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Racial discrimination controversies expose political calumny

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The Federal Government is willfully misrepresenting the role of the Human Rights Commission in an attempt to undermine a public institution, writes Michael Jacobs.

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The Prime Minister has been a highly successful lawyer. His Social Services Minister Christian Porter likewise; he has been Attorney-General of Western Australia.

Yesterday, the Prime Minister said: “I think the Human Rights Commission has done great harm to its credibility by bringing the case against the Queensland students.”

On Friday, Mr Porter was reported as having “expressed disbelief” that the case had been allowed to go so far – and as blaming the Australian Human Rights Commission.

Neither of these men can claim in good faith that they did not know that what they were saying was nonsense.

A refresher on the background: both men were commenting on a decision last Friday by Federal Circuit Court Judge Michael Jarrett. Judge Jarrett ruled against a claim by a Noongar woman, Cindy Prior, for compensation from students who had posted on Facebook their reactions to being excluded by her from a computer laboratory at the Queensland University of Technology that had been set aside for indigenous students.

The unhappy, and, in the end, tragic episode occurred in 2013. Cindy Prior’s claim was made under section 18C of the Racial Discrimination Act.

If Mr Turnbull did not know until last night that the Human Rights Commission did not bring the case, has no power to bring the case, and has no power to stop it being brought, he is culpably ignorant. It is part of his job to know. If he is deficient in that respect, he is also lazy. It would have taken him, as a trained lawyer, about two minutes to find out. That is as long as a trained eye needs to skim the relevant sections of the legislation.

There is simply no excuse for what he said.

As for Mr Porter, it would be impossible to make sense of his incredulity that the case was “allowed” to go so far unless he is saying that the lawyers for the respondents to Ms Prior’s complaint were dilatory, and should have moved much more quickly to seek an order for summary dismissal of the claim.

But there is no basis in anything I have been able to read for thinking that this is what he meant. By contrast, there is a firm basis, in the form of what he said on ABC’s Lateline, for understanding that he was aiming his darts straight at the AHRC.

… an aggrieved person who wants to pursue a legal remedy is under no obligation to involve the HRC at all. They can charge straight off to court if that is their preference.

The clear intent of all their disingenuous palaver is to give comfort to those who believe there is something dreadfully restrictive about section 18C of the Racial Discrimination Act, and those who harbour some weird Trumpish conspiracy theory about the Human Rights Commission.

As to section 18C, it is quite simple – but you do have to read Section 18D as well.

18C makes it unlawful to do an act, other than in private, if that act falls within each of two descriptions:

18D says this:

18C will not catch you if what you said or did was reasonable and done in good faith in any one of the following three situations:

So it makes no sense to even think about 18C if we do not think about 18D at the same time, because 18D wipes away most of the situations that 18C critics are worried about.

Anyone who wants more detail about how these two sections operate can find it in an InDaily piece from September: Race law reformists miss the mark.

But even worse than the wilful misunderstanding of Sections 18C and 18D is the wilful misunderstanding of the role of the Human Rights Commission.

It is true that the Human Rights Commission invites people who are aggrieved by statements which may fall foul of 18C to bring their complaints to the commission. It is also true that the commission does not instantly reject many complaints.

But that is because the HRC’s only role in these situations is to try to conciliate the complaint. It is surely right that the bar for attracting the HRC’s good offices should be low. The HRC offers a no-costs, informal forum to assist people to try to come to terms about what has happened, and what should happen next.

It is explicitly not part of the role of the HRC to make a preliminary finding about whether someone who wants to go to court has a case.

Indeed, an aggrieved person who wants to pursue a legal remedy is under no obligation to involve the HRC at all. They can charge straight off to court if that is their preference.

Let us be quite clear: the episode in 2013 was personally catastrophic for Cindy Prior. A decision had been made to reserve the computer room for indigenous students. Ms Prior was a member of staff. She gave effect to that decision. She was doing her job. A tangled and unpleasant aftermath involving some students and QUT itself is linked to quite devastating emotional and practical consequences for her. The long duration of the controversy cannot have helped.

It is inconceivable that the Australian Human Rights Commission would have, or should have, excluded a person so apparently traumatised from its capacity to try to achieve some sort of healing process.

It proved, after an unusually long time, to be beyond reach of conciliation – although, as AHRC president Professor Gillian Triggs told the ABC’s 7.30 last night, commission staff believed for about a year that there might be a pathway to conciliation. In the end, there was not.

And then someone advised Cindy Prior to proceed to court – and to seek the unusual remedy of monetary damages.

Does anyone seriously believe that, if the AHRC had washed its hands of the matter more quickly, Ms Prior would have been less likely to seek a legal remedy?

Of course not.

And so now we have the bizarre spectacle of the Prime Minister publicly, and some of his ministers more surreptitiously, trailing their coats about setting up some process for fiddling with Section 18C – a matter which is to be thrashed out – what! again? – in the party-room.

For those of us who are old enough, it is eerily reminiscent of the worst and most chaotic days in the early years of the Whitlam government, when ministers who had been rolled on some point in Cabinet would try to get the Cabinet rolled in turn by the caucus, and would leak to the media as part of the lunatic process. In that context, as in the present context, the use of the term “leak” is an ironic and despairing understatement.

This is not the way government should be conducted.

What is more, it is no part of the proper business of government to get involved in traducing governmental institutions. Even the rueful leaders of the Republican Party now understand that.

Michael Jacobs has been a political journalist and commentator intermittently since 1971. He is also a former lawyer and public servant.

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