Case Summary and Outcome

The Federal Court of Australia held by a majority that the cartoon entitled “Alas Poor Yagan” published by Western Australian Newspapers Ltd was protected by freedom of expression under section 18D of the Racial Discrimination Act. The petitioner Robert Bropho had appealed to the Federal Court of Australia on the grounds that the primary judge had erred in law in finding that although the cartoon “Alas Poor Yagan” was offensive on the basis of race, color, or ethnicity under section 18C of the Racial Discrimination Act, it fell within the exceptions in section 18D which exempted the respondent from liability. The majority of the Federal Court of Australia recognized that, although the cartoon consisted of eight drawings that were humiliating and offensive to the Nyoongar Aboriginal community, they did not violate the Racial Discrimination Act because it was an “artistic work” published in good faith and in a reasonable manner reflecting a matter of public interest.

 

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Facts

On September 6, 1997, the Western Australian Newspapers Ltd published a cartoon entitled “Alas Poor Yagan” which ridiculed the behaviors of a group of Aboriginal elders in Australia in relation to the transportation from England to Australia of the cranium of the Aboriginal leader Yagan who was murdered in 1833 by colonizers. 

On September 24, 1997, a group of people, called “the Nyungar Elders Circle” (namely Albert Corunna, Richard Wilkes, Ken Colbung, Robert Bropho, Leisha Eatts, Mingli Wanjurri and Violet Newman) complained to the Australian Human Rights and Equal Opportunity Commission against the West Australian newspaper and its cartoonist Dean Alston for publishing a series of cartoons on the grounds that they were discriminatory on the basis of race and in breach of section 18C of the Racial Discrimination Act 1975. The petitioners argued that the cartoon was offensive and humiliated the Nyoongar Aboriginal population on the basis of their race. In addition, the petitioners explained that Section 18C of the Racial Discrimination Act prohibited racial hatred and acts that may offend, insult, humiliate, or intimidate a group of persons. In particular, the petitioners remarked that the cartoon contained a degrading depiction of their ancestor, Yagan, and the religious figure, the Wagyl. They also mentioned that the cartoon’s references to “beer” and a “pub” reproduced stereotypical conceptions in Australia that relate Aboriginal people to the consumption of alcohol. At the same time, they complained that the cartoon suggested that the petitioners are not direct descendants of Yagan because their ancestors would have mixed with other races in recent generations. They also criticized that the cartoon reflected an erroneous view of Aboriginal people as people who take advantage of government subsidies.

For their part, the defendants, Western Australian Newspapers Ltd and cartoonist Dean Alston, argued that the cartoons illustrated a matter of public interest in Australia. In this regard, they explained that the transfer of Yagan’s skull from the United Kingdom to Australia caused serious disputes and divisions in the Aboriginal community that the newspaper wanted to illustrate with the cartoons. They also stated that the travel of some of the petitioners to the United Kingdom was financed by the State budget. In addition, they mentioned that, although the cartoon reflected criticism of the petitioners’ behavior, the purpose of the publication was to reproach that the removal of the head of the aboriginal leader Yagan polarized the aboriginal community instead of uniting it.  

On April 12, 2001, the Australian Human Rights and Equal Opportunity Commission rejected the petitioners’ complaint. First, preliminarily, the Commission held that cartoonist Dean Alston could not be sued because he was the cartoonist and that the claim should have been directed only against Western Australian Newspapers Ltd. Second, with regard to the merits of the case, the Commission explained that the cartoons reflected an important issue of public interest to Australia. In addition, the Commission held that, while the cartoons could be humiliating and offensive under the terms of the Racial Discrimination Act, they were protected by the “artistic works exception” in section 18D of the Act. The Commission held that the publication of the cartoon in question had been an offensive act on the grounds of race or color in terms of section 18C of the Racial Discrimination Act 1975, but that the publication was exempt from infringement or penalty under section 18D of the Act. In this regard, the Commission explained that section 18D of the Act provided that the discriminatory acts listed in section 18C were not unlawful or punishable if they were done reasonably and in good faith in the context of an artistic work or in a publication made for academic or public interest purposes. Under these premises, the Commission held that the newspaper had published an artistic work of public interest in good faith and reasonably and, consequently, rejected the complaint. 

