Who is a reasonable person anyway?

What limited protection we have in Australia for free speech, is based on the concept of the ‘reasonable person’. In other words, when it comes down to the crunch, the courts rely on this fictitious ‘reasonable person’ to determine whether words have hurt somebody’s feelings enough to warrant some form of punishment. But who is this ‘reasonable person’ anyway?

A ‘reasonable person’ is a legal fiction created in order to help set an objective standard of behaviour against which we can all be equally judged. It stands to reason then that this ‘reasonable person’ is not an average person, but an ideal and a vague one at that. They are somebody who is risk averse, and who has the ability to assess the most prudent course of action in any set of circumstances. They must also have a moral viewpoint, a set of beliefs that would deem certain types of behaviours to be unacceptable. Seeing as the ‘reasonable person’ is work of fiction, it is likely that what he or she finds unacceptable is based on the prevailing social norms, and is susceptible to the personal opinions and worldview of the presiding judge in any given case. When a person is being judged based on words written or uttered, it is to this ‘reasonable person’ that we must defer.

Although the ‘reasonable person’ standard may be useful in determining cases wherein somebody incurs loss or harm due to negligent behaviour, it is less than ideal when used to determine degrees of offence given. In today’s world where offence is so easily taken, it is almost to be expected that the modern ‘reasonable person’ would find all manner of speech offensive. If certain opinions or speech are found to be those that a ‘reasonable person’ finds offensive, the only truly correct response that protects freedom of speech is to say ‘so what?’

History is littered with cases of unreasonable people pushing the boundaries of contemporary acceptable behaviour, and causing offence along the way. Socrates, one of the founders of Western philosophy, was executed for not respecting the gods and for making prominent Athenians look stupid when he questioned them about their beliefs. He would have failed the ‘reasonable person’ test of the day; his ideas were offensive and he upset people. Galileo upset the church with his theory of a heliocentric solar system, his writing was sanctioned and he died under house arrest; certainly a ‘reasonable person’ of the day would have agreed that Galileo’s ideas were offensive. Black activist Malcolm X paid the ultimate price for forging his own path and speaking out against his former allies the Nation of Islam; a ‘reasonable person’ in the 1960’s may have thought he brought it upon himself. These people and countless others, have spoken out against the prevailing wisdom, offending people along the way, and we are the better because of it.

There are many social and political hot potatoes at present, and freedom means being able to debate them without any fear of legal ramifications. If somebody can be sued $250,000 for saying on Facebook ““Just got kicked out of the unsigned ­indigenous computer room. QUT stopping segregation with segregation?” then this has a chilling effect on what opinions people are willing to voice. Many people have legitimate concerns about a whole host of issues including same sex marriage, indigenous issues, immigration, radical islamism and the role of schools in teaching kids about sexuality. History may prove for example that affirmative action policies had a detrimental effect on race relations, and yet today somebody is being put through the wringer for making facetious comments that allude to this very idea. Conversations need to be had freely, with the knowledge that cherished ideas will be challenged, sacred cows criticised, and feelings hurt. The best ideas will win hearts and minds through intelligent debate that includes the ability to speak freely and without restraint.

In attempting to punish those who don’t have a fashionable opinion or those that question the current dogma, what we as a society are saying is that we don’t trust people to think for themselves and that they are so fragile that they can’t handle hearing something they may not agree with. It is an attempt to stop people hearing the ‘wrong’ opinion in case their feeble minds are swayed, or that somebody might feel upset or offended. It results in people self-censoring just in case. Do we really fear words so much that we seek to punish those with opinions different to our own?

In the words of Christopher Hitchens “the urge to shut out bad news or unwelcome opinions will always be a very strong one, which is why the battle to reaffirm freedom of speech needs to be refought in every generation.” There is no place for a vague ‘reasonable person’ test that is used to measure speech. In Australia today we must fight to not only rid ourselves of laws that make insults and causing offence unlawful, but against the prevailing idea that having those laws in the first place is perfectly OK.


