Pauline Hanson decries discrimination ruling, maintains "right to have an opinion"

Senator Pauline Hanson is ready to launch her appeal against a discrimination ruling.

On 20 November, Senator Pauline took to Sky News that she is ready to appeal against a discrimination judgment that called her 'racist,' raising over $660,000 in just three weeks.

One 1 November, the One Nation leader was found to have racially discriminated against Greens Senator Mehreen Faruqi, in a tweet telling her to “piss off back to Pakistan” if she was unhappy living in Australia. 

After the death of Queen Elizabeth II, Senator Farqui tweeted “I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples.”

Senator Hanson’s response prompted Senator Faruqi to commence a defamation proceeding before the Federal Court, for an attack against her character and her ethnicity.

Section 18C of the Racial Discrimination Act 1975 (Cth) makes it unlawful to “offend, insult, humiliate or intimidate another person or a group of people” because of the racial or ethnic identity of that group. This is done from an objective standard, rather than subjectively from the perspective of one person.

Since its introduction, section 18C has been very contentious, with much debate and discussion regarding whether this contravenes free speech, or if the bar for breaching it is too low.

Senator Hanson herself voted in favour of changes to section 18C in 2017, when the Turnbull government attempted to replace the terms “offend, insult or humiliate” with the word “harass.”

Despite this, it was found in Creek v Cairns Post Pty Ltd (2001) that to violate section 18C, speech must have “profound and serious effects, not to be likened to mere slights.”

Justice Stewart ruled that the “groups” in this case were “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.” 

His definition of ‘race’ was referred to in paragraph 268 of the judgment. It relies on “a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock.”

This broad definition includes Jews and Sikhs, where ‘ethnicity’ and ‘culture’ are intertwined, as in Common(wealth) Knowledge #63, but there has historically been some disagreement over its applicability to Muslims as a whole, without any other limitation.

In an interview with Sky News’ Chris Kenny on 20 November, Senator Hanson called out a reliance on Senator Faruqi's religion by Justice Steward is not relevant for section 18C.

In her evidence, Senator Faruqi spoke on the adverse impact of Senator Hanson’s tweet, explaining that "it made her feel like she was not accepted and that she did not belong in Australia” and expressed concern that it would “encourage others to join in a chorus of hate.”

While her tweet wasn’t intended to convey anything about her “happiness or unhappiness in Australia,” the racist threats she had received after Senator Hanson’s tweet had made her unhappy.

Ironically, Senator Hanson justified her ‘racist’ tweet by saying that she was telling Senator Faruqi to go home because being ‘here’ wasn’t making her happy.

Senator Faruqi claimed the tweet caused her to be “selective about what she feels she can or should respond to out of fear of the backlash” and referred to racist comments and threats she has experienced since Senator Hanson’s tweet.

Senator Hanson denied that a reference to “colour” was implicit in the tweet. Her issue with Senator Faruqi's tweet was not her 'race' or whether she should be in Australia, but "her attitude towards Australia and Australians,” and she only mentioned Pakistan because it was where Senator Faruqi was born.

Senator Faruqi responded by stating the tweet was a direct reference to Pakistan, “where almost 100 percent of the people look like me.” The court heard testimonies from 9 other individuals, called to the stand by Senator Faruqi. This was important for meeting the objective standard of section 18C.

While giving her evidence, Senator Hanson was “emotionally distraught” at the death of the Queen, and criticised Senator Faruqi for “viciously insulting her” and the institution of the monarchy. Furthermore, Senator Hanson accused Senator Faruqi of hypocrisy, alleging that she “benefited massively” from what she criticised as a “racist empire.”

She alleged further hypocrisy by pointing to a previous tweet from Senator Faruqi telling then Prime Minister Scott Morrison to “just fuck off,” contrary to Senator Faruqi’s view that “there is no place for offensive conduct or comments in day-to-day political discourse.”

