Australia is in the midst of a free speech debate that threatens to go nowhere. Attorney-General George Brandis has argued that the nation has too many laws that trample on this freedom. He is right, but has not proposed a solution. Indeed, he seems strangely averse to suggesting the obvious, that freedom of speech must receive stronger legal protection.

The federal government has lost the battle on section 18C of the Racial Discrimination Act, but will have more to say on free speech. Brandis has asked the Australian Law Reform Commission to conduct an audit of all federal laws to identify those that "encroach upon traditional rights, freedoms and privileges". The commission has until the end of 2015 to complete this Herculean task.

"The state of Australian law reveals a contradiction at the heart of the free speech debate." Credit:Alex Ellinghausen

The commission will undoubtedly tell us what we already know. That is, a long list of federal laws compromise freedom of speech. Many of these make section 18C look tame by comparison. For example, Australia has laws that permit journalists to be jailed for revealing government incompetence or wrongdoing. In addition, anti-terror laws enable people to be jailed merely for their speech.

Identifying such laws will be useful, but this raises the more important question. What should be done about these laws, and how can we stop similar laws being enacted in the future?