Prins v News Corp Australia Pty Ltd
[2018] FCCA 3597
•6 December, 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRINS v NEWS CORP AUSTRALIA PTY LTD & ORS | [2018] FCCA 3597 |
| Catchwords: HIGH COURT AND FEDERAL COURT – Federal Circuit Court – Procedure – Ending proceedings early – Summary disposal or stay. |
| Legislation: Australian Human Rights Commission Act 1986, ss.46PH(1)(c), 46PO Fair Work Act 2009 (Cth), ss.539(2), 550(1), 557, 557(1), 557(2). Racial Discrimination Act 1975 (Cth), s.18C |
| Cases cited: Prior v Queensland University of Technology & Ors (No.2) [2016] FCCA 2853 |
| Applicant: | SOKHOM PRINS |
| First Respondent: | NEWS CORP AUSTRALIA PTY LTD |
| Second Respondent: | NATIONWIDE NEWS |
| Third Respondent: | THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN |
| Fourth Respondent: | CHRIS MERRITT |
| Fifth Respondent: | HEDLEY THOMAS |
| Sixth Respondent: | JANET ALBRECHTSEN |
| File Number: | BRG 847 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 27 March 2018 |
| Date of Last Submission: | 27 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 6 December, 2018 |
REPRESENTATION
| Dr H. Prins appeared for the applicant pursuant to s.46PQ(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) |
| Counsel for the First, Second, Third, Fourth, Fifth and Sixth Respondents: | Ms Enbom |
| Solicitors for the First, Second, Third, Fourth, Fifth and Sixth Respondents: | Macpherson Kelley |
ORDERS
Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001, the application filed on 29 August, 2017 be dismissed.
Otherwise stand over the application as to the question of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 847 of 2017
| SOKHOM PRINS |
Applicant
And
| NEWS CORP AUSTRALIA PTY LTD |
First Respondent
| NATIONWIDE NEWS |
Second Respondent
| THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN |
Third Respondent
| CHRIS MERRITT |
Fourth Respondent
| HEDLEY THOMAS |
Fifth Respondent
| JANET ALBRECHTSEN |
Sixth Respondent
REASONS FOR JUDGMENT
The Federal Circuit Court of Australia may summarily dismiss an application pending before it if it concludes that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The power is not to be used lightly and only in a clear case. To exercise the power, the Court does not need to conclude that the proceeding is hopeless or bound to fail. What is required is a practical judgment as to whether the applicant has more than a “fanciful” prospect of success. But where the Court concludes that the applicant has no reasonable prospect of successfully prosecuting the proceeding, it should not shirk from acting to bring the proceedings to an end. This is one of those cases. These reasons explain why that is so.
The applicant commenced these proceedings seeking compensation for breaches of s.18C of the Racial Discrimination Act 1975 (Cth). The first and second respondents publish the daily newspaper known as The Australian. The third respondent was at the relevant times the chief executive officer of The Australian. The fourth respondent is the Legal Affairs Editor of The Australian. The fifth respondent is the National Chief Correspondent for The Australian. The sixth respondent is a columnist for The Australian. The respondents deny the claim that they have acted in any way in breach of s.18C of the Act.
By her amended statement of claim that I gave the applicant leave to file on 27 March, 2018 she claims:
a)$2,500,000 by way of damages against the respondents;
b)an order that the first respondent and the third respondent remove the fourth respondent’s article the subject of these proceedings that was published on 10 March, 2017 from any “digital website which they control”;
c)an order that the first respondent and the third respondent remove the “digital version of the Thomas article published on 18 Sept 2017 from its digital website and causes the Herald Sun and Daily Telegraph to remove the Thomas articles under Bolt’s blogs”; and
d)an order under s.46PO of the Australian Human Rights Commission Act 1986 directing the respondents not to repeat or continue with the alleged unlawful discrimination and/or alleged offence behaviour upon which she relies.
The facts
Most of the facts underlying these proceedings are not contentious.
To support her case, the applicant relies upon two affidavits in the proceedings: an affidavit sworn by herself comprising her evidence-in-chief for the trial of the proceedings and an affidavit of Laeng Khean comprising his evidence-in-chief. Both affidavits were filed on 5 March, 2018. The affidavits trespass beyond the mere recitation of facts and consist, in the main, of argument. Nonetheless, I have had regard to them in their entirety, but not much in them is relevant.
