Human Rights "Freedom" Commissioner Tim Wilson argues Charlie Hebdo would be censored in Australia thanks to section 18C of the Racial Discrimination Act - but that's not entirely true, writes Michael Bradley.

Amidst the festival of sordid opportunism that Charlie Hebdo has sadly become, the revival of the debate in Australia over section 18C of the Racial Discrimination Act comes close to taking the cheese.

Human Rights "Freedom" Commissioner Tim Wilson has charged back onto the front pages with the urgent demand that we revoke 18C like George Brandis promised, before we all drown in the waves of political correctness that are preventing the many Charlie Hebdos of Australia from being seen and heard.

"Charlie Hebdo would be censored in Australia," Wilson said, adding a neat paraphrase of 18C in these terms: "We have a law that makes it unlawful to offend or insult somebody."

Now, being a savvy media magnet, Wilson knows the power of the sound grab. And so he knows that his comments will be read as conveying an impression that is a long way from what 18C actually does.

On the other side of the megaphone debate, the defenders of 18C are in no mood to give up what they won last year when Tony Abbott ditched the attempt to amend the Act altogether, selling it as part of his strategy to get the Muslims onto Team Australia. Lost was the possibility of finding a middle ground.

And so as usual we have everything a modern policy debate needs, apart from facts and reason. Adopting an old lawyer trick, let's actually read the Act, shall we?

Section 18C of the Act outlaws any public act that is reasonably likely to offend, insult, humiliate or intimidate another person or group, and which is done because of their race, colour or national or ethnic origin.

First point of confusion: religion doesn't get a mention.

Charlie Hebdo's depictions of the Prophet Mohammed could not be the subject of a complaint under 18C because any offence would derive from religious belief rather than race or ethnicity. That distinction may seem strange, once you contemplate what, if any, real content the terms "race", "colour", "ethnicity" and "national origin" actually possess. As a mixed race human with extra-mixed children, I find it entirely meaningless (but maybe that's just my thing).

The overlooked sleeper is section 18D of the Act, which provides a raft of exemptions to the strict effect of 18C. It's a bit wordy but the detail is important. 18C does not apply to any acts that are done reasonably and in good faith, and which are one of these: artistic works; statements made for any genuine academic, artistic or scientific purpose or other genuine purpose in the public interest; fair or accurate reports of matters of public interest; or fair comment (based on a genuinely held belief) on matters of public interest.

That adds up to a lot of ways in which words or pictures cannot be caught by 18C, and they all apply no matter how offended or insulted the victims are.

Why did Andrew Bolt miss out on 18D's protection? Because it was found he was lacking good faith.

Back to Charlie Hebdo. When it published a cartoon of a French government minister, who was black, with a monkey's body, it no doubt offended, insulted and humiliated the minister and it did so because of her race or colour. If it was published in Australia, it would certainly trigger 18C, and the freedom fighters rest their argument for the repeal of 18C at that point. But what about 18D?

A cartoon is an artistic work. Charlie Hebdo, in invoking 18D, would say that its cartoon was in addition fair comment, as well as reasonable and in good faith, because it was in fact an ironic comment on racism intended to point the finger at French racists who habitually portray black people as monkeys.

Whether that defence would succeed, I don't know. It would require a deeper exploration of the context than my dodgy French language skills allow. But it's completely wrong to say that cartoons like that could not be published in Australia. Mostly, they can. Section 18D is designed to protect artistic and literary freedom of expression, and the good faith exception is plenty broad enough to achieve that. The case law bears it out. Charlie Hebdo's use of caricature and language at the outer edge of satire is in an entirely different universe from the publication of factually wrong statements about individuals for the purpose of denigrating them on racial grounds.

At some point the claim to satire comes under strain, because it can be hard to defend an offensive racial stereotype (such as the hook-nosed Jew, also used by Charlie Hebdo at times) where the harm that reinforcing that negative image causes far transcends any possible public benefit from the artistic content. The Freedom Brigade may say we can all suck it up, but in truth there are some things that should not be published. Perpetuating racial stereotypes is a pretty crap thing to do, in anyone's language.

As a side note, before we get too hung up about the French and free speech, remember that it is a crime in France (as in many European countries) to dispute the existence of the Holocaust or to justify the crimes of the Nazis or their collaborators. Why? Because they had a Holocaust, and we didn't. So let's not pretend that we can talk in absolutes. Freedom of speech is not an absolute human right protected by any country on earth, nor should it be.

There are a few simple points one can make about sections 18C and 18D, without calling on Voltaire or threatening anyone's personal identity. First, it's not that big a deal. It's rarely been invoked, and plays no real part in the active suppression of free communication in this country. If Wilson was really serious about that, he'd be going after our defamation and national security laws instead.

Secondly, it is sensible for a democratic society to seek to protect its more vulnerable members from the worst excesses of vilification on sectional grounds (whether based on race, gender, disability or any other generalised identifying feature). Section 18C seeks to partly achieve that in a balanced way, and it's not a bad attempt.

Thirdly, however, 18C as it stands does arguably go a little too far. If what we'd really like to prevent is racial vilification, that is words or images that are designed and tend to incite hatred of and potentially violence against a minority, then the language of the section goes a long way beyond that end. I would redraft it to reduce its scope to a narrower field, encompassing the truly harmful and insidiously evil kind of stuff of that older countries have seen plenty of but which we've thankfully been largely spared.

Not that any of that will happen. It's far more important to shout "Je suis Charlie" in execrable accents and keep chasing each other down the spiral of irony until none of us is able to recognise satire any more. Merde.

Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm.