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Parliamentary Joint Committee on Human Rights
Freedom of speech in Australia
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Parliamentary Joint Committee on Human Rights
Perrett, Graham, MP
Paterson, Sen James
Leeser, Julian, MP
King, Madeleine, MP
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Parliamentary Joint Committee on Human Rights
(Joint-Friday, 10 February 2017)
CHAIR (Mr Goodenough)
Ms MADELEINE KING
Ms MADELEINE KING
Ms MADELEINE KING
Ms MADELEINE KING
Ms MADELEINE KING
Ms MADELEINE KING
- Mr PERRETT
Content WindowParliamentary Joint Committee on Human Rights
Freedom of speech in Australia
MORRIS, Mr Tony, QC, Private capacity
THWAITES, Mr Calum, Private capacity
WOOD, Mr Alexander, Private capacity
CHAIR: Welcome. I advise witnesses that in giving evidence to the committee they are protected by parliamentary privilege. I remind both committee members and witnesses of the significant responsibilities that accompany the use of this privilege and encourage participants to exercise it with those in mind. I invite witnesses to give evidence that is relevant to the committee's terms of reference without unnecessarily commenting adversely on any particular person. I remind committee members that privilege resolution 1 outlines that procedures to be observed by committees for the protection of witnesses, including that witnesses who are assisting committees should be treated equitably. As chair, I am required to ensure that the questions are put and answered in an orderly manner and to ensure that the proceedings are conducted with courtesy on all sides. Do you have any comments to make on the capacity in which you appear?
Mr Wood : I was involved with the QUT court case.
Mr Morris : I am a barrister. I represented two of the students involved in the QUT case—Calum Thwaites, who is here today, and also Jackson Powell—and I also assisted Mr Bill Leak in relation to the complaint against him.
Mr Thwaites : I was the seventh respondent in the QUT case.
CHAIR: I invite you to make a brief opening statement, after which members of the committee may ask some questions.
Mr Morris : It is probably apparent to the committee members that I went to a lot of trouble to make my submissions as short, concise and to-the-point as possible. I want to spend a few minutes, with the committee's indulgence, saying something much more general about the importance of freedom of speech in our community. To illustrate that, I will reference a historic case, which is particularly relevant to mention here and now because 2017 is actually the centenary of the event I am referring to and all relevant aspects of it occurred within about 300 to 400 metres of where this committee is sitting today.
If we go back to 1917, I am sure members of the committee will recall that there were two votes by the Australian community during the First World War on the issue of conscription. The first plebiscite failed. The Prime Minister of the day, Mr Hughes, invested a great deal of his political capital—every penny of it and then some—in calling for a second plebiscite. He had a problem with that in that the second plebiscite was based entirely on a fundamental untruth. Mr Hughes was campaigning for a 'yes' vote on the basis that Australia needed conscription to replace troops who had fallen on the battlefields of Europe and to fulfil our commitments to the King and the Empire. That was demonstrably untrue. The government records of the day showed that the number of volunteers available at the time were more than the government had the capacity to train, to equip and to arm, and far more than the government had the capacity to ship over to Europe.
The debate on that second plebiscite was obviously an extremely heated one. It led to a split in the Australian Labor Party and the commission by Mr Hughes of what many would regard as the greatest act of bastardry in the history of Australian politics: when he turned his back on his own party and went into government with the erstwhile opposition. The job of fighting the 'no' campaign fell to the only Labor leader left standing in the country, which was TJ Ryan, one of our local heroes—probably the best Premier Queensland had in the hundred years or so that separated Sir Samuel Griffith and Mr Peter Beattie—a great champion of the working people of this country and a great advocate for the rights of individual.
But Mr Ryan had a problem. This may come as a shock to members of the committee, because it is not entirely unknown historically for campaign rhetoric to part company with the truth on some issues, but never before or since had anyone used legislation to prevent the truth coming out. Mr Hughes relied on the federal emergency war powers legislation to prevent the publication of any information which contradicted his own campaign. How could Ryan run a 'no' campaign in the face of that legislation? Mr Ryan was a pretty smart man and on 22 November 1917 he stood up in the Legislative Assembly chamber, across the corridor here, and read into the record every document, every statistic, every piece of information that had been banned by the federal censors so that they could be published in Hansard and made available to the community.
The reaction was, quite seriously, the most extraordinary thing in this nation's history. Mr Hughes initially reacted by instructing the Postmaster-General's Department that copies of Queensland Hansard were not to be accepted for transmission by post. There is also some evidence, although it is inconclusive, that he instructed the PMG's Department not to transmit telegrams issued by the Queensland government. Then, on the night of 26 November 1917, having travelled to Brisbane for this very purpose, he instructed the chief censor for Queensland, supported by a platoon of soldiers, to conduct a midnight raid on the Government Printing Office to seize every copy of Hansard that they could find, to seize copies of the printing plates that were used to print Hansard, and to destroy all of that so that the facts could not come out.
Mr PERRETT: They were on-water matters, were they?
Mr Morris : Yes! The following morning state cabinet met and resolved that a state of open conflict existed between the Queensland and Commonwealth governments. Word got back to Mr Hughes that some copies of Hansard had been missed during the midnight raid and the chief censor was again sent to the Government Printing Office with his platoon of soldiers and they were met by almost the entire Queensland police force standing out the front of the building, fully armed and with weapons drawn and instructions from the government in Brisbane not to permit any further unlawful interference with state property. The next thing that happened was that word got to Mr Hughes that a local newspaper associated with the ALP, a newspaper called The Worker, was going to run a story about the information which had been released in state parliament. So the chief censor and his army supporters set off to The Worker's office—I think in Adelaide Street here in Brisbane—and, again, the Queensland police were there, armed and with instructions from the government to resist any attempt to unlawfully interfere with private property.
Mr Hughes had Mr Ryan charged with breaching the federal emergency legislation. The charge was dismissed on the basis of the Bill of Rights of 1688—nothing that was said in parliament could be used in evidence against Mr Ryan—and Mr Hughes, personally, was ordered to pay the costs of the proceedings. But the real upshot of that extraordinary event was the referendum failed, and the referendum failed in the view of many commentators because Australians will not abide a situation where they are prevented from speaking freely, frankly, openly and robustly about an issue which is important to them.
We all know that there is the prospect of another referendum coming up in this country in the not too distant future. And in the tragic event that that referendum were to fail, when you start looking for the culprits, it is going to be section 18C, the Human Rights Commission and Gillian Triggs, the Race Discrimination Commissioner and the plaintiffs in the QUT case, because they are the ones who have informed Australia that on issues of that nature you do not have the right to speak freely. Whilst section 18C remains as it stands, Australians will not accept that there is an acceptable level of freedom in this country. That is all I wish to say.
