Federal Court of Australia

Faruqi v Hanson [2024] FCA 1264

ORDERS

The Court declares that:

1.    The conduct of the respondent in publishing a tweet on the messaging platform then known as Twitter under the handle @PaulineHansonOz at 4.05pm on 9 September 2022 in terms that included telling the applicant to “piss off back to Pakistan”:

(a)    is unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) in that it:

(i)    was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the applicant and groups of people, namely people of colour who are migrants to Australia or are Australians of relatively recent migrant heritage and Muslims who are people of colour in Australia;

(ii)    was done by the respondent because of the race, colour or national or ethnic origin of the applicant; and

(b)    is not exempted under s 18D(c)(ii) as it was not done reasonably and in good faith as a fair comment on a matter of public interest.

The Court orders that:

1.    Within seven days of these orders, the respondent cause the tweet identified in the declaration in paragraph 1 above to be deleted from her Twitter (now X) profile under the handle @PaulineHansonOz.

2.    The respondent pay the applicant’s costs of the proceeding.

3.    The parties, including the intervener, have liberty to apply for a variation of order 2 within 14 days of these orders by serving and filing brief submissions (of no more than three pages) and any supporting evidence failing which order 2 shall be final.

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

REASONS FOR JUDGMENT

STEWART J:

TABLE OF CONTENTS

Introduction

1    The principal parties to this case are both members of the Senate of the Parliament of the Commonwealth of Australia. At all relevant times they both held accounts on the social media messaging platform that was then called Twitter (now X) on which they regularly published messages under their own names.

2    The applicant is Mehreen Saeed Faruqi, a Senator for New South Wales since 2018 as a member of the Australian Greens party.

3    The respondent is Pauline Lee Hanson, a Senator for Queensland since 2016. She is a member of Pauline Hanson’s One Nation party.

4    The Attorney-General of the Commonwealth has intervened for the purpose of defending the constitutionality of certain legislation, to which I will come, but has not otherwise joined in the dispute between the principal parties.

5    Early in the morning of 9 September 2022 in Australia, it was announced that Her Majesty Queen Elizabeth II had died at Balmoral Castle after a reign of more than 70 years.

6    Less than 12 hours later, shortly before midday, Senator Faruqi published the following tweet:

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.

7    In reply to that tweet, more than four hours later Senator Hanson published the following tweet as a quote tweet thereby incorporating Senator Faruqi’s tweet (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

8    The tweets appear as follows:

9    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. That is relevant to the way in which a reader of Senator Hanson’s tweet would have understood it, most notably as a direct response or reply to Senator Faruqi’s tweet.

10    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 under s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) enabling Senator Faruqi to pursue her claim in this Court.

The claim and the defences to it

11    Senator Faruqi claims that Senator Hanson, by posting her tweet, engaged in offensive conduct because of Senator Faruqi’s race, colour or national or ethnic origin that is unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). Section 18C makes it unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and 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.

12    Senator Faruqi’s concise statement, in summary, asserts the following:

(1)    The relevant act was Senator Hanson’s tweet which occurred in public; it was reasonably likely that Senator Faruqi and members of the “group”, or some of them, would be offended, insulted, humiliated or intimidated; and the act was done by Senator Hanson including because of the race, colour or national or ethnic origin of Senator Faruqi.

(2)    The relevant group includes people with the following attributes:

(a)    Persons of colour;

(b)    Migrants to Australia;

(c)    Persons with migrant heritage, born in Australia;

(d)    Persons who by virtue of their appearance have been incorrectly identified as migrants;

(e)    Muslim people;

(f)    Persons with visible signs or expressions of religion;

(g)    Persons who have been told to “go back to where they came from” or variations of that phrase due to their race, colour or national or ethnic origin; and/or

(h)    Persons who have experienced racism.

(3)    Senator Faruqi was herself offended, insulted, humiliated and intimidated by the tweet, including by the insinuation that as a Muslim, migrant, woman of colour she is less entitled than other Australian citizens to live in Australia and enjoy the benefits and opportunities afforded by that citizenship; the suggestion that she does not belong in Australia and should remove herself; and because of the incitement to racial hatred by, and manifest racial hatred that is expressed in, the phrase “go back to where you came from” and variations of that phrase.

(4)    Senator Hanson published the tweet because of Senator Faruqi’s race, colour or national or ethnic origin.

(5)    The term “race” in s 18C extends to groups of people including Muslims as a term of “ethno-religious” origin, and the tweet was published by Senator Hanson including because of Senator Faruqi’s race and ethnic origin, “including because she is Pakistani-born and Muslim.”

(6)    Senator Hanson directed the tweet towards Senator Faruqi as a woman of colour and a person from a migrant background as a means to invalidate and delegitimise her entitlement to Australian citizenship, her participation in public debate and her enjoyment of the many benefits of life in Australia which is evident from Senator Hanson’s long and well-documented history of commentary implying that she holds white supremacist views, including having made countless hateful remarks over many years about Asian and Muslim people.

(7)    The phrase in the tweet “pack your bags and piss off back to Pakistan” is directed at Senator Faruqi’s origins as a citizen of Pakistan, and her identity as a Pakistani-born Australian and an immigrant.

(8)    Senator Faruqi and members of the group have suffered various forms of harm in consequence of the tweet, including that Senator Faruqi has been the subject of a torrent of abusive phone calls, social media posts and hate mail (including death threats and misogynistic, racist and sexually violent content).

13    Senator Hanson’s concise response admits various formal matters including that she published the tweet and that the publication of the tweet is an act that was done in public but otherwise denies nearly every aspect of Senator Faruqi’s claim. The concise response, in summary, asserts the following:

(1)    Of the many attributes of people in the group pleaded by Senator Faruqi, only “persons of colour” is a group protected by s 18C.

(2)    Even if Senator Faruqi’s claim is otherwise made out, the publication of the tweet was done reasonably and in good faith in making a fair comment on an event and/or matter of public interest that was an expression of a genuine belief held by Senator Hanson within the meaning of s 18D of the RDA.

(3)    In the further alternative, ss 18C and 18D of the RDA infringe the implied freedom of political communication in the Constitution and are therefore invalid in whole or in part to the extent of the use of the words “offend” and/or “insult” and/or “humiliate” in s 18C(1)(a).

14    At the end of the hearing, Senator Faruqi sought the following amended relief:

Remedy sought

The Applicant asks the Court for orders:

1.    declaring:

a.    that the Respondent engaged in conduct by causing to be posted at 4.05pm on 9 September 2022 a tweet under the Twitter handle @PaulineHansonOz (the Conduct);

b.    that the conduct contravened s18C(1) of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:

i.    it was reasonably likely to offend, insult, humiliate or intimidate the Applicant or a group of people, namely people who have one or more of the following characteristics: migrants (particularly from Pakistan or other Asian Countries), people of colour and Muslims;

ii.    the conduct was done because of the race, colour or national or ethnic origin of the Applicant or some of or all of the people in the group;

c.    that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth).

2.    restraining the Respondent from using the phrases ‘piss off back to Pakistan’, ‘go back where you came from’ or any variation thereof in public;

3.    requiring the Respondent to take down her tweet of 4.05pm on 9 September 2022 posted under the Twitter handle @PaulineHansonOz;

4.    requiring the Respondent to ‘pin’ a tweet to her Twitter account with the Twitter handle @PaulineHansonOz for a period of 3 months, stating that she has been found by the Court to have engaged in an act that contravened s18C of the Racial Discrimination Act 1975 (Cth) in that:

a.    it was reasonably likely to offend, insult, humiliate or intimidate the a group of people, namely people who have one or more of the following characteristics: migrants (particularly from Pakistan or other Asian Countries), people of colour and Muslims; and

b.    the conduct was done because of the race, colour or national or ethnic origin of the Applicant or some of or all of the people in the group; and

c.    the conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth).

5.    requiring the Respondent to pay a donation in the amount of $150,000 to the Sweatshop Literacy Movement in Western Sydney;

6.    requiring the Respondent to undertake anti-racism training at her own expense;

7.    costs.

The statutory scheme: overview

15    The preamble to the RDA references the International Convention on the Elimination of all Forms of Racial Discrimination (1965) (CERD), which is a Schedule to the RDA, and states:

AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:

16    One sees in the preamble references to the making of special laws with respect to race and immigration, and the prohibition of racial and certain other forms of discrimination. CERD entered into force in 1969 and was ratified by Australia in 1975.

17    Part I of the RDA deals with various preliminary matters. Part II provides for the prohibition of racial discrimination, including by making it unlawful (subject to various qualifications) for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin (s 9) and by providing for rights to equality before the law (s 10). There are also provisions dealing with discrimination in relation to access to places and facilities (s 11), land, housing and other accommodation (s 12), the provision of goods and services (s 13), the right to join trade unions (s 14), employment (s 15) and advertisements (s 16).

18    Part IIA was introduced into the RDA by the Racial Hatred Act 1995 (Cth). Justice Allsop in Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [92]-[132] comprehensively described what led to those amendments, from “an ‘epidemic’ of swastika-painting and other manifestations of anti-Semitic hatred and prejudice in the northern hemisphere winter of 1959-60” to the adoption of the Racial Hatred Act in 1995.

19    The Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (EM) which preceded the Act explains that the Bill was intended to address concerns highlighted by the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. The Bill was intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large. It was based on the principle that no person in Australia needs to live in fear because of their race, colour, or national or ethnic origin. The EM also addressed the intended relationship between the Bill and the implied freedom of political communication inherent in the democratic process enshrined in the Constitution and the meanings to be given to the terms “ethnic origin” and “race.” I will return to those matters in due course.

20    As identified in Toben v Jones (at [131]), and with Allsop J’s emphasis, the Attorney-General said the following about the Bill in the House on 15 November 1994:

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.

21    Section 18C(1) contains the proscription of certain conduct that is at the heart of this case. Subsections (2) and (3), dealing with the meaning of the requirement that the relevant act was done in public, are not relevant to the resolution of this case. Section 18C(1) is in the following terms:

18C     Offensive behaviour because of race, colour or national or ethnic origin

(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.

Note: [omitted]

22    Section 18B provides that if an act is done for two or more reasons and one of those reasons is the race, colour or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act, then the act is taken to be done because of the person’s race, colour or national or ethnic origin. It follows that in order to establish that a particular act is unlawful, the requirement in s 18C(1)(b) will be satisfied if it is established that the act was done at least in part because of the race, colour or national or ethnic origin of the relevant person or group of people.

23    Section 18D sets out exemptions from the proscription in s 18C, including the “fair comment” exemption in subs (c)(ii) on which Senator Hanson relies. The section as a whole is in the following terms:

18D     Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)    in the performance, exhibition or distribution of an artistic work; or

(b)     in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)     in making or publishing:

(i)     a fair and accurate report of any event or matter of public interest; or

(ii)     a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

24    The remaining sections in Pt IIA, ss 18E and 18F, deal with vicarious liability and State and Territory laws being unaffected. Those sections do not call for consideration in this case.

25    A contravention of s 18C(1) has three elements: (1) the relevant act must be done “otherwise than in private”, (2) the act must be “reasonably likely” to “offend, insult, humiliate or intimidate” and (3) the act must be done “because of” the race, colour or national or ethnic origin of a person or group of people. See Jones v Scully [2002] FCA 1080; 120 FCR 243 at [95] per Hely J; Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [63] per French J; Bharatiya v Antonio [2022] FCA 428 at [16]-[18] per Colvin J.

26    As mentioned above, there is no dispute in this case that the relevant act was done in public, so that aspect need not be considered any further. Senator Hanson submits, however, that neither the requirements of s 18C(1)(a) (para (a)) nor s 18C(1)(b) (para (b)) are met. She also submits that in any event the requirements for the operation of the exemption in s 18D(c)(ii) are met.

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.

