Comments by the Liberals’ only Indigenous MP about rethinking the controversial Racial Discrimination Act will be seized on by conservatives

This article is more than 3 years old

This article is more than 3 years old

Liberal frontbencher Ken Wyatt says he is open to reviewing the current protections in section 18C of the Racial Discrimination Act “if it is creating a sore within free speech”.



Wyatt, the only Indigenous Liberal MP in the parliament, has given cautious backing to a new inquiry by parliament’s human rights committee – but while backing the renewed political debate, he has cautioned against “emotive debates” around 18C and instead called for calm “statesmanship”.

Wyatt, the assistant minister for health and aged care, said he was “probably leaning towards” reviewing the words in 18C, perhaps removing the words “insult” and “offend” and replacing them with a prohibition on vilification instead.

Section 18C explainer: what is it, and why do some politicians want it changed? Read more

“I think the way forward on this is a parliamentary inquiry,” Wyatt told Guardian Australia on Monday.

Wyatt’s public support for the inquiry will be seized on by conservatives inside the government who are pushing for an overhaul of 18C. The Indigenous MP took a strong public stand against overhauling 18C during the period of the Abbott government, which was one of the reasons the then prime minister dumped the proposal.

But Wyatt says he’s now prepared to countenance reform because the Australian Human Rights Commission mishandled the recent case involving three students from the Queensland University of Technology. “I think there could have been more rigour [with that case],” he said.

He said it was a “pity” the trajectory of that case – thrown out last week when federal circuit court judge Michael Jarrett ruled the lawsuit by Indigenous staff member Cindy Prior should not proceed against Alex Wood, Calum Thwaites and Jackson Powell – had promoted a community discussion about “frivolous” 18C cases.

Wyatt also said the parliamentary inquiry needed to consider not only changing the RDA, but whether there was a step back from that involving measures to prevent frivolous cases.

Wyatt’s comments came as the News Corp cartoonist Bill Leak met Coalition MPs in Canberra on Monday to lobby for changes to the RDA.

The caroonist was chaperoned through Parliament House by the executive director of the Menzies Research Centre, Nick Cater. Leak is currently being investigated by the Human Rights Commission for breaching 18C for a cartoon he drew for the Australian newspaper.

While the parliamentary inquiry now appears to be an inevitability, given the prime minister, Malcolm Turnbull, has lent public backing to the idea on a couple of occasions over the past fortnight, some Liberal MPs on Monday argued strongly against a rush to change the legislation.

Sydney MPs Julian Leeser and Jason Falinski, and the Victorian Liberal MP Russell Broadbent, all argued there was no real case to change the current provision.

The MPs suggested the government should look instead to procedural changes allowing the Human Rights Commission to stymie cases without sufficient legal merit to proceed to the courts.

Falinski told Guardian Australia it was important if the parliamentary inquiry into 18C proceeded it be broad-ranging, looking at curbs on free speech such as defamation, not just the RDA provisions.

“We’ve got to look at this systematically,” Falinski said.

Section 18C of the Racial Discrimination Act says it is unlawful for a person to do an act, otherwise than in private, which is “reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate” another person or a group of people.

Section 18D makes exceptions for artistic works, discussions, debates, event reports in the public interest and fair comment if it is in “expression of a genuine belief” held by the person making the comment.

Malcolm Turnbull says QUT case hurt Human Rights Commission's credibility on 18C Read more

On Monday morning, ahead of cabinet consideration of whether or not to move to an inquiry, Turnbull said the commission had done a “great deal of harm” to its credibility by bringing the Queensland case – and it should think carefully about whether it has undermined respect for the act.

He said the commission ought to now reflect on whether it has been managing the administration of the act properly and must “urgently review” the way it manages cases.

“This was not a case that was determined on the margin, it was not a close case, it was not a well-argued case that fell down on the balance of probabilities,” he said. “This is a case where a judge has said, ‘You’ve got no prospect of success. Out you go”,” Turnbull told ABC radio.

“It is a time for the Human Rights Commission to reflect on whether they have been managing the administration of the act in a way that is likely to encourage support for its objectives.”

But the commission hit back, pointing out it had no role in the lawsuit brought against the students.



In a strongly worded press release on Monday, the commission said it never initiated or prosecuted complaints in courts, despite assertions that it did.

Beyond 18C: six barriers to freedom of speech in Australia Read more

“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 statement said.

“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.

“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.”

HRC president, Gillian Triggs, told ABC’s 7:30 on Monday night that the Queensland case “had a level of substance” so the commission had not thrown it out as frivolous or vexatious.

Triggs said the commission could advise complainants their action was likely to fail in court, but she said she was not sure that advice was given in the Queensland case.

When asked about Leak, Triggs said she could not comment on the particular case but the commission would also advise that section 18D of the act protects expression, including cartoons.

Triggs said the Queensland case was “very unusual” both in its length and the way it had played out in the public arena. In most cases complainants and those complained of kept the cases confidential, she said.