As a result of this refusal, Mr. Robert Bropho, one of the petitioners, filed an application for judicial review of the Australian Human Rights and Equal Opportunity Commission’s decision because he considered that the Commission misapplied the Racial Discrimination Act. In his appeal, Mr. Bropho argued that racial discrimination is not protected by freedom of expression. In particular, Mr. Bropho challenged the Commission’s assessment that the publication had been made reasonably and in good faith. On this point, the petitioner argued that the Commission should have required the respondent newspaper to prove positively and reliably that it did not act in bad faith or unreasonably instead of considering that the exception of article 18D was merely configured by the “absence of bad faith”. Furthermore, he objected that such offensive caricatures constituted a true matter of “public interest”. On this point, Mr. Robert Bropho explained that the eight cartoons reflected different circumstances and that not all of them reflected matters of public interest.

On December 4, 2002, Judge R.D. Nicholson of the first instance rejected the claim for judicial review against the decision of the Human Rights Commission. Judge Nicholson had to analyze whether the Human Rights and Equal Opportunity Commission had erred in law in deciding that the cartoon was exempt from liability under the exception in Section 18D of the Racial Discrimination Act for having published an artistic work in the public interest in a reasonable and bona fide manner. 

The judge noted that the petitioner did not challenge the Commission’s decision that cartoonist Alston should not have been sued or that the cartoon was an “artistic work” under Section 18D of the Racial Discrimination Act. The judge then held that Section 18D protects various aspects of freedom of expression, namely: artistic works, statements of public interest, and fair comment in the public interest. The judge also held that Section 18D must be interpreted “broadly” because it protects freedom of expression.

At the same time, the judge explained that the “good faith” required by Section 18D must not be interpreted subjectively by examining the “real intention of the person affected”, but must be understood objectively, that is, through an objective analysis of the artistic work and considering whether there was a lack of precaution and reasonable diligence on the part of the person who published it. In this sense, the judge held that the Commission correctly evaluated the evidence in the case by assessing that there were no indications that the defendant had acted with actual malice, dishonesty, or fraud in an “objective” manner. Furthermore, the judge insisted that it was not necessary to evaluate the petitioners’ subjective view of the extent to which the caricature affected them in order to establish whether the exception provided for in Article 18D should be applied. 

The judge concluded that the Commission did not commit an error of law in examining the requirements that the publication must be reasonable and in good faith in accordance with section 18D and in evaluating the evidence. In the judge’s view, in the absence of evidence demonstrating bad faith on the part of Western Australian Newspapers Ltd, the Commission was not required to demand further action or to incorporate further evidence. 

Further, the judge rejected Mr. Bropho’s argument that some cartoons did not reflect matters of public interest. In this regard, the judge held that section 18D of the Racial Discrimination Act must be applied to the thing said or done as a whole and that the Commission “was not required to separately isolate those findings to parts of the things said or done.” [para. 53]

For all of these reasons, the primary judge dismissed the petition for review of the Human Rights Commission’s decision. 

On December 24, 2002, Mr. Bropho filed an appeal to the Federal Court of Australia against Judge Nicholson’s decision.

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Decision Overview

Justice French J. delivered the opinion of the Federal Court of Australia. Judges French, Lee and Carr of the Federal Court of Australia had to decide whether there was an error of law in the decision of primary judge Nicholson rejecting Mr. Bropho’s application for judicial review of the decision of the Human Rights Commission which had held that the cartoon published by the respondent Western Australian Newspapers Ltd was protected by section 18D of the Racial Discrimination Act. In particular, the judges had to examine whether there was an error of law or in the assessment of the evidence by the primary judge in establishing that the publication of the cartoon entitled “Alas Poor Yagan”, which ridiculed the conduct of a group of Aboriginal elders in Australia in relation to the repatriation of the skull of the Aboriginal leader Yagan killed by colonizers in 1833, was done reasonably and in good faith in accordance with the Racial Discrimination Act.

