Identity politics, political correctness and s18C

Last Friday, the Federal Circuit Court of Australia dismissed a claim brought by former Queensland University of Technology employee Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth).

The facts

The claim arose from events on 28 May 2013, when some students were kicked out of a computer lab reserved for Aboriginal students by Ms Prior.

QUT student Alex Wood posted the following comment on Facebook:

Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?

Another student named Jackson Powell joined in with this comment:

I wonder where the white supremacist computer lab is

A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.

The law

Section 18C(1) of the Racial Discrimination Act makes it unlawful to do an act otherwise than in private if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, colour or national or ethnic origin of the other person.

Section 18D of the Act provides a defence if the act in question is artistic work, is for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest, is a fair and accurate report of any event or matter of public interest or a fair comment on any event or matter of public interest, if the comment is an expression of a genuine belief held by the person making the comment. A famous case of when section 18C resulted in a successful action was in the case of Eatock v Bolt [2011] FCA 1103 (28 September 2011). In that case conservative columnist Andrew Bolt was found to have contravened s18C by writing mocking columns concerning a handful of individuals of part Aboriginal descent who identified as Indigenous.

Judge Jarrett’s decision

Judge Jarrett found that the abovementioned comments by Wood and Powell were not reasonably likely to offend, insult or humiliate. Wood saying that he had been kicked out of a computer lab for not being Indigenous was a statement of fact. Powell’s comment asking about a computer lab for white supremacists was a poor attempt at humour and nothing more. Judge Jarrett accepted that Thwaites was not responsible for the Facebook post which contained the word ‘nigger’. For these reasons the claim was dismissed.

Why s18C needs to be reformed

This case arose from comments made on social media by students expressing understandable displeasure at having been thrown out of a computer room on the basis of their race. It is astounding that the Facebook comments in question resulted in a three year legal journey, including conciliation at the Human Rights Commission and proceedings in the Federal Circuit Court of Australia. Far more offensive things are said and done every day which do not result in any legal processes, and few would suggest that they should.

However, it is wrong to suggest that Ms Prior’s claim was vexatious. Although Judge Jarrett found in favour of the students, Prior still did have an arguable case. The comments in question could arguably have been likely to offend, and did in fact obviously upset Prior. For this reason, the case highlights and demonstrates the need to repeal or amend section 18C in order to prevent similar claims being brought in future.