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