Nicola Wright is a writer for LibertyWorks. This article was also published by The Spectator Australia 13 October 2016

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Nicola Wright

Nicola is passionate about liberty and human flourishing and has an interest in free speech advocacy, and resisting the 'nanny state'. She has had contributions in The Spectator Australia, Online Opinion, Spiked Online and Quillette, and is Managing Editor at LibertyWorks.
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53 Comments on "Who is a reasonable person anyway?"

  1. The ‘reasonable person’ sounds very much like the ‘intelligent person’; Hypothetical characters who have no correlate in reality and who exist only in works of fiction.

  2. A well written piece, Nicola Wright.

  3. You want to look at 18D of the racial discrimination act.

  4. I am sane my mother had me tested.

  5. being offended is actually a choice

    you can tell a joke to 1000 ppl 999 laugh one is offended, Who has the problem??????

  6. Could you regard me as a reasonable person.

  7. I can be reasonable for the right price.

  8. I was on a jury (civil case) and when the judge took us through it we all could work with it.

  9. That leaves out politicians

  10. I can reason so does that make me a reasonable person

  11. Does anyone remember the old saying “Sticks and stones may break my bones, but words will never hurt me.” Usually used by parents to their children after another child has said something upsetting to their son/daughter.

    • Yes. Usually a parent highlighting an important lesson about growing up…

    • It is a shame that the government appears not to be able to grow up and defend what it has sworn to defend.

    • So you’d be fine with somebody calling you a paedophile then?

    • Hamish, you appear to be missing the point. We are talking about the ‘reasonable person’ definition. The problem we have is that people get upset by the most inane of things and it stops a robust discussion, which is necessary to challenge established ideas sometimes, such as the immigration row at the moment.

    • Hamish is yet another leftard who doesn’t understand the difference between free speech and defamation.

  12. Is there anyway to prevent all this rightist garbage from coming up on my dash?

  13. and who defines “reasonable?”

  14. People are just so Butthurt

  15. The fair minded reasonable lay person in Ebner as adjududicated by the Tribunal of Fact.

  16. What is the purpose if this article? It goes nowhere and supports no firm conclusions. If it is supposed to be an attempt to provide a logical argument against the Racial Discrimination Act, then it’s simply yet another attempt at proof-by-armwaving by those who want free licence to spread hate speech and instigate violence to justify their own miserable egos.

  17. Me
    I am the only “Reasonable Person” so i should make the decisions

    • I’ve met plenty of reasonable muslims who would pass the ‘reasonable person’ test. I know there are a fair few who wouldn’t, just as there are a fair few of many groups of people. In fact, I think you might be one of the ‘unreasonable’ types, as you have grouped 1.6 billion people as ‘unreasonable’ when there is ample evidence that you are wrong.

    • WTF yeah are you a fucken idiot or what MORE BLEEDING HEART BULLSHIT THE ONLY EXAMPLE IS THE RIOTS AND THREATS SEXUAL ASSULTS PEDOPHILES RAPING WOMEN AND BABIES SO

  18. Look at the meaning of person blacks law dictionary we are living men and wo man

  19. not some uptight wanker

  20. A reasonable person is the average man in the street, rhe same person who makea the determination of what is reasonable in a court of law.

    That word reasonable is why there have been so very very few prosecutions attempted for inciting hatred, a jury is unlikely to convict under any but the most extreme examples.

    • The point is that the ‘average man in the street’ or ‘the man on the Clapham bus’ changes over time, and is based on a subjective judgement of who the ‘average man in the street’ is and what he thinks. The jury shouldn’t be convicting any examples, even extreme ones, unless there has been violence or incitement to violence.

    • Why should “incitement to violence” be the only harm addressed by our laws? As I’ve noted above, defamatory speech is punishable by law, because we recognise that speech can harm people. So, if we accept that using speech to harm someone’s reputation should be punishable, why should using speech to cause mental distress not be? What about speech which might contribute to other forms of physical harm (say, suicide)? Speech which puts a person at some disadvantage when seeking employment? Particularly when that speech seeks to exploit some attribute of the person which they are unable to change – which is the whole purpose of those provisions in the Racial Discrimination Act, of course.