Senator Faruqi

31    Senator Faruqi was born in Lahore, Pakistan in 1963. She is Muslim. I infer that she was born into a Muslim family although she was educated at a private Catholic school in Lahore. Senator Faruqi’s father studied at the University of New South Wales (UNSW) in the 1950s.

32    In 1988, Senator Faruqi graduated with a Bachelor of Engineering (Civil) degree at the University of Engineering and Technology in Lahore. She commenced work as a structural engineer with a firm of consulting engineers in Pakistan, holding that position until 1992. In the meanwhile, in 1989 she married Omar Faruqi. The couple have two children, a son who was born in Pakistan and a younger daughter who was born in Australia.

33    In 1992, the family emigrated from Pakistan and settled in Sydney, initially with permanent residency. Senator Faruqi has resided in Australia since then. She became an Australian citizen in 1994.

34    In 1994, Senator Faruqi completed a Master of Engineering Science, Environmental Management, Solid and Hazardous Water Management at UNSW. In 2000, she completed a Doctorate in Environmental Engineering, Wastewater Management and Energy Recovery at UNSW.

35    Between 1999 and 2013, Senator Faruqi worked in various positions consistent with her qualifications in engineering, including as a consulting engineer, for local councils and in academia.

36    In 2004, Senator Faruqi became a member of the political party, The Greens NSW. She ran unsuccessfully as a candidate for the Legislative Assembly seat of Heffron in 2011 and in a by-election in 2012. In 2013, Senator Faruqi was elected to the NSW Legislative Council, becoming the first Muslim woman to be a member of any Australian Parliament. She held that position until August 2018 when she resigned to enter federal politics.

37    On 20 August 2018, Senator Faruqi was sworn in as a Senator for NSW in the Federal Parliament. In doing so, she became the first female Muslim Senator. In order to be eligible for the Senate, Senator Faruqi had to, and did, renounce her Pakistani citizenship. Senator Faruqi holds the “Republic” portfolio for the Greens.

38    Senator Faruqi gave evidence of her experience of racism in Australia before the events at the centre of this case. She spoke of a number of incidents over the years in which she was made to feel that she was being treated differently or being mistrusted because she is a woman of colour, and when she was identifiable as being an immigrant and Muslim. She gave evidence of how, in various ways, she or her family were made to feel unwelcome or different, ie they were “othered” in the sense of being conceptualised as intrinsically different from and inferior to the prevailing social group and thereby excluded from it.

39    Senator Faruqi explained that when she entered politics, her experience of racism intensified. Often that was reflected in people responding to things that she said by attacking her as a person, rather than criticising her message or stance. They have included telling her that she is “not from Australia” or that she “doesn’t belong here.” Her Muslim identity has often been the focus or subject of the attacks.

40    Senator Faruqi explained that she feels that some people do not want her in Australia because she is Muslim. She feels that they consider Muslims to have an outlook and a way of life that is incompatible with modern Australia. Senator Faruqi’s experience is that anti-Muslim sentiment, or Islamophobia, is based on a racialized stereotype and that hateful comments about her religion are also tied to where she comes from and her ethnicity.

41    Senator Faruqi and her staff maintain several social media accounts in her name – Facebook, Twitter and Instagram. At the relevant time, Senator Faruqi had about 40,000 followers on Twitter, and Senator Hanson had “a lot more”, “thousands and thousands of people.”

42    In cross-examination, Senator Faruqi explained that she and her staff drafted the tweet about the Queen having died. She said that she chose the words carefully, intending to put some issues on the political agenda which she felt should be discussed and debated. She wished to put her views on the record and for people to debate them.

43    Senator Faruqi explained that in the tweet she was stating a fact of how she felt about the Queen dying and about the British Empire and its legacy of colonialism. She was raising the issues of Australia becoming a republic and the conclusion of a treaty with First Nations people. She felt that that was a time when people would be more attuned to those issues. It was a time when people would be talking about those issues.

44    Senator Faruqi denied that the tweet incorporated false words of condolence, or that her condolences were disingenuous. She said that the tweet was a genuine and honest statement of her feelings and beliefs at the time.

45    Senator Faruqi said that she found Senator Hanson’s tweet to challenge her sense of belonging and her sense of self; it had a triggering effect. She found it to be insulting and humiliating. She said that it made her feel like she was not accepted and that she did not belong in Australia. It caused her to cry. She was scared of the response that Senator Hanson’s tweet would encourage in others – that it would “encourage others to join the chorus of hate.” Senator Faruqi said that, over a long period of time, she has suffered sleepless nights and on occasion woken up in great distress because of the trauma induced by the tweet (T82:1-6).

46    The responses on Twitter to Senator Faruqi’s tweet in the period between it being published and Senator Hanson’s tweet being published were tendered. Many of the tweets are personally abusive, including in racist and Islamophobic ways, although some are supportive of her and the views expressed in her tweet. Only a few express the sentiment “go back to where you come from”, or variations of it. The overwhelming majority are disapproving, in one way or another.

47    Following the publishing of Senator Hanson’s tweet at 4.05pm on 9 September 2022, Senator Faruqi was the target of intense abuse across her social media accounts as well as by phone calls to her parliamentary office and emails to her parliamentary email address. It is a common theme of a substantial proportion of the abusive messages that Senator Faruqi should “piss off back to Pakistan” or “piss off back to where she came from.” Another common theme of a substantial proportion of the abusive messages is that Senator Faruqi is in some way less entitled, or not entitled at all, to make critical comments about Australian colonial history because she is not “from” Australia. Yet another theme is that Senator Faruqi is in some way hypocritical for having “taken” the benefits of Australia and now has the audacity to make criticisms, without any acknowledgement in those messages of Senator Faruqi’s contribution to Australia over 31 years including some 10 years of public service.

48    Senator Faruqi said that the impact of Senator Hanson’s tweet made her think like never before of the consequences and impacts of “telling it like it is” for someone like her in Australian politics. It had a silencing effect on her. She said that she found that after the tweet she moderated herself when speaking about colonialism or racism because those topics generate such hate. She said that she finds that she is constantly monitoring and being selective about what she feels she can or should respond to out of fear of the backlash. Senator Hanson’s tweet, and the responses that it generated, have made Senator Faruqi feel “small, ‘othered’ and isolated.”

49    Senator Faruqi explained that there are already many barriers for political outsiders like her, and that every time she rises above the barriers – like becoming a Senator – she has to consider the repercussions and toll of that. She has to make decisions about whether she responds to racist vitriol, or whether she remains quiet and merely absorbs the hatred. She said that choosing to stay silent means that the racist vitriol continues, but standing up and calling it out means that it is directed more intensely at her. Being a public figure does not inure her from the harm and psychological damage that comes from experiencing racism.

50    The emotional toll is an everyday experience, which felt so much worse when the attack came from a workplace colleague, Senator Hanson. Senator Faruqi experienced Senator Hanson’s tweet as “a direct attack from a colleague” in her workplace; “a very direct attack from a colleague with a big platform.” Senator Faruqi finds it extremely stressful being in a workplace with someone who has attacked her in that way. She said that she has a physiological reaction to going into the Senate chamber to sit in close proximity to someone who has caused so much distress for her.

51    Senator Faruqi accepts that it is perfectly acceptable for Senator Hanson to object and respond to her comments about the Queen and to engage in a debate about the Queen’s legacy. However, she found being told to “piss off back” to where she came from as insulting, offensive and humiliating.

52    It is not just the final sentiment of “piss off back to Pakistan” that Senator Faruqi found offensive and insulting. The first part of Senator Hanson’s tweet about Senator Faruqi being an immigrant and not having the right to the same things or opportunities that other people have in Australia including the same right or opportunity to express herself was experienced by her as being insulting and humiliating. Senator Faruqi also felt intimidated by the tweet because her workplace was made to feel hostile and unsafe. She felt that it could happen again, and that there is a threat of physical violence from people who might feel emboldened or encouraged by Senator Hanson’s tweet.

53    On the day that Senator Faruqi announced to the media that she was commencing this proceeding, she received a threat on social media that included the street address of her electoral office and the words “See you real soon you fucking dead cunt.”

54    Senator Faruqi was an impressive witness. She was thoughtful and careful in her evidence, and despite significant provocation in cross-examination retained her composure and grace. I gained the clear impression that she was doing her best to recollect matters correctly and give true and accurate evidence.

55    The provocations include it being put to her that she is a hypocrite because she is an immigrant to Australia and yet she is critical of Australia. That is provocative because it suggests that Australian citizens who are immigrants are less worthy citizens than those who are not immigrants and that one cannot be loyal to one’s country and be critical of it at the same time. It was put to her that her denial that she had understood Senator Hanson’s tweet as telling her that she had “lived a good and fulfilled life in Australia” was disingenuous (T67:39-68:14), when plainly that was not the message of the tweet. It was also put to her that by her tweet she was accusing all non-Indigenous Australians of having engaged in a joint act of stealing land (she was not) (T60:1-5). It was said to her that she had “denigrated Jews” and that the only reason she was interested in what was referred to as the genocide in Gaza was “because it is being engaged in by Jews” as demonstrated by her not having “said anything … politically or publicly about the genocide of the Armenians by the Turks” (a reference to events that took place more than 100 years ago) (T84:40-85:2). In the face of all that, Senator Faruqi maintained her equanimity.

56    It is submitted on behalf of Senator Hanson that Senator Faruqi’s evidence should be approached with caution. Three criticisms are raised in that regard. The first is that she was unwilling to accept what was said to be the obvious basis for Senator Hanson saying in her tweet that Senator Faruqi was “not happy”, namely the content of Senator Faruqi’s tweet. Senator Faruqi was asked whether she understood the words “it’s clear you’re not happy” to be a reference to her tweet earlier that day, to which Senator Faruqi answered, “I did not” (T68:16-17). Senator Faruqi went on to say that she has no idea why that was said of her because she is very happy in Australia (T68:19-21), and that she did not see her tweet inferring anything about her happiness or unhappiness in Australia (T68:26-29). Those are perfectly legitimate and understandable answers. There is nothing in them that constitutes evasion from accepting the obvious.

57    The second criticism of Senator Faruqi is said to be her claim that “colour” was implicit in Senator Hanson’s tweet which, it is said, self-evidently involved no such notion (T68:45-47). It is true the words in Senator Hanson’s tweet did not refer to skin colour. Beyond that, there is nothing self-evident about it. The tweet was directed to a Muslim woman of colour who immigrated from Pakistan and instructed her, in particularly rude and emphatic terms, to “piss off back to Pakistan.” As I will come to in more detail, that statement is a variation of an age-old racist trope. As Senator Faruqi said in the next exchange, the reference to her national origin was a reference to Pakistan “where almost 100 percent of the people look like me” (T69:1-2). There is nothing unreasonable in Senator Faruqi seeing “colour” being implicit in Senator Hanson’s tweet.

58    The third criticism is that Senator Faruqi claimed to hold the view that there is no place for offensive conduct or comments in day-to-day political discourse despite her own political comments including in relation to Prime Minister Scott Morrison in 2019 (T82:43-46). Senator Faruqi had said the following in her affidavit in the context of explaining why she felt insulted by Senator Hanson’s tweet:

I don’t think there is a place for offensive conduct or comments in day-to-day political discourse. I feel offending and insulting comments are often couched as robust debate, but I think there is a clear line between being insulting and offensive to someone and robust debate. You can have really good, robust debate without being offensive or insulting.

It was put to Senator Faruqi that she was not being honest when she said that, which she denied (T82:47). The asserted basis for dishonesty, which was not put to Senator Faruqi, is that on 10 December 2019 during the severe New South Wales bushfires at that time, Senator Faruqi had posted a tweet saying “just fuck off” in response to it being said that the Prime Minister had rejected calls for more assistance to fire fighters (T52:12-35; Exh R5/3). In that earlier exchange, Senator Faruqi had accepted that her tweet used very strong language but she defended it on the basis that it did not attack anyone personally and it was not racist. Although the tweet might be regarded as attacking the Prime Minister personally, that is not really the point. The point is that one can simultaneously hold a belief that there is no place for offensive and insulting conduct and comments in day-to-day political discourse, yet on one occasion more than four years earlier have publicly made an offensive or insulting comment about a political opponent. There is no basis on which the reliability of Senator Faruqi’s evidence can be criticised on that inconsistency or tension, if indeed it is that.

