Faruqi v Hanson (2024, FCA)
| FEDERAL COURT OF AUSTRALIA
Faruqi v Hanson [2024] FCA 1264 | |
| File number: | NSD 372 of 2023 |
| Judgment of: | STEWART J |
| Date of judgment: | 1 November 2024 |
| Catchwords: | HUMAN RIGHTS – immigrant Senator told to "piss off back to Pakistan" and that she has taken "advantage" of Australia – Racial Discrimination Act 1975 (Cth), s 18C – whether conduct reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the applicant and groups of people – where the groups are identified as people of colour who are migrants to Australia or are Australians of relatively recent migrant heritage and Muslims who are people of colour in Australia – whether conduct was done because of the race, colour or national or ethnic origin of the applicant – whether s 18D(c)(ii) fair comment made reasonably and in good faith exemption made out – appropriateness of the form and extent of the remedies sought under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth)
CONSTITUTIONAL LAW – implied freedom of political communication – whether Pt IIA of the Racial Discrimination Act 1975 (Cth) is constitutionally invalid – whether the prohibition of a certain type of speech by s 18C as subject to the exemptions in s 18D infringes the implied freedom rendering those sections invalid in full, or in part in setting the requirement for unlawfulness at too low a level by using the words "offend" and/or "insult" and/or "humiliate" in s 18C(1)(a) – whether the law effectively burdens the implied freedom – whether the purpose of the law is compatible with the constitutionally prescribed system of representative and responsible government – whether the law is reasonably appropriate and adapted to advance that legitimate purpose in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government – where Pt IIA effectively burdens political speech but only slightly – where the purpose of Pt IIA is to deter and eliminate, and protect members of the public from racial hatred and discrimination – whether the terms of Pt IIA are reasonably appropriate and adapted to advance that legitimate purpose |
| Legislation: | Constitution
Acts Interpretation Act 1901 (Cth), s 15AB Australian Human Rights Commission Act 1986 (Cth), ss 46PH, 46PO, Pt IIB Div 1 Evidence Act 1995 (Cth), ss 97(1), 144 Immigration Restriction Act 1901 (Cth) Racial Discrimination Act 1975 (Cth), ss 9–16, 18B, 18C, 18D, Pts I, II, IIA Racial Discrimination Legislation Amendment Bill 1992 (Cth) Racial Hatred Bill 1994 (Cth) Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) Racial Hatred Act 1995 (Cth)
Federal Court Rules 2011 (Cth), r 30.31
Queensland Coast Islands Declaratory Act 1985 (Qld)
|
| Cases cited: | Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 Bharatiya v Antonio [2022] FCA 428 BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2007] FCAFC 157; 162 FCR 234 Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; 72 ALD 321 Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 Brown v Tasmania [2017] HCA 43; 261 CLR 328 Byrnes v Kendle [2011] HCA 26; 243 CLR 253 Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284; 15 VR 207 Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 Clubb v Edwards; Preston v Avery [2019] HCA 11; 267 CLR 171 Coleman v Power [2004] HCA 39; 220 CLR 1 Comcare v Banerji [2019] HCA 23; 267 CLR 373 Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 Commonwealth v Evans [2004] FCA 654; 81 ALD 402 Constantinou v Australian Federal Police [2024] FCA 123 Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352 Eatock v Bolt [2011] FCA 1103; 197 FCR 261 Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114 Farm Transparency International Ltd v New South Wales [2022] HCA 23; 277 CLR 537 Faruqi v Hanson (evidence rulings) [2024] FCA 225 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Jones v Scully [2002] FCA 1080; 120 FCR 243 Jones v Toben [2002] FCA 1150; 71 ALD 629 Kaplan v Victoria (No 8) [2023] FCA 1092 King-Ansell v Police [1979] 2 NZLR 531 Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 Levy v Victoria [1997] HCA 31; 189 CLR 579 LibertyWorks Inc v Commonwealth [2021] HCA 18; 274 CLR 1 Mabo v Queensland (No 1) [1988] HCA 69; 166 CLR 186 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 1643; 90 FCR 202 Mandla v Dowell Lee [1983] 2 AC 548 (HL) McCloy v New South Wales [2015] HCA 34; 257 CLR 178 McGlade v Lightfoot [2002] FCA 1457; 124 FCR 106 Miller v Wertheim [2002] FCAFC 156 Monis v The Queen [2013] HCA 4; 249 CLR 92 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 Regina (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728 Roberts v Bass [2002] HCA 57; 212 CLR 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475 Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 Tajjour v New South Wales [2014] HCA 35; 254 CLR 508 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 Toben v Jones [2003] FCAFC 137; 129 FCR 515 Unions NSW v New South Wales (Unions No 1) [2013] HCA 58; 252 CLR 530 Unions NSW v New South Wales (Unions No 2) [2019] HCA 1; 264 CLR 595
Barendt E, Freedom of Speech (Oxford University Press, 1985) Forrester J, Finlay L and Zimmermann A, No offence intended: Why 18C is wrong (Connor Court, 2016) Holmes OW, "The Theory of Legal Interpretation", (1899) 12 Harvard Law Review 417 Human Rights Commission, Discussion Paper No 3: Proposed Amendments to the Racial Discrimination Act Concerning Racial Defamation (September 1983) Human Rights Commission, Proposal for Amendments to the Racial Discrimination Act to Cover Incitement to Racial Hatred and Racial Defamation: Report No 7 (November 1983) Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (1991) Johnston E, Royal Commission into Aboriginal Deaths in Custody, National Report: Volume 4 (1991) Keane PA, "Sticks and stones may break my bones, but names will never hurt me" (2011) 2(2) Northern Territory Law Journal 77 Sackville R, "Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act" (2016) 90 Australian Law Journal 631 Waldron J, The Harm in Hate Speech (Harvard University Press, 2012) Yeasmeen T, Kelaher M and Brotherton JML, "Understanding the types of racism and its effect on mental health among Muslim women in Victoria” (2023) 28(2) Ethnicity & Health 2005 |
| Division: | General Division |
| Registry: | New South Wales |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| Number of paragraphs: | 391 |
| Date of last submission: | 20 May 2024 |
| Date of hearing | 28–29 April, 1–2 May 2024 |
| Counsel for the Applicant: | S C Holt KC, J E Taylor, J Underwood and S Dhanji |
| Solicitor for the Applicant: | Marque Lawyers |
| Counsel for the Respondent: | K Smark SC (on 1 and 2 May 2024), S Chrysanthou SC (on 29 and 30 April 2024) and T Smartt |
| Solicitor for the Respondent: | Gillis Delaney Lawyers |
| Counsel for the Intervener: | C Lenehan SC and C J Tran |
| Solicitor for the Intervener: | Australian Government Solicitor |
ORDERS
NSD 372 of 2023
| BETWEEN: | MEHREEN FARUQI Applicant |
| AND: | PAULINE HANSON Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH
|
| ORDER MADE BY: | STEWART J |
| DATE OF ORDER: | 1 November 2024 |
THE COURT DECLARES THAT:
1. The conduct of the respondent in publishing a tweet on the messaging platform then known as Twitter under the handle @PaulineHansonOz at 4.05pm on 9 September 2022 in terms that included telling the applicant to "piss off back to Pakistan":
- (a) is unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) in that it:
- (i) was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the applicant and groups of people, namely people of colour who are migrants to Australia or are Australians of relatively recent migrant heritage and Muslims who are people of colour in Australia;
- (ii) was done by the respondent because of the race, colour or national or ethnic origin of the applicant; and
- (b) is not exempted under s 18D(c)(ii) as it was not done reasonably and in good faith as a fair comment on a matter of public interest.
THE COURT ORDERS THAT:
1. Within seven days of these orders, the respondent cause the tweet identified in the declaration in paragraph 1 above to be deleted from her Twitter (now X) profile under the handle @PaulineHansonOz.
2. The respondent pay the applicant’s costs of the proceeding.
3. The parties, including the intervener, have liberty to apply for a variation of order 2 within 14 days of these orders by serving and filing brief submissions (of no more than three pages) and any supporting evidence failing which order 2 shall be final.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
TABLE OF CONTENTS
INTRODUCTION
1 The principal parties to this case are both members of the Senate of the Parliament of the Commonwealth of Australia. At all relevant times they both held accounts on the social media messaging platform that was then called Twitter (now X) on which they regularly published messages under their own names.
2 The applicant is Mehreen Saeed Faruqi, a Senator for New South Wales since 2018 as a member of the Australian Greens party.
3 The respondent is Pauline Lee Hanson, a Senator for Queensland since 2016. She is a member of Pauline Hanson's One Nation party.
4 The Attorney-General of the Commonwealth has intervened for the purpose of defending the constitutionality of certain legislation, to which I will come, but has not otherwise joined in the dispute between the principal parties.
5 Early in the morning of 9 September 2022 in Australia, it was announced that Her Majesty Queen Elizabeth II had died at Balmoral Castle after a reign of more than 70 years.
6 Less than 12 hours later, shortly before midday, Senator Faruqi published the following tweet:
Condolences to those who knew the Queen.
I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples.
We are reminded of the urgency of Treaty with First Nations, justice & reparations for British colonies & becoming a republic.
7 In reply to that tweet, more than four hours later Senator Hanson published the following tweet as a quote tweet thereby incorporating Senator Faruqi's tweet (as written):
Your attitude appalls and disgusts me. When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament. It's clear you're not happy, so pack your bags and piss off back to Pakistan. – PH
8 The tweets appear as follows:
Pauline Hanson 
@PaulineHansonOz
Your attitude appalls and disgusts me. When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament. It's clear you're not happy, so pack your bags and piss off back to Pakistan. -PH
Mehreen Faruqi @MehreenFaruqi • Sep 9
Condolences to those who knew the Queen.
I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples.
We are reminded of the urgency of Treaty with First Nations, justice & reparations for British colonies & becoming a republic.9 It is common ground that by the manner in which Senator Hanson published her tweet, at least the first two sentences of Senator Faruqi's tweet would have been visible to anyone reading Senator Hanson's tweet. That is relevant to the way in which a reader of Senator Hanson's tweet would have understood it, most notably as a direct response or reply to Senator Faruqi's tweet.
10 Senator Faruqi made a complaint about Senator Hanson's tweet to the Australian Human Rights Commission. Senator Hanson declined to participate in that process, whereafter the complaint was terminated under s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) enabling Senator Faruqi to pursue her claim in this Court.
THE CLAIM AND THE DEFENCES TO IT
11 Senator Faruqi claims that Senator Hanson, by posting her tweet, engaged in offensive conduct because of Senator Faruqi's race, colour or national or ethnic origin that is unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). Section 18C makes it unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
12 Senator Faruqi's concise statement, in summary, asserts the following:
- (1) The relevant act was Senator Hanson's tweet which occurred in public; it was reasonably likely that Senator Faruqi and members of the "group", or some of them, would be offended, insulted, humiliated or intimidated; and the act was done by Senator Hanson including because of the race, colour or national or ethnic origin of Senator Faruqi.
- (2) The relevant group includes people with the following attributes:
- (a) Persons of colour;
- (b) Migrants to Australia;
- (c) Persons with migrant heritage, born in Australia;
- (d) Persons who by virtue of their appearance have been incorrectly identified as migrants;
- (e) Muslim people;
- (f) Persons with visible signs or expressions of religion;
- (g) Persons who have been told to "go back to where they came from" or variations of that phrase due to their race, colour or national or ethnic origin; and/or
- (h) Persons who have experienced racism.
- (3) Senator Faruqi was herself offended, insulted, humiliated and intimidated by the tweet, including by the insinuation that as a Muslim, migrant, woman of colour she is less entitled than other Australian citizens to live in Australia and enjoy the benefits and opportunities afforded by that citizenship; the suggestion that she does not belong in Australia and should remove herself; and because of the incitement to racial hatred by, and manifest racial hatred that is expressed in, the phrase "go back to where you came from" and variations of that phrase.
- (4) Senator Hanson published the tweet because of Senator Faruqi's race, colour or national or ethnic origin.
- (5) The term "race" in s 18C extends to groups of people including Muslims as a term of "ethno-religious" origin, and the tweet was published by Senator Hanson including because of Senator Faruqi's race and ethnic origin, "including because she is Pakistani-born and Muslim."
- (6) Senator Hanson directed the tweet towards Senator Faruqi as a woman of colour and a person from a migrant background as a means to invalidate and delegitimise her entitlement to Australian citizenship, her participation in public debate and her enjoyment of the many benefits of life in Australia which is evident from Senator Hanson's long and well-documented history of commentary implying that she holds white supremacist views, including having made countless hateful remarks over many years about Asian and Muslim people.
- (7) The phrase in the tweet "pack your bags and piss off back to Pakistan" is directed at Senator Faruqi's origins as a citizen of Pakistan, and her identity as a Pakistani-born Australian and an immigrant.
- (8) Senator Faruqi and members of the group have suffered various forms of harm in consequence of the tweet, including that Senator Faruqi has been the subject of a torrent of abusive phone calls, social media posts and hate mail (including death threats and misogynistic, racist and sexually violent content).
13 Senator Hanson's concise response admits various formal matters including that she published the tweet and that the publication of the tweet is an act that was done in public but otherwise denies nearly every aspect of Senator Faruqi's claim. The concise response, in summary, asserts the following:
- (1) Of the many attributes of people in the group pleaded by Senator Faruqi, only "persons of colour" is a group protected by s 18C.
- (2) Even if Senator Faruqi's claim is otherwise made out, the publication of the tweet was done reasonably and in good faith in making a fair comment on an event and/or matter of public interest that was an expression of a genuine belief held by Senator Hanson within the meaning of s 18D of the RDA.
- (3) In the further alternative, ss 18C and 18D of the RDA infringe the implied freedom of political communication in the Constitution and are therefore invalid in whole or in part to the extent of the use of the words "offend" and/or "insult" and/or "humiliate" in s 18C(1)(a).
14 At the end of the hearing, Senator Faruqi sought the following amended relief:
Remedy sought
The Applicant asks the Court for orders:
- 1. declaring:
- a. that the Respondent engaged in conduct by causing to be posted at 4.05pm on 9 September 2022 a tweet under the Twitter handle @PaulineHansonOz (the Conduct);
- b. that the conduct contravened s18C(1) of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:
- i. it was reasonably likely to offend, insult, humiliate or intimidate the Applicant or a group of people, namely people who have one or more of the following characteristics: migrants (particularly from Pakistan or other Asian Countries), people of colour and Muslims;
- ii. the conduct was done because of the race, colour or national or ethnic origin of the Applicant or some of or all of the people in the group;
- c. that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth).
- 2. restraining the Respondent from using the phrases 'piss off back to Pakistan', 'go back where you came from' or any variation thereof in public;
- 3. requiring the Respondent to take down her tweet of 4.05pm on 9 September 2022 posted under the Twitter handle @PaulineHansonOz;
- 4. requiring the Respondent to 'pin' a tweet to her Twitter account with the Twitter handle @PaulineHansonOz for a period of 3 months, stating that she has been found by the Court to have engaged in an act that contravened s18C of the Racial Discrimination Act 1975 (Cth) in that:
- a. it was reasonably likely to offend, insult, humiliate or intimidate the a group of people, namely people who have one or more of the following characteristics: migrants (particularly from Pakistan or other Asian Countries), people of colour and Muslims; and
- b. the conduct was done because of the race, colour or national or ethnic origin of the Applicant or some of or all of the people in the group; and
- c. the conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth).
- 5. requiring the Respondent to pay a donation in the amount of $150,000 to the Sweatshop Literacy Movement in Western Sydney;
- 6. requiring the Respondent to undertake anti-racism training at her own expense;
- 7. costs.
THE STATUTORY SCHEME: OVERVIEW
15 The preamble to the RDA references the International Convention on the Elimination of all Forms of Racial Discrimination (1965) (CERD), which is a Schedule to the RDA, and states:
AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:
16 One sees in the preamble references to the making of special laws with respect to race and immigration, and the prohibition of racial and certain other forms of discrimination. CERD entered into force in 1969 and was ratified by Australia in 1975.
17 Part I of the RDA deals with various preliminary matters. Part II provides for the prohibition of racial discrimination, including by making it unlawful (subject to various qualifications) for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin (s 9) and by providing for rights to equality before the law (s 10). There are also provisions dealing with discrimination in relation to access to places and facilities (s 11), land, housing and other accommodation (s 12), the provision of goods and services (s 13), the right to join trade unions (s 14), employment (s 15) and advertisements (s 16).
18 Part IIA was introduced into the RDA by the Racial Hatred Act 1995 (Cth). Justice Allsop in Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [92]–[132] comprehensively described what led to those amendments, from "an 'epidemic' of swastika-painting and other manifestations of anti-Semitic hatred and prejudice in the northern hemisphere winter of 1959-60" to the adoption of the Racial Hatred Act in 1995.
19 The Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (EM) which preceded the Act explains that the Bill was intended to address concerns highlighted by the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. The Bill was intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large. It was based on the principle that no person in Australia needs to live in fear because of their race, colour, or national or ethnic origin. The EM also addressed the intended relationship between the Bill and the implied freedom of political communication inherent in the democratic process enshrined in the Constitution and the meanings to be given to the terms "ethnic origin" and "race." I will return to those matters in due course.
20 As identified in Toben v Jones (at [131]), and with Allsop J's emphasis, the Attorney-General said the following about the Bill in the House on 15 November 1994:
The Racial Discrimination Act does not eliminate racist attitudes. It does not try to, for a law cannot change what people think. But it does target behaviour — behaviour that causes an individual to suffer discrimination. The parliament is now being asked to pass a new law dealing with racism in Australia. It too targets behaviour — behaviour which affects not only the individual but the community as a whole.
21 Section 18C(1) contains the proscription of certain conduct that is at the heart of this case. Subsections (2) and (3), dealing with the meaning of the requirement that the relevant act was done in public, are not relevant to the resolution of this case. Section 18C(1) is in the following terms:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
- (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
- (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
- Note: [omitted]
22 Section 18B provides that if an act is done for two or more reasons and one of those reasons is the race, colour or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act, then the act is taken to be done because of the person's race, colour or national or ethnic origin. It follows that in order to establish that a particular act is unlawful, the requirement in s 18C(1)(b) will be satisfied if it is established that the act was done at least in part because of the race, colour or national or ethnic origin of the relevant person or group of people.
23 Section 18D sets out exemptions from the proscription in s 18C, including the "fair comment" exemption in subs (c)(ii) on which Senator Hanson relies. The section as a whole is in the following terms:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
- (i) a fair and accurate report of any event or matter of public interest; or
- (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
24 The remaining sections in Pt IIA, ss 18E and 18F, deal with vicarious liability and State and Territory laws being unaffected. Those sections do not call for consideration in this case.
25 A contravention of s 18C(1) has three elements: (1) the relevant act must be done "otherwise than in private", (2) the act must be "reasonably likely" to "offend, insult, humiliate or intimidate" and (3) the act must be done "because of" the race, colour or national or ethnic origin of a person or group of people. See Jones v Scully [2002] FCA 1080; 120 FCR 243 at [95] per Hely J; Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [63] per French J; Bharatiya v Antonio [2022] FCA 428 at [16]–[18] per Colvin J.
26 As mentioned above, there is no dispute in this case that the relevant act was done in public, so that aspect need not be considered any further. Senator Hanson submits, however, that neither the requirements of s 18C(1)(a) (para (a)) nor s 18C(1)(b) (para (b)) are met. She also submits that in any event the requirements for the operation of the exemption in s 18D(c)(ii) are met.
THE ISSUES TO BE DECIDED
27 Arising from the statutory provisions and the ways in which the case has been put on both sides, the following issues have to be decided:
- (1) Was Senator Hanson's tweet reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person (relevantly, Senator Faruqi) or a group of people (which group needs to be identified)? These are the para (a) requirements.
- (2) Did Senator Hanson publish the tweet in the terms that she did because of the race, colour or national or ethnic origin of the other person (again, Senator Faruqi) or of some or all of the people in the group (again, to be identified)? These are the para (b) requirements.
- (3) If the para (a) and para (b) requirements are satisfied, was the tweet published, in the terms that it was:
- (a) reasonably and in good faith;
- (b) as an expression of a genuine belief held by Senator Hanson; and
- (c) as a fair comment on an event or matter of public interest?
- These are the elements of the s 18D(c)(ii) defence relied on by Senator Hanson.
28 If the answers to those inquiries lead to the conclusion that the publication of the tweet by Senator Hanson was unlawful under s 18C, then it will be necessary to decide whether the prohibition of a certain type of speech by s 18C as subject to the exemption in s 18D infringes the implied freedom of political communication in the Constitution rendering those sections invalid in full, or in part in setting the requirement for unlawfulness at too low a level by using the words "offend" and/or "insult" and/or "humiliate" in s 18C(1)(a).
29 If the prohibition is not constitutionally invalid, or if it is only partly invalid, it will be necessary to decide what remedy or remedies should be ordered.
SENATOR FARUQI'S WITNESSES AND THEIR EVIDENCE
30 In this section I summarise the evidence of Senator Faruqi and the witnesses called by her, mostly using the language used by them. I also consider the reliability of that evidence where that is relevant.
Senator Faruqi
31 Senator Faruqi was born in Lahore, Pakistan in 1963. She is Muslim. I infer that she was born into a Muslim family although she was educated at a private Catholic school in Lahore. Senator Faruqi's father studied at the University of New South Wales (UNSW) in the 1950s.
32 In 1988, Senator Faruqi graduated with a Bachelor of Engineering (Civil) degree at the University of Engineering and Technology in Lahore. She commenced work as a structural engineer with a firm of consulting engineers in Pakistan, holding that position until 1992. In the meanwhile, in 1989 she married Omar Faruqi. The couple have two children, a son who was born in Pakistan and a younger daughter who was born in Australia.
33 In 1992, the family emigrated from Pakistan and settled in Sydney, initially with permanent residency. Senator Faruqi has resided in Australia since then. She became an Australian citizen in 1994.
34 In 1994, Senator Faruqi completed a Master of Engineering Science, Environmental Management, Solid and Hazardous Water Management at UNSW. In 2000, she completed a Doctorate in Environmental Engineering, Wastewater Management and Energy Recovery at UNSW.
35 Between 1999 and 2013, Senator Faruqi worked in various positions consistent with her qualifications in engineering, including as a consulting engineer, for local councils and in academia.
36 In 2004, Senator Faruqi became a member of the political party, The Greens NSW. She ran unsuccessfully as a candidate for the Legislative Assembly seat of Heffron in 2011 and in a by-election in 2012. In 2013, Senator Faruqi was elected to the NSW Legislative Council, becoming the first Muslim woman to be a member of any Australian Parliament. She held that position until August 2018 when she resigned to enter federal politics.
