As he winds down his five-year tenure as an Australian Human Rights Commissioner, Tim Soutphommasane is redoubling the political divisiveness that defined his performance in the role. His attitude towards the late cartoonist Bill Leak, against whose famous cartoon about Aboriginal dysfunction in the Northern Territory, published on 4 August, 2016, he tried to generate a campaign of complaint, is a case in point. In an interview with the Sydney Morning Herald recently, Soutphommosane said, ‘Any suggestion that I targeted Mr Leak is just not borne out by the facts’. This revision of events is not, to borrow Soutphommasane’s own words, borne out by the facts. Soutphommosane made no doubt about his intention to target Leak for drawing that now-famous cartoon. In an interview, coincidentally also in the Herald, only hours after the cartoon was published, Soutphommasane said: ‘Our society shouldn’t endorse racial stereotyping of Aboriginal Australians or any other racial or ethnic group.’ The Herald added that Soutphommasane ‘urged anyone who was offended by it to lodge a complaint under (section 18C of) the Racial Discrimination Act. (Section 18C makes it illegal for anybody to offend, insult, intimidate or humiliate a person based on their race, colour or ethnicity.) Soutphommasane was backed by his boss, then AHRC president Gillian Triggs, who said he had ‘expressed an opinion that a significant number of people would agree that the cartoon by Mr Leak was a racial stereotype of Aboriginal Australians’.

Neither of them explained exactly how the cartoon racially stereotyped Aborigines. In fact, Leak’s cartoon depicted three types of Aborigines: a delinquent dad, a troubled and abandoned kid, and a responsible cop. By depicting two opposing Aboriginal adults, Leak had deliberately avoided the stereotyping the AHRC, led by Soutphmmasane, accused him of doing. The ABC and Fairfax newspapers, as well as the usual gallery of social justice warriors on social media, gave Soutphommasane and Triggs enormous support to generate official complaints. This failed. Three official complaints were lodged, two of them from a couple of indigenous men in Fitzroy Crossing, WA, who were given the necessary paperwork by representatives of the state Aboriginal Legal Service. News Corp, Leak’s employer, made it clear it would strenuously defend the charge. All three complaints were withdrawn three months later.

But this lamentable and futile exercise could easily have been avoided if Triggs and Soutphommasane had invoked section 18D of the Racial Discrimination Act. Setting aside the fact that Leak’s cartoon arguably didn’t contravene section 18C anyway, section 18D nevertheless would have been his automatic escape clause – 18D exempts a publication that is made in good faith, is accurate and in the public interest, all of which the cartoon was. Speaking at a subsequent Senate committee hearing, Triggs said she twice asked Leak’s team to write explaining whether the cartoon was in good faith but ‘we received no response’. This too was incorrect. Justin Quill, a member of Leak’s legal team, produced a letter to the AHRC from October, a month before the complaints were withdrawn, specifically stating the cartoon’s ‘good faith’ and ‘public interest’: to promote ‘discussion surrounding problems afflicting youthful offenders in remote Aboriginal communities’. Quill even produced a letter from the AHRC acknowledging receipt of his letter. Senator Ian Macdonald, who questioned Triggs, said: ‘It does seem that it is part of a pattern of blaming everyone else but the commission and its president.’ Leak died four months later, in March 2017, from a heart attack. His widow Goong and many of his friends believe the stress caused by the legal case contributed to his medical condition. By drawing the cartoon, Leak’s intention was to help the most disadvantaged children in Australia today. As anybody who knew him will testify, he was emphatically not racist. To be accused of racism when his intentions were clearly the opposite caused him significant anguish.

Compare Soutphommasane’s response to a dance performance at Melbourne University called Where we Stand.The audience was divided according to their skin colour. White members of the audience were refused entry for the start of the performance and were instead harangued about their supposed privilege in the foyer before finally being allowed in after the show had started.

The Australian asked Soutphommasane a series of questions about this performance’s legality under section 18C but he declined to answer them specifically. Instead, he said Where We Stand is an ‘artistic work and public discussion that is done reasonably and in good faith’.

This is precisely the defence the AHRC neglected to provide Leak. But then again, Leak was advocating personal responsibility regardless of skin colour; Where We Stand was vilifying white people. That Soutphommasane pursued the former and not the latter conforms to the pattern of his tenure: censuring white people for racism against ethnic minorities, even where no such racism existed.

The AHRC’s greatest weapon is the process. It doesn’t need to achieve a conviction to impose a punishment. Being charged under 18C is daunting enough. As the Australian reported in November 2016, defendants of 18C cases had paid a total of $500,000 ‘go away money’ to have the cases dropped during the previous five years. In some instances, the defendants disputed the accusations but found it was easier to pay up than mount a defence.

When Leak appeared before the Parliamentary Joint Committee on Human Rights’ inquiry into freedom of speech in February 2017, a month before he died, he delivered a robust and emphatic account of the AHRC’s threat to free speech. He said his encounter with the AHRC had had a chilling effect on anybody else who might contemplate defying the prevailing political correct orthodoxy.

‘This isn’t only an abuse of the powers and functions of the Commission, it’s a full-frontal assault on freedom of speech,’ he said. ‘By taking seriously a trivial complaint by a vexatious litigant while ignoring the substance of the cartoon being complained about, the Commission has demonstrated it is more concerned with the imaginary right of people to not be offended than it is with the real human rights of Australia’s most marginalised and vulnerable people.’

Soutphommasane’s failure to grasp this simple truth is proof that he was a failure in the role, and his tenure will be remembered as one that sought to divide, not unite, Australians.