Mr Wood : There are a couple of points I would like to make. If it suits the committee, I would like to deliver a statement after that relates to my personal experience with the case. I know Tony went a bit over time but I will try to keep it succinct: (1) I strongly reject racism in any of its manifestations; (2) the comment I made was a statement of fact followed by a statement of opinion on my personal observation of QUT policy; (3) it was never intended nor could it be conceivably construed as racist or a comment directed to Ms Prior and Indigenous people as a whole; (4) the role of the Australian Human Rights Commission in all of this has caused it to escalate considerably and allowed it to get out of hand; (5) my initial response of being sued in court was of extreme fear and stress; (6) the accusation itself, with nothing more, creates the stigma—the racist slur is the worst type of defamation; (7) it has permitted a sanctioned attack upon my character; (8) the court case was inescapable as I was never going to pay $5,000 for it to go away—it was simply wrong; (9) offers of an apology and to settle without costs were staunchly rebuffed, and I feel as though the pursuit of this case, despite my offers of settlement, has been irrational and I personally wonder whether it was Ms Prior who made all the calls; and (10) but for my lawyers, who have acted for me without asking for payment, I do not know where I would be.
I am 22 years old. As you are now aware I was involved in the QUT court case. I come not as an aspiring politician nor am I a political activist. I am not a lawyer and I do not know the ins and outs of constitutional law. I come to you today as a young bloke who has gone through an incredibly tough time, and I offer a unique perspective on how a small and innocuous statement can lead to drastically changed lives, hundreds of thousands of dollars in legal bills and years of court and legal proceedings.
I feel I should explain the simplistic incident and add to it my personal experience. I was 19 and in my second year of uni. I was with two of my engineering mates and we were trying to find a computer so that we could do our uni work. There were two buildings that had been recently built at the university. One of them was full of computers and we exhausted all options there, so we thought we would go to the other building and search for another computer lab. We walked straight in. There was a computer lab that looked like any other. We sat down and about five minutes later a lady came towards us and asked us if we were Indigenous. We said, 'No, we are not,' and she quite brusquely asked us to leave, because they were reserved for Indigenous students, and that we had to go. We promptly left and about 45 minutes later I found another computer where I posted on a Facebook page to a couple of thousand other QUT students. I said:
Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation.
I did not follow the post too closely after that, but what ensued was quite a political debate both for and against the merits of the facility. It was not until the next day, when I got a letter from a staff member at QUT, that I was told to take down the post. I promptly jumped on Facebook to take it down but it was already deleted. I sort of put the incident to the back of my mind until about two years later, when I was in my last semester of uni and I was faithfully reading my emails one Friday afternoon. I had an email from the HR department at uni detailing a case that had been with the Australian Human Rights Commission for over 14 months, with a conciliation scheduled for the Monday, which was just one business day after. I was quite confused because at no point had anyone from the commission ever got in contact with me personally, and, to the best of my knowledge, ever tried. I spoke to the university's lawyers, who told me that conciliation was optional and the uni has been dealing with it for quite some time. I did not appreciate the full gravity of the situation at the time, and I was not legally represented. Around two months later, I was served with a notice to appear at the Federal Circuit Court of Australia, as I was personally being sued for over $250,000. At the same time, I was offered a confidential settlement of $5,000. I was extremely disappointed with my university and the commission, who I felt have effectively hung me out to dry.
At that point in my life, it all sort of hit me at once. I was afraid. I felt that uni had been for nothing. I had studied quite hard and had a GPA of 6.3, and I thought that was going to go down the drain. I thought I was going to lose my job and potentially not be able to get a job after uni. I thought my friends would shun me if they thought I was a racist. But, most importantly, I thought that I had incredibly disappointed my mum and my dad. My mum, who is with me here today, and my dad, who passed away in 2006, have always instilled in me strong morals. I have fundamentally formed who I am around these morals. These are to give everyone a fair go; (1) to listen to people and (2) to learn from them; and to treat others fairly and kindly. I held my dad in the highest regard. He was quite a virtuous man, and at that point I thought I had destroyed his legacy. So I think being wrongly accused as a racist under 18C is not just defamation; it allowed for a sanctioned attack on my character, on who I am and on my upbringing.
Suffice it to say I got in contact with some lawyers. It was a family friend who put me in contact with Michael Henry and Bourke Legal. Between that period and the end of the case, I do not think I need to elaborate, because it was quite heavily publicised, but by that point it permeated every facet of my life. I could not escape it at home, I could not escape it with friends, I could not escape it at work, and I was even in a couple of situations when I was out and people were talking about my case and about me, and I did not know who they were and they did not know who I was.
The case was thrown out of court, and all the costs were awarded against Ms Prior. As I had claimed all along and as the judge found, I was effectively rallying against racism. This is how I felt about the statement from day one. It was never targeted at Ms Prior or the Indigenous people as a whole. It was simply an observation upon university policy. I offered numerous times to settle outside of court for no money, even offering to apologise. Each time that happened, I was met with a response of $5,000. I felt as if I were being held to ransom, and I felt that Ms Prior had received poor legal advice.
This case should never have reached the level it did. We attempted to make Ms Moriarty, Ms Prior's lawyer, liable for some of the damages. However, that bid failed, and now I am stuck with a $41,000 bill. I am 22 years old, effectively exonerated in court, dragged through years of legal action, let down by my university and let down by the Australian Human Rights Commission, and now I am stuck with a $41,000 bill. My lawyers, Michael Henry, Damien Bourke and Anthony Collins, have not been paid and may never get paid for their hard work. Where is the justice in this?
I support the original ideals of the RDA and readily agree there needs to be a balance struck between free speech and freedom from racism. However, as 18C stands and as my case has shown, it can be used in a malicious way to persecute the innocent. I have followed the debate around 18C, both for and against, and resoundingly the 'for' arguments say 18D offers significant protection, but can I just ask all of you today: is 18D working if I had to accrue thousands and thousands of dollars of legal fees after only saying: 'Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation'? I have also heard senators rhetorically asking previous witnesses, 'What would you like to say now that you can't say under 18C?' Quite frankly, I would like to be able to make an observation on university policy in good faith, which was and is found to be rallying against racism, without enduring the legal fiasco that I have just to prove its innocence.
There are no winners in my case at all, and 18C, to me, means hundreds of thousands of dollars of legal fees, a lady who is in financial ruin, me being close to financial ruin, three students who paid $5,000 not to be dragged through the court system, and Cal Thwaites, who sits next to me today, who had to change his career because of the ramifications of being perceived as a racist. I honestly believe 18C was extremely close to ruining my life and still has the potential to do so.
CHAIR: Mr Thwaites?
