FEDERAL COURT OF AUSTRALIA

Faruqi v Hanson (evidence rulings) [2024] FCA 225

ORDERS

THE COURT ORDERS THAT:

1.    The objections to the admissibility of the nine autobiographical affidavits are dismissed.

2.    Save that:

(a)    the references in paragraphs 23 and 25 of the report to the “It’s okay to be white” motion introduced by Senator Hanson in the Senate in 2017 are not admissible, and

(b)    objections based on the witness expressing an opinion about Senator Hanson’s state of mind are yet to be specifically identified and ruled on,

the objections to the admissibility of the amended expert report of Associate Professor Wingard are dismissed.

3.    Save for paragraphs 41-46 and 33-35 of their respective reports which are inadmissible, the objections to the admissibility of the expert reports of Professors Reynolds and Paradies are dismissed.

4.    Save for:

(a)    the documents referred to at items 1, 2, 9, 13, 17, 19, 20 and 61 of the schedule thereto, which are inadmissible; and

(b)    any objections in reliance on parliamentary privilege which can be raised and ruled on in due course,

the objections to the admissibility of the documents referred to in the applicant’s amended notice of intention to adduce tendency evidence are dismissed.

5.    The costs of the interlocutory application be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    In response to the death of Queen Elizabeth II in September 2022, Senator Mehreen Faruqi published a message (known as a tweet) on the social media platform then known as Twitter as follows:

Condolences to those who knew the Queen.

I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples.

We are reminded of the urgency of Treaty with First Nations, justice & reparations for British colonies & becoming a republic.

2    In response to that tweet, Senator Pauline Hanson published a tweet as follows (as written):

Your attitude appalls and disgusts me. When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament. It’s clear you’re not happy, so pack your bags and piss off back to Pakistan. – PH

3    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.

4    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 enabling Senator Faruqi to pursue her claim in this Court.

5    Senator Faruqi claims that by Senator Hanson’s tweet, Senator Hanson engaged in unlawful offensive behaviour because of race, colour or national or ethnic origin under Pt IIA of the Racial Discrimination Act 1975 (Cth) (RDA).

6    More specifically, the claim alleges that the publication by Senator Hanson of her tweet was unlawful under s 18C of the RDA which relevantly provides as follows:

(1)     It is unlawful for a person to do an act, otherwise than in private, if:

(a)     the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)     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.

7    I shall refer to the elements in each of paragraphs (a) and (b) of s 18C(1) as “paragraph (a)” and “paragraph (b)” respectively.

8    In response, aside from denying that the elements in paragraphs (a) and (b) are made out, Senator Hanson asserts two positive defences. First, she says that publication of the tweet was done reasonably and in good faith in making a fair comment on an event or matter of public interest that was an expression of a genuine belief held by her within the meaning of s 18D of the RDA. Secondly, she asserts that each of ss 18C and 18D infringes the implied freedom of political communication in the Constitution and is therefore invalid.

9    The constitutional issue raises whether, first, ss 18C and 18D burden the implied freedom and, if so, to what degree. Secondly, it raises whether those sections serve a legitimate purpose, ie are they compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? Thirdly, it raises whether the sections are proportionate to the pursuit of that purpose.

10    The Attorney-General of the Commonwealth has intervened to defend the constitutionality of the impugned sections.

11    The matter is listed for hearing for five days commencing on 29 April 2024. In the meanwhile, questions have arisen as to the admissibility of certain evidence proposed to be adduced by Senator Faruqi. Those questions are presently before me for advance rulings under s 192A(a) of the Evidence Act 1995 (Cth).

12    There are four categories of such evidence. Before identifying them, some preliminary observations are necessary.

13    The impugned evidence may be relevant to proof of the alleged contravention of s 18C and the s 18D defence, or it may be relevant to the constitutional questions. Facts relevant to the former may be referred to as adjudicative facts and those relevant to the latter may be referred to as constitutional facts. Adjudicative facts are “ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law”: Breen v Sneddon [1961] HCA 67; 106 CLR 406 at 411 per Dixon CJ. Constitutional facts, on the other hand are facts upon which the constitutional validity of legislation depends: Breen at 411-412.

14    Adjudicative facts are proved according to the ordinary rules of evidence which, in this case, are principally to be found in the provisions of the Evidence Act.

15    Constitutional facts, however, may be proved more flexibly. I accept, as Mr Tran, who appears for the Attorney-General, submits that there is a significant number of carefully considered High Court dicta to the effect that the rules of evidence do not apply to proof of constitutional facts: eg, Vanderstock v Victoria [2023] HCA 30 at [153] (Kiefel CJ, Gageler and Gleeson JJ), [407] (Gordon J); Unions NSW v New South Wales [2019] HCA 1; 264 CLR 595 at [94] (Gageler J); Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [621] (Heydon J); Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [351] (Gageler J); North Eastern Dairy Co Ltd v Dairy Industry Authority (NSW) [1975] HCA 45; 134 CLR 559 at 622 (Jacobs J); Commonwealth Freighters Pty Ltd v Sneddon [1959] HCA 11; 102 CLR 280 at 291-292 (Dixon CJ). There is however no majority to that effect, noting that four Justices agreed with this proposition in Vanderstock but one of them (Gordon J) was in dissent in the result. There is however Full Court authority to the same effect which I must naturally apply: Minister for Home Affairs v Lee [2021] FCAFC 89 at [51] (Logan, Kerr and Banks-Smith JJ).

16    A challenge based on parliamentary privilege is made in relation to each of the four categories of evidence. For that reason, it is convenient to identify relevant general principles in relation to parliamentary privilege before considering each category of evidence.

Parliamentary privilege: relevant principles

17    Section 16 of the Parliamentary Privileges Act 1987 (Cth), which is headed “Parliamentary privilege in court proceedings”, relevantly provides as follows:

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    …

(3)     In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

18    Article 9 of the Bill of Rights 1688 (1 Will & Mary, Sess 2 c 2) provides as follows:

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

19    Section 16 is not limited in its scope to the operation of Art 9. Thus s 16 is supplementary to Art 9. See Leyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341 at [360] per Abraham J and the authorities cited by her Honour.

20    It is to be noted that by s 10 of the Evidence Act, the Evidence Act does not affect the law relating to the privileges of Parliament.

21    Section 16(3) of the Parliamentary Privileges Act renders it unlawful for evidence to be tendered or received in a court or for questions to be asked, or statements, submissions or comments made, concerning “proceedings in Parliament” for the specified purposes. It necessarily follows that parliamentary privilege arises only where evidence concerning proceedings in Parliament is tendered for those purposes: Leyonhjelm at [44] per Rares J, [247] per Wigney J and [362] per Abraham J; Rann v Olsen [2000] SASC 83; 76 SASR 450 at [73] per Doyle CJ. Section 16(3) does not prohibit a party from adducing evidence to establish, as a matter of historical fact, that something was said in Parliament: Leyonhjelm at [47] per Rares J, [248] per Wigney J and [364] per Abraham J. (It is to be noted that although Rares J was in dissent as to the ultimate result in the appeal, all their Honours agreed on the result in relation to the appeal grounds based on parliamentary privilege.)

