As a former dean of law at Macquarie University, Rosalind Croucher, the new president of the Australian Human Rights Commission, knows all about academic ideologues and internal strife. Taking over the troubled law faculty in 1999, she did much to restore its reputation by the time she stepped down in 2007.
Whether she can do the same for the AHRC following the departure of her controversial predecessor, Gillian Triggs, is another matter. If she is to do so, she could start with Race Discrimination Commissioner Tim Soutphommasane.
“Not to put too fine a point on it,” said Soutphommasane in addressing the Australian Political Studies Association conference in Melbourne on Monday, “but we must be prepared to say that if people don’t wish to be called racists or bigots, they shouldn’t blame others; they should begin by not doing things that involve racism or bigotry.”
Just imagine you are the subject of a complaint under section 18C of the Racial Discrimination Act, which makes it unlawful to offend, insult, humiliate or intimidate another person on the basis of their race, colour, or national or ethnic origin. With Soutphommasane’s remarks in mind, how confident would you be of the AHRC giving you a fair conciliation hearing? Very little, given his implying that anyone accused of racism or bigotry is guilty as charged.
Croucher must have winced upon reading Soutphommasane’s speech, being conscious that the AHRC has attracted well-founded criticisms for its poor handling of 18C conciliation hearings, particularly in respect to natural justice deficiencies. It showed poor judgment by Soutphommasane, who should know this is a time for prudence, not belligerence.
Queensland University of Technology student Calum Thwaites knows only too well about unjustifiably being accused of racism, and he experienced the AHRC’s incompetent handling of this during Triggs’s tenure. In May 2013, three students were asked by QUT administration officer Cindy Prior to leave the “indigenous only” computer lab. One of them, Alex Wood, later posted on Facebook: “Just got kicked out of the unsigned indigenous computer room. QUT stopping segregation with segregation?”
A separate Facebook post “ITT niggers” in reference to the incident was wrongly attributed to Thwaites, and he was later vindicated by a Federal Circuit Court. But the AHRC did not notify him or the other students of Prior’s 18C complaint until 14 months after it was made, giving them just days to prepare for a ‘conciliation conference’. Thwaites successfully defended the subsequent court action brought by Prior, who sued him and two other students for $250,000, but he was only able to do so through the generosity of Brisbane barrister Tony Morris, QC, who acted for him pro bono. Several other students who could not afford the exorbitant costs of defending the case were forced into settling, each paying $5000.
Hey @timsout not everyone accused of racism has done something racist https://t.co/V6CFWssqgR
— Calum Thwaites (@CalumMThwaites) September 28, 2017
Thwaites was forced to abandon his studies in education halfway through his degree. He had originally planned to teach at remote schools in the far north of Australia, but was resigned to the fact that the allegations and the publicity would compromise the relationship between teacher and students. Incredibly, Soutphommasane still maintains that 18C should not be changed. “The law in its current form strikes an appropriate balance between freedom of speech and freedom from racial vilification,” he said this week. How many time do you think he referred to the QUT case in his lengthy speech? You guessed it, zilch.
So how does Thwaites feel about Soutphommasane’s guide to avoiding accusations of racism? “The AHRC are meant to be the ones who conciliate complaints under 18C,” he said this week, “but they are out pushing the view that anyone called a racist must have done something racist.” Such views are the “polar opposite of what a liberal democracy should be doing,” said Thwaites, adding that Soutphommasane’s observation was “more suited to some authoritarian regime.”
Thwaites is right. Croucher might want to consider giving her Race Discrimination Commissioner some remedial lessons in the basic principles of administrative decision-making, especially in regards to avoiding perceived bias. While she is at it she could refer him to the Australian Public Service Values enshrined in section 10 of the Public Service Act. They require the AHRC to be, among other things, “professional” and “objective”. It is irrelevant that Soutphommasane does not handle conciliations himself, for the AHRC as an agency must avoid any perception of bias.
