The recent section 18C case is a reminder that the courts are under-resourced

When the section 18C case against three university students was struck out, for failing to have any reasonable prospects of success, conservatives decided to claim that that showed the need to repeal section 18C.

In reality this decision demonstrated that section 18C’s reach was much less than they had feared. The fact that the case was struck out weakens their argument that the anti-vilification provisions somehow put a kybosh on free speech.

But this case highlights another very important area for political attention - access to justice and the under-resourcing of the courts.

The case involved some university students, who, on being asked to leave a computer lab earmarked for indigenous people, complained. One was alleged to have described the lab as segregation. Another was said to have wondered where the lab for white supremacists was. A third was said to have used the word "nigger" in a Facebook post about the lab - though he claims to have been hacked.

Some say that these things are trivial. I don't agree. But even if I did, the fact that so-called trivial claims can be made is not a reason to throw out the baby with the bathwater by abolishing the right to sue for racial vilification. 

Would the same conservatives who are calling for the repeal of section 18C also call for the abolition of the right to sue in contract, merely because it is possible for misconceived or trivial claims to be made? Of course not.

They would say that the courts should be able to quickly bring such claims to an end, and that wrongly-sued people and firms should get a fair go in defending such claims (which means affordable legal help and fair legal processes).

So it is with this case. The fact that the respondents found the legal costs difficult to bear is a solid reminder of warnings from the Productivity Commission and others that the cost, to individuals, of justice is too high. The government’s response to that report was published back in April 2016, but so far there’s been little action taken.

And the time it took for the matter to be struck out reminds In fact, the parties did exercise their rights to ask the court to throw this case out early. They argued for early dismissal on 11 March 2016. It took nearly eight months for the court to give its decision. Everyone in the case would have incurred costs in the intervening period. I make no criticism of the judge. The Turnbull government has failed to properly resource the courts.

So if the conservatives are thinking about how to respond, they could support the important cause of getting more judges onto the court, so that matters can be dealt with much more quickly.
Liberal MP Julian Leeser has suggested a judicial member be made available specifically to the Human Rights Commission, to strike out misconceived or trivial matters much earlier. I strongly agree that if a matter is misconceived or trivial, it should be struck out as early as possible. The courts should be sufficiently resourced for that to happen. But the government should remember that it's not just vilification cases that are affected by the failure to properly resource the courts.
Family law litigants, for example, constantly face long delays - and the court is in no danger of actually meeting its KPIs for getting litigation from go to whoa.
In 2015-16, there were almost 85,000 family law applications filed in the Federal Circuit Court. There were 75 human rights applications filed in that time. Let’s keep this in perspective.
The best way to make sure that claims that have no reasonable prospect of success can be struck out early, and to ensure that parents can get parenting orders sorted out as early as possible, is to properly resource the Federal Circuit Court.
What this case does not show is that section 18C should go. The provision itself, and read together with its neighbour section 18D, provides a moderate and not unlimited protection against hate speech. To win the claim, it's not enough for the person suing to have personally felt offended; the court would need to find that the references to segregation, white supremacists and the word "nigger" were reasonably (objectively) likely to offend. If the court has decided the case had no reasonable prospect of success, that should send a clear signal to Liberal MPs that the provision does not have the breadth they feared.
So instead of spending their time on trying to make it easier to bigot, worried parliamentarians should consider the broader issues raised about how and whether people - not just those involved in the 75 human rights cases filed in a year, but those involved in the 85,000 family law cases filed in the same time - can get access to justice. 

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  • commented 2016-12-12 22:05:12 +1000
    You’re delusional

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