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How soft on people's feelings should the law become?

By John de Meyrick - posted Monday, 4 September 2017


It is often claimed that the law is soft on crime and weak on social and civil wrongdoing. By comparison with what it was like during the life and times of 19th Century Australia, our present-day laws are indeed soft. Very soft.

Stealing a sheep in the 1820s invited the death penalty. Convicts were flogged for being rude to an official; and if you couldn’t pay your debts then off you went to the equivalent of the notorious debtors’ prisons of Dickensian London (although by 1834 debtors were being allowed to move within confined prescribed locations outside prison).

All of that changed with the moving times. Steal sheep now and you might get away with a community service order; prisoners treated badly by prison officials can complain to the Human Rights Commission, and even sue; and if you are unable to pay your debts then (with certain exceptions) you have a way out with bankruptcy laws or counselling.

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Also, when George Howe was given permission to publish Australia’s first newspaper, The Sydney Gazette in 1803, the country was not ready for a free press or freedom of speech, the paper had to be “passed by the governor’s inspector.”

But now, subject to defamation laws, you can say or criticise anyone you like…Well, wait on, that is unless you offend, insult or humiliate someone whose delicate sensibilities and precious feelings are claimed to have been hurt.

I’m referring, of course, to the long-running debate over section 18C of the Racial Discrimination Act 1975 (Cth) in respect of which several trivial complaints with a racial connotation as dealt with by the Australian Human Rights Commission (AHRC) has given rise to public controversy and concern.

Although 18C was opposed by the Coalition when it was introduced by the Keating Government in 1994, it remained a ‘sleeper’ until recent events when, instead of our politicians recognising the danger it poses to freedom of expression and immediately acting to repeal it, they argued over it for five years ending with the Government’s attempted (unsatisfactory) amendment being blocked by Labor, the Greens and a querulous cross-bench in the Senate.

So this troublesome provision remains firmly on the statute books as the first and only piece of mollycoddling soft and ‘sooky’ law that addresses and compensates people for their hurt feelings rather than for any actual harm that may have been done to them.

What the fuss was, and still is, about is not widely appreciated. But it could be said that if you told one of the 6.25bn people in the World who do not have an unfettered right of freedom of speech or a free press that, in Australia, you can find yourself before a court for allegedly having hurt someone’s feelings due to a casual remark, or something you published, that was construed to mean you are a racist, they would be likely to suggest that you should be careful where your country is heading.

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So the issue is not just about hurting another person’s feelings in regard to their race, it involves a very significant and insidious shift in the way soft politics is prepared to jeopardise long-standing, fundamental, democratic rights and freedoms that belong to us all by yielding to the ‘can’t-say-no’ demands of activist groups seeking privileged rights.

To make it worse the Shadow Attorney-General, Mark Dreyfus, proposes to extend the concept of section 18C to other areas of statutory discrimination when Labor is next in office.

If that were to come to pass claims of alleged hurt feelings due to things said or done or written or expressed, about someone or an identifiable group, would then apply to other areas of discrimination relating to age, sex, disability, religion, political opinion, national extraction, social origin, criminal records, marital or relationship status, pregnancy, breast feeding, family or carer responsibilities and so forth, all of those areas being currently covered by anti-discrimination laws.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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