Mr. Bropho argued that the judge erred in law by placing the burden on him as the petitioner to prove that the cartoon was not published in a reasonable and bona fide manner. In this regard, the petitioner argued that section 18D is merely an “exception” to the prohibition on the publication of discriminatory content in section 18C of the Racial Discrimination Act. Under this premise, the petitioner explained that the exemption from liability for artistic works and public interest commentaries should be interpreted in a “restrictive” manner and not in a “broad” manner as the primary judge and the Human Rights Commission did. In turn, he reproached that the judge reversed the burden of proof of the requirements of the exemption of section 18D of the Racial Discrimination Act. Furthermore, he added that such proof does not amount to merely finding the “absence” of bad faith or a malicious or fraudulent attitude on the part of the defendant. At the same time, he criticized that in the absence of evidence, the primary judge applied a presumption of good faith and reasonableness required by section 18D of the Act in favor of the respondent. Furthermore, the petitioner explained that not all the cartoons published in the panel entitled “Alas Poor Yagan” contained matters of public interest. In particular, he argued that the offensive and humiliating aspects of the cartoons did not reflect any public interest.

On the other hand, Mr. Murray, who was the editor of the respondent West Australian newspaper, argued that the published cartoons constituted a valid criticism of the events surrounding the transfer of the skull of Aboriginal leader Yagan to Australia. In the respondent’s view, Yagan himself would not have approved the behavior of the petitioners, who disputed their role in the transportation of Yagan’s head. Mr. Murray also stated that the petitioners’ trip to the United Kingdom was funded by taxpayers. In this regard, he remarked that the subject matter depicted in the cartoons was of public interest. In addition, the respondent stated that the cartoon was intended to convey the message that the petitioners had forgotten the message that the return of Yagan’s head was intended to unite Australia’s Aboriginal community, rather than to cause conflict and division among them as to who would bring back the leader’s cranium. 

First, Judge French J set out that on September 6, 1997, the West Australian newspaper published a set of eight cartoons entitled “Alas Poor Yagan”, which were drawn by cartoonist Dean Alston and supported by the newspaper’s editor Paul Murray. The judge also explained the context or background of the cartoon considered offensive by the petitioners, which illustrated some aspects of the recovery of the skull of the Aboriginal leader of Western Australia, Yagan. The judge mentioned that the Aboriginal leader was killed in 1833 by settlers, that his head was cut off to be exhibited in a museum in England, and that his story is considered one of the greatest colonial tragedies in Australia. 

The judge also pointed out that in 1997 a strong controversy arose in relation to the decision to move Yagan’s head from England to Australia. These disputes involved some of the petitioners, a group of Aboriginal elders, who raised various claims regarding their ancestry to Yagan and the role each would play in bringing his head back to Australia. 

Judge French then acknowledged that “the cartoon reflected upon the mixed ancestry of some of the Aboriginal people involved. It implied an unseemly desire on the part of some of them to take advantage of public funding to travel to England and it suggested that their conduct had caused disunity amongst Nyoongar people.” [para. 2] Further, the judge added that the cartoon “implied the frivolous use by an Aboriginal leader of the dreamtime serpent, the Wagyl, to frighten a child who was cynical about the publicly funded trip to England. It also depicted the head of Yagan in a cardboard box expressing a desire to return to England.” [para.2]

Second, Judge French stated that the outcome of Mr. Bropho’s appeal does not depend on the judges’ approval or disapproval of the cartoon. He further remarked that “the freedom of expression which is protected by the Racial Discrimination Act extends to artistic works, genuine scientific and academic debate and discussion and fair comment on matters of public interest, even though they might insult, offend, humiliate or intimidate individuals or groups of people on account of their race, color, national or ethnic origin.” [para. 5] The judge remarked that the question that the judgment must answer is whether the publication of the defendant newspaper’s cartoon was done reasonably and in good faith in order to obtain the protection of freedom of expression.