59    In the circumstances, I consider Senator Faruqi’s evidence to have been unshaken in cross-examination and I accept it.

Autobiographical witnesses

60    Senator Faruqi relies on the evidence of nine witnesses who were referred to at trial as the autobiographical witnesses. Each is a person who responded to a public invitation published by Senator Faruqi to document the effect that Senator Hanson’s tweet had on them. 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, and cites their experiences of discrimination on the basis of one or more of those characteristics. Their evidence is potentially relevant to the para (a) inquiry, ie the likelihood of Senator Hanson’s tweet causing one of the identified results. See Faruqi v Hanson (evidence rulings) [2024] FCA 225 at [39]-[49].

61    None of the autobiographical witnesses was required for cross-examination. I accept their evidence.

Anna Ellen Sri

62    Anna Ellen Sri was born in Australia in 1989 and is an Australian citizen. She identifies as a person of colour because her father is Tamil. She also identifies as a person of migrant heritage because her father is an immigrant from Sri Lanka in the 1980s. Dr Sri is a veterinarian.

63    Dr Sri saw and read Senator Hanson’s tweet on or about the day it was published, her attention possibly having first been drawn to it through media coverage about it. Dr Sri said that she understood the tweet to be telling Senator Faruqi to go back to where she was born, ie Pakistan. She felt that the use of the language “piss off” rather than merely “go” conveyed a higher degree of intolerance.

64    Dr Sri said that she also understood the tweet to convey the message that Senator Faruqi is not welcome in Australia and is not permitted to contribute to public discourse about matters which impact Australia because she was born in Pakistan. That is, Senator Faruqi and other people of colour, such as Dr Sri, should know their place in Australia, which is to be grateful and not provide any critique or even basic suggestions for improvement to Australia.

65    Dr Sri said that she felt humiliated and intimidated by the tweet. She felt humiliated because it reminded her of experiences that she had during her childhood growing up in Australia as a person of colour. She was intimidated because both Senator Hanson and Senator Faruqi are public officials – if someone like Senator Faruqi can be victimised by that kind of racism, then other immigrants and people of colour in Australia are even more vulnerable.

66    Dr Sri gave some examples of her personal experiences of racism. She said that she clearly remembers as a child seeing coverage of Senator Hanson saying that Australia was in danger of being “swamped by Asians”. Because she had been told that she “looked Chinese”, she felt that Senator Hanson’s comments applied to her. She also recalls Senator Hanson saying words to the effect of “I’m just saying what everyone is thinking.” Dr Sri felt that that normalised and legitimised the anti-Asian sentiment. Dr Sri was thereby made to feel paranoid that the majority of people, including her classmates, did not accept her or had negative thoughts about her because she “looked Chinese.”

67    Dr Sri remembers that Senator Hanson’s comments undermined her sense of self-confidence and caused her to internalise feelings of inadequacy and a lack of acceptance and appreciation by the wider Australian society. She recalls feeling as though she had to consistently demonstrate good behaviour and perform at a high level to maintain acceptance in society and in her school community.

68    Dr Sri recalls, in the early 2000’s, seeing bumper stickers with words to the effect of “if you don’t love it, leave” and “fuck off, we’re full.” She interpreted the bumper stickers to mean that if you are a migrant or a person of colour, then you are not allowed to offer critiques or suggestions about how to improve Australian life but instead had to be grateful.

69    Dr Sri said that as a result of her experiences of racism, she has felt scared, paranoid and intimidated, particularly when meeting new people and going into new situations with an unknown group of people, she has suffered depression and her sense of self and self-confidence has been negatively impacted. She said that she has felt unwelcome in Australia, even though she was born in Australia and it is the only place where she has ever lived. She has felt silenced and dismissed, and that she does not have the right to voice her thoughts and feelings particularly around subjects such as political issues including issues of racism, migration and refugees.

Ayan Abdirashid Ali

70    Ayan Abdirashid Ali is a student who identifies as being of Somali origin which is where her parents are from, although she was born in Italy in 2000. She is Muslim and wears a hijab. She has lived in Australia since 2001 except for a period of four years when she was in high school and lived in the United Arab Emirates (UAE).

71    Ms Ali saw Senator Hanson’s tweet on Twitter on 9 September 2022. Ms Ali interpreted the phrase “piss off back to Pakistan” in the tweet as a variation of the phrase “go back to where you came from”, which to her is a hateful, inflammatory and xenophobic phrase that she knows very well. As a person of colour from a culturally and linguistically diverse background, and an immigrant and a Muslim, Ms Ali has previously been told words to the effect of “go back to where you came from.” Senator Hanson’s tweet thus reminded her of her experience of those words. She felt personally offended by the tweet even though it was not directed to her personally.

72    Ms Ali said that she felt insulted and humiliated by the tweet, including because it came from a Senator, being an important position in Australian society, with a significant platform. Also, if Senator Faruqi could be the subject of such abuse, then ordinary people like Ms Ali could never be safe from such discriminatory words and sentiment.

73    Ms Ali said that she felt intimidated by Senator Hanson’s tweet because it gave a platform and a voice to people who share similar thoughts and feelings. She saw that the tweet generated a significant volume of hatred and discrimination directed towards Senator Faruqi, including threats of violence. Knowing that people with those views could be anywhere around her made Ms Ali feel intimidated, hopeless, scared and unwelcome in the country that she calls home. On many occasions she has felt unsafe in public spaces.

74    Ms Ali recounted various instances of racism or other abuse based on her colour, ethnic origin or religion experienced by her. These included, for example, people yelling words to the effect of “fucking Muzzos” and “black bastards.”

75    One of the earliest experiences of racism recalled by Ms Ali occurred when she was about eight years old. She and her older sister, who at the time was about 10 years old, were in a local shopping centre when an older white man approached them and angrily yelled in their faces words to the effect of “go back to where you came from.” Ms Ali felt terrified, confused and upset. She and her sister began crying. She said that she was made to feel like she did not belong in Australia and that she was unwelcome in her own home. She recalls thinking that she did not know where else she was supposed to go.

76    In another incident, she and her four sisters had the day off from their Islamic school to celebrate Eid. They were in a park with their father playing football when a white man approached their father and yelled at him words to the following effect: “why aren’t your kids in school?” The man also said words to the effect of “you are illiterate” and “you will need to integrate into the Australian way of life.” The man later unleashed his dog which chased Ms Ali’s family.

77    Ms Ali recalls that since living in Australia, and at least up until 2015, people regularly said words to the effect of “go back to where you came from” to her. Since 2019, after she returned from the UAE, she feels that she has fortunately experienced overt racism less frequently. She nevertheless recounted some incidents of such racism, in particular instances where people seemed surprised to find her, a person of colour wearing a hijab, in a professional setting.

78    Ms Ali said that she has suffered various impacts in her day-to-day life from her experiences of racism. She has felt scared and intimidated and has on occasion even felt scared to wear her hijab in public. She said that she has learned to hide from people in public. By “hide”, she means different things depending on the situation. For example, she might not go to certain public spaces at certain times, or when it is difficult to avoid public spaces she has kept to herself, keeping her head down and walking quickly in situations that make her feel uncomfortable. Hiding has also taken the form of running away and hiding from people that have made her feel unsafe, or who have shouted or said aggressive things to her. She said that she is constantly hypervigilant.

Coco-Jacinta Cherian

79    Coco-Jacinta Cherian was born in Western Australia in 1997. She is a person of colour and a person of migrant heritage. Her father, and his parents before him, were born in India. She works as a program support officer.

80    Ms Cherian cannot remember when she first saw Senator Hanson’s tweet, although she believes that it was on Instagram in the week following the Queen’s death.

81    When she first read the tweet, Ms Cherian felt that Senator Hanson was telling Senator Faruqi to “go back to where she comes from” which is a hurtful phrase for her that has often been directed to her. She also understood the tweet to be saying that Senator Faruqi is not deserving of the same rights and entitlements as people who are born in Australia and that if Senator Faruqi wishes to live in Australia, she needs to act in a certain way. That would include not criticising Australia’s history and its ties to the monarchy and colonialism.

82    Ms Cherian said that she was offended by Senator Hanson’s tweet, understanding it to express the sentiment that there is a hierarchy of races and that “whiteness” is to be preferred over “colouredness.” She felt humiliated by the tweet by being made to feel embarrassed to be a person of colour. She felt insulted by the idea that she will not be accepted fully as part of Australian society unless she behaves in a certain way.

83    Ms Cherian also gave evidence of her experiences of racism in Australia. Those include experiences as a young member of the cast of the iconic Australian television series Neighbours – there was racist backlash to the idea of people of Indian background living on the show’s “Ramsay Street.” That included being told that she and her fellow cast members of Indian heritage should go back to where they came from and that the show should only feature “real Australians.” Such sentiments caused Ms Cherian to question whether she did in fact belong in Australia or had a right to be cast in Neighbours. She also started to hate her race and hate that part of her that is Indian. She recalls not liking her skin and not feeling comfortable in it.

Daniel Jacob Levy

84    Daniel Jacob Levy is a student. He was born in Australia in 1989. He identifies as being culturally Jewish, although he does not practice the Jewish faith. Mr Levy also identifies as a person with migrant heritage because his four grandparents were born in Lithuania, Poland, Germany and Latvia before migrating to Australia. They fled Europe before and after World War II as Holocaust survivors.

85    Mr Levy saw Senator Hanson’s tweet on 9 September 2022 on his personal Twitter account. Mr Levy understood the tweet to be telling Senator Faruqi to go back to where she came from, and that it conveyed the notion that if someone from a migrant background does not like living in Australia (because, for example, they have criticised certain aspects of Australian life, politics or history) then they should leave Australia. He understood the phrase “piss off back to Pakistan” to convey the same message as, to him, the common racist phrase “fuck off, we’re full.”

86    Mr Levy said that he felt offended, insulted, humiliated and intimidated by Senator Hanson’s tweet. He felt that the words used by Senator Hanson were xenophobic, and he is deeply offended by xenophobia. He believes that the sentiments conveyed by Senator Hanson in her tweet are the same as have previously been used against Jewish people. Because of that, even though the tweet was not directed at him, he felt personally insulted by it because he is Jewish.

87    Mr Levy said that his strongest reaction to the tweet was that he felt intimidated. That is because the tweet evoked a deep sense of intergenerational trauma that he believes that he suffers from as a result of being a descendant of Holocaust survivors. The intimidation was heightened because of Senator Hanson’s position of political leadership and because Senator Faruqi is part of a racial minority in Australia.

88    Mr Levy gave evidence of his experience of anti-Semitism and other discrimination or hatred directed at him for being Jewish. For example, when he was about eight years old he was playing community sport with his Jewish football club. He recalls some opposing players walking past his team and saying words to the effect of “bloody Jews” to them.

89    Mr Levy said that, because of his family history, he is constantly anxious about fascism taking root again, and what it would mean for him and everyone he cares about. That is especially aggravated for him when political leaders campaign on xenophobia and bigotry in general, which he sees to be hallmarks of fascism. He gave evidence of the negative effects of anti-Semitism on his mental health.

Fatima Hasan

90    Fatima Hasan was born in 1991 in Lahore, Pakistan. She identifies as being of Pakistani origin and is Muslim. She immigrated to Australia in 2016. She works as a nurse.

91    Ms Hasan believes that it is likely that she saw Senator Hanson’s tweet on Twitter on or about 9 September 2022. She understood the tweet as an attack on her personal identity as an immigrant to Australia because, like Senator Faruqi, she was born in Pakistan. She interpreted Senator Hanson’s tweet as racist and xenophobic. She felt offended, insulted, humiliated and intimidated by the tweet.

