Offence Is Taken, Not Given
While Civility Is To Be Encouraged, It Is Not Something That Can Be Achieved By Pretending The Law Can Prevent Hurt Feelings.
Being called a bastard by an Australian can be intended as a serious insult, a minor criticism or a term of endearment, yet someone may find it offensive irrespective of the intent of the person making the comment.
The same is true of comments about political beliefs, sexual orientation, appearance, gender identity, age and religious values. Tell a Greens voter that she does not understand Australian political values and she will most likely get offended. When she calls you a racist in return, you probably won’t be offended at all.
The point is, nobody can really know how a comment might be received. Telling a woman she has a fat bottom will often lead to offence, but not always; whether she takes offence is up to her. Feeling offended is an emotion, like hate, disgust, love and admiration, and totally personal. Other people might influence emotions but ultimately nobody else controls them.
There is nonetheless a growing tendency to attribute blame for offence with no respect to the circumstances or motivation. Moreover, the law is increasingly getting involved; protecting feelings has become a growth industry. This is creating a very real threat to free speech.
To begin with, there are at least 23 Commonwealth Acts which make it an offence to insult or offend a public official or use insulting or offensive language in an official context. For example, it is an offence to insult a registrar or magistrate in a bankruptcy examination, a member of the Australian Competition Tribunal, the Australian Competition and Consumer Commission, the Australian Energy Regulator, a Royal Commission or the Fair Work Commission. Each Act purports to protect the feelings of public servants irrespective of what those feelings are.
The Racial Discrimination Act, also a Commonwealth Act, makes it unlawful to “offend, insult, humiliate or intimidate” someone because of “race, colour or national or ethnic origin.” In certain cases, intimidation might be independently verifiable but otherwise each of these is only found in the eye of the beholder.
"Mere words, on the other hand, are sufficient to bring outrage and the law down on our head regardless of what was intended."
There are similar laws in each of the states too. Tasmania’s Anti-Discrimination Act is currently being used to pursue Liberal senator Claire Chandler, who wrote an opinion piece in a newspaper in which she said women’s sports, women’s toilets and women’s changing rooms were designed for people of the female sex and should remain that way. The Tasmanian Equal Opportunity Commission thinks her language was humiliating and intimidating.
Curiously, taking offence is now largely restricted to speech rather than behaviour. Whereas it was once deemed offensive for a woman to wear a mini skirt in public or a bikini at the beach, nobody is bothered by these now. Even public nudity, drunkenness and lewd behaviour don’t seem to offend people like they used to.
Mere words, on the other hand, are sufficient to bring outrage and the law down on our head regardless of what was intended. All that’s required is for someone to feel offended themselves or claim someone else will be offended, provided the context can be construed as race, gender, sexual preference, ethnicity and so on. Professing to protect the feelings of other people is part of the industry.
Fairly obviously, this is having a significant impact on the way we speak and write. Filmmakers, cartoonists, artists and authors are reluctant to tackle certain subjects, the life of Mohammed being an obvious example, because individuals or groups claim to be offended, sometimes even responding with violence.
More trivially, we are hearing people wish one another happy holidays rather than Merry Christmas out of concern that non-Christians may feel offended. The fact that non-Christians never claim to be offended does not matter.
It goes without saying that civility towards each other is to be encouraged. But this is not something that can be achieved by pretending the law can prevent hurt feelings.
Free speech is the most fundamental of our rights; without it, the others are soon lost. Moreover, it is not something to be trifled with. Yet that is exactly what is occurring when we legislate to protect feelings. Offence is a feeling and is taken, not given.
David Leyonhjelm is a former senator for the Liberal Democrats