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

By John de Meyrick - posted Monday, 4 September 2017


The number of narks and religious dissidents in the community would, for example, then have statutory grounds to complain that their feelings were being hurt by exposure in shopping centres and other public places to Santa Claus, carol singing, nativity scenes, decorated trees, coloured lights and other expressions of the Christmas Season.

(Anti-Christmas activists have already forced concessions in some communities whilst government policy decisions or lack thereof – such as the recent on/off ban on carols being sung in Victorian public schools – are already a short-cut means of applying pressure politics.)

Also, another example would be if you called someone a “silly old fool” or depicted old people by way of a cartoon or joke (and there is any number of them now about the frailties of old age).

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Yet another example relating to a current issue would be if people, Aboriginal or otherwise, complained that they were offended by the sight of statues in public places of people whose contribution to the nation they disputed and despised.

Think too of the skilful pussy-footing and use of language one would need when criticising someone’s political opinion, especially that of a politician.

Based on s.18C criteria, anyone who claimed their feelings had been hurt by such examples could readily file a complaint or class action seeking compensation and costs. It would open up a vast new area of litigation (beyond what has already occurred) and silence all but the incautious fools among us.

Statutory defences to such claims (such as those provided by section 18D of the Racial Discrimination Act) would not provide protection for the inoffensive, unstudied and naïve person, particularly as “to offend, insult, humiliate”, in terms of 18C, virtually constitutes an absolute breach.

So how did it come to this? How much softer in mollifying people’s hurt feelings should the law become?  

Soft politicians make soft laws. But as statutory laws are made by politicians and politicians are supposed to represent the will of the people, should it be assumed that where the law stands and where it is heading in regard to such matters must simply be reflecting the majority will of mainstream Australia?

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Well, query first: Is there a mainstream artery of public opinion in Australia today, or only a collection of sub-stream disparate opinions and causes? In any case, where do we now locate the nation’s pulse?

You see, the difficulty we now face is we live in an age of ideological self-awareness. A world of identity politics and human rights activism where those among us with any common characteristic or condition, or particular cause or opinion, can coalesce into active pressure groups each demanding recognition of its perceived ‘cotton wool’ rights.

When soft and ‘sooky’ laws are made to appease minority interests one person’s rights then become a challenge to the pre-established rights of another. Tensions arise. Community resentment sets in. Tolerance, the ‘glue’ which binds us together as a nation (which the Prime Minister keeps referring to) begins to lose its grip. The question is: when you can’t please everybody whose tolerance should have to concede? 

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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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