Libertarian senator David Leyonhjelm says he will consider appealing a Human Rights Commission decision to reject his racial discrimination claim against a journalist who labelled him an "angry white male".
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The Liberal Democrat senator from NSW complained about an article by Fairfax Media's Mark Kenny in which he was also described as a "boorish, supercilious know-all with the empathy of a besser block".
Senator Leyonhjelm is opposed to section 18c of the Racial Discrimination Act, which makes it unlawful to offend, insult, humiliate or intimidate on the basis of race, and said the point of the complaint was to demonstrate the absurdity of the law.
But that has been turned on its head by the commission's decision to rebuff the claim at the first hurdle, declaring Senator Leyonhjelm's public remarks showed he was not truly aggrieved, and that the terms "white" and "male" were not considered terms of denigration.
Speaking to Fairfax Media on Wednesday, Senator Leyonhjelm indicated he may appeal the commission's decision because he believed it did not understand the law.
"We think they don't quite understand their own laws, which is not necessarily a strong criticism because the law is actually a bit hard to understand," he said.
"They said to me my complaint was about racial vilification. It wasn't – it was that what Mark said was unlawful. The law does not mention the words racial vilification at any point. I'm not sure that they actually appreciate the nature of my complaint."
Senator Leyonhjelm has replied to the commission investigator Hyun Joo Lee outlining his legal argument, and told Fairfax Media he is weighing an appeal. "That's not the end of the matter. There's quite a high possibility this will end up in court," he said.
Kenny's column took aim at Senator Leyonhjelm and One Nation senator Malcolm Roberts for their assertion that verbal abuse cannot cause offence but listeners choose to take offence. They made this claim "with all their angry-white-male certitude", Kenny wrote.
In the judgment seen by Fairfax Media, Ms Lee said most of the terms of denigration were directed at Senator Leyonhjelm as an individual, rather than white males in general.
She said the phrase "angry-white-male certitude" could conceivably apply to a broader group of people, but it may be "very difficult to argue that the article would have profound and serious effects in relation to white males".
More broadly, the commission concluded the complaint did "not meet the threshold of seriousness" proscribed by section 18c, and at any rate may well be excused by section 18d, which provides for defence of fair comment.
The saga comes amid a renewed push from the Coalition's conservative flank to overturn section 18c on the grounds that it unfairly curtails free speech. Reforms to the controversial section were first proposed by the Abbott government but was abandoned in 2014.
The Turnbull government has now launched a parliamentary inquiry into the operation of sections 18c and 18d as well as the complaints-handling procedure of the commission.
Prime Minister Malcolm Turnbull has indicated he is open to compromise changes that could include removing the words "offend" and "insult", while leaving the worlds "humiliate" and "intimidate" in place.
On the other hand, free speech absolutists such as Senator Leyonhjelm are pushing for wholesale abolition of the section. "Free speech is free speech, there's no qualification to it," he has said previously. "Let's just remove 18c entirely and everything that goes with it."
