The long-awaited decision in Cynthia Prior v Queensland University of Technology (No 2) was handed down last Friday.
Perhaps no other Australian decision has received so much sustained media attention this year.
On one view, this is somewhat surprising, given that it is a Federal Circuit Court decision dealing with an application of summary dismissal.
On another view, of course, this is unsurprising, given that it deals with the application of the Racial Discrimination Act 1975 (Cth) section 18C – easily the most famous statutory provision in Australia.
This section has been a matter of ongoing public controversy since the decision of Justice Bromberg in Eatock v Bolt.
The decision in Prior v QUT was not entirely surprising in light of the facts and the law. Some of the reasons given were more convincing than others.
Judge Jarrett found that, in relation to the words published by the fourth respondent, Alex Wood, they were directed at QUT, rather than Prior and were “rallying against racial discrimination”, such that the conduct was not reasonably likely to offend, insult, humiliate or intimidate a hypothetical person in the position of Prior or a member of the group identified by Prior; the conduct was not undertaken because of the race, colour or national or ethic origin of Prior or the group she identified; and that the words were akin to a “mere slight”, thus did not have the profound or serious effects even to engage s18C.
In relation to the words published by Jackson Powell, Judge Jarrett found that, viewed in context, they were “a poor attempt at humour”, such that they were not reasonably likely to offend, insult, humiliate or intimidate a hypothetical person in the position of Prior or a member of the group identified by Prior.
Judge Jarrett also reached a similar conclusion in relation to Powell’s words as he did about Wood’s words about whether the conduct was undertaken because of the race, colour or national or ethnic origin of Prior or the group she identified and whether they constituted a “mere slight”, as opposed to having profound or serious effects.
In relation to the words attributed to Calum Thwaites, Judge Jarrett found that there was no evidence that he published the words, sufficient to prevent the claim against him being summarily dismissed.
Whether the decision of Judge Jarrett was to dismiss summarily, or to allow to continue, Prior’s claim was never going to quell the controversy about s18C.
On Tuesday, the Commonwealth Attorney-General, senator George Brandis, announced a reference to the parliamentary joint committee on human rights to inquire into s18C and the often neglected s18D.
Despite the reported attempts of certain government members, including senator Dean Smith (pic) from Western Australia, to broaden the terms of reference to include other challenges to freedom of speech, the focus is squarely on the provisions of the RDA.
The sustained debate about s18C demonstrates, in the absence of constitutional or statutory bills of rights, what the political contest over human rights looks like.
It also demonstrates that the debate about freedom of speech in Australia can be unduly narrow in focus.
It is difficult to credit that s18C is the only or even the most important encroachment on freedom of speech in Australia, yet the volume of commentary devoted to this topic over the past five years would convey the clear impression that it is.
It is difficult to believe that the reform or the repeal of s18C will have a significant impact on freedom of speech in Australia. This is not to say that there are not problems with s18C and s18D or with the processes for the handling of complaints within the Australian Human Rights Commission.
Rather, changing or repealing s18C and s18D will only effect an incremental change to freedom of speech in Australia because these sections apply only to racial speech.
There are so many other forms of speech that occur every day and so many other legal encroachments and inhibitions upon them.
A genuine commitment to freedom of speech necessitates a broader engagement with the challenges beyond the narrow issue of s18C.
*Dr David Rolph lectures in media law at the University of Sydney Law School. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008) and the co-author of two editions of Media Law: Cases, Materials and Commentaries. Australia (Oxford University Press, Australia 2010 & 2015). His fourth book is Defamation Law (Thomson Reuters, Australia 2015).
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication and is reproduced with permission and thanks