David Leyonhjelm. Taking offence is not a matter for the law

The Racial Discrimination Act makes it unlawful to offend or insult someone based on race, colour or national or ethnic origin. But there are at least another 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, the Copyright Tribunal, a Royal Commission, the Veterans’ Review Board or the Fair Work Commission.

A business name can be refused registration and a person refused inclusion on the electoral roll if their name is deemed offensive, as can an application for a plant breeder’s right with respect to a particular variety.

I introduced a bill in the Senate, called the Freedom Of Speech Legislation Amendment (Insult And Offend) Bill 2018, to remove all 23 of these provisions. I limited the bill to insult and offend offences rather than all restrictions on speech for the very good reason that these are subjective terms and, like beauty, found in the eye of the beholder.

That’s not necessarily the case with words that are defamatory, scandalous, obscene, contemptuous, threatening, intimidating, harassing, provocative, molesting, humiliating, intimidating, that incite unlawfulness or are detrimental to the effective operation of a tribunal or official function. Restrictions on these may be justified at times, and they tend to have a meaning that can be determined objectively, independently of the views of the recipient. Insult and offend are purely based on feelings.

In the Australian vernacular, being called a bastard can be intended as a serious insult, a minor criticism or a term of endearment, yet someone may find the term insulting or offensive irrespective of the intent of the person making the comment. Many years ago I observed an English guy take extreme offence at a group of Aussies singing “he’s a bastard, he’s true blue” in appreciation of him supplying them with beer. They meant it as a compliment; he took it as an insult.

Civility towards each other and those in official positions is to be encouraged, but it is not achieved by pretending the law can protect someone from having their feelings hurt. Feeling offended is an emotion, like anger, frustration and loneliness. Emotions can be powerful, but they are not under the control of someone else. Nobody forces us to fall in love or feel happy, sad or disgusted, and yet the law treats offence as if it’s out of our control. If we are responsible for our own feelings in some cases, we must be responsible in all cases.

Even when a comment is intended to be hurtful, or there is indifference as to whether hurt is caused, our response will be determined by our personality and values, not those of others. No matter how bigoted, ill-informed or obnoxious, our reaction to someone else’s words is always up to us. We can feel offended if we wish, but we also have the option of choosing another feeling.

Laws attempting to protect feelings can have significant consequences for the way we speak. Given the inability to know in advance how a recipient might choose to feel, no matter what we might intend, the only safe option is to avoid saying anything much at all.
That’s why laws seeking to prevent insulting and offensive speech are wrong, even when it concerns the feelings of government officials. Like the rest of us, their feelings are their responsibility.

It is similarly wrong to seek to save us from potentially offensive words by blocking visiting speakers to Australia. No matter how much we might disagree with what someone says, it is up to us whether we find their words offensive. The government is not our mother and we are not children who cannot control our emotions.

My bill has now lapsed as I am no longer in parliament, while all 23 of the laws purporting to protect feelings are still there. And of course there are plenty of similar state laws that also should not exist.

This issue is at the heart of free speech. I’m hoping there are others who care enough to also take up the cause.

David Leyonhjelm is a former senator for the Liberal Democrats

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34 Responses to David Leyonhjelm. Taking offence is not a matter for the law

  1. Fat Tony

    Well, fuck me, I’ve never been so offended in all my life

  2. Frank Walker from National Tiles

    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

    Good god. Puffed up little Habsburgs.

  3. Nob

    Best post they David.

    My logical objection to such draconic laws, and to all legally sanctioned Political Correctness is simply this:
    The most intolerant are the most readily offended and easily insulted.
    By outlawing offence or insult, you are handing powerful weapons to the most intolerant.
    Is this what you want?

    My ethical and philosophical objections go much further, but the logical objection should resonate with everyone.

  4. bespoke

    The other day the circumstances of that girl who got killed came up in the open thread.

    Some took ‘offence’ including your Doomlord but really the excuse of compassion was just a cover for the it being an icky topic. Now most people don’t have in them to asses mistakes when it happens to a love ones. So what we have left is learning from other peoples mistakes. Without that we truly don’t deserve to survive as a species. And odd’s are that girls family have judged others so no harm would have been done unless some jerk went out of there way to harass the family.

  5. A Lurker

    The most intolerant are the most readily offended and easily insulted.
    By outlawing offence or insult, you are handing powerful weapons to the most intolerant.

    And they readily use it to shut down the free speech of others.

  6. Old School Conservative

    A very powerful post David.
    And now we continue down the opposite path with even greater abandon unfortunately.

  7. flyingduk

    DL was a beacon in many ways, and I sadly miss his presence in the Senate.

  8. nfw

    We have to protect the feelings of public servants who are paid by us. They are after all precious things who couldn’t find a real job and are our betters in the elites. Why am I reminded of the Soviet Union and the communist party functionaries at this stage? I voted for David Leyonhjelm at the last election because we need more real Liberals in parliament but the dross just don’t understand and the hurt feelings brigade know this.

  9. Karabar

    Now that Leyonhjelm is no longer in parliament, the place to which they often refer as “this place” is sadly devoid of anything that could be described as “intelligence”.