37 On 20 August 2018, Senator Faruqi was sworn in as a Senator for NSW in the Federal Parliament. In doing so, she became the first female Muslim Senator. In order to be eligible for the Senate, Senator Faruqi had to, and did, renounce her Pakistani citizenship. Senator Faruqi holds the "Republic" portfolio for the Greens.
38 Senator Faruqi gave evidence of her experience of racism in Australia before the events at the centre of this case. She spoke of a number of incidents over the years in which she was made to feel that she was being treated differently or being mistrusted because she is a woman of colour, and when she was identifiable as being an immigrant and Muslim. She gave evidence of how, in various ways, she or her family were made to feel unwelcome or different, ie they were "othered" in the sense of being conceptualised as intrinsically different from and inferior to the prevailing social group and thereby excluded from it.
39 Senator Faruqi explained that when she entered politics, her experience of racism intensified. Often that was reflected in people responding to things that she said by attacking her as a person, rather than criticising her message or stance. They have included telling her that she is "not from Australia" or that she "doesn't belong here." Her Muslim identity has often been the focus or subject of the attacks.
40 Senator Faruqi explained that she feels that some people do not want her in Australia because she is Muslim. She feels that they consider Muslims to have an outlook and a way of life that is incompatible with modern Australia. Senator Faruqi's experience is that anti-Muslim sentiment, or Islamophobia, is based on a racialized stereotype and that hateful comments about her religion are also tied to where she comes from and her ethnicity.
41 Senator Faruqi and her staff maintain several social media accounts in her name – Facebook, Twitter and Instagram. At the relevant time, Senator Faruqi had about 40,000 followers on Twitter, and Senator Hanson had "a lot more", "thousands and thousands of people."
42 In cross-examination, Senator Faruqi explained that she and her staff drafted the tweet about the Queen having died. She said that she chose the words carefully, intending to put some issues on the political agenda which she felt should be discussed and debated. She wished to put her views on the record and for people to debate them.
43 Senator Faruqi explained that in the tweet she was stating a fact of how she felt about the Queen dying and about the British Empire and its legacy of colonialism. She was raising the issues of Australia becoming a republic and the conclusion of a treaty with First Nations people. She felt that that was a time when people would be more attuned to those issues. It was a time when people would be talking about those issues.
44 Senator Faruqi denied that the tweet incorporated false words of condolence, or that her condolences were disingenuous. She said that the tweet was a genuine and honest statement of her feelings and beliefs at the time.
45 Senator Faruqi said that she found Senator Hanson's tweet to challenge her sense of belonging and her sense of self; it had a triggering effect. She found it to be insulting and humiliating. She said that it made her feel like she was not accepted and that she did not belong in Australia. It caused her to cry. She was scared of the response that Senator Hanson's tweet would encourage in others–that it would "encourage others to join the chorus of hate." Senator Faruqi said that, over a long period of time, she has suffered sleepless nights and on occasion woken up in great distress because of the trauma induced by the tweet (T82:1-6).
46 The responses on Twitter to Senator Faruqi's tweet in the period between it being published and Senator Hanson's tweet being published were tendered. Many of the tweets are personally abusive, including in racist and Islamophobic ways, although some are supportive of her and the views expressed in her tweet. Only a few express the sentiment "go back to where you come from", or variations of it. The overwhelming majority are disapproving, in one way or another.
47 Following the publishing of Senator Hanson's tweet at 4.05pm on 9 September 2022, Senator Faruqi was the target of intense abuse across her social media accounts as well as by phone calls to her parliamentary office and emails to her parliamentary email address. It is a common theme of a substantial proportion of the abusive messages that Senator Faruqi should "piss off back to Pakistan" or "piss off back to where she came from." Another common theme of a substantial proportion of the abusive messages is that Senator Faruqi is in some way less entitled, or not entitled at all, to make critical comments about Australian colonial history because she is not "from" Australia. Yet another theme is that Senator Faruqi is in some way hypocritical for having "taken" the benefits of Australia and now has the audacity to make criticisms, without any acknowledgement in those messages of Senator Faruqi's contribution to Australia over 31 years including some 10 years of public service.
48 Senator Faruqi said that the impact of Senator Hanson's tweet made her think like never before of the consequences and impacts of "telling it like it is" for someone like her in Australian politics. It had a silencing effect on her. She said that she found that after the tweet she moderated herself when speaking about colonialism or racism because those topics generate such hate. She said that she finds that she is constantly monitoring and being selective about what she feels she can or should respond to out of fear of the backlash. Senator Hanson's tweet, and the responses that it generated, have made Senator Faruqi feel "small, 'othered' and isolated."
49 Senator Faruqi explained that there are already many barriers for political outsiders like her, and that every time she rises above the barriers – like becoming a Senator – she has to consider the repercussions and toll of that. She has to make decisions about whether she responds to racist vitriol, or whether she remains quiet and merely absorbs the hatred. She said that choosing to stay silent means that the racist vitriol continues, but standing up and calling it out means that it is directed more intensely at her. Being a public figure does not inure her from the harm and psychological damage that comes from experiencing racism.
50 The emotional toll is an everyday experience, which felt so much worse when the attack came from a workplace colleague, Senator Hanson. Senator Faruqi experienced Senator Hanson's tweet as "a direct attack from a colleague" in her workplace; "a very direct attack from a colleague with a big platform." Senator Faruqi finds it extremely stressful being in a workplace with someone who has attacked her in that way. She said that she has a physiological reaction to going into the Senate chamber to sit in close proximity to someone who has caused so much distress for her.
51 Senator Faruqi accepts that it is perfectly acceptable for Senator Hanson to object and respond to her comments about the Queen and to engage in a debate about the Queen's legacy. However, she found being told to "piss off back" to where she came from as insulting, offensive and humiliating.
52 It is not just the final sentiment of "piss off back to Pakistan" that Senator Faruqi found offensive and insulting. The first part of Senator Hanson's tweet about Senator Faruqi being an immigrant and not having the right to the same things or opportunities that other people have in Australia including the same right or opportunity to express herself was experienced by her as being insulting and humiliating. Senator Faruqi also felt intimidated by the tweet because her workplace was made to feel hostile and unsafe. She felt that it could happen again, and that there is a threat of physical violence from people who might feel emboldened or encouraged by Senator Hanson's tweet.
53 On the day that Senator Faruqi announced to the media that she was commencing this proceeding, she received a threat on social media that included the street address of her electoral office and the words "See you real soon you fucking dead cunt."
54 Senator Faruqi was an impressive witness. She was thoughtful and careful in her evidence, and despite significant provocation in cross-examination retained her composure and grace. I gained the clear impression that she was doing her best to recollect matters correctly and give true and accurate evidence.
55 The provocations include it being put to her that she is a hypocrite because she is an immigrant to Australia and yet she is critical of Australia. That is provocative because it suggests that Australian citizens who are immigrants are less worthy citizens than those who are not immigrants and that one cannot be loyal to one's country and be critical of it at the same time. It was put to her that her denial that she had understood Senator Hanson's tweet as telling her that she had "lived a good and fulfilled life in Australia" was disingenuous (T67:39-68:14), when plainly that was not the message of the tweet. It was also put to her that by her tweet she was accusing all non-Indigenous Australians of having engaged in a joint act of stealing land (she was not) (T60:1-5). It was said to her that she had "denigrated Jews" and that the only reason she was interested in what was referred to as the genocide in Gaza was "because it is being engaged in by Jews" as demonstrated by her not having "said anything … politically or publicly about the genocide of the Armenians by the Turks" (a reference to events that took place more than 100 years ago) (T84:40-85:2). In the face of all that, Senator Faruqi maintained her equanimity.
56 It is submitted on behalf of Senator Hanson that Senator Faruqi's evidence should be approached with caution. Three criticisms are raised in that regard. The first is that she was unwilling to accept what was said to be the obvious basis for Senator Hanson saying in her tweet that Senator Faruqi was "not happy", namely the content of Senator Faruqi's tweet. Senator Faruqi was asked whether she understood the words "it's clear you're not happy" to be a reference to her tweet earlier that day, to which Senator Faruqi answered, "I did not" (T68:16-17). Senator Faruqi went on to say that she has no idea why that was said of her because she is very happy in Australia (T68:19-21), and that she did not see her tweet inferring anything about her happiness or unhappiness in Australia (T68:26-29). Those are perfectly legitimate and understandable answers. There is nothing in them that constitutes evasion from accepting the obvious.
57 The second criticism of Senator Faruqi is said to be her claim that "colour" was implicit in Senator Hanson's tweet which, it is said, self-evidently involved no such notion (T68:45-47). It is true the words in Senator Hanson's tweet did not refer to skin colour. Beyond that, there is nothing self-evident about it. The tweet was directed to a Muslim woman of colour who immigrated from Pakistan and instructed her, in particularly rude and emphatic terms, to "piss off back to Pakistan." As I will come to in more detail, that statement is a variation of an age-old racist trope. As Senator Faruqi said in the next exchange, the reference to her national origin was a reference to Pakistan "where almost 100 percent of the people look like me" (T69:1-2). There is nothing unreasonable in Senator Faruqi seeing "colour" being implicit in Senator Hanson's tweet.
58 The third criticism is that Senator Faruqi claimed to hold the view that there is no place for offensive conduct or comments in day-to-day political discourse despite her own political comments including in relation to Prime Minister Scott Morrison in 2019 (T82:43-46). Senator Faruqi had said the following in her affidavit in the context of explaining why she felt insulted by Senator Hanson's tweet:
I don't think there is a place for offensive conduct or comments in day-to-day political discourse. I feel offending and insulting comments are often couched as robust debate, but I think there is a clear line between being insulting and offensive to someone and robust debate. You can have really good, robust debate without being offensive or insulting.
It was put to Senator Faruqi that she was not being honest when she said that, which she denied (T82:47). The asserted basis for dishonesty, which was not put to Senator Faruqi, is that on 10 December 2019 during the severe New South Wales bushfires at that time, Senator Faruqi had posted a tweet saying "just fuck off" in response to it being said that the Prime Minister had rejected calls for more assistance to fire fighters (T52:12-35; Exh R5/3). In that earlier exchange, Senator Faruqi had accepted that her tweet used very strong language but she defended it on the basis that it did not attack anyone personally and it was not racist. Although the tweet might be regarded as attacking the Prime Minister personally, that is not really the point. The point is that one can simultaneously hold a belief that there is no place for offensive and insulting conduct and comments in day-to-day political discourse, yet on one occasion more than four years earlier have publicly made an offensive or insulting comment about a political opponent. There is no basis on which the reliability of Senator Faruqi's evidence can be criticised on that inconsistency or tension, if indeed it is that.
59 In the circumstances, I consider Senator Faruqi's evidence to have been unshaken in cross-examination and I accept it.
Autobiographical witnesses
60 Senator Faruqi relies on the evidence of nine witnesses who were referred to at trial as the autobiographical witnesses. Each is a person who responded to a public invitation published by Senator Faruqi to document the effect that Senator Hanson's tweet had on them. Each deponent states their demographic characteristics by which they identify including, by way of example, "person of colour", "person of migrant heritage", "Muslim", "culturally Jewish", and so on, and cites their experiences of discrimination on the basis of one or more of those characteristics. Their evidence is potentially relevant to the para (a) inquiry, ie the likelihood of Senator Hanson's tweet causing one of the identified results. See Faruqi v Hanson (evidence rulings) [2024] FCA 225 at [39]–[49].
61 None of the autobiographical witnesses was required for cross-examination. I accept their evidence.
Anna Ellen Sri
62 Anna Ellen Sri was born in Australia in 1989 and is an Australian citizen. She identifies as a person of colour because her father is Tamil. She also identifies as a person of migrant heritage because her father is an immigrant from Sri Lanka in the 1980s. Dr Sri is a veterinarian.
63 Dr Sri saw and read Senator Hanson's tweet on or about the day it was published, her attention possibly having first been drawn to it through media coverage about it. Dr Sri said that she understood the tweet to be telling Senator Faruqi to go back to where she was born, ie Pakistan. She felt that the use of the language "piss off" rather than merely "go" conveyed a higher degree of intolerance.
64 Dr Sri said that she also understood the tweet to convey the message that Senator Faruqi is not welcome in Australia and is not permitted to contribute to public discourse about matters which impact Australia because she was born in Pakistan. That is, Senator Faruqi and other people of colour, such as Dr Sri, should know their place in Australia, which is to be grateful and not provide any critique or even basic suggestions for improvement to Australia.
65 Dr Sri said that she felt humiliated and intimidated by the tweet. She felt humiliated because it reminded her of experiences that she had during her childhood growing up in Australia as a person of colour. She was intimidated because both Senator Hanson and Senator Faruqi are public officials–if someone like Senator Faruqi can be victimised by that kind of racism, then other immigrants and people of colour in Australia are even more vulnerable.
66 Dr Sri gave some examples of her personal experiences of racism. She said that she clearly remembers as a child seeing coverage of Senator Hanson saying that Australia was in danger of being "swamped by Asians". Because she had been told that she "looked Chinese", she felt that Senator Hanson's comments applied to her. She also recalls Senator Hanson saying words to the effect of "I'm just saying what everyone is thinking." Dr Sri felt that that normalised and legitimised the anti-Asian sentiment. Dr Sri was thereby made to feel paranoid that the majority of people, including her classmates, did not accept her or had negative thoughts about her because she "looked Chinese."
67 Dr Sri remembers that Senator Hanson's comments undermined her sense of self-confidence and caused her to internalise feelings of inadequacy and a lack of acceptance and appreciation by the wider Australian society. She recalls feeling as though she had to consistently demonstrate good behaviour and perform at a high level to maintain acceptance in society and in her school community.
68 Dr Sri recalls, in the early 2000's, seeing bumper stickers with words to the effect of "if you don't love it, leave" and "fuck off, we're full." She interpreted the bumper stickers to mean that if you are a migrant or a person of colour, then you are not allowed to offer critiques or suggestions about how to improve Australian life but instead had to be grateful.
69 Dr Sri said that as a result of her experiences of racism, she has felt scared, paranoid and intimidated, particularly when meeting new people and going into new situations with an unknown group of people, she has suffered depression and her sense of self and self-confidence has been negatively impacted. She said that she has felt unwelcome in Australia, even though she was born in Australia and it is the only place where she has ever lived. She has felt silenced and dismissed, and that she does not have the right to voice her thoughts and feelings particularly around subjects such as political issues including issues of racism, migration and refugees.
Ayan Abdirashid Ali
70 Ayan Abdirashid Ali is a student who identifies as being of Somali origin which is where her parents are from, although she was born in Italy in 2000. She is Muslim and wears a hijab. She has lived in Australia since 2001 except for a period of four years when she was in high school and lived in the United Arab Emirates (UAE).
71 Ms Ali saw Senator Hanson's tweet on Twitter on 9 September 2022. Ms Ali interpreted the phrase "piss off back to Pakistan" in the tweet as a variation of the phrase "go back to where you came from", which to her is a hateful, inflammatory and xenophobic phrase that she knows very well. As a person of colour from a culturally and linguistically diverse background, and an immigrant and a Muslim, Ms Ali has previously been told words to the effect of "go back to where you came from." Senator Hanson's tweet thus reminded her of her experience of those words. She felt personally offended by the tweet even though it was not directed to her personally.
72 Ms Ali said that she felt insulted and humiliated by the tweet, including because it came from a Senator, being an important position in Australian society, with a significant platform. Also, if Senator Faruqi could be the subject of such abuse, then ordinary people like Ms Ali could never be safe from such discriminatory words and sentiment.
73 Ms Ali said that she felt intimidated by Senator Hanson's tweet because it gave a platform and a voice to people who share similar thoughts and feelings. She saw that the tweet generated a significant volume of hatred and discrimination directed towards Senator Faruqi, including threats of violence. Knowing that people with those views could be anywhere around her made Ms Ali feel intimidated, hopeless, scared and unwelcome in the country that she calls home. On many occasions she has felt unsafe in public spaces.
74 Ms Ali recounted various instances of racism or other abuse based on her colour, ethnic origin or religion experienced by her. These included, for example, people yelling words to the effect of "fucking Muzzos" and "black bastards."
75 One of the earliest experiences of racism recalled by Ms Ali occurred when she was about eight years old. She and her older sister, who at the time was about 10 years old, were in a local shopping centre when an older white man approached them and angrily yelled in their faces words to the effect of "go back to where you came from." Ms Ali felt terrified, confused and upset. She and her sister began crying. She said that she was made to feel like she did not belong in Australia and that she was unwelcome in her own home. She recalls thinking that she did not know where else she was supposed to go.
76 In another incident, she and her four sisters had the day off from their Islamic school to celebrate Eid. They were in a park with their father playing football when a white man approached their father and yelled at him words to the following effect: "why aren't your kids in school?" The man also said words to the effect of "you are illiterate" and "you will need to integrate into the Australian way of life." The man later unleashed his dog which chased Ms Ali's family.
77 Ms Ali recalls that since living in Australia, and at least up until 2015, people regularly said words to the effect of "go back to where you came from" to her. Since 2019, after she returned from the UAE, she feels that she has fortunately experienced overt racism less frequently. She nevertheless recounted some incidents of such racism, in particular instances where people seemed surprised to find her, a person of colour wearing a hijab, in a professional setting.
78 Ms Ali said that she has suffered various impacts in her day-to-day life from her experiences of racism. She has felt scared and intimidated and has on occasion even felt scared to wear her hijab in public. She said that she has learned to hide from people in public. By "hide", she means different things depending on the situation. For example, she might not go to certain public spaces at certain times, or when it is difficult to avoid public spaces she has kept to herself, keeping her head down and walking quickly in situations that make her feel uncomfortable. Hiding has also taken the form of running away and hiding from people that have made her feel unsafe, or who have shouted or said aggressive things to her. She said that she is constantly hypervigilant.
Coco-Jacinta Cherian
79 Coco-Jacinta Cherian was born in Western Australia in 1997. She is a person of colour and a person of migrant heritage. Her father, and his parents before him, were born in India. She works as a program support officer.
80 Ms Cherian cannot remember when she first saw Senator Hanson's tweet, although she believes that it was on Instagram in the week following the Queen's death.
81 When she first read the tweet, Ms Cherian felt that Senator Hanson was telling Senator Faruqi to "go back to where she comes from" which is a hurtful phrase for her that has often been directed to her. She also understood the tweet to be saying that Senator Faruqi is not deserving of the same rights and entitlements as people who are born in Australia and that if Senator Faruqi wishes to live in Australia, she needs to act in a certain way. That would include not criticising Australia's history and its ties to the monarchy and colonialism.
82 Ms Cherian said that she was offended by Senator Hanson's tweet, understanding it to express the sentiment that there is a hierarchy of races and that "whiteness" is to be preferred over "colouredness." She felt humiliated by the tweet by being made to feel embarrassed to be a person of colour. She felt insulted by the idea that she will not be accepted fully as part of Australian society unless she behaves in a certain way.
83 Ms Cherian also gave evidence of her experiences of racism in Australia. Those include experiences as a young member of the cast of the iconic Australian television series Neighbours – there was racist backlash to the idea of people of Indian background living on the show's "Ramsay Street." That included being told that she and her fellow cast members of Indian heritage should go back to where they came from and that the show should only feature "real Australians." Such sentiments caused Ms Cherian to question whether she did in fact belong in Australia or had a right to be cast in Neighbours. She also started to hate her race and hate that part of her that is Indian. She recalls not liking her skin and not feeling comfortable in it.
Daniel Jacob Levy
84 Daniel Jacob Levy is a student. He was born in Australia in 1989. He identifies as being culturally Jewish, although he does not practice the Jewish faith. Mr Levy also identifies as a person with migrant heritage because his four grandparents were born in Lithuania, Poland, Germany and Latvia before migrating to Australia. They fled Europe before and after World War II as Holocaust survivors.
85 Mr Levy saw Senator Hanson's tweet on 9 September 2022 on his personal Twitter account. Mr Levy understood the tweet to be telling Senator Faruqi to go back to where she came from, and that it conveyed the notion that if someone from a migrant background does not like living in Australia (because, for example, they have criticised certain aspects of Australian life, politics or history) then they should leave Australia. He understood the phrase "piss off back to Pakistan" to convey the same message as, to him, the common racist phrase "fuck off, we're full."
86 Mr Levy said that he felt offended, insulted, humiliated and intimidated by Senator Hanson's tweet. He felt that the words used by Senator Hanson were xenophobic, and he is deeply offended by xenophobia. He believes that the sentiments conveyed by Senator Hanson in her tweet are the same as have previously been used against Jewish people. Because of that, even though the tweet was not directed at him, he felt personally insulted by it because he is Jewish.
87 Mr Levy said that his strongest reaction to the tweet was that he felt intimidated. That is because the tweet evoked a deep sense of intergenerational trauma that he believes that he suffers from as a result of being a descendant of Holocaust survivors. The intimidation was heightened because of Senator Hanson's position of political leadership and because Senator Faruqi is part of a racial minority in Australia.
88 Mr Levy gave evidence of his experience of anti-Semitism and other discrimination or hatred directed at him for being Jewish. For example, when he was about eight years old he was playing community sport with his Jewish football club. He recalls some opposing players walking past his team and saying words to the effect of "bloody Jews" to them.
89 Mr Levy said that, because of his family history, he is constantly anxious about fascism taking root again, and what it would mean for him and everyone he cares about. That is especially aggravated for him when political leaders campaign on xenophobia and bigotry in general, which he sees to be hallmarks of fascism. He gave evidence of the negative effects of anti-Semitism on his mental health.
Fatima Hasan
90 Fatima Hasan was born in 1991 in Lahore, Pakistan. She identifies as being of Pakistani origin and is Muslim. She immigrated to Australia in 2016. She works as a nurse.
91 Ms Hasan believes that it is likely that she saw Senator Hanson's tweet on Twitter on or about 9 September 2022. She understood the tweet as an attack on her personal identity as an immigrant to Australia because, like Senator Faruqi, she was born in Pakistan. She interpreted Senator Hanson's tweet as racist and xenophobic. She felt offended, insulted, humiliated and intimidated by the tweet.
92 She said that she was offended because she understood that the words "piss off back to Pakistan" and the sentiment conveyed by them were directed towards everyone originally from Pakistan, including her. She took those words personally. They made her feel like all the hard work that she had done in her life and particularly during the time that she has lived in Australia meant nothing because she was made to feel like she does not belong in Australia.