92    She said that she was offended because she understood that the words “piss off back to Pakistan” and the sentiment conveyed by them were directed towards everyone originally from Pakistan, including her. She took those words personally. They made her feel like all the hard work that she had done in her life and particularly during the time that she has lived in Australia meant nothing because she was made to feel like she does not belong in Australia.

93    She said that reading the tweet reminded her of her previous experiences of racism which reactivated trauma and insult. It made her realise that attitudes she had experienced in the past had not changed. She felt humiliated because she understood the tweet to be a direct threat that challenged her right to continue to live in Australia.

94    Ms Hasan said that she felt intimidated by the tweet because she believed that the thoughts and views expressed in the tweet by an elected politician with a large public profile must represent the thoughts and views of people who had voted for Senator Hanson or who follow her on Twitter. She fears being subjected to racist comments or attacks, verbal or physical. After seeing Senator Hanson’s tweet, she saw numerous racist comments directed at Senator Faruqi from other people on Twitter which reiterated the thoughts and views of Senator Hanson conveyed in the latter’s tweet. Ms Hasan remembers thinking that by publishing the tweet, Senator Hanson had given a voice to many other people in Australia that share her views; it was as if Senator Hanson had magnified those racist views.

95    Ms Hasan said that she cried after reading Senator Hanson’s tweet. The sadness subsequently turned into desperation and anger. She recalls thinking that if someone like Senator Faruqi, an elected politician, is unable to escape racism and discrimination in Australia, then there is nothing that Ms Hasan will ever be able to do to reduce or stop racist incidents against herself.

96    Ms Hasan gave evidence about her experiences of racism in Australia during her work in a rural nursing placement and in hospitality. Those experiences include being told words to the effect of “go back to where you came from”, “where are you really from?” and “did you come here by boat?” He also recounted experiences of a patient not wanting to be treated by her, asking for “an Australian nurse”, and being asked by a patient whether she was qualified because she was “not from Australia.”

97    Ms Hasan’s experiences of racism have caused her to feel like she does not belong in Australia, and to feel as though she cannot continue to be a nurse in Australia because people do not accept her, or refuse care from her, because she was not born in Australia. She has been caused to feel suicidal, to feel like a failure, and to have suffered hypervigilance at work.

Muhammud Yunus Moolla

98    Muhammud Yunus Moolla was born in 1984 in Cape Town, South Africa. He identifies as being of African origin and Indian because he is a fourth-generation South African whose relatives immigrated to South Africa from India. He is Muslim, although he considers himself to be non-religious and is not a practising Muslim. He immigrated to Australia with his wife in 2017 and is an Australian citizen. He works as a manager.

99    Mr Moolla believes that he saw Senator Hanson’s tweet on or about 9 September 2022 on his Twitter account. He understood the tweet to mean that non-white immigrants to Australia, including Senator Faruqi, are inferior to and should be fearful of “white” Australians; that they are less deserving of occupying space within Australia because they were not born here.

100    Mr Moolla said that the tweet made him feel that as a non-white immigrant to Australia, his identity as an Australian will always be under threat even though he is an Australian citizen. He felt that his “Australian-ness” and his place within Australia will never be whole and could be taken away by Senator Hanson, or any white Australian, at any time if he does not behave in a way that other white Australians expect him to behave. He felt that the tweet conveyed that non-white migrants to Australia will never be entirely welcome in Australia because Senator Hanson was telling Senator Faruqi and other non-white immigrants to Australia to go back to where they came from.

101    Senator Hanson’s tweet reminded Mr Moolla of having been told words to the effect of “go back to where you came from” and other incidents of overt racism experienced by him on many occasions. The tweet brought up trauma and the feelings of fear, humiliation and anger that he associates with being the subject of racist abuse in Australia.

102    Mr Moolla said that he felt intimidated by Senator Hanson’s tweet because it scares him that Senator Hanson, an Australian Senator with a significant public profile, would say those words publicly to another Australian, let alone another Senator. He believes that if someone like Senator Hanson can hold those views and engage in that kind of conduct, it amplifies and legitimises similar views held by other individuals living in Australia. That makes him scared for his own safety and also for the safety of other migrant people living in Australia. He also feels unable to fight back against that kind of conduct out of fear that the situation could escalate and that he would be at risk of being subjected to physical violence.

103    Mr Moolla gave evidence of racist experiences suffered by him. They included being told by a man on a bus “you are not Aussie”, and being told “oh she’s like you, just go marry her” in relation to a woman who appeared to be of Middle Eastern descent who boarded the bus. Such incidents have caused him to feel angry and fearful, that he was doing something wrong, and that his identity as an Australian, and his right to exist in Australia as a human being, had been taken from him.

Sana Ashraf

104    Sana Ashraf was born in Pakistan in 1990. She migrated to Australia in 2015 to do a PhD at the Australian National University (ANU) which she completed in 2019. She married an Australian man and became an Australian citizen in June 2023. She works as a public servant.

105    Ms Ashraf believes that she saw Senator Hanson’s tweet on social media in the week following the Queen’s death. She understood the tweet to be telling Senator Faruqi to go back to Pakistan, or to go back to where she comes from. She understood the strength of the language in “piss off back to Pakistan” to express hatred and intolerance and to be telling Senator Faruqi that Senator Hanson was not willing to tolerate her continued presence in Australia.

106    Ms Ashraf said that she was offended, humiliated, insulted and intimidated by Senator Hanson’s tweet. She felt that it is dismissive of Senator Faruqi’s existence as an Australian citizen. She finds it offensive as an immigrant to Australia. She felt that the tweet expressed what she has experienced to be a popular sentiment amongst some Australians, which is that she is not truly accepted because of her migrant heritage and that it is not acceptable for her to share an opinion about life in Australia which is not positive. She feels as though she can only be accepted as an Australian citizen on a conditional basis – as long as she is grateful for the fact that she lives in Australia, she will be liked and accepted.

107    Ms Ashraf said that she felt intimidated by the tweet because it made her feel unable to participate fully and freely in political and societal discussions, as though she does not have the right to share her opinions in her own country.

Stephen Mandivengerei

108    Stephen Mandivengerei, who works as a support worker, was born in 1975 in Chiredzi, Zimbabwe (then Rhodesia). He identifies as being of African origin, of Mbire ethnicity and a person of colour. Mr Mandivengerei immigrated to Australia in 2008 with his wife and two children. They now have a third child. All three children are Australian citizens.

109    Mr Mandivengerei does not recall seeing Senator Hanson’s tweet until he saw a Facebook post by Senator Faruqi in June 2023 in which she invited people to fill in an online survey about their responses to the tweet. That caused him to conduct some internet searches which turned up Senator Hanson’s tweet.

110    Mr Mandivengerei understood Senator Hanson’s tweet to be telling Senator Faruqi to go back to Pakistan. However, in his view the words “piss off back to Pakistan” are a stronger, more vulgar and unkind way of saying “go back” and they convey a higher degree of anger, exasperation or disgust. He felt offended, insulted and intimidated by the tweet.

111    Mr Mandivengerei said that he felt offended and insulted because he was reminded of previous incidents when he had been told to “go back to where you came from” by people in Australia. Further, he said that the fact that the views expressed in the tweet were expressed by one Australian Senator to another added to the overall offence and insult he experienced as a result of the tweet. He felt that those views must also be held by a broader section of Australian society, as represented by Senator Hanson.

112    Mr Mandivengerei said that he felt intimidated by the tweet because it caused him to realise that the racism and discrimination that he previously experienced can happen at all levels within Australia and can happen to people who hold high positions. He felt silenced by the tweet, and that Senator Hanson had normalised the views expressed in the tweet.

113    Mr Mandivengerei gave evidence of his experiences of racism, particularly in the workplace. They included his work colleagues giving him a nickname based on a character from a 1975 movie who was black and had abnormally large genitals. His complaint about his colleagues using that nickname for him was dismissed by his manager on the basis that “giving a nickname to a person is part of Australian culture and is a sign of mateship.” Racist incidents suffered by him have caused him to feel scared and intimidated, including at times feeling physically unsafe and fearful that he would be subjected to racial violence. He has felt hopeless and powerless because when he has tried to raise complaints they were not taken seriously and nothing was done.

Swikriti Kattel

114    Swikriti Kattel was born in Nepal in 1997 and identifies as a person of colour. She immigrated to Australia in 2015 and currently works as a management consultant.

115    Ms Kattel saw Senator Hanson’s tweet on the day that it was published on Twitter. She understood the words “piss off back to Pakistan” as a variation of the “go back to where you came from” rhetoric. She was reminded by the tweet that such harmful rhetoric is still prevalent in Australia. She interpreted the choice of words as being more hateful and more disrespectful than saying “go back to where you came from” because of the harshness of the language in the phrase “piss off.”

116    Ms Kattel said that she felt offended by the tweet, in particular because someone in the position of a Senator had expressed such views publicly and garnered support from other Australians without appearing to be concerned about the consequences. She felt that the tweet expressed the view that Senator Faruqi was unable to express her opinion about controversial issues because of her ethnicity despite the contributions that she has made to Australia and the fact that she is an elected official.

117    The tweet caused Ms Kattel to feel that no matter what she did for the Australian community or how much she contributed, her contributions would have a reduced impact and would always be less respected; she would be likely to be treated as a second-class citizen because she is an immigrant. The tweet made her feel angry and defeated because it brought back memories of previous experiences of racism since moving to Australia.

118    Ms Kattel gave evidence of her experiences of racism. They include incidents when she was working in a McDonald’s in Perth as a student and she was told things by customers such as “hop on a camel and go back to where you come from” and “you’re stealing jobs from Australians.” Ms Kattel’s experiences of racism have made her conscious about how she appeared and dressed and what she said and how she said it in order to avoid it being thought that she did not belong or fit in Australia. She has been made to feel self-conscious and anxious, as well as alone and depressed.

Expert witnesses

119    Senator Faruqi relies on the evidence of three expert witnesses.

Professor Yin Carl Paradies

120    Professor Paradies holds the Chair in Race Relations in the Faculty of Arts and Education at Deakin University. He has held that position since March 2014. Before that he worked in various positions, including as a Research Officer at the Australian Bureau of Statistics, a Research Fellow at the Menzies School of Health Research and a Senior Research Fellow at the University of Melbourne. He has a PhD in social epidemiology from the University of Melbourne. Professor Paradies conducts research on the health, social and economic effects of racism as well as anti-racism theory, policy and practice across diverse settings, including online, in workplaces, schools, universities, housing, the arts, sports and health.

121    Professor Paradies says that based on a large and consistent body of existing literature, it is clear that racism can result in both acute and chronic emotional and physiological 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.

122    At the individual level, racism can cause immediate sequelae such as shock, denial, anger, rage, frustration, fear, anxiety, guilt, shame, sadness, suppression, distress, and so on.

123    In the medium to long-term at a population level, racism has been linked to a range of mental and physical health outcomes, including anxiety, depression, suicidality, high blood pressure, cardiovascular disease, diabetes, genetic damage, inflammation, poor immune functioning, and so on.

124    Racism is also a social determinant of health that shapes people’s environments, resources and opportunities, driving diverse pathways leading to ill-health. Racism impacts jobs and careers, education, formal and informal networks, transport, recreation, housing and access to healthcare.

125    Racism can directly affect the body through activating the stress response, resulting in short, medium and long-term biological changes. Through mechanisms such as epigenetic changes, exposure to racism in one generation might propagate adverse health effects to subsequent generations. For example, a recent study found that in models adjusting for covariates, including socio-economic status and health status, Māori mothers who experienced a racist physical attack during pregnancy had children who, at 4.5 years of age, had significantly shorter telomere length than children of Māori mothers who did not report a racist physical attack during pregnancy. Telomeres are structures made from DNA sequences and proteins found at the ends of chromosomes required for cell division. They cap and protect the end of chromosomes.