It is common ground between the parties that there has been an ongoing public debate about whether s.18C of the Racial Discrimination Act 1975 (Cth) requires amendment. The applicant strongly opposes any amendment. She is a vociferous participant in the debate. She considers that any amendment would weaken the protection provided to minority groups and “permit race hate speech”. In her affidavit of evidence-in-chief, she says:
26. I have been opposing changes to sec 18C of the RDA since about mid 2016. My resistance intensified from early 2017 when it became clear that the matter would soon go to parliament, with the government, and the Respondents, through The Australian newspaper, agitating for its change.
27. Consequently I was intent on opposing the Respondents, who, since at least mid 2016, were leading, and part of, an active campaign through The Australian newspaper, see e.g. para 34.a. (and through its digital and social media pages), supporting the government’s, and right-wing groups’, efforts to remove or amend sec 18C, with the intention or result that it would be legal for anyone “to offend, insult, humiliate or intimidate another person or a group of people, because of the race, colour, or national or ethnic origin of the other person or some or all of the people in the group”. Proponents like Merritt argue that change is essential for freedom of speech and is required by “Australian community standards” - see para 104, and 105 – 111 above.
28. I say that white persons are overwhelmingly the perpetrators, minorities like myself, Jews, Asians, Macedonians, Arabs, Indians, Sikhs, and others, mainly the victims - for the context, see para 23. This is also based on my personal experiences and research since commencing to live in Australia in 2004, as detailed in Exhibit 1.
29. As stated in para 16 - 17, “White” persons means those with Anglo/Saxon or Anglo/Celtic ancestors, who are still some 80% of Australian’s total population, and 81% of the population speaks English at home. But in general, when referring to “white” persons, I do not include those white persons with a different national origin, like Germans, French, Dutch or Italians for example.
30. As stated above in para 21 - 23, most or nearly all the major minority groups made submissions to the Inquiry, objecting to any change to sec 18C, because their members are the main victims of racism. An AHRC report published in August 2015, page 73, finds that “The Act . . operates largely to protect racial minorities. Most cases are brought by people of indigenous or minority race or ethnicity”; see Annexure 2, pages 12 - 13.
31. I have been referring specifically to those who want to change the law, as “white racists” or similar, but only in the context of them campaigning to make it legal to offend, insult, humiliate or intimidate persons of other races or ethnic origin - e.g. in para 37 & 39.
In early 2017, the applicant sent a series of emails to the fourth, fifth and sixth respondents and others at The Australian. The emails were sent on 3 February 2017, 9 February 2017, 22 February 2017, 7 March 2017 and 10 March 2017.
The first, sent on 3 February, 2017 is headed “Notice to The Australian: you are the enemy!”. It was sent to a number of people including the fourth and fifth respondents. In it she said “you” (presumably referring to the recipients) “support changes, making you the enemy in this respect.” She mentions a number of other matters and states that The Australian (which she described as a “desperate rag”) should go “to hell”.
Ms Prins signed it off as “Sokhom Prins”. She says that the email was posted widely on social media, including The Australian’s Facebook page, where her Facebook profile page “shows me to be an Asian and/or a non-white person”. She asserts that “the email’s recipients would have seen my profile photo, because the issue of changes to sec 18C was a very prominent public topic at the time. And they would have seen that my first name “Sokhom” in my Facebook page, is not a typical English name.”
On 9 February, 2017 Ms Prins sent an email with the heading “Bolt Guilty - white hot alert - sec 18C shall not change”, to a number of people, including the fourth and fifth respondents. In this email, Ms Prins repeats some of her earlier email but adds a number of matters. She asserts that she has been a victim of racism and has written of her experiences. She says that those demanding change to s.18C “are white racists in the context of their wanting to change the law to permit offensive behaviour; I stand up for all victims of racism and hate speech.” At various points she:
a)described the respondents as her “enemies”;
b)labelled the respondents “white abolitionists”;
c)labelled the respondents, and any other person who held the opinion that s.18C required amendment, “white racists”;
d)stated that it “won’t be long before a complaint by a white is made against” her under s.18C and that she was ready;
e)stated that there are “many white racists” and then identified Dawn Fraser, Peter Dutton and the Australian government;
f)stated that “whites are overwhelmingly the perpetrators” of racism; and
g)stated that it is the “white Australians” who are the “avid abolitionists” of s.18C.
