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Alan Austin does himself a disservice

By Calum Thwaites - posted Tuesday, 5 September 2017


In a piece in Independent Australia Alan Austin makes some serious allegations regarding the coverage of the QUT Section 18C case by Murdoch-owned media outlets.

His article – interspersed with seemingly random embedded tweets – states that in reporting the QUT case, 'Murdoch media outlets have falsified the facts, taken advantage of the vulnerable students, distorted the court judgments and impugned the AHRC'. But is this the case?

The only 'vulnerable students' of whom any 'advantage' was taken are the ones who were blackmailed into paying 'hush money' – at the rate of $5,000 per head – to Ms Prior. The three students who successfully resisted Ms Prior's demands are more than grateful for the backing which they received from their legal teams, from the wider Australian community, and especially from the only media outlets which offered them any form of moral support.

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Despite asserting that facts were falsified, Austin does not identify a single example of falsification. He offers no comparison of the facts as reported by The Australian and other Murdoch media outlets with what Austin apparently believes to be the true facts.

If Austin is keen to do a 'Media Watch' review of reporting on the QUT case, he would do well to refresh his memory of the ABC's and Fairfax media's coverage. Having consistently ignored the story for a full 6 months, the ABC and Fairfax entered the fray only when the case was nearing its conclusion, and it had become apparent that they had failed in their ongoing attempts to shield the AHRC and its President from richly-deserved scrutiny. What coverage they belatedly produced was riddled with glaring factual inaccuracies, and patently skewed to paint the AHRC, and especially Gillian Triggs, in the most favourable light possible. On the one occasion that students were offered a 'right of reply', to an interview in which Triggs had misrepresented the facts with conspicuous creativity, the reply was never broadcast.

But Austin's approach is different. He uses a so-called 'case study'. This shows that the actual intent of his piece is to advance an argument he was having on Facebook – an argument between Austin and a 'prominent citizen with strategic influence' who, as he contends, has been duped by the campaign of the dastardly Murdoch media outlets.

A number of Austin's statements are in desperate need of correction. In responding to the 'assertions' of Mr Geoff Kelly, Austin himself makes these assertions:

1. 'The AHRC has no power to start or stop litigation. The AHRC had terminated all involvement with Ms Prior on 25 August 2015. She commenced Federal Circuit Court proceedings in October 2015. This is clear from court records and the AHRC's detailed chronology.'

2. 'All the evidence is to the contrary' of Kelly's 'assertion' that Cindy Prior 'was actively encouraged and groomed to make and proceed with that complaint' under Section 18C by the AHRC'.

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3. 'It was never the role or responsibility of the AHRC to inform or involve the students in the legal action. QUT insisted, correctly, this was its role.'

4. 'In none of the three judgments by two judges was any criticism made of the AHRC in any way, shape or form.'

Each of these assertions is either a falsification or a distortion of the facts – or is simply wrong.

1. Whilst the AHRC does not have power to start or stop litigation, it does have the power to terminate complaints on a number of different grounds. One such ground, provided under section 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) at the time the Prior complaint was afoot, is that the President is satisfied that the complaint is trivial, vexatious, misconceived or lacking in substance.

Termination on this ground sends a much different message to a complainant than the standard termination, under section 46PH(1)(i), because the complaint was not successfully conciliated. Termination of a complaint by reason of its being trivial, vexatious, misconceived or lacking in substance – especially at an early stage of the process – will send a message to the complainant that the complaint is just that, and is unlikely to go far in a court.

2. Where does one find 'All the evidence' which, as Austin assures us, 'is to the contrary'? Does Austin even have access to the emails between the AHRC and Ms Prior's solicitors? Because that correspondence, as obtained under FOI, shows the AHRC being extremely accommodating to delays by Ms Prior and her lawyers in the providing of settlement offers and information to the AHRC.

3. It is true that, at the time of the Prior complaint, the commission did not have any specific statutory requirement to notify respondents of complaints. This is no longer the case, with statutory amendments which expressly require notification to respondents.

But it beggars comprehension that a journalist of Austin's experience obviously believes that the AHRC can perform its statutory duties – its duties, as required under section 46PF, to inquire into, and attempt to conciliate, each and every complaint – when seven of the ten respondents to the complaint have no knowledge that it even exists. It would be particularly hard to inquire into a complaint with only the word of the complainant and 30% of the respondents, especially when the allegations against the remaining 70% of respondents relate to entirely different issues. Maybe that's why no actual inquiry occurred in respect of the Prior complaint.

The assertion that QUT insisted, 'correctly', that it was their role to inform the students of the complaint is directly contradicted by the very document upon which Austin relies to support this assertion. Even QUT admits that:

'While such notification is not in fact a responsibility of the university but of the AHRC and/or the complainant, QUT wanted to facilitate the notification process to avoid the need for the students' personal information including contact details being provided to the complainant or to the AHRC without their knowledge or consent.' [emphasis added]

One could almost be persuaded that QUT was trying to protect the students, if it were not for the fact that, at the stage when notification actually occurred, the complaint had been before the AHRC for 14 months; it had been subject to discussion between Ms Prior and QUT (and their respective lawyers) for 26 months; and it was scheduled for a conciliation conference three business days after notification took place. QUT was not the employer of any of the students, and has rightly maintained that it had no liability for the alleged actions of the students. So it can hardly be said that it was QUT's 'role or responsibility' to notify them.

4. The judgement of His Honour Justice Dowsett does, in fact, criticize the AHRC. Maybe the criticism is couched in more subtle language than Austin is used to hearing, but to say that there was no 'criticism … of the AHRC in any way, shape or form' is a demonstrable falsity. In Prior v Wood [2017] FCA 193, Justice Dowsett said at paragraph 59:

'Where there has been delay, the overall history of the matter may be important. I have already pointed out the delays between the occurrence of the conduct in question and the commencement of these proceedings. I should add that Mr Wood and Mr Thwaites only became aware of Ms Prior's complaint in late July 2015. Mr Powell became aware of it in late August 2015. It seems that Ms Prior's solicitor, QUT and the Commission all knew that the respondents had not previously been notified of the proceedings in the Commission. To say the least, it is surprising that those parties assumed that it was appropriate to proceed in that way. Although the respondents do not allege prejudice flowing from the delay in applying for leave to appeal, one cannot but wonder why they were so treated.' [emphasis added]

Austin's article is intended to 'refute' claims by Geoff Kelly which Austin alleges were false. However, it is Austin himself who is exposed as peddling 'fake news'.

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This article is a response to one in Independent Australia, but it refused to publish this response, and we have a keen interest in free speech matters.



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About the Author

Calum Thwaites is a law student. He was one of the seven students sued by Ms Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth).

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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