358 In addition to the authorities referred to at [325]–[327] above, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [261], Callinan J recognised the possible need for regulation of speech in order to promote free speech. The idea that "hate speech" laws such as Pt IIA can serve to promote freedom of speech rather than to restrict it by better ensuring that the people such laws protect can lead better, more fulfilled and confident lives and thereby protect them from being silenced, marginalised and disenfranchised is argued by Jeremy Waldron in The Harm in Hate Speech (Harvard University Press, 2012) at 33, 47, 130 and 156.
359 The point is that the alternative measure proposed by Senator Hanson, which it was incumbent on her to propose (Clubb at [277]), would undermine the purpose of Pt IIA. Indeed, it is inconsistent with that purpose.
360 The "necessity" inquiry is therefore satisfied.
Adequacy in balance
361 A law is to be "regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom": Banerji at [38]; LibertyWorks at [85], [201]; Farm Transparency at [55]. It has been observed that the hurdle imposed by this step in the structured proportionality analysis is very high: LibertyWorks at [292]. In this analysis, "consideration is given to the extent of the burden and the importance of the statutory purpose": Farm Transparency at [36].
362 The Attorney-General identifies four features underpinning the importance of Pt IIA's proscription of harmful racist conduct, all of which I accept.
363 First, racial vilification and discrimination has been and remains a real problem in Australia. In a sense, that is demonstrated by the tendency evidence adduced by Senator Faruqi and by the lived experiences of the autobiographical witnesses. But it is more appropriately demonstrated by the "constitutional fact" material tendered by the Attorney-General.
364 In Discussion Paper No 3: Proposed Amendments to the Racial Discrimination Act Concerning Racial Defamation (September 1983), the then-Human Rights Commission (HRC) noted (at 2) that, in seven years, the Commissioner for Community Relations had received about 1700 complaints (or 25% of the total number) involving racist propaganda and racial defamation. The HRC said (at 2) "[t]he sense of hurt and outrage conveyed by the complaints, and their volume, point to a social malaise that needs serious attention. Words do wound." The
