The Human Rights Commission and its head, Gillian Triggs, have been accused of “playing politics” over children’s welfare by lawyers for the Australian newspaper over an investigation into a cartoon by Bill Leak.
The Australian and Leak are being investigated for alleged “racial hatred under the Racial Discrimination Act” by the commission over Leak’s August cartoon depicting the neglect of Indigenous children by their parents.
The Weekend Australian reported on Saturday that the solicitor Justin Quill and the barrister Tony Morris QC, also representing Leak, were prepared to establish that the cartoon “was drawn in good faith and did not breach Section 18C”.
If necessary, Indigenous Australians would also testify “they were not ‘offended, insulted, humiliated or intimidated’ by it”, Quill and Morris wrote in their formal response issued on Friday.
“Sociologists and criminologists, as well as witnesses” would establish the problems associated with juvenile crime and recidivism in remote Aboriginal communities to show the point made by Leak’s cartoon was “both a ‘genuine’ matter of concern and a legitimate issue of ‘public interest’”.
The cartoon, published on 4 August, depicted an Aboriginal father holding a can of beer, who had forgotten his son’s name. It was condemned as racist by the Indigenous affairs minister, Nigel Scullion, among others, and prompted SunCorp Bank to cancel its advertising with the newspaper.
But the Australian’s editor-in-chief, Paul Whittaker, stood by the cartoon, while Leak published a follow-up that depicted him being abused for “telling the truth”. The Press Council also declined to sanction the paper for the cartoon, about which it received more than 700 complaints.
Guardian Australia has attempted to contact Scullion and the Secretariat of National Aboriginal and Islander Child Care – which represents the interests of Indigenous children and families, and had also complained about Leak’s cartoon – for comment on the Australian paper’s legal response.
The HRC’s investigation under Section 18C was triggered by Melissa Dinnison last week, who said she had been discriminated against as a result of the cartoon. Leak and the Australian had been given a deadline of 28 October to respond to the complaint, and to provide submissions “relevant to the commission’s consideration of the matter”.
In their written response, Quill and Morris accused the commission of “playing politics” with children’s welfare, singling out its head, Triggs, and Tim Soutphommasane, the race discrimination commissioner.
Soutphommasane is believed by the Australian to have “positively invited and encouraged, even urged,” complaints about the cartoon in comments to Fairfax and on social media at the time it was published.
He denied prejudging the complaint at a hearing before the Senate legal and constitutional affairs committee in Canberra on Tuesday, and said his rebuke of the cartoon reflected a widespread response from the public.
But on Friday, Western Australia’s top police officer said Leak’s cartoon “reflected” what police regularly saw of neglect in dysfunctional Indigenous and non-Indigenous families.
Quill and Morris said Soutphommasane’s conduct and Triggs’ inaction over his statements had compromised the commission, and called for it to bow out of the investigation and be replaced by an external lawyer.
“There can be no doubt that a disinterested observer, with knowledge of the relevant circumstances, could only entertain the most extreme misgivings regarding the [commission’s] capacity to deal with Miss Dinnison’s complaint impartially and free from any taint of prejudgement,” read the legal response.
“It follows that, at the very least, a reasonable apprehension of bias arises.”
If the commission continued with the complaint despite its “pervasive conflict of interest”, the newspaper and Leak would immediately take injunctive action.
If the complaint cannot be conciliated or is otherwise terminated, Dinnison may be able apply to escalate the matter to the federal circuit court.
The Weekend Australian noted that attempts to contact Dinnison had been unsuccessful, though it had reached her father, who said “I think you’ve got Buckley’s chance” when asked if she would be interviewed.
Triggs has faced mounting pressure from the Australian and Coalition MPs to resign over allegations she misled a Senate committee when she said she had been misquoted in an interview in which she said politicians were “usually seriously ill-informed” and had “lost any sense of the rule of law”.
Triggs told the committee on Tuesday that her comments to the Saturday Paper had been “taken out of context”, but later admitted in a statement that the article was accurate after the editor Erik Jensen revealed a recording of the interview contradicted her account.
The editorial in the Weekend Australia on Saturday said that the “taxpayer-funded political activism that Professor Triggs has come to personify is a deep and broad problem”.