“The ranks of those calling for a dilution of legislative protections against racial hatred,” said Soutphommasane this week, “appeared not to contain many who had lived experience of being subjected to racial vilification.” This is not a logical argument, but merely an attempt to distract with appeals to emotion. Two can play that game. The ranks of those who oppose reforms of so-called racial hatred laws appear not to contain many who had lived experience of being subjected to ruinous and unjustified 18C action. Or does Soutphommasane believe their views are irrelevant?
“It is in effect akin to being tried by a jury comprising the peers of one’s accuser”
Arguing against proposed reforms to 18C in November last year, Soutphommasane insisted the legislation as it stood “protects all Australians from racial discrimination and hatred, while guaranteeing freedom of speech (through the oft-forgotten section 18D).” To say that 18D amounts to a “guarantee” is risible. For example, the truthfulness of an offending remark is not in itself a complete defence to 18C action. Even if it were, the exceptions in 18D are largely academic given most Australians could not afford the prohibitive legal expenses in defending such action. Perhaps Soutphommasane, whose salary is $339,460, should check his taxpayer-funded privilege?
The most unjust aspect of the legislation is that the test for determining whether one has infringed 18C is largely a subjective one. It is ascertained not by the standards of the community as a whole but by a judge’s determining how the complainant’s identity group would regard the act or remarks in question. It is in effect akin to being tried by a jury comprising the peers of one’s accuser.
Heaven forbid that Joe Blow should have a say in such a test. When the Abbott government attempted in 2014 to legislate for the test to be determined by the “the standards of an ordinary reasonable member of the Australian community”, and “not by the standards of any particular group within the Australian community,” the alarmism was rampant. “That’s code,” declared Fairfax columnist and ABC presenter Waleed Aly. “It means, not by the standard of whatever racial minority is being vilified. Not the ordinary reasonable wog, gook or sand nigger; the ordinary reasonable Australian.”
Could this argument get any sillier? It turns out it could. “That’s what struck me most about the proposed legislation,” wrote Aly. “It’s just so ... well, white. In fact it’s probably the whitest piece of proposed legislation I’ve encountered during my lifetime.” How incredibly profound was this use of ellipsis? Actually, no. It’s just so ... witless, one might respond.
“When we are referring to expressions of populism today,” said Soutphommasane this week, “we are talking about far-right versions of populism associated with nationalism, xenophobia and racism.” The election of Donald Trump as president, he said, “represented a dramatic racial turn.” “Far-right populism was at play in the Brexit vote,” he added.
Do you get the sense that someone is going far beyond his bailiwick? “Today’s conservatives frequently endorse a form of destructive radicalism towards public institutions and civil society,” wrote Soutphommasane in May 2013, only months before his appointment to the AHRC. “They lust for a new round in the culture war, for eradicating the supposed evils of elite political correctness.”
That’s quite some chip on the Soutphommasane shoulder, and one that should have been knocked off him soon after he assumed his current position. Instead he has been permitted to push his squeaky grievance barrow in the four years of his five-year tenure. Fortunately for him, he is something of a darling among media commentators, many of whom also oppose changes to 18C on the grounds the legislation is the only thing stopping middle class Australians from vilifying minorities. Consider, for example, an interview he gave this month for ABC’s Sunday Extra.
“Tim,” said presenter Fauziah Ibrahim (my goodness, we are on familiar terms), “Australia does have an international reputation for being racist. Most global headlines regarding Australia would have to do either with its refugee policies or [senator] Pauline Hanson. You can look it up on the BBC website, on the CNN website. Is Australia racist or xenophobic?”
Could this be the ABC’s most loaded question of the year? It is up against some pretty stiff competition, but the number of questionable premises, false dichotomies and sweeping statements in that short burst surely makes it worthy of nomination.
As for Soutphommasane, he could well find that Croucher, unlike her predecessor, will not be as likely to indulge his ideological sermons or any other of his remarks that bring the AHRC’s impartiality into question. “Today’s far-right politics”, bemoaned Soutphommasane this week, “features an appeal to ‘the people’ versus ‘the elite’, one that bypasses the conventional decorum of modern politics.”
Not to put too fine a point on it, Race Discrimination Commissioner, but if you do not wish to be called elitist or biased, you should not blame others. You should begin by not doing things that involve elitism or bias.
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