In a decision that was seen as a litmus test for the controversial section 18C of the Racial Discrimination Act 1975 (Cth) (RDA), the Federal Circuit Court has dismissed Cindy Prior’s case against Queensland University of Technology students Alex Wood, Calum Thwaites and Jackson Powell. Prior had alleged that these students breached section 18C. Judge Michael Jarrett concluded that Prior’s claim against them had no reasonable prospect of success.

What was the case about?

On May 28, 2013, Wood and two other students were using a QUT computer lab when Prior asked them whether they were indigenous. They replied they weren’t. Prior then asked them to leave.

Later that day, on the “QUT Stalkerspace” Facebook page, Wood posted:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?

Many people commented. Powell posted:

I wonder where the white supremacist computer lab is….

Prior alleged that Thwaites posted “ITT niggers”. (A claim that Thwaites has always categorically denied.)

Prior complained to QUT about these and other comments, which were promptly removed. However, Prior was ultimately unhappy with QUT’s handling of the matter and lodged a complaint in the Australian Human Rights Commission (AHRC). The AHRC conciliated Prior’s complaint. However, it did not contact the students directly about the complaint or the conciliation conference. Instead, it left this task to QUT. Powell did not know about Prior’s complaint until after the conciliation conference.

Conciliation failed, and Prior commenced proceedings in the Federal Circuit Court against QUT, certain QUT employees, and a number of QUT students including Wood, Thwaites and Powell. Prior’s claim was for A$247,570.52. Prior alleged that the students had breached 18C. She also alleged that QUT and its employees had breached section 9 of the RDA.

A number of students settled with Prior. Wood, Thwaites and Powell brought an application for Prior’s case to be summarily dismissed. (It should be noted that Prior’s case against QUT, its employees, and student Chris Lee continues despite her case being dismissed against Wood, Thwaites and Powell.)

Why did Judge Jarrett decide the way he did?

For Wood and Powell, Judge Jarrett concluded that an ordinary and reasonable member of a group of Aboriginal and Torres Strait Islanders (either students or generally), who had the characteristics of a member of a fair and tolerant society, would not be reasonably likely to find their statements offensive, insulting, humiliating or intimidating. Wood’s statements were against both QUT and racial discrimination generally. Powell’s statements, when read in the context of other comments, were “a poor attempt at humour”. In any event, both Wood’s and Powell’s statements amounted to “mere slights”, thereby not meeting the threshold 18C requires. Finally, neither Wood or Powell made their statements because of Prior’s race, or because of the race of the relevant groups.

Judge Jarrett decided Prior’s claim against Thwaites differently. Thwaites had provided evidence that he could not have posted the comments Prior alleged. Despite having opportunity to do so, Prior provided no evidence contradicting Thwaite’s evidence. Hence, Judge Jarrett concluded Prior could not sustain a case against Thwaites.

Why did this case generate controversy?

18C’s supporters point to decisions like this one to say that the system works: a weak claim was dismissed at an early stage. However, this case in fact highlights significant problems with 18C.

First, the process itself is the punishment. A summary dismissal application involves the filing of pleadings, affidavits and submissions, and appearing in court. There are significant costs in time, money and stress. A dispute that arose in May 2013 has taken until November 2016 to resolve. Tony Morris QC and Michael Henry have acted pro bono for Wood, Thwaites and Powell. But most people are not so fortunate.

In applications like these, legal fees frequently exceed A$10,000, and often go much higher. Most people simply cannot afford to defend themselves, and legal aid is unavailable. Hence, it is unsurprising that other QUT students settled their cases with Prior for A$5,000, even though they probably could have successfully defended themselves.

In addition to the costs in time and stress, and despite being “cleared”, the QUT students’ reputations have suffered enormously. The stain of being an alleged racist will be hard to remove. Thwaites has abandoned becoming a school teacher because parents or students may Google his name and find he was accused of racism.

Second, the AHRC’s conduct in this case has been disgraceful. Judge Jarrett’s dismissal of this case raises the question of why the AHRC did not initially reject Prior’s complaints against the students. That the AHRC proceeded to conciliation may have given Prior false hope that her case against them had merit. Nick Cater notes that, from 2001 to 2005, the AHRC rejected almost 30% of complaints. He also writes that under its most recent Presidents, Catherine Branson and Gillian Triggs, less than 5% have been rejected. The AHRC must exercise better judgement.

Further, it is astounding that the AHRC left it to QUT to contact students about the conciliation conference. The AHRC must contact each respondent directly. In defending its actions, the AHRC has stated that in such matters it “sometimes” leaves it to organisations to contact members who are respondents, a practice Triggs has confirmed. However, even if only done “sometimes”, the AHRC violates both fundamental principles of procedural fairness and what its own governing statute requires. Indeed, that the Prior case does not appear to be an isolated instance of AHRC misconduct is deeply disturbing. Unsurprisingly, Thwaites and Powell have lodged complaints about this issue.

Unfortunately, until 18C is amended, repealed, or struck down, cases like this will arise in the future.