93 She said that reading the tweet reminded her of her previous experiences of racism which reactivated trauma and insult. It made her realise that attitudes she had experienced in the past had not changed. She felt humiliated because she understood the tweet to be a direct threat that challenged her right to continue to live in Australia.
94 Ms Hasan said that she felt intimidated by the tweet because she believed that the thoughts and views expressed in the tweet by an elected politician with a large public profile must represent the thoughts and views of people who had voted for Senator Hanson or who follow her on Twitter. She fears being subjected to racist comments or attacks, verbal or physical. After seeing Senator Hanson's tweet, she saw numerous racist comments directed at Senator Faruqi from other people on Twitter which reiterated the thoughts and views of Senator Hanson conveyed in the latter's tweet. Ms Hasan remembers thinking that by publishing the tweet, Senator Hanson had given a voice to many other people in Australia that share her views; it was as if Senator Hanson had magnified those racist views.
95 Ms Hasan said that she cried after reading Senator Hanson's tweet. The sadness subsequently turned into desperation and anger. She recalls thinking that if someone like Senator Faruqi, an elected politician, is unable to escape racism and discrimination in Australia, then there is nothing that Ms Hasan will ever be able to do to reduce or stop racist incidents against herself.
96 Ms Hasan gave evidence about her experiences of racism in Australia during her work in a rural nursing placement and in hospitality. Those experiences include being told words to the effect of "go back to where you came from", "where are you really from?" and "did you come here by boat?" He also recounted experiences of a patient not wanting to be treated by her, asking for "an Australian nurse", and being asked by a patient whether she was qualified because she was "not from Australia."
97 Ms Hasan's experiences of racism have caused her to feel like she does not belong in Australia, and to feel as though she cannot continue to be a nurse in Australia because people do not accept her, or refuse care from her, because she was not born in Australia. She has been caused to feel suicidal, to feel like a failure, and to have suffered hypervigilance at work.
Muhammud Yunus Moolla
98 Muhammud Yunus Moolla was born in 1984 in Cape Town, South Africa. He identifies as being of African origin and Indian because he is a fourth-generation South African whose relatives immigrated to South Africa from India. He is Muslim, although he considers himself to be non-religious and is not a practising Muslim. He immigrated to Australia with his wife in 2017 and is an Australian citizen. He works as a manager.
99 Mr Moolla believes that he saw Senator Hanson's tweet on or about 9 September 2022 on his Twitter account. He understood the tweet to mean that non-white immigrants to Australia, including Senator Faruqi, are inferior to and should be fearful of "white" Australians; that they are less deserving of occupying space within Australia because they were not born here.
100 Mr Moolla said that the tweet made him feel that as a non-white immigrant to Australia, his identity as an Australian will always be under threat even though he is an Australian citizen. He felt that his "Australian-ness" and his place within Australia will never be whole and could be taken away by Senator Hanson, or any white Australian, at any time if he does not behave in a way that other white Australians expect him to behave. He felt that the tweet conveyed that non-white migrants to Australia will never be entirely welcome in Australia because Senator Hanson was telling Senator Faruqi and other non-white immigrants to Australia to go back to where they came from.
101 Senator Hanson's tweet reminded Mr Moolla of having been told words to the effect of "go back to where you came from" and other incidents of overt racism experienced by him on many occasions. The tweet brought up trauma and the feelings of fear, humiliation and anger that he associates with being the subject of racist abuse in Australia.
102 Mr Moolla said that he felt intimidated by Senator Hanson's tweet because it scares him that Senator Hanson, an Australian Senator with a significant public profile, would say those words publicly to another Australian, let alone another Senator. He believes that if someone like Senator Hanson can hold those views and engage in that kind of conduct, it amplifies and legitimises similar views held by other individuals living in Australia. That makes him scared for his own safety and also for the safety of other migrant people living in Australia. He also feels unable to fight back against that kind of conduct out of fear that the situation could escalate and that he would be at risk of being subjected to physical violence.
103 Mr Moolla gave evidence of racist experiences suffered by him. They included being told by a man on a bus "you are not Aussie", and being told "oh she's like you, just go marry her" in relation to a woman who appeared to be of Middle Eastern descent who boarded the bus. Such incidents have caused him to feel angry and fearful, that he was doing something wrong, and that his identity as an Australian, and his right to exist in Australia as a human being, had been taken from him.
Sana Ashraf
104 Sana Ashraf was born in Pakistan in 1990. She migrated to Australia in 2015 to do a PhD at the Australian National University (ANU) which she completed in 2019. She married an Australian man and became an Australian citizen in June 2023. She works as a public servant.
105 Ms Ashraf believes that she saw Senator Hanson's tweet on social media in the week following the Queen's death. She understood the tweet to be telling Senator Faruqi to go back to Pakistan, or to go back to where she comes from. She understood the strength of the language in "piss off back to Pakistan" to express hatred and intolerance and to be telling Senator Faruqi that Senator Hanson was not willing to tolerate her continued presence in Australia.
106 Ms Ashraf said that she was offended, humiliated, insulted and intimidated by Senator Hanson's tweet. She felt that it is dismissive of Senator Faruqi's existence as an Australian citizen. She finds it offensive as an immigrant to Australia. She felt that the tweet expressed what she has experienced to be a popular sentiment amongst some Australians, which is that she is not truly accepted because of her migrant heritage and that it is not acceptable for her to share an opinion about life in Australia which is not positive. She feels as though she can only be accepted as an Australian citizen on a conditional basis–as long as she is grateful for the fact that she lives in Australia, she will be liked and accepted.
107 Ms Ashraf said that she felt intimidated by the tweet because it made her feel unable to participate fully and freely in political and societal discussions, as though she does not have the right to share her opinions in her own country.
Stephen Mandivengerei
108 Stephen Mandivengerei, who works as a support worker, was born in 1975 in Chiredzi, Zimbabwe (then Rhodesia). He identifies as being of African origin, of Mbire ethnicity and a person of colour. Mr Mandivengerei immigrated to Australia in 2008 with his wife and two children. They now have a third child. All three children are Australian citizens.
109 Mr Mandivengerei does not recall seeing Senator Hanson's tweet until he saw a Facebook post by Senator Faruqi in June 2023 in which she invited people to fill in an online survey about their responses to the tweet. That caused him to conduct some internet searches which turned up Senator Hanson's tweet.
110 Mr Mandivengerei understood Senator Hanson's tweet to be telling Senator Faruqi to go back to Pakistan. However, in his view the words "piss off back to Pakistan" are a stronger, more vulgar and unkind way of saying "go back" and they convey a higher degree of anger, exasperation or disgust. He felt offended, insulted and intimidated by the tweet.
111 Mr Mandivengerei said that he felt offended and insulted because he was reminded of previous incidents when he had been told to "go back to where you came from" by people in Australia. Further, he said that the fact that the views expressed in the tweet were expressed by one Australian Senator to another added to the overall offence and insult he experienced as a result of the tweet. He felt that those views must also be held by a broader section of Australian society, as represented by Senator Hanson.
112 Mr Mandivengerei said that he felt intimidated by the tweet because it caused him to realise that the racism and discrimination that he previously experienced can happen at all levels within Australia and can happen to people who hold high positions. He felt silenced by the tweet, and that Senator Hanson had normalised the views expressed in the tweet.
113 Mr Mandivengerei gave evidence of his experiences of racism, particularly in the workplace. They included his work colleagues giving him a nickname based on a character from a 1975 movie who was black and had abnormally large genitals. His complaint about his colleagues using that nickname for him was dismissed by his manager on the basis that "giving a nickname to a person is part of Australian culture and is a sign of mateship." Racist incidents suffered by him have caused him to feel scared and intimidated, including at times feeling physically unsafe and fearful that he would be subjected to racial violence. He has felt hopeless and powerless because when he has tried to raise complaints they were not taken seriously and nothing was done.
Swikriti Kattel
114 Swikriti Kattel was born in Nepal in 1997 and identifies as a person of colour. She immigrated to Australia in 2015 and currently works as a management consultant.
115 Ms Kattel saw Senator Hanson's tweet on the day that it was published on Twitter. She understood the words "piss off back to Pakistan" as a variation of the "go back to where you came from" rhetoric. She was reminded by the tweet that such harmful rhetoric is still prevalent in Australia. She interpreted the choice of words as being more hateful and more disrespectful than saying "go back to where you came from" because of the harshness of the language in the phrase "piss off."
116 Ms Kattel said that she felt offended by the tweet, in particular because someone in the position of a Senator had expressed such views publicly and garnered support from other Australians without appearing to be concerned about the consequences. She felt that the tweet expressed the view that Senator Faruqi was unable to express her opinion about controversial issues because of her ethnicity despite the contributions that she has made to Australia and the fact that she is an elected official.
117 The tweet caused Ms Kattel to feel that no matter what she did for the Australian community or how much she contributed, her contributions would have a reduced impact and would always be less respected; she would be likely to be treated as a second-class citizen because she is an immigrant. The tweet made her feel angry and defeated because it brought back memories of previous experiences of racism since moving to Australia.
118 Ms Kattel gave evidence of her experiences of racism. They include incidents when she was working in a McDonald's in Perth as a student and she was told things by customers such as "hop on a camel and go back to where you come from" and "you're stealing jobs from Australians." Ms Kattel's experiences of racism have made her conscious about how she appeared and dressed and what she said and how she said it in order to avoid it being thought that she did not belong or fit in Australia. She has been made to feel self-conscious and anxious, as well as alone and depressed.
Expert witnesses
119 Senator Faruqi relies on the evidence of three expert witnesses.
Professor Yin Carl Paradies
120 Professor Paradies holds the Chair in Race Relations in the Faculty of Arts and Education at Deakin University. He has held that position since March 2014. Before that he worked in various positions, including as a Research Officer at the Australian Bureau of Statistics, a Research Fellow at the Menzies School of Health Research and a Senior Research Fellow at the University of Melbourne. He has a PhD in social epidemiology from the University of Melbourne. Professor Paradies conducts research on the health, social and economic effects of racism as well as anti-racism theory, policy and practice across diverse settings, including online, in workplaces, schools, universities, housing, the arts, sports and health.
121 Professor Paradies says that based on a large and consistent body of existing literature, it is clear that racism can result in both acute and chronic emotional and physiological impacts. In particular, racist conduct is a pernicious form of stress that can have significant consequences for immediate emotional and psychological health and can also result in long-term pathophysiological changes that affect both mental and physical health.
122 At the individual level, racism can cause immediate sequelae such as shock, denial, anger, rage, frustration, fear, anxiety, guilt, shame, sadness, suppression, distress, and so on.
123 In the medium to long-term at a population level, racism has been linked to a range of mental and physical health outcomes, including anxiety, depression, suicidality, high blood pressure, cardiovascular disease, diabetes, genetic damage, inflammation, poor immune functioning, and so on.
124 Racism is also a social determinant of health that shapes people's environments, resources and opportunities, driving diverse pathways leading to ill-health. Racism impacts jobs and careers, education, formal and informal networks, transport, recreation, housing and access to healthcare.
125 Racism can directly affect the body through activating the stress response, resulting in short, medium and long-term biological changes. Through mechanisms such as epigenetic changes, exposure to racism in one generation might propagate adverse health effects to subsequent generations. For example, a recent study found that in models adjusting for covariates, including socio-economic status and health status, Māori mothers who experienced a racist physical attack during pregnancy had children who, at 4.5 years of age, had significantly shorter telomere length than children of Māori mothers who did not report a racist physical attack during pregnancy. Telomeres are structures made from DNA sequences and proteins found at the ends of chromosomes required for cell division. They cap and protect the end of chromosomes.
126 Racism is perceived as, and often is, a threat which activates stress response pathways. Being exposed to racism regularly over the course of one's life can lead to chronic activation of an energy-consuming emergency response that results in physiological wear and tear as well as dysregulation at the cellular level. It can lead to poor self-worth, self-efficacy and self-esteem.
127 Professor Paradies gave evidence that Senator Hanson's tweet is a common form of racism which can be described as "go back to where you came from." A 2011 study surveyed 580 culturally and linguistically diverse (CALD) Victorian women from four local areas in Victoria, including both rural and urban communities. They were asked, amongst other questions, whether someone had suggested to them that "you do not belong in Australia, that you should 'go home' or 'get out' and so on." Among the 35.2% (n=204) of Muslim women participants, 50% (compared to 36.4% of non-Muslim women) reported being told that they do not belong, and that they should "go home" or "get out." Adjusting for local government area, education, age, country of birth and duration of residence in Australia, Muslim women had 1.61 times the odds of being told that they do not belong in Australia and should go back to their country, compared to non-Muslim women. After experiencing this form of racism, 33.8% of Muslim women who were surveyed (compared to 24.2% of non-Muslim women) were above the threshold for high or very high psychological distress.
128 The survey showed that even Indigenous Australians are often subject to that form of racism. In a survey among 755 Aboriginal Australians in communities across Victoria in 2011, two thirds of participants reported being told that they do not belong or that they should "go home" or "get out."
129 Professor Paradies explained that vicarious racism, also known as secondary racism or second-hand racism, refers to a form of racism experienced by individuals who are not directly targeted but, instead, witness, learn of after-the-fact, or indirectly encounter racism directed at others. Vicarious racism has been associated with anxiety, depression, stress, trauma symptoms and other socioemotional and mental health outcomes.
130 Professor Paradies was instructed that the relevant "Group Attributes" were: persons of colour, migrants to Australia, persons with migrant heritage born in Australia, persons who by virtue of their appearance have been incorrectly identified as migrants, Muslim people, persons with visible signs or expressions of religion, persons who have been told to "go back to where you came from" or variations of that phrase due to their race, colour national or ethnic origin, and persons who have experienced racism. He said that a person who shared one or some of the Group Attributes and read Senator Hanson's tweet is likely to be negatively impacted via vicarious racism, with one or more of the immediate sequelae of racism likely to ensue, viz. shock, denial, anger, rage, frustration, fear, anxiety, guilt, shame, sadness, suppression, distress, and so on.
131 That opinion of Professor Paradies was challenged in cross-examination. Professor Paradies explained that Senator Hanson's tweet is an example of "a fairly strong form of racism–it's exclusionary, and it's very much about who belongs and who doesn't belong." For that reason, he said that the tweet would be likely to have a negative impact on people who had experienced a similar thing themselves.
132 He explained that the extent to which they would be negatively impacted would depend on a number of factors such as their previous experiences of racism, especially this form of "go back to where you came from" racism, the potential for and history of exclusion from public life to racism of this kind, and other aspects of their life situation including their overall and racism-related resilience.
133 Professor Paradies was asked whether the impact experienced by the person would likely be exacerbated when the publisher of the phrase "go back to where you came from" is a colleague, a person with a significant public profile or an elected public official. Professor Paradies cited a study which found that interpersonal discrimination (ie negative behaviours that occur in everyday workplace social interactions) was at least equally harmful, and in many cases more harmful, than formal discrimination (ie decisions such as hiring, promotion or compensation).
134 Professor Paradies explained that racism is a function of power plus prejudice–people with significant public profiles have considerable power through the importance attached to fame in modern societies. Similarly, elected public officials also occupy positions of considerable power in representative democracies. Racism from those in positions of power is likely to have a heightened impact due to the increased threat (perceived or real) of abuse, harm, oppression, marginalisation, restriction, exclusion, ostracisation, disadvantage, deprivation, etc, both directly from the powerful perpetrator themselves and, more importantly, from the authorising effect of such racism through its influence on the general public. Among the general public there will be those who feel empowered to emulate, model and imitate such racism.
135 In cross-examination, Professor Paradies accepted that it is possible for there to be racism to or against white people, or on the basis of being of British descent (T96:35). He did not accept that criticising British colonialism could amount to racism against people of British descent (T97:13) and explained that there is a difference between criticising or critiquing societal institutions or societal processes, particularly those also engaged in by other nations, and making a critique of the people within the society (T120:5-14). In re-examination he explained that power within society is a significant moderator in relation to racism and its effects. Studies have shown that where there is discrimination directed against people on account of being white, the negative effects of such discrimination are significantly less than the effects of discrimination felt by other ethnic groups. Essentially, racism experienced by people who are white has a weaker or "qualitatively different" association with negative health outcomes than for people who are not white (T119:16-24).
136 Professor Paradies explained that, perhaps paradoxically, what is referred to as "white fragility" has been observed. There are cases where white people who experience discrimination can be particularly perturbed by the experience because they do not have much history or experience of being subject to such treatment (T119:34-42).
137 Professor Paradies concluded that the impact experienced, upon reading Senator Hanson's tweet, by a person who shared any or some of the Group Attributes would likely be exacerbated when the publisher is a colleague, a person with a significant public profile or an elected public official. He said that the harms outlined at [36] of the concise statement are consistent with what he would expect a person who shares any or some of the Group Attributes to suffer after becoming aware of Senator Hanson's tweet. That harm is described as:
- (1) suffering offence, insult, humiliation and intimidation;
- (2) psychological distress, mental ill-health, fear including fear of imminent physical attack and hypervigilance including to the extent of insomnia and lack of enjoyment of home and private life; and
- (3) experiencing inhibition and self-censorship in personal and professional life, having feelings of being silent, having feelings of illegitimacy or invalidity of their views, opinions, experiences and expertise, being caused to second guess and "tone police" their responses and reactions to situations, having feelings of isolation and being stripped of a sense of belonging, having feelings of displacement, marginalisation and ostracization, and suffering a reduction in the enjoyment of their human rights.
138 In closing submissions, the only challenge to Professor Paradies evidence was to his conclusions, as probed in cross-examination, that Senator's Hanson's tweet would be likely to cause the results that he identified. That was on the basis that the assessment of any likely response is context and fact specific, and that it cannot therefore be said that a particular response was likely for a group of people as a group. Professor Paradies' evidence cited on behalf of Senator Hanson in support of that submission is this (T100:24-30):
MS CHRYSANTHOU: And you agree, don't you, that, depending on the context and the severity of the racism in question and perhaps other moderating factors, there is not some generalised study that finds that racism as a whole, in all forms, will give rise to each of these adverse health reactions? --- No. No. The impacts of racism are contextual to the setting, to expectations, to previous experiences, to aspects and characteristics of the person who experiences racism and also characteristics of perpetrators and even witnesses and bystanders in the setting where racism has occurred.
139 That answer does not detract from the force of Professor Paradies' evidence. The individualised characteristics of persons exposed to racism will have a bearing on whether they are more or less susceptible to the indicated harms. That is not to say, however, that Professor Paradies' evidence specific to the susceptibility of persons who possess one or more of the Group Attributes to harm from exposure to the content of Senator Hanson's tweet should be discounted. Such Group Attributes form an indelible part of the context to which persons respond to racism. Overall, I consider that he was unshaken in cross-examination. I accept his evidence.
Professor Katherine Jane Reynolds
140 Professor Reynolds has been Professor of Psychology and Learning at the Faculty of Education, University of Melbourne, since 2022. Prior to that, she was an Associate Professor and then Professor of Psychology at the ANU Department of Psychology where she served as Associate Director (2014–2017). She is a leading expert in the areas of group processes (leadership, influence, norms) and intergroup relations (stereotyping, prejudice, conflict, cohesion) from a social identity perspective. She was awarded a PhD in social psychology by ANU in 1997.
141 Professor Reynolds' evidence includes an overview of social psychology as a sub-discipline of psychology. Much of that is not immediately relevant for present purposes. However, she explained that prejudice, discrimination and racism are topics that have been central to social psychology over the last 80 years. Typically, prejudice is defined as a negative attitude or emotional response towards members of a particular social group based solely on their membership in that group. Prejudice involves making generalised judgments about individuals or groups. It often involves negative stereotypes and feelings directed towards a particular group.
142 Professor Reynolds said that racism occurs when negative prejudice is directed towards an individual or group on the basis of their ethnic, cultural (and often religious) or racial heritage and can be institutional where racism is embedded in the culture, ethos, laws and societal norms. Discrimination concerns behaviour where an individual or group's actions harm others through exclusion, negative treatment, violence, or inequity in opportunities.
143 Professor Reynolds summarised the opinions presented in her report as follows. A person who attributes their own personal negative treatment or that of their group to prejudice (racism) is likely to experience significantly poor physical and mental health. Those who experience prejudice (racism) will likely feel devalued, excluded and rejected from the majority group which reduces belonging to the larger group (eg nation) in which they live. Even when not the direct target of the negative treatment, the impacts of such treatment such as poor physical and mental health and reduced belonging can generalise to members of the group as a whole (those who share a social identity).
144 Professor Reynolds said that there is extensive research that confirms that there is a statistically significant relationship between a person's experience of prejudice and their negative mental health and physical health. The experiences of feeling devalued, excluded and rejected from the majority group can likely result in lower self-esteem, lower general life satisfaction, lower sense of belonging, lower self-efficacy/mastery and increased anxiety and depression. Such harms can be experienced "vicariously."
145 Professor Reynolds expressed the opinion that a person who shares one or more of the Group Attributes (being the same ones on which Professor Paradies was instructed, see [130] above) who read the tweet by Senator Hanson, or was told words to the effect of "go back to where you came from" would be "impacted", is likely to experience prejudice and racism from the tweet which is associated with significantly poor physical and mental health (T124:36-41). She said that if the tweet is experienced as discriminatory and racist, it is likely that there will be a flow-on effect to poor physical and mental outcomes (T124:19-25).
146 Professor Reynolds said that there is a strong theoretical case that can be made with regard to the relationship between the racist or discriminatory conduct of public officials and its effect on people, but that there is "less available research" to directly inform her opinion. Nevertheless, building on existing research material, her expert opinion is that the behaviour of public officials, what they say and do, is amplified because they are in positions of power and hold positions of authority and influence. The actions of officials can result in further marginalisation and disengagement from the political process and can lessen the likelihood of national identification and belonging.
147 It is submitted on behalf of Senator Hanson that Professor Reynolds' evidence is of minimal utility because her opinion about people being "impacted" by Senator Hanson's tweet was limited to a consideration of "Muslim women in the Australian context." That, however, is not a fair reading of the evidence. Specifically, Professor Reynolds was asked who the "ingroup" is referred to in paragraph [34] of her report in which she stated that "[m]embers of the ingroup will interpret events in similar ways and will be affected by treatment of individual group members or the group as a whole in similar ways." Her answer was that "it was characterised in very general terms, in theory, but in this context we are specifically thinking about Muslim women in the Australian context" (T127:41-128:3).
