FEDERAL COURT OF AUSTRALIA

Faruqi v Hanson [2024] FCA 1264

Summary

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the reasons for judgment and orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

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. Later that day, 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.

In reply to that tweet, Senator Pauline Hanson published the following tweet:

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

In the proceeding, Senator Faruqi claims that Senator Hanson, by posting her tweet, engaged in unlawful offensive behaviour because of Senator Faruqi’s race, colour or national or ethnic origin contrary to s 18C of the Racial Discrimination Act 1975 (Cth). Senator Hanson disputes that her conduct is contrary to s 18C, and says that it is in any event exempted under s 18D as a fair comment made reasonably and in good faith on a matter of public interest. Alternatively, Senator Hanson submits that the provisions which Senator Faruqi’s claim relies on are unconstitutional for infringing the implied freedom of political communication. The claim was brought in the Federal Court after Senator Hanson did not participate in conciliation processes before the Australian Human Rights Commission.

The principal questions before the Court are:

(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, noting that the level of offence must be profound and serious in order to qualify?

(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 (relevantly, Senator Faruqi) or of some or all of the people in the group?

(3)    If both the above questions are answered affirmatively, was the tweet published:

(a)    reasonably and in good faith;

(b)    as an expression of a genuine belief held by Senator Hanson; and

(c)    a fair comment on an event or matter of public interest?

If the answers to the above are that the publication of the tweet by Senator Hanson is unlawful under s 18C, the Court has to decide whether the prohibition of a certain type of speech under s 18C as subject to the exemptions in s 18D impermissibly infringes the implied freedom of political communication in the Constitution.

The Court has found that the offending tweet, in all the circumstances, conveyed three essential and interrelated messages all directed to Senator Faruqi’s status as being from somewhere else.

The first message 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 of Australia. That 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 exclusionary.

The second message is that Senator Faruqi should “piss off back to Pakistan.” That is a variant of the slogan, “go back to where you came from.” The expert evidence establishes that that is a racist trope with a long history. It carries with it historical anti-immigrant and nativist beliefs with roots, in Australia, that are traceable to the White Australia Policy. It is a strong form of racism.

Because the tweet is targeted at one person in particular who is publicly identified as being a person of colour, an immigrant from Pakistan and Muslim, and tells her to “piss off back to Pakistan”, a Muslim country, the third message is anti-Muslim, or Islamophobic.

The relevant groups to consider for the purpose of deciding the likely effect of the messages are, first, people of colour who are migrants to Australia or are Australians of relatively recent migrant heritage, and, secondly, Muslims who are people of colour in Australia.

The Court heard the evidence of expert witnesses on social epidemiology, social psychology and rhetoric on the pernicious effects of racism and other forms of prejudice on individuals and on society. Those effects are felt not only by a person to whom particular conduct is directed, but are also suffered vicariously by others who witness the conduct. In seeking to understand how members of the groups and the targeted person would, objectively, likely understand and react to the conduct, it is necessary to consider it from the perspective of the reasonable member of the group and the reasonable targeted person. The evidence of Senator Faruqi and nine autobiographical witnesses as to their reaction to the tweet and their experience of racism has assisted the Court in understanding that perspective.

Rejecting the argument on behalf of Senator Hanson that the content of Senator Faruqi’s tweet somehow justifies Senator Hanson’s tweet or lessens its relevant effect, the Court has concluded that the tweet was reasonably likely, in all the circumstances, to have been (profoundly and seriously) offensive, insulting, humiliating and intimidating to a significant number of members of the identified groups and to the reasonable targeted person in the position of Senator Faruqi. The reasons for that conclusion include that the racist, nativist and anti-Muslim messages of the tweet were amplified by Senator Hanson’s position as a senator and her large Twitter following and they authorised and empowered others with less power and status to publish the same sort of messages, or worse.

Based on frequent public statements made by Senator Hanson over nearly three decades, the Court has found 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. Also, not accepting her evidence to the contrary, the Court has found that at the time of her tweet Senator Hanson knew that Senator Faruqi was Muslim.

Based, firstly, on the racist and anti-immigrant messages in the tweet, the Court has found that Senator Hanson tweeted in the terms that she did because of the race, colour or national or ethnic origin of Senator Faruqi.

Additionally, based on the anti-Muslim message of the tweet, Senator Faruqi’s identity as Muslim and Senator Hanson’s tendency to make anti-Muslim statements, a cause of her framing the tweet as she did was because of Senator Faruqi being Muslim. On the evidence in this case, which did not include evidence about what it means to be Muslim in Australia or about the history, origins and nature of Islam, the Court has not found that Muslims are a necessarily protected group in Australia within the meaning of the “race, colour or national or ethnic origin of … the people in the group” in s 18C.

However, because Senator Faruqi’s identity as a person of colour, an immigrant and a Muslim are inseparable, and because almost all Muslims in Australia are persons of colour and immigrants (or of relatively recent migrant heritage), Senator Hanson’s conduct because of Senator Faruqi being Muslim was also conduct because of her race, colour or national or ethnic origin.

On the question of whether Senator Hanson’s conduct falls within the fair comment exemption in s 18D, her tweet was an angry personal attack on Senator Faruqi with no discernible content or comment about the issues raised by Senator Faruqi’s tweet, ie colonialism, Treaty with First Nations, reparations and republic. The Court has found that Senator Hanson’s tweet was not reasonable or in good faith, or a fair comment, within the meaning of those terms as established by previous cases.

With regard to the implied freedom of political communication, the Court has found that s 18C (as qualified by s 18D) burdens political speech, but only a narrow range of political speech is capable of being caught by the provisions. That burden is justified because the purpose of the provisions, which is to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination, is compatible with the system of representative and responsible government in the sense that it does not impede the functioning of that system and all that it entails. Also, the provisions are reasonably adapted to advance that legitimate purpose.

The Court thus orders that, within seven days of judgment being delivered, Senator Hanson delete the tweet from her Twitter (now X) profile, and that she pay Senator Faruqi’s costs of the proceeding (subject to any application for variation of the costs order within 14 days).

STEWART J

1 NOVEMBER 2024