Bertrand Russell said, “Do not use power to suppress opinions you think pernicious, for if you do the opinions will suppress you.” However, this is exactly what is happening in Australia today. Speech deemed to be pernicious has been suppressed, most notoriously through 18c of the Racial Discrimination Act. However, this is not the only or most concerning of these restrictions.

There is a lesser known, and more insidious law in Australia involving giving offence that is even more troubling than 18c. It is s474.17 of the Criminal Code Act, which deems it a criminal offence to use a carriage service to menace, harass or cause offence. You may recognise it as the piece of legislation used to lay charges against Chris Nelson, the New South Wales Central Coast chiropractor, for racist and hateful comments he made to former Senator Nova Peris on her Facebook page, and many would argue that this was a justified charge. Note, however, that the act of being offensive using a carriage service, is not just unlawful as are breaches of 18c, but is a criminal offence, which can result in a prison sentence. Causing offence online is a criminal offence. That should be enough to send shudders down the spine.

The wording of the Act is as follows:

474.17 Using a carriage service to menace, harass or cause offence

(1) A person commits an offence if:

(a) the person uses a carriage service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for three years.

A law against menacing behaviour or harassment has its place, however determining whether online communication has been ‘offensive’ may be a little harder to police. You only have to look through the comments section under any media article to see that many people are offending each online on a daily basis. It’s deeply disturbing to consider how such a law could be misused to target or silence online speech.

Beware; any time you write a Facebook post or comment, or indeed write anything online, that could potentially be ‘offensive’, you are committing a crime under Australian law. It would only take offending the wrong person before you find yourself charged with a criminal offence and facing a judge you hope will be reasonably minded and sympathetic to your cause. Simply put, it is up to the discretion of a court of law to decide whether online acts are criminal, and if they are deemed offensive then there is a maximum penalty of three years imprisonment. Chris Nelson escaped prison with an eight-month suspended jail sentence and a two-year good-behaviour bond.

We like to mock the ridiculousness of the totalitarian regime in North Korea overseen by Kim Jong-un, especially in light of the recent dictate that sarcastic comments made in reference to the authoritarian government have now been officially banned. The power of the North Korean government to police thought and speech seems outrageous to members of a free country like Australia. What most people are unaware of, however, is that we have laws in place that cede power to privileged individuals to judge whether or not the things we say online and how we say them are punishable with a prison sentence.

Faced with the very real threat of imprisonment or hefty fines for being ‘offensive’ online, many people will simply stop engaging in online debate. Is this a worthy outcome? Do we as a society really want to chill public opinion and suppress ideas that we don’t agree with to the degree that being offensive can be punishable with a prison sentence? In the case of Chris Nelson, the public was generally outraged by his comments to Nova Peris after she shared his post for everyone to see. He was subject to angry comments, and messages, his business name and address was revealed and he suffered public shame and retribution. Justice was served; surely this is adequate.

Supporting the removal of references to ‘causing offence’ and ‘being offensive’ from Australian Law does not in mean supporting racist or objectionable behaviour online or elsewhere. People who call for 18c to be repealed or amended, and those like myself who are wary of s474.17, are not seeking to change the law so that they can then freely attack racial minorities or people they disagree with, as they are so often accused. It is an argument based on principle; that governments or the judiciary should not have any power to decide what opinions people are free to express, and on the belief that society can determine what speech or ideas are unacceptable in the court of public opinion. It is also based on the acknowledgement that laws based on subjective determinations of offence caused are subject to misuse.

It’s easy to go along with the concept of making certain types of speech a criminal offence, when those being targeted have objectionable opinions, like those of Chris Nelson. But we should all remember that we are trusting that these laws are applied fairly by those who get to decide what is reasonable and what is offensive. We are abdicating our responsibility to stand up to racism and bigotry to a government bureaucracy, and judges in positions of power and privilege, are the ultimate arbiters of what we can say online and how we say it.

While we still have 18c and s474.17 of the Criminal Code intact, we do not have free speech in Australia.

Nicola Wright is a writer with LibertyWorks