In rejecting that claim, Justice Stewart commented on Senator Hanson’s repeated use of racist comments in an attempt to win an argument, contrasting it with “one occasion more than four years earlier …publicly ma[king] an offensive or insulting comment about a political opponent.”

Senator Hanson also attempted to claim she did not know Senator Faruqi was Muslim, declaring during her cross-examination, “I don’t go and ask anyone their religion.” Justice Stewart dismissed this point, referencing, among other things, podcasts Senator Hanson has appeared on, which specifically mentioned Senator Faruqi being Muslim.

Ultimately, Justice Stewart considered Senator Hanson to be an “argumentative witness” and 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.”

Turning to the section 18D exemptions, Senator Hanson argued that her tweet was a ‘fair comment’ on a matter of public interest.

In Eatock v Bolt, Justice Bromberg had held that if a person holds a belief that is not based on “true facts,” and is made with “reckless indifferen[ce] to the truth or falsity of the comment,” then this defence doesn’t apply.

Justice Stewart agreed that it was Senator Hanson’s ‘genuine belief,’ but applied Eatock and concluded that her comment was ‘reckless.’

Writing in The Australian on 19 November, New South Wales Solicitor General Mark Sexton defended Senator Hanson, insisting that “many [Australians] do not want real public debate on political issues,” attacking the judgment.

Section 18D also requires a ‘good faith’ component, about personal belief.

Senator Hanson argued that this was only a ‘subjective’ test; as long as she didn’t have racial hatred towards Pakistani Mulsim immigrants, it was made in good faith.

In reality, the concept of good faith also has an objective standard, specifically from the perspective of a reasonable, conscientious person.

Senator Hanson fell short of that standard, with Justice Stewart stating that “there was no conscientious approach to advancing the exercise of Senator Hanson’s freedom of speech in a way that was designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it.”

With respect to the fair comment defence, Justice Stewart did accept that Senator Hanson was commenting on a matter of public interest and that her tweet was based upon her “genuine belief.”

Nonetheless, Justice Stewart believed the fact that the tweet was “merely an angry ad hominem attack devoid of discernible content (or comment) in response to what Senator Faruqi had said,” meant that it could not be considered a fair comment, as “there is nothing in Senator Hanson’s tweet that is responsive to the content of Senator Faruqi’s tweet.”

In Eatock v Bolt, Justice Bromberg had held that if a person holds a belief that is not based on “true facts,” and is made with “reckless indifferen[ce] to the truth or falsity of the comment,” then this defence doesn’t apply. Justice Stewart agreed, finding Senator Hanson’s comment to be ‘reckless.’

Finally, Senator Hanson contested the foundation of section 18C, arguing that it was inconsistent with the implied freedom of political communication. Justice Steward conceded that section 18C did burden that constitutional right.

Justice Stewart deemed this to be a reasonable burden, given that any alternative to section 18C that had the same intention “would not impose a significantly lesser burden.”

The “intimidating effect” of Senator Hanson’s tweet left Senator Faruqi “feeling silenced.”

From this and the testimonies from the other witnesses, Justice Stewart believed that allowing Senator Hanson’s tweet may discourage certain groups from participating in political discourse.

The courts have consistently ruled that the purpose of the implied freedom of political communication is to ensure the equality of opportunity to engage in that political discourse.

His Honour recognised that there is the possibility of section 18C ‘going too far’ to unfairly silence someone, but pointed out that section 18D stops that. It wasn’t that there weren’t any defences to section 18C, but rather that Senator Hanson fell short of them.

Senator Hanson was ordered to delete her tweet and pay Senator Faruqi’s costs, as “appropriate relief against the unlawful conduct in question.” It would have been avoided if Senator Hanson had not posted that comment.

Senator Hanson’s appeal against a judgment that she claims is no longer about her, but about the rights of all Australians, will likely become a landmark ruling on on political communication and racial discrimination, particularly in the social media era.