22    Statements made inside Parliament are not protected by the absolute privilege if they are repeated outside Parliament. That is not because the privilege is waived – it cannot be waived, see Commonwealth v Vance [2005] ACTCA 35; 158 ACTR 47 at [41] per Gray, Connolly and Tamberlin JJ – but because reliance can be placed on what was said outside Parliament as not falling within the protection, notwithstanding that a finding in relation to what was said outside Parliament, such as that it was untruthful, might as a matter of logic bear the same implication for what had been said in Parliament: Buchanan v Jennings (AG of New Zealand intervening) [2005] 1 AC 115 (PC) at [12]-[17]; Beitzel v Crabb [1992] 2 VR 121 at 127-128 per Hampel J; Laurance v Katter [2000] 1 Qd R 147 at 204-205 per Davies JA.

23    There is some controversy as to the breadth of s 16(3)(c). It has been said that if it were literally applied, it would prevent just about any reference to a parliamentary proceeding notwithstanding that there was no allegation of impropriety or inadequacy or inaccuracy. See, for example, Laurance v Katter at 200 per Pincus JA and 202-203 per Davies JA; Coleman v Sellars [2000] QCA 465; 181 ALR 120 at [12] per Pincus JA; and Office of Government Commerce v Information Commissioner (Attorney General Intervening) [2008] EWHC 774; [2010] QB 98 at [41].

24    The breadth of s 16(3)(c) arose for consideration by the Privy Council in an appeal from the Court of Appeal of New Zealand in Prebble v Television New Zealand Ltd [1995] 1 AC 321 (PC). The judgment of the Judicial Committee was given by Lord Browne-Wilkinson. His Lordship explained (at 333E) that the Parliamentary Privileges Act declares what had previously been regarded as the effect of Art 9 of the Bill of Rights 1689 and s 16(3) contains the true principle to be applied.

25    As an aside, it can be noted that the Bill of Rights of 1688 and that of 1689 is the same statute. The different dates are explained in the official website for United Kingdom legislation, legislation.gov.uk, as follows:

The Bill of Rights is assigned to the year 1688 on legislation.gov.uk (as it was previously in successive official editions of the revised statutes from which the online version is derived) although the Act received Royal Assent on 16th December 1689. This follows the practice adopted in The Statutes of the Realm, Vol. VI (1819), in the Chronological Table in that volume and all subsequent Chronological Tables of the Statutes, which attach all the Acts in 1 Will and Mar sess 2 to the year 1688. The first Parliament of William and Mary (the Convention Parliament) convened on 13th February 1689 (1688 in the old style calendar - until 1st Jan 1752 the calendar year began on March 25th). It appears that all the Acts of that Parliament (both sessions) were treated as being Acts of 1688 using the old method of reckoning, according to which, until 1793, all Acts passed in a session of Parliament with no specified commencement date were deemed to be passed in the year in which that session began (see Acts of Parliament (Commencement) Act 1793 (c 13)).

26    Lord Browne-Wilkinson explained as follows (at 337):

[P]arties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception ... However, their Lordships wish to make it clear that this principle does not exclude all references in court proceedings to what has taken place in the House. …

But their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.

(Emphasis added.)

27    In Hamilton v Al Fayed [2001] 1 AC 395 (HL) at 407, Lord Browne-Wilkinson said that the normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings.

28    On that approach, privilege under s 16(3)(c) is only enlivened if the purpose of adducing the relevant evidence is to in some way question the parliamentary proceedings, and not merely to rely on something said or done there by way of or for the purpose of “drawing, or inviting the drawing of, inferences or conclusions”. However, it must be borne in mind that the Privy Council in Prebble was called upon to apply Art 9 of the Bill of Rights, and interpreted s 16(3) narrowly to maintain consistency with Art 9. It was able to do that because s 16(3) was not applicable law in the case before it. An Australian court, however, has to grapple independently with the meaning of s 16(3) because, as mentioned, its scope is not limited to the scope of Art 9 of the Bill of Rights.

29    The Explanatory Memorandum (EM) to what became the Parliamentary Privileges Act explained the following in relation to s 16(3)(c):

(c) drawing inferences or conclusions to support a criminal or civil action

This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day.

30    In relation to all the paragraphs of s 16(3), the EM stated the following:

These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.

31    In Laurance v Katter, Davies JA analysed the EM and the second reading speech (at 203) and concluded that s 16(3)(c) is only enlivened if the evidence, submissions etc “would impeach or question the freedom of proceedings in Parliament” (at 204). Subsequent cases have taken a broader view of the application of s 16(3)(c).

32    In Rann v Olsen, Doyle CJ (with whom Mullighan J agreed) and Perry J expressly rejected Davies JA’s construction of s 16(3) (see [53], [110]-[114] per Doyle CJ and [255] per Perry J, cf [224] per Prior J). Their Honours took the view that Davies JA’s construction resulted in introducing, without warrant, an “unexpressed proviso”, namely that something apparently made unlawful by s 16(3) is not to be rendered unlawful unless, in the opinion of the court in which the matter arises, the apparently prohibited activity in fact impairs the freedom of speech in Parliament of the person whose statements are to be challenged. Both Doyle CJ and Perry J preferred a wider construction of s 16(3), not limited in scope to the operation of Art 9 of the Bill of Rights, although Perry J also endorsed what was said by the Privy Council in Prebble, ie that s 16(3) is an “emphatic re-affirmation of the immunity from scrutiny in courts” (at [254]). However, notwithstanding his Honour’s broad construction of s 16(3), Doyle CJ was prepared to accept that matters “concerning proceedings in parliament” could be “proved simply as matters of fact” without offending s 16(3) so long as the purpose for which the matter is raised is not proscribed by the provision (see [63]-[73]).

33    In R v Theophanous [2003] VSCA 78; 141 A Crim R 216 at [69] it was held (by Winneke ACJ, Vincent and Eames JJA) that it would not give proper effect to the purposes of the Parliamentary Privileges Act, and particularly s 16(3), to read it down in the manner suggested by Davies JA in Laurance v Katter. Their Honours agreed with the comments by Doyle CJ in Rann v Olsen (at [113]) and held (at [70]) that the purpose of the provisions of s 16(3) is to preserve the freedom of speech in the Parliament by ensuring that those who participate in debate in the Parliament can do so confident in the knowledge that what they are saying cannot be impeached at a later time in a court of law or in any other place than the Parliament itself.

34    I take away from the authorities that s 16(3) of the Parliamentary Privileges Act has a strong public policy purpose and, although its precise ambit is the subject of debate, whether and how it applies in a particular case must be carefully scrutinised.

Autobiographical affidavits

35    The first category of evidence consists of nine affidavits that are referred to as autobiographical affidavits. Each is by a person who responded to a public invitation published by Senator Faruqi to document how reading Senator Hanson’s tweet made them feel. Each deponent states their demographic characteristics by which they identify including, by way of example, “person of colour”, “person of migrant heritage”, “Muslim”, “culturally Jewish”, and so on.

