The government has a Racial Discrimination Act inquiry underway and Gillian Triggs agrees with the PM on a critical point

Attorney-general George Brandis, left, with Malcolm Turnbull. Photo: Getty Images

The conflict started yesteday by prime minister Malcolm Turnbull against the Human Rights Commission (HRC) and its president professor Gillian Triggs, as the government manoeuvres to change 18C of the Racial Discrimination Act (RDA), took a surprising turn today as Triggs backed changes flagged by Turnbull.

Yesterday, the prime minister came out swinging against the HRC claiming it had “done a great deal of harm to its credibility”, accusing it of pursuing a Federal Court case against three Queensland students accused of breaching 18C in comments on Facebook. The case was dismissed on Friday.

“What the judge was saying to the Human Rights Commission is, ‘You’ve been wasting the court’s time. You’ve been wasting government money.’,” Turnbull said.

“Now, frankly, what the Human Rights Commission needs to do is reflect on whether, in making its decisions as to which cases to pursue and which cases not to pursue, it has been doing so in a manner that enhances the reputation both of the commission and respect for the Racial Discrimination Act.”

But Triggs called Turnbull’s claim “deeply misleading” on ABC TV’s 7.30 last night, pointing out the HRC played no role whatsoever in the court case, an action launched by one of the university’s staff.

The commission deals with around 20,000 cases a year and is obliged under the Racial Discrimination Act to investigate and conciliate any complaints.

Today the HRC issued a statement that read, in part:

In relation to the recent QUT case, it is a matter of public record that the Commission terminated this matter in August 2015. The Commission has had no role in the subsequent law suit in the Federal Circuit Court.

At no stage does the Commission initiate or prosecute a complaint. If the Commission receives a complaint in writing alleging a discriminatory act, the Act provides that the Commission must investigate the facts and attempt to conciliate the matter.

The Commission’s focus is on resolving disputes so parties can avoid court proceedings. Of complaints where conciliation was attempted, 76% were successfully resolved in 2015-16.

Only 3% of complaints finalised by the Commission were lodged in court. For example, of the over 80 complaints finalised under the racial hatred provisions of the Racial Discrimination Act last year, only one proceeded to court at the initiation of the complainant.

In the 2015-16 reporting year the average time it took the Commission to finalise a complaint was 3.8 months. In that same reporting year, 94% of surveyed parties were satisfied with the Commission’s service.

The Commission has no judicial powers, and it makes no legally binding determinations as to whether unlawful acts have occurred. The Commission has no statutory power to prevent a complainant proceeding to court once the Commission terminates the complaint.

Yesterday, Turnbull flagged an investigation into the RDA and section 18C. It’s a surprising change of heart for the PM, who had previously opposed any changes to 18C and after the election argued the government had more pressing priorities.

Today attorney-general George Brandis announced he had referred the issue to the parliamentary joint committee on human rights. The inquiry will be chaired by Liberal MP Ian Goodenough and will hand down its report at the end of February, 2017.

“Among other things, the Committee will examine whether the existing processes of the Commission are sufficient to ensure that trivial or vexatious complaints to the Commission, and complaints which have no reasonable prospects of success, are identified and dismissed at an early stage. It will also examine ways to ensure that complaints are dealt with in an open and transparent way, without unreasonable delay, and in a manner which ensures those subject to complaints are afforded natural justice,” Brandis said.

Earlier in the day, Triggs said she’d welcome an inquiry and changes “that would make it a little easier for the commission to say, ‘These matters are coming to us and we don’t think they’ve got any real legs at all’. We’ve long argued for this.”

The HRC president said she’d asked federal governments for at least the last five years to change the statute, adding that removing the terms “offend” and “insult” and using “vilify” instead would improve 18C.

“I would see that as a strengthening, it could be a very useful thing to do,” Triggs said.

Her position aligns the views Turnbull canvassed yesterday. It would appear that both Triggs and the PM are in agreement that “the bar is set too low” for claims lodged under 18C.

Turnbull’s caveat on any changes is that they’d need widespread community support, but he’s likely to face the wrath of Jewish leaders, who oppose any chance and the PM’s own electorate in Sydney’s eastern suburbs has a strong Jewish community.

The latest moves come two years after former PM Tony Abbott scrapped plans for changes to 18C saying he didn’t “want to do anything that puts our national unity at risk”.