126    Racism is perceived as, and often is, a threat which activates stress response pathways. Being exposed to racism regularly over the course of one’s life can lead to chronic activation of an energy-consuming emergency response that results in physiological wear and tear as well as dysregulation at the cellular level. It can lead to poor self-worth, self-efficacy and self-esteem.

127    Professor Paradies gave evidence that Senator Hanson’s tweet is a common form of racism which can be described as “go back to where you came from.” A 2011 study surveyed 580 culturally and linguistically diverse (CALD) Victorian women from four local areas in Victoria, including both rural and urban communities. They were asked, amongst other questions, whether someone had suggested to them that “you do not belong in Australia, that you should ‘go home’ or ‘get out’ and so on.” Among the 35.2% (n=204) of Muslim women participants, 50% (compared to 36.4% of non-Muslim women) reported being told that they do not belong, and that they should “go home” or “get out.” Adjusting for local government area, education, age, country of birth and duration of residence in Australia, Muslim women had 1.61 times the odds of being told that they do not belong in Australia and should go back to their country, compared to non-Muslim women. After experiencing this form of racism, 33.8% of Muslim women who were surveyed (compared to 24.2% of non-Muslim women) were above the threshold for high or very high psychological distress.

128    The survey showed that even Indigenous Australians are often subject to that form of racism. In a survey among 755 Aboriginal Australians in communities across Victoria in 2011, two thirds of participants reported being told that they do not belong or that they should “go home” or “get out.”

129    Professor Paradies explained that vicarious racism, also known as secondary racism or second-hand racism, refers to a form of racism experienced by individuals who are not directly targeted but, instead, witness, learn of after-the-fact, or indirectly encounter racism directed at others. Vicarious racism has been associated with anxiety, depression, stress, trauma symptoms and other socioemotional and mental health outcomes.

130    Professor Paradies was instructed that the relevant “Group Attributes” were: persons of colour, migrants to Australia, persons with migrant heritage born in Australia, persons who by virtue of their appearance have been incorrectly identified as migrants, Muslim people, persons with visible signs or expressions of religion, persons who have been told to “go back to where you came from” or variations of that phrase due to their race, colour national or ethnic origin, and persons who have experienced racism. He said that a person who shared one or some of the Group Attributes and read Senator Hanson’s tweet is likely to be negatively impacted via vicarious racism, with one or more of the immediate sequelae of racism likely to ensue, viz. shock, denial, anger, rage, frustration, fear, anxiety, guilt, shame, sadness, suppression, distress, and so on.

131    That opinion of Professor Paradies was challenged in cross-examination. Professor Paradies explained that Senator Hanson’s tweet is an example of “a fairly strong form of racism – it’s exclusionary, and it’s very much about who belongs and who doesn’t belong.” For that reason, he said that the tweet would be likely to have a negative impact on people who had experienced a similar thing themselves.

132    He explained that the extent to which they would be negatively impacted would depend on a number of factors such as their previous experiences of racism, especially this form of “go back to where you came from” racism, the potential for and history of exclusion from public life to racism of this kind, and other aspects of their life situation including their overall and racism-related resilience.

133    Professor Paradies was asked whether the impact experienced by the person would likely be exacerbated when the publisher of the phrase “go back to where you came from” is a colleague, a person with a significant public profile or an elected public official. Professor Paradies cited a study which found that interpersonal discrimination (ie negative behaviours that occur in everyday workplace social interactions) was at least equally harmful, and in many cases more harmful, than formal discrimination (ie decisions such as hiring, promotion or compensation).

134    Professor Paradies explained that racism is a function of power plus prejudice – people with significant public profiles have considerable power through the importance attached to fame in modern societies. Similarly, elected public officials also occupy positions of considerable power in representative democracies. Racism from those in 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, ostracisation, disadvantage, deprivation, etc, both directly from the powerful perpetrator themselves and, more importantly, from the authorising effect of such racism through its influence on the general public. Among the general public there will be those who feel empowered to emulate, model and imitate such racism.

135    In cross-examination, Professor Paradies accepted that it is possible for there to be racism to or against white people, or on the basis of being of British descent (T96:35). He did not accept that criticising British colonialism could amount to racism against people of British descent (T97:13) and explained that there is a difference between criticising or critiquing societal institutions or societal processes, particularly those also engaged in by other nations, and making a critique of the people within the society (T120:5-14). In re-examination he explained that power within society is a significant moderator in relation to racism and its effects. Studies have shown that where there is discrimination directed against people on account of being white, the negative effects of such discrimination are significantly less than the effects of discrimination felt by other ethnic groups. Essentially, racism experienced by people who are white has a weaker or “qualitatively different” association with negative health outcomes than for people who are not white (T119:16-24).

136    Professor Paradies explained that, perhaps paradoxically, what is referred to as “white fragility” has been observed. There are cases where white people who experience discrimination can be particularly perturbed by the experience because they do not have much history or experience of being subject to such treatment (T119:34-42).

137    Professor Paradies concluded that the impact experienced, upon reading Senator Hanson’s tweet, by a person who shared any or some of the Group Attributes would likely be exacerbated when the publisher is a colleague, a person with a significant public profile or an elected public official. He said that the harms outlined at [36] of the concise statement are consistent with what he would expect a person who shares any or some of the Group Attributes to suffer after becoming aware of Senator Hanson’s tweet. That harm is described as:

(1)    suffering offence, insult, humiliation and intimidation;

(2)    psychological distress, mental ill-health, fear including fear of imminent physical attack and hypervigilance including to the extent of insomnia and lack of enjoyment of home and private life; and

(3)    experiencing inhibition and self-censorship in personal and professional life, having feelings of being silent, having feelings of illegitimacy or invalidity of their views, opinions, experiences and expertise, being caused to second guess and “tone police” their responses and reactions to situations, having feelings of isolation and being stripped of a sense of belonging, having feelings of displacement, marginalisation and ostracization, and suffering a reduction in the enjoyment of their human rights.

138    In closing submissions, the only challenge to Professor Paradies evidence was to his conclusions, as probed in cross-examination, that Senator’s Hanson’s tweet would be likely to cause the results that he identified. That was on the basis that the assessment of any likely response is context and fact specific, and that it cannot therefore be said that a particular response was likely for a group of people as a group. Professor Paradies’ evidence cited on behalf of Senator Hanson in support of that submission is this (T100:24-30):

MS CHRYSANTHOU: And you agree, don’t you, that, depending on the context and the severity of the racism in question and perhaps other moderating factors, there is not some generalised study that finds that racism as a whole, in all forms, will give rise to each of these adverse health reactions? --- No. No. The impacts of racism are contextual to the setting, to expectations, to previous experiences, to aspects and characteristics of the person who experiences racism and also characteristics of perpetrators and even witnesses and bystanders in the setting where racism has occurred.

139    That answer does not detract from the force of Professor Paradies’ evidence. The individualised characteristics of persons exposed to racism will have a bearing on whether they are more or less susceptible to the indicated harms. That is not to say, however, that Professor Paradies’ evidence specific to the susceptibility of persons who possess one or more of the Group Attributes to harm from exposure to the content of Senator Hanson’s tweet should be discounted. Such Group Attributes form an indelible part of the context to which persons respond to racism. Overall, I consider that he was unshaken in cross-examination. I accept his evidence.

Professor Katherine Jane Reynolds

140    Professor Reynolds has been Professor of Psychology and Learning at the Faculty of Education, University of Melbourne, since 2022. Prior to that, she was an Associate Professor and then Professor of Psychology at the ANU Department of Psychology where she served as Associate Director (2014-2017). She is a leading expert in the areas of group processes (leadership, influence, norms) and intergroup relations (stereotyping, prejudice, conflict, cohesion) from a social identity perspective. She was awarded a PhD in social psychology by ANU in 1997.

141    Professor Reynolds’ evidence includes an overview of social psychology as a sub-discipline of psychology. Much of that is not immediately relevant for present purposes. However, she explained that prejudice, discrimination and racism are topics that have been central to social psychology over the last 80 years. Typically, prejudice is defined as a negative attitude or emotional response towards members of a particular social group based solely on their membership in that group. Prejudice involves making generalised judgments about individuals or groups. It often involves negative stereotypes and feelings directed towards a particular group.

142    Professor Reynolds said that racism occurs when negative prejudice is directed towards an individual or group on the basis of their ethnic, cultural (and often religious) or racial heritage and can be institutional where racism is embedded in the culture, ethos, laws and societal norms. Discrimination concerns behaviour where an individual or group’s actions harm others through exclusion, negative treatment, violence, or inequity in opportunities.

143    Professor Reynolds summarised the opinions presented in her report as follows. A person who attributes their own personal negative treatment or that of their group to prejudice (racism) is likely to experience significantly poor physical and mental health. 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 (those who share a social identity).

144    Professor Reynolds said that there is extensive research that confirms that there is a statistically significant relationship between a person’s experience of prejudice and their negative mental health and physical health. The experiences of feeling devalued, excluded and rejected from the majority group can likely result in lower self-esteem, lower general life satisfaction, lower sense of belonging, lower self-efficacy/mastery and increased anxiety and depression. Such harms can be experienced “vicariously.”

145    Professor Reynolds expressed the opinion that a person who shares one or more of the Group Attributes (being the same ones on which Professor Paradies was instructed, see [130] above) who read the tweet by Senator Hanson, or was told words to the effect of “go back to where you came from” would be “impacted”, is likely to experience prejudice and racism from the tweet which is associated with significantly poor physical and mental health (T124:36-41). She said that if the tweet is experienced as discriminatory and racist, it is likely that there will be a flow-on effect to poor physical and mental outcomes (T124:19-25).

146    Professor Reynolds said that there is a strong theoretical case that can be made with regard to the relationship between the racist or discriminatory conduct of public officials and its effect on people, but that there is “less available research” to directly inform her opinion. Nevertheless, building on existing research material, her expert opinion is that the behaviour of public officials, what they say and do, is amplified because they are in positions of power and hold positions of authority and influence. The actions of officials can result in further marginalisation and disengagement from the political process and can lessen the likelihood of national identification and belonging.

147    It is submitted on behalf of Senator Hanson that Professor Reynolds’ evidence is of minimal utility because her opinion about people being “impacted” by Senator Hanson’s tweet was limited to a consideration of “Muslim women in the Australian context.” That, however, is not a fair reading of the evidence. Specifically, Professor Reynolds was asked who the “ingroup” is referred to in paragraph [34] of her report in which she stated that “[m]embers of the ingroup will interpret events in similar ways and will be affected by treatment of individual group members or the group as a whole in similar ways.” Her answer was that “it was characterised in very general terms, in theory, but in this context we are specifically thinking about Muslim women in the Australian context” (T127:41-128:3).

148    It is immediately to be observed that Professor Reynolds stood by the general statement in her paragraph [34], and she did not limit it to being applicable only to Muslim women in the Australian context. There was also no follow-up question to suggest that her conclusions were limited to or based only on a consideration of Muslim women in the Australian context. She explained what she meant by “ingroup” and “outgroup.” People can respond to the world around them as individuals or as group members. When someone sees themselves as part of the group, that is their ingroup – ingroup is used to mean a psychological group that is meaningful to the perceiver (T122:9-37). Outgroup is used with reference to some other group. Thus, ingroup favouritism can lead to favouring one’s own group compared to other outgroups, but individuals may also engage in outgroup derogation which involves negative attitudes or behaviours towards members of other groups.

149    In my assessment, Professor Reynolds’ evidence was unscathed in cross-examination. I accept her evidence.

Associate Professor Jennifer Wingard

150    Professor Wingard is an Associate Professor with tenure in the English Department at the University of Houston, Texas. She has been in that position since 2014. Prior to that, she was Assistant Professor in the same department. She has a PhD in Composition and Cultural Rhetoric from Syracuse University (2008).