  10. I was recently a member of a forum where this old quote that I posted was found to be extremely offensive (it was in response to some complaints about outstanding software, that was totally free to use, not being enough):

    ‘There are people in this world that if someone shoved diamonds up their rectum, they’d complain that the diamonds weren’t big enough.’ 

  11. Frank Walker from National Tiles

    LOL

    Commonwealth Consolidated Acts

    COMPETITION AND CONSUMER ACT 2010 – SECT 162
    Contempt

    (1) A person shall not:

    (a) insult a member of the Tribunal, a member of the Commission or an AER member in the exercise of his or her powers or functions as a member;

    (b) interrupt the proceedings of the Tribunal or a conference held by the Commission under section 90 or 93A, Division 3 of Part XI or section 151AZ;

    (c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting or the Commission is holding such a conference; or

    (d) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.

    (2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.

    Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

    Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

  12. Bunyip Bill

    To sum it up; you cannot give offence, only take it.

  13. Tim Neilson

    we are not children who cannot control our emotions

    David obviously hasn’t been engaging with many “progressives” recently.

    One of our society’s biggest problems is precisely that we’ve got very large numbers of people who are emotionally incontinent.

  14. Jonesy

    The wording of the act must be changed back to “a reasonable person” as a minimum. However, this victim industry and the elevation of bullying to almost a capital offence has created fertile ground for the sjws. Bullying is bad news bad the baggage that comes with attacking it is destroying our society….sticks and stones!

  15. Muddy

    If the morally illiterate could be dragged, poked, or flayed beyond their ignorance, peace, harmony, and unicorns, would once again feel free to roam our streets without fear of molestation.

  16. stackja

    I am offended about all this discussion.

  17. Chris M

    A business name can be refused registration and a person refused inclusion on the electoral roll if their name is deemed offensive

    Clearly a more vile variety of Bogan names will be greatly beneficial to Australia. The X in X-rated is for excellent according to the doddering pothead.

  18. Frank Walker from National Tiles

    Sad boomer Chris M still hates freedom and loves the vile Duterte.

  19. We (The West in general) are doing the exact opposite of what should be done in regards to this matter, with the US being the most resistant due to its 1st Amendment.

    In a homogeneous society it would be easier to agree on what’s offensive and what’s not and codify it in law if necessary. Think of a family (homogeneous micro society), it’s easy to make rules on what’s allowed and what’s not in the home.
    As we import more and more people from other cultures, it becomes more and more difficult, impossible even, to codify speech and expression laws. Something sometime will offend and insult someone somewhere in a multi-culti society.
    “Piss Christ” was offensive but legal and even desirable and necessary to some. Try that with some new comer types now and it’ll get you killed before even being jailed.
    So the natural tendency is for everybody to shut up and walk on egg shells.
    You can’t have both. It’s either a multi-culti society without free speech and expression or a mono-culti society with free speech and expression.

    There is another reason why we’re losing our freedom to speak and express.
    There was a time when men spoke roughly among themselves, but immediately watched their mouths when a woman entered the room. This was very common practice.
    Since women burned their bras and declared themselves to be just like men, they’ve tried to keep up in a man’s World but found themselves to be wanting.

    “We can fvck around just like men” they said. But now they scream “rape” as soon a man puts a hand on their shoulder. They scream mysogyny if you look at your watch while they’re speaking (heh!)
    Don’t believe me? Have a look at who is making almost all the complaints and demanding action regarding free speech and expression. I’d say more than 90% of the complaints come from women.

  20. Iampeter

    I limited the bill to insult and offend offences rather than all restrictions on speech for the very good reason that these are subjective terms and, like beauty, found in the eye of the beholder.

    That’s the wrong reason to do it.
    Determining whether a law should be on the books or not should not be determined by non-essential technicalities like this.
    If someone says something to you that merely hurts your feelings then there should be no legal recourse.
    But if someone says the same thing to you, which in that particular context violates your rights, as provable by damages caused, irrespective of whether it hurt your feelings or not, you should have a legal recourse.
    It’s an unlikely situation I know, but ultimately determining whether laws are objective or not is done by determining whether they protect rights or not and nothing else.

    So while I applaud what you’re trying to do I don’t think you’re doing it for the right reasons.

  21. J.H.

    Well, there are reasons why some of these laws exist. Authorities acting on our behalf for our safety, should be empowered so that they can effectively work on our behalf…. Why we have so many authorities working on our behalf in a society of free and responsible adults, is probably the better question. But anyhoo….

    The police must be able to project authority in the circumstances of a fracas or an arrest. Aggressive language by belligerents can be and is a precursor to aggressive actions, so it does have to trigger a response by an authority to counter it and that response should be overwhelming and forceful…. and have legal protections.

    A judge in a courtroom has to be seen as the final figure of authority and that authority has to be enforced with punishments to maintain civil behavior in a courtroom…. It’s a serious place. Telling a judge to fuk off, needs to end with a lawful response with consequences.

    … it’s always a thorny issue of use and abuse. When does an authority begin to abuse the powers it has been granted to maintain our ordered and lawful society?