The email was signed off as “Sokhom Prins (ethnic Cambodian), author”. The email was also sent “cc to Bolt & Co, named Jewish groups, 12 other minority groups, some “white” 18C supporters … and many others”.
Again, Ms Prins says that the email was “posted widely on social media, including The Australian’s Facebook page, where [her] Facebook profile page shows [her] to be an Asian and/or a non-white person.”
On 22 February, 2017 Ms Prins sent another email. This time it went to the fourth, fifth and sixth respondents, amongst a larger recipient list. The heading on the email was, “Janet Albrechtsen. Riding with Deadly Thomas, Merritt and others - white racist posse”.
It stated amongst other things that, “White racists” are referred to in the context of their wanting to amend or remove s.18C to make it legal to permit offensive behaviour; and “I fight for and support all minorities, the victims, overwhelmingly, of white racists”. Ms Prins swears:
40. The above email of 22 Feb 2017 was posted widely as in para 38. I believe that by now Albrechtsen would also know my ethnic origin, i.e. an ethnic Cambodian, author and victim of racism.
The email was signed “Sokhom Prins, author”.
On 7 March, 2017 the applicant sent another email to the fifth respondent, with the same email on the same date to the sixth respondent, the fourth respondent and others headed “18C Reform plan hinges on pub test?? - A new white racist horror!’’, it was signed by Sokhom Prins, author, stating in general a similar theme to the emails referred to above; and “Because only minorities like me, and Jews and other minorities, and those of different national or ethnic origins, feel the pain, the hurt caused by hate speech. WE FEEL THE PAIN. WE SUFFER THE INDIGNITY”.
The email further stated that:
a)the sixth respondent was “riding with deadly Thomas (the fifth respondent), Merritt (the fourth respondent) and others” and that they were a “white racist posse”;
b)described the sixth respondent as a “white racist” for “wanting to remove 18C” and that the sixth respondent has or wants to offend minorities because of their race or country of origin by, for example, finding a group of Asians and saying “Hey slants, go back where you came from”;
c)stated that the respondents “get turned on by the thought of the law permitting them to offend and/or insult”; and
d)described “white Aussie culture” as “shysters galore, drug and alcohol abuse, the curse of domestic violence, too many white racists and philistines”.
The applicant posted copies of all of her emails on social media websites, including on The Australian’s Facebook page.
Two days after receiving from the applicant the last email referred to above on 9 March, 2017 the fourth respondent sent a response, by email, to the applicant. It is his email response that the applicant complains about in these proceedings. The email was in the following terms:
Dear Sokhom Prins,
I do not usually respond to abusive emails, but in your case I will make an exception. I am offended and insulted on the basis of my race and ethnic background to be referred to as part of a white racist posse. I feel sure that my Tamil antecedents from southern India would share that opinion.
Your actions in causing me to feel offended and insulted on the basis of my race and ethnic background are clearly based on ignorance. Yet they would still come within the terms of section 18C because under this law the only thing that matters is how I feel about what you wrote. You might not be aware of this, but I am particularly sensitive. My feelings are easily hurt. This might be unreasonable, but under section 18C that's your problem.
Under this law, my hurt feelings are supremely important - far more important, in fact, than your right to freedom of speech. It also makes no difference whether my hyper-sensitivity is objectively unreasonable. I'm sorry, but that's the way it is.
This should be sufficient to prove to you that the law you are defending is flawed, unreasonable and skewed in favour of self-indulgent cry babies like me.
This, however, is your lucky day. Under the influence of the community standards of Australia – something that was drummed in to me by my migrant father - I have decided to toughen up, which I also recommend to you. I therefore have no intention of complaining to Gillian Triggs about your race-based abuse.
However in future tirades could you please stop referring to me as "white" - remember, I'm very sensitive, unreasonable, easily offended and for now at least, I've got 18C on my side.
Kind regards and thanks for reading The Australian.
Chris Merritt
The day after the fourth respondent sent that email an article appeared in The Australian authored by the fourth respondent. The fourth respondent’s email was reproduced in that article. This article forms one of the publications in respect of which the applicant now sues.
The applicant responded to the fourth respondent’s email on 10 March, 2017. She copied that email and sent it to the fifth and sixth respondents on 10 March, 2017. Further, she posted the email as a public comment on The Australian’s website in response to an article about the unexpected death of a cartoonist at The Australian, Mr Bill Leak. Her comment bore the headline “Racist Bill Leak is dead, although could shelter under 18D”.