151    Professor Wingard’s 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 to understand and shape their lives.

152    Professor Wingard said 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. It has been used to remind immigrants that they do not truly belong. For example, in July 2019 President Donald Trump told four junior Representatives who were critical of his policies to “go back to where they came from.” That sparked a renewed discussion of US immigration policy, but also a backlash against Representatives Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota, Ayanna Pressley of Massachusetts and Rashida Tlaib of Michigan. The phrase has become a palimpsest that carries with it the connotations that it has carried through history.

153    As Professor Wingard explained, “Go back to where you came from” is a phrase that carries with it historical anti-immigrant and nativist beliefs. It is so ubiquitous across history, it merely needs to be uttered and people understand that the recipient is being flagged as not belonging, either because there is no room and/or resources for them because their beliefs do not align with those of the receiving country’s citizens. Professor Wingard traces the sentiment expressed by the phrase in Australia back to the “White Australia Policy” reflected in Australia’s Immigration Restriction Act 1901 (Cth). The phrase is closely associated with the message that even when an immigrant is deemed acceptable, they are supposed to feel lucky to have a spot in the nation state. The spectre of the dangerous immigrant and the consequences of that title, being non-acceptance and/or deportation, are always looming.

154    Professor Wingard observed those sentiments in Senator Hanson’s tweet. Within the tweet, Senator Hanson shifts Senator Faruqi’s history from one of a lawful non-citizen who has been granted Australian citizenship to that of an unlawful citizen by not only telling her to “piss off back to Pakistan” but by pointing out how her comments on the death of the Queen make her an ungrateful immigrant, rather than an acceptable one. The tweet implies that Senator Faruqi was “gifted” Australian citizenship, has enjoyed all the nation state has had to offer, but is now ungrateful and should therefore “go back to where she came from.”

155    Professor Wingard was not required for cross-examination. I accept her evidence.

Andrea-Marie Farrugia

156    Ms Farrugia is a solicitor at Marque Lawyers, Senator Faruqi’s solicitors. She affirmed two affidavits. The first sets out the details of internet research done by her and others acting on her instructions to collate evidence of historical statements made by Senator Hanson that are possibly relevant to the issues in the case, more particularly the para (b) element. The product of that research was annexed to a further amended notice of intention to adduce tendency evidence (dated 12 March 2024) under r 30.31 of the Federal Court Rules 2011 (Cth). The second affidavit does the same in respect of a second notice of intention to adduce tendency evidence (dated on 25 April 2024).

157    Ms Farrugia was not required for cross-examination. I accept her evidence. I will deal with the tendency evidence when considering whether the para (b) element is established.

Lauren Rae Gasparini

158    Ms Gasparini is also a solicitor at Marque Lawyers. She affirmed an affidavit after the hearing in support of an application to reopen Senator Faruqi’s case for the purpose of adducing further evidence relevant to whether Senator Hanson knew at the time that she published her tweet that Senator Faruqi is Muslim. I will deal with that point of contested fact in due course. For the present, the following can be noted.

159    First, on 13 May 2024, I granted leave to Senator Faruqi to open her case for the purpose of tendering the affidavit of Ms Gasparini. That order was by consent. I also made orders for the parties to file and serve further submissions dealing with the significance or otherwise of that evidence, which they did.

160    Secondly, Ms Gasparini’s affidavit sets out the details of internet research undertaken by her, the product of which is annexed to the affidavit. It essentially covers evidence in the public domain of Senator Faruqi being Muslim in order to support the submission that Senator Hanson must have known, at the time that she published the tweet, that Senator Faruqi is Muslim.

161    Ms Gasparini was not required for cross-examination. I accept her evidence.

Senator Hanson’s evidence

Senator Hanson’s affidavit evidence

162    In the section, I summarise Senator Hanson’s affidavit evidence.

163    Senator Hanson has a long history in Australian public life. She was elected as a councillor to the Ipswich City Council, Queensland in 1994. In 1996 she was elected as an independent Member of Parliament for Oxley (Brisbane). In 1997 she was a founder of the One Nation Party. Between 1998 and 2015 she was a candidate in various Federal and State elections. In 2016 she was elected Senator for Queensland, and then in May 2022 she was elected to a six-year term as Senator for Queensland.

164    Senator Hanson was born into a working-class family. When she was only 12, she started working in her parents’ shop where she mixed with ordinary Australians of various ethnic backgrounds. She stopped attending school at the age of 15, got married at 16 and had her first child at 17 years of age. She has four children.

165    For a period, Senator Hanson owned and ran a fish and chips business. She says that during that time she spoke to Australians of many different backgrounds, ethnicities and nationalities.

166    She says that after being released from 11 weeks in prison in 2003, having been acquitted on appeal, she went home and noticed that the Australian flag at her house was tattered. She immediately replaced it with a new Australian flag because she was “so proud to be an Australian.”

167    Senator Hanson says that she was emotionally distraught on learning of the death of the Queen on the morning of 9 September 2022. The Queen was the only monarch of Australia during her lifetime. She saw the Queen as a sign of constancy. I accept that Senator Hanson loved and respected the Queen as Australia’s head of state. There is no suggestion in the evidence that Senator Hanson knew the Queen personally or had had any actual interaction with her.

168    Senator Hanson says that her staff rang her on the morning of the Queen’s death and told her about Senator Faruqi’s tweet. She was “disgusted” with Senator Faruqi’s tweet. She said:

I could not believe that Senator Faruqi would use the hours after a woman’s death to say such terrible things about her. Many people across the world were still coming to grips with losing the Queen. But at a time of international and national mourning, Senator Faruqi did not even have the respect to wait a day before viciously insulting her. Even if Senator Faruqi didn’t like the Queen, she couldn’t even respect the fact that many Australians did.

169    Senator Hanson says that she was also disgusted with what she considered to be Senator Faruqi’s hypocrisy. She identified two aspects to that hypocrisy. The first is that Senator Faruqi as a senator swore or affirmed that she would be faithful and bear true allegiance to the Queen yet in her tweet she described the Queen as the “leader of a racist empire built on stolen lives, land and wealth of colonised peoples.” The second is that Senator Faruqi has “benefitted enormously” from her position in this “racist empire”, including in taxpayer funded positions, yet she is critical of Australia.

170    Senator Hanson said she was also disgusted with Senator Faruqi’s tweet because she believed that much of it was false, misleading or insincere. In that regard she identified three features.

171    First, she said that she considered Senator Faruqi to be insincere by offering “Condolences to those who knew the Queen” and then she “viciously insults the dead person.”

172    Secondly, for the same reason she says that it was insincere of Senator Faruqi to say that she cannot mourn “the leader of a racist empire” etc. That seems to be the same point, which is to say that Senator Hanson regarded the statement of condolences to those who knew the Queen to be insincere because Senator Faruqi then went on to describe the Queen as “the leader of a racist empire” which Senator Hanson regards as a “vicious” insult to the Queen.

173    Thirdly, Senator Hanson says that Senator Faruqi’s statement of being reminded of the urgency of “Treaty with First Nations, justice & reparations for British colonies & becoming a republic” “makes no sense” because the death of the Queen is not a reminder of those things and has nothing to do with them.

174    Senator Hanson dictated her tweet in response to Senator Faruqi’s tweet to a member of her staff to publish on Twitter. She says that she wrote it:

because as an elected senator:

(a)     I wanted to respond to the hypocritical, false, misleading and insincere Faruqi Tweet;

(b)     I wanted to stand up for the values of many of my constituents and many people across Australia; and

(c)     I wanted to stand up for an institution that Senator Faruqi had decided to attack.

175    Senator Hanson also said that the people she represents, and whose thoughts she wished to convey in the tweet, hold two attitudes in particular. First, they love Australia and saw the Queen as part of the Australian character. Secondly, they hate a lack of self-awareness in politicians and “they would be outraged (like I was) when a politician like Senator Faruqi, with her high paying job and multiple properties, was complaining about a racist empire built on stolen wealth.”

176    Senator Hanson said that she chose the words in her tweet for the following reasons (as written):

(a)     Your attitude appalls and disgusts me: I was appalled and disgusted by Senator Faruqi’s attitude for all of the reasons I have given above.

(b)     When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in parliament: I wanted to make the point that Senator Faruqi had received enormous advantages of the “racist empire” she was now criticising, for the reasons given above.

(c)     “It’s clear you’re not happy, so pack your bags and piss off back to Pakistan”: Contrary to what Senator Faruqi suggests, I was not saying “go back to where you came from” because of her racial characteristics. There is nothing about Senator Faruqi’s race, colour or origin that means she should not be in Australia – it was her attitude that was the problem – her attitude to towards Australia and Australians.

What I was saying was if she thought Australia was such a terrible place (because she made a public statement that it was a racist empire built on stolen lives, land and wealth of colonised peoples), then she should go somewhere else. I said the words “back to Pakistan” because that’s where she happened to be from. If she were from the UK, I would have said “piss off back to the UK”. If she were from New Zealand, I would have said “piss off back to New Zealand”. If she were born in Australia, I would have said “piss off somewhere else” or chosen a country that I thought fit what she was saying and said “piss off” there.

I believed that it didn’t matter whether a person saying disgraceful things about Australia was from here or not. I believed that whether you were lucky enough to be born here or lucky enough to be able to move your life here, you should be loyal to and grateful for Australia. I believed that Australia is a beautiful, prosperous and successful country. I did not believe that it was part of a racist empire. My belief was that if you – a migrant or someone born here – are not happy in this country, you should go and find a country that suits you.

177    Senator Hanson said that she believed that what she said in her tweet was true and that it was an honest expression of her beliefs. She also said that she thought that Senator Faruqi would “take my criticism on the chin.”

178    Senator Hanson said that she considered the death of the Queen to be a matter of public interest, and Senator Faruqi’s tweet and views about the matter to also be a matter of public interest.

Cross-examination and credit

179    I have considerable doubt about whether Senator Hanson gave the wording of her tweet the thought that she said that she did in her affidavit. That is because in cross-examination she said that she immediately dictated the tweet to her staff on seeing Senator Faruqi’s tweet. She was feeling distraught, disgusted and angry. She did not get a draft back from her staff, consider the words or weigh them. She just dictated the tweet and sent it. (T156:20-43.) I will return to this when I consider whether the para (b) requirements are established.

180    Senator Hanson accepted that telling Senator Faruqi to “piss of back to Pakistan” was another way of telling her to go back to where she came from (T158:33).

181    Senator Hanson was an argumentative witness who often did not answer the question put to her and did not accept obvious truths. The following are some examples that support that assessment.

182    Senator Hanson was played a recording of her having said that she would not sell her house to a Muslim. She was asked whether she had heard herself say that, to which she argumentatively replied that it was irrelevant because she had not sold her house – clearly the issue at stake was not what she had done but what she had said. She ultimately accepted that she had said it, but she would not say whether she had meant it. (See T137:43-138:30.)

183    Senator Hanson was played a recording of her saying that Muslims will “blend into a society until the numbers grow and then they will actually then impose their will on the people, or get hold of governments. And this is what their tactic is.” She accepted that she believed what she said at the time that she said it, but she said that she did not know whether she still believed it. That is an evasive answer. Later she accepted that she still held that belief. (See T143:17-29; T145:9-20.)

184    Senator Hanson was played a recording in which she had sought to justify a blanket ban on Muslim immigration with reference to the internment “in the 1950s” (sic) of Germans and Japanese in Australia because they could not be trusted as to where their loyalties lay. When pressed on whether she considered her own analogy to be apt, Senator Hanson did not accept the analogy and said that the circumstances were completely different, yet she did not disavow a blanket Muslim immigration ban. She repeatedly deflected by saying that such a policy was not in her party’s policy booklet, but accepted that such a ban was her own personal opinion and then later disagreed with the proposition that she genuinely believed that Muslim immigration should never have been allowed. She also sought to distance herself from such a policy, which she was shown to have publicly supported on numerous occasions, by saying that she had not advocated for it in the Parliament. (See T144:45-149:27; T173:19-20.)

