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

By John de Meyrick - posted Monday, 4 September 2017


It may be assumed from the statistics that whilst section 18C is bad law and should never have been enacted, it has attracted a great many more complaints for the AHRC to deal with, and that in so doing the Commission has had less reason to dismiss those complaints as trivial, etc, where the effect of what was said or done, as alleged, appeared on the facts to be, prima facie, offensive, insulting or humiliating. After all, 18C makes hurt feelings the basis for judgment.

The former President of the AHRC, Professor Gillian Triggs, completed her five years appointment in July this year. Whatever may be said of her performance, her fault (if seen as such) was to have given to section 18C its widest ordinary meaning and application as enacted. Accordingly, problems in making it work should be blamed as much on the legislation as well as on those who made it.

It should not be overlooked that the AHRC has also dealt with many cases of racial discrimination (and other similar forms) where actual harm has occurred, mostly in the area of employment where loss of benefit, advancement or privilege and other disadvantages were involved.

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More important in all of this is that the law is now heading off into a new and dangerous area of regulation, attempting to appease and redress claims of emotional hurt. The belated alarm bells of 1984 should now be ringing in the ears of our lawmakers and only fools would not be listening.

For in trying to create a fairer, kinder world the law cannot serve all causes nor address all the emotional upsets and unpleasant experiences of humankind. As a former prime minister once noted, life wasn’t meant to be easy. Hurt feelings is a part of daily life.

We do not need laws for everything. We have more than enough now. As Thomas Jefferson observed some 200 years ago. ”My reading of history convinces me that most bad government results in too much government”.

Section 18C must go. It must not be left to grow into a new body of soft and ‘sooky’ laws, the end to which defies contemplation.

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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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