Federal Circuit Court Summarily Dismisses QUT Section 18C Case

Monday 7 November 2016 @ 12.44 p.m. | Legal Research

A widely publicised case involving the controversial section 18C of the Racial Discrimination Act 1975 (Cth) has been summarily dismissed by the Federal Circuit Court of Australia.  Ms Prior, an administrative officer at the Queensland University of Technology, brought the case against three students who participated in a Facebook thread on the page “QUT Stalker Space”.  The thread was started after a group of students, including the fourth respondent, was refused access to computers in the Oodgeroo Unit, an indigenous space at the University.  Ms Prior argued that the postings made by the students violated section 18C(1) of the Act.  However, Federal Circuit Court judge Michael Jarrett found that her claims had no reasonable prospects of success and summarily dismissed the case.

The judgment is likely to be heavily referenced in the ongoing discussion into the operation of section 18C (see TimeBase’s previous article on a Private Member's Bill to repeal the section).  Liberal senator James Paterson told ABC News that the case illustrated why legislative change was needed:

“While I am relieved the judge has finally declared the students have no case to answer, they should never had been subject to such an appalling legal process… The judgement doesn't give them back that time, or their reputations, or the stress of having to endures these false allegations and defend themselves.”

The Decision

Three of the respondents, Mr Wood, Mr Jackson and Mr Thwaites, filed defences to Ms Prior’s application, including the summary dismissal applications that were considered in this judgment. 

Ms Powell’s claim involved both a personal offence claim and a group offence claim, identifying the groups as “Aboriginal and Torres Strait Islanders students of the first respondent” and “Aboriginal or Torres Strait Islander people”.   Judge Jarrett rejected senior counsel for Mr Powell’s argument that “at it was incumbent upon Ms Prior to prove to the requisite standard that the words about which she complains were reasonably likely to offend, insult, humiliate, or intimidate all members of the groups identified by her” [at 34, emphasis in original].  He said:

“The task of the Court in a case of group offence is to identify a hypothetical representative of the group or groups to whom it was suggested the impugned conduct was directed: Eatock v Bolt at [250] and the authorities there cited. The Court must carry out the necessary assessment by reference to that hypothetical representative.” [at 37]

Judge Jarrett then considered the case against each respondent separately.  The fourth respondent, Mr Wood, published the original post, in which he said “Just got kicked out of the unsigned indigenous computer room.  QUT stopping segregation with segregation…?”  His Honour found that it was not reasonably likely that a hypothetical member of the groups identified by Ms Prior would feel offended, insulted, humiliated or intimidated by Mr Wood’s words, as “Mr Wood’s words were directed to QUT and its actions; and… Mr Wood’s words were rallying against racial discrimination.”  He also agreed with Mr Wood’s evidence that he did not make the post because of Ms Prior’s “race, colour, nationality or ethnic origin”, but rather because he generally objected to the concept of being excluded from a facility.  His Honour also said that:

“s.18C(1)(a) is only concerned with profound and serious effects, not mere slights.  To the extent that Mr Wood’s post is capable of being seen as offensive or insulting or amounting to humiliation or intimidation, in my view the effect of that is such that it might be described as a “mere slight”. In my view, Mr Wood’s post on any assessment is outside of the range of conduct which might attract the operation of section 18C(1)(a).” [at 57]

The sixth respondent, Mr Powell, wrote three posts in the comment thread, including “I wonder where the white supremacist computer lab is” and “[to the ninth respondent] today’s your lucky day, join the white supremacist group and we’ll take care of your every need!”  While Judge Jarrett found that the “racist ideology” of white supremacists was “plainly offensive and insulting” [at 62], he considered that Mr Powell’s posts considered in context were “a poor attempt at humour” [at 65]. Similarly to Mr Wood, His Honour concluded that Mr Powell’s Facebook posts were not likely to offend, insult, humiliate or intimidate, and that the posts were not because of Ms Prior’s race, colour or national or ethnic origin.

The seventh respondent, Mr Thwaites, denied posting the comment attributed to him and that was his primary reason for seeking summary dismissal.  Judge Jarratt said that he provided “evidence that demonstrates, on a prima facie basis, that he did not post and could not have posted the relevant message” [at 73].  He found that there was no proof that Mr Thwaites was responsible for the post, which he described as “merely unsourced documentary hearsay, placed on the computer screen through the agency of Facebook” [at 75].

Judge Jarrett dismissed the proceedings against each of the three respondents.

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