Later in the evening the fifth respondent, responded to the applicant’s email to the fourth respondent and the public comment about Mr Leak’s death. His email said:
Dear Sokhom Prins
Chris Merritt wrote a powerful and very direct rebuttal today to your ugly, defamatory rants, which included our friend and colleague Bill Leak.
I respect your right to continue to make a fool of yourself. As you will respect my right to have freedom from loons and nutters.
But can you please remove my email address from your spam, and leave me to (what you regard as) my appalling racism?
It's a simple request. Please stop sending me your hateful, racist garbage.
Alternatively, fuck off.
Regards
Hedley.
The following day, on 11 March, 2017 the sixth respondent responded to the fifth respondent’s email in which the applicant and others were copied. In her email, the third respondent said:
Well said, Hedley and Chris. I echo your sentiments.
Sokhom, you have identified the wrong enemy. Best take off now.
On 29 March, 2017 the applicant lodged a complaint with the Australian Human Rights Commission in which she alleged that the respondents had breached s.18C of the Racial Discrimination Act by:
a)the fourth respondent sending an email to her on 9 March, 2017;
b)publishing an article about the fourth respondent’s email in The Australian and on its website on 10 March, 2017;
c)the fifth respondent sending an email to her on 10 March, 2017; and
d)the sixth respondent sending an email to her on 11 March, 2017.
She alleged that each of the respondents published the emails authored by them and the first respondent published the article about the fourth respondent’s email because of her race or ethnic origin. Her complaint and accompanying submissions were voluminous, running to more than 300 pages.
On 11 July, 2017 acting pursuant to s.46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) the Commission terminated the complaint on the basis that it was lacking in substance or misconceived. The Commission found that there was no basis to contend that the respondents’ conduct was engaged in because of the race, colour or national or ethnic origin of the applicant or others.
On 29 August, 2017 the applicant commenced this proceeding in which she alleges that the respondents sent her the emails and published the article because of her race or ethnic origin and, accordingly, they have breached s.18C of the Racial Discrimination Act.
On 4 December, 2017 I made directions that required the applicant to file a statement of claim, the respondents a defence and then for the applicant to file and serve any affidavits of evidence in chief that she wished to rely on by herself or any other witnesses in the case by 5 March, 2018. The respondents foreshadowed an application to summarily dismiss the principal application and I made directions to accommodate that application.
The applicant has filed a statement of claim and, as I have set out above, an amended statement of claim. It runs to some 70 pages, is discursive in nature, is replete with internal references and cross-references and is unnecessarily prolix and dense. Despite all of that the seminal allegations admit of brief summary:
a)the respondents published three emails and one article in The Australian;
b)the applicant found the emails and the article offensive, derisory, mocking of her and insulting;
c)the respondents sent the emails and published the article because of the applicant’s race, colour or national or ethnic origin;
d)she suffered hurt, humiliation and distress as a result for which she claims compensation;
e)she has suffered economic loss, both past and future for which she claims compensation; and
f)by reason of the respondents’ conduct following the publication of the emails and the article, the respondents are liable to pay to the applicant aggravated or exemplary damages.