36    Ms Chrysanthou SC, with whom Mr Smartt appears for Senator Hanson, characterises the substance of the affidavits as including two types of evidence, namely reaction evidence and anecdotal evidence. The reaction evidence is the evidence of the person concerned on how they responded to the tweet, or how it made them feel. More specifically, it deals with whether they were offended, insulted, humiliated or intimidated by the tweet. The anecdotal evidence is evidence by them of their lived experience of racism or other forms of discrimination or prejudice.

37    Senator Hanson challenges the affidavits on the following grounds:

(1)    Relevance: not relevant to a fact in issue; anecdotal; the question before the Court is objective; the reaction evidence is devoid of key context, being Senator Faruqi’s tweet.

(2)    Inadmissible opinion evidence: the evidence is opinion evidence that particular acts were motivated by racism.

(3)    Parliamentary privilege: admission of paragraph [27] of the affidavit of Ms Sri would contravene s 16(3) of the Parliamentary Privileges Act.

(4)    Section 135 objection: the probative value of the evidence is outweighed by its being prejudicial, misleading and a waste of time.

38    It is convenient to deal with each basis for objection in turn.

Relevance

39    Ms Chrysanthou SC submits that the reaction evidence is wholly irrelevant because the relevant inquiry under s 18C(1)(a) is objective with the result that the subjective response of any individual to the relevant conduct is inadmissible. She cites Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352, in particular at [12]-[13] where Kiefel J said that the test in relation to paragraph (a) is necessarily objective and that the perspective under consideration with regard to whether the conduct is reasonably likely to offend or humiliate a person is that of the hypothetical person in the applicant’s position or the group of which the applicant is one. Justice Kiefel cited Drummond J in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] in respect of the test being objective.

40    Justice French in Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [66], citing both Hagan and Creek, said in obiter that the word “reasonably” and the reference to “all the circumstances” in paragraph (a) import an objective test of the likelihood unaffected by the intention of the person doing the act. The other judges in that case, Lee J in dissent and Carr J in the majority, did not discuss the construction of paragraph (a) as it was not in issue.

41    There is no authority that demurs from the proposition that the inquiry in paragraph (a) is objective. That much can be accepted. However, Ms Taylor, with whom Ms Dhanji appears for Senator Faruqi, refers to a number of cases in which it has been held that although proof of actual offence on the part of a particular person or group is neither required nor determinative of the objective inquiry under paragraph (a), evidence of subjective reaction is relevant to whether offence was reasonably likely.

42    In Hagan, although, as mentioned, the test was said to be objective, Drummond J (at [28]) took into account, and held as admissible, fact and lay opinion evidence under s 78 of the Evidence Act. That evidence was evidence from witnesses of Aboriginal descent of their own views and the views of a larger group of indigenous members of the relevant community about the acceptability of the use of the word “Nigger” in the particular context in question.

43    In Jones v Scully [2002] FCA 1080; 120 FCR 243 at [99]-[101], Hely J held that evidence tendered by the applicant as to the subjective effect of the relevant conduct on the applicant and each of his witnesses was admissible but not determinative. His Honour explained that as the test is an objective one, it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. An analogy was provided by the cases on s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law) that held that idiosyncratic evidence from consumers about how they reacted when reading documents said to be misleading is not to be ignored, but it is not determinative.

44    In McGlade v Lightfoot [2002] FCA 1457; 124 FCR 106 at [44]-[45], Carr J expressly adopted the approach of Hely J in Jones v Scully. His Honour admitted evidence by the applicant as to her response to the conduct in question – being offensive statements about Aboriginal people and culture – and that of three other Aboriginal people as to their responses (see [22]-[30]).

45    In Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [241], Bromberg J, citing Jones v Scully, Hagan and McGlade, held that proof of actual offence for a particular person or group is neither required nor determinative, although evidence of subjective reaction is relevant to whether offence was reasonably likely. Evidence of numerous witnesses as to their reaction to the conduct in question was admitted (see [67]-[164]).

46    As the above survey demonstrates, there is overwhelming authority in this Court that evidence of individual people’s reaction to the conduct in question can be relevant to the paragraph (a) inquiry. I reject the submission to the contrary. Indeed, as Ms Taylor submits, that form of evidence is orthodox.

47    I also reject the submission that the evidence is not relevant because the group of witnesses in question is not a representative sample of people with the relevant characteristics. The witnesses are not being put forward as being a representative sample, and no question of survey evidence arises. I will return to how the witnesses were identified when discussing the public invitation for responses to Senator Hanson’s tweet in the context of objections to Professor Reynolds’ and Professor Paradies’ evidence (see [100]-[102] below).

48    Each of the witnesses, except one, Mr Mandivengerei, states in their affidavit that they saw and read Senator Hanson’s tweet at or about the time that it was published. That means that they saw it in the context of Senator Faruqi’s tweet (see [3] above). The submission to the contrary is not supported by the evidence. Mr Mandivengerei says that he conducted online searches by which he found articles from which he learnt about Senator Hanson’s tweet. It is not stated that those articles also reported on Senator Faruqi’s tweet to which Senator Hanson’s tweet responded, but it seems likely that they would have. But it does not seem to me to matter. The evidence of a person’s reaction to the conduct in question may be relevant to the question of “likelihood” in paragraph (a) even if the person did not have available to them, or was not conscious of, the whole of the relevant circumstances. It is the task of the court to determine the “likelihood” question “in all the circumstances”, including assessment of what those circumstances are. In doing so, the court is well placed to give appropriate weight to subjective evidence of reaction, including by taking into account the circumstances in which a particular person’s reaction was formed.

49    I therefore reject the submission that the reaction evidence is inadmissible because the witnesses lacked knowledge of important context.

Opinion

50    The objection that the anecdotal evidence is inadmissible opinion evidence because there is no evidence of whether the conduct of various persons described by the lay witnesses in recounting their experience of discrimination was motivated by relevant prejudice mistakes the purpose for which the evidence is sought to be adduced. It is not sought to be adduced to prove that the identified mistreatment was racially motivated, but rather for the purpose of contextualising whether it may be reasonably likely that a group of persons bearing the relevant characteristics would be offended, insulted, humiliated or intimidated by Senator Hanson’s tweet. That is to say, the witnesses give direct evidence of their own experience. That is not, and does not purport to be, evidence of why the conduct that they found offensive or damaging was engaged in by the actor concerned. It also does not seem to me to be opinion evidence because it is evidence of the witnesses’ own states of mind.

51    However, as demonstrated by Hagan as discussed above, to the extent that the individual witnesses’ evidence of their experience of racism or prejudice is opinion evidence, that is admissible as lay opinion evidence under s 78 of the Evidence Act. That is because the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

52    The opinion objections therefore fail.

Section 135

53    I also do not accept that the evidence should be excluded under s 135 of the Evidence Act. What weight to give to the evidence will be a matter for consideration in due course. The evidence may turn out not to have significant probative value, or it may even turn out to be unnecessary because the relevant conclusions may be reached on the basis of other evidence. However, the evidence is not relevantly prejudicial or misleading.

