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.
