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;
