The comments allegedly directed at outgoing Labor senator Nova Peris by NSW chiropractor and former Liberal Party member Chris Nelson — he claims to have been “hacked” — are disgusting and extraordinarily offensive. The comments that appeared under his name call Peris a “black cunt” who should “go back to the bush and suck on witchety grubs and yams”, among other abuse.

Nelson, if responsible for the comments, certainly deserves the public contumely directed at him and can have no complaints if clients who may have patronised his business decide to take their custom elsewhere.

But should Nelson be charged with a criminal offence? He’s been charged with using a carriage service to menace, harass or cause offence, a vaguely worded section of the Criminal Code. No reasonable person would have a problem with using a phone or the internet to menace or harass someone (usually the latter involves either threatening or repeated communication) being defined as criminal behaviour. But “offensive” — while plainly applicable in this instance — is far more problematic. “Offensive” could be used to describe a great many of us in our online behaviour, even if, thankfully, few of us are guilty of the nauseating bigotry directed at Nova Peris.

Menacing or harassment are appropriately part of the offence; other forms of hostile communication like vilification — which in some states involves incitement to violence, in others merely involves inciting hatred — might also be worthy of inclusion. And Nelson’s alleged conduct might even fall under vilification, were it included in the Criminal Code.

But his prosecution draws attention to the fact that we currently have a criminal law against causing offence. And jailing someone merely for causing offence is unacceptable, especially in a country where there are already too many impediments to free speech.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey