Things are beginning to heat up with Australia’s odious Section 18C hate speech law and the Australian Human Rights Commission (HRC) that administers it. Indeed, things have got so bad that even Malcolm Turnbull—the man whose near-on first act after defenestrating Tony Abbott was to try to build bridges with HRC President Gillian Triggs by inviting her over for a cup of tea—has decided to start making noises about the possibility of the chance of holding a parliamentary inquiry into 18C of the Racial Discrimination Act and free speech. Okay, that’s not exactly the most powerful sign of a John Stuart Mill-like commitment to free speech. But with Malcolm Turnbull we on the right of the political spectrum in Australia have learned to take what we can get.
The two big things that might be said to have changed the zeitgeist as regards 18C are the hate speech law’s use to attack Bill Leak, Australia’s pre-eminent political cartoonist in the country’s top national newspaper the Australian, and a court decision finally being handed down in the case of three Queensland University of Technology students.
In May, 2013, three QUT students entered an unmarked, unoccupied computer lab. Cynthia Prior, an administration officer for the university’s “Oodgeroo Unit”, approached them and asked if they were indigenous. They told her they were not. Ms Prior indicated that the room they were in was (and I quote from the court judgment) “an indigenous space for indigenous students at QUT”, and she went on to advise them, “There are other computer labs in the university you can use.” One of the students shortly thereafter posted something on a Facebook page that read: “Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation …?” Another wrote: “I wonder where the white supremacist computer lab is.” The third contested the allegation that he had ever written anything at all, as opposed to someone else doing so in his name.
And that was the cause of Ms Prior making an 18C claim to having been offended and seeking an apology and damages of a quarter of a million dollars against the students and the university. (Let me stress to any readers from outside Australia that I am not making this up or exaggerating, such is the grotesqueness of this law, or at least of how it is being used.) Other students who joined the Facebook commentary also had 18C claims made against them, but the others all opted to pay money and settle rather than face the stigma of being branded racist and the uncertainty of how things would end. It is not clear exactly how much “settlement money” or “go away money” these other students paid, but widespread speculation puts it at $5000 each. (The Australian has reported that some $500,000 in “go away” money has been paid over the years by those accused of 18C hate speech infringements as part of the so-called “conciliation” process the HRC administers.)
I mentioned above that this incident happened back in May 2013. The students themselves were not notified for years that a complaint had been made against them; the three of them were lucky enough to have top lawyers volunteer to represent them pro bono; and the very first decision handed down on the case by any judicial figure was in early November 2016—three and a half years after the event.
More than a few supporters of 18C claim that the students’ victory in court shows that the law is working as it should. This is palpable nonsense—as Mark Steyn in a similar Canadian context repeatedly said, “the process is the punishment”. These three luckless students have faced ignominy, uncertainty, career paralysis and legal expenses (they exist even with pro bono lawyers) all for writing, “stopping segregation with segregation”. Now one may think it better to fight such cases to the bitter end and try to blow up the whole system, but at the same time one can well understand why so many others have been prepared to pay “go away” money to make their cases disappear.
The court decision just handed down is Prior v Queensland University of Technology & Ors  FCCA 2853. It is a decision of Judge Michael Jarratt of the Federal Circuit Court of Australia, but that is just the new puffed-up name for the Federal Magistrates Court. This was a low-level decision. It was an application by the students for a summary dismissal of the claims against them. So it was interlocutory. They were arguing that this matter should not proceed to trial, and they won. So think about that for a moment. The claimant’s case was held to be so weak that it could not be allowed to proceed to trial against the three students. Yet the HRC, which clearly can decide claims are frivolous or undeserving of being pursued, decided to push on and try to conciliate this case—presumably because they saw it as a case in which some uppity university student had the temerity to write, “stopping segregation with segregation”, which they must think is at least a borderline infringement.
At any rate, it is obviously good news that the students won and that at this interlocutory stage the case was thrown out. Further good news might, but only might, come as regards the issue of costs—who pays the lawyers’ fees—which has been reserved to a later date. That will be interesting, especially as here there might be scope for a Federal Circuit Court judge to make his real views plain.
That is the good news. The bad news is that Judge Jarratt sits at the bottom of the judicial totem pole. So in Prior v QUT Circuit Court Judge Jarratt cannot question any of what I think are the wrong-headed holdings in the Eatock v Bolt case decided by Justice Bromberg of the Federal Court (which is above the Federal Circuit Court). All of those Bolt case rulings are still the law of the land as regards 18C, despite what I think is their implausibility. For instance, Justice Bromberg read 18C—acts that are reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group—as setting out a test that is not to be measured or assessed from the point of view of a reasonable member of society at large and so not to apply “an objective application of community standards”. That is how I think the statutory provision was meant to be applied. But not Justice Bromberg in the Bolt case. Bromberg said that “it is the values, standards and other circumstances of the person or group of people to whom s.18C(1)(a) refers that will bear upon the likely reaction of those persons to the act in question”.
