Tim Soutphommasane replacement must empathise with mainstream

Attorney-General Christian Porter has outlined what he will be looking for from the next Race Discrimination Commissioner.

Attorney-General Christian Porter at his parliamentary offices in Sydney: ‘I am not a living tree man.’ Picture: John Feder.

When Race Discrimination Commissioner Tim Soutphommasane leaves office in August, the federal government has indicated he is unlikely to be replaced with someone who solicits complaints against individuals under section 18C of the Racial Discrimination Act.

Attorney-General Christian Porter has also indicated that the next Race Discrimination Commissioner will probably be someone who shows empathy not just for minorities but for mainstream Australian values.

In an interview with The Australian, Mr Porter also denounced the actions of publicly funded lawyers in Western Australia who tried to solicit complaints ­alleging a cartoon by the late Bill Leak had breached section 18C.

He also made it clear he did not believe any members of the Australian Human Rights Commission should be soliciting complaints against individuals.

“I think that is a somewhat radical interpretation of the role of a variety of commissioners, and equally I would apply that observation to other civil bodies in the Australian legal landscape,” he said.

Mr Porter, who took office on December 20, also:

• Urged businesses to speak out whenever they are con­fronted by “lawfare” — or ideologically driven anti-business litigation.

• Undertook to monitor all entities that receive public funding from the federal government to ensure taxpayers’ money is being used efficiently.

• Indicated he was unlikely to appoint judges to the federal network of courts who believed the Constitution should be viewed as a “a living tree” that could be adapted by judges to changing circumstances.

• Defended the role of parliament as a protector of human rights because he believed it was more capable than the courts of balancing conflicting community interests.

Mr Porter’s remarks follow a report last February by parliament’s joint committee on human rights that found Dr ­Soutphommasane’s statements about a Leak cartoon “could have been perceived by some as solicitation”.

The committee recommended changes to avoid the risk of “potential damage to public ­confidence in” the Australian Human Rights Commission.

Parliament overhauled the commission’s procedures last year but did not make the change that had been suggested by its joint committee on human rights.

The cartoon, published in 2016, had portrayed the plight of an Aboriginal child being ­returned by an Aboriginal policeman to a delinquent father.

After public statements by Dr Soutphommasane, a complaint was sent to the Human Rights Commission under section 18C alleging Leak had caused the complainant to feel offended, ­insulted, humiliated and intimidated because of her race.

It was eventually dropped but Leak’s supporters believe the stress caused by the incident was one of the factors behind his fatal heart attack in March last year.

Despite the finding of parliament’s human rights committee, Dr Soutphommasane told a public meeting after Leak’s death that his remarks about the cartoon had been wrongly characterised by Fairfax Media as urging people to complain. All he was doing was passing on information, he said.

When Mr Porter was asked about the qualities he would be looking for in candidates to ­replace Dr Soutphommasane, he said all the commissioners on the Human Rights Commission “have to have an understanding and empathy not merely for minority groups but for middle Australian values”. “They are not positions well suited for people with radical views.”

He believed it had been a “monstrous waste of resources” for officers from the West Australian Legal Aid Commission to travel to the northwest of the state in an attempt to find an Aborigine who would complain about Leak’s cartoon.

“Do I see that as the proper role of an organisation in those circumstances? No, I do not,” Mr Porter said.

When asked about the qualities he would be looking for in ­judicial appointments, he made it clear he did not agree with those who believe the Constitution should be viewed as “a living tree” capable of judicial adjustment to changing circumstances. “I am not a living tree man,” he said.

He believed “certainty and consistency and clarity in inter­pretation” could best be achieved by rejecting this approach.

“The reality, I think, is that parliaments are designed to have a democratic franchise and be able to make often difficult and agonising decisions that represent people’s views on contentious social issues — whether that be the definition of marriage or other contentious social issues.

“When those issues get ­decided as they very often do in the US by judges in high courts, that to me is not the best design for democratic systems.”

On public funding for legal centres, he said most community legal centres did an “amazing” job on tight budgets.

But he believed a public debate was appropriate “where you can show that the money being ­expended on ‘lawfare’ is publicly allocated money”.

“I will be watching and monitoring all of the bodies that we ­directly fund to make sure that they are making the most ­efficient use of that money,” Mr Porter said.