The statutory framework
Section 18C of the Racial Discrimination Act provides:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
…
In Prior v Queensland University of Technology & Ors (No.2) [2016] FCCA 2853 I set out some principles governing the application of s.18C of the Racial Discrimination Act. In the subsequent application for an extension of time within which to appeal and leave to appeal, my recitation of those principles attracted no adverse comment:
30. There are a number of cases that have been decided concerning s.18C of the Racial Discrimination Act. From those authorities, the following propositions can be derived:
a) s.18C is constitutionally valid as an exercise of the external affairs power of the Commonwealth: Toben v Jones (2003) 129 FCR 515 at [21], [50] and [145];
b) neither the heading to Part IIA – “Prohibition of offensive behaviour based on racial hatred” – nor the legislative history of that Part or of s.18C in particular supports the proposition that the operation of Part IIA is restricted to racist behaviour based upon racial hatred or behaviour calculated to induce racial violence. It should not be read down so as to encompass only the expression of racial hatred: Toben v Jones at [28], [50], and [145]; Eatock v Bolt (2011) 197 FCR 261 at [196];
c) the assessment required by s.18C(1)(a) is an assessment of the reasonable likelihood of a person or group of people being offended, insulted, humiliated or intimidated by the act of another person. That requires an assessment of the reasonably likely reaction of the person or people within the group concerned: Eatock v Bolt at [241];
d) whilst relevant to the question of whether offence was reasonably likely, the fact that a person has actually been offended in the way contemplated by s.18C(1)(a) is not to the point. What is to the point is the likelihood or risk of a person or a member of a particular group of people being affected in the way contemplated by s.18C(1)(a). “Proof of actual offence for a particular person or group is neither required nor determinative…”: Eatock v Bolt at [241]. See also Jones v Scully (2002) 120 FCR 243 at [99]-[101]; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [28] and McGlade v Lightfoot (2002) 124 FCR 106 at [44]-[45];
e) an objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within s.18C(1)(a). “The question so far as s.18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?”: Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [12]; Jones v Scully at [98]-[100]; Eatock v Bolt at [243]; Clarke v Nationwide News Pty Ltd trading as The Sunday Times (2012) 201 FCR 389 at [46];
f) the assessment needs to be undertaken by reference to a “person or group of people”. Section 18C(1)(a) does not identify the persons or group of persons that should be considered as the possible victims for the purpose of deciding whether the impugned act was reasonably likely to cause offence Eatock v Bolt at [243];
g) “… the reference to a “person” must be intended as a reference to an identified person (or persons) that the conduct in question was directed at. In that respect, the provision is addressing an act directed to an identified individual or individuals. In contrast, the reference to “a group of people” is dealing with a class to whom the conduct was directed in a general sense. That distinction facilitates what logic suggests are the different approaches to be taken in the assessment process between a claim of personal offence and a claim of group offence.”: Eatock v Bolt at [246];
h) “Where allegedly offensive conduct is directed at both an identified person and a group of people and the claim made is that both the identified person or persons and the group of people were offended, the conduct should be analysed from the point of view of the hypothetical representative in relation to the claim that the group of people were offended, and in relation to each of the identified persons where a personal offence claim has been made. If no claim of personal offence is made and only a claim of group offence is made, the conduct is to be analysed from the point of view of the hypothetical representative of the group, despite the fact that the conduct is directed at both identified individuals and the group of people of which they form part.”: Eatock v Bolt at [250];
i) “The assessment as to the likelihood of people within a group being offended by an act directed at them in a general sense, is to be made by reference to a representative member or members of the group.”: Eatock v Bolt at [251]. An “ordinary” or “reasonable” member or members of the relevant group are to be isolated: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [102]; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 at [24]; Eatock v Bolt at [251];
j) it is the values, standards and other circumstances of the person or group of people to whom s.18C(1)(a) refers that will bear upon the likely reaction of those persons to the act in question. It is the reaction from their perspective which is to be assessed: Creek at [16]; Scully at [108]; Eatock v Bolt at [253];
k) the objective nature of the assessment required by s.18C(1)(a) does not import an objective assessment of community standards into the test of the reasonable likelihood of offence for the purposes of s.18C(1)(a): Eatock v Bolt at [253];
l) however, “…the burdens created by Part IIA were not imposed for the benefit of persons whose intolerance to the points of view of others is the true cause of the offence, insult, humiliation or intimidation that those persons experienced. In those situations it may be properly said that it is the intolerance of the receiver of the message rather than the intolerance of the speaker that is responsible for causing the offence.”: Eatock v Bolt at [256];
m) the phrase “in all the circumstances” in s.18C(1)(a) requires that the social, cultural, historical and other circumstances attending the person or the people in the relevant group be considered when assessing whether the relevant act was reasonably likely to have the proscribed effect: Eatock v Bolt at [257];