148 It is immediately to be observed that Professor Reynolds stood by the general statement in her paragraph [34], and she did not limit it to being applicable only to Muslim women in the Australian context. There was also no follow-up question to suggest that her conclusions were limited to or based only on a consideration of Muslim women in the Australian context. She explained what she meant by "ingroup" and "outgroup." People can respond to the world around them as individuals or as group members. When someone sees themselves as part of the group, that is their ingroup – ingroup is used to mean a psychological group that is meaningful to the perceiver (T122:9-37). Outgroup is used with reference to some other group. Thus, ingroup favouritism can lead to favouring one's own group compared to other outgroups, but individuals may also engage in outgroup derogation which involves negative attitudes or behaviours towards members of other groups.
149 In my assessment, Professor Reynolds' evidence was unscathed in cross-examination. I accept her evidence.
Associate Professor Jennifer Wingard
150 Professor Wingard is an Associate Professor with tenure in the English Department at the University of Houston, Texas. She has been in that position since 2014. Prior to that, she was Assistant Professor in the same department. She has a PhD in Composition and Cultural Rhetoric from Syracuse University (2008).
151 Professor Wingard's areas of research generally focus on political and legal rhetoric, and more specifically on how politicians and news media use repetitive phrases and memes to impact public opinion and voting practices. Her scholarship draws from rhetorical scholars who see language use as more than persuasion and debate, but as central to how people come to understand and shape their lives.
152 Professor Wingard said that the phrase "go back to where you came from" has stood in for anti-immigrant sentiment in Western countries since nation-states began limiting immigration. It has been used to remind immigrants that they do not truly belong. For example, in July 2019 President Donald Trump told four junior Representatives who were critical of his policies to "go back to where they came from." That sparked a renewed discussion of US immigration policy, but also a backlash against Representatives Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota, Ayanna Pressley of Massachusetts and Rashida Tlaib of Michigan. The phrase has become a palimpsest that carries with it the connotations that it has carried through history.
153 As Professor Wingard explained, "Go back to where you came from" is a phrase that carries with it historical anti-immigrant and nativist beliefs. It is so ubiquitous across history, it merely needs to be uttered and people understand that the recipient is being flagged as not belonging, either because there is no room and/or resources for them because their beliefs do not align with those of the receiving country's citizens. Professor Wingard traces the sentiment expressed by the phrase in Australia back to the "White Australia Policy" reflected in Australia's Immigration Restriction Act 1901 (Cth). The phrase is closely associated with the message that even when an immigrant is deemed acceptable, they are supposed to feel lucky to have a spot in the nation state. The spectre of the dangerous immigrant and the consequences of that title, being non-acceptance and/or deportation, are always looming.
154 Professor Wingard observed those sentiments in Senator Hanson's tweet. Within the tweet, Senator Hanson shifts Senator Faruqi's history from one of a lawful non-citizen who has been granted Australian citizenship to that of an unlawful citizen by not only telling her to "piss off back to Pakistan" but by pointing out how her comments on the death of the Queen make her an ungrateful immigrant, rather than an acceptable one. The tweet implies that Senator Faruqi was "gifted" Australian citizenship, has enjoyed all the nation state has had to offer, but is now ungrateful and should therefore "go back to where she came from."
155 Professor Wingard was not required for cross-examination. I accept her evidence.
Andrea-Marie Farrugia
156 Ms Farrugia is a solicitor at Marque Lawyers, Senator Faruqi's solicitors. She affirmed two affidavits. The first sets out the details of internet research done by her and others acting on her instructions to collate evidence of historical statements made by Senator Hanson that are possibly relevant to the issues in the case, more particularly the para (b) element. The product of that research was annexed to a further amended notice of intention to adduce tendency evidence (dated 12 March 2024) under r 30.31 of the Federal Court Rules 2011 (Cth). The second affidavit does the same in respect of a second notice of intention to adduce tendency evidence (dated on 25 April 2024).
157 Ms Farrugia was not required for cross-examination. I accept her evidence. I will deal with the tendency evidence when considering whether the para (b) element is established.
Lauren Rae Gasparini
158 Ms Gasparini is also a solicitor at Marque Lawyers. She affirmed an affidavit after the hearing in support of an application to reopen Senator Faruqi's case for the purpose of adducing further evidence relevant to whether Senator Hanson knew at the time that she published her tweet that Senator Faruqi is Muslim. I will deal with that point of contested fact in due course. For the present, the following can be noted.
159 First, on 13 May 2024, I granted leave to Senator Faruqi to open her case for the purpose of tendering the affidavit of Ms Gasparini. That order was by consent. I also made orders for the parties to file and serve further submissions dealing with the significance or otherwise of that evidence, which they did.
160 Secondly, Ms Gasparini's affidavit sets out the details of internet research undertaken by her, the product of which is annexed to the affidavit. It essentially covers evidence in the public domain of Senator Faruqi being Muslim in order to support the submission that Senator Hanson must have known, at the time that she published the tweet, that Senator Faruqi is Muslim.
161 Ms Gasparini was not required for cross-examination. I accept her evidence.
SENATOR HANSON'S EVIDENCE
Senator Hanson's affidavit evidence
162 In the section, I summarise Senator Hanson's affidavit evidence.
163 Senator Hanson has a long history in Australian public life. She was elected as a councillor to the Ipswich City Council, Queensland in 1994. In 1996 she was elected as an independent Member of Parliament for Oxley (Brisbane). In 1997 she was a founder of the One Nation Party. Between 1998 and 2015 she was a candidate in various Federal and State elections. In 2016 she was elected Senator for Queensland, and then in May 2022 she was elected to a six-year term as Senator for Queensland.
164 Senator Hanson was born into a working-class family. When she was only 12, she started working in her parents' shop where she mixed with ordinary Australians of various ethnic backgrounds. She stopped attending school at the age of 15, got married at 16 and had her first child at 17 years of age. She has four children.
165 For a period, Senator Hanson owned and ran a fish and chips business. She says that during that time she spoke to Australians of many different backgrounds, ethnicities and nationalities.
166 She says that after being released from 11 weeks in prison in 2003, having been acquitted on appeal, she went home and noticed that the Australian flag at her house was tattered. She immediately replaced it with a new Australian flag because she was "so proud to be an Australian."
167 Senator Hanson says that she was emotionally distraught on learning of the death of the Queen on the morning of 9 September 2022. The Queen was the only monarch of Australia during her lifetime. She saw the Queen as a sign of constancy. I accept that Senator Hanson loved and respected the Queen as Australia's head of state. There is no suggestion in the evidence that Senator Hanson knew the Queen personally or had had any actual interaction with her.
168 Senator Hanson says that her staff rang her on the morning of the Queen's death and told her about Senator Faruqi's tweet. She was "disgusted" with Senator Faruqi's tweet. She said:
I could not believe that Senator Faruqi would use the hours after a woman's death to say such terrible things about her. Many people across the world were still coming to grips with losing the Queen. But at a time of international and national mourning, Senator Faruqi did not even have the respect to wait a day before viciously insulting her. Even if Senator Faruqi didn't like the Queen, she couldn't even respect the fact that many Australians did.
169 Senator Hanson says that she was also disgusted with what she considered to be Senator Faruqi's hypocrisy. She identified two aspects to that hypocrisy. The first is that Senator Faruqi as a senator swore or affirmed that she would be faithful and bear true allegiance to the Queen yet in her tweet she described the Queen as the "leader of a racist empire built on stolen lives, land and wealth of colonised peoples." The second is that Senator Faruqi has "benefitted enormously" from her position in this "racist empire", including in taxpayer funded positions, yet she is critical of Australia.
170 Senator Hanson said she was also disgusted with Senator Faruqi's tweet because she believed that much of it was false, misleading or insincere. In that regard she identified three features.
171 First, she said that she considered Senator Faruqi to be insincere by offering "Condolences to those who knew the Queen" and then she "viciously insults the dead person."
172 Secondly, for the same reason she says that it was insincere of Senator Faruqi to say that she cannot mourn "the leader of a racist empire" etc. That seems to be the same point, which is to say that Senator Hanson regarded the statement of condolences to those who knew the Queen to be insincere because Senator Faruqi then went on to describe the Queen as "the leader of a racist empire" which Senator Hanson regards as a "vicious" insult to the Queen.
173 Thirdly, Senator Hanson says that Senator Faruqi's statement of being reminded of the urgency of "Treaty with First Nations, justice & reparations for British colonies & becoming a republic" "makes no sense" because the death of the Queen is not a reminder of those things and has nothing to do with them.
174 Senator Hanson dictated her tweet in response to Senator Faruqi's tweet to a member of her staff to publish on Twitter. She says that she wrote it:
because as an elected senator:
(a) I wanted to respond to the hypocritical, false, misleading and insincere Faruqi Tweet;
(b) I wanted to stand up for the values of many of my constituents and many people across Australia; and
(c) I wanted to stand up for an institution that Senator Faruqi had decided to attack.
175 Senator Hanson also said that the people she represents, and whose thoughts she wished to convey in the tweet, hold two attitudes in particular. First, they love Australia and saw the Queen as part of the Australian character. Secondly, they hate a lack of self-awareness in politicians and "they would be outraged (like I was) when a politician like Senator Faruqi, with her high paying job and multiple properties, was complaining about a racist empire built on stolen wealth."
176 Senator Hanson said that she chose the words in her tweet for the following reasons (as written):
(a) Your attitude appalls and disgusts me: I was appalled and disgusted by Senator Faruqi's attitude for all of the reasons I have given above.
(b) When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in parliament: I wanted to make the point that Senator Faruqi had received enormous advantages of the "racist empire" she was now criticising, for the reasons given above.
(c) "It's clear you're not happy, so pack your bags and piss off back to Pakistan": Contrary to what Senator Faruqi suggests, I was not saying "go back to where you came from" because of her racial characteristics. There is nothing about Senator Faruqi's race, colour or origin that means she should not be in Australia – it was her attitude that was the problem – her attitude to towards Australia and Australians.
What I was saying was if she thought Australia was such a terrible place (because she made a public statement that it was a racist empire built on stolen lives, land and wealth of colonised peoples), then she should go somewhere else. I said the words "back to Pakistan" because that's where she happened to be from. If she were from the UK, I would have said "piss off back to the UK". If she were from New Zealand, I would have said "piss off back to New Zealand". If she were born in Australia, I would have said "piss off somewhere else" or chosen a country that I thought fit what she was saying and said "piss off" there.
I believed that it didn't matter whether a person saying disgraceful things about Australia was from here or not. I believed that whether you were lucky enough to be born here or lucky enough to be able to move your life here, you should be loyal to and grateful for Australia. I believed that Australia is a beautiful, prosperous and successful country. I did not believe that it was part of a racist empire. My belief was that if you – a migrant or someone born here – are not happy in this country, you should go and find a country that suits you.
177 Senator Hanson said that she believed that what she said in her tweet was true and that it was an honest expression of her beliefs. She also said that she thought that Senator Faruqi would "take my criticism on the chin."
178 Senator Hanson said that she considered the death of the Queen to be a matter of public interest, and Senator Faruqi's tweet and views about the matter to also be a matter of public interest.
Cross-examination and credit
179 I have considerable doubt about whether Senator Hanson gave the wording of her tweet the thought that she said that she did in her affidavit. That is because in cross-examination she said that she immediately dictated the tweet to her staff on seeing Senator Faruqi's tweet. She was feeling distraught, disgusted and angry. She did not get a draft back from her staff, consider the words or weigh them. She just dictated the tweet and sent it. (T156:20-43.) I will return to this when I consider whether the para (b) requirements are established.
180 Senator Hanson accepted that telling Senator Faruqi to "piss of back to Pakistan" was another way of telling her to go back to where she came from (T158:33).
181 Senator Hanson was an argumentative witness who often did not answer the question put to her and did not accept obvious truths. The following are some examples that support that assessment.
182 Senator Hanson was played a recording of her having said that she would not sell her house to a Muslim. She was asked whether she had heard herself say that, to which she argumentatively replied that it was irrelevant because she had not sold her house – clearly the issue at stake was not what she had done but what she had said. She ultimately accepted that she had said it, but she would not say whether she had meant it. (See T137:43-138:30.)
183 Senator Hanson was played a recording of her saying that Muslims will "blend into a society until the numbers grow and then they will actually then impose their will on the people, or get hold of governments. And this is what their tactic is." She accepted that she believed what she said at the time that she said it, but she said that she did not know whether she still believed it. That is an evasive answer. Later she accepted that she still held that belief. (See T143:17-29; T145:9-20.)
184 Senator Hanson was played a recording in which she had sought to justify a blanket ban on Muslim immigration with reference to the internment "in the 1950s" (sic) of Germans and Japanese in Australia because they could not be trusted as to where their loyalties lay. When pressed on whether she considered her own analogy to be apt, Senator Hanson did not accept the analogy and said that the circumstances were completely different, yet she did not disavow a blanket Muslim immigration ban. She repeatedly deflected by saying that such a policy was not in her party's policy booklet, but accepted that such a ban was her own personal opinion and then later disagreed with the proposition that she genuinely believed that Muslim immigration should never have been allowed. She also sought to distance herself from such a policy, which she was shown to have publicly supported on numerous occasions, by saying that she had not advocated for it in the Parliament. (See T144:45-149:27; T173:19-20.)
185 Senator Hanson repeatedly said that she does not recall previously having said things that she would be expected to recall. For example:
- (1) She said that she could not recall whether she had publicly made the claim that Muslims had been celebrating the 9/11 World Trade Centre attacks in the streets in Australia (T147:20-39).
- (2) She said that she could not recall starting the hashtag #PrayForMuslimBan (T148:24).
- (3) She said that she could not recall making public statements that advocated for a full Muslim ban on immigration, saying that "it's about fundamentalists, extremists" even though she had not made that qualification in her public statements (T139:6; T149:21-22).
- (4) Despite having been played recordings proving it, she said that she does not know whether she had previously said and believes that there are Muslims infiltrating government in Australia (T150:37-40).
186 It is inherently unbelievable, as stated by Senator Hanson, that her staff had been publishing tweets in her name for years without her having any idea that they were doing so (T163:1-4), and that she did not know that other Twitter users respond to her tweets even though she later said that her staff reported responses to her (T164:18-26).
187 In the end, I was left with the distinct impression that Senator Hanson would say anything that came to mind if she thought that it would suit her at that time; she had little regard to whether what she said was true or false. Her evidence is generally unreliable.
SENATOR HANSON ON RACE, IMMIGRATION AND MUSLIMS
188 There are two particular factual topics that require detailed consideration. One is whether Senator Hanson has a tendency to say racist, nativist and Islamophobic things which is relevant to whether she posted the tweet in question "because of" the race, colour or national or ethnic origin of Senator Faruqi or a group of people. The other is whether at the time she posted her tweet, Senator Hanson knew that Senator Faruqi is Muslim. That is relevant to the same inquiry. I will address each in turn.
Senator Hanson's tendency to make racist, nativist and Islamophobic statements
189 Senator Faruqi relies on what she says is Senator Hanson's long history of making racist statements and espousing racist views. Before turning to the tendency evidence that Senator Faruqi relies on in that regard, it is to be noted that Senator Hanson's oral evidence in this case includes the following.
190 She said that she believes that "our leaders continued to tell us to be tolerant and embrace the good Muslims. But how should we tell the difference? There is no sign saying good Muslim or bad Muslim" (T143:45-144:9).
191 She said that she believes that Muslims are getting themselves into positions of government – ministerial and bureaucratic positions – and that it concerns her (T145:10-20).
192 She accepted that she had in the past advocated for a Muslim ban on immigration, and that she still believes that there should be such a ban (T145:32-38; T147:3-4).
193 Those matters on their own show Senator Hanson's hostility to Muslims. Whether that amounts in the circumstances of this case to hostility based on race, colour or ethnic origin is a matter I will return to.
194 I now turn to the tendency evidence.
195 By s 97(1) of the Evidence Act 1995 (Cth), evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the party seeking to adduce the evidence gives reasonable notice in writing of their intention to adduce that evidence. Also, the court must think that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Regulation 6 of the Evidence Regulations 1995 (Cth) sets out requirements for the form of a notice of intention to adduce tendency evidence.
196 Senator Faruqi gave notice of her intention to adduce such evidence. That notice was amended from time to time. Ultimately, the intention is expressed in a further amended notice of intention to adduce tendency evidence dated 12 March 2024 and a second notice of intention to adduce tendency evidence dated 25 April 2024. Attached to the first notice are 85 extracts from publications between 1996 and 9 September 2020 of Senator Hanson's conduct which is said to demonstrate that she has a tendency to:
(a) make public statements (or endorse the public statements of other people that have been made) because of the race, colour or national or ethnic origin of a particular person who has, or group of people who have, one or more of the following attributes (Group Attributes).
- (i) Person of colour;
- (ii) Migrant to Australia;
- (iii) Person with migrant heritage, born in Australia;
- (iv) Muslim person;
- (v) Person with visible signs or expressions of religion;
(b) engage in commentary consistent with the Respondent holding white supremacist views, including by making hateful remarks about a person who has, or a group of people who have, one or more of the Group Attributes.
197 Attached to the second notice is a media statement by Senator Hanson and video footage of her making a statement in an interview, both published in April 2024. The statements are said to demonstrate the same tendencies.
198 The publication extracts are summarised in tables in the tendency notices. With reference to the item numbers in the notices, their content can be categorised as evidencing the following public messages by or attitudes of Senator Hanson (item numbers reference the first notice unless stated otherwise):
- (1) Anti-multiculturalism and anti-diversity, including such statements as "we [ie Australia] are not based on Asian nationality. We are based on Anglo-Celtic European." (Items 5, 11, 12, 29, 36, 59, 62, 65, 67, 78 and 87.)
- (2) Seeking to popularise particular claims about Aboriginal people, including with regard to Aboriginal cannibalism and that Aboriginal people are not the original human inhabitants of the continent of Australia, as a justification for denying the recognition of Native Title and special measures to attain Aboriginal equality. (Items 7 and 8.)
- (3) Anti-Asian, including the regular repetition (and defence) of her statement that Australia is "swamped by Asians." (Items 6, 10, 22, 33, 36, 67, 76, 77, 80, 81 and 93.)
- (4) Anti-Native Title, including the false statement that the recognition of Native Title involves giving away 75 or 80% of the land to 2% of the people and referring to Native Title as "a scam perpetrated against non-Aboriginal Australians." (Items 12 and 14.)
- (5) Perpetuating the notion that there is a campaign to make white people feel guilty – referred to as the "white guilt industry" – and that there is nothing in Australia's history to feel guilty about. (Items 7, 8, 12, 14 and 83.)
- (6) Making Islamophobic claims, including statements such as "Islam is a disease we need to vaccinate ourselves against", Islam is "not compatible with our way of life", "When 9/11 occurred in New York, Muslims were seen dancing and celebrating on the streets of Sydney" and "every terrorist is a Muslim." (Items 18, 23, 24, 25, 26, 27, 28, 30, 31, 32, 34, 35, 36, 39, 40, 41, 42, 43, 45, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 60, 63, 64, 66, 67, 68, 69, 70 and 72, and items 1 and 2 of the second notice.)
- (7) "Go back to where you came from" in respect of immigrants. (Items 25, 29, 46, 59 and 67.)
- (8) Aboriginal people are unfairly advantaged to the detriment of white people, and people claim the benefits of being Aboriginal when they are not "True Blacks" or not Aboriginal enough. (Items 36, 83, 84, 85, 86 and 92.) (That is in essence the same type of message that was held in Eatock v Bolt [2011] FCA 1103; 197 FCR 261 to be unlawful under s 18C.)
- (9) Other racist statements or categorisations such as referring to "African gangs" (item 71), people being "brindle" (item 73(c)) noting that the Macquarie Dictionary describes "brindle" in such a context as being a derogatory and racist reference to people of mixed ancestry because it is properly used in respect of domestic animals, and stating in relation to Chinese people that "their hygiene is not the standard we are" (item 77). (Senator Hanson also recently described Muslims as "breeding" in a context where "breeding" was derogatory, its use invoking an analogy with animals: T170:7-21; item 2, second tendency notice.)
199 The repeated expression of those views justifies findings, which I hereby make, that Senator Hanson has a tendency to make negative, derogatory, discriminating or hateful statements in relation to, about or against groups of people relevantly identified as persons of colour, migrants to Australia and Muslims, and to do so because of those characteristics.
Senator Hanson's knowledge that Senator Faruqi is Muslim
200 Nearly 20 transcript pages into her cross-examination, for the first time in the proceeding Senator Hanson said that at the time that she published her tweet she did not know that Senator Faruqi is Muslim. When pressed on it, her argumentative answer was to say "I've never gone and asked a woman. I don't go and ask anyone their religion" when the point clearly arises from Senator Faruqi's high public profile as a Muslim and not from some possible personal inquiry (T151:36-45). She also said that it had never entered her mind whether or not Senator Faruqi is Muslim (T152:18).
201 The place to start on this issue is the pleadings. The concise statement pleads that Senator Faruqi was offended and insulted by Senator Hanson's tweet by the insinuation that "as a Muslim, migrant woman of colour" she is less worthy than other Australian citizens. That paragraph of the concise statement is simply denied in Senator Hanson's concise response. Senator Faruqi also pleads that she contends that in respect of the attributes of race and ethnic origin, the tweet was done including because of her race and ethnic origin, "including because she is Pakistani-born and Muslim." The concise response admits that Senator Faruqi is making that contention, but denies that it is true. Senator Faruqi also pleads that Senator Hanson has made countless hateful remarks over many years about Asian and Muslim people, "both ethnoreligious groups to which the Applicant belongs", which is merely denied in the concise response.
202 It was thus clear from the pleaded case that part of Senator Faruqi's claim is that Senator Hanson's tweet affected her as a Muslim and that it was published by Senator Hanson at least in part because Senator Faruqi is Muslim. There were simply bare denials of the relevant allegations. It was never pleaded that Senator Hanson did not know that Senator Faruqi was Muslim and could therefore not have published the tweet because Senator Faruqi is Muslim. Had Senator Hanson not known that Senator Faruqi is Muslim, that would have been an obvious defence to plead to that aspect of the claim.
203 Senator Faruqi's evidence in the form of an affidavit was filed and served on 3 October 2023. The fifth paragraph of the affidavit has only three words, "I am Muslim"–they could not be missed on even a superficial reading. The affidavit is thereafter replete with references to Senator Faruqi's Muslim identity, including that she was the first Muslim woman to be a member of any Australian Parliament and that she was the first female Muslim Senator in Australian history. She also recounts examples of racism that she faces as a Muslim in politics in Australia. Her affidavit links her identity as a Muslim to her racial and ethnic origin.
