RUTHFULLY YOURS

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

Stealing a sheep in the 1820s invited the death penalty.[1] Convicts were flogged for being rude to an official;[2] and 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—it had to be “passed by the governor’s inspector”.[3]

All of that changed with the moving times and the development of an enlightened democratic system of government. Steal sheep now and you might get away with a community service order;[4] be rude to whoever you like and so what; while the media can report and criticise anyone or anything it believes to be deserving of it.[5]

Well, that is unless you offend, insult or humiliate someone who claims their sensibilities and feelings have been hurt. I’m referring, of course, to the long-running debate over section 18C of the Racial Discrimination Act 1975[6] in respect of which several trivial complaints with a racial connotation, as dealt with by the Australian Human Rights Commission (AHRC), have given rise to public controversy and concern.

Although 18C was opposed by the Coalition when it was introduced by the Keating government in 1994,[7] it remained a “sleeper” until recently. Now, instead of our politicians recognising the danger the section presents and immediately acting to repeal it, they have argued over it for the last five years, ending with the government’s attempted (unsatisfactory) amendment of it being blocked by Labor, the Greens and a querulous cross-bench in the Senate.[8] So this troublesome provision remains firmly on the statute books.

What the fuss is about is not widely appreciated. But it could be said that if you told one of the seven billion people in the world who do not have an unfettered right of freedom of speech or a free press[9] 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.

So the issue is not just about hurting another person’s feelings in regard to their race. It involves a 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 demands of activist groups seeking privileged rights.

In addition, the Shadow Attorney-General, Mark Dreyfus, proposes to extend the measure to other areas of statutory discrimination when Labor is next in office.[10] 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.[11]

The number of narks and religious dissidents in the community would 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.[12]

Also, calling or depicting someone as a “silly old fool” or a cartoon or joke (and there is any number of them) about the frailties of old age would, based on 18C criteria, readily lead to a complaint or class action alleging hurt feelings with compensation plus costs; and think too of the pussy-footing one would need to navigate in order to avoid being the subject of a complaint when criticising someone’s political opinion, especially that of a politician.

Statutory defences to such claims (such as those provided by section 18D of the Racial Discrimination Act[13]) would not provide protection for the inoffensive, unstudied and naive person, particularly as “to offend, insult, humiliate”, in terms of 18C, virtually constitutes an absolute breach.

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?

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?

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[14]) begins to lose its grip. The question is: When you can’t please everybody, whose tolerance should have to concede?

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, to go drifting off to join and support radical movements and ultra-conservative political parties.[15]

Unhelpful too is the gratuitous advice provided by the chattering classes: the many commentators, lobby groups, sectional interests, think-tanks, “shock jocks”, online 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.

This situation becomes critical when policies and statutory provisions begin to interfere with fundamental rights and freedoms that are not only firmly embedded in the foundation of our nation and our democratic system of government, but in the Australian psyche as well. 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 while the 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.[16]

A recent poll conducted by the Institute of Public Affairs found that 95 per cent of Australians regard freedom of speech to be important whilst 57 per cent regard it as very important.[17] But 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[18]). It 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 are likely to cause public harm or disturb public order[19]; although many champions of freedom of speech argue that, if our views and beliefs are steadfast, what should we fear if radicals and bigots are permitted the same right to be heard?[20]

In any case, putting aside such considerations, section 18C should have been recognised by our law-makers as simply bad law, for at least three reasons:

First, 18C does not deem the act of what is said or done to be discrimination and therefore the wrongdoing, but rather it makes the wrongdoing to be the effect (the hurt feelings) of the complainant in having been offended, insulted or humiliated. The problem with that anomaly is that a person’s feelings are not relevant to the purpose and intent of the law. What should constitute the wrongdoing is whether the characterisation of what is said or done, in the sense of the harm it has caused or may cause to public values and community well-being, amounts to discrimination, irrespective of whether the complainant’s feelings have been hurt by it or not. It should also be a matter of judgment subject to a fine or other punishment depending on the seriousness of the breach as a public offence. Compensation for any actual harm done to the complainant, or others, is a separate matter.

Second, 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 be, caused by such acts.[21] This means that disparaging expressions of opinion which offend, insult, humiliate, mock, deride, criticise, ridicule, belittle, antagonise, scorn and so forth 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.” [22] 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). But should that be the case where what is said or done has not caused any actual harm? Of course, to offend, insult, humiliate and so forth can be harmful when used to intimidate, abuse, incite, or threaten, 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 you have paid good money. In that case it is the loss of the contract, not the disappointment, that is compensable.[23]

Third, 18C is not consistent with the purpose of the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination,[24] Australia’s adoption of which gave rise to the Racial Discrimination Act in 1975. The purpose of that Convention is clear: While requiring parties to it to specifically guarantee to everyone the “right of freedom of opinion and expression”[25], 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 offend, insult or humiliate appear, and nowhere does it require adopting states to redress anybody’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 which came about by the adoption of the Convention, was revised and became the 1975 Act.[26])

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[27]; for although that test is not referred to in the HRC’s Act—and it need not be as it is a long-standing doctrine of the common law available to the HRC as a para-judicial body—it has the express power to dismiss complaints that are “trivial, vexatious, misconceived or lacking in substance”.[28]

Nothing is more telling of the HRC’s handling of complaints in regard to racial discrimination than, as the records show, that when the HRC functioned as a tribunal from 1987 to 2001 it dealt with 118 complaints (an average of 8.4 per year) of which seventy-eight complaints (66 per cent) were dismissed for various reasons, mostly under (then) section 25X, being for “frivolous, vexatious, misconceived” reasons (section 18C having been in operation for about the last six of those fourteen years), whereas last year, 2015-16, the HRC dealt with 429 complaints of which only fifty-five (12.8 per cent) were dismissed and of that number only three were reported to have been dismissed for “trivial, vexatious, misconceived” reasons.[29] So, not only has the number of complaints of racial discrimination increased dramatically over time, the number dismissed as trivial or vexatious, has dramatically declined.

It may be assumed from the statistics that while section 18C is bad law and should never have been enacted, it has attracted a great many more complaints for the HRC to deal with, and that in so doing the Commission has had less reason to dismiss those complaints as trivial or vexatious, 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.

Gillian Triggs recently completed her five-year appointment as President of the HRC. Whatever may be said of her performance, her fault (if seen as such) is to have given to section 18C its ordinary meaning and application as enacted, as might be expected of any competent lawyer. Accordingly, problems in making it work should be blamed as much on the legislation as on those who applied it.

It should not be overlooked that the HRC 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.

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 alarm bells of 1984 should now be ringing in the ears of our law-makers, and only fools would not be listening. For in trying to create a fairer, kinder world, the law cannot serve all causes or 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 are a part of daily life.

We do not need laws for everything. We have more than enough now. Almost every aspect of our lives is already regulated and controlled. Leave our feelings alone.

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