Read Bromberg carefully and it seems to me that his test is tantamount to creating a “reasonable person in the group claiming to be victims” test. And that means that if the group claiming victimhood happens to be comprised of particularly thin-skinned people, then you’re stuck with their thin-skinnedness as the standard, even though you dress it up a bit by making it a “reasonable” person in the victim group. Put differently, under Bromberg you have to take your would-be victims as they come and then construct some sort of reasonable victim test.
I simply don’t think Bromberg can be right about this test of his. If white males are seen as a vigorous, thick-skinned group then that’s the test for them (meaning white males will be hard-pressed to win under 18C); by contrast if some other group is seen (by Bromberg or another judge) to be fragile or sensitive then for them that’s your starting point and you will be hard-pressed to lose under 18C. All part of the rich tapestry of multicultural life in Australia, I suppose supporters of 18C might quip.
But whatever your take on Bromberg’s test, until a case gets up to the same level of the Federal Court, or higher, his Bolt case view is the binding interpretation of 18C. (By the way, so is Bromberg’s take on the exemption provision in 18D—“done reasonably and in good faith”—under which Bromberg rather incredibly to my mind looked at things like an article’s “tone” to decide if 18D applied, which for Bolt he said it did not.) And so Judge Jarratt followed that 18C test. And still the claimant lost, meaning Judge Jarratt had no cause to proceed to consider 18D. No reasonable member of the “victim group” (indigenous people in this case) would, he said, be offended by the words written here. That seems right to me too, though I dislike this Bromberg test, and though I wonder what the HRC was doing treating this claim as anything other than vexatious when it cannot even get over the interlocutory “summary dismissal” hurdle at the Federal Circuit Court. The whole three years of hell imposed on these students—to say nothing of the money extracted from those other students who paid to have this legal threat go away—was based on something so flimsy that it fell at the first microscopically low hurdle.
But criticise the HRC all you want, the fact remains that this Coalition government has known about this QUT case for a long time and done nothing. It has made no moves to amend 18C. It has not moved to indemnify these QUT students, which it has the power to do. The recent comments of government ministers on behalf of the QUT students now that the judgment is out amount to the worst sort of hypocrisy.
But if you thought things couldn’t get worse than this QUT case then you need to think again because the Bill Leak saga is much worse. My daughter is in her last year of university in Canada. She’s at Queen’s University, older than any Australian university, and the only one with a Royal Charter. In late October she called her Mom and me to tell us that knowledge of the Bill Leak cartoon saga had come to her campus. No one there could believe that the thought police Down Under were going after a cartoonist on the country’s main newspaper.
Put bluntly, Australia is now a joke on the issue of free speech. Canada and Canadian universities (to my deep regret, as I’m a native-born Canadian) take second place to no one when it comes to political correctness, including all of the “we don’t want to hear those scary ideas we don’t agree with” speech restrictions. So when it’s embarrassing to be Australian on a Canadian university campus you know you’ve hit rock bottom.
Leak drew a cartoon with an indigenous policeman and an indigenous ne’er-do-well who didn’t even know the miscreant child in the cartoon was his own. Leak was making an important point. It was biting. It was, to be blunt, part of what comes with living in a free society. If you think Leak is wrong on the facts, say so. If you want to draw your own cartoon, do so. Instead, the urge by those on the puritanical Left is to scream “Racist!” and attempt to use the machinery of the law to silence viewpoints they dislike. This strikes at the heart of a few centuries of liberal enlightenment ideals, not to mention running exactly contrary to John Stuart Mill’s great utilitarian defence of free speech.
And yet several hundred self-styled “journalists, writers, photographers, artists, publishers and others who work in media” signed a petition condemning Leak’s cartoon as racist. Now the petition they signed did not call for someone to make an 18C complaint against the cartoonist. No, it condemned the Australian for publishing it and “urged the editorial leadership of all Australian media to reflect on the hurt and distress all racial stereotyping causes”. That’s what self-styled “creative” types apparently think these days. It’s enough to make one vote for Trump. (Wait, that bridge has been sold, and delightfully so, not least because I won a bet on the outcome and because we can look forward to some sane US Supreme Court nominees.) All one can say about these virtue-signalling bumper sticker moralisers is that no one has heard of the vast preponderance of them.
Meanwhile someone has in fact made an 18C complaint against Leak, after the HRC’s Race Discrimination Commissioner more or less solicited for people to do so. This is causing more than a few people to come around to my view that the HRC is irredeemable and needs to be shut down, as well as bringing more people over to the view that 18C has to be seriously pared back, or better yet repealed.
So it’s over to Mr Turnbull and the Coalition government. The blame from here on for this mess can only be laid at the feet of the Liberal Party. Rather than moot some Yes, Minister inquiry to report back some time next year, and give every GetUp!-type organisation the chance to plead on behalf of “no offending anyone in Australia” outcomes, show some leadership. Do something, even if that means putting a bill to the Senate to dare them to block it and provide a trigger for another double dissolution.
If the party’s priorities don’t extend as far as fighting for the Bill Leaks of this world—openly, loudly and proudly—then it’s not a party worth voting for. Take the advice of the world’s biggest shoemaker and “Just do it!”
James Allan is Garrick Professor of Law at the University of Queensland