By: Georgie Austin, Zoe Burchill and Deniz Coskundag

At a glance

  • The Federal Court of Australia recently found that Senator Pauline Hanson breached s 18C of the Racial Discrimination Act for a post published on social media platform X (formerly Twitter).
  • In 2022, Senator Mehreen Faruqi posted a tweet about the monarchy, in which Senator Hanson replied, with what the Federal Court found to be, a “racist attack.”
  • Senator Hanson’s defence of fair comment and freedom of political speech was rejected by the Court.
  • Senator Hanson was ordered to remove her post from the social media platform.

On 9 September 2022, Senator Mehreen Faruqi published a tweet, following Queen Elizabeth II’s death, which wrote:

“Condolences to those who mourn the Queen. I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonized people.”

She urged for a “Treaty with First nations, justice & repatriations for British colonies & becoming of republic.”

In reply, 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.”

Senator Faruqi made a complaint about Senator Hanson’s tweet to the Australian Human Rights Commission. However, Senator Hanson declined to participate in that process.

Issue

Senator Faruqi initiated proceedings in the Federal Court claiming Senator Hanson breached s 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for engaging in offensive conduct due to Senator Faruqi’s race, colour or national or ethnic origin.

Section 18C of the RDA 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.

Senator Faruqi asserted that Senator’s Hanson’s act was discriminatory because:

  • Senator Hanson published the tweet
  • the publication of the tweet is an act that was done in public
  • she was offended, insulted, humiliated and intimidated by Senator Hanson’s tweet including 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”, and
  • Senator Hanson published the tweet because of Senator Faruqi’s race, colour and ethnic origin

amongst other things.

Senator Hanson admitted that she published the tweet, and that it was done in public, but otherwise denied Senator Faruqi’s claim.

Particularly, Senator Hanson asserted that the publication 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, pursuant to s 18D of the RDA (exemptions from the proscription in s 18C).

Furthermore, she stated that s 18C of the RDA infringed the implied freedom of political communication within the Constitution.

Outcome

In a judgment delivered 1 November 2024, Senator Hanson’s fair comment defence was rejected. Justice Angus Stewart found that, in the circumstances, Senator Hanson’s tweet was not reasonable or in good faith; “there was no rational relationship between what was said and the proclaimed purpose or reasons for the tweet. There was no conscientious approach to advancing the exercise of Senator Hanson’s freedom of speech.”

Justice Stewart ultimately found that Senator Hanson’s tweet was unlawful pursuant to s 18C of the RDA insofar as it was:

  1. reasonably likely in all circumstances that the publication would offend, insult, humiliate and intimidate Senator Faruqi 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, and
  2. done by Senator Hanson because of Senator Faruqi’s race, colour or national or ethnic origin.

His Honour concluded that Senator Hanson’s post was “racist, anti-immigrant and anti-Muslim” and “targets immigrants as being second-class Australians.” His Honour further stated that the effects of the publication were exacerbated by Senator Hanson’s “high public profile and in a position of power with an amplified voice (from her large following on Twitter).”

Senator Hanson was ordered to remove her post from the social media platform and “pin” a tweet to her account recording the declaration of unlawful conduct in the original tweet.

Senator Hanson will have 28 days from the date of this judgment to appeal the decision.