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

By John de Meyrick - posted Monday, 4 September 2017


This situation results in significant numbers of disaffected voters who feel that their views are being ignored, that long standing common values are being eroded, that traditional politics has forsaken them. They go drifting off to join and support radical movements and ultra-conservative political parties.

Unhelpful too is the gratuitous advice provided by the chattering classes: the many commentators, lobby groups, sectional interests, think tanks, ‘shock jocks’, on-line chat rooms and all those with personal computers who are able to exercise their (present) unfettered right of freedom of expression. It all adds to an excessive volume and diversity of opinion which doesn’t always result in clarity of thought or the formulation of best policies and best outcomes.

Where this situation becomes critical is when policies and statutory provisions begin to interfere with fundamental rights and freedoms that are not only firmly embedded in the very foundation of our nation and our democratic system of government, but in the Australian psycheas well.

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Meddling with such basic rights as freedom of speech not only troubles a wary public it also creates tension between government and the judicial process; for although statutory law may override the common law it cannot change constitutional law without the approval of the people; and whilst the Australian Constitution does not specifically provide for freedom of speech the High Court has held that it is implied therein to the extent of preventing legislative or executive power from curtailing that right.

(A recent poll conducted by the Institute of Public Affairs found that 95 percent of Australians regard freedom of speech to be important whilst 57 percent regard it as very important.)

The right of freedom of speech and expression, like every other freedom, is not absolute. It is curtailed where its use goes too far and causes, or could cause, harm. In particular it is curtailed by the laws of defamation where hurt feelings are expressly precluded as grounds for compensation.

Freedom of speech is also restricted by legislation that allows the Minister for Immigration to deny a person entering the country on (say) a speaking tour, if his or her ‘message’ and purpose is likely to cause public harm and/or disturbance to public order (although many champions of freedom of speech argue that, if our views and beliefs are steadfast, what should we fear by denying radicals and bigots the same right to be heard?).

In any case, putting aside such considerations, section 18C should be recognised by our lawmakers as just bad law. Bad for at least three reasons:

Firstly, 18C has been drafted the wrong way round. Instead of making the “act” of discrimination in what was said and/or done to be the wrongdoing, it makes the effect of that “act” (the alleged hurt feelings) the subject of the complaint and compensation.                 

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The problem with that anomaly is that a person’s feelings is not relevant to the purpose and intent of the law. What should constitute the wrongdoing is whether the characterisation of what is said and/or done, in the sense of the harm it has caused or may cause to pubic values and community well-being, amounts to discrimination, irrespective of whether the complainant’s feelings have been hurt by it or not.

Think of it this way: If you drove a vehicle through a red light and almost ran down a pedestrian who is crossing the street, then the wrongdoing at law abides in the danger such action is likely to cause to public safety, not the shock or upset feelings of the pedestrian who missed being injured. That only matters if what happened has caused the pedestrian some actual harm.

Next, section 18C is not in keeping with the important distinction between how the law regards what is said or done in terms of hurt and harm. That is: the common law has no interest in redressing hurt feelings. Only the harm that has, or may have, been caused by such acts.

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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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