Thirdly, Judge French explained the relevance of the facts involving the transfer of Yagan’s skull to Australia. In this regard, he held that “the circumstances surrounding the return of Yagan’s head from the United Kingdom included publicly aired differences between members of the Nyoongar community about who was entitled to retrieve and return the head” [para.15]. These differences in turn led to litigation in the High Court of Australia as one person, Mr. Bodney, attempted to prevent the UK authorities from handing over Yagan’s head. In this regard, the judge found that all these disputes “inspired a cartoon which appeared in the newspaper in September 1997.” [para.15]

Fourth, Judge French determined the legal framework applicable to the case. In this regard, he held that section 18C of the Racial Discrimination Act makes it unlawful for a person to engage in an act that offends, insults, humiliates or intimidates another person on the basis of their race, color, or national or ethnic origin. In turn, the judge remarked that section 18D provides exceptions to section 18C by stating that it is not 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.” [para. 23]

Judge French then explained the international background of the Racial Discrimination Act and its sections 18C and 18D. In this regard, he explained that the preamble of the Racial Discrimination Act itself explains that it was enacted in response to the entry into force of the International Convention on the Elimination of All Forms of Racial Discrimination, which requires Australia to adopt laws prohibiting racial discrimination. The judge added that the Racial Discrimination Act is supported by the International Covenant on Civil and Political Rights which requires Australia to respect and ensure all Covenant rights without discrimination on the basis of race or another status (Article 2). However, Judge French also noted that the International Covenant also recognizes freedom of expression in Article 19, which is limited only by certain restrictions provided by law and necessary for respect of the rights or reputations of others; for the protection of national security, public order, or public health or morals. Likewise, Judge French recalled that in Handyside v. United Kingdom (1976) the European Court of Human Rights held that freedom of expression applies not only to information or ideas that are favorably received or considered inoffensive but also to those that offend, shock or disturb the State or the population, for such are the requirements of pluralism without which there is no democratic society.

The judge explained that sections 18C and 18D of the Racial Discrimination Act allow a balance to be struck “between the need to prohibit the evil of racial vilification and hatred and the need to protect freedom of speech and association within their reasonable limits.” [para. 62] The judge also held that “the proscription in s.18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression. That general principle is reflected in the recognition of that freedom as fundamental in a number of international instruments and in national constitutions. It has also long been recognised in the common law albeit subject to statutory and other exceptions. So in Bonnard v Perryman [1891] 2 Ch 269 at 284.” [para. 72]  

Thus, Mr Justice French agreed with the interpretation of the Human Rights Commission and the primary judge who decided that section 18D “may be seen as defining the limits of the proscription in s 18C and not as a free speech exception to it. It is appropriate therefore that s 18D be construed broadly rather than narrowly.” [para. 73] 

In turn, Judge French explained that the “artistic works” that section 18D exempts from the prohibition in section 18C encompass an infinite variety of expressions of human creativity. In this regard, the judge emphasized that “some such expressions will shock and confront particular elements of society. Some may satirise or lampoon aspects of human behaviour including the behaviour of particular individuals and groups. Their performance, exhibition or distribution may offend or insult or even humiliate and intimidate some. And such acts may have that effect in relation to people of a particular race, colour or national or ethnic origin. This does not mean that the performance, exhibition or distribution of such a work is done because of the race, color or national or ethnic origin of the people to whom it relates. It may be a work about particular people or use the circumstances of particular people as a vehicle of artistic expression with universal themes.” [para. 106]

According to Judge French, the key issue is whether an artistic work that humiliates, offends, insults or intimidates persons on the basis of a particular race, color, or ethnic origin was represented, exhibited, or distributed “reasonably and in good faith” in accordance with Article 18D. In this regard, the judge emphasized that “the impugned act in relation to the work is reasonably likely to offend, insult, humiliate or intimidate a person or people of a particular race, color or national or ethnic origin and is done because of one or more of those attributes of that person or those people. That alone cannot constitute want of reasonableness or lack of good faith. If it did, s 18D would have no application.” [para. 107]