204 Senator Hanson accepted that she understood that the purpose of her affidavit was to respond to the matters that had been raised in the case (T152:1-2). However, her affidavit says nothing about not knowing that Senator Faruqi is Muslim, even in canvassing in detail why she had published the tweet. That detail included saying that she did not say in her tweet "go back to where you came from" because of Senator Faruqi's racial characteristics, and that there is nothing about Senator Faruqi's race, colour or origin that meant that she should not be in Australia.
205 If Senator Hanson indeed did not know at the time that she published her tweet that Senator Faruqi was Muslim, that would be a complete answer to that part of the claim that the tweet was published because Senator Faruqi is Muslim. Senator Hanson was clearly put on notice as to that aspect of Senator Faruqi's claim, but she did not answer it in the most obvious way available to her, assuming her claim in evidence about her lack of knowledge about Senator Faruqi being Muslim is true.
206 In the circumstances, it is not credible that Senator Hanson did not know at the time of the tweet that Senator Faruqi was Muslim. I reject that evidence on that basis alone.
207 However, there are additional grounds to reject that evidence when other factors are also considered. In her affidavit, Senator Hanson said that since Senator Faruqi became an Australian Senator she has been aware of Senator Faruqi's Twitter account and has followed her tweets. Senator Hanson said that as at September 2022, she "was familiar with the sort of posts that Senator Faruqi often made." Senator Hanson also said that prior to the publication of Senator Faruqi's tweet she knew that Senator Faruqi "had frequently made inflammatory and provocative statements about her beliefs."
208 The evidence of Ms Gasparini shows that between at least 22 September 2018 and 9 September 2022 (being the date of Senator Hanson's tweet) the tweet "pinned" to the top of Senator Faruqi's Twitter profile (ie the first tweet that would be seen on visiting the profile and therefore enjoying particular prominence) stated the following immediately under Senator Faruqi's name and Twitter handle (as written):
I'm a woman. I'm a migrant. I'm muslim. I'm a mother.
I'm Mehreen Faruqi. This is my story.
209 The pinned tweet appears like this:
Pinned
Mehreen Faruqi 
@MehreenFaruqi • Aug 20, 2018
I'm a woman. I'm a migrant. I'm muslim. I'm a mother.
I'm Mehreen Faruqi. This is my story.210 On 20 August 2018, Senator Faruqi was sworn in as a Senator. On 21 August 2018, she delivered her maiden speech in the Senate. On 21 August 2018 at 5.01pm, she tweeted parts of the text of her maiden speech in the Senate to her Twitter account in a series of tweets as follows (among others):
Good Evening. Assalamoalikum.
The reality is that my presence in the Senate is an affront for some. They are offended that people of colour, and Muslims, have the audacity to not only exist, but to open our mouths and join the public debate. Some politicians call us cockroaches.
Some, if they had their way, would ban us from making Australia our home. So it is with great pride that I stand here before you unapologetically a brown, Muslim, migrant, feminist woman.
211 Assalamoalikum (including variant spellings) is a well-known and universal Muslim greeting which from the Arabic language translates to mean "peace be upon you." Also, the reference to people being offended at Muslims is clearly a reference to herself as a Muslim.
212 There are also many occasions before 9 September 2022 in which Senator Faruqi's tweets have referenced her Muslim identity, including at least one occasion in which Senator Hanson was specifically tagged which would have had the result that that tweet would have been sent directly to Senator Hanson's Twitter feed.
213 It is possible that Senator Hanson did not see, or have her attention drawn to, the various tweets referred to above, including the pinned tweet. However, in the context of her having said that she followed Senator Faruqi's Twitter account, that she was familiar with the sort of tweets that Senator Faruqi posted, that she knew that Senator Faruqi frequently made "inflammatory and provocative statements about her beliefs" and that her staff immediately reported Senator Faruqi's 9 September 2022 tweet to her, it beggars belief that she did not know that Senator Faruqi is Muslim.
214 Scores of media articles were tendered to show that it was widely and regularly reported in the media before 9 September 2022 that Senator Faruqi is Muslim. Some of those articles prominently cover the publication of Senator Faruqi's autobiography or memoir, Too Migrant, Too Muslim, Too Loud (Allen & Unwin, 2021). Recordings of two podcasts, one with Cory Bernardi and Paul Murray in July 2020 and one with Alan Jones in August 2022, were also tendered. During Senator Hanson's participation in the podcasts, which is to say in her presence, the other participants referred to Senator Faruqi being Muslim.
215 Again, it is possible that Senator Hanson did not see those media articles or did not hear her podcast co-participants referring to Senator Faruqi as Muslim, but the probabilities are overwhelmingly against that. That is particularly so in the context of Senator Hanson's recurring focus in her public statements about the dangers to society presented by Muslims entering public life in Australia, and her support for a total ban on Muslim immigration. Senator Hanson has shown a keen concern over a long time about Muslims in public office. She had also been a Senate colleague of Senator Faruqi for more than four years (there are only 76 Senators), and she knew that Senator Faruqi was from Pakistan (she said as much in the tweet). How then could she not have known that one of her Senate colleagues with a loud and proud Muslim identity is Muslim? The answer is that she must have known.
216 It is submitted on behalf of Senator Hanson that the evidence referred to above with regard to the tweets, podcasts and other media identifying Senator Faruqi as Muslim do not establish that on 9 September 2022 Senator Hanson knew that Senator Faruqi is Muslim. That is principally on the basis that it is not established that Senator Hanson read, heard or absorbed the relevant information. Support for that is derived from Senator Hanson's evidence in cross-examination that she does not have Twitter on her phone or her computer, she does "not really" look at and read what her followers say in tweets, and that she does not follow tweets (T164:12-35). She said that one of her staff had authority to publish tweets in her name, explaining "because I'm a paper girl, okay? Not technology" (T163:22-24).
217 I do not find any of that convincing, particularly in light of what she said in her affidavit about following Senator Faruqi on Twitter and knowing the sorts of tweets she posted about her beliefs. I find that it is overwhelmingly probable that Senator Hanson knew that Senator Faruqi is Muslim and said in cross-examination that she did not know that fact in order to avoid the implication that she published the tweet in question because Senator Faruqi is Muslim. On that basis, I find that on 9 September 2022 Senator Hanson knew that Senator Faruqi was Muslim.
PARA (A) – REASONABLY LIKELY TO OFFEND, ETC
218 The first inquiry is whether Senator Faruqi's tweet was likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.
All the circumstances, including the tweet itself
219 The requirement that the assessment be made with reference to "all the circumstances" requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered when assessing whether offence, etc, was reasonably likely: Eatock v Bolt at [257] per Bromberg J. Just what circumstances may be relevant will vary from case to case and will depend on the evidence: Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [47] per Barker J.
220 I accept the submission on behalf of Senator Hanson that the relevant circumstances include the death of the Queen on the day of both tweets, the identities of both respondents as Senators, the content of Senator Faruqi's tweet to which Senator Hanson's tweet responded, the medium of the publication of both tweets (ie Twitter which is well-known for harsh and unconsidered comments that readily "go viral" in the sense of being reproduced, spread and republished multiple times) and that Senator Hanson's tweet was a reply to Senator Faruqi's tweet which included the latter within it. Another relevant circumstance is that Senator Hanson had a very substantial following on Twitter.
221 A central circumstance is, of course, the offending tweet itself and what it said. It has three central messages. They are all directed to Senator Faruqi's status as being from somewhere else. The one is that, as an immigrant, Senator Faruqi "took" advantage of Australia – she "took" citizenship, bought several houses and she took a job in the Parliament, yet she has the hypocrisy to be critical. Not only is that the message that was conveyed, but it is also the message that Senator Hanson says that she meant to convey. It is a message that Senator Faruqi is, as an immigrant, a second-class citizen, and that she should be grateful for what she has and keep quiet. It is othering and exclusionary.
222 The second message is that Senator Faruqi should "piss off back to Pakistan." As accepted by Senator Hanson, that is a variant of the slogan, "go back to where you came from" (T158:33). That slogan is a racist trope with a long history. As Professor Wingard explains, the phrase has become a palimpsest that carries with it the connotations that it has carried (and gathered) through history. It carries with it historical anti-immigrant and nativist beliefs with roots, in Australia, that are traceable to the White Australia Policy. As explained by Professor Paradies, the phrase is a common form of racism. In cross-examination, he described it as a "fairly strong form of racism … very exclusionary, and it's very much about who belongs and who doesn't belong" (T112:10-12). The evidence of the autobiographical witnesses gives real-world lived experience credibility to those characterisations.
223 The result is that the tweet carries messages targeting immigrants and people of colour. However, the tweet is also targeted at one person in particular. That is Senator Faruqi. The evidence establishes that she is publicly identified as being a person of colour, an immigrant from Pakistan and Muslim. Her identity as Muslim is inseparable from her identity as an immigrant and a person of colour. Although the tweet does not explicitly target Muslims in Australia, it does so implicitly, both through the reference to Pakistan (ie the Islamic Republic of Pakistan) where 97% of people identify as Muslim and by targeting a prominent Muslim and commanding her to go back to Pakistan. As Colvin J explained in Bharatiya (at [55]), "[t]he lexicon of racist insults is not closed. Many words may take on that character, depending upon matters such as context, tone and allusion to historical events or cultural practices or beliefs." The tweet thus conveys an anti-Muslim message; it is Islamophobic. I will come to consider in more detail below whether Muslims are a protected group within the RDA's quartet of "race, colour or national or ethnic origin."
A person and/or a group of people
224 Turning now to the tweet's effect, para (a) looks to "the likely effect of the act upon a hypothetical person in the circumstances of the applicant or as a member of the relevant group": Bharatiya at [17]. This is an objective inquiry: Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] per Drummond J; Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352 at [12]–[13] per Kiefel J; Bropho at [66]; Jones v Scully at [98]–[99]; Clarke at [46]; Bharatiya at [14], [17].
225 The assessment needs to be undertaken by reference to a "person or group of people": Eatock v Bolt at [243], [246]; Kaplan v Victoria (No 8) [2023] FCA 1092 at [507] per Mortimer CJ. The present case is put in relation to both a person, Senator Faruqi, and a group. Noting the use of the indefinite article in para (a) – "a group" – followed by the definite article in para (b) – "the group" – which indicates that the group in para (b) is the same group as in para (a), this group must be identified in some way with reference to the characteristics listed in para (b), ie race, colour or national or ethnic origin. Identification of the appropriate group or groups is not straightforward.
226 In Creek v Cairns Post (at [13]), Kiefel J described the group with reference to who was likely to be offended, insulted, etc. That was said to be "an Aboriginal mother, or one who cares for children, and who resides in the township of Coen." In Jones v Toben [2002] FCA 1150; 71 ALD 629 (at [96]), Branson J, also with reference to the group that was likely to be offended, insulted, etc, described the relevant group as "members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability."
227 In Jones v Scully (at [108]–[109]), Hely J described the group as Jews in Australia, or Australian Jews. That is because the impugned material was directed against Jews and was distributed in Australia.
228 In Eatock v Bolt (at [287]) the group was described as "fair skinned Aboriginal persons." That was an obvious description because it was the explicit target of the impugned act.
229 In Clarke (at [191]) the group was described as "adult members of the local Aboriginal community, including parents and carers of children." Justice Barker noted (at [189]–[190]) that there is a danger in describing the group too narrowly because that could lead to the focus of the inquiry becoming the subjective or emotional response of a particular person or particular people, but that there is also a danger in describing it too broadly because an act which might truly be offensive will not be so regarded by a reasonable member, or all reasonable members, of a wider group. The point is illustrated by Hagan in which Drummond J (at [25] and [28]) described the group as "members of the Toowoomba indigenous community." His Honour found that members of that Indigenous community were not likely to be offended, etc, by the sign "The ES 'Nigger' Brown Stand" on a football stadium (referring by nickname to the distinguished local athlete Mr ES Brown), although the applicant and members of his immediate family would be. That was because Mr Brown in his time and thereafter had universally been known by that nickname, including amongst Indigenous people, and the sign had, over some 40 years of display, "long ceased to have any racial connotation, even if it once did have that" (see [13], [27], [41]).
230 The point is also illustrated by Bropho (at [35]) in which the then-Human Rights and Equal Opportunity Commission described the relevant group as "Nyungar or Aboriginal" people but also considered, in the alternative, a broader group of people "not necessarily of Nyoongar or Aboriginal descent." It was held that the reasonable Nyungar or Aboriginal person would likely have found the impugned cartoon published in a Western Australian newspaper to be offensive, insulting, humiliating or intimidating, but that a reasonable member of the broader group would perhaps not have found it humiliating or intimidating, but only offensive or insulting: Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; 72 ALD 321 at [7] per Nicholson J.
231 In Kaplan, Mortimer CJ (at [509]) described there to be two groups, Jewish students at Brighton Secondary College in the audience to whom the impugned speech was given, and non-Jewish students in the audience. Her Honour held that separate findings should be made about each group.
232 Senator Faruqi's concise statement pleads that:
[T]he relevant group includes people who have the following attributes:
a. Persons of colour;
b. Migrants to Australia;
c. Persons with migrant heritage, born in Australia;
d. Persons who by virtue of their appearance have been incorrectly identified as migrants;
e. Muslim people;
f. Persons with visible signs or expressions of religion;
g. Persons who have been told to "go back to where they came from" or variations of that phrase due to their race, colour or national or ethnic origin; and/or
h. Persons who have experienced racism.
233 As explained above, Senator Hanson's tweet conveys messages targeting immigrants, people of colour and Muslims. As a result, I consider that the most appropriate groups for consideration are, first, people of colour who are migrants to Australia or who are Australians of relatively recent migrant heritage, and, secondly, Muslims who are people of colour in Australia. Those two groups have combinations of the pleaded characteristics (a), (b), (c) and (e), namely persons of colour, migrants to Australia, persons born in Australia who are of migrant heritage and Muslim people. The inclusion of people who are of relatively recent migrant heritage with migrants recognises that first or second generation Australians are often and easily characterised or treated as immigrants, and also that as a matter of historical fact all Australians descending from those who have arrived after the British settlement of Australia are technically of migrant heritage. This is explained by Professor Paradies (T107:10-21).
234 The other categorisations are too broad to be of utility because they are not reasonably considered the targets of Senator Hanson's tweet. For example, the hypothetical reasonable person in Australia who is not a person of colour and who is not a migrant or of relatively recent migrant heritage or Muslim would be likely to find the tweet offensive, possibly even to the requisite degree of seriousness, because of its attack on vulnerable groups and its inherent racism, but the members of such a group are not the target or the subject of the tweet; they are not the people that the legislation is aimed at protecting.
The likely reaction
235 The conduct is assessed from the point of view of the hypothetical representative in relation to the claim that the group of people were offended, etc, and in relation to each of the identified persons where a personal claim is made: Eatock v Bolt at [250]. Moreover, it must be remembered that a group of people may include the sensitive as well as the insensitive, the passionate and dispassionate, and the emotional and the impassive, so the "ordinary" or "reasonable" member or members of the group should be isolated for the assessment: Eatock v Bolt at [251].
236 It was said in Kaplan (at [513]) that in the operation of para (a) in respect of "a group of people", "an applicant need not prove the likely objective reaction or effect in the entire group, but must at least prove the likely objective reaction or effect in most of the group" (emphasis in original). That was later expressed differently as being a requirement in relation to "enough of the group that the purpose of the legislative prohibition is advanced." I do not read those statements as saying anything different from what was said in Eatock v Bolt about the hypothetical representative of the group, but rather to emphasise that that construct must have the group as a whole in mind, or most or enough of its members, so that the inquiry is not too sensitive to the idiosyncratic – it should exclude the exceptionally robust and the hypersensitive or peculiarly susceptible.
237 Similar considerations apply in relation to the individual – the "another person" in para (a). In applying the objective test it is necessary to take the perspective of the hypothetical person, sometimes referred to as the "reasonable victim", who might possibly be offended by an act of the type in question: Clarke at [50]. It is necessary to consider the hypothetical person in the applicant's position: Creek v Cairns Post at [13].
238 The words "offend, insult, humiliate or intimidate" take their ordinary English meanings: Jones v Scully at [102]–[103]; Bropho at [67], [69]. As identified in Clarke at [66], those meanings may include the following:
offend — to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult — to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage …
humiliate — to make low or humble in position, condition or feeling, to humble … to subject to humiliation; to mortify.
intimidate — to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.
239 However, para (a) only applies to conduct that has "profound and serious effects, not to be likened to mere slights": Creek v Cairns Post at [16]; Bropho at [70]; Eatock v Bolt at [268]; Kaplan at [506]; Constantinou v Australian Federal Police [2024] FCA 123 at [21] per O'Bryan J. While there is "an aspect of gravity or severity inherent in the prohibition" (Kaplan at [30]), "the effect need not be at the extreme level of 'racial hatred'" (Kaplan at [506]).
240 The requirement that the act is "reasonably likely" to have the requisite effect is satisfied if there is a "real" and "not fanciful or remote … chance" of the relevant outcome: Eatock v Bolt at [260]. That is to be assessed on the balance of probabilities on which the applicant bears the onus of proof: Bropho at [65]; Eatock v Bolt at [261].
241 Necessarily, the judge, whatever their own life experience, must try to put themselves in the position of the reasonable member of the group or the reasonable victim, and see matters from their perspective; the judge must guard against judging matters of "offence" etc by how they personally are made to feel by the conduct in question or by how, based on that, they think other people would generally or likely respond. It is in this context that the evidence of members of the group and the relevant person can assist the judge in that endeavour; without uncritically adopting that evidence and thereby wrongly applying a subjective test, it can enable the judge to better understand a perspective that may not naturally be their own.
Conclusion on para (a)
242 I am comfortably satisfied that both groups of people in Australia that I have identified, being persons of colour who are migrants or of relatively recent migrant heritage and persons of colour who are Muslim, are reasonably likely, in all the circumstances, to have been offended (ie profoundly and seriously), insulted, humiliated and intimidated by Senator Hanson's tweet. I have already canvassed the basis for that conclusion in traversing the evidence and the discussion of the circumstances and meaning of the tweet and the identification of the relevant group. By way of non-exhaustive summary, I highlight the following.
243 The starting point is the nature of the messages conveyed by the tweet. Although separately identifiable, the messages must be taken together to assess their impact in context (ie "in all the circumstances"). As I have explained, the tweet targets immigrants as being second-class Australians, and as being less worthy of what Australia has to offer than those who are not immigrants or of recent immigrant heritage. The tweet also expresses, in particularly emphatic form and tone, the racist trope "go back to where you came from." That dismissive statement is addressed at a prominent member of the Muslim community, telling her to go back to Pakistan which is a Muslim country. It will therefore also be understood by the hypothetical reader as an anti-Muslim message. Moreover, those three messages – nativist, racist and anti-Muslim – are amplified and given credit or credibility coming from a Senator, and one with a large following on Twitter. As such, they authorise and empower others with less power and status to publish the same sort of messages, or worse, as explained by Professor Paradies (see [134] above).
244 The fact that the tweet is and would have been understood by the relevant hypothetical reader as being a direct response or reply to Senator Faruqi's tweet does not detract from the nature and strength of its messages. Turning attention, then, to Senator Faruqi's tweet as the submissions on behalf of Senator Hanson demand, it can be accepted that colonial history in general, and Australian colonial history in particular, and the role and place of race and racism in that history, are contested issues. It can also be accepted that the place of the monarch as the Australian head of state, and whether Australia should become a republic, are contested issues, as are the questions of treaty and justice and reparations for First Nations people. But Senator Faruqi's expression of ideas and opinions on those issues – even on the day of the Queen's death – would not be seen by the relevant hypothetical reader to justify or lessen the effect of the targeted, racist, anti-immigrant and anti-Muslim response from Senator Hanson. Objectively, there is nothing in Senator Faruqi's tweet which might in context lessen the impact of Senator Hanson's tweet.
245 Even the characterisation of the British empire as "a racist empire built on stolen lives, land and wealth of colonised peoples" is not an expression of some fringe or revisionist historiography. Although confronting to some people, its underlying factual premises in relation to Australia find support in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (at 42) where Brennan J (with whom Mason CJ and McHugh J agreed) explained that "the rights and interests in land of the indigenous inhabitants of settled colonies [was justified by] an unjust and discriminatory doctrine", and that "[t]he proposition that the Crown became the beneficial owner of all colonial land on first settlement has been supported by more than a disregard of indigenous rights and interests" (at 43). Justices Deane and Gaudron recognised the violent dispossession of the Aboriginal inhabitants of their land by the colonists (at 104-109), and that "in some areas of the continent, the obliteration or near obliteration of the Aborigines were the inevitable consequences of their being dispossessed of their traditional lands" (at 106). Also, in Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (1991) is documented the history of racist violence in Australia, including that during a 160-year period of dispossession of Aboriginal people from their land, some 20,000 Aboriginal people who were British subjects were killed in frontier conflicts (at 37–44).
246 I accept that Senator Faruqi received a lot of criticism in response to her tweet before Senator Hanson's tweet was posted, demonstrating that some people regarded it as controversial and even offensive. But that is not the perspective of the relevant reasonable group member or reasonable targeted person, and it is not a factor that would lessen the effect of Senator Hanson's tweet on them. Indeed, Senator Hanson's intervention in that existing state of affairs which inflamed the racist responses and gave space to others to say what they might not otherwise have said is more readily seen as exacerbating those effects.
247 The hypothetical reasonable reader would also see no hypocrisy in Senator Faruqi's tweet that might somehow lessen the impact of the racist response to it (leaving to one side the question of whether racist invective in public discourse could ever be "justified" as a response to hypocrisy, real or perceived). There is no hypocrisy in swearing formal allegiance to the Queen as head of state in the conduct of one's responsibilities as Senator and being critical of British colonialism and the monarchy as an institution and advocating for constitutional change. Senator Hanson is herself highly critical of aspects of Australian society and public policy, as she is entitled to be and as one would expect of a politician always in opposition to the government of the day. She is no more hypocritical for that, than Senator Faruqi is for what she said.
248 There is also no necessary insincerity in offering condolences to those who knew the Queen and to go on to be critical of the monarchy as an institution of government. Indeed, it is an approach that is couched in terms which seek to be respectful of the feelings of those who feel personal loss on the death of the Queen while at the same time making a broader point about institutional history.
