campusreview. com. au
ON CAMPUS
“ I disapprove of what you say but I will defend to the death your right to say it.” This quotation is often attributed to Voltaire. Freedom of speech has a fundamental role in a democratic society. But what are the limits of this human right? And what is the proper forum for these limits to be tested?
In early November 2016, the Federal Circuit Court of Australia dismissed an application made by a student at Queensland University of Technology( QUT) alleging a breach of the racial hatred laws contained in section 18C of Australia’ s Racial Discrimination Act. Section 18C makes it unlawful to“ offend, insult, humiliate or intimidate” another person or group of people because of their race.
The QUT case arose following comments posted on social media by a student who was asked to leave a computer room set aside for the exclusive use of Indigenous students. The decision has attracted media attention and has contributed to the establishment of a review of the racial vilification provisions in the Racial Discrimination Act.
The Commonwealth attorney-general recently announced a parliamentary inquiry that will, among other things, consider whether Part IIA of the Racial Discrimination Act imposes an unreasonable restriction on freedom of speech in this country. The committee has been asked to provide its report by the end of February 2017.
The presiding judge, Michael Jarrett, annexed to his judgement the chain of posts in which the respondents participated, some of which were said to offend against section 18C. The posts are reflective of the type of comments that have become all too familiar with the introduction of social media. A number of these comments might be said to be offensive, and not only on racial grounds.
The following comments were ultimately the subject of the proceedings and allegations of a breach of section 18C:
•“ Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation …?
•“ I wonder where the white supremacist computer lab is …”
•“… it’ s white supremacist, get it right. We don’ t like to be affiliated with those hill-billies.”
•“ Today’ s your lucky day, join the white supremacist group and we’ ll take care of your every need!”
•“ ITT n ….. s.”( Editor’ s note: it is unclear what is meant by“ ITT”, and the N-word was written in its entirety in the original correspondence.)
The QUT decision is interesting for a number of reasons. First, it was made at an early stage in the proceedings, before all the evidence was put before the court. A court has the power to dismiss part or all of an application when it is satisfied that the applicant has no reasonable prospects of success. Having reviewed the material that was before him, the judge was satisfied that the claims made against three of the students had no prospect of success and he therefore dismissed them.
In relation to the‘ ITT n ….. s’ comment, Jarrett accepted that the student who was alleged to have made the post in fact did not do so, and dismissed that claim. At the time of press, the proceeding was continuing against the remaining respondents.
A review of the complete chain of posts raises one of the central issues in this context and that is: what level of offence should be tolerated in a civil and free society in which different views should be able to be expressed?
On one hand, it could be argued that, in this particular case, the facts simply did not meet the requisite threshold to attract protection under section 18C. On the other hand, however, this case highlights that the law can be a blunt instrument when seeking to set and uphold standards of behaviour.
The very existence of section 18C assumes a common set of values that underpin it. Indeed, in the absence of a common understanding of what is acceptable, the question arises as to whether a law such as this, which seeks to enforce notions of appropriate behaviour, can ever be effective. Normative laws ultimately require voluntary compliance by the majority and enforcement against only a few.
One of the issues Jarrett had to consider in determining whether or not there was a breach of section 18C in this instance was whether there was a connection between the allegedly offensive comments and the race, colour and / or national or ethnic origin of the complainant; or of some or all of the people in the complainant’ s ethnic or racial group who might be offended by the comments. The judge was not satisfied that this connection was established.
For example, in relation to the‘ segregation’ comment, Jarrett pointed to the evidence given by the student concerned that the reason for this post was, among other things,“ his moral abhorrence to racial discrimination and his concern that‘ racial segregation was policy administered on the campus of my university’.” This evidence was given on oath and, in the absence of any evidence to the contrary, was quite rightly accepted. On this basis, Jarrett accepted that the necessary connection was not established.
However, anti-discrimination laws at both the state and federal level have long recognised the concept of special measures as a means of providing actual rather than notional or nominal equality. In other words, it may be necessary to take affirmative action for people who have suffered a historical social disadvantage. A special measure, therefore, does not amount to unlawful discrimination. The provision of a computer room that only Indigenous students can access could quite properly constitute a special measure and does not, of itself, amount to segregation. There was no suggestion in the court’ s judgement that Indigenous students could only use the Indigenous computer room, rather the Indigenous students-only computer room was exclusively reserved for use by Indigenous students. This is an important distinction.
It is entirely appropriate to review how laws operate and whether they properly serve their purpose or require amendment, and to that extent the review into section 18C should be welcomed. A debate in relation to section 18C requires consideration and balance between the needs of a civil society to encourage the free expression of ideas and not vilifying individuals or groups. The challenge is to determine whether there is a common understanding and acceptance of where that line is to be drawn in Australia in 2016. If section 18C is not the correct mechanism by which to regulate civil public discourse, then what is?
All rights come with corresponding responsibilities, and freedom of speech is no different. As members of a civil society, we all share a responsibility to protect the ability to express ourselves freely, while recognising that what we say can and does affect others. Speech may be free, but it is not without consequence. ■
Patrizia Mercuri is a workplace relations lawyer specialising in discrimination and human rights law at Lander & Rogers Lawyers.
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