n) in s.18C(1)(a), the phrase “reasonably likely” ought to be construed as speaking “of a chance of an event occurring or not occurring which is real – not fanciful or remote”: Eatock v Bolt at [260];
o) to “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights: Creek v Cairns Post at [16]; Clarke v Nationwide News at [65]-[76]; Eatock v Bolt at [268];
p) “… “offend, insult, humiliate or intimidate” were not intended to extend to personal hurt unaccompanied by some public consequence of the kind Part IIA is directed to avoid. That public consequence need not be significant. It may be slight. Conformably with what I regard as the intent of Part IIA, a consequence which threatens the protection of the public interest sought to be protected by Part IIA, is a necessary element of the conduct s 18C is directed against. For the reasons that I have sought to explain, conduct which invades or harms the dignity of an individual or group, involves a public mischief in the context of an Act which seeks to promote social cohesion.”: per Bromberg J in Eatock v Bolt at [267];
q) to determine whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within s.18C(1)(a), what brought about the action constituting the behaviour, or act in question and what the applicant felt are not relevant: Creek v Cairns Post at [12];
r) the questions of the satisfaction of ss.18C(1)(a) and 18C(1)(b) are different and separate enquiries, although the material relevant to one may be relevant to another: Toben v Jones at [154];
s) “Section 18C(1) is not enlivened unless the relevant act is done “because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act”. As earlier indicated, the phrase “because of” requires consideration of the reason or reasons for which the relevant act was done. …. the expression “because of” in par (b) necessitates a consideration of the reasons for which the act in question was done”: Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FLR 56 at [23];
t) what is necessary to consider for the application of s.18C(1)(b), is whether the act was “because of” race, colour or national or ethnic origin of the other person or of some or all of the people in the group: Toben v Jones at [154];
u) “It is the reason or reasons for the act which must be discerned. … An investigation of the reason or reasons for the act will involve, as a matter of meaning and language, an enquiry into the explanation for the act or why the act was done. Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct … proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament.”: Toben v Jones at [151].
Consideration
There is no dispute on the material that the respondents have published the material about which the applicant complains. In doing so the fourth, fifth and sixth respondents have undertaken conduct which has the capacity to engage s.18C(1)(a) of the Racial Discrimination Act. There is no dispute that the first, second and third respondents are responsible for the actions of the fourth, fifth and sixth respondents.
For the purposes of these reasons only, I have assumed that the fourth respondent’s email, the article in The Australian, the fifth respondent’s email and the sixth respondent’s email were all reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant. That is not a finding that the published material could or should be so characterised. It simply takes the applicant’s case at its highest.
The critical point made by the respondents, however, is that there is no evidence that would even remotely suggest that the email and article by the fourth respondent was sent and published because of the applicant’s race or ethnicity. Nor is there any evidence that the emails sent by the fifth and sixth respondents were sent by them because of the applicant’s race or ethnicity.
The applicant accepts that there are no direct references in any of the material about which she complains, to her race or ethnic origin (see paragraph 5.3 of the amended statement of claim, for example).
At best, her case is that the Court should infer that the fourth respondent’s email was sent and the article published because:
a)the second respondent saw Ms Prins’s Facebook posts that carried photographs of her depicting her Asian appearance;
b)the second respondent saw that her name was “Sokhom”, a name she says is not common in Anglo-Celtic or white cultures;
c)the fourth respondent had a predisposition to racism;
d)in subsequent emails, she identified herself as Cambodian; and
e)certain references that the fourth respondent used in his email could only be references to racial matters.
In respect of the last matter, the applicant says in her amended statement of claim at paragraph 107.5 that the “most compelling” example is the fourth respondent’s recommendation for the applicant to “toughen up”. The applicant alleges that this is evidence that the “article … was motivated by considerations of race, and/or that the racial distinction in his article (“don’t call me white”) was a material factor in performing the act, and/or that there is much (para 107.4.1) to suggest race as a factor in the decision to publish”. By way of particulars the applicant then says:
107.5.1 First, he knows I'm a Cambodian, therefore an Asian, as he was advised of this on 9 Feb 2017, as pleaded in para 19. Second, through emails sent to him and the others, he knows I have been, or have claimed to be, a victim of race-hate speech -as pleaded directly or indirectly in para 18.2, 19.1.1, 19.1.5, 20.1.1 & 21.2.
107.5.2 Therefore "toughen up" can only mean that I must toughen up to race hate speech, and with him knowing of my race and ethnicity, his statement, and its proper inference, and/or his article, is taken to be done because of my race or ethnic origin, thereby satisfying sec 18B(b).
107.5.3 Otherwise, what else should I "toughen up to"? If not to race-hate speech?
I am prepared to accept, for the purposes of this present application, that the fourth respondent knew when he sent the email and published the article that the applicant was Cambodian. However, that he knew that does not prove on the balance of probabilities that he sent the email and published the article because of the applicant’s race, colour or national or ethnic origin.
