<i>Illustration: michaelmucci.com</i>

Illustration: michaelmucci.com

Neil Brown, QC, a Liberal minister in the Fraser government, has counselled Tony Abbott not to repeal our section 18C hate speech laws.

He says doing so risks ''giving the green light to racists''. Instead, he suggests a convoluted compromise that basically leaves in place the ''you can't offend me'' legislation.

Well, not to put too fine a point on it, but Brown and all the proponents of hate speech laws that legislate against ''offending'', ''insulting'', ''humiliating'' or even ''intimidating'' are wrong. They're wrong on the facts. They're wrong when they look overseas. And they're wrong about what is needed in a healthy, well-functioning democracy.

Let's start by playing the man, rather than the ball. Our hate speech laws were enacted in 1995. Brown was a cabinet member in a government years before that. If he thought not having these laws amounted to a green light, why didn't the Fraser government enact these sort of illiberal laws?

First a few facts. In the US there are no hate speech laws of any kind. In France there are plenty. Where do you think Jews or Muslims are better integrated into society as equal citizens? I ask that question seriously, and can recast it using Germany and other countries with hate speech laws.

Do you do more for minority groups by encouraging a victim mentality or by asking them to grow a thick skin and, when insulted or offended or humiliated, to respond by saying why the speaker is wrong? The latter approach is recommended by every great liberal philosopher from John Stewart Mill onwards. And it was the basis on which the Fraser government did not legislate against hate speech.

Oh, then there is that bastion of political correctness, my native Canada, where the federal parliament last year repealed similar hate speech laws. Are Canada and the US places all hate speech law supporters will be avoiding because of all the green lights for racists?

Or are those green lights just plain bunk, because Brown doesn't understand that the best response to racists is to speak back and say why they're wrong, rather than turn them into martyrs?

Then there is the old canard - always pulled out of the cupboard when the rest of the argument sucks - of ''let's all point to Nazi Germany''.

Leave aside the fact it is insulting to Australians today to have any argument implicitly rest on the premise that we are somehow like Weimar Germany, and realise that, for more than a decade before Hitler came to power, the Weimar regime did have hate speech laws and did have prosecutions for anti-Semitic speech. Convictions, too. And that sort of ''suppress, suppress, suppress'' mindset worked out how, exactly?

You need to ask yourself what you expect hate-speech laws to accomplish if you support them. There are only three possibilities. One is that you want to hide from the victims of such nasty speech how the speakers honestly feel about them. It's a sort of ''give them a false sense of security'' goal.

Another is you hope to reform the speaker. You know, fine them and lock them up and maybe they'll see the errors of their ways.

But both those supposed good outcomes of hate speech laws are patent nonsense. So that leaves a third possibility, one I believe almost all proponents of these laws implicitly suppose justifies their illiberal position.The goal of hate speech laws is to stop listeners who hear nasty words from being convinced by such speech.

In other words, it is plain distrust of the abilities of one's fellow citizens to see through the rantings of neo-Nazis that requires us to have these laws. It works on a sort of latter-day aristocratic premise, that we may be able to trust the good sense of a sociology professor but God help us if a mere plumber or secretary should be exposed to a Holocaust denier or someone whose tone gets a bit out of hand.

If there was a polite way to express my disdain for that sort of elitist bull, I would use it. But there isn't. So I will just say it is wholly misconceived.

Australians are no more prone to being sucked in by offensive or hateful speech than North Americans or those with multiple degrees. And if you don't believe that, then you can't really be in favour of democracy, it seems to me.

I could go on to show how these sort of laws, always and everywhere, end up expanding to capture speakers not originally intended to be captured by them; or how the bureaucracies that administer them become havens of speech-restricting world views. Instead I simply say Australians need section 18C to be repealed in its entirety. That's what Abbott implicitly promised. So let's have it done now.

James Allan is Garrick Professor of Law, University of Queensland.

Paul Sheehan is on leave