54    In the latter regard, since the case will be decided by a judge alone, ie without a jury, there is little risk that the evidence may generate confusion in the mind of the finder of fact. As Campbell J observed in Re GHI (a protected person) [2005] NSWSC 466 at [8]:

There is something bizarre in submitting to a judge sitting alone that he or she should reject evidence on the ground that it might mislead or confuse him or her. I propose to trust myself, so far as that is concerned.

Parliamentary privilege

55    That leaves the question of parliamentary privilege. One of the witnesses, Ms Sri, says this in her affidavit:

In primary school, I was aware that Senator Hanson was publicly making negative comments about Asian people. I have clear memories of standing in my living room in front of the television seeing the comments made by Senator Hanson in her maiden speech to Parliament and particularly the comment that Australia was in danger of being “swamped by Asians” on Australian news programs (I do not recall the exact news programs that I was watching, but I believe it is likely that I saw these comments aired on ABC or SBS because these are channels that my family regularly watched at the time). Because I had been told and believed that I “looked Chinese,” I felt that Senator Hanson’s comments applied to me. I also recall that, when making these negative comments about Asian people, Senator Hanson would regularly say words to the effect of “I’m just saying what everyone is thinking”, which in my view normalised and legitimised the anti-Asian sentiment that she regularly expressed.

(Emphasis added.)

56    The proposed evidence of Ms Sri that is in italics in the quoted passage above is evidence “concerning proceedings in Parliament”. It is not, however, sought to be adduced “for the purpose of” any of the matters in paragraphs (a), (b) or (c) of s 16(3) of the Parliamentary Privileges Act. The evidence forms part of Ms Sri’s explanation of her lived experience of racism and prejudice which gives context to her professed reaction to Senator Hanson’s tweet. It is not sought to be used to rely on the truth of, or to call into question, anything done or said in Parliament, or to question or establish the credibility, motive, intention or good faith of any person. Nor is it sought to be used “against a person” in the sense described in the EM. It is simply sought to be adduced as a matter of historical fact that informs Ms Sri’s experience and understanding of the world. It is hard to imagine how her knowledge of what occurred in Parliament might be excised, as if with a scalpel, from her experience. Any inferences or conclusions urged upon the Court in reliance on Ms Sri’s evidence will necessarily be based on Ms Sri’s reaction to Senator Hansen’s tweet and to racism and prejudice in her life experience, but not on what Ms Sri says that Senator Hanson said in Parliament.

57    I therefore conclude that admission into evidence of the affidavit of Ms Sri is not prohibited by s 16(3) of the Parliamentary Privileges Act.

Constitutional facts

58    For completeness it should be observed that the autobiographical affidavits may also be admitted as evidence establishing constitutional facts, being the effects of racism and prejudice on individuals in society. That is relevant to the inquiry whether s 18C serves a legitimate purpose – see [9] above.

59    Mr Tran’s position for the Attorney-General is that the autobiographical affidavits could have some relevance to constitutional facts, and the Attorney-General may seek to rely on them at trial if they are admitted, but he does not specifically advocate for their admission.

Jennifer Wingard (rhetoric)

60    Senator Hanson challenges Senator Faruqi’s intention to rely on an expert report by Associate Professor Jennifer (Jen) Wingard. Associate Professor Wingard has a PhD in Composition and Cultural Rhetoric from Syracuse University. She is currently an Associate Professor with tenure at the University of Houston where she has taught rhetoric and writing for 15 years. Her areas of research generally focus on political and legal rhetoric, and more specifically on how politicians and news media use repetitive phrases and memes to impact public opinion and voting practices. Her scholarship draws from rhetorical scholars who see language use as more than persuasion and debate, but as central to how people come into understanding and shape their lives.

61    Associate Professor Wingard expresses the opinion that the phrase “go back to where you came from” has stood in for anti-immigrant sentiment in western countries since nation-states began limiting immigration. She draws in particular on the use of that phrase in the United States of America as expressing anti-immigrant sentiment notwithstanding that country’s cultivated image as a “melting pot”. She says that the identified phrase has become a palimpsest that carries with it all connotations that the phrase has carried through history. She says that it is ubiquitous across history and merely needs to be uttered for people to understand that the recipient is being flagged as not belonging.

62    Associate Professor Wingard also addresses the use of the phrase “go back to where you came from” in Australia. She draws on other scholarship to identify that immigrants in Australia have been made to feel never fully equal, always marked and to feel lucky to have a spot in the nation; but the spectre of the dangerous immigrant and the consequences of that title, non-acceptance and/or deportation are always looming.

63    Associate Professor Wingard says that Senator Hanson’s tweet illustrates how immigrants are either acceptable or dangerous in Australian multiculturalism, and that the phrase “piss off back to Pakistan” works as a palimpsest that carries with it the historical meanings of “go back to where you came from”.

64    Associate Professor Wingard also identifies Senator Hanson as having been vocal about the threat that Asian and Muslim immigrants pose to Australia in her public statements over the past three decades. Associate Professor Wingard says that it is the embedded racism of the fantasy of the white nation, which is found in the public statements of Senator Hanson, that makes statements like “go back to where you came from” dangerous for immigrants and citizens of colour. She says that Senator Hanson’s anti-Islam and anti-immigrant rhetoric over the course of her career and her fellowship with other far-right conservative public figures allows her to read the tweet as discriminatory based on Senator Faruqi’s identity as an immigrant and Muslim.

65    Senator Hanson challenges the admissibility of Associate Professor Wingard’s report on the following grounds:

(1)    Parliamentary privilege: admitting the evidence would infringe parliamentary privilege because the letter of instruction to the witness includes mention of Senator Hanson’s statements in Parliament and because the witness refers to such statements in her report.

(2)    Relevance/specialised knowledge:

(a)    the witness’s evidence as to the history of the phrase “go back to where you came from” is not based on specialised knowledge and the history of the phrase is irrelevant to its current meaning.

(b)    the witness’s evidence as to Senator Hanson’s state of mind is not based on specialised knowledge, and the witness draws inferences without considering key evidence including Senator Hanson’s version of the offence.

(3)    Section 135 objection: the probative value of the evidence is outweighed by its being prejudicial, misleading and a waste of time.

Parliamentary privilege

66    The letters of instruction to Associate Professor Wingard and each of the other expert witnesses referred to below refer to proceedings in the Senate on 27 September 2022 when, in response to Senator Hanson’s tweet, Senator Faruqi moved the Senate to censure Senator Hanson. That section of the letters is accompanied by a footnote in which it is said that the statements made in the debates in the Senate are subject to parliamentary privilege and should not form part of the witnesses’ analysis.

67    The objection that the witnesses’ evidence is all “infected” by the reference in the letters of instruction to the proceedings in the Senate must be rejected. Not only were the witnesses expressly cautioned not to rely on what had occurred in the Senate, but whether or not, or to what extent, their knowledge of those proceedings was in fact relied on or in some way “infects” their opinions as expressed in their reports can only be determined by examining each of the reports. That the objection is ill-founded is demonstrated by the observation that the witnesses might in any event have had independent knowledge of what occurred in the Senate on that day – such knowledge could not “infect” the reports unless it was actually relied on in forming the opinions expressed in the reports.