Despite the pages and pages of pleading, evidence and submission by the applicant there is simply no basis upon which one could reasonably conclude that the fourth respondent sent the email and published the article because of the applicant’s race or ethnicity. One cannot infer that it was even one of many reasons why the material was published.
There is evidence to the contrary. In particular:
a)both the applicant and the second respondent were participating in the public debate that each agrees was occurring at the relevant time;
b)the debate was plainly robust;
c)the very subject matter of the debate was s.18C and the tension between the “freedom of speech” and the limits of s.18C. Reference to race, ethnicity and race hate speech was to be expected within the scope of the debate; and
d)the applicant’s emails were provocative and themselves objectively offensive.
The applicant relies upon a passage from Toben v Jones (2003) 129 FCR 515 to this effect: “the question is whether anything suggests race as a factor in the decision to publish the work in question”. However, the enquiry as to whether anything suggests race as a factor in the decision to publish the work in question is an enquiry into the race of the applicant not an enquiry into whether race generally was a factor in the decision to publish. In the context of the debate that the evidence suggests was ongoing at the relevant time, in a very general and broad sense, it might easily be said that race or ethnicity was a factor in the decision to publish because that was inextricably connected with the subject matter of that debate. That is an entirely different matter to the publication of the works because of the race of the applicant.
There is nothing in the fourth respondent’s email or his article that indicates a connection between the applicant’s race or ethnic origin and the email and article. The applicant’s case relies upon drawing an inference from the matters I have referred to above at [36] that the fourth respondent’s reason for acting as he did was her race or ethnicity. In those circumstances it is appropriate to identify competing explanations, if any, to the reason hypothesised by the applicant.
The fourth respondent’s response was made in the context of the debate then occurring and in the face of the applicant’s emails to him. It is apparent from the text of his email that it was sent by him in response to the applicant’s emails, the subject of which was, amongst other things, s.18C of the Racial Discrimination Act and the proposed changes to it. The fourth respondent’s email seeks to demonstrate why he believes that s.18C should be amended. The fourth respondent’s article seeks to do the same. That both the email and the article refer explicitly to the applicant does not, however, invite the conclusion that the email was sent or the article was published because of her race or ethnicity. It invites the inevitable conclusion that those publications were made because of the content of the applicant’s emails to the fourth respondent.
I accept the respondents’ submissions that the fourth respondent’s email and the article are, self-evidently, contributions to the debate on the amendment of s.18C. The applicant responded to the fourth respondent’s email by continuing the debate. I accept the respondents’ submissions that there is no indication in either the email or the article either expressly or by necessary implication, that one of the reasons why the fourth respondent sent his email and wrote his article was because of the race or ethnic origin of the applicant. Nor is there, in any of the evidence filed by the applicant, any basis upon which a court could conclude that that one of the reasons why the fourth respondent sent his email and wrote his article was because of the race or ethnic origin of the applicant.
To put it another way, the applicant does not, and cannot prove on the balance of probabilities on the evidence she relies upon in this case, that the fourth respondent sent his email or published the article because of her race, colour or national or ethnic origin. Nor can she demonstrate on the evidence that it was even one of a number of reasons for those acts.
In my view, she has no reasonable prospects of successfully prosecuting her proceedings against the fourth respondent.
The case for summary dismissal is even more compelling in respect of the fifth and sixth respondents. There is no evidence that the emails from each of them was sent because of the applicant’s race, colour or national or ethnic origin. The applicant’s case against these two respondents also relies upon the drawing of an inference that the reason or one of the reasons for them sending their emails was the applicant’s race. There is simply no basis upon which one could come to that conclusion. The reason why the fifth and sixth respondents sent their emails is obvious on their face. They wanted the applicant to stop sending them emails.
In my view, the applicant has no reasonable prospects of successfully prosecuting her proceedings against the fifth respondent or the sixth respondent.
Because the applicant’s case against the first, second and third respondents relies upon her case against the fourth, fifth or sixth respondents and because her case against each of those respondents should be summarily dismissed, so too should her proceedings against the first, second and third respondents.
Conclusion
I accept the respondents’ submissions that the evidence does not indicate any causal connection between the respondents’ conduct in sending the emails and publishing the article on the one hand and the applicant’s race or ethnic origin on the other.
I find that the applicant has no reasonable prospect of successfully prosecuting her proceedings against any of the respondents and that it should be summarily dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 December, 2018.
Date: 6 December, 2018
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