      I’m not saying any of these types of speech *should* be illegal, of course – I personally support quite wide latitude on freedom of speech, even if I disagree with many of the typical reasons that people seem to care about it. But I don’t see why only certain types of harm should be considered when looking at what restrictions are reasonable – particularly when restrictions in the face of harms which are lesser than your standard are already widely accepted.

      Also, if a law is on the books, and a person breaks it, the jury *should* convict them! The job of a jury is to assess whether or not a defendant broke the law, not to comment on the validity or reasonableness of the law itself.

    • Ashley Walker we are arguing that the law shouldn’t be on the books.

    • Ashley Walker, jury’s decide on “reasonableness” of action all the time.
      If I put up a sign and a barrier and someone falls in a hole I dug after they climb over the barrier, a jury would likely find that I had acted with reasonable caution and not punish me. If I disguised the hole for some reason (maybe I needed a permit to dig it and didn’t ask for one), then they might find I did not take reasonable precautions and punish me.
      If I kill someone because I am in a bad mood, my action would be considered unreasonable and I would probably be convicted of murder. If I kill someone because they attacked me with a knife and I thought I was about to die, they would find my action reasonable and acquit me.

      The law contains the word reasonable for the same reason the laws on negligence and murder do, because it is imposdible to write legislation to cover every nuance in the real world, and they leave it up to a judge and jury to measure the appropriateness of actions in the circumstances.

    • Gregory, you’re right – juries do decide whether or not an action is reasonable when a particular law requires that they do so. They do not decide whether or not the law itself is reasonable (except in cases where a law is being challenged, of course).

      Nicola, I understand what you’re arguing here, but you stated that juries should not be convicting any examples, when they are in fact required by law to do so. The actions of a jury (which is required to apply the law as it stands to the case in front of it) are distinct from external challenges to the reasonableness or validity of the law itself.

    • Ashley Walker my comment perhaps should have more correctly been ‘we shouldn’t be in a position where a jury can convict people for their speech’.

    • Fair enough, Nicola – that would certainly make more sense. At that point, though, we still have to turn back to the issue of why incitement to violence and defamation should be illegal because of the harms they cause, but speech that, say, causes significant distress, loss of employment, physical injury, or other harms *shouldn’t*, as a matter of principle, be treated similarly.

      Of course, I’m assuming that you agree with defamation laws (in broad strokes at least, if not specifics) – which might not be true, so please call me on that if I’m wrong. At the least, though, you’ve indicated that you think incitement to violence is a reasonable line to draw. My question is simply why the line should be drawn there, rather than somewhere else, be that a more or less liberal position.

    • In some states, “suggesting” a woman is “of ill repute” is sufficient for a conviction, the fact that it can be proven to be true is not a defence under the law, so restrictions on “free speech”, where such would cause harm to an individual, are in fact a very old and important common law principle.
      In fact, there is NO guarantee of free speech under Australian law, our rights to it derive solely from common law and restrictions to those common law rights tend to be narrow and specific in order to clarify areas not yet covered by precedent and carefully framed so as not to unnecessarily place impositions beyond the intended scope.

    • Gregory, I’d be extremely curious to read more about those states you reference – particularly if people have been convicted on those grounds.

      You’re fairly spot on about the right (or lack thereof) to freedom of speech in Australia, though!

  21. The mental health act and the pso act uses the word “appears” to describe a situation of allowable arrest. So the second you resist or question a pso’s authority or a cop they can say “you appear mentally ill to me” and your screwed. Same thing with “reasonable person”.

  22. What do you guys think about right of reply?

    https://en.wikipedia.org/wiki/Right_of_reply

    • Good question. I don’t think it should be an actual right as such, but as a custom I agree with it. Especially for major publications.

    • hmm, Yes, the problem that is faced is that if a major publication wants to ruin someone they can do so.

      And as it stands there is little recourse against that, even if the reporting is scandalous or uses rhetoric skillfully to simply imply scandal.

      (thinks) unless of course another equal sized periodical is convinced to run something… unfortunately the only two in question, Fairfax and Newscorp benefit somewhat from the somewhat “handsoff” media legislation in Australia.

      Theres probably no easy solution but it bears thinking about.

  23. Reasonable person, is the average person of reasonable mind. Average is one leg in Ice the other on Fire, on the average your quite comfortable.

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