Back the 18C amendments or face another QUT fiasco

The QUT students’ case under section 18C of the Racial Discrimination Act was an appalling injustice.

Across the political spectrum, everyone agrees the Queensland University of Technology students’ case under section 18C of the Racial Discrimination Act was an appalling injustice. Everyone says they want to ensure a case like it never happens again.

But in indicating support only for changes to the Human Rights Commission processes, and not the law itself, Labor, the Greens and some crossbenchers are ensuring it is only a matter of time before we see the next QUT case.

Any one of the 71 18C complaints before the commission run the risk of being the next QUT case if the government’s proposed amendments to the law do not succeed. It is instructive to consider how the QUT case would have proceeded had the government’s suggested process changes been in place, but 18C remained as it is today.

Thanks to a requirement to notify all parties, the students would not have been unaware for 14 months of a complaint against them. Thanks to the new time limit to make a complaint within six months, the complainant, Cindy Prior, could not have waited a full year before starting the process. The new 12-month guideline for conducting investigations and conciliations might have further shortened the process.

But increased powers and requirements for the president of the commission to dismiss weak cases may not have helped, given commission president Gillian Triggs has said publicly she and the commission believed the QUT case “had a level of substance”. This is why she didn’t use her existing powers to terminate the complaint.

But even if the commission had terminated the case, the new requirement to seek leave to proceed to court action — and the risk that costs might be awarded — would not have stopped the QUT case from ending up in the courts.

We know this because even after Prior lost in the Federal Circuit Court, and had substantial costs awarded against her, she sought leave to appeal the case to the Federal Court.

So what would have changed for the three students, Calum Thwaites, Alex Wood and Jackson Powell, who successfully defended themselves over this four-year legal saga?

Certainly, the process during the investigation and conciliation phase would have been quicker, more transparent and fairer. But it is virtually certain it still would have ended up in the courts.

They still would have had to rely on their pro-bono lawyers Tony Morris QC and Michael Henry to represent them. Their lives and careers would have still been seriously disrupted and damaged.

Process changes alone would have been of even less assistance to one of the most troubling, but least publicised aspects of the saga.

Three students were pressured into reaching financial settlements with Prior to be removed from the court action. It has been reported that they paid $5000 each because of the fear of the consequences of being accused of racial vilification, the costs of defending themselves in court, and the risk that they ultimately might have lost.

Other than fully repealing section 18C, the only reform that could have aided these students is a revised 18C that strikes a better balance between preventing racial abuse and protecting free speech.

Had the law at that time not been preoccupied with offence, insult and humiliation, and was instead targeted at harassment and intimidation, these students may have felt more confident about their ability to successfully defend themselves in court.

It would have also been much clearer to the applicant, and her lawyers, that their prospects of success in court were slim.

It is impossible to know whether this would have been sufficient to discourage the action in the first place. But we can be sure that applicants with marginal cases will be less confident about proceeding with their complaints under the revised law.

If the parliament rejects the government’s amendments to 18C, it is only a matter of time before there is another case like QUT. When that happens, we will have this debate again. And the public’s sympathy for this flawed and discredited law will be even less than it is today.

It would be much better to fix this law now, ensure there are no more cases like QUT, and make sure that the serious conduct that no Australian wants to see remains unlawful.

Only the full package of government reforms to Human Rights Commission processes and 18C can achieve that.

Any politician who says they want to prevent the next QUT case, but votes against these reforms, must accept responsibility for the next university student, cartoonist or journalist to have their lives turned upside down by this broken law.

James Paterson is a Liberal senator for Victoria and a member of the parliament’s joint committee on human rights, which conducted the inquiry into 18C.