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

By John de Meyrick - posted Monday, 4 September 2017


This means that disparaging expressions of opinion which offend, insult, humiliate, mock, deride, criticise, ridicule, belittle, antagonise, scorn and so forth having the same synomic value, may hurt a person’s feelings but they are not (or should not be) per se, grounds for redress at law. Such expressions of opinion need to cause, or be likely to cause, some form of actual harm, such as to intimidate, abuse, incite, threaten, harass, bully, defame and so forth.

As the High Court has noted (to quote just one of its references to freedom of opinion), “The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion; freedom of opinion (subject to necessary restrictions) is a basic democratic right…”

What 18C does is make hurt feelings per se, an actionable grievance, at least in respect of racial discrimination (and with the possibility of it being extended to other forms of statutory discrimination as the Shadow Attorney-General proposes). But should that be the case where what is said or done has not caused any actual harm to anyone?

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Of course, to offend, insult, humiliate and so forth can be harmful when used to intimidate, abuse, incite, or threaten, etc, especially when the act is directed at vulnerable ‘targets’. It can also be harmful if used to the point of causing mental anxiety, stress and illness. But even then it is always the harm that is the wrongdoing and the reason for redress, not the injured feelings.

As well as discrimination, there are many cases in our courts which involve things said and done that cause emotional upset even on a lesser scale than hurt feelings. For example disappointment in (say) the cancellation of a special sporting event or a holiday package for which pre-payment has been made. In that case it is the loss of the contract not the disappointment that is compensable.

Thirdly, 18C is not consistent with the purpose of the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination, Australia’s adoption of which gave rise to the Racial Discrimination Act in 1975.

The purpose of that Convention is clear: Whilst requiring parties to it to specifically guarantee to everyone the “right of freedom of opinion and expression”, it directs that action be taken, inter alia, to condemn, declare and punish as an offence any and all forms of race-hate behaviour, vilification, propaganda, incitement and violence.

Nowhere in the Convention do the words “to offend, insult [or] humiliate” appear, and nowhere does it require adopting states to redress people’s hurt feelings or to pay them compensation.

Indeed, there is very little federal, state or territory legislation, either civil or criminal, which effectively complies with the purpose of the Convention. (The initial Racial Hatred Act 1974 (Cth) which came about by the adoption of the Convention, was revised and became the 1975 Act.)

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Incidentally, none of this controversy over 18C would have seen the light of day had the AHRC applied the ‘ordinary and reasonable person’ test to the cases that have caused such concern; for although that test is not referred to in the AHRC’s Act – and it need not be as it is a long-standing doctrine of the common law available to the AHRC as a para-judicial body – it has the express power to dismiss complaints that are “trivial, vexatious, misconceived or lacking in substance”.

Nothing is more telling of the AHRC’s handling of complaints in regard to racial discrimination than, as the records show, that when the AHRC functioned as a tribunal in the period 1/6/87 to 7/5/01 it dealt with 118 complaints (average 8.4 per year) of which 78 complaints (66 percent) were dismissed for various reasons, mostly under (then) section 25X, being for “frivolous, vexatious, misconceived” etc, reasons (section 18C having been in operation for about the last 6 of those 14 years); whereas last year 2015-16, the AHRC dealt with 429 complaints of which 55 (only 12.8 percent) were dismissed and of that number only 3 were reported to have been dismissed for “trivial, vexatious, misconceived” etc, reasons.

So, not only has the number of complaints of racial discrimination increased dramatically over time, the number dismissed as trivial or vexatious, etc, has dramatically declined.

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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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