Ms Triggs appeared on the ABC’s 7.30 report and defended the Commission’s handling of the case, which was thrown out of the Federal Circuit Court on Friday after a three year ordeal.
Ms Triggs dismissed claims that the Commission mishandled the affair, saying its only job was to investigate complaints and attempt to broker a conciliation, which it does three quarters of the time.
She contradicted herself about whether the Commission was supposed to advise complainants if a case would be doomed if it went to court, as Ms Prior’s was against students from the Queensland University of Technology.
“We must under our statute consider the complaint, we investigate it and try to conciliate it, now in the course of a conciliation we may well say ‘this is not looking like a substantial matter’ and that will often encourage the parties to withdraw or conciliate,” Ms Triggs said.
She was then asked by interviewer Leigh Sales if that advice was given to Ms Prior in the course of its 14 month investigation into the matter.
“I don’t know if one of our staff members specifically advised but that is not our role, our role is to try and bring the parties together, and for 14 months, or at least 12 of those months we believed that in good faith we were going to get a conciliation,” she said.
Ms Sales hit back asking: “But if your role is to try and bring the parties together so it doesn’t go to court then surely your role must also be to advise people; ‘If this goes to court it won’t be successful so don’t waste time in court’.”
Ms Triggs said: “Well in many matters I’m sure we would give that advice, we would say; ‘This is not going to be likely to succeed if it goes to court.”
Ms Triggs said many matters are quickly dismissed if they are found to be vexatious or frivolous.
“But this one was one that had a level of substance, the complaints were ones that attracted a certain measure of concern about the comments made, I won’t repeat the language but it was worrying and troubling. The court came to a different view and we respect the view of the court,” Ms Triggs said.
She said the Commission could not advise complainants against The Australian’s cartoonist Bill Leak to drop the case.
“But we would certainly be advising the complainants that are now on foot that 18D protects the right of a cartoonist in good faith, in the public interest, particularly artistic works, historically the Federal Court has said it will not constitute a violation,” she said.
HRC ‘had no role’ in QUT suit
The Human Rights Commission has sought to clarify its involvement in the QUT case after Mr Turnbull’s attack, saying it terminated the matter in August 2015 and had no role in the subsequent lawsuit.
It says the commission has no statutory power to prevent a complainant proceeding to court once the commission terminates the complaint.
“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,” it says in a statement.
“The commission’s focus is on resolving disputes so parties can avoid court proceedings. Of complaints where conciliation was attempted, 76 per cent were successfully resolved in 2015-16.
“Only 3 per cent 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.”
HRC ‘must take a look at itself’
Malcolm Turnbull has demanded the Human Rights Commission “urgently review” how it manages cases under section 18C of the Racial Discrimination Act, lashing out at the government body for wasting time and taxpayers’ money.
In his strongest attack yet on the commission, whose embattled president Gillian Triggs is facing calls from government MPs to resign, the Prime Minister declared it had done “a great deal of harm to its credibility” by bringing the case against three students at the Queensland University of Technology.
Federal Circuit Court judge Michael Jarrett ruled on Friday that the students had no case to answer in response to a $250,000 compensation claim by indigenous staffer Cindy Prior over comments they made in May 2013 on Facebook.
“What this shows is that the Human Rights Commission must urgently review the way in which it manages these cases,” Mr Turnbull told ABC radio.
“To have a case like that which will have involved the expenditure of considerable Commonwealth money, taxpayers’ money, considerable money on behalf of the students, imposed enormous stress on them, and have it chucked out, struck out as having no reasonable prospects of success, what the court was saying, 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’.
“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.”
Mr Turnbull also indicated he would endorse a parliamentary committee inquiring into changing section 18C, which makes it unlawful to “offend, insult, humiliate or intimidate” another person on the basis of race.
“The most common suggestion for reform has been to remove ‘insult and offend’. There have been proposals to remove ‘insult and offend’ and insert the word ‘vilify’ — some would say to remove the word ‘humiliate’ and insert ‘vilify’,” he said.
“These are the type of arguments or issues that are appropriately dealt with by a committee … it’s very important that any change in this area has strong public support and consensus because we are dealing with matters of great sensitivity, and this is where frankly again, the Human Rights Commission has not done itself or its reputation, or the respect for the law as service by bringing that case.”
Judge Jarrett ruled that student Alex Wood had posted “an accurate statement of fact”when the student wrote on Facebook: “Just got kicked out of the unsigned indigenous computer room”.
Judge Jarrett said it was “difficult to see how … that statement was likely to infringe the prescription of section 18C”. He ruled that Mr Wood had made a statement of opinion when he also posted on Facebook “QUT stopping segregation with segregation?”
Conservative senator Cory Bernardi, a long-time advocate for changing section 18C, said it was “about time” cabinet ministers push for action but tweeted: “The real question is why it has taken so long? The abuse of 18C has been evident for years.”