185    Senator Hanson repeatedly said that she does not recall previously having said things that she would be expected to recall. For example:

(1)    She said that she could not recall whether she had publicly made the claim that Muslims had been celebrating the 9/11 World Trade Centre attacks in the streets in Australia (T147:20-39).

(2)    She said that she could not recall starting the hashtag #PrayForMuslimBan (T148:24).

(3)    She said that she could not recall making public statements that advocated for a full Muslim ban on immigration, saying that “it’s about fundamentalists, extremists” even though she had not made that qualification in her public statements (T139:6; T149:21-22).

(4)    Despite having been played recordings proving it, she said that she does not know whether she had previously said and believes that there are Muslims infiltrating government in Australia (T150:37-40).

186    It is inherently unbelievable, as stated by Senator Hanson, that her staff had been publishing tweets in her name for years without her having any idea that they were doing so (T163:1-4), and that she did not know that other Twitter users respond to her tweets even though she later said that her staff reported responses to her (T164:18-26).

187    In the end, I was left with the distinct impression that Senator Hanson would say anything that came to mind if she thought that it would suit her at that time; she had little regard to whether what she said was true or false. Her evidence is generally unreliable.

Senator Hanson on race, immigration and Muslims

188    There are two particular factual topics that require detailed consideration. One is whether Senator Hanson has a tendency to say racist, nativist and Islamophobic things which is relevant to whether she posted the tweet in question “because of” the race, colour or national or ethnic origin of Senator Faruqi or a group of people. The other is whether at the time she posted her tweet, Senator Hanson knew that Senator Faruqi is Muslim. That is relevant to the same inquiry. I will address each in turn.

Senator Hanson’s tendency to make racist, nativist and Islamophobic statements

189    Senator Faruqi relies on what she says is Senator Hanson’s long history of making racist statements and espousing racist views. Before turning to the tendency evidence that Senator Faruqi relies on in that regard, it is to be noted that Senator Hanson’s oral evidence in this case includes the following.

190    She said that she believes that “our leaders continued to tell us to be tolerant and embrace the good Muslims. But how should we tell the difference? There is no sign saying good Muslim or bad Muslim” (T143:45-144:9).

191    She said that she believes that Muslims are getting themselves into positions of government – ministerial and bureaucratic positions – and that it concerns her (T145:10-20).

192    She accepted that she had in the past advocated for a Muslim ban on immigration, and that she still believes that there should be such a ban (T145:32-38; T147:3-4).

193    Those matters on their own show Senator Hanson’s hostility to Muslims. Whether that amounts in the circumstances of this case to hostility based on race, colour or ethnic origin is a matter I will return to.

194    I now turn to the tendency evidence.

195    By s 97(1) of the Evidence Act 1995 (Cth), evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the party seeking to adduce the evidence gives reasonable notice in writing of their intention to adduce that evidence. Also, the court must think that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Regulation 6 of the Evidence Regulations 1995 (Cth) sets out requirements for the form of a notice of intention to adduce tendency evidence.

196    Senator Faruqi gave notice of her intention to adduce such evidence. That notice was amended from time to time. Ultimately, the intention is expressed in a further amended notice of intention to adduce tendency evidence dated 12 March 2024 and a second notice of intention to adduce tendency evidence dated 25 April 2024. Attached to the first notice are 85 extracts from publications between 1996 and 9 September 2020 of Senator Hanson’s conduct which is said to demonstrate that she has a tendency to:

(a)     make public statements (or endorse the public statements of other people that have been made) 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 following attributes (Group Attributes).

(i)     Person of colour;

(ii)     Migrant to Australia;

(iii)     Person with migrant heritage, born in Australia;

(iv)     Muslim person;

(v)     Person with visible signs or expressions of religion;

(b)     engage in commentary consistent with the Respondent 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 the Group Attributes.

197    Attached to the second notice is a media statement by Senator Hanson and video footage of her making a statement in an interview, both published in April 2024. The statements are said to demonstrate the same tendencies.

198    The publication extracts are summarised in tables in the tendency notices. With reference to the item numbers in the notices, their content can be categorised as evidencing the following public messages by or attitudes of Senator Hanson (item numbers reference the first notice unless stated otherwise):

(1)    Anti-multiculturalism and anti-diversity, including such statements as “we [ie Australia] are not based on Asian nationality. We are based on Anglo-Celtic European.” (Items 5, 11, 12, 29, 36, 59, 62, 65, 67, 78 and 87.)

(2)    Seeking to popularise particular claims about Aboriginal people, including with regard to Aboriginal cannibalism and that Aboriginal people are not the original human inhabitants of the continent of Australia, as a justification for denying the recognition of Native Title and special measures to attain Aboriginal equality. (Items 7 and 8.)

(3)    Anti-Asian, including the regular repetition (and defence) of her statement that Australia is “swamped by Asians.” (Items 6, 10, 22, 33, 36, 67, 76, 77, 80, 81 and 93.)

(4)    Anti-Native Title, including the false statement that the recognition of Native Title involves giving away 75 or 80% of the land to 2% of the people and referring to Native Title as “a scam perpetrated against non-Aboriginal Australians.” (Items 12 and 14.)

(5)    Perpetuating the notion that there is a campaign to make white people feel guilty – referred to as the “white guilt industry” – and that there is nothing in Australia’s history to feel guilty about. (Items 7, 8, 12, 14 and 83.)

(6)    Making Islamophobic claims, including statements such as “Islam is a disease we need to vaccinate ourselves against”, Islam is “not compatible with our way of life”, “When 9/11 occurred in New York, Muslims were seen dancing and celebrating on the streets of Sydney” and “every terrorist is a Muslim.” (Items 18, 23, 24, 25, 26, 27, 28, 30, 31, 32, 34, 35, 36, 39, 40, 41, 42, 43, 45, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 60, 63, 64, 66, 67, 68, 69, 70 and 72, and items 1 and 2 of the second notice.)

(7)    “Go back to where you came from” in respect of immigrants. (Items 25, 29, 46, 59 and 67.)

(8)    Aboriginal people are unfairly advantaged to the detriment of white people, and people claim the benefits of being Aboriginal when they are not “True Blacks” or not Aboriginal enough. (Items 36, 83, 84, 85, 86 and 92.) (That is in essence the same type of message that was held in Eatock v Bolt [2011] FCA 1103; 197 FCR 261 to be unlawful under s 18C.)

(9)    Other racist statements or categorisations such as referring to “African gangs” (item 71), people being “brindle” (item 73(c)) noting that the Macquarie Dictionary describes “brindle” in such a context as being a derogatory and racist reference to people of mixed ancestry because it is properly used in respect of domestic animals, and stating in relation to Chinese people that “their hygiene is not the standard we are” (item 77). (Senator Hanson also recently described Muslims as “breeding” in a context where “breeding” was derogatory, its use invoking an analogy with animals: T170:7-21; item 2, second tendency notice.)

199    The repeated expression of those views justifies findings, which I hereby make, that Senator Hanson has a tendency to make negative, derogatory, discriminating or hateful statements in relation to, about or against groups of people relevantly identified as persons of colour, migrants to Australia and Muslims, and to do so because of those characteristics.

Senator Hanson’s knowledge that Senator Faruqi is Muslim

200    Nearly 20 transcript pages into her cross-examination, for the first time in the proceeding Senator Hanson said that at the time that she published her tweet she did not know that Senator Faruqi is Muslim. When pressed on it, her argumentative answer was to say “I’ve never gone and asked a woman. I don’t go and ask anyone their religion” when the point clearly arises from Senator Faruqi’s high public profile as a Muslim and not from some possible personal inquiry (T151:36-45). She also said that it had never entered her mind whether or not Senator Faruqi is Muslim (T152:18).

201    The place to start on this issue is the pleadings. The concise statement pleads that Senator Faruqi was offended and insulted by Senator Hanson’s tweet by the insinuation that “as a Muslim, migrant woman of colour” she is less worthy than other Australian citizens. That paragraph of the concise statement is simply denied in Senator Hanson’s concise response. Senator Faruqi also pleads that she contends that in respect of the attributes of race and ethnic origin, the tweet was done including because of her race and ethnic origin, “including because she is Pakistani-born and Muslim.” The concise response admits that Senator Faruqi is making that contention, but denies that it is true. Senator Faruqi also pleads that Senator Hanson has made countless hateful remarks over many years about Asian and Muslim people, “both ethno-religious groups to which the Applicant belongs”, which is merely denied in the concise response.

202    It was thus clear from the pleaded case that part of Senator Faruqi’s claim is that Senator Hanson’s tweet affected her as a Muslim and that it was published by Senator Hanson at least in part because Senator Faruqi is Muslim. There were simply bare denials of the relevant allegations. It was never pleaded that Senator Hanson did not know that Senator Faruqi was Muslim and could therefore not have published the tweet because Senator Faruqi is Muslim. Had Senator Hanson not known that Senator Faruqi is Muslim, that would have been an obvious defence to plead to that aspect of the claim.

203    Senator Faruqi’s evidence in the form of an affidavit was filed and served on 3 October 2023. The fifth paragraph of the affidavit has only three words, “I am Muslim” – they could not be missed on even a superficial reading. The affidavit is thereafter replete with references to Senator Faruqi’s Muslim identity, including that she was the first Muslim woman to be a member of any Australian Parliament and that she was the first female Muslim Senator in Australian history. She also recounts examples of racism that she faces as a Muslim in politics in Australia. Her affidavit links her identity as a Muslim to her racial and ethnic origin.

204    Senator Hanson accepted that she understood that the purpose of her affidavit was to respond to the matters that had been raised in the case (T152:1-2). However, her affidavit says nothing about not knowing that Senator Faruqi is Muslim, even in canvassing in detail why she had published the tweet. That detail included saying that she did not say in her tweet “go back to where you came from” because of Senator Faruqi’s racial characteristics, and that there is nothing about Senator Faruqi’s race, colour or origin that meant that she should not be in Australia.

205    If Senator Hanson indeed did not know at the time that she published her tweet that Senator Faruqi was Muslim, that would be a complete answer to that part of the claim that the tweet was published because Senator Faruqi is Muslim. Senator Hanson was clearly put on notice as to that aspect of Senator Faruqi’s claim, but she did not answer it in the most obvious way available to her, assuming her claim in evidence about her lack of knowledge about Senator Faruqi being Muslim is true.

206    In the circumstances, it is not credible that Senator Hanson did not know at the time of the tweet that Senator Faruqi was Muslim. I reject that evidence on that basis alone.

207    However, there are additional grounds to reject that evidence when other factors are also considered. In her affidavit, Senator Hanson said that since Senator Faruqi became an Australian Senator she has been aware of Senator Faruqi’s Twitter account and has followed her tweets. Senator Hanson said that as at September 2022, she “was familiar with the sort of posts that Senator Faruqi often made.” Senator Hanson also said that prior to the publication of Senator Faruqi’s tweet she knew that Senator Faruqi “had frequently made inflammatory and provocative statements about her beliefs.”

208    The evidence of Ms Gasparini shows that between at least 22 September 2018 and 9 September 2022 (being the date of Senator Hanson’s tweet) the tweet “pinned” to the top of Senator Faruqi’s Twitter profile (ie the first tweet that would be seen on visiting the profile and therefore enjoying particular prominence) stated the following immediately under Senator Faruqi’s name and Twitter handle (as written):

I’m a woman. I’m a migrant. I’m muslim. I’m a mother.

I’m Mehreen Faruqi. This is my story.

209    The pinned tweet appears like this:

210    On 20 August 2018, Senator Faruqi was sworn in as a Senator. On 21 August 2018, she delivered her maiden speech in the Senate. On 21 August 2018 at 5.01pm, she tweeted parts of the text of her maiden speech in the Senate to her Twitter account in a series of tweets as follows (among others):

Good Evening. Assalamoalikum.

