A legal heavyweight who acted in the landmark Mabo land rights case will spearhead Cindy Prior’s bid to revive her racial discrimination claim against Queensland University of Technology students.
Barrister Greg McIntyre has taken up the case for Prior, who is seeking leave to appeal against a federal circuit court dismissal of her claim against the students over Facebook comments criticising an Indigenous-only computer room at QUT.
McIntyre will argue that the court erred in part by failing to consider the effect on Indigenous QUT students of claims they had “no entitlement” to the room, a “special measure” allowed under Australian and international discrimination law.
In court papers filed ahead of a federal court hearing in Brisbane on Friday, McIntyre said the primary judge had mistakenly characterised student Alex Wood’s comment that QUT was “stopping segregation with segregation” as “rallying against racial discrimination”.
Justice Michael Jarrett, in finding that Wood’s comment was directed at QUT, failed to consider that Indigenous students or staff might be “offended, insulted, humiliated or intimidated” by his contention “that QUT should not provide them with the benefit of a ‘special measure’, in the form of a designated computer laboratory”, McIntyre said.
McIntyre said such a computer room was among “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them” sanctioned in the United Nations convention on eliminating racial discrimination, as well as Australia’s Racial Discrimination Act.
Wood’s references to segregation were not a “mere slight” as Jarrett found but a “humiliating and intimidating” rejection of “the entitlement of Aboriginal students at QUT to a designated computer room”, McIntyre said.
The effect was one of “lowering self-esteem and demeaning Aboriginal students at QUT”, he said.
Prior filed a $250,000 lawsuit against QUT, Wood and two other students – Jackson Powell and Calum Thwaites – over comments she claimed were in breach of section 18C of Australia’s act.
Section 18C makes it unlawful to “offend, insult, humiliate or intimidate” others on the grounds of race, colour or ethnicity.
Wood made the post on a QUT students Facebook page in 2013 after Prior, then employed in the Indigenous studies unit, asked him and other white students to leave the computer room.
The dismissal of her case against the students last month was welcomed by critics of 18C, including federal government MPs. They say the fact students posting on Facebook were drawn into a three-year saga culminating in expensive legal action and publicity shows the need to reform 18C and raise the hurdles for racial discrimination complaints.
Critics also argue for reform of the Human Rights Commission, which was charged with handling the original complaint.
Prior’s legal team missed the deadline in filing for leave to appeal but are arguing for an extension, citing reasons for the delay that include a threat of violence which prompted her solicitor Susan Moriarty to take stress leave.
Prior has lodged a complaint with the Australian federal police over alleged online threats and abuse prompted by her case.
In his ruling last month, Jarrett found that Powell’s comment asking for the location of the “white supremacist” computer lab was a “poor attempt at humour” but was not likely to offend or insult Indigenous people.
McIntyre argued in his submission that Jarrett had mistakenly considered Powell’s post in isolation from the thread.
“The test is whether the ordinary reasonable hypothetical person in the position of Ms Prior or an Aboriginal person or Aboriginal student at QUT, reading the posts, in the context of the posts as a whole, would be offended, insulted, humiliated or intimidated,” he said.
There was no sign that the judge considered that “postings referring to ‘segregation’, ‘white supremacists’ and ‘niggers’ may have a cumulative effect upon the way in which the hypothetical person or representative of the group might be affected”, McIntyre said.
McIntyre said any offence or insult from Powell’s post “may be aggravated by the fact that the words were intended to be humorous”.
Jarrett found Thwaites had no case to answer, accepting his sworn evidence that an online impersonator, using an account with his name and photo, was responsible for posting “ITT niggers”.
Last week, following his dismissal of the claim against Thwaites, Jarrett also scotched a subpoena on Facebook through which Prior’s lawyers hoped to unearth the origin of the post.
McIntyre argued that Jarrett could not reasonably dismiss the case before considering any evidence that might come from the subpoena, or allowing the matter to go to trial so that Thwaites’s denial could be tested in cross-examination.
Last week Jarrett ruled that Prior should pay the students’ legal costs, estimated to be as much as $200,000, arising from her unsuccessful claim against them. Barrister Tony Morris, acting for Powell and Thwaites, said Prior would be pursued into bankruptcy if she could not pay the costs.