    When does a community of responsible adults begin to be infantilized by an over regulating political class abusing their authority in our name?

    Fuked if I know, but it’s somewhere between here and there.

  22. Nob

    Telling a judge to fuk off, needs to end with a lawful response with consequences.

    In a courtroom?
    There was already adequate law.

    Now laws are being used to prosecute people for written offence.

  23. Frank Walker from National Tiles

    Exactly nob.

  24. Tel

    A judge in a courtroom has to be seen as the final figure of authority and that authority has to be enforced with punishments to maintain civil behavior in a courtroom…. It’s a serious place. Telling a judge to fuk off, needs to end with a lawful response with consequences.

    Trump is sitting in the highest office of the most powerful nation … and he can’t get any respect. He copy abuse left, right and center every single day.

    Why should some unelected civil service worker deserve better? What great deed was done to earn that?

  25. Bruce

    Maybe I come from an odder-than-usual background, but it always seemed to me that it is MUCH harder to GIVE offence than to TAKE offence.

    Have I missed something?

  26. Frank Walker from National Tiles

    The police must be able to project authority in the circumstances of a fracas or an arrest. Aggressive language by belligerents can be and is a precursor to aggressive actions, so it does have to trigger a response by an authority to counter it and that response should be overwhelming and forceful…. and have legal protections.

    Nah…it is in the common law of NSW that I can say to police “why don’t you just fuck off, you dog-arsed kwahantas?”…

    Sydney barrister Mark Dennis in his 2011 paper ‘Dog Arse Qunts’ takes a look at what constitutes offensive manner and language under Australian law.

    Mr Dennis outlines that a key issue regarding the definition of offensive from the perspective of a criminal defence lawyer is that the word “calculated” means “intended,” as it is much harder for the prosecution to prove that offensive behaviour was intended to be so.

    https://www.sydneycriminallawyers.com.au/blog/what-is-considered-offensive-under-nsw-criminal-law/

  27. Frank Walker from National Tiles

    The police must be able to project authority in the circumstances of a fracas or an arrest. Aggressive language by belligerents can be and is a precursor to aggressive actions, so it does have to trigger a response by an authority to counter it and that response should be overwhelming and forceful…. and have legal protections.

    Nah…it is in the common law of NSW that I can say to police “why don’t you just fuck off, you dog-arsed kwahantas?”…

    Sydney barrister Mark Dennis in his 2011 paper ‘Dog Arse Qwunts’ takes a look at what constitutes offensive manner and language under Australian law.

    Mr Dennis outlines that a key issue regarding the definition of offensive from the perspective of a criminal defence lawyer is that the word “calculated” means “intended,” as it is much harder for the prosecution to prove that offensive behaviour was intended to be so.

    https://www.sydneycriminallawyers.com.au/blog/what-is-considered-offensive-under-nsw-criminal-law/

  28. JC

    Trump is sitting in the highest office of the most powerful nation … and he can’t get any respect. He copy abuse left, right and center every single day.

    How’s the Fed Chair chairman abused him?

    Donald J. Trump
    @realDonaldTrump
    ·
    20h
    ….My only question is, who is our bigger enemy, Jay Powell or Chairman Xi?

  29. Tel

    Trump stuck Powell in there because he wanted someone easy to push around … now he finds that “his man” doesn’t do what he’s told to do. Trump sees it as insubordination … or course Powell can’t make the decision all on his own, that’s by design.

    Trump can dish it out when he wants to … but that’s not the point of the question. The original point was that certain people deserve automatic respect for no other reason than the chair they are sitting in. Trump sits in a real big chair, but he doesn’t get a whole lot of respect.

  30. max

    once people lose faith in the system, that system is as good as dead.

    attack on any institution is attack on system.

    that is one reason, why is important to have laws which people obey or get punishment.

    and that is why leaders need to be our examples in good behaviour.

    alternative is anarchy, like in china between 1911 and 1949

  31. egg_

    Well, fuck me, I’ve never been so offended in all my life

    I’m outraged!

  32. egg_

    The most intolerant are the most readily offended and easily insulted.
    By outlawing offence or insult, you are handing powerful weapons to the most intolerant.

    And they readily use it to shut down the free speech of others.

    Cry bullies.
    Female mu slims on The Drum regularly employ same when the counter argument is not to their liking – real tears and all.

  33. Dr Fred Lenin

    I am grossly offended by elected politicians who consider themselves superior to their employers ,the voters . They gain power by deception , promising fredoms they have no intention of keeping alive ,and obeying the overpaid public servants who tell them what they are allowed to do by the aparat .
    Politicians are owned by the elites who fund them and give them well paid “jobs “ when they retire from politics “to spend more time with their families”( before it hits the fan ) .

  34. Tator

    “OK, which of you bastards called Larwood a bastard instead of this bastard.”
    Bill Woodfull at the Adelaide Test during the Bodyline series.
    Interesting legal point. I was taught at the Police Academy that legally, a police officer cannot be offended. So any charges for offensive language etc required an independent witness. There was a cartoon in the PASA Police Journal with 3 mins leaving a court house with the subtitle of witnesses to a STAR Force offensive language pinch.

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