A tolerant society? You don't have to look far to find an Australian living in fear

If you did not know about that fear of violence, you certainly know about it now.

As Australia tries to do something about addressing these fears, our jurisprudence will change in subtle but significant ways. We will be rebalancing rights, duties, and freedoms.

Law does not develop in the abstract. It develops in response to society's needs and desires - to its culture and history. Law is dynamic even though it may not seem to be.

Australia has developed as a multicultural society made up of people from a huge diversity of ethnic, linguistic, religious, and racial backgrounds. It is a liberal, rule-of-law democracy.

We have cherished freedom of speech but also responded to a rightful expectation of people to be free from fear of violence. That means going beyond merely making the violence itself unlawful and punishing it.

This legal balancing in the face of assaults on the freedom from fear of violence is not new. We have tried rebalances in the past, sometimes successfully, sometimes not.

Violence in many areas has decreased, but still too many live in fear.

This year, 43 women have been murdered in domestic and family violence in Australia. Too many live in constant fear of violence in the home. Too many women are harassed, verbally abused, and assaulted outside the home, and usually fear violence alone outside at night.

Racial violence remains too high. Verbal and physical attacks against people showing apparel signifying religion are far too frequent.

This time last year, the fifth Islamaphobia in Australia report detailed 309 in-person incidents between January 2023 and December 2024 - up two and a half times from the previous period. The majority were against women.

We have to stop the self-congratulatory nonsense that Australia is a tolerant society until we do more about violence and the fear it engenders in people who should not have to live in fear. Perhaps we need stronger vetting for visas and permanent residency as a means of preventing the import of overseas hatreds, conflicts, and violence.

To reduce (if we cannot remove) fear of violence and to reduce the severity of the consequences of violent acts will mean changing the legal balance - impinging upon what had hitherto been the rights of some to improve the rights of others.

Fifty-two years ago, the Whitlam Labor government attempted the first rebalance with the Racial Discrimination Act. It outlawed discrimination on the basis of race and religion in areas such as housing and employment.

It took away the hitherto unbridled right to employ or lease your property to whomever you like. It was opposed by the Coalition. The Coalition only agreed to the final 1975 act after using its Senate numbers to weaken it significantly.

In 1995, the Keating Labor government strengthened the act considerably by outlawing racist speech - the famous Section 18C. Again, it was opposed by the Coalition on the grounds of free speech. Again, the hitherto right of people to vilify others on the grounds of race or religion was taken away.

The issue came to prominence in 2011 when the Federal Court found right-wing commentator Andrew Bolt had breached the act.

The then Coalition leader Tony Abbott, promised to repeal the section if elected in 2013, but abandoned the promise after public outcry. Several other Coalition attempts to repeal or weaken the section between 2013 and 2022 also failed.

So now is a critical time because the Coalition appears to have opportunistically reversed its position of being the robust defender of free speech in the face of trendy, woke lefties who want to oppose racism.

For the Coalition, I suppose, it depends more on who is doing the vilification and who is being vilified than general principles about balancing freedoms.

The Jewish community has rightly called for broader measures against hate speech. In the light of what happened at Bondi and its lead up, now is the time for rebalancing the right of free speech and the right of people to live without an ever-present fear of violence. It is a rare window.

It is also time to rebalance the right to bear arms (if there ever was one).

After the Port Arthur massacre in 1996, prime minister John Howard, against a lot of opposition, did the right thing in enacting uniform national gun laws, outlawing some types of guns and establishing a licensing scheme.

He rebalanced the hitherto almost unbridled right to buy firearms.

No one suggests that he did not go far enough, even after Bondi. But the lesson is there. These things need constant review. Gun technology changes, unintended gaps emerge, and so on.

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Well before now, a ban on all firearms in built-up areas (people in uniform and police excepted) would have been a good idea. Why anyone but a farmer with feral pests needs a firearm at all is beyond me. Do you need a deadly weapon to prove you can hit a target. Why not use laser technology instead? And what individual, even a farmer, needs four guns?

Tighter gun laws are perhaps of paramount importance. The 1996 laws have probably saved dozens of lives, not just from perpetrators motivated by racism, religious bigotry, and far-right ideology, but also from violent criminals and perpetrators of domestic violence.

Hate speech laws, too, will need constant revision. Legislation against specific phrases, such as "Globalise the Intifada" or "From the River to the Sea", might satisfy a temporary political demand, but will lose force over time. A more general law that captures hate speech more widely than Section 18C is needed.

The heat of the moment can be seized as a catalyst for reform, but a one-off, job's-done exercise will not be good enough, as the 1996 gun law has since showed.

The other reason for constant revision - or even a sunset clause that would force revision - are the inevitable unforeseen consequences and the possibility of the executive government obtaining for itself much wider power than needed.

Those wider powers usually take the form: "The Minister may declare ... ". Enacted in haste, regretted at leisure.

But remember, after these changes are made, Australia will still be a free, rule-of-law, liberal democracy where you are free do what you like, provided there is no law against it. And our elected representatives will still make that law.