The race discrimination commissioner, Tim Soutphommasane, has said there is “no case” to change section 18C of the Racial Discrimination Act, putting him at odds with the Human Rights Commission president, Gillian Triggs.
In comments to Guardian Australia, Soutphommasane said courts only penalised profound and serious racist comments not “mere slights” and there are defences available that protect free speech.
On Tuesday the government launched a parliamentary inquiry into whether section 18C – which prohibits speech that insults, offends, humiliates or intimidates people based on their race – unreasonably burdens free speech.
Triggs backed the inquiry and indicated she is open to overhauling the Racial Discrimination Act, including replacing the terms “offend” and “insult” with “vilify”.
Asked specifically about replacing offend and insult with the word vilify, Triggs told the ABC on Tuesday: “I would see that as a strengthening, it could be a very useful thing to do.”
On Wednesday in his monthly email newsletter, Soutphommasane said: “It remains my view that there is no case for changing section 18C of the act.
“Our society must have strong protections against racial abuse and vilification, while guaranteeing freedom of speech.”
Soutphommasane told Guardian Australia the section had “served to protect all Australians against acts of racial hatred since 1995”, while still guaranteeing free speech.
“Courts have consistently held that section 18C only captures conduct that involves ‘profound and serious’ effects, and not ‘mere slights’.”
He noted defences in section 18D protect freedom of speech, including fair comment and artistic expression.
In his newsletter Soutphommasane noted the Human Rights Commission’s role is to inquire into and conciliate complaints that are made by members of the public, contradicting incorrect statements by Malcolm Turnbull that the commission had itself brought a high-profile case against three Queensland University of Technology students.
“The commission does not make legal determinations about whether something has contravened the act – that can only be done by a federal court,” he said.
“The commission also has no power to prevent people from taking a matter to court after a complaint has been terminated.”
The government’s inquiry includes a term of reference to consider whether “the practice of soliciting complaints” has an adverse impact on freedom of speech or constitutes an abuse of powers of the commission.
The Australian newspaper has accused Soutphommasane of encouraging complaints against a controversial Bill Leak cartoon. The race discrimination commissioner has denied prejudging the case by saying society shouldn’t endorse racial stereotypes of Indigenous Australians.
Soutphommasane said he played no role in conciliating complaints.
But he said as part of his role to promote understanding of the law, he informs people they have the option of lodging a complaint “if they believe they have experienced racial discrimination or hatred”.
“It is wrong to suggest that it is inappropriate or beyond my remit to provide such information.”
Soutphommasane told Guardian Australia he also regularly makes clear in public statements that the act protects freedom of speech under section 18D.
The race discrimination commissioner said he would make his views known – including on whether it was inappropriate to “solicit” complaints – to the inquiry, which is due to report by 28 February.
At the Coalition party room on Tuesday 18 MPs spoke about 18C, including the former prime minister, Tony Abbott, who argued the section needed reform and procedural change would not be enough.
Coalition sources have told Guardian Australia that Turnbull told the meeting the need for reform of section 18C was clear when even Triggs was making the case publicly – but he told colleagues the government needed to proceed carefully given the community sensitivities.
However, a number of MPs, including the Sydney Liberals Julian Leeser and Jason Falinski, and the Victorian Liberal MP Russell Broadbent, have argued that complaints about the act can be fixed with a procedural change, not a rewrite of a legal provision.
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