At all relevant times, before and after the filing of the Australian Human Rights Commission complaint, QUT proceeded on the basis that there were reasonable prospects of the complainant and the university resolving the issues in dispute between them, in which case the complaint against the students would not proceed. Regrettably, the matters were unable to be resolved.
QUT welcomes the Parliamentary Joint Committee on Human Rights Inquiry into ss. 18C and 18D of the Racial Discrimination Act and whether the complaints-handling procedures of the AHRC should be reformed.
The level of current public debate concerning s. 18C would indicate a parliamentary inquiry is an appropriate forum for further debate.
The review will appropriately include an examination of whether reform is required in relation to the threshold for a complaint under s. 18C.
QUT has not spoken publicly about s. 18C previously so as not to, or be seen to, publicly comment until the judicial process had concluded. Hopefully it is now concluded as far as the students are concerned.
It is regrettable that the case involving the QUT students took so long to be resolved. It was not the university's choice to be associated with these proceedings. The alleged breach of s. 18C was not made by, nor against, the university.
Immediately after the incident occurred on 28 May 2013, the university took action to seek to resolve the issues in respect of all parties.
As soon as the students concerned were contacted by the relevant senior officer at QUT and asked to take down Facebook posts that another staff member said she found offensive, all but one agreed to do so immediately. That one student denied being the author of the comments posted under their name. Subsequently the post was also removed, although it was not established who was responsible for that action. The university wrote to each student in confidential terms explaining the university's position in relation to the posts attributed to that student, and from the university's point of view, we expected that to be the end of the matter as far as the students were concerned.
Subsequently, when Ms Prior lodged a formal complaint with the university, QUT took early steps to try to resolve the issue directly with Ms Prior on terms which would have meant the matter would not proceed against any party.
A year later, on 27 May 2014 the AHRC complaint was filed. Ms Prior (through her then lawyers Slater & Gordon) asked the AHRC not to serve her complaint on the students nor to list the complaint for conciliation until Ms Prior and QUT had been provided with a sufficient opportunity to attempt to resolve the matter.
Although Ms Prior had initially expressed to QUT significant concern about the student posts, her focus in the AHRC complaint proceedings at that point and up until June 2015 appeared to be primarily with QUT, not the students.
Negotiations between QUT and Ms Prior continued, and appeared to be progressing well. However although proposals were exchanged which, if accepted, would have resolved the matter for all parties including QUT staff and the students, ultimately the matter did not resolve.
In March 2015, Ms Prior replaced her lawyers, Slater & Gordon, with Susan Moriarty and Associates and eventually in June 2015 Ms Prior confirmed to the AHRC her intention to pursue her complaint against the students. This was the first time this had been made explicit.
The AHRC then proposed a formal conciliation conference on 3 August 2015. Given that good progress towards settlement had been made in December 2014, it was again hoped that a settlement could be reached between QUT and Ms Prior and thus prevent the students from being required to be involved in the proceedings. Again, regrettably, resolution could not be reached.
By the time it became clear that resolution could not be reached, the proposed conciliation conference was close at hand. The university sought to postpone the conciliation conference listed for 3 August 2015 to ensure that the students would be provided with sufficient notice of the complaint and the conference. However on 28 July 2015 the AHRC advised that the conference on 3 August 2015 would not be postponed and that if the conference did not go ahead a further face to face conciliation would not be offered.
On that same day QUT sent emails and letters by registered post to all of the named students. While such notification is not in fact a responsibility of the university but of the AHRC and/or the complainant, QUT wanted to facilitate the notification process to avoid the need for the students' personal information including contact details being provided to the complainant or to the AHRC without their knowledge or consent.
QUT participated in the AHRC conciliation in good faith, however the matter was unable to be resolved except on terms which were profoundly unacceptable to the university. Subsequently, Ms Prior pressed her claims both against the university and against the students. Those against the University are still on foot.
If a similar situation arose again, we would press the complainant and the AHRC to take steps to inform the students of the proceedings promptly after they were filed.
Professor Peter Coaldrake
10 November 2016