The Constitutional validity of the “hurt feelings test” in Section 18c can be questioned in new way.
In Bolt’s case it was found that he could have “hurt the feelings” of “fair skinned aboriginal people” but both sides more or less accepted the Court’s older decisions based on a Nazi type attack on the Australian Jewish Community in which the whole of Part IIA (in which section 18c sits) was found to be valid as part of implementing an international Human Rights treaty.
The Federal Court in Gaynor’s case reconfirms that statements that are offensive or insulting are inside the field of political discourse, ...which is frequently marked by offence or insult....
...each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia...
The Federal Court has re-iterated that two questions must be answered.
Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?
If so is the law reasonably appropriate and adapted to serve a legitimate end?
If the first question is answered “yes” and the second is answered “no”, the law is invalid. …
While the intent of the whole of Part IIA had previously been determined as valid at a very broad test level. In Bolt’s case the “hurt feelings test” set out in Section 18c was not specifically given the “two question test”.
Gaynor’s case gives a fresh battlefield to test the Constitutional validity of S 18c.
While we know from Bolt’s case that someone’s hurt feelings is permitted to stop freedom of communication about political matters.
The question of “Should hurt feelings be allowed to stop political discourse” has not yet specifically been asked of the Court.
In my view the provisions of Part IIA are constitutionally valid as an exercise of the external affairs power.
FREDERICK TOBEN v JEREMY JONES Nazi type attack on Jews in Australia.
The Prime Minister has just said that he will not be re-visiting the "Bolt Amendments" so that the test of criminality is whether someone is "offended". To be more accurate the Court said:" In order to succeed in her claim, Ms Eatock needed to establish that:
- It was reasonably likely that fair-skinned Aboriginal people (or some of them) were offended, insulted, humiliated or intimidated by the conduct; and
- That the conduct was done by Mr Bolt and the Herald &Weekly Times, including because of the race, colour or ethnic origin of fair-skinned Aboriginal people."
Certainly no comfort to any other political commentator. Does anyone remember what was said?
Here is a full copy of the Court Transcript of the case. It includes, right at the end, copies of the series of articles.
Go to this page and scroll down to the end where the photos are with the headline "Its so Hip to be Black"
Gaynor v Chief of the Defence Force (No 3)  FCA 1370
247 Within the ADF, and publically, the applicant’s published statements were described as “inappropriate”, “offensive”, “unacceptable”, “disrespectful”, “intemperate”, “anti‑transgender”, “anti‑women”, “homophobic”, “inflammatory”, “intolerant”, “divisive” and “demeaning”. However, as was pointed out in Coleman, the fact that statements are offensive or insulting does not take them outside the field of political discourse, which is frequently marked by offence or insult (see e.g. per McHugh J at ‑, per Gummow and Hayne JJ at , per Kirby J at ).
237 Another important statement was made in Lange which was referred to recently by the High Court. In Lange, the High Court said (at 571):
… this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. …
When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively “the system of government prescribed by the Constitution”). If the first question is answered “yes” and the second is answered “no”, the law is invalid. …
229 The Constitution does not state any protection for political, or any other, communication. Freedom of political communication is an implication which the High Court has drawn from the terms and structure of the Constitution. The limits of the implication are as important as its existence in many cases.
219 The case was not one about s 116 of the Constitution, but Mason ACJ and Brennan J went on to say (at 135-136):
… the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them: … Religious conviction is not a solvent of legal obligation. … Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.
208 The applicant’s proposition must, therefore, be that the exercise of the statutory discretion in each case was in excess of a statutory grant of power properly construed as not authorising infringement of constitutional requirements or boundaries.