68    There is, however, a more pertinent parliamentary privilege objection in relation to Associate Professor Wingard’s report. In the “Summary Statement” in paragraph 1 of her report, Associate Professor Wingard records that she has reviewed Senator Hanson’s public record, media interviews, parliamentary statements, and social media posts, likes, retweets and follows, from which she draws certain conclusions. Although the words “parliamentary statements” are deleted in the amended report which is the subject of the proposed tender, it is not possible from the summary statement to discern which conclusions might rely in some way on Senator Hanson’s statements in Parliament.

69    Further, in the section of her report commencing at paragraph 17, Associate Professor Wingard considers the public statements made by Senator Hanson over the past three decades as part of the context in which the tweet, and its effect, must be understood. The public statements considered by Associate Professor Wingard include a number of statements made by Senator Hanson in Parliament, including Senator Hanson’s statement in her maiden speech in the Senate in 2016 that Australia was “in danger of being swamped by Muslims”. The references to parliamentary statements have been deleted in the amended report because, as Ms Taylor explained, there is no intention on Senator Faruqi’s side of the case to rely on such statements.

70    The question is then whether the deletions in the report are successful in “disinfecting” the report and, even if they are, whether the report, or part/s of it, should in any event not be admitted because parliamentary privilege would unduly curtail any cross-examination of the witness in relation to whether the remaining opinions were based at least to some extent on Senator Hanson’s parliamentary statements notwithstanding the deletions from the report.

71    The deletions from the report have sought to remove any reliance on anything stated or done by Senator Hanson in Parliament. With two exceptions, those efforts appear to be successful. The exceptions are in paragraphs 23 and 25 where reference is made to a motion introduced by Senator Hanson in the Senate that “It’s okay to be white”. It is true that Senator Hanson repeated that phrase and sentiment outside of Parliament (including on Sky News in an interview with Paul Murray), so reliance could still be placed on her having publicly endorsed such a sentiment, but reliance cannot be placed on the fact of Senator Hanson having introduced the motion. Those references will have to be removed to retain consistency with the approach otherwise adopted in deleting references to things said or done by Senator Hanson in Parliament. The references are these:

(1)    In paragraph 23: “Her comment was made as an attempt to soften her parliamentary motion: “It’s okay to be White.”

(2)    In paragraph 25: the words “which Senator Hanson introduced in Parliament in 2017 and”.

72    I am not persuaded that proper cross-examination of the witness as to the impact on her opinions by not placing any reliance on anything said or done by Senator Hanson in Parliament will be unduly burdened by parliamentary privilege. Indeed, it is hard to see how parliamentary privilege would be enlivened at all in any such cross-examination. Relevant questions would not “concern proceedings in Parliament” within the meaning of s 16(3). Rather they would concern the witness’s opinions and the extent to which any of those opinions can be justified without relying on proceedings in Parliament. In any event, if I am wrong on that conclusion, the questions would not be asked for any of the prescribed purposes in paragraphs (a)-(c).

73    In the latter regard, the following was said by Wigney J in Leyonhjelm (at [247]) in relation to whether cross-examination of a witness in order to determine what was said in proceedings in the Senate would be prohibited by s 16(3):

It is abundantly clear from the very terms of s 16(3) that it only prevents the tender of evidence, or the receipt of submissions, concerning proceedings in Parliament if that evidence is tendered, or the submissions are made, for one of the impugned purposes. It is not a blanket prohibition in respect of evidence and submissions concerning proceedings in Parliament. If the evidence of a witness concerning what was said in Parliamentary proceedings is challenged in cross-examination, the challenge is to the reliability, credibility or honesty of the evidence that the witness is giving in Court. It is not a challenge to their credibility, motive, intention or good faith in respect of anything that was said in Parliament. Nor does it involve the drawing of inferences or conclusions from or about something said in Parliament. It involves drawing inferences or conclusions from what was said in Court.

74    That reasoning applies equally to any cross-examination of Associate Professor Wingard about the deletions in her report.

75    In the result, appropriate deletions will have to be made to paragraphs 23 and 25 of Associate Professor’s Wingard’s report to remove references to Senator Hanson’s “It’s okay to be white” motion in the Senate, although what was said by her outside of the Senate in support of the sentiment expressed by the motion can of course be relied on.

76    I should add that the summary statement in paragraph 1 of the report, which has the words “parliamentary statements” crossed out, seems to add nothing to the report. The opinions held and the reasons or justifications for them are contained in what follows in the report. Deletion of paragraph 1 would at least remove from contention the extent to which the summary statement is based on what was said in Parliament.

Relevance/specialised knowledge

77    As mentioned, Associate Professor Wingard has specialised knowledge based on her study and experience in political and legal rhetoric, and more specifically in how politicians and news media use repetitive phrases and memes to impact public opinion and voting practices. I am satisfied that she has the requisite specialised knowledge to express the opinions that she expresses in her report. She has taught and published extensively in the area, including in a book authored by her and in numerous book chapters and peer-reviewed journal articles. There is also no reason to suppose that rhetoric is not a legitimate and recognised area of specialised knowledge and expertise.

78    Ms Chrysanthou SC submits that Associate Professor Wingard’s evidence as to the history, use and impact of the phrase “go back to where you came from” in the United States is irrelevant to its use and impact in Australia. That submission overlooks that the meaning and effect of words and phrases, and political and cultural developments, are not hermetically sealed within nation-states. In particular, I take judicial notice of the significant cultural influence of the United States in Australia. Further, Associate Professor Wingard specifically canvasses the use and impact of the phrase in Australia with reference to learned sources. I therefore reject the irrelevance submission.

79    As regards the objection to Associate Professor Wingard’s evidence with respect to Senator Hanson’s state of mind, I do not consider that Associate Professor Wingard intends to give any evidence on this topic.

80    Associate Professor Wingard expressly states in paragraph 3 of her report that:

… I subscribe to the notion that rhetorical meaning is not predicated on intention, but instead the power of rhetoric resides in its affects. This means instead of verifying why a public figure makes certain claims … I seek to understand a full picture of a public figure’s rhetorical statements to determine if statements align with their public persona or brand. And then, I seek to understand how those statements and beliefs sway legislation or public opinion on a particular issue.

81    As explained above, in that section of her report where she draws on Senator Hanson’s public statements as matters of historical record, Associate Professor Wingard does so for the purpose of contextualising the likely understanding and impact of Senator Hanson’s tweet in Australia (ie matters going to the paragraph (a) element).

82    To the extent that any particular sentence in Associate Professor Wingard’s report nevertheless addresses Senator Hanson’s state of mind (a matter going to the paragraph (b) element), I accept that, clearly, Associate Professor Wingard is not in a position to give evidence on that matter. The Court is in as good a position as the witness to draw inferences and conclusions about what motivated Senator Hanson to publish the tweet.