Mr Thwaites : I do not have a lot more to say than what was in my submission. I know we are quite over time at this point. I just want to say I did not touch on 18C in my submission. I felt that it was not required. Having followed the inquiry to this point, there is a lot of talk about whether or not it is functional and whether or not the protection is needed or is warranted. At this point, all I can say is it is not working the way it is meant to work. Maybe at the court level everything is fine, but the combination of 18C and the Human Rights Commission leads to what can only be called state sanctioned extortion. If we do not change it, there are going to be more QUT cases. It is not going to just get better. If that is what we want our society to be then we can keep the law how it is. But if we want people to be free and actually enjoy life instead of wondering about everything they say and waiting for a letter to go into a star chamber—as some call it—and be shaken down for money, then we keep 18C the way it is.
Mr PERRETT: Thank you, Mr Thwaites, Mr Morris and Mr Wood, for your submissions. In particular, I am sure your mum is very proud of you, Mr Wood. It took a lot of courage to step up and say what you said. I just wanted to clarify: is the $41,000 for costs awarded against you for your claim against the lawyer for Cindy Prior?
Mr Wood : Yes, it was.
Mr PERRETT: Okay. I just wanted to clarify that. Most of my questions are for Mr Morris. Your submission is very long—
Mr Morris : Comprehensive is the word, I believe.
Mr PERRETT: It is not a word I would use! It was made in your personal capacity, Mr Morris?
Mr Morris : Yes.
Mr PERRETT: You were admitted in 1983 and took silk in 1992?
Mr Morris : That is right, yes.
Mr PERRETT: You mentioned that you were involved in both the QUT case, obviously—representing two of the students—and the Bill Leak case. Have you, as a senior barrister, had a lot of experience in claims under section 18C, other than those two?
Mr Morris : No, very few. I have a longstanding interest in this legislation. In fact, there is mention somewhere in my submission of an article that I wrote in the Australian Law Journal that led to the Brandy case—I think it was almost 20 years ago now. So I have been following it very closely for a very long time.
Mr PERRETT: Mr Morris, may I suggest we just keep a little bit tighter?
Mr Morris : Yes. Those are the only two cases I have had that have ended up here.
Mr PERRETT: Your submission runs to 153 pages. I think you indicate that Mr Thwaites assisted you in the preparation of the document, but it was settled by you, a senior counsel in—
Mr Morris : Yes, and I take full responsibility for every word of it.
Mr PERRETT: Not Mr Thwaites?
Mr Morris : No.
Mr Thwaites : My role was mainly proofreading.
Mr PERRETT: It is obviously an extraordinary submission for its tone and its very disparaging comments about a raft of people, including Professor Gillian Triggs; the Race Discrimination Commissioner, Tim Soutphommasane; and the Australian Human Rights Commission itself. In fact, almost everyone mentioned in the 153 pages cops a bit of a spray, except perhaps for some glowing references to the current Attorney-General, who I think is your close friend. Is that right?
Mr Morris : I would not say he is a close friend. We have known one another—
Mr PERRETT: I think you did say 'close friend'.
Mr Morris : Sorry?
Mr PERRETT: I think you did say 'close friend' in your submission.
Mr Morris : Did I?
Mr PERRETT: Yes.
Mr Morris : I have never been to his home, to be honest with you. It is not that sort of friendship.
Mr PERRETT: Okay. You are a very well-known senior counsel. I was very surprised by the tone of your submission that attacks public servants in particular. You are very senior member of the bar in Queensland. You accuse the Australian Human Rights Commission of being Snow White and the Seven Dwarfs. You accuse the Race Discrimination Commissioner of being the one known as Dopey—I think this is the term you agreed to use. You question the qualifications of the president, Professor Gillian Triggs.
Mr Morris : Indeed.
Mr PERRETT: You question their functions. In fact, you make the reference—and I think you use the term 'literally' when using it—that the Australian Human Rights Commission's functions are propaganda inspired by Dr Joseph Goebbels.
Mr Morris : Yes. It is in the legislation that is propogating that policy.
Mr PERRETT: And you say that they are actually involved in blackmail and extortion.
Mr Morris : That is right.
Mr PERRETT: I am not using the term Mr Thwaites used off the cuff. Your settled remarks as a senior counsel are that they are involved in blackmail and extortion?
Mr Morris : Absolutely.
Mr PERRETT: For a senior counsel to make those comments about a fellow professional, a fellow lawyer, and a statutory body—that is quite remarkable.
Mr Morris : It is, and I have never—
Mr PERRETT: Would you say that they are unprofessional comments for a senior member of the Queensland bar?
Mr Morris : No. They would only be unprofessional if they were unjustified. Let us just deal with Professor Triggs. She goes on ABC television three days after the decision dismissing the claims against my clients, she is asked specifically why it takes 14 months for her organisation to tell them that there are complaints about them, and she lies. She says, 'It was because they were on holidays.' We have got here the full file of every document from the Human Rights Commission. There is no record of any attempt to contact them, let alone anyone being on holidays. But this woman, paid by the Australian taxpayers, feels that she has the right to go on television and tell a blatant untruth as to why her organisation—
Mr PERRETT: As part of 'Nazi-like functions', in fact.
Mr Morris : Indeed.
Mr PERRETT: You have been a barrister for more than 30 years.
Mr Morris : Yes.
Mr PERRETT: In fact, you have been at the bar for the entire life of section 18C of the Racial Discrimination Act.
Mr Morris : Indeed, yes, I have.
Mr PERRETT: Yet the only matters that have come across your desk that involve 18C have been the QUT case and the Bill Leak case, in the last year?
Mr Morris : Yes. That is so.
Mr PERRETT: Over the last 20 years, since section 18C was enacted, has a matter that involved a complaint against section 18C come in front of you?
Mr Morris : A complaint under section 18C?
Mr PERRETT: Yes. I think you said you wrote one article about 18C.
Mr Morris : Yes.
Mr PERRETT: I do not think I got a mention of it in the submission that you—
Mr Morris : It is mentioned in the submission. There is an article in TheAustralian Law Journal, probably the country's leading legal journal. My recollection, just off the top of my head, is about 1995.
Mr PERRETT: So these are the two main cases.
Mr Morris : Yes.
Mr PERRETT: In your other job, outside of 18C-type matters, as a barrister, have any of your cases settled?
Mr Morris : Of course, yes.
Mr PERRETT: Before you get to the steps of the court or—
Mr Morris : Yes.
Mr PERRETT: Has the settlement ever involved the payment of money in any of your cases?
Mr Morris : Almost invariably.
Mr PERRETT: And were any of those cases defamation cases?
Mr Morris : I can recall a couple of defamation cases that have settled for monetary payments, yes.
Mr PERRETT: Which similarly involved restrictions on what someone can say about somebody else? Defamation obviously—
Mr Morris : Yes—defamatory statements.
Mr PERRETT: So, as a barrister, you have been instructed in cases where you have agreed to a financial settlement before actually going to the court?
Mr Morris : Yes. In fact, one of the defamation cases was for Mr Bob Hawke, who sued for defamation because someone had said something untrue.
