18C of Racial Discrimination Act restricts freedom: Josh Frydenberg

Bob Carr backs calls for a parliamentary committee to examine section 18C citing the Bill Leak and QUT cases.

Former Foreign Minister Bob Carr has backed calls for a parliamentary committee to examine section 18C of the Racial Discrimination so people such as cartoonist Bill Leak and the QUT students who faced a racial hatred case “aren’t put through a process that effectively becomes a penalty”.

“The aspirations of 18C are things I think we all want to live with,” Mr Carr told Chris Kenny on Sky News’ Viewpoint program tonight. “But the process of putting people through the ringer to defend and explain their actions becomes a penalty and I just think with good will on both sides we can find a way of seeing we are not collecting students like those at (QUT) and, for goodness sake, a cartoonist in a daily newspaper.”

The former Labor MP said the challenge for legislators will be finding a solution that does not impose penalties on people who express an opinion but which also curbs hate speech.

“It does seem we’ve entered the realm where there is a restriction on freedom of expression. I think everyone would want to recoil from that in a free society. The challenge for the legislators is can we come together in all sides of the parliament and give expression to the sentiment that is captured in the words of 18C without imposing a process,” he said.

“I would imagine there are people in the Human Rights Commission who would feel that what’s happened in Queensland, even more than what’s happened with Bill Leak, has got to be avoided. I don’t see the remarks made by those students could induce hatred and wouldn’t we be better if both expressions, those of the students on Facebook and those of Bill Leak on the editorial page of The Australian, just be allowed to play themselves out.

“I think we have got a challenge here and I think we can adhere to the spirit of the legislation but straighten things out so we are not in these fixes. I think the great cause of a racially harmonious society is made harder not easier to achieve by these sorts of interventions. And it shouldn’t be beyond our wit to straighten it out.”

Earlier today, Cabinet minister Josh Frydenberg said the QUT and Leak cases highlight the need to remove the words “offend and insult” from Section 18C of the Racial Discrimination act.

Mr Frydenberg said that even though the QUT case had not succeeded and Australian cartoonist Mr Leak was likely to be able to use Section 18D as a defence in his case, the very fact that grounds existed for the cases to be brought showed the need for reform.

The Tasmanian branch of the Liberal Party yesterday voted unanimously to amend 18C.

“I think that the threshold with ‘offend and insult’ is too low,” Mr Frydenberg told Sky’s Australian Agenda.

“It’s invited complaints. I think that a better balance can be struck. I don’t think it’s appropriate to bring cases against cartoonists even though some of their cartoons may be uncomfortable, so I think we can reach the objectives of preventing racial vilification, and at the same time preserving individual freedom and particularly freedom of expression and speech.”

Mr Frydenberg’s colleague Julian Leeser this week called for procedural changes to be made which would not alter 18C but would expedite cases such as the QUT or Leak cases.

Mr Leeser and Mr Frydenberg are both members of the Jewish community, much of which has vocally opposed changing 18C.

The Australian’s editor-at-large Paul Kelly has also discussed the idea of having stronger racial vilification laws but not using 18C in its current form towards that end.

Mr Frydenberg said the issue needed to be explained.

“No doubt the Prime Minister and others are giving consideration to that process, but the key point with the QUT case and with the Bill Leak case, is even if those cases were thrown out of court, and in the case of Bill Leak 18D might provide him with a defence, you’ve still got the problem that these complaints have been made in the first place, and that it does become divisive and it does become a major distraction,” he said.

“If you remove the words ‘offend and insult’, you remove the opportunities for people to bring cases based on the fact that they have hurt feelings.”

Mr Frydenberg said he was sympathetic to many people, including those in the Jewish community, who do not want to see changes to 18C.

“I can understand where they’re coming from, but I look at the practical outcomes of 18C as it currently stands, and I don’t think that is producing an optimal outcome for our community and that’s why I do support change, but we do have to proceed carefully in a considered way, and we do need to air and to ventilate some of the options that may be on the table.”

Mr Frydenberg said reform needed to be approached carefully, and the government needed to take the public with it on any proposed changes.

“At the same time, this is a very important issue. It’s not just an important issue for The Australian and the commentariat, it’s an important issue for the broader community. Freedom of speech is totemic for a free society.”

Challenged on the fact that there have been a number of cases where the “insult and offend” provisions of 18C have successfully been used in cases of anti-semitism, Mr Frydenberg said this was one issue on which he disagreed with the Jewish community, and that the words “intimidate or humiliate” which he believes should remain as part of 18C would be sufficient.

“I don’t think the words ‘offend and insult’ are there to protect against Holocaust denialism, for example, which you would never want to see a green light for an issue like that,” he said.

“I think community standards would prevent anti-semitism and you don’t need a hurt feelings test in order to run successful cases against anti-semitic views.”

Greens leader Richard Di Natale said proposed changes to 18C were a “solution looking for a problem”.

“I think most Australians don’t sit at home thinking, ‘my freedom’s being curtailed to go out and be a racist or a bigot’,” he said.

“I just don’t think it’s a conversation happening in lounge rooms. They’re worried about house prices, they’re worried about access to healthcare and education, and this is a solution looking for a problem.

“Why on earth do we want to make it easier for people to be racists? That’s the outcome of a change to 18C.”

Senator Di Natale said 18C was an insider debate, and warned Malcolm Turnbull against reopening it.

“Multicultural Australia came together to say we reject any change in this area, and I think it would be politically a very, very bad move to take this issue on again,” he said.