By Zeb Holmes
Three students and two staff members from the Queensland University of Technology (QUT), and the University itself, could be liable for substantial damages if a case of racial discrimination against them is successful.
The proceedings arose in response to a Facebook post by student Alex Wood, which he wrote after being asked to leave a University computer room reserved for Indigenous students.
“Just got kicked out of the unsigned Indigenous computer room. QUT is stopping segregation with segregation,” he posted on a publicly accessible page called “QUT Stalker Space”.
Two other students are said to have joined in, posting phrases like “ITT N—-s”
Cindy Prior, an administrative officer in the Oodgeroo Unit at QUT’s Gardens¬ Point campus, is taking action for suffering “offence, embarrassment, humiliation and psychiatric injury¬”, as well as ongoing fear for her safety, as a result of the posts.
Ms Prior took sick-leave after the incident. She reports feeling unsafe outside her home, and is said to be unhappy that the University refused her request for a daily security guard. She reports being unable to perform her role as an administrator as a result of the stress she has suffered.
She is reported to be claiming damages in the sum of $247,570.52.
Racial Discrimination Act
Ms Prior’s action is being brought under section 18C of the Racial Discrimination Act, which states:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Mr Wood’s lawyer contends that his client’s post was a factual and innocuous statement made after he had been ejected by Ms Prior “in a manner which he perceived to have been aggressive and unpleasant”. He adds, “It is not directed at any person but rather at QUT itself as a critique of their policy of mandating substantive segregation.”
Even if Ms Prior were to overcome the significant hurdle of establishing that the statements fell under the section, the students may be able to reply upon section 18D which provides an exception where “a fair comment on any event or matter of public interest is an expression of a genuine belief held by the person making the comment.”
The question might then turn to whether the University’s policy of giving exclusive facilities to one group of students is a “matter of public interest”
Complaints under the Racial Discrimination Act must go through a conciliation process before Federal Court action can be commenced. Over half of all section 18C cases are resolved during conciliation.
In the present case, it has been found that there is “no reasonable prospect of the matter being settled by conciliation” and proceedings have been filed in the Federal Circuit Court.
Criticism of Complaint
Some believe the case – and others like it – are making a mockery of section 18C, a section which should be reserved for serious cases of racial vilification rather than for persecuting those who express legitimate grievances.
The possibility of being sued for “offending, insulting, humiliating or intimidating” someone because of their “race, colour or national or ethnic origin” makes the section too broad, according to some. Indeed, the Abbott-led Federal government sought to have the section removed from the Act, describing the words as “hurt feelings.” In proposing the changes, Senator George Brandis said “It is not, in the government’s view, the role of the state to ban conduct merely because it might hurt the feelings of others.” However, the government later changed its mind in the face of fierce opposition.
More recently, the Turnbull-led Federal government has proposed to remove the words “offend” and “insult”, but keep “humiliate” and “intimidate”. The changes are yet to pass through Parliament.
It should be borne in mind that individuals are entitled to bring actions against others for a range of causes – but whether those actions are ultimately successful is another matter entirely.
Although the full facts of Ms Prior’s case are not known, if media reports are anything to go by it appears unlikely she will be able to overcome the initial hurdle of establishing that Mr Wood’s “act was done” due to Ms Prior’s race. It appears more likely it was done due to his frustration with University policy and/or with being thrown out of the computer room.
If Ms Prior were to overcome that significant hurdle, Mr Wood could potentially rely upon the “fair comment on any event or matter of public interest” exception under section 18D.
All in all, there is an argument that the current state of the Act strikes a fair balance between promoting free speech and discouraging hate speech.