Coalition about-face on hatred disappoints

It's concerning that the Abbott government is walking away from its promise to repeal the law that sent Andrew Bolt to court.

Worse, the government has said it is considering laws that would jail people for inciting ''hatred'' — a vague and ambiguous term — on the basis of race, religion or political opinion.

On September 28, 2011, a Federal Court judge found that News Ltd journalist Andrew Bolt had breached section 18C of the Racial Discrimination Act.  Section 18C makes it unlawful to ''offend, insult, humiliate or intimidate'' a person because of their race, colour or ethnic origin.

Section 18D of the Racial Discrimination Act provides exemptions for conduct caught by section 18C.

Some, including Australian Human Rights Commission president Gillian Triggs, have called this provision the ''free speech defence''.

Others have claimed that Bolt didn't fall under any of the exemptions because he ''got his facts wrong''.  This is incorrect.

The judge in the case would have made the same decision even if Bolt had his facts right.  This is because the judge decided that the use of ''inflammatory and provocative language'' disqualified Bolt from the exemptions.  Getting the facts right or wrong is irrelevant.  Section 18D does not protect free speech.

The case sparked a significant debate on free speech.  In August 2012 then opposition leader Tony Abbott delivered an address in which he championed this cardinal liberal democratic principle.

Abbott used the speech to make an important election commitment:  ''So let me assure you, the Coalition will repeal section 18C in its current form.''

That commitment gave all those who were troubled by the Bolt case a feeling of profound relief.  The promised repeal couldn't change the past.  But there was relief in knowing that never again would a journalist be silenced by the court under this illiberal provision.

Now the Coalition has reversed its position.  Instead of strengthening free speech, the government is examining whether to introduce a new criminal offence.

Section 80.2A of the Commonwealth Criminal Code makes it an offence to commit violent acts motivated by ''race, religion, nationality, national or ethnic origin or political opinion''.

Of course, provisions against inciting violence are appropriate.  But Attorney-General George Brandis recently said:  ''It seems that section 80.2A of the Commonwealth Criminal Code is probably too narrowly drawn''.  He appears to be suggesting that he will broaden section 80.2A to make it illegal to incite hatred of someone on the basis of political opinion.

A person can have a political opinion about anything.  It's a term that applies to politics, as much as economics, morality, the environment and everything else.

Such a law would shut down debate.  It would create an environment that is more hostile to free speech than the one that exists now.

Saying or writing things — even if they might inspire hatred, contempt or ridicule — should never be treated as criminal acts.

If such a law existed in 2011, a judge hostile to free speech could have sent Bolt to prison because he expressed his opinion on an issue of public policy.

Even the specific election promises made to restore free speech have not been fulfilled by the government.  The government has yet to release a section 18C repeal bill.

But in Senate estimates on Monday, Brandis said:  ''The government is committed to repealing from the Racial Discrimination Act those provisions which enabled the journalist Andrew Bolt, for example, to be successfully pursued through the courts for expressing an opinion on a matter of public policy.''

The only way to deliver on this promise is to repeal section 18C in its entirety.

Unfortunately, Brandis has also recently suggested that the Coalition was considering repealing only half of section 18C.

In an interview with this newspaper last month, Brandis suggested that only the words ''offend'' and ''insult'' would be removed, but the words ''humiliate'' and ''intimidate'' would remain.

If the Coalition doesn't want to see another Bolt case, it must repeal the whole of section 18C.

The judge in the Bolt case didn't distinguish between the four words in section 18C.  Bolt was found to have offended, insulted, humiliated and intimidated the complainants in the case.

It's clear from the judgment that Bolt would have breached section 18C even if the words offend and insult were removed, as Brandis proposes.

For all those who cheered Abbott's commitment to free speech in August, 2012, the Coalition's new position on this issue is deeply unsatisfactory.

The government should be extending, not restricting, free speech.  It should act immediately to repeal section 18C, as the Coalition promised to do before the election.  And it must immediately abort the dangerous idea that could see individuals sent to jail for expressing views about others' political opinions.