Mr PERRETT: I assume that the Queensland Law Society and the Bar Association actually suggest that the conciliation process might be an important part of avoiding legal cases and having someone sort things out before they go to court.
Mr Morris : I am not sure that I understand the question. Can I put it this way—
Mr PERRETT: That our legal associations put a focus on: before we get to court, try to work out things to the best we can.
Mr Morris : No. Normally, proceedings are commenced and then a matter is referred to dispute resolution. So there is something on the public record. People know that there is a case there, but it is settled before it gets to trial. That is the usual situation.
Mr PERRETT: The reason I ask is that, in your submission, you refer to some redacted pages you received from the AHRC referring to the QUT case, and you call details of attempts at settling the claims through conciliation—the term that you settled on is 'hush money'.
Mr Morris : Yes.
Mr PERRETT: Is that different to settling any other case where the clients weigh up the costs of proceedings and opt to settle, even if they think there is a chance they may win? And some might go ahead. Surely it is a business decision, a financial decision, like with many other cases in front of blind justice.
Mr Morris : No, Mr Perrett, it is not at all analogous because we are dealing here with a situation where, as both Calum and Alex have made clear, the worst thing you can say about anyone in Australia is that they are a racist.
Mr PERRETT: Calling them a Nazi is not bad?
Mr Morris : No, nothing like it. The worst thing you can say about anyone—
Mr PERRETT: Wiping out six million people, homosexuals, Jews, trade union officials and people with disabilities is not the same behaviour as being called a racist?
Mr Morris : I would prefer to finish answering your first question before I answer the next one.
Mr PERRETT: I beg your pardon.
Mr Morris : On that very point, yes, and you will have seen from my submission that one of the points I make is that it is bizarre that we have this 18C protection only for racist comments. Why should there be protection if I am insulted or humiliated because of my race but not because I am homosexual, disabled, elderly or a woman? It is a bizarre piece of legislation. I take the force of what you are saying, Mr Perrett, but, as things stand in the current climate in Australia, the worst thing you can say about someone in the commercial world or in an organisation like a university is that they are racist, so hush money is paid to prevent those allegations from ever seeing the light of day. It is not like the settlement of a defamation case where you have proceedings in court, it is on the public record, everyone knows what is going on and someone pays a bit of money to settle the case on a commercial basis. It is money being paid to prevent the allegations ever leaking out. That is why I call it hush money.
Mr PERRETT: I think you used the term 'blackmail'.
Mr Morris : Yes.
Mr PERRETT: You are deliberately using the term 'blackmail' as well?
Mr Morris : Yes.
Mr PERRETT: My question is to Mr Thwaites, as I think Mr Woods has already answered this. How did you engage your senior counsel, Mr Thwaites?
Mr Thwaites : Originally I represented myself at the first directions hearing in December 2015.
Mr PERRETT: The one where you had no notice effectively?
Mr Thwaites : No, I went to the conciliation with three days notice. That was in August. I found out in late July and early August it was. I went to that. That was a waste of an entire day. If that is how conciliation is meant to be run, I do not see why we do it. There is a reason that we do assisted alternate dispute resolution and that is not it. If that is how they do it, they should not be doing it. It was a farce. But that is another point. December was the first directions hearing for the Federal Circuit Court matter. I went to that self-represented because no-one would touch me.
Mr PERRETT: Not as a law student—
Mr Thwaites : Not as a law student; as an education student.
Mr PERRETT: I should declare that I did my teaching degree and my law degree at QUT.
Mr Thwaites : I will say that there is nothing wrong with the faculty at QUT. I attempted to get legal aid through Legal Aid Queensland. I was told, 'Here are a couple community legal groups. Go away.' I was not asked about my means or the merits for merit testing or means testing, like they mentioned earlier today. That is again another point. I went to a community legal service group and they gave me very limited advice on a two-week email basis. The fact was that they were not going to help me at a trial because they were afraid of their funding being cut. That is from the solicitor himself.
So I went self-rep to December. Tony picked up Jackson Powell, one of the other students through QPILCH, which is an organisation. At that point he then sent around the address for service for Jackson, which went to my email address. At that point I believe Tony realised there were some similarities in what was going on and there was no reason not to pick me up as well. So he reached out and asked if I—
Mr PERRETT: So Mr Morris approached you?
Mr Thwaites : Yes, he approached. If it was not for that, I would have been self-rep the entire time.
Mr PERRETT: Mr Wood, do you want to add to that? You have already sort of touched on it.
Mr Wood : I said it in the statement before. I asked my mum about what I should do. She had a friend who was a solicitor. We got onto her. She I believe went to uni with Michael Henry. From there we engaged the solicitors Bourke Legal.
Mr PERRETT: I was wondering if Mr Thwaites or Mr Wood would like to make comment on—and I do not have all of the posts in front of me; I do not have the words you used, Mr Wood—whether you believe any of the other posts that were mentioned in the complaint, either by you or by others known or unknown, were racist.
Mr Thwaites : Not particularly, no. I have read all of them—all of the ones that have been sent to us. I will say that I had not even seen the post until August 2015.
Mr PERRETT: I understood.
Mr Thwaites : The selection of posts that were chosen to go to court was quite strange, but that is only because the complainant could not find the details for students in the university's database, so she could only pick and choose certain people with obscure names like mine and so forth. But I do not believe that any of the people in the post were being racist per se.
Mr PERRETT: Calling someone a nigger you did not think was inappropriate?
Mr Thwaites : That is the one outlier, and that post, in the entire thing, does not make any sense.
Mr PERRETT: Would you like to comment on the use of that word? Do you find that offensive and racist?
Mr Thwaites : I do not believe that that word should be used. There is no reason to use it.
Mr PERRETT: So it is inherently racist to use that word?
Mr Thwaites : I would not say it was inherently racist. The word itself has been found—
Mr PERRETT: But you? I am asking you.
Mr Thwaites : The word itself has been found to be not racist on its own.
Mr PERRETT: I do not need judicial or legal interpretation—just in terms of good manners. If your mum were sitting here, would you think it is inappropriate?
Mr Thwaites : My mum is sitting here.
Mr PERRETT: So would you think it is appropriate to use that word?
Mr Thwaites : And it was a house rule that, if that word were ever mentioned, you would get a clip around the head. It is not a word that you would use in society.
Mr PERRETT: So you agree that it is a racist word?
Mr Thwaites : It is not a word that is acceptable in society, whether it is because it is racist or because—
Mr PERRETT: Would you like to give your opinion of the word?
Mr Thwaites : I am not a particular fan of it, but it does not affect me. I am not African-American and I am not Indigenous, so it is not a word that impacts me.
Senator PATERSON: Mr Thwaites, just to clarify for the record, were you at the Indigenous computer lab on the day that Mr Wood was evicted?
Mr Thwaites : No, I have never been to the computer lab, either at the Gardens Point campus or at the Kelvin Grove campus. I have never seen the computer lab and I definitely was not there in 2013.