The reality is that my presence in the Senate is an affront for some. They are offended that people of colour, and Muslims, have the audacity to not only exist, but to open our mouths and join the public debate. Some politicians call us cockroaches.

Some, if they had their way, would ban us from making Australia our home. So it is with great pride that I stand here before you unapologetically a brown, Muslim, migrant, feminist woman.

211    Assalamoalikum (including variant spellings) is a well-known and universal Muslim greeting which from the Arabic language translates to mean “peace be upon you.” Also, the reference to people being offended at Muslims is clearly a reference to herself as a Muslim.

212    There are also many occasions before 9 September 2022 in which Senator Faruqi’s tweets have referenced her Muslim identity, including at least one occasion in which Senator Hanson was specifically tagged which would have had the result that that tweet would have been sent directly to Senator Hanson’s Twitter feed.

213    It is possible that Senator Hanson did not see, or have her attention drawn to, the various tweets referred to above, including the pinned tweet. However, in the context of her having said that she followed Senator Faruqi’s Twitter account, that she was familiar with the sort of tweets that Senator Faruqi posted, that she knew that Senator Faruqi frequently made “inflammatory and provocative statements about her beliefs” and that her staff immediately reported Senator Faruqi’s 9 September 2022 tweet to her, it beggars belief that she did not know that Senator Faruqi is Muslim.

214    Scores of media articles were tendered to show that it was widely and regularly reported in the media before 9 September 2022 that Senator Faruqi is Muslim. Some of those articles prominently cover the publication of Senator Faruqi’s autobiography or memoir, Too Migrant, Too Muslim, Too Loud (Allen & Unwin, 2021). Recordings of two podcasts, one with Cory Bernardi and Paul Murray in July 2020 and one with Alan Jones in August 2022, were also tendered. During Senator Hanson’s participation in the podcasts, which is to say in her presence, the other participants referred to Senator Faruqi being Muslim.

215    Again, it is possible that Senator Hanson did not see those media articles or did not hear her podcast co-participants referring to Senator Faruqi as Muslim, but the probabilities are overwhelmingly against that. That is particularly so in the context of Senator Hanson’s recurring focus in her public statements about the dangers to society presented by Muslims entering public life in Australia, and her support for a total ban on Muslim immigration. Senator Hanson has shown a keen concern over a long time about Muslims in public office. She had also been a Senate colleague of Senator Faruqi for more than four years (there are only 76 Senators), and she knew that Senator Faruqi was from Pakistan (she said as much in the tweet). How then could she not have known that one of her Senate colleagues with a loud and proud Muslim identity is Muslim? The answer is that she must have known.

216    It is submitted on behalf of Senator Hanson that the evidence referred to above with regard to the tweets, podcasts and other media identifying Senator Faruqi as Muslim do not establish that on 9 September 2022 Senator Hanson knew that Senator Faruqi is Muslim. That is principally on the basis that it is not established that Senator Hanson read, heard or absorbed the relevant information. Support for that is derived from Senator Hanson’s evidence in cross-examination that she does not have Twitter on her phone or her computer, she does “not really” look at and read what her followers say in tweets, and that she does not follow tweets (T164:12-35). She said that one of her staff had authority to publish tweets in her name, explaining “because I’m a paper girl, okay? Not technology” (T163:22-24).

217    I do not find any of that convincing, particularly in light of what she said in her affidavit about following Senator Faruqi on Twitter and knowing the sorts of tweets she posted about her beliefs. I find that it is overwhelmingly probable that Senator Hanson knew that Senator Faruqi is Muslim and said in cross-examination that she did not know that fact in order to avoid the implication that she published the tweet in question because Senator Faruqi is Muslim. On that basis, I find that on 9 September 2022 Senator Hanson knew that Senator Faruqi was Muslim.

Para (a) – reasonably likely to offend, etc

218    The first inquiry is whether Senator Faruqi’s tweet was likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.

All the circumstances, including the tweet itself

219    The requirement that the assessment be made with reference to “all the circumstances” requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered when assessing whether offence, etc, was reasonably likely: Eatock v Bolt at [257] per Bromberg J. Just what circumstances may be relevant will vary from case to case and will depend on the evidence: Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [47] per Barker J.

220    I accept the submission on behalf of Senator Hanson that the relevant circumstances include the death of the Queen on the day of both tweets, the identities of both respondents as Senators, the content of Senator Faruqi’s tweet to which Senator Hanson’s tweet responded, the medium of the publication of both tweets (ie Twitter which is well-known for harsh and unconsidered comments that readily “go viral” in the sense of being reproduced, spread and republished multiple times) and that Senator Hanson’s tweet was a reply to Senator Faruqi’s tweet which included the latter within it. Another relevant circumstance is that Senator Hanson had a very substantial following on Twitter.

221    A central circumstance is, of course, the offending tweet itself and what it said. It has three central messages. They are all directed to Senator Faruqi’s status as being from somewhere else. The one is that, as an immigrant, Senator Faruqi “took” advantage of Australia – she “took” citizenship, bought several houses and she took a job in the Parliament, yet she has the hypocrisy to be critical. Not only is that the message that was conveyed, but it is also the message that Senator Hanson says that she meant to convey. It is a message that Senator Faruqi is, as an immigrant, a second-class citizen, and that she should be grateful for what she has and keep quiet. It is othering and exclusionary.

222    The second message is that Senator Faruqi should “piss off back to Pakistan.” As accepted by Senator Hanson, that is a variant of the slogan, “go back to where you came from” (T158:33). That slogan is a racist trope with a long history. As Professor Wingard explains, the phrase has become a palimpsest that carries with it the connotations that it has carried (and gathered) through history. It carries with it historical anti-immigrant and nativist beliefs with roots, in Australia, that are traceable to the White Australia Policy. As explained by Professor Paradies, the phrase is a common form of racism. In cross-examination, he described it as a “fairly strong form of racism … very exclusionary, and it’s very much about who belongs and who doesn’t belong” (T112:10-12). The evidence of the autobiographical witnesses gives real-world lived experience credibility to those characterisations.

223    The result is that the tweet carries messages targeting immigrants and people of colour. However, the tweet is also targeted at one person in particular. That is Senator Faruqi. The evidence establishes that she is publicly identified as being a person of colour, an immigrant from Pakistan and Muslim. Her identity as Muslim is inseparable from her identity as an immigrant and a person of colour. Although the tweet does not explicitly target Muslims in Australia, it does so implicitly, both through the reference to Pakistan (ie the Islamic Republic of Pakistan) where 97% of people identify as Muslim and by targeting a prominent Muslim and commanding her to go back to Pakistan. As Colvin J explained in Bharatiya (at [55]), “[t]he lexicon of racist insults is not closed. Many words may take on that character, depending upon matters such as context, tone and allusion to historical events or cultural practices or beliefs.” The tweet thus conveys an anti-Muslim message; it is Islamophobic. I will come to consider in more detail below whether Muslims are a protected group within the RDA’s quartet of “race, colour or national or ethnic origin.”

A person and/or a group of people

224    Turning now to the tweet’s effect, para (a) looks to “the likely effect of the act upon a hypothetical person in the circumstances of the applicant or as a member of the relevant group”: Bharatiya at [17]. This is an objective inquiry: Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] per Drummond J; Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352 at [12]-[13] per Kiefel J; Bropho at [66]; Jones v Scully at [98]-[99]; Clarke at [46]; Bharatiya at [14], [17].

225    The assessment needs to be undertaken by reference to a “person or group of people”: Eatock v Bolt at [243], [246]; Kaplan v Victoria (No 8) [2023] FCA 1092 at [507] per Mortimer CJ. The present case is put in relation to both a person, Senator Faruqi, and a group. Noting the use of the indefinite article in para (a) – “a group” – followed by the definite article in para (b) – “the group” – which indicates that the group in para (b) is the same group as in para (a), this group must be identified in some way with reference to the characteristics listed in para (b), ie race, colour or national or ethnic origin. Identification of the appropriate group or groups is not straightforward.

226    In Creek v Cairns Post (at [13]), Kiefel J described the group with reference to who was likely to be offended, insulted, etc. That was said to be “an Aboriginal mother, or one who cares for children, and who resides in the township of Coen.” In Jones v Toben [2002] FCA 1150; 71 ALD 629 (at [96]), Branson J, also with reference to the group that was likely to be offended, insulted, etc, described the relevant group as “members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability.”

227    In Jones v Scully (at [108]-[109]), Hely J described the group as Jews in Australia, or Australian Jews. That is because the impugned material was directed against Jews and was distributed in Australia.

228    In Eatock v Bolt (at [287]) the group was described as “fair skinned Aboriginal persons.” That was an obvious description because it was the explicit target of the impugned act.

229    In Clarke (at [191]) the group was described as “adult members of the local Aboriginal community, including parents and carers of children.” Justice Barker noted (at [189]-[190]) that there is a danger in describing the group too narrowly because that could lead to the focus of the inquiry becoming the subjective or emotional response of a particular person or particular people, but that there is also a danger in describing it too broadly because an act which might truly be offensive will not be so regarded by a reasonable member, or all reasonable members, of a wider group. The point is illustrated by Hagan in which Drummond J (at [25] and [28]) described the group as “members of the Toowoomba indigenous community.” His Honour found that members of that Indigenous community were not likely to be offended, etc, by the sign “The ES ‘Nigger’ Brown Stand” on a football stadium (referring by nickname to the distinguished local athlete Mr ES Brown), although the applicant and members of his immediate family would be. That was because Mr Brown in his time and thereafter had universally been known by that nickname, including amongst Indigenous people, and the sign had, over some 40 years of display, “long ceased to have any racial connotation, even if it once did have that” (see [13], [27], [41]).

230    The point is also illustrated by Bropho (at [35]) in which the then-Human Rights and Equal Opportunity Commission described the relevant group as “Nyungar or Aboriginal” people but also considered, in the alternative, a broader group of people “not necessarily of Nyoongar or Aboriginal descent.” It was held that the reasonable Nyungar or Aboriginal person would likely have found the impugned cartoon published in a Western Australian newspaper to be offensive, insulting, humiliating or intimidating, but that a reasonable member of the broader group would perhaps not have found it humiliating or intimidating, but only offensive or insulting: Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; 72 ALD 321 at [7] per Nicholson J.

231    In Kaplan, Mortimer CJ (at [509]) described there to be two groups, Jewish students at Brighton Secondary College in the audience to whom the impugned speech was given, and non-Jewish students in the audience. Her Honour held that separate findings should be made about each group.

232    Senator Faruqi’s concise statement pleads that:

[T]he relevant group includes people who have the following attributes:

a.     Persons of colour;

b.     Migrants to Australia;

c.     Persons with migrant heritage, born in Australia;

d.     Persons who by virtue of their appearance have been incorrectly identified as migrants;

e.     Muslim people;

f.     Persons with visible signs or expressions of religion;

g.     Persons who have been told to “go back to where they came from” or variations of that phrase due to their race, colour or national or ethnic origin; and/or

h.     Persons who have experienced racism.

233    As explained above, Senator Hanson’s tweet conveys messages targeting immigrants, people of colour and Muslims. As a result, I consider that the most appropriate groups for consideration are, first, people of colour who are migrants to Australia or who are Australians of relatively recent migrant heritage, and, secondly, Muslims who are people of colour in Australia. Those two groups have combinations of the pleaded characteristics (a), (b), (c) and (e), namely persons of colour, migrants to Australia, persons born in Australia who are of migrant heritage and Muslim people. The inclusion of people who are of relatively recent migrant heritage with migrants recognises that first or second generation Australians are often and easily characterised or treated as immigrants, and also that as a matter of historical fact all Australians descending from those who have arrived after the British settlement of Australia are technically of migrant heritage. This is explained by Professor Paradies (T107:10-21).