Fifth, Judge French had to decide whether there was an error of law in the determination of the burden of proof and its assessment by the Human Rights Commission and the primary judge. On this point, he held that “the primary judge, correctly in my opinion, accepted that the exemption under s 18D is to be broadly construed.” [para. 109] Judge French also rejected the petitioner’s argument that both the Human Rights Commission and the primary judge would have required him to prove that the cartoon was not published in a reasonable and bona fide manner, reversing the burden of proof. In this regard, Judge French held that “in my opinion, it is clear that both the Commissioner and the primary judge treated the burden of establishing the exemption under s. 18D as resting upon the respondent. Nothing in what they said can be construed as having imposed upon the complainants the burden of negativing the exemption of s 18D. On the assumption, which is not in dispute for the purpose of these proceedings, that the onus of proof lay upon the newspaper, appellant’s contention is not made out. The first four grounds of appeal therefore fail.” [para. 111] 

Further, Judge French explained that both the Commission and the primary judge had concluded that the respondent newspaper had published the cartoons “reasonably and in good faith” in accordance with Article 18.D by weighing various evidence presented by the respondent, including that the cartoon was an artistic work; many articles and editorial comments previously published in the newspaper explaining with varying points of view the facts surrounding the return of Yagan’s head; the testimony of the newspaper’s editor evidencing that the cartoon was art and that he knew the cartoons would draw criticism but that they should be published given the public interest in the matter; the comparison of the cartoons with other material published by the newspaper on the matter; among other evidence.

The judge then rejected the petitioner’s argument that a presumption favoring the subjective judgment of the respondent, Mr. Murray, had been applied to prove reasonableness and good faith in the newspaper’s publication of the cartoons based solely on the statements of the newspaper’s editor. Judge French stated that the primary judge “was engaged in the process of judicial review of the Commissioner’s decision. He was not purporting to make his own assessment of the reasonableness and good faith of the publication.” [para. 113] In addition, Judge French remarked that the primary judge made an objective consideration of “all the evidence” and not just the respondent’s subjective view, thus rejecting Mr. Bropho’s appeal on this point. 

Sixth, Justice French considered whether the Human Rights Commission and the primary judge failed to assess aspects of the cartoon that lacked public interest and were humiliating to the Nyoongar or Aboriginal people. On this point, Judge French acknowledged that the petitioner made a compelling argument that the cartoon contained aspects of an offensive and humiliating nature that were irrelevant to the public interest. However, the judge rejected this argument and held that the question of public interest for purposes of applying the reasonableness and good faith standard of section 18D of the Racial Discrimination Act “involve holistic judgments.” [para. 119] Likewise, Justice French added that judges “should be reluctant to engage in the process of subdividing, in judicial review proceedings, the materials before an administrative decision-maker who has formed an overall view of the publication.” [para. 119]

For all the reasons stated above, Judge French dismissed the appeal submitted by Mr. Bropho and ordered the petitioner to pay the costs.

Concurring and dissenting votes

In his concurring opinion, Judge Carr J. held that the Human Rights Commission did not reverse the burden of proof as claimed by the petitioner. In particular, he recalled the primary judge stated in paragraph 44 of his reasons that the respondent newspaper “bears the onus of demonstrating that they acted reasonably and in good faith.” [para. 171] Furthermore, Judge Carr noted that the primary judge established that the respondent newspaper had succeeded in proving by a variety of evidence the requirements of good faith and reasonableness required by section 18D of the Racial Discrimination Act.

Judge Carr held that the Human Rights Commission correctly found that the respondent satisfied the requirements of good faith and reasonableness in publishing the cartoon entitled “Alas poor Yagan” in accordance with section 18D of the Act. The judge explained that the Commission placed the cartoon in the context of having been published following a series of articles and editorial comments in the same newspaper addressing the issue of the return of Yagan’s skull and the discord it had generated in the Aboriginal community. The judge also noted that the Commission observed that the issue was treated as an important matter of public interest in Australia. In addition, the judge mentioned that the Commission valued the testimony of the newspaper editor, Mr. Murray, together with “other material published on this issue in the West Australian which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community. All of this evidence, and the Commission’s acceptance and assessment of it, in my opinion, goes to both reasonableness and good faith.” [para. 176]