Senator PATERSON: Have you ever met Ms Prior other than through the legal proceeding since?
Mr Thwaites : No, I have only ever seen her at court.
Senator PATERSON: And did you write a comment on Facebook about Ms Prior or any other matter?
Mr Thwaites : No.
Senator PATERSON: So, literally, you were an innocent bystander? You had no connection to the incident on the day. You wrote nothing about it. You did not know the person involved.
Mr Thwaites : Exactly. All I did was exist, and I got dragged through the court.
Senator PATERSON: The end result of you existing and being a student at university is that you went through this entire legal process with all the costs and pain involved in that?
Mr Thwaites : Yes, and the stress and the anxiety and the concern about my career, realising that we live in a world where technology and social media is so ingrained that students stalk their teachers on Google and Facebook and all it takes is one to find something about the case and bring it up to other students or to their parents, and then, every single time it is done, you have to go through the process of: 'I didn't do it. The court found this.' And I already know that people do not believe me. There are a large group of people who read only Fairfax Media or BuzzFeed who think that I am the devil, that I am is racist, that I did this, that I did that.
Senator PATERSON: Or indeed anyone who watched Q&A when Terri Butler appeared on the program.
Mr Thwaites : One could take that view as well, yes.
Senator PATERSON: So, just to clarify, you were studying teaching at the time.
Mr Thwaites : I was studying secondary education majoring in biology.
Senator PATERSON: I understand from media reporting that one of the things you thought you might do when you graduated from your teaching degree was to go and teach in an Indigenous community or in a school with predominantly Indigenous students?
Mr Thwaites : Yes. I had done my Indigenous culture studies component and my prac placement at a school that had quite a high percentage of Indigenous students and also a very high percentage of Indigenous students who, when they completed grade 12, got their QCE. They actually held that 100 per cent of Indigenous students who completed grade 12 completed with the qualification. It was just getting them there. I applied for scholarships to start working in remote locations—Indigenous locations—once I graduated, but at this point that is not going to happen.
Senator PATERSON: So you decided, having been accused of racism, that ultimately some people would never believe your innocence?
Mr Thwaites : Exactly.
Senator PATERSON: And therefore you discontinued your teaching studies; is that right?
Mr Thwaites : I am on a leave of absence at this time, but I will be withdrawing from the course completely.
Senator PATERSON: And you are instead now studying to be a lawyer?
Mr Thwaites : I am studying law—at QUT, surprisingly. I am six months through, with a summer semester as well.
Senator PATERSON: No disrespect to you in your new vocation, or to Mr Morris, but I am not sure it is a net win for society to have one less teacher and one more lawyer!
Mr Thwaites : No, me either. 'But, if you can't beat 'em, join 'em,' I believe is the thing to say!
Senator PATERSON: Yes, clearly! Mr Wood, I just want to clarify a few facts in your case. When you said in your post 'unsigned computer lab', what did you mean by that? What does 'unsigned' mean?
Mr Wood : The computer lab that I walked into looked like a generic lab. For the record, there was a video by the IPA; that goes and shows a different lab. I think it must have moved, because the lab that I went to—that was the Kelvin Grove lab, Calum just told me.
Senator PATERSON: Right—a different campus?
Mr PERRETT: The IPA got it wrong, it sounds like.
Mr Wood : The one that I walked into had no signage at all.
Mr PERRETT: And no swipe card?
Mr Wood : Not at that point, no, but I believe there is now.
Senator PATERSON: Right. So, when you went there on the day, there was nothing that said, 'This is an Indigenous computer lab'?
Mr Wood : No. The first I heard about that was when I was asked to identify if I was Indigenous.
Senator PATERSON: There was nothing that said, 'Non-Indigenous people are not allowed to use this computer lab'?
Mr Wood : No.
Senator PATERSON: Not even an Indigenous flag on the door or anything which gave you a hint?
Mr Wood : Nothing.
Senator PATERSON: Right. So you had no idea. Okay. So you were in there using the computer, you were asked by Miss Prior to leave, and you went and posted this comment on Facebook.
Mr Wood : Yes.
Senator PATERSON: Had you met Miss Prior before that event?
Mr Wood : I never met Miss Prior, to the best of my knowledge, before that, and the next I saw her was in court. She never got in contact with me at any period while I was with the commission, and I never heard from her until—actually, the next time I heard her speak was in the court-ordered mediation.
Senator PATERSON: Did you even know her name?
Mr Wood : No, I did not know her name at all. For the record, I forgot what she looked like because it was such a small incident until it obviously blew up.
Senator PATERSON: One of the things we have heard—and this is a question to both Mr Thwaites and Mr Wood—is that people who participate in the conciliation process of the Human Rights Commission, both on the claimant side and on the respondent side, are generally quite satisfied. They have done surveys of some of the participants, and there has been a high rate of satisfaction. From your evidence, it does not sound like either of you were satisfied with the conciliation process.
Mr Wood : To the best of my knowledge, we never got any sort of feedback form or anything, but we do have a complaint with the commission at the moment.
Senator PATERSON: It was probably very wise of the commission not to send you a survey!
Mr Wood : Yes.
Senator PATERSON: They might not have got the result they wanted!
Mr Thwaites : When the commission says that they survey complainants and respondents, they should probably say that they survey some complainants and respondents based on what they obviously expect the outcome will be, because I know I have not received any correspondence from the Human Rights Commission at all. Alex has not. I doubt that we will receive—
Mr Morris : Jackson has not.
Mr Thwaites : Jackson Powell has not. I doubt we will receive a survey from the commission when our complaint against the commission is finalised. I doubt that they will want to know whether we are satisfied with that. But the answer is, no, there is no satisfaction at all.
Senator PATERSON: Some of your fellow students decided to reach a confidential financial settlement with Miss Prior, which I think from media reporting we now know was to the tune of $5,000 each, and you two were both offered that as well. Why did you not take that up? Given all the pain that you have suffered and all the expenses you have incurred, why didn't you take it up?
Mr Thwaites : There are a couple of reasons. Step one, I am not from a family of means at all. Despite the assumption that I am well off or I have a trust fund that I can tap into, my father is self-employed and we make enough money to put food on the table. We could not afford $5,000, regardless. The second point is that I did not do anything. In 2013, I told the university I did not do anything. I told Miss Prior, Miss Moriarty, the university and the Human Rights Commission in conciliation that I did not do anything, and they still wanted $5,000 from me. Why would I pay $5,000 for something that I did not do?
Mr Wood : I am in a different circumstance. I believe I could have paid the money, but in my interpretation I did nothing wrong. I was not going to pay, as Tony likes to put it, 'hush money'. So, no, I was not going to back down and just pay a lady off for something that was innocent—completely innocent.
Senator PATERSON: Thank you. Just to finish, Mr Morris, if we do not want this to happen again—if we decide as a committee that this is not a good use of the law—what would you recommend we do?
