Sec­ond at­tempt: court case af­ter fail­ing at HRC


Sokhom Prins is an Aus­tralian cit­i­zen who traces her eth­nic­ity to Cam­bo­dia.

If you have the mis­for­tune of be­ing branded a wicked, white­supremacist racist in one of her so­cial me­dia rants or group emails, be mind­ful about how you tell her where to go. You may (like me and my col­leagues Janet Al­brecht­sen and Chris Mer­ritt, along with The Aus­tralian’s chief ex­ec­u­tive, Ni­cholas Gray, and par­ent com­pa­nies News Corp and Na­tion­wide News) be ac­cused of racial ha­tred un­der sec­tion 18C of the Racial Dis­crim­i­na­tion Act in a for­mal com­plaint to the Aus­tralian Hu­man Rights Com­mis­sion.

When the hol­low­ness of such a com­plaint is iden­ti­fied there and ter­mi­nated, you may (as we now are) then be sued in a Fed­eral Cir­cuit Court dam­ages claim seek­ing $1.6 mil­lion.

The first court ap­pear­ance is sched­uled for next month.

There is a temp­ta­tion with a case such as this to ig­nore it as not worth re­port­ing, par­tic­u­larly as pub­lic­ity en­cour­ages the likes of Prins. On the other hand, there is pub­lic in­ter­est in high­light­ing ab­sur­di­ties that may be­come costly bu­reau­cratic and le­gal prob­lems, such as we saw with Cindy Prior, the Queens­land Univer­sity of Tech­nol­ogy and hap­less stu­dents.

The 18C le­gal ac­tion filed by Prins with the Fed­eral Cir­cuit Court’s Brisbane reg­istry runs to a few hun­dred pages. The doc­u­ment was served on me late last week, fol­low­ing the com­mis­sion’s ter­mi­na­tion in July of the orig­i­nal com­plaint Prins lev­elled this year.

On March 9 The Aus­tralian’s le­gal af­fairs ed­i­tor, Chris Mer­ritt, replied to an email from Prins, with the cor­re­spon­dence cc-ed to me, Al­brecht­sen and a few others.

Mer­ritt said: “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.”

In his re­sponse, Mer­ritt, who has made well-rea­soned ar­gu­ments to par­lia­men­tary com­mit­tees and in The Aus­tralian about the need to abol­ish sec­tion 18C be­cause of its mis­use and threats to free speech, wrote that Prins had caused him to “feel of­fended and in­sulted on the ba­sis of my race and eth­nic back­ground” but he had “no in­ten­tion of com­plain­ing to (for­mer HRC head) Gil­lian Triggs about your race-based abuse”.

He urged Prins to “toughen up”.

Prins did not heed Mer­ritt’s sound ad­vice. The next morn­ing The Aus­tralian’s car­toon­ist Bill Leak, who had been abused and de­nounced by Prins in her posts, died. He had been un­der sig­nif­i­cant stress af­ter be­ing the sub­ject of a so­cial me­dia cam­paign and a com­plaint to the HRC for one of his most bril­liant and hon­est car­toons, and falsely smeared as a racist.

Prins emailed Mer­ritt, me and others. She said Mer­ritt’s re­sponse to her, which was pub­lished in The Aus­tralian, was “racist, in­tim­i­dat­ing, and an at­tempt to re­move my free­dom of speech”. She ques­tioned his Tamil an­ces­try, opined that he had “strayed very far from the tribe”, and sug­gested a “line-up” for a pub test on his white­ness. She pledged that in hun­dreds of so­cial me­dia posts she would con­tinue to re­fer to me and my col­leagues as “the bay­ing pack of white racist abo­li­tion­ists at The Aus­tralian”.

It is usu­ally a waste of time and en­ergy to en­gage with peo­ple such as Prins. But on the day we dis­cov­ered that Leak had died, it seemed ap­pro­pri­ate. My re­ply to her said sim­ply: “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, f..k off.”

Al­brecht­sen, who was in the email chain, replied in a note of sup­port. She added: “Sokhom, you have iden­ti­fied the wrong en­emy. Best take off now.”

In her sub­se­quent 18C com­plaint, Prins says that I re­ferred to her as a “fool, loon and nut­ter” be­cause she was Asian, and that my re­quest to her to go forth and mul­ti­ply re­ally meant that she should go back to Asia. Al­brecht­sen was guilty of racial ha­tred un­der 18C, ac­cord­ing to Prins, be­cause, when she wrote “best take off now”, she was telling her to “go back to your coun­try”.

The com­mis­sion’s Jodie Ball re­jected the claims that our re­sponses to Prins were racist or had any­thing to do with her eth­nic ori­gin.

Ball found in a nine-page de­ci­sion: “Over­all, I con­sider that this re­sponse from Mr Thomas was due to the con­tent and na­ture of your pre­vi­ous emails to him, rather than hav­ing any con­nec­tion to your Asian race or eth­nic ori­gin or that of Asian peo­ple more broadly. I note that the Pocket Ox­ford Dic­tionary de­fines the mean­ing of ‘take off’ as ‘re­move or lead away; with­draw; or de­part, es­pe­cially hastily’. Given its or­di­nary mean­ing … it is un­clear how Ms Al­brecht­sen’s state­ment in ques­tion can be in­ter­preted as ‘go back to your coun­try’, as claimed by you.”

But Prins wants her day in court.

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