Why Abolish 18C? Consider This Vexatious Complaint’s Threat To Free Speech

Written by:
28 September 2017
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When the legal affairs editor of this paper, Chris Merritt, sent a carefully worded reply on March 9 to an email he had received two days earlier, that should have been the end of a matter involving what can fairly be described as a mild-mannered response to abusive hate mail.

Instead, the relevant series of emails is about to become the latest chapter in the story of Australia’s notorious anti-free-speech law, section 18C of the Racial Discrimination Act.

Attempting to single out any one element of this case for special treatment is a difficult task, but it is a laughable indictment of this dreadful law that Merritt, Janet Albrechtsen and Hedley Thomas (to whom some of the original emails were sent) are defendants in this case, rather than plaintiffs.

The reason this is so perplexing is that it was the original recipients who were vilified on grounds of “race, colour, or national or ethnic origin”, not the sender.

And yet the plaintiff is Sokhom Prins — the author of emails referring to writers at The Australian as members of a “WHITE RACIST POSSE”.

I have always thought the use of capital letters really lends an air of credibility to the written word. It is very effective use of language by Prins.

In a rare display of sensible judgment, the Australian Human Rights Commission dismissed the complaint when it first came across the desk of the bureaucrats whose job it is to decide whether feelings have been sufficiently hurt to usher the complaint through a convoluted series of supervised discussions between the complainant and the alleged offender.

In the letter to Prins explaining the commission’s reasons for dismissing the complaint, officer Jodie Ball stated: “The information you have provided to the commission is confusing and not easy to understand … The commission has spent considerable time trying to make sense of your correspondence.”

That is a lawyerly way of explaining that the Prins document was more of a rant than a carefully considered, quasi-legal statement of complaint.

Despite having been dismissed at the first hurdle, the complaint has now been advanced by Prins to the Federal Circuit Court.

Of course, if you are unable to express your complaint in clear enough language that others can understand, it is pretty unlikely that your claim will be successful. So Prins’s demands for the removal of the offending column (Merritt’s email response to Prins was published in this paper) and $1.6 million in damages are more than likely to be rebuffed by the court.

But the dismissal of this complaint should not be seen as validation of section 18C.

Even if the matter is withdrawn by Prins tomorrow, there have still been significant costs incurred by the defendants.

The time and energy already expended on this case will never be recovered.

And the money spent engaging lawyers is unlikely to be recouped, even if the court makes a costs order against a complainant.

Many of those who are in favour of the state dictating the limits of public discussion via the operation of section 18C will no doubt point to the marginal amendments that were made to the administration of the law earlier this year.

One of those changes was a new requirement that if a case had previously been dismissed by the Human Rights Commission for being “trivial, vexatious, frivolous, misconceived, or lacking in substance”, it could only advance to the Federal Circuit Court with leave of the court.

But Prins filed her complaint before those changes came into ­effect. Some will therefore argue that the new regime will not allow for a vexatious complaint to drag on as this one has.

But that relies on the Human Rights Commission dismissing cases such as this for being vexatious. And while it might seem obvious to the casual observer that complaints of this kind meet that requirement, this is not common practice for the AHRC. That a case may be dismissed for a reason other than being vexatious would not be ­unusual.

Fifty of 55 complaints under the Racial Discrimination Act in 2015-16 were dismissed because there was “no reasonable prospect of conciliation”. Just three dismissals in the last year fell under the vexatious category, with another two complaints dismissed for other reasons.

The upshot is that the procedural amendments made by parliament will knock out only a tiny proportion of complaints, without providing sufficient protection for free speech.

This latest example bolsters the argument for the repeal of section 18C.

Newspapers, journalists, columnists and students at university will not be free to express themselves until this dangerous law is removed in its entirety from the commonwealth’s statute books.

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