While amendments to the Anti-Discrimination Act are being considered, it is worthwhile considering when we are entitled to use the law to prohibit conduct which offends, insults or ridicules another.
Section 17 of the Act prohibits conduct which offends, humiliates, intimidates, insults or ridicules another on the basis of specified attributes, in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.
The specified attributes include race, age, gender, sexual orientation, marital and relationship status, parental status, breastfeeding and disability, but significantly not political or religious affiliation and activity.
In my opinion, for reasons set out in another article, section 17 is designed to prevent behaviour targeting an individual because that individual has one of the protected attributes, but does not extend to conduct or statements which do not target an individual but extend to a class of persons who possess one or more of the listed attributes.
So it extends to statements targeting an individual because he is gay, but not to a statement attacking gays as a group.
In my opinion, if section 17 did prohibit statements attacking a group, which were offensive to some or all members of that group or to the public at large, it would be difficult to justify; the fact that conduct or statements are offensive, even grossly offensive, does not by itself justify legal prohibition.
The campaign for the decriminalisation of homosexual behaviour between consenting adults in the last century led to a broad consensus that it was wrong to penalise conduct and statements solely on the grounds that they were offensive.
Many opponents of the legalisation of homosexuality argued that we were entitled to prohibit it on the grounds that many people regarded it as deeply offensive. They lost the argument because it became accepted that what men did in the privacy of their own bedrooms should not be prohibited simply because it deeply offended some other people.
It is wrong to prohibit conduct or to punish actions solely on the ground that they deeply offend others. Doing so punishes people for refusing to comply with prevailing social standards. So those who wanted to punish homosexuals because their behaviour was offensive simply wanted to punish them for refusing to comply with what they saw as prevailing sexual standards.
And those who want to prohibit offensive speech today want to prohibit speech which is seen as not conforming to what they see as the standards which ought to govern public speech.
Any discussion of whether we are justified in punishing people for refusing to conform with prevailing standards must start with John Stuart Mill’s On Liberty.
Mill argued that we were not justified in using the law to enforce prevailing standards or even to make people better. instead, he argued that we were only entitled to use the law to prevent people causing direct harm to others. Because we live in a society, many of our actions can harm others.
For example, if we make offensive comments, they may distress others. But Mill argued that it was not enough that our actions might harm others; the harm had to be ‘direct’ before the law could intervene.
Mill limited cases in which the law could justifiably intervene to cases of direct harm because he feared that democracy could lead to the tyranny of the majority in which non-conformity was punished and dissent was repressed. He also feared that if the law could be used to prevent all behaviour which indirectly harmed others, it could be used to enslave people.
For example, if I am always drunk, my drunkenness may harm the rest of society by making me unproductive and dependent on others. But this harm is indirect and should fall outside the control of the law because the only effective remedy, stopping my getting drunk, requires that society exercise a great deal of control over my life.
Unfortunately, Mill did not define ‘direct harm’, but developed the idea by examples. Hence it is not completely clear what he meant. But it is clear that the harm caused by offending others is not direct harm unless we target others and deliberately set out to offend them.
Mill would not have denied that offending others causes harm because those offended may suffer real distress. He would have denied that the harm was direct unless intended because it was as much the result of the offended person’s reaction to the offensive conduct as it was the result of the offensive conduct itself.
If we are legally responsible for the reactions of others, especially members of the public whom we do not know, to our statements and conduct, we are likely to be very careful in what we do and say. In particular, we are less likely to depart from accepted standards of behaviour if members of the public can hold us legally accountable for the offence we may cause them.
Holding people legally accountable to strangers for the offence they cause is a way of implementing the tyranny of the majority which Mill feared.
Mill’s defence of liberty seems to have fallen out of favour. We also seem to have lost sight of an important insight from the debates about the legalisation of homosexuality, the insight that behaviour is not wrong because it offends us but may offend us because it is wrong.
In other words, we may be offended by bad or wrongful behaviour but not all behaviour which offends is wrong.
I think we have lost sight of this insight because most people no longer believe that there are standards of right and wrong, especially in the area of sexuality and sexual behaviour.
As a result, it is no longer acceptable for the minority who believe that there are standards of right and wrong in this area to publicly condemn or criticise the behaviour of others by reference to these standards.
Such condemnation is seen as wrong because it is likely to cause offence to those whose whose behaviour is condemned or criticised. Because it is seen as wrong, there is pressure for the law to prohibit it.
That pressure needs to be resisted because we need to allow criticism of current attitudes and behaviour, no matter how unpalatable.
Without it, society will be stagnant and self satisfied. If section 17 extends beyond targeting individuals to prohibit general comment which some people find offensive, it imposes unacceptable constraints on public comment and criticism and should be repealed.
• Product recall on Colonial Christianity … The looming Tasmanian repeal of anti-discrimination legislation and the national marriage equality plebiscite are grubby with fresh fingerprints of pre-enlightenment Christian intolerance, with rising fears of compromising other human rights issues in Australia. Imposing primitive assumptions of former millennia on a new generation is an act of brutality to both the contemporary community and the ancient documents that give rise to them …
• Max Atkinson in Comments: A superb essay on a much confused subject; deserves to be read slowly and more than once. No one understood the importance of free speech and individual liberty against the tyranny of a majority better than JS Mill, and no one has captured the essence of Mill’s argument, or used it to better effect in assessing section 17 of the Anti-Discrimination Act, than Michael Stokes. Michael is more widely known as an expert on local government law and an authority on Australian constitutional law. This essay reminds those unfamiliar with his work in jurisprudence that he is also an outstanding legal and political philosopher, able to take the debate back to first principles and explain, in clear and simple language, why they are important.