Mr Morris : I think the first priority is to get the Human Rights Commission working properly. If nothing else comes out of this inquiry, I sincerely hope that things are done to make sure it works properly. I have expressed my view that section 18C, section 18D and other parts of the same part of the act are very badly drafted, and I would like to see them redrafted in a way that is clear, precise and fair and provides a sensible balance in protecting rights. I am the first to accept that the rights of not only Indigenous people but all ethnic and racial minorities need to be protected, but there needs to be a sensible balance between providing that protection and limiting free speech.
Senator PATERSON: Just to clarify, do you think changes to Human Rights Commission processes alone would be sufficient, or do you also believe that the law needs to change?
Mr Morris : I know it is not one or the other. An absolute minimum is improving the Human Rights Commission processes. Without that, as Calum put it, we are just stuck in this situation. But I do not think that is enough. It is certainly a necessary step but, whilst 18C remains in its present form, it is no good for anyone. It is no good for the Indigenous and other minorities that it is designed to protect. It creates a victim mentality. It gives people the sense that, if they have been insulted or offended, there is suddenly a tap that can be turned on, and the money will start flowing. That is not a solution to anything. We really need to address this and have a legislative regime, if we are going to have any at all, that fairly balances hate speak, incitements to violence and incitements to hatred on the one hand and free speech on the other.
Senator PATERSON: Thank you.
Mr PERRETT: Mr Morris, do you have your submission?
Mr Morris : Not in front of me, no.
Mr PERRETT: That is all right; I have marked it up for you, and I will read it out to you. You used the term 'income-spinning windfall for ambulance-chasing lawyers'.
Mr Morris : Yes.
Mr PERRETT: Do you have any data on this? Is this sort of a gut feel or a vibe, or do you have some empirical data from the bar or law association?
Mr Morris : Bearing in mind what the chairman said earlier about not identifying particular individuals, I will not name names.
Mr PERRETT: No, do not name names.
Mr Morris : But every case I have become aware of under section 18C has had well-known, normally corporatised law firms.
Mr PERRETT: You have done two cases. I just wanted to clarify. Did you have conversations at the bar dinner? Where did your data come from?
Mr Morris : You can take it from me that, for the last 12 months, every time I have been speaking with another member of the bar, they tell me their war stories about section 18C. This case has attracted a lot of publicity. I am interested, and people, knowing that I am interested, tell me their experiences. The same three or four names come up: particular firms that invariably are bringing these complaints and using them as a means of generating income.
Mr PERRETT: So not a court case.
Mr Morris : No.
Mr PERRETT: I think it has had 96 cases in 20-plus years. This is something that is settled before.
Mr Morris : I think, even on the commission's own figures, something like 97 per cent of cases are settled. They are the cases we are talking about.
Mr PERRETT: They are resolved in all sorts of ways.
Mr Morris : Yes.
Mr PERRETT: Putting aside Mr Thwaites's comments about the conciliation process, obviously some people go through that process with a bit more joy than Mr Thwaites.
Mr Thwaites : I would like to meet one. So far, everyone I have met has not.
Mr PERRETT: Mr Morris, I would like to take you to your suggestion of a defence of a communication to like-minded persons—basically where:
… the person proves that reasonable steps were taken to limit the communication to persons who—
(i) were not members of the relevant vulnerable demographic;
You give an example:
For example, a joke which stereotypes gay men, told at a social function for a football club, the members of which do not include any openly gay men.
Basically, you could make homophobic jokes because you would assume that the people at the football club would like homophobic jokes because they are not gay. Is that the premise?
Mr Morris : There is another example I mention. There is apparently a political party in Australia that has strong views about Asian immigration and issues of that nature.
Mr PERRETT: One Nation?
Mr Morris : That could be the name!
Mr PERRETT: There are a couple of them. If that was their platform, yes.
Mr Morris : If they want to say on their website, 'This is our policy,' then I do not think we should have a law that prevents them communicating with their members and their fellow travellers that policy.
Mr PERRETT: Okay. I think last night there was a dinner in Sydney where Ross Cameron, a former Liberal Party member, suggested that it was okay for people to throw homosexuals off a roof. I think he called them shirt lifters.
Senator PATERSON: I think you are referring to Mr Pickering.
Mr PERRETT: Oh, was it Mr Pickering who said that? I beg your pardon. Thank goodness for parliamentary privilege! I have got to get the right person. Mr Cameron was the MC, but Mr Pickering made that comment. In your world, if you were the Attorney-General for the day, a homophobic joke such as that would be acceptable. You use the example that as long as there are not any openly gay men. What if people were heterosexual and did not like homophobic jokes? Would that cause complications?
Mr Morris : Of course, I am proposing that 18C be, in a sense, extended to other demographic minorities, and my proposal is: if you are going to limit what people can say, you do not want to go into their homes, into their clubs, into their bars, and say, 'When you're having a beer with your mates, you can't tell a homophobic joke.'
Mr PERRETT: You can at home, obviously. You can tell all the homophobic jokes you want.
Mr Morris : Under the present legislation, there are no limits at all. You can tell it on air.
Mr PERRETT: As your good friend said, people have a right to be bigots. It is speaking in public that brings the attention of the law.
Mr Morris : Yes. That is so.
Mr PERRETT: Would you like to say anything more about this defence of communication to like-minded persons, because it is the only submission along these lines that we have had.
Mr Morris : Obviously I have gone outside the terms of reference by suggesting that, if we are going to have anti-vilification laws, it should be all forms of vilification, not just racial vilification. But, again, there has to be that balance. If we are going to have general anti-vilification laws, then it should be subject to appropriate constraints, and one constraint is that there is no legitimate interest for the law to limit what people say amongst a circle of friends who all feel the same way. We may abhor—and, if I can speak frankly, I abhor—such sentiments, but, if members of a football club enjoy a gay joke, that is not going to bring the world to an end.
Mr PERRETT: My last question to you, Mr Morris, is particularly in your capacity as a very experienced senior counsel, with 30 years of experience at the bar. I take you to page 103 of your submission, where you said:
Having used words like 'blackmail' and 'extortion', I should make it very clear what I am saying here. I do not mean those words merely as emotive, colourful, exaggerated, or overblown metaphors for something vaguely distasteful or dishonourable. I mean those words in their strict, literal, and technical legal sense.
These words are 'blackmail' and 'extortion'. I just wondered if you wanted to retreat at all from the words that you settled personally, here on the record in front of the world.
Mr Morris : If you read the very next sentence, it goes on and says that, of course, this form of blackmail and extortion is not illegal because it is covered by federal legislation. That is the only qualification I want to make.