83    No particular sentence or passage was identified by Ms Chrysanthou SC that offends in this way with the result that Ms Taylor was not called upon to defend any particular sentence or passage. That said, there are sentences that seem to me to overstep the boundary between expressing an opinion about rhetorical effect and rhetorical purpose. I identify them below, giving the paragraph number of the witness’s report for reference and highlighting the words that seem to show the offensive purpose:

Additionally in viewing Senator Hanson’s public statements over the past three decades, she is clearly invested in the idea of a ‘White Australia.’ As I will discuss, Senator Hanson has been vocal about the threat Asian and Muslim immigrants pose to Australia. And even if Senator Hanson claims that this particular tweet was not meant to invoke anti-immigrant sentiment, the fact that her tweet has circulated amongst far-right conservative media, Senator Faruqi received threats invoking her religious and racial identity, and Senator Hanson doubled down in a future tweet offering to drive Senator Faruqi to the airport shows that she understands the impact of her statement and is allowing it to stand perhaps because it aligns with her far-right conservative views. [para 17]

Her comment was made as an attempt to soften her parliamentary motion: “It’s okay to be White.” [para 23 – noting that this sentence is also contrary to parliamentary privilege as discussed above]

By taking a firm stand in the wake of tragedy and tying her comments directly to immigration, it is my opinion that Senator Hanson used her platform to attempt to sway political debates surrounding immigration in Australia. [para 19]

In conclusion, after reviewing Senator Hanson’s public record, media interviews, …, and social media activity, I see no other way to read her tweet in response to Senator Faruqi as an attempt by Senator Hanson to redefine Senator Faruqi as a dangerous, Muslim, immigrant. [para 32]

84    If there is an intention to persist in tendering those passages at the trial, I will first have to be persuaded that I am wrong on my tentative conclusion in relation to them and that they should be admitted.

85    The foregoing is not to say that Associate Professor Wingard’s evidence is not capable of being relevant at all to the paragraph (b) element. The test in paragraph (b) has been expressed as “whether anything suggests race as a factor in the respondent’s decision to publish” (Creek at [28]; Jones v Scully at [114] and [116]). The phrase “because of” poses the central question of why the act was done and motive, purpose and effect may all bear upon that question: Eatock v Bolt at [306]. The fact of the likelihood of offence flowing from the act will assist a conclusion that the act was done because of the race or other attribute of the person or persons likely to have been offended: Eatock v Bolt at [307].

86    In light of those authorities, Associate Professor Wingard’s evidence about the likely effect of Senator Hanson’s tweet could have some bearing on the assessment called for by paragraph (b). That is a matter that falls to be explored at trial.

Section 135

87    I do not accept that Associate Professor Wingard’s report is of very little probative value, as submitted on behalf of Senator Hanson. I have explained its relevance and usefulness above, particularly in relation to the paragraph (a) element. I also do not accept, as discussed above, that Senator Hanson will be prejudiced in the conduct of her case by being restricted in the way in which her counsel can cross-examine Associate Professor Wingard in relation to those parts of her report that have been deleted because of parliamentary privilege.

Constitutional facts

88    Ms Taylor accepts that Associate Professor Wingard’s report has little relevance as constitutional fact evidence compared with the reports of Professors Reynolds and Paradies (T49.11-34, T68.30-42). That seems to be correct, particularly in the absence of any positive submission by Mr Tran that the Attorney-General intends to rely on Associate Professor Wingard’s evidence.

Kate Reynolds (social psychology) and Yin Paradies (social epidemiology)

89    Senator Hanson challenges Senator Faruqi’s intention to rely on the expert reports of Professors Kate Reynolds and Yin Paradies.

90    Professor Reynolds has a PhD in social psychology from the Australian National University. She has 26 years of experience in social psychology and has conducted extensive research and published numerous peer-reviewed and other articles and papers in the area. She is Professor of Psychology and Learning in the Faculty of Education at the University of Melbourne.

91    Drawing extensively on scholarship, Professor Reynolds expresses the view that a person who attributes their own personal negative treatment or that of their group to prejudice (racism) are likely to experience significantly poor physical and mental health. She says that those who experience prejudice (racism) will likely feel devalued, excluded and rejected from the majority group which reduces belonging to the larger group (eg nation) in which they live. Even when not the direct target of the negative treatment, the impacts of such treatment such as poor physical and mental health and reduced belonging can generalise to members of the group as a whole (ie those who share a social identity).

92    Professor Paradies has a PhD in social epidemiology from the University of Melbourne. He is Professor of Race Relations at Deakin University. He has conducted research on the health, social and economic effects of racism as well as anti-racism theory, policy and practice for over 20 years.

93    Professor Paradies says that it is clear that racism can result in both acute and chronic emotional and psychological impacts. In particular, racist conduct is a pernicious form of stress that can have significant consequences for immediate emotional and psychological health and can also result in long-term pathophysiological changes that affect both mental and physical health. He says that Senator Hanson’s tweet is a common form of racism which can be described as “go back to where you came from”. He cites various studies in that regard.

94    Professor Paradies identifies that racism is a function of power plus prejudice. Racism from people with significant public profiles or who occupy positions of power is likely to have a heightened impact due to the increased threat (perceived or real) of abuse, harm, oppression, marginalisation, restriction, exclusion, ostracization, disadvantage, deprivation etc both directly from the powerful perpetrator themselves and from the authorising effect of such racism through its influence on the general public. Among the latter there will be those who feel empowered to emulate, model and imitate such racism.

95    Senator Hanson challenges the admissibility of the expert reports of Professors Reynolds and Paradies on the following grounds:

(1)    Parliamentary privilege: the reports are infected by the reference to proceedings in the Senate in the letters of instruction.

(2)    Relevance: the witnesses deal with “racism”, a word which it not in s 18C.

(3)    Survey evidence: commentary on the answers given by people in a survey of responses to Senator Hanson’s tweet is inadmissible.

(4)    Section 135: the limited utility of the evidence is outweighed by its impact on the trial and unfair prejudice to Senator Hanson.

Parliamentary privilege

96    I have already dealt with the issue that the letters of instruction to the witnesses included references to proceedings in the Senate in relation to Associate Professor Wingard’s evidence above (see [66]-[67]). There is no foundation to that complaint.

Relevance

97    The submission that the consideration by the witnesses of the effects of “racism” on individuals and society is inadmissible because the word “racism” is not found in s 18C is bewildering. The title to Pt IIA of the RDA is “Prohibition of offensive behaviour based on racial hatred” (emphasis added). The heading to s 18C is “Offensive behaviour because of race, colour or national or ethnic origin” (emphasis added). An element of what makes an act unlawful under the section is if it is done “because of the race … of the other person” (emphasis added). Race, and with it, racism, are at the centre of the provision.

