Vol 12, Issue 1
Stop wasting time arguing about freedom of speech when we should be nationalising the legal profession
We’re all aware of the brouhahah surrounding section 18C of the Racial Discrimination Act, about the tension between protecting racial minorities from abuse and protecting the public from censorship.
In fact, s18(c) protects no one (barring the rich or well connected) from anything, and here’s why: either bringing or defending an action under the law could well make you bankrupt.
On the 28th of May, 2013, Cindy Prior, an indigenous woman working at the Queensland University of Technology, asked three white students to leave a computer room reserved for indigenous students. They did so, but posted Facebook comments critical of the policy, at points joking about being white supremacists.
Ms Prior brought an action under 18C seeking apology and damages from the university and eight students, claiming that the Facebook posts were reasonably likely to offend indigenous students. A number of the students settled out of court. Three of the students contested the claims.
On the 4th of November 2016, Judge Jarret summarily dismissed the actions against those students, finding that there was no reasonable prospect of success. Costs in the order of $200,000 were awarded against Ms Prior; she now has bankruptcy actions pending against her.
But was she unreasonable in bringing the action? The law prohibits public acts, done because of the race of a person or group of people, that are reasonably likely to offend members of that group. Were the comments criticising indigenous only spaces in the university ‘because of’ the race of indigenous people? It seems possible to think so, particularly in light of the purpose of the statute.
The University obviously believed that indigenous students were disadvantaged, and needed assistance in the form of exclusive computer spaces. Is it obviously unlikely that a member of that group would be offended by public comments attacking the policy – with the implication that the disadvantage suffered by the group is insufficient to justify it?
18D(c)(i) exempts ‘fair’ comments about matters of public interest. Was the criticism obviously ‘fair’? One of the respondents had likened the indigenous-only space as ‘segregation’, invoking apartheid or the Jim Crow South; was this a ‘fair’ comparison?
As it is, I agree with the outcome. I don’t want positive discrimination policies to be put beyond public comment, even though beneficiaries of those policies might find the criticism hurtful. However, given the text and context of the law, I don’t believe it was unreasonable for Ms Prior to have brought the case. She certainly did not deserve to be bankrupted for bringing an action under a law specifically designed to protect her.
All of which makes the debate about the law somewhat surreal. Any question of whether removing ‘offense’ from 18C would unacceptably weaken the protection the law affords to racial minorities is ridiculous given that any person bringing an action under the law risks losing their home and their livelihood in costs. Likewise, any question of whether 18D satisfactorily protects freedom of speech seems absurd: defending any such action also risks financial ruin.
Clearly, and I write this without intending any irony or hyperbole, our whole legal system is a sham and an absurdity. That fees paid by lawyers defending a charge or a lawsuit frequently surpass any fine or damages that a judge might impose should be a source of inconsolable shame for everyone in the profession. In Victoria, for instance, costs are almost never awarded in criminal cases; the punishment our justice system imposes on an innocent person for the crime of proving their innocence can easily be the loss of their family home.
It is axiomatic that people have a right to justice. Our system of ‘justice’ depends on professional advice and representation. The only just solution I can see is to nationalise the profession of law, just as we’ve nationalised the profession of medicine.
Ben Wilson is a third-year JD student
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