Mr LEESER: Mr Thwaites and Mr Wood, I want to start with you both and say that I am sorry for what you have gone through. I think you have borne it with considerable fortitude and you are to be commended for that. It must have been an incredibly harrowing experience, as you both have testified today. I want to ask you a little bit about the conciliation process and particularly your interactions with the university. Mr Thwaites, from your evidence it seemed to me as though the university were trying to say to you, 'Don't come along to this. We're about to cut a deal.' Did they at any point actively sit down and explain what was going on?
Mr Thwaites : Not particularly. I got the email three days before the conciliation conference from the HR director, which simply said, 'Here's a complaint that you're named in.' After giving myself some time to sleep on it, I emailed her the next morning before class. I got a response that they would prefer not to put anything in writing and that they would like to speak to me on the phone. That is never a good sign.
Mr PERRETT: They emailed that?
Mr Thwaites : They emailed that they would prefer to speak on the phone. At that point it was a lot about—
Mr PERRETT: A red flag went up!
Mr Thwaites : One or two red flags. That conversation was mostly about how it is optional; it is not compulsory; you do not have to attend; I would not worry too much about this; by the way, our lawyers will be there but they are not representing you. I get there. I get told a number of times by the lawyers that they are not representing me, they will not represent me and they do not have any interest in representing me, and there is no liability there.
Mr PERRETT: You were not a party?
Ms MADELEINE KING: Is that the QUT lawyers?
Mr Thwaites : Yes.
Ms MADELEINE KING: Their in-house counsel or—
Mr Thwaites : They are the firm that they—
Ms MADELEINE KING: Just for clarity.
Mr Thwaites : I am not going to go into names, of course. I see nothing wrong with the firm. I will say that in case they are listening.
Mr PERRETT: And looking for a law clerk!
Mr Thwaites : There are different avenues! The university were very hands off, and it was all about protecting their reputation.
Mr LEESER: You were not a party to the conciliation before that time? So far as the commission was concerned—
Mr Thwaites : The thing that you are getting slightly confused with there is that the conciliation is just the conciliation conference and what they would call an investigation beforehand, which was sending an email every two months to see if the parties have died yet.
Mr LEESER: I want to know the part where you first became involved with the university, when they were giving you the wink and the nudge not to come along.
Mr Thwaites : The day after I received the email from the university, which was three days before the conciliation conference.
Mr LEESER: And you were not a party prior to that? You had not been contacted?
Mr Thwaites : I had not been contacted. I was a named respondent. My details were on the form. There was no reason why I was not contactable.
Mr LEESER: Do you think the university had a duty to contact you?
Mr Thwaites : I believe they should have, but they were just protecting themselves and trying to cut a deal up until that exact point. I believe they were trying to cut a deal up until the day before.
Mr LEESER: Do you know why they contacted you?
Mr Thwaites : Because the AHRC, as we have here, sent them numerous emails through their legal representatives, saying, 'Have you contacted the students? You need to contact the students.' For some reason the AHRC could not be bothered to do their job.
Mr LEESER: What should the AHRC have done here?
Mr Thwaites : Number one: the AHRC should have followed the statutory requirement for the President to be notified about the complaint. She was never notified about the complaint. Number two, they should have contacted all the named respondents. If they did not have the information for some of the named respondents, which they did not—they did not have the information for two of them—they should have used the powers that they have to compel the university to provide the respondents details. We should have been involved from the get go so that Alex could talk about what he was saying was simply a statement of fact, and so I could bring up the fact that I never did anything and I had been staying this since 2013. Then this could have all ended peacefully and happily. Instead, we have no-one winning except for one lawyer on one side, who brings these complaints and who is the only winner in this situation—not the students, not Ms Prior, not my lawyers, not Alex's lawyers.
Mr LEESER: Given that the university had kind of indicated to you not to show up at the conciliation conference, I am trying to understand why you decided to go along.
Mr Thwaites : Because I am not an idiot. Looking at it, it is quite a serious thing. A complaint of racial vilification to the Australian Human Rights Commission, and the university saying, 'Don't worry about it, it's fine'—
Mr LEESER: And they did not go into more detail with you in those discussions with you?
Mr Thwaites : No. They said they had been trying to resolve it and it was all to do with this incident in 2013. There was no way I was not going to turn up to that.
Mr LEESER: Mr Wood, do you want to say anything about this?
Mr Wood : I was on a different wavelength. I had commitments that Monday. I only had a short segment out of the whole legal documents. After talking to the uni, I felt dissuaded. I thought that I was in essence a witness. I did not want to get involved and I thought they were going to handle it. I thought they did have a duty of care. Obviously, I am not a law man; I am just a simple engineer.
Ms MADELEINE KING: There is no such thing!
Mr PERRETT: With a GPA above six!
Mr Wood : I felt dissuaded to attend.
Mr LEESER: When you decided to adopt what I will describe as the Wellington strategy of 'publish and be damned', did Mr Morris talk to you about the consequence of doing that?
Mr Thwaites : Actually, the publication occurred before I was represented. The story broke in The Australian before I had legal representation, so at that point it was a matter of, 'If you don't get on top of it and if you don't tell your side of the story you can never tell your side of the story.' You are always trying to react or play catch up. We did discuss at some point the 'publish and be damned' implications, but we were so far gone that we just had to commit.
Mr LEESER: But you understood the consequence that the more you feed this the more people read about it.
Mr Thwaites : Yes.
Mr LEESER: I want to know that somebody explained that to you.
Mr Thwaites : I was aware of that. I had had long conversations with my mother and father about the pros and cons of getting involved in the media. It is not that I got involved in the media to get my 15 minutes of fame, because if had I would get something a little bit better than this. It was to make sure my side of the story was out there, so that when people look at it they do not just see that I deny making the post or that I might have made this post, but that they see what actually happened.
Mr LEESER: Mr Wood, I wanted to ask you about your action against Ms Prior's lawyers. I think one of the issues in this space is that the protection in law is very limited, and yet in your case and in the Bill Leak case I think we have seen people think that the actuality of the law does not match case they are bringing. I do not think either of you has a case to answer, but that is my view. In both of those cases we have had lawyers who perhaps should have known better than to bring cases. Tell me about your decision to take it on Ms Moriarty.
Mr Wood : As I said before, the judge found that I was effectively rallying against racism. That is how I felt the whole time. As I said before, because of the amount of times we tried to settle outside of court without money—we were only rebuked with $5,000—I thought that she must have had poor legal advice. Coming from the judgement made by Judge Jarrett, we thought that we could make Ms Moriarty liable for some of those costs. It was not purely Ms Prior's fault, per se.
Mr LEESER: Do the three of you think we should put in place some sort of regime where, as in the migration legislation, costs can be awarded against lawyers that bring cases either to the commission or to the courts that have no reasonable prospect of success? Should there be some sort of legislative bar in relation to that to fix up what Mr Morris has described as the ambulance chasers in this space?
