Cabinet papers: Lavarch warned Keating of section 18C backlash

Paul Keating was warned about a backlash from free speech advocates over tougher race hate laws introduced in 1994.

Former attorney-general Michael Lavarch.

Paul Keating was warned about a backlash from free speech advocates over tougher race hate laws introduced in 1994, which would become an ideological flashpoint issue for the Turnbull and Abbott governments more than two ­decades later.

In a cabinet submission dated May 5, 1994, then attorney-­general Michael Lavarch argued in favour of the creation of a new civil prohibition in the Racial Discrimination Act to crack down on ­offensive behaviour based on someone’s race.

Mr Lavarch anticipated “strong criticism from some community groups whatever decision is taken” but pushed strongly for the swift enactment of both criminal and civil sanctions to prohibit racial hatred and violence.

The legislation established section 18C, which made it unlawful for an individual to engage in conduct reasonably likely to “offend, insult, humiliate or intimidate” ­another person or group on the basis of their “race, colour or ­national or ethnic origin”.

An attempt by the Turnbull government to reform the section was defeated in the Senate last year despite a public backlash to the 18C investigation into late cartoonist for The Australian Bill Leak and the case against three Queensland University of Technology students for using an indigenous-only computer room.

In his cabinet submission, Mr Lavarch said there would be criticism to the proposed toughening of race-hate laws from “groups ­opposed to the legislation as a threat to freedom of speech”, but played down their concerns.

He instead told the cabinet there would be no major threat to free speech — arguing that freedom of expression should not be unfettered — and noted there were “exempting purposes” under the new section for academic, ­artistic or scientific works that contributed to the public interest.

“The proposed legislation will not affect the basic right to freedom of speech,” Mr Lavarch said.

“That right is, of course, not absolute — there are already a number of restrictions on freedom of speech under existing law, for ­example, laws on defamation and obscenity.

“I believe the right to free speech must be weighted against the right of people from different racial backgrounds to enjoy their lives free from discrimination and hatred.

“I consider also that legislation can have a powerful educative role in promoting tolerance within the community and deterring incidents of racial hatred.”

The overhaul of race-hate laws built on an earlier 1992 bill, which lapsed when the 1993 election was called. Mr Lavarch pointed out the majority of the more than 700 submissions viewed the shake-up as a “threat to freedom of speech”.

Mr Lavarch anticipated that the inclusion of criminal sanctions to address threats against people or property based on a person’s race could be the most contentious aspect of the shake-up because it was one of the key objections to the 1992 bill.

But he argued criminal sanctions were necessary to meet Australia’s international obligations and because com­parable nations such as Canada, New Zealand and Britain had pushed ahead with their own criminal offences.

Mr Lavarch also advised ministers against the inclusion of ethno-religious hatred as a ground of complaint under the strengthened race-hate laws.

He warned this would be ­counter-productive.

“The creation in domestic law of a new right of freedom from ­discrimination in ­respect of ethno-religion may be more, rather than less, divisive of the Australian community,” he said.