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Offence is taken, not given

By David Leyonhjelm - posted Wednesday, 30 January 2013


If I were to suggest that Nicola Roxon has a fat bum, she might be offended or insulted. Moreover, if the comment was made in the context of her role as Australia’s Attorney General, it may be construed as a political statement and in contravention of her proposed new anti-discrimination law, especially if I also suggested female Labor politicians have a tendency towards fat bums.

Indeed, I could find myself needing to prove my comment was not discriminatory or offensive, at my own cost and without legal representation.

On the other hand, Ms Roxon might not find the suggestion offensive at all. If she were sure her bum is perfectly proportioned, that my opinion is of no importance or I am not competent to pass judgement, she may not be the least bit bothered.

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Given that I cannot predict her response, it is difficult to see why I, or anyone else who made a similar comment, should be held responsible for whether or not she finds it offensive. A comment may be directed at a hundred people, yet only one will feel offended. Those who insist offence is caused by others are placing an unbearable burden on anyone who opens their mouth.

That applies irrespective of the intent of the person making the comment. 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 them all or none offensive.

The same is true when it comes to comments about political beliefs, sexual orientation, gender identity, age, religious values or myriad other factors that might give rise to offense. There is no way of knowing in advance how a comment might be received.

In tort and criminal law there is a rule that one is liable for all consequences resulting from activities leading to an injury to another person, even if the victim suffers an unusually high level of damage due to a pre-existing vulnerability. Known as the egg shell rule, it means liability may be severe if a person suffers injury as a result of negligence or assault and has a skull as delicate as the shell of an egg.

This relates only to physical injury though, and there is no such rule regarding verbal matters. Nonetheless, there is a growing trend to attribute blame for the consequences of offence at the feet of those who utter the words, not the one who claims to feel offended.

When a U.K. nurse received a prank call from a Sydney radio station pretending to be the Queen, the immediate response focused on its entertainment value. Yet when the nurse committed suicide, blame was immediately attributed to the announcers who made the call even though the nurse had the psychological equivalent of an egg shell skull, having made two prior suicide attempts.

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A section in the Racial Discrimination Act makes it unlawful to “offend, insult, humiliate or intimidate” someone because of “race, colour or national or ethnic origin”. Further consequences were considered in the Andrew Bolt case.

This can have quite significant consequences for the way we speak. In America, and increasingly now here, it has become customary to wish everyone Happy Holidays rather than Merry Christmas out of concern that non-Christians may feel offended. This is despite that fact that only a tiny minority of Jews and Moslems ever claimed to have felt offended by the term, and there are plenty who use it themselves.

Many people argue that a free society must include the right to offend. While I understand that argument, I disagree. A free society means one in which we are each responsible for our own actions and feelings, and accept responsibility for them.

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About the Author

David Leyonhjelm is the Liberal Democrat Senator for NSW.

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