249 It is also relevant that Senator Faruqi's tweet was not directed at Senator Hanson; it was in no sense an attack on her.
250 In short, there is nothing in that part of the overall circumstances constituted by Senator Faruqi's tweet that to the "reasonable" member of the relevant group or the "reasonable victim" lessens the offensive, insulting, humiliating and intimidating effect of the racist, anti-immigrant and anti-Muslim messages of Senator Hanson's tweet. Those messages are powerful and impactful.
251 The expert evidence of Professors Paradies and Reynolds establishes the harmful effects of racism, both at an individual level and at a societal level. It also establishes that racism is experienced vicariously. That is pertinent because even if the tweet was read and understood as only targeting Senator Faruqi, significant numbers of the members of the identified groups would personally experience the harmful effects of the racism expressed in the tweet. That racism does have such effects and is pernicious in the way in which it is experienced, is borne out by and supported by the evidence of the autobiographical witnesses. Their evidence also supports the conclusion that the tweet in question is likely to be experienced by the hypothetical member of the identified groups as (profoundly and seriously) offensive, insulting, humiliating and intimidating.
252 As mentioned, the relevant "person" as referred to in para (a), as distinct from the group of people, is Senator Faruqi. Her evidence speaks to her actual response to Senator Hanson's tweet, ie its effects on her. Nevertheless, the inquiry is an objective one – would the hypothetical person in Senator Faruqi's position who is not oversensitive nor insensitive, the "reasonable victim", feel the effects in a similar way? In my view, that hypothetical person is likely to experience Senator Hanson's tweet as (profoundly and seriously) offensive, insulting, humiliating and intimidating. To focus on just the last two of those effects, being those at the most serious end of the spectrum and hence the most difficult to establish, it is seriously humiliating to be told as an immigrant person of colour that you are a second-class citizen and unworthy. It is intimidating to be publicly attacked in that way, and to be subjected to the racist trope to go back to where you came from. That is at least in part because of its silencing effect, as explained by Senator Faruqi, Professor Paradies, Professor Reynolds and some of the autobiographical witnesses, and the licence that it offers others to do the same. That in turn engenders fear; fear not only of being subjected to similar verbal racist abuse, but also fear of being physically attacked; it makes people feel vulnerable not only emotionally or psychologically but also physically. It makes them feel that their place in Australia is vulnerable. The effect is exacerbated by the fact that Senator Hanson is a person with a high public profile and in a position of power with an amplified voice (from her large following on Twitter where the tweet was published), and she is a work colleague of Senator Faruqi.
253 It is submitted on behalf of Senator Hanson that Senator Faruqi's reaction to the tweet, and its effect on her, should not be taken as indicative of what was reasonably likely. Two reasons are given for that.
254 First, it is said that Senator Faruqi holds a view of what is "hate speech" that is at odds with its meaning under the Act and that she does not apply that view equally to people of other colours or backgrounds such as white Anglo-Saxons. The basis for that is that Senator Faruqi said in her affidavit that "hate speech", in contrast to robust criticism from someone holding different views on a matter of public debate, is not just about what you are saying but about who you are, what you look like and where you come from–the "focus of the comments comes down to my race, background, where I come from, and that is a clear distinction: that's racism." She also said in cross-examination, in response to the suggestion that she did not treat criticism of white people in the same way, that racism is tied to power so that saying something about people who are marginalised and oppressed is quite different from saying something about people who have colonised other peoples and who are in power, such as white people (T49:29-43).
255 In relation to Senator Faruqi's view of what amounts to hate speech, she was not giving a view on the interpretation of s 18C, and what she said is a plausible view of what racist hate speech is. It does not suggest that she is oversensitive to racism. With regard to the question of equivalence between white and black racism, Senator Faruqi's view is orthodox. As explained by Professor Paradies (see [135]) above), a racist slur at someone on the basis of their membership of a powerful group is qualitatively different from such a slur at a member of a marginalised or oppressed group.
256 Secondly, it is said that Senator Faruqi's evidence of her own experiences of racism reflects a propensity to find offence where objectively there is no ground for it. Those are the experiences referred to at [38] above. It is not necessary to go into the detail of each one. It suffices that in each she perceived that she was treated differently because of her race, colour or religious/cultural observance (eg wearing a shalwar kameez in one incident and not wishing to wear shorts in another), and objectively on the facts presented that is what occurred. The case of being forced to wear shorts to play football is a typical example of a facially neutral condition that is indirectly discriminatory–it prejudices only those with cultural or religious reasons not to wear shorts and in that way casts them as outsiders. The submission that there were objectively no grounds for Senator Faruqi to have taken offence in those incidents is rejected as unfounded.
257 There is no basis to find that Senator Faruqi's actual reaction to Senator Hanson's tweet, and the effects of it that she experienced, are unusual or out of the ordinary. There is also no basis to find that she is overly sensitive or lacking in resilience. Indeed, her family, professional and public service history would all suggest that she is highly competent, purposeful and self-assured which tends to suggest that she is not overly sensitive or lacking in resilience. The fact that the tweet had the effects that it did on her serves to support the conclusion that it is reasonably likely to have had serious effects on the so-called reasonable victim.
258 It is well established by the evidence that the likely effects of the messages in Senator Hanson's tweet rise to and above the necessary "gravity or severity inherent in the prohibition" in s 18C, and that they are "profound and serious" and cannot be "likened to mere slights" (see Kaplan at [30] and Constantinou at [21] referred to above). I find that the para (a) requirements are established.
PARA (B) – DONE BECAUSE OF RACE, ETC
The principles
"Because of"
259 Bearing in mind the terms of s 18B (canvassed at [22] above), for an act to have been done "because of" a relevant attribute, it suffices that it be "a factor" in the respondent's decision to act: Creek v Cairns Post at [28]; Toben v Jones at [37] per Carr J, [62] per Kiefel J and [152] per Allsop J. That is to say, what must be shown is that "a reason for the conduct … was the race [or other attribute] of the group found reasonably likely to have been offended, insulted, humiliated or intimidated": Kaplan at [526].
260 It was said by Kiefel J in Toben v Jones at ([63]) that the inquiry is as to the "true reason or true ground" for the conduct. See also Bharatiya at [18]; Kaplan at [526], [536]. Her Honour explained that a person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did, and there may be other circumstances which throw light upon the reason for their actions. As will be seen, those observations are particularly pertinent in the present case.
261 The requisite causal connection is between the conduct and the race, etc, of the person or group reasonably likely to be offended, insulted, humiliated or intimidated: Eatock v Bolt at [307]; Bharatiya at [19]; Kaplan at [524]. The conduct is the same conduct as that referred to in para (a), ie the conduct that is reasonably likely to cause offence, etc: Eatock v Bolt at [304]; Kaplan at [530], [536]. "Motive is not necessary, but in any given factual situation may be relevant, indeed centrally relevant": Kaplan at [526]; see Toben v Jones at [151]. The provision "does not require that there be an intention to offend, insult, humiliate or intimidate another person or a group of people in order for an act to be unlawful": Bharatiya at [14].
262 "[T]he quality of offensiveness of statements might be used to deduce something about motive and in any given factual situation could perhaps supply the causal connection required by s 18C(1)(b)": Toben v Jones at [67]; Kaplan at [541]. But "[t]he making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires": Toben v Jones at [69]. Further, "[s]ome statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others": Toben v Jones at [69].
"Race, colour or national or ethnic origin"
263 Paragraph (b) uses the expression "race, colour or national or ethnic origin." None of the component parts is defined. I accept, as observed by Bromberg J in Eatock v Bolt (at [310]), that the attributes in para (b) have an obvious overlap. Together they comprise a composite expression with each component bringing its own meaning or emphasis to the "somewhat elusive concept of race", with the expression itself being intended to offer a broad and non-technical basis for protection against what might loosely be referred to as racial discrimination: see Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 1643; 90 FCR 202 at 209–211 per Carr, Sundberg and North JJ. The EM to the Racial Hatred Bill 1994 which led to the inclusion of Pt IIA in the RDA explained as follows:
The terms "ethnic origin" and "race" are complementary and are intended to be given a broad meaning.
The term "ethnic origin" has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of "ethnic origin" as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.
The term "race" would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims.
264 It is uncontroversial in this case that groups identified by colour and immigration status (as an expression of "national origin" as distinct from nationality which is a purely legal status and may be transient – see Macabenta at 210–213) are protected. It is, however, contentious whether Muslims or Muslims in Australia are a protected group because of a shared "ethnic origin." It is that expression that requires particular attention.
265 With reference to the passage in the EM just quoted, there can be little doubt that it was intended, at least by the Executive that introduced the Bill, that Muslims would be a protected group. That is twice made express in successive paragraphs. However, subjective intention is, of course, irrelevant, and statements made in an explanatory memorandum, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31]. The object, after all, is to ascertain the meaning of the legislation, not the meaning of the legislature, cf Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [97] quoting Holmes OW, "The Theory of Legal Interpretation", (1899) 12 Harvard Law Review 417 at 419.
266 Section 15AB of the Acts Interpretation Act 1901 (Cth) allows consideration of the EM to assist in the ascertainment of the meaning of the provision in order to confirm that the meaning is the ordinary meaning conveyed by the text (taking into account its context and purpose) or to determine the meaning when it is ambiguous or obscure, or when the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable. There is no dispute in this case that the EM can be used to assist in ascertaining the meaning and reach of the expression "race, colour or national or ethnic origin" as well as its component parts.
267 In King-Ansell v Police [1979] 2 NZLR 531 the Court of Appeal of New Zealand held that Jews in New Zealand form a group with common "ethnic origins" within the meaning of the Race Relations Act 1971 (NZ). The relevant prohibition was against inciting hostility or ill-will against, or bringing into contempt or ridicule, any group of persons in New Zealand on the ground of "colour, race, or ethnic or national origins of that group of persons." The charge sheet was framed specifically in relation to "Jews, on the ground of their ethnic origins." The appeal against the conviction was dismissed unanimously on the basis that Jews are an ethnic group within the meaning of the statutory language. All three judgments recognise that "ethnic origins" appears in a composite expression which includes colour, race and national origin, which has a bearing on its meaning, and that "race" has a broad and popular meaning in the provision, and not a narrow meaning dependent on common genetic characteristics: at 533–534 per Richmond P, at 537 per Woodhouse J and at 542 per Richardson J.
268 The judgment of Richardson J, which is singled out in the EM, commands particular attention. His Honour adopted a meaning of "race" and the associated words from the statutory provision as applying to any more or less clearly defined group thought of as a unit usually because of a common or presumed common past (at 543). From that, his Honour held that:
a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.
269 In Mandla v Dowell Lee [1983] 2 AC 548 (HL) the question was whether Sikhs were a "racial group" where that statutory expression was defined as a group of persons "defined by reference to colour, race, nationality or ethnic or national origins." The case turned on whether Sikhs were a group defined by "ethnic origins." Lord Fraser of Tullybelton, with whom the other members of the Appellate Committee agreed, held as follows (at 562):
For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
270 His Lordship also adopted (at 564) the passage from the judgment of Richardson J in King-Ansell v Police that I have set out above, saying that it "sums up in a way upon which I could not hope to improve the views which I have been endeavouring to express." Sikhs were held (at 565) to be an ethnic group on the basis that although they were originally a religious community, the community is no longer purely religious in character. Also, Sikhs have a distinctive and self-conscious community; they have a written language which a small proportion of Sikhs can read but which can be read by a much higher proportion of Sikhs than Hindus; and they were at one time politically supreme in the Punjab.
271 In Mabo v Queensland (No 1) [1988] HCA 69; 166 CLR 186, one of the questions that called for an answer was whether, on the assumption that the plaintiffs could establish the native title land rights claimed by them in respect of the Murray Islands, s 3 of the Queensland Coast Islands Declaratory Act 1985 (Qld) which declared all such rights to have been extinguished was inconsistent with s 10(1) of the RDA within s 109 of the Constitution. A majority of the Court comprising Brennan, Deane, Toohey and Gaudron JJ held that there was such an inconsistency. The joint judgment of Brennan, Toohey and Gaudron JJ simply treated the Miriam people from the Murray Islands as being "persons of a particular race, colour or national or ethnic origin" within the meaning of s 10(1) without analysis of the meaning of that composite expression. Justice Deane, however, discussed the meaning of the expression within the context of Art 5 of CERD. In that context, his Honour reasoned (at 230) that the word "race" and the phrase "national or ethnic origin" are not to be given a pedantic or unduly narrow meaning. That reasoning also applies to those expressions in s 18C.
272 The formulation of the meaning of "ethnic origin" in Mandla v Dowell Lee was adopted by the Full Court in Macabenta at 210. Also, on the basis of King-Ansell v Police, it was accepted in Miller v Wertheim [2002] FCAFC 156 at [14] per Heerey, Lindgren and Merkel JJ that Jewish people in Australia comprise a group of people with an "ethnic origin" for the purposes of the RDA. Similarly, the broad conception of a group of people with a common "ethnic origin" that had been developed in King-Ansell v Police and Mandla v Dowell Lee was adopted in Jones v Scully (at [110]–[113]) in concluding that "Jews in Australia" are a group of people with an "ethnic origin" for the purposes of the RDA. Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [47] per Basten JA, Santow and Ipp JJA agreeing, is to the same effect.
273 I adopt the formulations of a group with common ethnic origins from King-Ansell v Police and Mandla v Dowell-Lee quoted above. That is consistent with the express references to those formulations in the EM, the prior judgments in this Court identified above, and with the protective purpose of the RDA and s 18C in particular; it is to give the expression a non-pedantic and not unduly narrow meaning as referred to by Deane J cited above.
274 The RDA does not seek to protect people on the basis of their religious beliefs per se – religious rights and protections lie outside the RDA – but, common religious beliefs, customs, practices or rituals may form an important component of ethnic identity arising from common ethnic origins. That much is clear from the cases on Jewish ethnic origin already referred to, and it is perhaps even clearer in Regina (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728. It is also clear in the case of Sikhs as discussed in Mandla v Dowell-Lee.
275 No evidence was adduced before me on the history of Islam and there is little evidence before me on the question of what it means to be Muslim. Mr Moolla's evidence is that he is Muslim but non-religious and non-practising (see [98] above). Senator Faruqi, in positioning herself "somewhere in the middle" between being highly observant at the one end of the spectrum and merely culturally attached to the religion at the other, implicitly accepted that it is possible to be "culturally Muslim" (T88:8-23). That may suggest that Muslims have an identity beyond their religion, but it is not clear whether that can be said to arise from race or ethnicity, or something else. The parties also made very little by way of submissions on the question. That makes it particularly difficult to come to a decision on whether or not Muslims or Muslims in Australia are a protected group within the meaning of s 18C(b). It is obviously undesirable for a judge, with their own particular circumstances of education, life experience and religion, to try to define what it means to be Muslim unaided by evidence. The importance of evidence on the question is explained in Sackville R, "Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act" (2016) 90 Australian Law Journal 631 at 640.
276 An academic article referred to by Professor Paradies in his report, which was the subject of cross-examination and relied upon by Senior Counsel for Senator Faruqi in closing submissions is Yeasmeen T, Kelaher M and Brotherton JML, "Understanding the types of racism and its effect on mental health among Muslim women in Victoria" (2023) 28(2) Ethnicity & Health 200 (Yeasmeen et al (2023)). The authors state that the Muslim population is part of a racial/ethnic minority group in Western countries (at 202). That is certainly true of Australia where Muslims "are usually immigrants and as such their religious identity can be associated with racial identity" (at 202). As at 2016, nearly 37% of Muslims in Australia were born in Australia (at 203, citing Australian Bureau of Statistics, 2016 Census Community Profiles). Thus, in Australia, Muslims are overwhelmingly people of colour and immigrants or descendants of relatively recent immigrants. They are also a marginalised and discriminated against group. The case for the inclusion of Muslims as a protected group on the basis of race, colour and national origin, as distinct from the protection of religious beliefs, practices and rituals, is obviously strong. That is reflected in the EM. The example given in the second reading speech for the Racial Discrimination Legislation Amendment Bill 1992 (Cth) (at 3891) of a white woman wearing a hijab or headscarf being attacked because she is thought to be an Arab rather than because she is thought to be Muslim illustrates the close connection between race, ethnicity and religion in this context.
277 Further, it seems to me that although the universal unifying characteristics of Muslim identity are religious, there are important characteristics that are not. The universal religious characteristics, which Senator Faruqi referred to as the five pillars of Islam, are the belief that there is no god but God and that Muhammad is the final Messenger of God, and the commitments to pray five times a day, to fast during the month of Ramadan, to pay charity and (for those able to do so) to undertake a pilgrimage to Mecca to perform the Hajj. But Islam also teaches a way of life that creates a special bond between Muslims, perhaps exemplified by the universal Muslim greeting in Arabic, referred to earlier in these reasons in variant spelling, As Salaamu Alaykum (peace be upon you), and the response, Wa Alaykum As Salaam (and peace be upon you). That illustrates another characteristic, which is that although Muslims from all over the world speak a variety of different languages and there is no language that all Muslims speak, the authentic text of the Quran is necessarily in Arabic and Muslims universally share that Arabic greeting and response. All Muslims, even if not at all religious, share in the festival of Eid Al Fitr at the end of Ramadan–it is as much a cultural festival as it is religious. It might also be said that the "shared customs, beliefs, traditions and characteristics" of Muslims are "derived from a common or presumed common past" (King-Ansell v Police) and that they have "a long shared history of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive" (Mandla v Dowell Lee).
278 On the basis of what I have set out in the preceding paragraphs, there is a case to be made that Muslims in Australia are an ethno-racial group within the meaning of s 18C(b) identified above and not merely a religious group. It may also be that judicial notice could properly be taken of the characteristics that I have identified in the immediately preceding paragraph under s 144 of the Evidence Act. But those are not characteristics that have been put to the parties to enable them to make submissions and to refer to information as required by s 144(4). Perhaps they are more "open to question" and less "common knowledge" than what they seem to me to be (s 144(1)). In the circumstances, I am hesitant to make a finding on Muslims in Australia as an ethnic or ethno-racial group.
279 Another difficulty is that one can conceive of circumstances in which something highly offensive, insulting etc is said about a Muslim or group of Muslims, but not because of their race, colour or national or ethnic origin. For example, something meeting the high-level requirements of para (a) may be directed at some particular aspect of Islamic beliefs or practice that is quite separate from and unmotivated by any of the para (b) factors, ie a discretely religious doctrinal attack or criticism. If Muslims or Muslims in Australia were to be regarded as a necessarily protected group within the meaning of para (b), then such a case would fall foul of s 18C which may be beyond its ordinary and intended meaning.
280 The result of that is that I do not read the para (b) requirements to necessarily be met if it is established that the relevant act was done because a person or a group of people is Muslim. However, as I will come to, in a particular case it may be established that by the act being done because a person (or a group of people) is Muslim, the act was also done because of the race or colour or ethnic origin of the person (or group). That will depend on the intersectionality between their identity as Muslim and their identity with reference to race, colour or national or ethnic origin. Thus, the role played by a person or a group of people's Muslim identity will be fact dependent in each case.
Consideration
281 When answering the inquiry called for by para (b), it is the relevant offensive conduct that is at the heart of the inquiry. Thus, the inquiry is whether race, etc, was a factor in Senator Hanson publishing the tweet in the offensive terms that she used, not simply in publishing an angry tweet in response to Senator Faruqi's tweet.
282 A place to start in answering the question whether Senator Hanson published her tweet "because of" the race, colour or ethnic or national origin of the relevant group or of Senator Faruqi is to examine the reasons given by her for doing so. I have set those out at [168]–[176] above. In summary, they are the following:
- (1) She was disgusted by Senator Faruqi "viciously insulting" the Queen on the day of her death.
- (2) She was disgusted with Senator Faruqi's hypocrisy, being in relation to her oath of allegiance to the Queen and having "benefited enormously" from a country she was now criticising.
- (3) She was disgusted by the insincerity of Senator Faruqi's expression of condolence.
- (4) She wanted to stand up for the values of her constituents.
- (5) She wanted to stand up for "an institution that Senator Faruqi had decided to attack", presumably the British Empire.
- (6) There is nothing about Senator Faruqi's race, colour or origin that means she should not be in Australia – it was her attitude that was the problem – her attitude towards Australia and Australians.
283 I have already said that I have considerable doubt about whether Senator Hanson gave the wording of her tweet the thought that she said that she did in her affidavit. I find that the affidavit is an ex post facto attempt to justify and explain the tweet. Time and again, she said in oral evidence that she dictated the tweet in distress, disgust and anger and that she did not check the wording of a draft; she did not take time to reflect on her chosen wording. I find that she framed the tweet spontaneously and in the heat of the moment.
284 In any event, except for the last one, none of the reasons that she gives excludes a factor or a reason for the tweet being one of the para (b) factors. Even if Senator Hanson subjectively thought that Senator Faruqi had viciously insulted the Queen, or that what she said was insincere and hypocritical, that does not explain why her response was framed as anti-immigrant, racist and anti-Muslim, or exclude those as being a reason for the tweet being framed in that way.
285 Insofar as the last of Senator Hanson's reasons is concerned, it is framed as a denial and is sought to be justified on the basis that Senator Faruqi showed some sort of reprehensible "attitude" to Australia or Australians. But even if Senator Hanson's tweet was thus primarily actuated by criticism of Senator Faruqi's attitude to Australia and Australians, that does not explain its racist, nativist and anti-Muslim content other than it being "because of" the race, colour or national or ethnic origin of Senator Faruqi.
286 In the circumstances, I am left with the messages themselves in their context. There is no satisfactory explanation for them other than what their content and context evidences, which is that they were conveyed because of the colour, national origin and Muslim identity of Senator Faruqi–prima facie, a racist and nativist attack is made "because of" the race, colour or ethnic or national origin of the person targeted. In the absence of any compelling or sufficient evidence to the contrary, I conclude that a cause of Senator Hanson having posted it in those terms was the race, colour or national or ethnic origin of Senator Faruqi.
287 I will now consider the role of Senator Faruqi's Muslim identity in Senator Hanson tweeting as she did.
288 Senator Hanson has a long history of making anti-Muslim statements and, as I have found, she has a tendency to do so. At the time of her tweet, she knew that Senator Faruqi was Muslim. She also knew that Pakistan is a Muslim country. On those facts I am satisfied that a cause of Senator Hanson tweeting in the terms that she did is because Senator Faruqi is Muslim.
