Guest Post by Angus Macinnis

Last Friday, the Federal Circuit Court handed down a decision dismissing claims made against three of the respondents in a discrimination case (the case will still continue against four other respondents). Normally, such a procedural ruling in the Federal Circuit Court would be more snooze-worthy than blog-worthy, but the case has involved considerable media attention, because the discrimination alleged was racial discrimination, and the case involves everybody’s favourite section of the Racial Discrimination Act 1975 (Cth), section 18C.

The case – Prior v QUT– included claims by the plaintiff (Prior) that the respondents had made racially motivated statements on social media that breached section 18C.

There has been an awful lot of nonsense written about this case, both before and since the judgment. Regrettably, it is not uncommon in the Australian media for an awful lot of nonsense to be written about legal cases. Usually, however, the nonsense emanates from plaintiffs (and their legal advisors). One of the unusual aspects of Prior is that the nonsense seems to have emanated mostly from certain of the respondents (and certain media organisations who have taken up the cudgels on their behalf).

Normally, respondents (and especially respondents who assert that they are the subject of unmeritorious claims) do not fight their battles in the media; rather, they put their heads down and get on with the business of getting the claims struck out. The tenor of the media coverage in this case rather suggests that certain of the respondents are more interested in stoking a cause célèbre than they are in snookering a cause of action.

Which has led to all the nonsense, some of the more egregious of which includes:

This is all the Australian Human Rights Commission and/or Professor Gillian Triggs’ fault

No it isn’t. The AHRC is not a party in the Prior litigation. Professor Triggs is not acting for Ms Prior (Ms Prior has engaged her own solicitors and counsel). And the student respondents were not in the case because the AHRC put them in there; they were in there because the applicant, Ms Prior, sued them when proceedings were commenced in the Federal Circuit Court in October 2015.

Applicants bring proceedings for discrimination (including under section 18C), not the AHRC. There is one applicant in the proceedings and it is Ms Prior.

If the claims were lacking in substance, the AHRC should have thrown them out – they should never have got to the Court

In order to bring a claim for unlawful discrimination under Federal legislation, the AHRC is the first step in the process. A complaint is made to the AHRC, and the AHRC will then try to resolve the complaint by assisting the parties to reach an agreement for resolution. If the complaint can’t be resolved, the AHRC “terminates” the complaint, and the complainant can then take the terminated complaint off to the Federal Court or the Federal Circuit Court to start a court case.

The AHRC cannot decide discrimination claims, because the AHRC is not a court – it doesn’t have any judges and it doesn’t have the power to impose a resolution on the parties to the complaint. The AHRC cannot decide that a complaint is hopeless and should go no further. The AHRC cannot decide that a complaint will invariably succeed and award damages to the complainant. The function of the AHRC is to investigate (and, if possible, to conciliate), not to decide. The deciding needs to happen in a place where Federal judicial power can be exercised, namely, in the Federal Court or the Federal Circuit Court.

It is true that there are many different grounds on which the AHRC (acting through a delegate of the President of the AHRC) can “terminate” a complaint (which is the necessary precondition for the matter to go to a Federal court). Those grounds include that the delegate “is satisfied that the alleged unlawful discrimination is not unlawful discrimination” or “is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance”.

According to press reports, Ms Prior’s complaint was terminated on the more commonly used ground that the delegate was “satisfied that there is no reasonable prospect of the matter being settled by conciliation”.

Shouldn’t the AHRC should have taken the harder line? For two reasons, no.

The first is that it wouldn’t have made a blind bit of difference. Ms Prior’s right to commence court proceedings would have been exactly the same regardless of the ground on which the complaint was terminated by the delegate. Ms Prior decided, presumably with the benefit of legal advice from the experienced firm of employment lawyers who are acting for her, to commence proceedings against all of the respondents. That was a choice which the AHRC could not have denied her, regardless of what view was expressed by the President or her delegate as t the merits of the claim at the time the complaint was terminated.

The second is that Ms Prior’s complaint is still continuing against four of the respondents (including QUT, who are also represented by highly experienced employment lawyers). Those respondents did not seek to have the claims against them struck out summarily, which suggests that Ms Prior’s claim as a whole could not be properly have been described, at the time the complaint was terminated, as hopeless.

The case proves that section 18C is terrible and must be abolished

Good luck trying to make that one work, given the basis on which the respondents succeeded in convincing the court to dismiss the claims against them. The two respondents who succeeded on the basis of the Court’s analysis of section 18C succeeded on the basis that (a) their Facebook posts were not made “because of” Ms Prior’s (or anyone else’s) race and (b) the posts were not reasonably likely to give rise to offence, insult, humiliation or intimidation.

In making those findings, the Federal Circuit Court expressly referred to the jurisprudence of section 18C to the effect that the section does not extend to “mere slights” but requires “profound and serious effects”. (This is jurisprudence which needs to be mostly ignored in order to advance the case that the words “offend” and “insult” somehow create an overly broad restriction on free speech).

The final respondent succeeded on the basis that there was no evidence that he had made the Facebook post alleged to constitute the breach of section 18C, which has nothing to do with the section, and everything to do with orthodox principles of establishing a “no case to answer submission”. In any litigation, successful defendants will feel aggrieved at having been put to the time and expense of defending claims which failed. However, the fact that a claim fails does not mean that the law used to bring the claim should be demolished.

No-one sensibly suggests dismantling the law of defamation every time a defamation plaintiff loses, or suggests tearing up the law of torts every time a personal injury plaintiff is unsuccessful. For the same reason, it is hard to see any sensible legal basis to suggest that the decision of the Federal Circuit Court last Friday should affect anyone other than the parties to the claim. If only the ability to distinguish “sensible legal basis” from “nonsense” was a precondition to publishing on the topic of section 18C . . .

Angus Macinnis is a Sydney lawyer who tweets as @AequoEtBono and who has been acting in discrimination matters, both for complainants and respondents, for more than 15 years.

These views are his personal views and are not the views of his employer. This material is in the nature of general comment only and is not legal advice – Angus is not involved in the case and the views expressed have been derived solely from publicly available material.

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