98    The Oxford English Dictionary (online edition) defines “racism” as “Prejudice, antagonism, or discrimination by an individual, institution, or society, against a person or people on the basis of their nationality or (now usually) their membership of a particular racial or ethnic group, typically one that is a minority or marginalized.” If the link between causing offence or harm to someone because of their race and racism needed explanation, reference could be made to what was said by the Attorney-General when speaking about the Bill that introduced the provision:

The Racial Discrimination Act does not eliminate racist attitudes. It does not try to, for a law cannot change what people think. But it does target behaviour – behaviour that causes an individual to suffer discrimination. The parliament is now being asked to pass a new law dealing with racism in Australia. It too targets behaviour – behaviour which affects not only the individual but the community as a whole. …

Racism should be responded to by education and by confronting the expression of racist ideas. But legislation is not mutually exclusive of these responses. It is not a choice between legislation or education. Rather, it is in the government’s view, a case of using both.

(See Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [131], emphasis added.)

99    Section 18C is aimed at combatting racism in Australia. I reject the contention that the impact of racism on individuals and society is irrelevant.

Survey evidence

100    The letters of instruction to Professors Reynolds and Paradies explained that in June 2023 Senator Faruqi’s legal representatives published a form on the internet which people were invited to complete. Completion of the form was promoted by Senator Faruqi and her solicitors on their social media accounts. The purpose was to collect evidence from the Australian public, including those who share any relevant group attributes with Senator Faruqi, as to the impact and effect of Senator Hanson’s tweet.

101    There were 776 responses to the form. The letters record that from the analysis conducted by the legal representatives the following was identified:

(a)     494 participants that responded to the How Does It Make You Feel Form indicated that they identify with one or more of the Group Attributes. Of these:

(i)     434 participants indicated that they experienced one or more of “offence,” “insult,” “humiliation” and/or “intimidation” as a result of the Hanson Tweet; and

(ii)     a further 25 participants indicated that they experienced some other form of negative impact and or emotion as a result of the Hanson Tweet, but did not indicate that they experienced “offence,” “insult,” “humiliation” and/or “intimidation”.

(b)     650 participants that responded to the How Does It Make You Feel Form indicated that they experienced one or more of “offence,” “insult,” “humiliation” and/or “intimidation” as a result of the Hanson Tweet.

102    The deponents of the autobiographical affidavits were drawn from the people who responded to the invitation to complete the form.

103    Amongst the many documents that were furnished to Professors Reynolds and Paradies under cover of the letters of instruction were the 776 responses to the form. In relation to those responses, the witnesses were asked what their observations and/or comments were about the impact of Senator Hanson’s tweet on people that share any or some of the relevant group attributes and to what extent the material supports their responses to other questions that they were asked.

104    Ms Taylor confirmed what I had previously been told in a case management hearing, namely that there was no intention of tendering or in any other way relying on the “survey” results.

105    Professor Reynolds addressed the questions directed to her about the responses recorded in the forms at paragraphs 41 to 46 of her report. Professor Paradies included some comments in response to those questions at paragraphs 33 to 35 of his report. Those paragraphs in the two reports are of no utility as they express opinions on matters which will not be proved. They should be struck out. Ms Taylor accepts as much.

Section 135

106    Ms Chrysanthou SC submits that the limited assistance that the expert evidence of Professors Reynolds and Paradies might provide is outweighed by the prejudicial impact it will have on the length of the trial and the unfair prejudice it will visit on Senator Hanson. In particular, Ms Chrysanthou SC refers to the scholarly material provided with Professor Paradies’ report which amounts to 1410 pages. She submits that it is unduly burdensome on Senator Hanson’s lawyers to have to go through that material and prepare cross-examination, and that the cross-examination will have the result that the five days currently set for the trial will be inadequate.

107    I reject those submissions. The evidence is relevant to the effect that Senator Hanson’s tweet might have had on individual people and groups of people within the meaning of paragraph (a) of the provision, and in particular at what level it might have caused harm in the spectrum from offense to intimidation. The evidence is also relevant to the constitutional question, more particularly whether s 18C serves a legitimate purpose. In my view the evidence has the potential to have significant probative value. The Attorney-General supports its admission for this purpose.

108    Insofar as burden or prejudice is concerned, it is an everyday matter for counsel to have to prepare cross-examination of experts by becoming (relative) experts themselves in the relevant field. That inevitably entails extensive reading of relevant background scholarly material, including the material referred to by the expert. The burden of preparation of that nature is not relevant prejudice. Also, it is not relevant that the trial may be prolonged by reasonable or necessary cross-examination of a relevant witness. To exclude probative evidence on the basis that pertinent cross-examination of it might cause a trial to exceed the days for which it was first listed would visit prejudice on the party seeking to adduce the evidence.

Tendency evidence

109    Lastly, Senator Hanson challenges the admissibility of documents referred to in Senator Faruqi’s amended notice of intention to adduce tendency evidence. That notice was given under s 97(1) of the Evidence Act which provides that evidence of, relevantly, the tendency that a person has is not admissible to prove that they have a tendency to act in a particular way or to have a particular state of mind unless reasonable notice in writing is given of the intention to adduce the evidence.

110    Senator Faruqi’s notice says that it is contended that Senator Hanson has two relevant tendencies. The first is to make public statements (or endorse the public statements of other people) because of the race, colour or national or ethnic origin of a particular person who has, or group of people who have, one or more of the attributes of being a person of colour, a migrant to Australia, a person with migrant heritage although born in Australia, a Muslim person, or a person with visible signs or expressions of religion. The second asserted tendency is to engage in commentary consistent with Senator Hanson holding white supremacist views, including by making hateful remarks about a person who has, or a group of people who have, one or more of those attributes.

111    The notice contains a schedule that identifies 93 statements made by Senator Hanson between 1996 and 2020 which are said to be evidence of those tendencies. Annexed to the notice is, in respect of each of the 93 statements, a document which is said to evidence the statement in question. The documents are mostly media reports, video footage and excerpts from other publications.

112    Senator Hanson challenges the admissibility of the supporting documents on the following grounds:

(1)    Hearsay: the documents, or many of them, contain inadmissible hearsay.

(2)    Parliamentary privilege: some of the documents cannot be admitted as that would contravene parliamentary privilege.

(3)    Insignificant probative value: under s 97(1)(b) of the Evidence Act, to be admissible tendency evidence must support the tendency and the tendency must make the relevant fact more likely. However:

(a)    the evidence does not support the tendencies;

(b)    the pleaded tendencies are not probative of the issue under paragraph (b) of s 18C(1) of the RDA – they are pitched at a high level of generality; and

(c)    the evidence covers a 30-year timespan.

(4)    Section 135: the limited assistance that the evidence may offer is outweighed by the danger that the evidence might be unfairly prejudicial to Senator Hanson or cause or result in an undue waste of time.

113    The principal difficulty with the challenges to the evidence in the form of the documents attached to the tendency notice is that they are not directed at particular documents, or even identifiable classes of documents. General challenges are levelled, without dealing in any detail with the nature of the documents. I have been left to attend to the documents on my own.

114    Analysis of the documents enables them to be classified as follows:

(1)    Media reports of what Senator Hanson has said, being items 1, 2, 9, 13, 17, 19, 20 and 61 (8 items).