289 Senator Hanson's anti-Muslim rhetoric over the years is not only directed at aspects of Islamic religious beliefs, although some of it is. Much of it is directed at Muslims as immigrants and as being different from Senator Hanson's conception of what it is to be "Australian." For example, in the context of explaining why she said that she would not sell her home to a Muslim, Senator Hanson said that Muslims are not "compatible with our way of life, our culture" (T137:17; item 58 of the further amended tendency notice). She also regularly equated Muslims with terrorism (eg item 35 of the further amended tendency notice), and tied her anti-Muslim sentiment with anti-Asian sentiment including that Australia is "swamped by Asians." As such, Senator Hanson's anti-Muslim rhetoric is directed at Muslims as much because of their race, colour and immigrant status as it is at anything about their religious beliefs.
290 Yeasmeen et al (2023) explain the intersection of race, ethnicity and religion–how two or more factors of identification can be interconnected and mutually reinforcing, "resulting in multiple and intertwined layers of discrimination" (at 201). Given the origins of many immigrants to Australia, there is considerable overlap between the different categories: Bharatiya at [55]. Their intersectionality means that they are inseparable, and it would generally not be possible to identify that particular conduct was responsive to or motivated by one category and not others. Thus, in the Australian context, to be Islamophobic is almost invariably also to be racist, and in this specific context it was. That Senator Hanson's tweet was in part motivated by Senator Faruqi's identity as a Muslim, means that race, colour or national or ethnic origin were equally motivating factors in the publication of the tweet.
291 For those reasons, the para (b) requirements are amply established in relation to the racist, anti-immigrant and anti-Muslim messages of the tweet. That is to say, a cause of Senator Hanson having tweeted in the terms that she did was the race, colour or national or ethnic origin of Senator Faruqi.
SECTION 18D(C)(II) – FAIR COMMENT
The principles
292 The onus of proof in relation to s 18D lies on the respondent: Toben v Jones at [41]; Eatock v Bolt at [338]–[339]; Clarke at [116].
293 The requirement that the relevant act was done "reasonably and in good faith" in order to enjoy the protection offered by s 18D applies to each of the exemptions set out in its paragraphs.
294 As far as reasonableness is concerned, there must be "a rational relationship" between what is said or done and an activity in ss 18D(a)–(c) in the sense that it was said or done "for the purpose" of the activity and "in a manner calculated to advance the purpose": Bropho at [79]–[80]; Clarke at [119]–[120]. Further, what is said or done must not be "disproportionate to what is necessary to carry it [viz the activity in ss 18D(a)–(c)] out": Bropho at [79], [139]–[140]; Clarke at [122]; Eatock v Bolt at [349], [414], [439]. For example, being "gratuitously insulting or offensive" in relation to "a matter that is irrelevant" to the activity in ss 18D(a)–(c) may be unreasonable: Bropho at [81]; Clarke at [121].
295 Reasonableness in s 18D is ultimately an objective question: Bropho at [79]; Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [82] per Robertson J. It is "informed by the normative elements of ss 18C and 18D": Bropho at [79]. "[T]here may be more than one way of doing things 'reasonably'" and the question is "not whether it could have been done more reasonably or in a different way more acceptable to the Court": Bropho at [79]; Martinez at [82].
296 The requirement of "good faith" has an objective and a subjective element: Clarke at [133]; Eatock v Bolt at [346]–[348]. Subjective good faith requires "subjective honesty and legitimate purposes": Bropho at [96]. Conduct lacks subjective good faith if, for example, the respondent sought "consciously to further an ulterior purpose of racial vilification", "dishonesty or the knowing pursuit of an improper purpose": Bropho at [96], [101]. Objective good faith requires "a conscientious approach to the task of honouring the values asserted by the Act … assessed objectively": Bropho at [96], [101]-[102]. For example, taking a "conscientious approach to advancing the exercise of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it" may be objectively in good faith, whereas acting "carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt" may lack objective good faith: Bropho at [102].
297 It is formally submitted on behalf of Senator Hanson that the concept of good faith is directed to subjective considerations, focussing on the honesty of the views expressed. It is submitted that that is because the terms of s 18C are unconstrained as to the circumstances of publication, other than that they be "otherwise than in private." However, it is accepted on behalf of Senator Hanson that Toben v Jones, insofar as the judgments of Kiefel and Allsop JJ are concerned, is against that submission.
298 Senator Hanson relies on the judgment of Carr J, in particular (at [44]) where his Honour said:
In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.
299 The "challenge which the appellant sought to make" referred to in that paragraph is the challenge posed to those who support a conventional view of the Holocaust (ie that Nazi Germany systematically killed six million Jews) to provide further evidence in support of it (at [40]). There is nothing in his Honour's quoted statement to support the submission that the requirement of good faith is only subjective. In any event, I am bound to reject the submission and apply the characterisation of good faith adopted in the judgments of Kiefel and Allsop JJ.
300 The "fair comment" exemption in s 18D(c)(ii) on which Senator Hanson specifically relies upon applies to comments, not statements of fact: Eatock v Bolt at [355]. To be "fair" the comment must be "based upon true facts": Creek v Cairns Post at [32]; Eatock v Bolt at [354]. Those facts must be "expressly stated, referred to or notorious", and can be implicit: Eatock v Bolt at [355]. The view expressed must also be genuinely held. That will not be so if the respondent "knew the comment was untrue, or was recklessly indifferent to the truth or falsity of the comment": Eatock v Bolt at [357].
301 I accept, as submitted on behalf of Senator Hanson, that when it comes to considering the "fair comment" defence in s 18D(c)(ii), and the comment in question is made in response to another person's published statement, the first statement is an important part of the context in which the responsive statement is to be evaluated.
Consideration
302 I have already dealt with Senator Hanson's stated reasons for publishing the tweet in the form that she did. None of her reasons adequately explains why she chose messages that are racist, anti-immigrant and anti-Muslim. She reverted most easily to those messages when responding to a Muslim, immigrant woman of colour in anger in the heat of the moment, which is consistent with the views that she has espoused publicly for decades.
303 Senator Hanson accepted in cross-examination that many of the reasons that she gave in her affidavit for responding to Senator Faruqi's tweet in the terms in which she did are not reflected in her response. She accepted the following:
- (1) Her tweet did not express the idea that Senator Faruqi was being hypocritical by virtue of an oath she had taken to bear true allegiance to the Queen (T167:1-8; T168:30).
- (2) She did not say anything in her tweet about the idea that Senator Faruqi's offered condolences were not genuine (T167:10-15).
- (3) She did not say anything in her tweet about the timing of Senator Faruqi's tweet being in poor taste given that the Queen had died that day (T167:17-21).
- (4) She did not say anything in her tweet about the idea that it was hypocritical for Senator Faruqi to have bought land in Australia but nonetheless to have expressed concern about First Nations disadvantage and that she should give some of her wealth to First Nations people (T167:23-29; T168:32).
- (5) She did not say anything in her tweet about the idea that Senator Faruqi was being racist in relation to all Australians in her tweet (T168:17-25).
304 There is also nothing in Senator Hanson's tweet about the British Empire, stolen lands and wealth of colonised people, a treaty with First Nations, reparations or Australia becoming a republic; the tweet does not try to defend or comment upon British colonial history. Indeed, there is nothing in Senator Hanson's tweet that is responsive to the content of Senator Faruqi's tweet. It did not call on Senator Faruqi to apologise, or to give her wealth away, or, in terms, to stop being critical of the British Empire or Australia. Rather, it told Senator Faruqi to "piss off back to Pakistan." Senator Hanson's tweet was merely an angry ad hominem attack devoid of discernible content (or comment) in response to what Senator Faruqi had said.
305 In the circumstances, Senator Hanson's tweet was not reasonable or in good faith. With regard to reasonableness, there was no rational relationship between what was said and the proclaimed purpose or reasons for the tweet, nor was it in a manner calculated to advance that purpose or reason. With regard to good faith, there was no conscientious approach to advancing the exercise of Senator Hanson's freedom of speech in a way that was designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. In contrast, Senator Hanson carelessly disregarded, or was wilfully blind to, its effect upon people who would be hurt by it. Indeed, by her defence to this proceeding she maintains that her tweet was not materially offensive.
306 For the same reasons, although it can be accepted that Senator Hanson was commenting on a matter of public interest (being Senator Faruqi's tweet and its contents) and that her tweet was an expression of her genuine belief (being consistent as it was with beliefs she has espoused for years), Senator Hanson's tweet was not a fair comment.
307 In the result, Senator Hanson has failed to establish her s 18D defence.
THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION
Introduction
308 As mentioned, Senator Hanson contends that in the event that I find, as I have, that her act in publishing her tweet was unlawful under s 18C(1) and not exempted under s 18D(c)(ii), then I should find that s 18C as read with s 18D is constitutionally invalid as being in conflict with the implied freedom of political communication as recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 and other cases in the High Court. Senator Hanson's challenge raises the question of the constitutional validity of Pt IIA of the RDA as the other provisions within that part all have a bearing on ss 18C and 18D.
309 That question was decided in favour of constitutional validity by Hely J in Jones v Scully at [239]–[240]. Senator Hanson consequently accepts that for me to uphold her contention it is necessary, for reasons of comity, that I be persuaded that Hely J was plainly wrong: BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2007] FCAFC 157; 162 FCR 234 at [88]–[89] per Greenwood J, Sundberg J agreeing; TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 at [61] per Basten JA, Meagher JA and Emmett AJA agreeing. Senator Hanson argues that because the party challenging the constitutionality of the relevant provisions in Jones v Scully was not legally represented and consideration of the point was dealt with briefly, some lesser standard than "plainly wrong" applies, but no authority was cited in support of that proposition. No doubt the Court in that case would have been assisted by more fully developed argument, and the jurisprudence of the High Court has developed in the intervening 22 years. I will bear those matters in mind when coming to my own view on the question at hand, including coming to a view as to whether Jones v Scully is plainly wrong.
310 The Attorney-General's exposition of the applicable principles, subject to a minor addition by Senator Hanson which I will identify in due course (at [353]), is uncontroversial. I therefore draw heavily on that exposition in what follows, and gratefully acknowledge the careful and comprehensive submissions on behalf of the Attorney-General.
311 The implied freedom of political communication is a qualified limitation on legislative power to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors": Lange at 560. It extends "only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution": Comcare v Banerji [2019] HCA 23; 267 CLR 373 at [20].
312 Whether legislation infringes the implied freedom is to be answered by: first, determining whether it places an "effective burden" upon communication; and secondly, determining whether that burden is "justified": Lange at 567–568; McCloy v New South Wales [2015] HCA 34; 257 CLR 178 at [5] and [69]. The question of "justification" involves both an identification of the purpose of the law or the end it serves, and an assessment of whether the law is "proportionate" (or "reasonably appropriate and adapted") to achieve that purpose or end: Lange at 562; LibertyWorks Inc v Commonwealth [2021] HCA 18; 274 CLR 1 at [45]–[46]. A law will be proportionate if it is "suitable", "necessary" and "adequate in its balance": McCloy at [2].
313 That analysis means that the inquiry can be expressed in three questions (see Clubb v Edwards; Preston v Avery [2019] HCA 11; 267 CLR 171 at [5]):
1. Does the law effectively burden the implied freedom in its terms, operation or effect?
2. If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
The construction of Pt IIA
314 Before assessing the constitutional validity of a law, it is necessary to identify its proper construction: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 at [11]; Farm Transparency International Ltd v New South Wales [2022] HCA 23; 277 CLR 537 at [139].
315 The established construction of s 18C in all relevant respects has been identified above (at [219], [224]–[231], [235]–[240] and [259]–[274]). The same is true of 18D generally (at [292]–[299]), ie the "reasonably and in good faith" requirements, and specifically in relation to s 18D(c)(ii) (at [300]). That leaves ss 18D(a), (b) and (c)(i).
316 In relation to s 18D(a), the expression "artistic work" "does seem to be used broadly" but "seems to contemplate works in both the visual and performing arts" and "literary works" are not excluded: Bropho at [104]. Artistic works "cover an infinite variety of expressions of human creativity": Bropho at [106]. It is therefore a broad exemption.
317 In relation to s 18D(b), the exemption "requires that a genuine purpose 'in' the public interest be pursued, not simply a matter 'of' public interest"; "[a] matter of public interest is broadly defined as a matter of interest or concern to people at large" which "is a very broad field" so it is doubtful that the latter is what the provision has in mind: Eatock v Bolt at [433]. This exemption speaks to conduct "in the pursuit of a public benefit through the exercise of freedom of expression. … [A]n additional pursuit of public benefit, beyond freedom of expression, is contemplated by the provision. What the provision is concerned with is the public interest use to which the freedom of expression is exercised and not merely freedom of expression itself": Eatock v Bolt at [434]. The exemption is assessed objectively: Eatock v Bolt at [435].
Question 1: does Pt IIA effectively burden the implied freedom?
318 The question of whether a law imposes an "effective burden" on political communication is a critical first step in the analysis. The answer to that question does not depend upon a "quantitative" analysis about whether the law imposes a "big" or a "little" burden: Monis v The Queen [2013] HCA 4; 249 CLR 92 at [172]–[173]. It is a "qualitative" question to be answered by reference to the legal and practical operation of the law: Tajjour v New South Wales [2014] HCA 35; 254 CLR 508 at [106], [145] and [156]; Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [84], [118], [180], [237], [316], [326], [484]–[488].
319 The question is to be answered "yes" if the "effect of the law is to prohibit, or put some limitation on, the making or the content of political communications": Monis at [108]. In the event that there is a meaningful restriction on political communication, "the supervisory role of the courts is engaged to consider the justification for that restriction": McCloy at [127]; Farm Transparency at [26].
320 The extent to which there is a burden must be examined in order to determine whether the requisite threshold has been reached as the burden step in the analysis is "more than a box to be ticked": McCloy at [127]; Brown at [237]; LibertyWorks at [209]–[210]. It is a threshold, but the threshold is not high – "a law which prohibits or limits political communication to any extent will generally be found to impose an effective burden": Banerji at [29]. It is only that prohibition or limitation on political communication which is so slight as to have no real effect that would fail to meet the threshold: Brown at [237].
321 The question of whether a law imposes an effective burden on the freedom requires consideration of whether and how the impugned law affects political communication generally, rather than how the law applies to political communication in which an applicant wishes to engage: Unions NSW v New South Wales (Unions No 1) [2013] HCA 58; 252 CLR 530 at [35]; Banerji at [20]; LibertyWorks at [77]. That focus reflects the nature of the freedom. As McHugh J explained in Levy v Victoria [1997] HCA 31; 189 CLR 579 at 622, "our Constitution does not create rights of communication", but rather "gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters." Political communication is defined broadly: Lange at 571.
322 Senator Hanson submits, and the Attorney-General accepts, that Pt IIA of the RDA effectively burdens the implied freedom of political communication, whereas Senator Faruqi submits that it does not. Senator Hanson submits that the burden is substantial, whereas the Attorney-General submits that is slight. Given those competing positions, and the constitutional analysis that must take place, it is necessary to consider not only whether there is an effective burden, but also, if there is, its extent. The extent of the burden can be analysed with reference to both its breadth and its depth: LibertyWorks at [210].
323 Justice Hely in Jones v Scully held, in a single sentence, that Pt IIA effectively burdens the implied freedom (at [239]):
Although the RDA does not contain any rule that prohibits an elector from communicating with other electors concerning government or political matters relating to the Commonwealth, it nevertheless could effectively burden the freedom of communication about those matters insofar as it requires electors to submit to penalties for the publication of communications or leads to the grant of injunctions against such publications (cf Lange at 568).
324 Senator Faruqi accepts that for me to depart from that conclusion, I must be satisfied that it is plainly wrong. An argument is mounted on her behalf that rather than burden the implied freedom, Pt IIA is supportive of and enhances the freedom of political communication. The argument is that the relevant question is not whether Pt IIA restricts political communication per se, but whether it impedes the "freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors": Lange at 560; the implied freedom "extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution": Banerji at [20]. It is said that Pt IIA does not do that because racially offensive public acts, committed unreasonably or in bad faith, do not facilitate the making of an informed electoral choice.
325 As argued by Patrick Keane in "Sticks and stones may break my bones, but names will never hurt me" (2011) 2(2) Northern Territory Law Journal 77 at 86, a "focus upon the public interest in the free interplay of ideas needs to ensure that the public forum and airways are equally available to all." He says that conduct that is apt to intimidate serves to exclude people from public debate. "So conceived, the constitutional protection of free speech is not so much a matter of holding the ring between competing views, as a means of facilitating equal participation in the democracy."
326 A similar view was expressed by Kirby J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [256] as part of the majority in holding that a provision prohibiting the use of any threatening, abusive or insulting words to any person in or near a public place was not invalid as being in conflict with the implied freedom. His Honour explained that such a prohibition of extreme conduct, or "fighting words", "protects the social environment in which debate and civil discourse, however vigorous, emotional and insulting, can take place." However, that part of his Honour's reasoning – as with that of McHugh J at [97] where a similar point was made –dealt with the proportionality analysis applicable to question 3 and was not part of the reasoning with regard to effective burden.
327 That notwithstanding, the reasoning of Kirby J was referenced by Basten JA in Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 at [86] on the question of effective burden where his Honour explained that "[c]onduct by which one faction monopolises a debate or, by rowdy behaviour, prevents the other faction being heard, burdens political discourse as effectively as a statutory prohibition on speaking. A law which prohibits such conduct may constrain the behaviour of the first faction, but not effectively burden political discourse; on the contrary, it may promote such discourse." His Honour concluded that the provision in question (s 49ZT of the Anti-Discrimination Act 1977 (NSW)) did not impose an effective burden on the implied freedom. However, Bathurst CJ (at [42]–[45]) and Allsop P (at [68]) held that it did.
328 The point is that a law can both burden the implied freedom and ultimately serve to enhance the freedom of political communication; such enhancement being relevant to the question whether the legislation is reasonably appropriate and adapted to serve a legitimate end. So the points that are made on behalf of Senator Faruqi about how making racist speech unlawful can serve to promote free political communication are well made, but they are misplaced – their proper place is in the justification inquiry to come and not in the threshold inquiry in relation to effective burden. Senator Faruqi also refers to Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284; 15 VR 207 at [34] per Nettle JA (and see also [113] per Nettle JA and [208] per Neave JA), but that does not alter the analysis.
329 As identified by the Attorney-General, the class of communications rendered unlawful by s 18C and not exempted by s 18D is very small because such communications must satisfy all of the following criteria:
- (1) the communication must have been in public;
- (2) the communication must have been reasonably likely to offend, insult, humiliate or intimidate another person or group (to the requisite degree of seriousness);
- (3) the communication must have been made because of the race, colour or national or ethnic origin of that person or group;
- (4) the communication must not have been made reasonably and in good faith in the performance, exhibition or distribution of an artistic work;
- (5) the communication must not have been made reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest;
- (6) the communication must not have been made reasonably and in good faith in making or publishing a fair and accurate report of any event or matter of public interest;
- (7) the communication must not have been made reasonably and in good faith in making or publishing a fair comment on any event or matter of public interest where the comment is an expression of a genuine belief held by the respondent.
330 It is hard to conceive of examples of communication that would be unlawful under those provisions that would concern political or government matters and be capable of bearing on the making of an informed electoral choice by Australian voters. However, the present case is one. A Senator replied to another Senator on a public platform about matters of contemporary government. The reply was in attacking terms and said nothing about the political points to which it was a reply, but it was a political communication nonetheless in its denigration of a political opponent.
331 As submitted on behalf of Senator Hanson, political discourse and debate in Australia can be particularly robust; it can cause offense, even deliberately so; it can be passionate, exaggerated and angry; it can mix fact and comment and commonly appeals to fear and prejudice – and restrictions on those forms of political communication effectively burden the implied freedom. See Levy v Victoria at 623; Roberts v Bass [2002] HCA 57; 212 CLR 1 at [171]; Coleman v Power at [81], [105], [197] and [239]; Monis at [85] and [220].
332 I am therefore not satisfied that Hely J was plainly wrong in concluding that Pt IIA effectively burdens the implied freedom. To the contrary, I am satisfied that it does. However, the burden is slight. That is because there is so little political communication that is ultimately proscribed by Pt IIA; in making certain conduct unlawful, Pt IIA imposes a burden at the outer edges of political communication; not at the content of ideas but in the way in which they might be expressed.
333 Senator Hanson seeks to counter that by submitting that the burden is substantial because of the range of matters potentially impacted that may be the subject of discussion, debate and contest "relevant to the development of public opinion [and] which an intelligent citizen should think about": Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 at 124 per Mason CJ, Toohey and Gaudron JJ quoting Barendt E, Freedom of Speech (Oxford University Press, 1985) at 152. Those matters are said to include: immigration; multiculturalism; foreign policy including appropriate responses to overseas events such as wars or conflicts; domestic protests about foreign events; terrorism; Aboriginal and Torres Strait Islander people; domestic violence and its prevalence and nature in different social settings and cultural groups; religious conflict where aligned or associated with particular ethnic groups or national origins; legal or social treatment of people with diverse sexual orientation where ethnicity or cultural issues may affect such matters; welfare policy including with regard to immigrants; housing policy including with regard to immigrants; defence; white privilege and its role in the selection of political candidates; crime including by particular ethnic groups; and people trafficking and border control.
334 Common to the long list of matters said to be relevant to political communication that are potentially restricted by Pt IIA is an assumption that race, colour or national or ethnic origin is particularly pertinent or implicated. The validity of that assumption may be questioned. Be that as it may, absent from the analysis advanced on behalf of Senator Hanson is the role played by the s 18D exemptions – other than to submit with reference to the law of defamation that the exemptions are insufficient. That is to say, even if one accepts that free and open political debate on any one or more of those matters, including the articulation of extreme or marginal and unpopular views, may cause the requisite level of offence etc and be because of the race etc of a person or group of people, that articulation will not be proscribed if it was done reasonably and in good faith for a genuine purpose in the public interest (s 18D(b)) or as a fair comment on a matter of public interest if it is an expression of a genuine belief (s 18D(c)(ii)). Even the view that there should be a complete ban on Muslim immigration (assuming in this context in Senator Hanson's favour that Muslims are a protected group), or a ban on immigration from a particular country or region, hateful and hurtful as it could be experienced, may be articulated and advocated within the precepts of s 18D.
