The government should fix two free-speech obstacles together: 35P and 18C

The Abbott government should correct the festering sores of 35P of National Security Legislation and 18C of the Racial Discrimination Act together.

Since the passage of Section 35P of the National Security Legislation Amendment Bill a number of journalists have decried the threat to free speech of jailing someone for revealing the details of an ASIO special intelligence operation.

Their sudden enthusiasm for freer speech is welcome even if their motivation is selfish after many were silent, indifferent or hostile to reforming the Racial Discrimination Act earlier this year. Notable exceptions can be counted on one hand.

The new safeguard requiring any prosecution of a journalist under 35P go through the Attorney-General demonstrates the potential risk of the law.

Despite the objections of some, it is a seasoned, sensible intervention by the Attorney-General but does not address the root problem.

Janet Albrechsten wrote on these pages last week that "combating terrorism means pursuing the least worst options".

She’s right. A version of 35P is justified because disclosure of special intelligence operations can put the lives of undercover ASIO operatives or informants at risk. But the law is too broad.

As the Attorney-General argued on Monday's Q&A, the intention of the law is to target disclosure of special intelligence operations by Commonwealth public servants and "it is perfectly commonplace for the law to prohibit the disclosure of information".

The problem is the wording of the law doesn’t match this intention. The law captures any disclosure of an SIO by anyone including an SIO that no longer poses a risk to life.

Initial disclosure would almost certainly involve a public servant but subsequent disclosure could also technically be caught by the law.

As former independent National Security Legislation Monitor Bret Walker has argued, in its most extreme form 35P could stop the reporting of a citizen being killed during a botched special intelligence operation. I've no doubt that is not the intention of this government, or any in the near future. But that shouldn't mollify critics. Too often laws sit on the books and long after their passage are used for reasons outside of the original intent. There's no better example than Section 18C of the Racial Discrimination Act.

The introduction of 18C was preceded by three independent federal inquiries into racism and violence: the Royal Commission into Aboriginal Deaths in Custody, the Australian Law Reform Commission's Inquiry into Multiculturalism and the Law, and the Human Rights and Equal Opportunity Commission's inquiry into Racist Violence. All recommended law reforms to tackle racial harassment and discrimination. None recommended making offensive or insulting speech unlawful.  But the wording of amendments to the RDA did not match the intent of the inquiries or legislators.

It took nearly twenty years, but the Bolt case is a warning of what happens when the intention and codification of a law are not in alignment. It's a particularly salient lesson for those on the right who dismiss the importance of amending 35P. The risk is that a future government uses it for reasons beyond its original intention, especially in the future when media is more decentralised.

The Abbott government should seize on the recent wellspring of support for freer speech and fix both laws. If censorship of speech that could lead to the death of ASIO officers is a step too far, it's a mystery why expressing an offensive or insulting view is not.

Section 35P should be amended to clearly apply to Commonwealth public servants and others working on behalf of the public service, but not to others. Alternatively it could be amended to have a reasonable expiration when a special intelligence operation, and all other linked operations, have concluded and there is no longer a risk to life. It would still remain illegal to reveal the details of an agent.

But 35P should not be amended in isolation. It should be attached to Family First Senator Bob Day's Bill to remove restrictions on offensive and insulting speech from the Racial Discrimination Act.

Senator Day's Bill would not bring the RDA into consistency with other anti-discrimination laws that have no equivalent to section 18C, nor amend the law as much as the government's earlier proposal. But it would largely settle the dispute between those who advocate for free speech reform and those who want to preserve restrictions to stop egregious public racism.

Reform of both laws would call out the hypocrisy of those seemingly outraged by 35P who opposed reform of 18C and act as a timely reminder that free speech should be defended from a position of principle, not selectively when it serves self interest.