A better democracy?

You can see the same thing happening in debates on multiculturalism, immigration and racism. There is always a group that feels put out that the newcomers are 'encroaching' on 'their' space. They claim ownership of something that is actually a commons and some of them abuse the newcomers.

Why should we change our laws to placate people whose only response to anybody who is different is to abuse them and to threaten to harm them?

The fact is that we need some type of law to deal with intimidating and harassing speech, particularly in the social media age. Whether those laws should be tied purely to race is another matter and a debate for another day. We do have criminal laws, but enforcing them can be difficult in practice. Why should we deny a private right of action under the civil law?

That said, if you set the threshold too low then the value of the law gets diminished.

This where the criticisms of the Bolt case may have some bite.

Much of what Andrew Bolt wrote has been raised, somewhat more eloquently and without reference to specific individuals, by other commentators. The gist of Bolt's article was that a given group of individuals had too much European heritage to qualify as Indigenous for the purposes of affirmative action measures.

Was raising that issue actually racist or was it racist in the way that he specifically raised it? The problem is that because Bolt got facts wrong and exaggerated he could not get the benefit of the free speech exemption. If you exaggerate and get basic facts wrong then it's quite hard to make out that you are acting "reasonably" and in "good faith". Yet, his case does illustrate the problem with the low threshold in s 18C of Part IIA of the RDA.

While Bolt's article was offensive within the parameters of s 18C, its offensiveness in terms of racism was at the lower end of the spectrum. Bear in mind that many others have raised Bolt's underlying point in a general sense without getting sued. In contrast, Holocaust denial speech, such as that in the Toben cases and direct racist assaults, as in Campbell v Kirstenfeldt, are more clearly speech acts that are seriously offensive.

If an Abbott Government raises the threshold then it's hard to see what the problem would be. A balance needs to be struck between protecting people from harassment and intimidation while still allowing us to discuss sensitive issues. With a higher threshold in s 18C the laws would still apply then to direct abuse and to Holocaust denial. Even if Abbott does away with them in their entirety there would still be the State and Territory laws on vilification.

Abrogating the racial vilification laws in their entirety would be a mistake. The whole point of free speech is that it facilitates democratic participation. When a group of disaffected individuals use speech to intimidate and harass they reduce the ability of others to participate in our democracy. It is sad that some people are deeply unhappy and resentful, but allowing them to scapegoat minorities and women won't solve their problems. It just creates new ones. We need a balancing act on speech – one that allows people to live free from harassment and intimidation.