Mr Morris : I honestly have not thought that through, nor all the ramifications. From my perspective—I am not trying to dodge the question—cases like the QUT case only get to court because no-one at the Human Rights Commission says to complainants like Cindy Prior, 'You don't have a case.' These cases should be knocked out on day 3. If they were, you would not have the ambulance-chasing lawyers having that opportunity. But that is not a direct answer to your question.
Mr LEESER: I am asking whether we should have some kind of cost penalty for lawyers who bring cases to the commission, even.
Mr Morris : It is certainly work exploring. I would not want to express a completed view.
Mr Thwaites : There needs to be some level of accountability for bringing cases. In the QUT case especially, there is a lot of talk about the law being settled. I have heard this in every single one of the hearings. But that is not the case at the commission level. That does not seem to be what some solicitors have thought, because this was about someone being offended, but not on a profound level. Justice Kiefel would not say that this was profound at all. If the law is settled, like you say it is, then this never would have come up. So there needs to be some accountability to make sure people are not just having a go, thinking the worst that could happen to you is that the case is dismissed. Whether the accountability is the Human Rights Commission being forced to be accountable for allowing complaints through or whether its listers are accountable for bringing these dodgy cases—I am not sure which one.
Mr Wood : I would like to add that in our case there were no winners. Everyone involved was drastically affected in some way, even the lady who brought it to the court—she is now effectively, I presume, bankrupt. That is why we tried to hold some accountability to her legal advice, to her lawyer.
Mr LEESER: Do you think that the university should appear before our committee and explain their role in this case?
Mr Thwaites : Yes.
Mr LEESER: Mr Morris, I want to move to you very briefly. I think I am, if I may use this expression, beyond the colour and movement of your submission. I think I am largely on board with what you are getting at. I agree that there should be some balance between freedom of speech and protections for racial vilification, and I also think very strongly that there needs to be some process changes. I think you have put a lot of thought into your process changes. I wonder whether—in the briefest way possible; we are running quite short of time—you might walk us through getting to the nub of what your process changes are designed to do.
Mr Morris : What they are designed to do—I guess a number of things. Step 1: although the act currently says that every complaint has to go to the president it does not happen. I happen to have in front of me—I cannot make this public, because the president's delegate has slapped a prohibition order—a senior officer of the commission confirms that it never happens, even though the legislation says everything has to go to the president. That actually does not happen.
Step 2 is the so-called investigation. The investigation is at best superficial, at worst nonexistent. My proposal is a regime which compels the president to ensure that those jobs are done properly, so that before any case goes to court she or he has to sign a certificate saying, 'We have looked at this case carefully. We've reviewed it. We've investigated it. We've held a conciliation—it was a proper conciliation. At the end of the day, we weren't able to resolve it but we're satisfied that there's a reasonable case here, but the amount offered by the respondent is less than the claimant should be reasonably entitled to. Therefore the case should be allowed to proceed to court.'
Mr LEESER: Those are for areas where the president has terminated the matter, effectively, because they could not reach a consensus at the conciliation.
Mr Morris : Yes.
Mr LEESER: You may have seen my proposal that where there is no reasonable prospect of success the president should have to assess that particular point and terminate early on that basis. Do you agree?
Mr Morris : I agree entirely. That should be step 1. The termination is invariably done at step 4, but they should be looked at as they come in. If it is a hopeless case—I am not here just to fight for the interests of the white boys who got sued. Even for the Indigenous claimants like Ms Prior, it does her no good to be told that she has a case and three years later have a costs order against her for a couple of hundred thousand dollars. It does not do anyone any good. If Triggs and her staff were doing their job properly Cindy Prior would have been told within seven or 14 days: 'Look, this isn't a case that is ever going to succeed in court. Go away.'
Mr LEESER: And that is effectively what needs to happen now.
Mr Morris : It is what has to happen. I think, if I understand your proposal correctly, there is only one thing I am not sure that I do agree with. There was a suggestion of having a judge involved as a part-time commissioner or something.
Mr LEESER: That was to stand in the shoes of the president, as it were, dealing with these matters.
Mr Morris : I do not think there is anyone alive who has more respect for judges than I do, but judges are only really good at deciding cases where they have people arguing both sides of the toss. I think asking a judge to come in, particularly on a part-time basis, where he or she has only got the papers and has to make a decision of that nature is not a proper job to be asking a judge to do.
Mr LEESER: Thank you, Mr Morris.
Mr PERRETT: I want to go to the Wellington publish-and-be-damned strategy. I understand that Mr Thwaites was not your client at the time—you had one of the students as your client but not Mr Thwaites.
Mr Morris : Yes. Jackson Powell came to me first, and the strategy was discussed and put into place.
Mr PERRETT: In paragraph 158 you say:
That is the advice which I gave to my clients in the QUT Case, and later in the Bill Leak Case; a course of which - for obvious reasons - the AHRC and Professor Triggs strongly disapproved.
Because I assume getting things sorted quietly, without the blare of the media, is obviously part of the logic behind it.
And if it seems a little immodest of me to claim the credit for a strategy which has proved to be the only way of escaping blackmail in Section 18C and other racial discrimination cases, I give credit to Wellington as the inspiration for this strategy, and merely wonder why nobody thought of applying it sooner as a prophylactic against the AHRC's successful 'protection racket'.
In hindsight, since Mr Thwaites and Mr Wood are now known throughout the land because of the glare of publicity—I know you are trumpeting the benefits of the publish-and-be-damned strategy—would you like to talk about that in terms of how we have potentially lost a great teacher because of this publicity? I would also like Mr Wood to tell us what he thinks.
Mr Morris : I thank you for that question, because it is actually an important point. Calum's problem was that from day one, when the proceedings were filed in the Federal Circuit Court in October 2015, his name was always going to be searchable on the internet.
Mr PERRETT: Because it is not Smith?
Mr Morris : Yes.
Mr Thwaites : A note that I would like to make is I actually found it that way before I got served. I googled my name and found it through the court documents, before I had actually received the documents myself.
Mr PERRETT: Okay.
Mr Morris : So in that sense the downside of being a defendant already existed. The upside was to get his story out so that now everyone in Australia knows, yes, he is the guy who was sued, but he is innocent. If we had adopted any other strategy—and let me say, I was the one who said to him, and I remember the very words: 'Look mate, Australia needs good teachers more than it needs good lawyers. Don't do this.'
Mr PERRETT: You can be both, Mr Thwaites, dare I say.
Mr Thwaites : I am not necessarily sold on the idea yet.
Mr Morris : If he was teaching at Cunnamulla, the same problem would still exist because anyone doing a google search would turn him up. At least now when that happens he can say, 'Yes, but here are all of these reports showing that I was vindicated.'
Mr Wood : I largely tried to stay out of the media, but I do believe the Australian public had a right to know. I do not think it is a place for the government to put policy on our thoughts, which is, in effect, 18C.
CHAIR: As there are no further questions, I thank you, Mr Morris, Mr Thwaites and Mr Wood, for appearing before the committee.