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