(2)    Statements published by Senator Hanson herself in the form of books, media releases or on her social media platforms Twitter, Facebook and YouTube, being items 3, 5, 7, 8, 10, 11, 12, 14, 15, 21, 23, 24, 31, 32, 38, 39, 40, 41, 42, 43, 44, 46, 48, 49, 50, 51, 55, 56, 57, 58, 60, 64, 67, 68, 71, 72, 76, 78, 79, 81, 82, 86, 88, 89, 90, 91 and 92 (47 items).

(3)    Video and audio recordings of Senator Hanson making statements, being items 4, 6, 16, 18, 22, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 45, 47, 52, 53, 54, 59, 62, 63, 65, 66, 69, 70, 73, 74, 75, 77, 80, 83, 84, 85, 87 and 93 (38 items).

Hearsay

115    Ms Chrysanthou SC submits that “nearly all” of the tendency evidence is hearsay. She says that other than a “small number” of documents authored by Senator Hanson, the documents contain previous representations by the authors of the documents about previous representations made by Senator Hanson. Those submissions are at variance with the true position. The first category of documents, of which there are only eight items, contain statements by Senator Hanson reported by others, ie the journalist concerned reports that Senator Hanson said X or Y. That is inadmissible hearsay: Evidence Act, s 59(1). The representation is that of the journalist, and the asserted fact is what Senator Hanson is said to have said.

116    Contrary to the submission of Ms Taylor, the exception in s 60 of the Evidence Act, ie that the hearsay rule does not apply to evidence of a previous representation that is admitted for a purpose other than proof of an asserted fact, does not apply. That is because the relevant asserted fact is what Senator Hanson said, not the truth of what she said.

117    Next, Ms Taylor relies on s 66A of the Evidence Act. It provides that the hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind. She submits that the representations concerned are representations about Senator Hanson’s state of mind, but she does not clarify whether it is the representation by the journalist or the representation by Senator Hanson that she refers to.

118    Section 66A does not operate in the current scenario. The representation that is caught by the hearsay rule is the journalist’s representation. That is not a representation about the journalist’s state of mind, etc. The section requires that the person makes the representation about their own state of mind, etc.

119    Finally, Ms Taylor relies on s 64 of the Evidence Act, being the exception to the hearsay rule in civil proceedings if the person who made the previous representation is available to give evidence about an asserted fact. Once again, the relevant representation that is caught by the hearsay rule is the representation by the journalist not the representation by Senator Hanson. Ms Taylor made it clear that there is no intention to call the relevant journalists. They are not therefore “available to give evidence about an asserted fact”, that fact being what Senator Hanson said.

120    In the circumstances, the media reports in the first category identified above (at [114]) are inadmissible under the hearsay rule. That will remain the position unless the relevant journalists are available to give evidence.

121    However, what Senator Hanson is recorded in the media reports as having said can be shown to Senator Hanson in cross-examination in accordance with the procedure envisaged by s 44(3) of the Evidence Act. To the extent that she accepts that she said what she is reported to have said, what is reported will be admissible. But the documents cannot merely be tendered to prove what she said.

122    For completeness, I should mention that I anticipate a potential point arising in due course with regard to the admissibility of the many media articles relied on by Associate Professor Wingard. It seems to me, at least prima facie, that those articles are relied on not as evidence of what Senator Hanson has said, but rather as evidence of it having been reported that she said those things. That is because what Associate Professor Wingard is allowably doing is analysing public statements for their rhetorical effect. It does not matter to that analysis whether or not the statements were actually made, but rather that they were reported as having been made. That evidence would therefore not be tendered for a hearsay purpose: Evidence Act, s 60. An appropriate limitation under s 136 of the Evidence Act could be placed on that evidence.

123    Unlike the first category, the second and third categories of documents are all direct evidence of statements by Senator Hanson. Since they are not sought to be adduced to prove that what she said is true, but only that she made the statements in the documents, they are not hearsay. I do not understand there to be any challenge to the authenticity of the documents. They are therefore admissible and can be tendered as proof of what Senator Hanson said: s 48 of the Evidence Act.

Parliamentary privilege

124    Ms Chrysanthou SC submits that the tender of “a significant number of the documents” would be in breach of parliamentary privilege. However, not one such document is identified. In my survey of the documents I have not found any that seems to me to breach parliamentary privilege. However, I leave open the possibility that the tender of one or other of the documents, or part of them, would breach parliamentary privilege. If and when such a document is identified, I will deal with the objection at that time.

Insignificant probative value

125    The assessment of whether evidence has significant probative value involves consideration of two interrelated but separate matters. The first is the extent to which the evidence supports the tendency. The second is the extent to which the tendency makes more likely the facts required to be proved to establish the allegations. See Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41].

126    The tendencies sought to be established are relevant to the inquiry in relation to paragraph (b) of s 18C(1) of the RDA. That is to say, they are relevant to the question whether Senator Hanson published her tweet “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” – if she has a tendency to make public statements because of the race, colour or national or ethnic origin of a person or a group of people or to engage in commentary consistent with holding white supremacist views, it is more likely that she published the tweet in question “because of” the asserted reason. I consider that the documents will have significant probative value in relation to proof of the tendencies, and that the tendencies, if established, make more likely the facts required to be proved to establish the element in paragraph (b).

127    As regards the complaint that the evidence covers a period of 30 years, I accept that the older the statement in question, the less value it has with regard to why Senator Hanson published the relevant tweet in September 2022. That, however, is a question of weight to be given to the evidence and how it is to be weighed with other evidence. To the extent that the evidence is consistent over the 30-year time span, that would weigh heavily in favour of paragraph (b) being established. The opposite is also true. If the evidence over the 30-year time span shows that Senator Hanson’s public statements on race and immigration on the basis of national origin have changed and developed, that may weigh against paragraph (b) being established.

Section 135

128    Ms Chrysanthou SC submits that the evidence is such an “utter waste of time” that it would fall foul of s 135 of the Evidence Act. Given the analysis above, that submission is in my view wrong.

Conclusion

129    In the result, the following rulings should be made:

(1)    The objections to the admissibility of the nine autobiographical affidavits are dismissed.

(2)    Save that:

(a)    the references in paragraphs 23 and 25 of the report to the “It’s okay to be white” motion introduced by Senator Hanson in the Senate in 2017 are not admissible, and

(b)    objections based on the witness expressing an opinion about Senator Hanson’s state mind are yet to be specifically identified and ruled on,

the objections to the admissibility of the amended expert report of Associate Professor Wingard are dismissed.

(3)    Save for paragraphs 41-46 and 33-35 of their respective reports which are inadmissible, the objections to the admissibility of the expert reports of Professors Reynolds and Paradies are dismissed.

(4)    Save for:

(a)    the documents referred to at items 1, 2, 9, 13, 17, 19, 20 and 61 of the schedule thereto, which are inadmissible; and

(b)    any objections in reliance on parliamentary privilege which can be raised and ruled on in due course,

the objections to the admissibility of the documents referred to in the applicant’s amended notice of intention to adduce tendency evidence are dismissed.

130    I will reserve the costs of the interlocutory hearing. In the event that no further order is made in relation to those costs, they will be taken to be costs in the cause of the successful party to the proceeding: r 40.04 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    12 March 2024