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.