Judge Carr then rejected the petitioner’s argument that the primary judge erred as a matter of law in applying a subjective standard to conclude that the respondent published the cartoon in good faith and reasonableness. In Judge Carr’s view, both the Commission and the primary judge applied “an entirely appropriate test. It took an objective approach, but without excluding evidence of Mr. Murray’s actual state of mind. I respectfully agree with the primary judge when he expressed the view, at 33 of his reasons, that the focus of the inquiry is an objective consideration of all the evidence, but that the evidence of a person’s state of mind may also be relevant.” [para. 178]

Further, Judge Carr rejected the petitioner’s contentions that the Commission and the primary judge erred in law by failing to take into account the humiliating and offensive aspects of the cartoon that had no real public interest purpose. Judge Carr held that the Commission and the primary judge did not err in law in their decisions. In this regard, Judge Carr held that the Human Rights Commission “was not obliged, in my view, to divide the cartoon into various parts (as the appellant submitted) and distinguish those which were for a genuine purpose from the parts which were not. Its task was to assess the act of publication of the cartoon” [para. 183]. For all these reasons, Judge Carr rejected the petitioner’s appeal.

On the other hand, in his dissenting opinion, Justice Lee J. held that the exception under section 18D of the Racial Discrimination Act should be read as applying to an act prohibited by section 18C. These types of acts which offend, insult, humiliate or intimidate a person because of his race, color or ethnic origin must be done “reasonably and in good faith having regard to the inherent unlawfulness of the act.” [para. 133] 

In Judge Lee’s view, the primary judge held that it was proved that the cartoon was reasonably likely to offend, insult, humiliate, or intimidate an Aboriginal person in accordance with section 18C of the Racial Discrimination Act. On that basis, “the act of distribution which was the subject of the complaint was at the more serious end of the spectrum with a corresponding burden on WA Newspapers to show that in the circumstances the act was done reasonably and in good faith. The reasonableness of the act could only be judged by reference to the possible degree of prejudice it might cause. Such harm, in the context of the Act, would be the extent to which that part of the community consisting of persons holding racist views destructive of social cohesion, or persons likely to form such views, might be reinforced, encouraged, or emboldened in such attitudes by the publication, on racial grounds, of a cartoon which, regardless of the artist’s intention and the publisher’s purpose, might be seen by those persons as supporting or justifying an authoritative source for views based on racial antipathy.” [para. 136]

Judge Lee remarked that the publication constituted an act reasonably likely to offend, insult, humiliate, or intimidate any Aboriginal person as it exceeded the self-perception of a single individual but affected all members of the Aboriginal community. In this regard, the judge stated that the publication of the cartoon “stimulates contempt or hostility between groups of people within the community and it is the intention of the Act that such socially corrosive conduct be controlled.” [para. 138]

Similarly, Judge Lee held that “the question of whether the publication was an act done in good faith must be assessed, in part, having regard to the subjective purpose of the publisher, but in general it is an objective determination as to whether the act can be said to have been done in good faith, having due regard to the degree of harm likely to be caused and the extent to which the act may be destructive of the object of the Act.” [para. 141] On this premise, Judge Lee concluded that neither the Commission nor the primary judge correctly answered this question.

Judge Lee held that it appeared that the Human Rights Commission considered that the discriminatory effects of the publication of the cartoon were somehow remedied by other articles and editorial comments in the respondent newspaper. In this regard, Judge Lee explained that “contemporaneous, or prior, publication of anodyne material would not, in itself, make an act of publication done because of race and involving racially offensive material, an act done reasonably and in good faith.” [para. 142] Likewise, the judge emphasized that the newspaper editor’s testimony of having evaluated the possible criticism that the publication of the cartoons would receive, “did not show that the racially offensive consequences of the act of publication, an act done because of race, had been duly considered and on its own that evidence was incapable of satisfying the onus on WA Newspapers to show that the act of publication had been done reasonably and in good faith.” [para. 143]

In summary, Judge Lee held that the defendant failed to demonstrate its good faith and reasonableness in publishing a cartoon that falls within the prohibition of section 18C of the Act with sufficient prudence, caution and diligence to avoid or minimize its discriminatory consequences.

For these reasons, Justice Lee concluded in his dissent that the Human Rights Commission misinterpreted the Racial Discrimination Act and that its decision should be overturned.

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