335 It is submitted on behalf of Senator Hanson that one of the ways in which Pt IIA burdens the implied freedom is that because it is a civil provision, unmeritorious cases might be brought that would not get past prosecutorial discretion in the case of a criminal case, and that the fear of unmeritorious cases might cause people to be more cautious in their political speech than what Pt IIA on its terms requires. Senator Hanson cites Forrester J, Finlay L and Zimmermann A, No offence intended: Why 18C is wrong (Connor Court, 2016) at 176, where such an argument is mentioned, in support. I am not persuaded by that argument. The proscription in the legislation needs to be assessed on its terms. Unmeritorious cases will fail. There is no evidence to support the suggestion that Pt IIA has the effect of curtailing communications that are not proscribed simply because of the fear of an unmeritorious complaint–the relatively few cases over the years, most of which have been successful, suggest the opposite. If the argument was good, it would be good even for a far more narrowly tailored proscription which would otherwise easily pass constitutional muster.
336 Also, before complaints can get to a court they have to go through the processes set out in Pt IIB Div 1 of the AHRC Act in which at least some unmeritorious cases are likely to be weeded out. The effect of ss 46PH and 46PO(3A) is that only certain claims, being those identified by the President of the Commission as involving an issue of public importance that should be considered by a court (s 46PH(1)(h)) or in respect of which there is no reasonable prospect of settlement by conciliation (s 46PH(1B)(b)), that will not require the leave of the court in order for the complaint to be pursued in court.
337 Lastly, in the case of criminal provisions, if a prosecutor declines to prosecute, then a private prosecution can be pursued, so the comparison with criminal provisions in inapt.
338 In short, Pt IIA effectively burdens political speech within the confines of the appropriate analysis, but only slightly.
Question 2: is the purpose of Pt IIA of the RDA legitimate?
339 The purpose of the impugned provisions is the "mischief" to which they are directed: Brown at [101], [208]–[209], [321]. Identified at the appropriate level of generality, "the purpose is that which the law is designed to achieve in fact": NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [40]. It is discerned through ordinary processes of statutory construction, having regard to text, context and, if relevant, historical background.
340 That purpose must be compatible with the system of representative and responsible government, in the sense that it "does not impede the functioning of that system and all that it entails": McCloy at [31]; Farm Transparency at [29].
341 Justice Hely in Jones v Scully (at [239]) held that "a 'legitimate end' of the RDA includes the fulfilment of Australia's obligations under CERD'. Stated more broadly, the legitimate end sought to be obtained by the RDA is the elimination of racial discrimination."
342 The Attorney-General submits that the purpose of Pt IIA is to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination. That purpose is readily discernible from the history of the inclusion of Pt IIA in the RDA canvassed at the outset (at [15]–[20] above), and it is supported by discussions of that history and legislative purpose in Toben v Jones at [19] and [136], Bropho at [70] and Kaplan at [105].
343 The purpose is identified slightly differently on behalf of Senator Faruqi, namely to vindicate the legitimate claims of persons bearing the attributes protected by Pt IIA to live with dignity, free from unwanted or offensive communication and to promote equality of opportunity of such persons to participate in public life. It is submitted on behalf of Senator Hanson that that purpose is stated too broadly, Senator Hanson's "primary position" on the purpose being that it is "the prevention of public conduct causing offence based on a person's race, colour or national or ethnic origin, or more shortly, the prevention of racially offensive conduct."
344 The purpose as stated on behalf of Senator Faruqi identifies it at too high a level of generality, and is therefore too broadly stated. The purpose as stated on behalf of Senator Hanson is identified at too low a level of generality and makes the error of limiting the purpose to the meaning of the words of the relevant provisions: Unions NSW v New South Wales (Unions No 2) [2019] HCA 1; 264 CLR 595 at [171]; Brown at [208].
345 I am persuaded that the Attorney-General's identified statutory purpose is at the appropriate level of generality. It is also consistent with the purpose as identified in Jones v Scully. I adopt it.
346 I do not understand there to be any serious dispute that that purpose is compatible with the system of representative and responsible government in the sense that it does not impede the functioning of that system and all that it entails. It is obviously compatible. That is what was held to be the case in Jones v Scully.
Question 3: is Pt IIA reasonably appropriate and adapted to advance that legitimate object?
347 On this question, the reasoning in Jones v Scully was the following (at [240]):
[B]earing in mind the exemptions available under s 18D, Pt IIA of the RDA is reasonably appropriate and adapted to serve the legitimate end of eliminating racial discrimination. Section 18D, by its terms, does not render unlawful anything that is said or done "reasonably and in good faith" providing that it falls within the criteria set out in pars (a)–(c). I consider that those exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the Constitution. I accordingly reject the respondent's argument that the RDA should be declared unconstitutional "for the sake of freedom to communicate political matters."
348 As identified above, under the modern case law there are in effect three sub-inquiries that combine as an analytical tool for the assessment of whether a law is reasonable appropriate and adapted to serving a legitimate end: Brown at [280] per Nettle J, Gageler and Gordon JJ agreeing.
Suitability
349 The suitability inquiry looks at whether there is a "rational connection between the provision in question and the statute's legitimate purpose, such that the statute's purpose can be furthered." "[I]t does not involve a value judgment about whether the legislature could have approached the matter in a different way", and a law is unsuitable only if it "cannot contribute to the realisation of the statute's legitimate purpose." See McCloy at [80].
350 There can be little doubt that there is a rational connection between Pt IIA and the purpose identified above (at [342]). Senator Hanson barely argues against such a conclusion.
Necessity
351 The necessity inquiry "looks to whether there is an alternative measure available which is equally practicable when regard is had to the purpose pursued, and which is less restrictive of the freedom than the impugned provision": Farm Transparency at [46]. This does not deny that it is the role of the legislature to select the means by which a legitimate statutory purpose may be achieved: McCloy at [82]; Unions No 2 at [47]. It is "not a prescription to engage in an assessment of the relative merits of competing legislative models": Brown at [282], [286]. There is a "domain of selections" that may further the legislative purpose while imposing a permissible burden on the implied freedom: McCloy at [82]. All of those legislative selections will satisfy the test of necessity.
352 Consequently, a law is not ordinarily to be regarded as unnecessary unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom: Banerji at [35].
353 An alternative will not be "equally practicable" unless it is "as capable of fulfilling [the] purpose as the means employed by the impugned provision, 'quantitatively, qualitatively, and probability-wise'": Tajjour at [114]; Farm Transparency at [46]. Where the burden imposed by the impugned provisions is small, logically it may be difficult or impossible for a party to establish that an alternative imposes a significantly lesser burden: Farm Transparency at [254]. Equally, as is submitted on behalf of Senator Hanson, if the burden is great it will be easier to establish that there is a practicable less burdensome alternative.
354 Senator Hanson submits that Pt IIA could achieve its purpose by simply excluding political communication from the ambit of the provision, either in unqualified terms, or subject to some qualification. It is said that such an exclusion could be in addition to the exemptions offered by's 18D.
355 I am not persuaded by that submission. The slight burden on political speech imposed by Pt IIA means that the alternative would not impose a "significantly" lesser burden: Clubb at [277]; Farm Transparency at [254]. Moreover, the proposed alternative would not achieve the purposes of Pt IIA to the same extent and would not be as practicable: Tajjour at [90]–[91]; Clubb at [288]. That is because within the purpose of protecting members of the public from racial hatred and discrimination is to protect them from that conduct in the political space, including from the type of conduct that I have found to be unlawful in this case. That is because that type of conduct can have the effect of silencing people and limiting their ability to participate freely in political communication.
356 The expert evidence in this case establishes the pernicious and deleterious effects of racist discrimination, both at the individual and societal level. Professor Paradies explained that the experience of racism can cause exclusion from public life (see [132] above), marginalisation, restriction and exclusion (see [134] above) and inhibition and self-censorship (see [137(3)] above). He also said that it can lead to poor self-worth, self-efficacy and self-esteem. Professor Reynolds explained that the effects of racism can include lower self-esteem and self-efficacy and that it can result in marginalisation and disengagement from the political process (see [144] and [146] above). All of those experiences are liable to have a silencing effect on the ability of targeted people (individuals and groups) to participate in public discourse and to articulate their own political views and information. In other words, the freedom to do and say the things that Pt IIA makes unlawful would likely itself have a restrictive effect on political communication rather than enhance the freedom of political communication.
357 Indeed, Senator Faruqi's own experience of feeling silenced and my findings that Senator Hanson's tweet is reasonably likely to have an intimidating effect demonstrate that the kind of conduct that it proscribed by Pt IIA can burden or restrict the ability of people to engage in political communication.
358 In addition to the authorities referred to at [325]–[327] above, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [261], Callinan J recognised the possible need for regulation of speech in order to promote free speech. The idea that "hate speech" laws such as Pt IIA can serve to promote freedom of speech rather than to restrict it by better ensuring that the people such laws protect can lead better, more fulfilled and confident lives and thereby protect them from being silenced, marginalised and disenfranchised is argued by Jeremy Waldron in The Harm in Hate Speech (Harvard University Press, 2012) at 33, 47, 130 and 156.
359 The point is that the alternative measure proposed by Senator Hanson, which it was incumbent on her to propose (Clubb at [277]), would undermine the purpose of Pt IIA. Indeed, it is inconsistent with that purpose.
360 The "necessity" inquiry is therefore satisfied.
Adequacy in balance
361 A law is to be "regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom": Banerji at [38]; LibertyWorks at [85], [201]; Farm Transparency at [55]. It has been observed that the hurdle imposed by this step in the structured proportionality analysis is very high: LibertyWorks at [292]. In this analysis, "consideration is given to the extent of the burden and the importance of the statutory purpose": Farm Transparency at [36].
362 The Attorney-General identifies four features underpinning the importance of Pt IIA's proscription of harmful racist conduct, all of which I accept.
363 First, racial vilification and discrimination has been and remains a real problem in Australia. In a sense, that is demonstrated by the tendency evidence adduced by Senator Faruqi and by the lived experiences of the autobiographical witnesses. But it is more appropriately demonstrated by the "constitutional fact" material tendered by the Attorney-General.
364 In Discussion Paper No 3: Proposed Amendments to the Racial Discrimination Act Concerning Racial Defamation (September 1983), the then-Human Rights Commission (HRC) noted (at 2) that, in seven years, the Commissioner for Community Relations had received about 1700 complaints (or 25% of the total number) involving racist propaganda and racial defamation. The HRC said (at 2) "[t]he sense of hurt and outrage conveyed by the complaints, and their volume, point to a social malaise that needs serious attention. Words do wound." The history of complaints to the Commissioner for Community Relations and the HRC was further described by the HRC in Proposal for Amendments to the Racial Discrimination Act to Cover Incitement to Racial Hatred and Racial Defamation: Report No 7 (November 1983) at [6]–[23].
365 In December 1988, the National Inquiry into Racist Violence was announced, "motivated by a widespread community perception that racist attacks, both verbal and physical, were on the increase": Racist Violence at 6. The Inquiry's definition of racist violence included not only physical attacks but also "verbal and non-verbal intimidation, harassment and incitement to racial hatred": Racist Violence at 15. The Inquiry addressed the history of racist violence in Australia (at 37–54) and the experience of racist violence for Indigenous Australians, those of different ethnicities and those opposed to racism (at 69–224). It found (at 18) that "many cases of racist violence go unreported to authorities and agents who might have helped victims."
366 The Royal Commission into Aboriginal Deaths in Custody published its National Report in 1991. Among other things, it recommended legislation rendering vilification unlawful, in part because of the educative force such a law would have: Johnston E, Royal Commission into Aboriginal Deaths in Custody, National Report: Volume 4 (1991) at [28.3.46]–[28.3.47].
367 Freedom from Discrimination – Report on the 40th Anniversary of the Racial Discrimination Act: National Consultation Report (2015) at 36–37 (40th Anniversary Report) documented lived experiences of racial vilification.
368 Quite apart from that material, even if racial vilification and discrimination had entirely abated, that would not mean that Pt IIA was no longer adequate in its balance. Even then, it would serve an important function in maintaining that state of affairs.
369 Secondly, as canvassed above and established by the expert evidence, racial vilification and discrimination have harmful effects at both individual and societal levels. It is also established by the material tendered by the Attorney-General.
370 In Racist Violence (at 16), the National Inquiry into Racist Violence noted that "[m]any groups reported that continual exposure to abusive and insulting language had an adverse psychological effect on some victims, making them feel inferior and causing depression and insecurity." It noted that "the emotional effects which are not so observable are, nevertheless, crippling" (at 259). It said that "[r]acist violence and harassment reduces self-esteem, promotes insecurity and leads to victims being ashamed of their identity" (at 261). It found that "fear of racist violence and harassment can have an impact on such fundamental choices as where people live or work, whether they socialise outside the home and how they engage in their religious observances" (at 261). It found that "[e]vidence put to the Inquiry indicates that the real threat to social cohesion is the presence of racist violence, intimidation and harassment towards people of non-English speaking background" (at 267).
371 The 40th Anniversary Report also documents the damaging social and civic effects of racial vilification (at 38). It identifies that harm to include harm inflicted on a person's well-being and sense of freedom and the undermining of their sense of belonging to the community. People on the receiving end of racial abuse can feel alienated from society, feeding a sense of disillusionment and disentitlement. The report also recognised that its findings were consistent with the research literature, a conclusion borne out by the expert evidence in this case.
372 Thirdly, the importance of the object pursued by ss 18C and 18D is reinforced by the fact that other jurisdictions have sought to regulate the incitement of racial hatred. Several of the reports in evidence document that. Although the relevant provisions in the various jurisdictions differ, they are basically aimed at the same mischief. The jurisdictions include the United Kingdom (1965 and 1976), Canada (1970), New Zealand (1971), France (1972), Belgium (1981), Austria, Denmark, Norway, Sweden and the Netherlands. To those can be added South Africa (2000).
373 Fourthly, as already canvassed, the object pursued by Pt IIA arises from Australia's ratification of CERD. That demonstrates that the object is regarded as important on the international plane. Many of the countries referred to in the previous paragraph adopted their legislation in response to their obligations under CERD.
374 The Attorney-General makes a number of additional points about the nature and extent of the burden on the implied freedom that I also accept.
375 First, as was explained in the second reading speech for the Racial Hatred Bill 1994 (at 3337), "[t]he bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people." As explained, Pt IIA is directed to the effects of conduct. See Kaplan at [505].
376 Secondly, the direct purpose of ss 18C and 18D is not to restrict political communication but to regulate acts that have certain profound and serious effects and that are engaged in for a particular reason (ie, because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group). That category of acts is not necessarily political in nature. Indeed, in many cases, any effect on communication on governmental or political matters will be properly characterised as adventitious, even if it might not in every conceivable circumstance be trivial.
377 Thirdly, the terms of Pt IIA are not so uncertain or vague as to render them inadequate in their balance, contrary to the submissions on behalf of Senator Hanson. The vagueness and uncertainty to which the joint judgment of Kiefel CJ, Bell and Keane JJ in Brown at [78]–[79] pointed must be understood in the specific statutory context dealt with there: see [78]–[86]. Their Honours drew attention to the fact that, under the impugned legislation, the police had a power to give protestors a direction that would, in practice, bring a protest to an end, and that such directions may be given based on a mistaken (but reasonable) belief about the parameters of a business premises or business access area due to the vagueness of those terms which would serve to stifle political expression further beyond the strict operation of the law. This reasoning has no application to Pt IIA. As was made clear, vagueness or uncertainty is not otherwise some sort of free-floating criterion of validity in Australia, unlike the position in the United States: at [147]–[151].
Conclusion
378 In the result, I am not satisfied that Hely J's conclusion in Jones v Scully is plainly wrong. I agree with his Honour's conclusion that Pt IIA does not infringe the implied freedom of political communication and is not unconstitutional.
REMEDY
379 The parties are agreed that the question of relief in the event of a finding of unlawful conduct under s 18C is governed by s 46PO(4) of the AHRC Act. That provision is in the following terms:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
- (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
- (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
- (c) an order requiring a respondent to employ or re-employ an applicant;
- (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
- (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
- (f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section – see section 43 of the Federal Court of Australia Act 1976.
Note 2: [omitted]
380 That power to fashion an appropriate remedy, or appropriate remedies, is obviously broad. The power is said to include the various matters set out in paras (a) to (f), from which it is apparent that it is not restricted to those matters: McGlade v Lightfoot [2002] FCA 1457; 124 FCR 106 at [80] per Carr J. Also, it provides for orders contemplated by those paragraphs "or any order to similar effect", indicating that the paragraphs themselves are not to be restrictively interpreted or applied.
381 In Jones v Toben (at [111]), Branson J, without specific reference to s 46PO(4), adopted an approach to the question of remedy that had been articulated by the Canadian Human Rights Tribunal. That included the following statement:
Any remedy awarded by this, or any tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practices is only one of the outcomes flowing from an order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any tribunal decision.
382 It is obviously appropriate and justified that a declaration be made to the effect that the particular conduct in question is unlawful as being in contravention of s 18C and not exempted as a fair comment under s 18D. I do not understand there to be particular dispute about that. To make such a declaration is clearly within what is contemplated by s 46PO(4)(a). In framing the declaration, which closely tracks that which is proposed by Senator Faruqi, I have taken account of the relevant considerations as identified in Commonwealth v Evans [2004] FCA 654; 81 ALD 402 at [57]–[61] per Branson J and Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114 at [3]–[6] per Bromberg J. The declaration will substantially vindicate Senator Faruqi's hurt. That deals with prayer 1 of Senator Faruqi's amended relief set out at the outset (see [14] above).
383 Prayer 2 seeks to restrain Senator Hanson from using the phrases "piss off back to Pakistan", "go back to where you came from" or any variation thereof in public. I do not consider that relief as justified or appropriate. Whether or not the use of such phrases is unlawful is context specific. To order an injunction in those terms would prevent Senator Hanson from saying in public that she was sanctioned for having tweeted "piss off back to Pakistan." It would even stop her from apologising for having tweeted in those terms. It is not of the nature of the injunctions in Jones v Toben (at [113(b)]), Jones v Scully (at [247(2)]) and Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475 (at [17(2)]) that restrained the respondents from publishing or republishing specific identified or identifiable material. I reject that prayer.
384 Prayer 3 would require Senator Hanson to "take down" or delete her objectionable tweet. That is an appropriate order, on the assumption that the tweet is still up and has not already been deleted. Of course, if it has been deleted, then no harm is done in requiring Senator Hanson to delete it. Since I found that the tweet is unlawful, there is no reason why Senator Hanson should not be required to delete it. Such an order requiring unlawful conduct not to be continued is expressly within what is contemplated by s 46PO(4)(a). It is similar in effect to the injunction in Jones v Toben (at [113(a)]) that the respondent remove identified material from a website. I will require that it be done within seven days of the date of my orders.
385 Prayer 4 would require Senator Hanson to "pin" a tweet to her Twitter account recording the declaration of unlawful conduct in prayer 1, and to maintain that pinned tweet for a period of three months. I am satisfied that the power given by s 46PO(4) is a broad power, and that the power to make an order "requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant" in para (b) is broad enough to include an order of the nature of that sought by prayer 4. It is in any event within the plenary power as expressed in the chapeau. However, I am not satisfied that that is an appropriate order to make in this case. I consider it highly unlikely that many members of the relevant groups would follow Senator Hanson's Twitter account, and they would therefore be unlikely to see the pinned tweet – it would be more in the nature of punishment for Senator Hanson. That being so, the order that is sought would not offer any redress to the members of the relevant groups. I consider that it would also not offer much by way of redress to Senator Faruqi since she would have had the redress of being successful in this case and having the declaration of unlawful conduct made in her favour.
386 Prayer 5 would require Senator Hanson to pay a donation in the amount of $150,000 to the Sweatshop Literacy Movement in Western Sydney. The exact basis for such an order was not identified, save that it is submitted on behalf of Senator Faruqi that it is within the power of s 46PO(4). A similar order was sought in McGlade v Lightfoot. Justice Carr held (at [80]) that that type of relief would not be within s 46PO(4)(b) because the order sought was not for the purpose referred to in that paragraph, ie to redress any loss or damage suffered by an applicant. However, his Honour noted that the list of specified orders is not exhaustive and proceeded, so far as one can tell, on the assumption that such an order is within the plenary power. In the circumstances of the case, his Honour held (at [93]) that it would not be fit to make such an order. That was principally on the basis that the justification for the order was that the donation in question would be in the nature of compensation for the group affected but the effect on them had not been established.
387 In the present matter, it is made express on behalf of Senator Faruqi that the donation order is not sought as a substitute for damages – Senator Faruqi expressly disavows any claim for damages payable to her despite the harm evidently suffered by her. It is submitted on her behalf that a donation to an appropriate charity is an available remedy in the context of the harm that is done by the unlawful conduct in question and that it is a remedy for a public purpose (T343:40-T344:3).
388 The principal difficulty with the donation remedy sought in this case is that there is no evidence about the intended beneficiary. The Court is in no position to know what work the beneficiary does or what services it offers, or how well it manages its finances or whether it is even in need of further funding. Its outreach, impact and efficacy are unknown, as is whether the nature of its work is related to addressing the kind of harm caused by Senator Hanson's tweet. Moreover, it would appear that Senator Hanson was given very little notice of the identity of the intended beneficiary so she has not been able to investigate or make inquiries about the appropriateness of it as a donee. In the circumstances, I am not satisfied that the donation order that is sought should be made.
389 Prayer 6 would require Senator Hanson to undertake anti-racism training at her own expense. The principal difficulty with that order is that what training she should undertake, by whom it is to be provided and over what period of time, or how it is to be supervised, is not specified. There is no evidence about those matters. Also, given the matters already canvassed in these reasons, in particular the tendency evidence before the Court, it is not at all clear that Senator Hanson would benefit from such training. Futility is a relevant factor to be taken into account in exercising a discretion to grant relief: Jones v Toben at [109]. I am not satisfied that such an order should be made.
390 Finally, there is the question of costs. There is no apparent reason why Senator Hanson should not pay Senator Faruqi's costs of the proceeding. Such an order, which I expect will amount to a fairly substantial sum of money, taken together with the declaration and mandatory injunction to delete the tweet in question, will amount to proper and appropriate relief against the unlawful conduct in question. A similar approach was taken in McGlade v Lightfoot (at [92]).
391 In case there is some matter of which I am not presently aware that may have a bearing on the costs, I will provide for any party to apply for a variation of the costs order within a specified time.
I certify that the preceding three hundred and ninety-one (391) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
Associate:
Dated: 1 November 2024
This work is a decision of an Australian court and is copyrighted in Australia for 50 years after publication pursuant to section 180 of the Copyright Act 1968 (Cth).
However, as an edict of a government, it is in the public domain in the U.S.
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