Professor Fraser raises the 'joinder' issue
Mr Hien Le
Human Rights and Equal Opportunity Commission
, Piccadilly Tower 133 Castlereagh St
Sydney, NSW 2001
15 April 2006
Dear Mr Le,
Re: Hareer v Fraser & Parramatta Sun
When George Newhouse lodged his complaint on behalf of Mr Hareer with HREOC on
19 August 2005, he listed both me and the Parramatta Sun as respondents. I didn't give that fact much thought until now, believing, perhaps naively, that I had a full and complete defence to the complaints before the Commission. Now that the Commission has demonstrated how little weight it gives either to the importance of truth in public policy debates or the need to protect the free expression of political opinions, I would like to know just what happened to the complaint against the Sun.
Accordingly, I would appreciate answers to the following questions:
- Was the complaint against the Parramatta Sun abandoned by Newhouse Lawyers?
- If so, when was the Commission notified that Newhouse Lawyers was no longer pursuing the matter against the Sun?
- Was the Commission notified of a settlement agreement between the Parramatta Sun and Newhouse Lawyers or Mr Hareer?
- If so, what were the terms of that agreement?
- If the complaint was not abandoned by Newhouse Lawyers or Mr Hareer, was it terminated by the Commission for some reason?
- If so, what was that reason?
- If not, has the Commission reached a decision with respect to the question of whether the editorial decision by the Parramatta Sun to publish my letter to the editor on
6 July 2005was unlawful?
- If so, what were the reasons for that decision?
- If not, when will such a decision be made?
It is certainly in the public interest that I be provided with the answers to those questions.
You will, of course, be aware that under s18C of the Racial Discrimination Act no act done in private can be deemed by the Commission to be unlawful. Indeed, that was the basis for dismissing the complaints against me made by Mr Hwang and Mr Wong. The Commission ruled that my comments on the dangers posed by the rising Asian managerial-professional elite in
were made originally in a private e-mail to David Shoebridge. Australia
The fact is, however, that the same logic applies to my letter to the Sun. I sent it by private e-mail to the letters editor of that newspaper. The letter was submitted, of course, in the hope that the newspaper would see fit to publish it. Nevertheless, the decision to publish or to reject the letter lay entirely within the editorial discretion of the newspaper itself. I had no power to communicate the contents of the letter to the public at large and did not, in fact, do so.
The Racial Discrimination Act S18C(2) declares that "an act is taken not to be done in private if it: (a) causes words...or writing to be communicated to the public...
Only the Parramatta Sun could “cause” my “words…or writing” not just “to be communicated to the public” in the “Your Say” section but also amplified in a front page story with the addition of inflammatory material of the newspaper’s own invention, including the screaming headline: KEEP THEM OUT.
In legal language, then, the editorial decision of the Sun to publish and give such unprecedented prominence to my letter to the editor was the proximate cause of whatever injury that might be said to have occurred as a consequence of its publication. “But for” the decision of the Parramatta Sun to publish my letter, it would not, indeed, could not have been “communicated to the public.”
It was the Sun, not me, who caused my “words…or writing” to reach the public-at-large. It follows that they must bear responsibility for the legal consequences following from the publication of the letter merely authored by me.
Unlike me, the Sun cannot even claim the justification of having made a “fair comment” based on "genuine belief" in the subject matter of the letter. From Mr Hareer’s perspective, the Sun’s opportunistic willingness to publish, indeed, “beat up,” an allegedly “racist” letter must be adjudged to be worse, morally and legally, even than the alleged "racial vilification" flowing from a genuine belief held by the letter’s writer.
That being so, the possibility that the complaint against my original co-respondent, the Parramatta Sun, appears to have been abandoned quietly, without my knowledge, by the complainant and/or the Commission, leaving me alone to face the music, must raise fundamental questions of fairness and natural justice.
In fact, unless the Parramatta Sun is joined to the complaint against me, I cannot be said to have caused my letter to be communicated to the public. My decision to send a letter to the Parramatta Sun remains purely and simply a private act outside the scope of s18C(1).
No fair-minded person can miss the Orwellian overtones of this matter. Doublespeak and double standards appear to be built into the very nature of a “human rights commission” committed to the suppression of free political expression by powerless individuals.
Here, the shamelessly sensationalist publisher of a letter deemed unlawful by the Commission appears to have been exculpated, casually and completely, by the complainant, perhaps even by the Commission itself. Meanwhile, the Commission piously underwrites the complainant’s demand not just that I confess to unlawful behaviour but also that I apologise publicly for speaking unsavoury truths (as attested by several prominent overseas scholars in The Australian just this week) while promising never again to deviate from the officially prescribed orthodoxy.
As a matter of both simple justice and strict legality, it is the Parramatta Sun that should be required to participate in the conciliation process mandated by the Commission. By contrast, the complaint against me should be terminated forthwith since no act of mine falls within the scope of s18C(1).
Should the Commission fail to find that the Parramatta Sun acted unlawfully in publishing my letter but continues, nevertheless, to mandate a conciliation process with respect to the complaint against me, there can be no prospect of a resolution of this dispute within the Commission.
In any subsequent proceedings, I will move to have the Mr Hareer’s complaint against me summarily dismissed on the ground that the act made the subject of that complaint falls outside the scope of s18C(1).
I look forward to an early reply to the questions posed above.
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