find opportunities abroad. The figure carrying a bag full of guns says, ‘Nothing for Syria? Never mind, I’ll just hijack an aeroplane…’
In the second frame, a woman is packing a suitcase. She says to the gun-toting man at the door, ‘Don’t take that! You’ll end up with excess baggage!’
The third frame shows two young men arriving somewhere in the Middle East. The caption reads, ‘You did year 12 in the 93rd?[] Right! Latrine duty!’
The media is the mirror by which society is reflected and interpreted. Limitations on freedom of the press necessarily affect the manner in which we are able to perceive and make sense of the world. The Charlie Hebdo attack was unmistakably an attempt to silence a subversive voice, without which in my view we would be poorer. In this country, we too often pay lip-service to freedom of speech and of the press, without articulating why it matters, even as we chip away at its foundations. While nothing good can truly be said to have come of the Paris attacks, there is at least solace in the fact that the terrorists failed in their objective, instead steeling the resolve of a nation and its leaders, and drawing attention to a unique voice.
 See eg National Security Legislation Amendment Act (No 1) 2014 (Cth), insertion of new s 35P (prohibition on the disclosure of information relating to ‘special intelligence operations’, even where disclosure is in the public interest and, eg, discloses official malfeasance); Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth), insertion of new s 33ZZHA to the Criminal Code (prohibition on disclosure of information relating to the execution of delayed notification search warrants), insertion of new s 119.7 (prohibition on recklessly publishing items of news that were procured by the provision of monetary or other consideration and are for the purpose of recruiting persons to serve in any capacity with certain armed forces in foreign countries).
 State bills of rights, such as the Charter of Human Rights and Responsibilities Act 2006 (Vic), despite containing lofty sentiments concerning freedom of expression (see s 15), have had no impact upon laws limiting freedom of expression, such as the law of defamation.
 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106.
 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
 ibid; Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
 The Lange defence: Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
 Criminal libel remains an offence in some States, including Victoria, and serious racial vilification is an offence in some States. Prosecutions are very rare. Commonwealth anti-terror and national security legislation contains criminal offences for the disclosure of certain information: see eg the provisions referred to in n 1.
Other notable criminal legislation impacting upon freedom of speech includes s 471.12 of the Criminal Code (Cth), which makes it an offence to use a postal or like service in a way that a reasonable person would regard as being in all the circumstances offensive. That legislation was held by the NSW Court of Criminal Appeal to be compatible with the implied constitutional freedom for the discussion of government and political matters in Monis v R  NSCWCCA 231, (2011) 256 FLR 28. On appeal, the High Court split 3:3 over the correctness of that decision, with the result that the appeal was dismissed: (2013) 249 CLR 92. The defendant in those cases was Man Haron Monis, who had sent obnoxious letters and a recording to parents and relatives of soldiers killed while on active service in Afghanistan and others. In December 2014, Monis carried out the Martin Place siege at which he died, along with two innocent victims, including a member of the NSW Bar.
 The key provisions are to be found in articles 29–35 of the loi du 29 juillet 1881 sur la liberté de la presse.
 ibid, article 35.
 ‘Charlie Hebdo, 22 ans de procès en tous genres’, Le Monde, 8 January 2015.
 Anti-Discrimination Act 1977 (NSW), as amended in 1989 (racial vilification), 1993 (homosexual vilification), 1994 (HIV/AIDS vilification), 1996 (transgender vilification); Discrimination Act 1991 (ACT) ss 65–7 (racial vilification); Racial Discrimination Act 1975 (Cth), as amended in 1995 by the insertion of ss 18C and 18D; Anti-Discrimination Act 1991 (Qld) as amended in 2001 by the insertion of ss 124A, 131A (racial vilification); Racial Vilification Act 1996 (SA); Racial and Religious Tolerance Act 2001 (Vic); Criminal Code Act 1913 (WA), as amended in 2004 (racial vilification).
 By s 18B, an act is done ‘because of’ a person’s race, colour or national or ethnic origin if one of the reasons is the race, colour or national or ethnic origin of the person (whether or not it is the dominant or a substantial reason for doing the act).
 Eatock v Bolt (2011) 197 FCR 261.
 ibid, , –.
 ibid, .
 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105, .
 ibid, .
 ibid, .
 Bropho v Human Rights and Equal Opportunity Commission  FCA 1510.
 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105.
 ‘Tony Abbott dumps controversial changes to 18C racial discrimination laws’, The Age, 5 August 2014.
 ‘We apologise: publishing cartoon in original form was wrong’, Sydney Morning Herald, 15 January 2015.
 A poor district north of Paris with a large Muslim population.