'The Australian' cons the capable as well as the cranks on Section 18C

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Former Australian Human Rights Commission President Gillian Triggs (screen shot YouTube).

Cindy Prior's ill-fated Section 18C racial vilification case may be over but the malicious Murdoch media campaign against the Australian Human Rights Commission continues, writes Alan Austin.

TWO YEARS AGO this month, the Australian Human Rights Commission (AHRC) discontinued its dealings with Cindy Prior, who had claimed university students had racially vilified her.

This did not stop The Australian, the Institute of Public Affairs (IPA) and some Coalition MPs from continuing to attack the commission by association and, particularly, its then president, Gillian Triggs.

While legal matters have now been resolved, the fallout from the malevolent Murdoch media campaign continues.

There is considerable evidence that the Australian community has been widely deceived by The Australian’s mendacious crusade to destroy Section 18C of the Racial Discrimination Act (RDA), which relates to public racial vilification.

This deception is undermining respect for vital institutions and their capacity to fulfil their charters.

The latest saga began in 2013, when three students at Queensland University of Technology (QUT) were booted out of an Indigenous-only computer lab. The Aboriginal worker, Cindy Prior, later complained that jocular Facebook posts about the incident violated Section 18C.

Throughout the saga, Murdoch media outlets have falsified the facts, taken advantage of the vulnerable students, distorted the court judgments and impugned the AHRC.

This campaign has not just duped elderly shut-ins, right wing nutters and the intellectually disadvantaged. Victims also include prominent citizens with strategic influence.

An actual case study will illustrate. Geoff Kelly is managing director of consulting and coaching company Kelly Strategic Influence. His clients, he claims, 'include the Victorian Government, the Business Council of Australia [and] several top-40 Australian corporations’.

Kelly has been comprehensively deluded by the campaign to destroy the Human Rights Commission and no amount of evidence seems able to disturb the falsehoods he resolutely clings to and spreads publicly.

In a recent Facebook discussion, Kelly affirmed vehemently and repeatedly, among other untruths, that:

  1. The Human Rights Commission ‘pick[ed] on university students, putting them through accusations and court action for several years.’
  2. Cindy Prior 'was actively encouraged and groomed to make and proceed with that complaint’ under Section 18C by the AHRC.
  3. The AHRC gave ‘the students only a few days notice after Prior had had more than 12 months notice, for the mandatory pre litigation mediation process’.
  4. In his judgment, ‘the judge [told] the AHRC it had acted atrociously’.

Each of these was repeated during the public fortnight-long conversation, which involved several contributors, including a former member of the Victorian Civil and Administrative Tribunal.

None of those assertions is remotely true.

  1. The AHRC has no power to start or stop litigation. The AHRC had terminated all involvement with Ms Prior on 25 August 2015. She commenced Federal Circuit Court proceedings in October 2015. This is clear from court records and the AHRC’s detailed chronology.
  2. All the evidence is to the contrary.
  3. It was never the role or responsibility of the AHRC to inform or involve the students in the legal action. QUT insisted, correctly, this was its role.
  4. In none of the three judgments by two judges was any criticism made of the AHRC in any way, shape or form.

The judgments are:

  • the rejection of Ms Prior’s claims by Judge Michael Jarrett in the Federal Circuit Court on 4 November 2016 (FCCA 2853); 
  • Judge Jarrett’s orders regarding costs on 6 January 2017 (FCCA 3399); and
  • the denial of the appeal by Judge John Dowsett in the Federal Court on 3 March 2017 (FCA 193).

But so completely did Kelly believe the pervasive lie about the judge saying 'the AHRC had acted atrociously', he did not even bother to check.

The falsity of those four propositions is confirmed by transcripts of the judgments, by the AHRC and by independent legal opinion.

Intriguingly, Judge Jarrett does refer to media interest in the case (paragraph 5). He does not mention any publication, but it is well-known that The Australian has led the malicious attacks against Section 18C and the AHRC. His comments seem very much open to the interpretation that this campaign is profoundly misguided.

The Judge said:

… what necessarily interests the public is not necessarily in the public interest. This case concerned allegations that s18C of the Racial Discrimination Act 1975 had been contravened. I determined on a summary basis that they had not. Section 18C of the Racial Discrimination Act has excited some interest for a number of years now … my decision in this case was entirely unremarkable. It did nothing than extract the principles from the decisions in the superior courts … that apply to cases that assert a contravention of Section 18C and then attempt to apply those principles to the facts before me. This case creates no precedent. This case is simply an application of the facts to the law. And whilst I accept that it has attracted some public interest, I seriously doubt that it is in the public interest.

Geoff Kelly was invited throughout the Facebook discussion to substantiate his false claims or retract and apologise. He did neither.

He then impugned those of us in the debate who actually could provide evidence to refute his claims.

He wrote:

You still peddle the line that the AHRC wasn't responsible ...

 you have the hide to write these deflections ...

 you simply are making it up about the AHRC involvement ...

Just because you don't like it doesn't mean you can change it by just making stuff up.

How did this come about? How is it that an 'in-demand speaker, writer and executive coach on leadership influence, persuasion and applying leadership communication' can be so thoroughly hoodwinked?

The best explanation is that Kelly implicitly believes the falsehoods concocted by the Murdoch media and others regarding Section 18C and the AHRC.

He is not alone. So did Cindy Prior, her lawyers and others who believed her forlorn action had a fair chance of success.

As I wrote in IA in February 2016, long before the matter went to trial,

‘On the face of it, the complaint seems doomed.’

It certainly was.

Australia will never function as a mature, independent, strong, just society while influential leaders believe the palpable nonsense that is spread about institutions as vital as its Human Rights Commission and courts of law.

Early in the Facebook discussion, this was put to Kelly:

‘You are the one who should apologise, Geoff, for reading and swallowing the malicious lies of The Australian, the IPA and the Liberal Party. And then spreading them. Your penance should be that you promise publicly never to have anything to do with these organisations ever again!’

That was written in jest at the time. But, actually, it is the only way forward.

You can follow Alan Austin on Twitter @AlanAustin001.

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