“Piss off back to Pakistan”: Senator Hanson’s remarks amount to racial discrimination, the Federal Court finds

Faruqi v Hanson [2024] FCA 1264 

Summary
In a landmark ruling, Senator Mehreen Faruqi successfully argued that Senator Pauline Hanson’s social media post violated section 18C of the Racial Discrimination Act 1975 (Cth) (RDA), with the Federal Court finding the remarks amounted to a “racist attack”, unprotected by free speech claims.  

Facts 
On 9 September 2022, following Queen Elizabeth II’s death, Senator Faruqi took to X (formerly Twitter) with the following post:   

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

Senator Pauline Hanson responded with the following tweet: 

“Your attitude appals 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” 

Senator Faruqi made a complaint to the Australian Human Rights Commission regarding Senator Hanson’s tweet. Senator Hanson declined to participate in the Commission’s conciliation process, and the complaint was terminated on this basis, allowing Senator Faruqi to file her claim in the Federal Court.  

Racial Discrimination Act 1975 (Cth) 

Section 18C of the RDA makes it unlawful to publicly engage in conduct that is likely to ‘offend, insult, humiliate or intimidate’ based on race, colour or national or ethnic origin. Senator Faruqi argued that Senator Hanson’s tweet contravened this provision by targeting her as a migrant, person of colour and Muslim.   

Senator Hanson accepted that her post constituted public conduct but denied the remaining requirements of section 18C were met, claiming that the comments were not because of Senator Faruqi’s religion as she had not known Senator Faruqi was a Muslim at the time of the tweet. Senator Hanson also submitted that she would have made the same comments regardless of Senator Faruqi’s origin. 

Freedom of Political Speech 

Senator Hanson also submitted the defence of implied freedom of political communication, that her comments were made in good faith and fell within the realm of “public interest”, being in relation to the Queen’s death.  

Section 18D of the RDA provides exemptions from the offence under section 18C, including that anything said or done reasonably and in good faith when making or publishing a fair comment on any matter of public interest, is not rendered unlawful by section 18C. Senator Hanson also argued that 18C and 18D of the RDA infringe upon freedom of political communication implied in the Constitution and are therefore invalid.  

Decision 

The Court found that Senator Hanson had a tendency to make racist, discriminatory, hateful, derogatory and Islamophobic statements, particularly in relation to persons of colour, migrants to Australia and Muslims. She was found to be an argumentative witness who would say anything which came to mind if she felt it would suit her at the time. 

His Honour rejected Senator Hanson’s claim that she did not know Senator Faruqi was Muslim, stating he found it “overwhelmingly probable” that Senator Hanson did know.  

Justice Stewart held that s 18C of the RDA was satisfied, for the following reasons.  

Likely to offend – s 18C(1)(a) 

“Piss off back to Pakistan” was accepted by Senator Hanson to be a variant of the slogan “go back to where you came from”. Justice Stewart deemed this slogan to be a racist trope that is associated with anti-immigrant connotations, and that Senator Hanson’s tweet was targeted towards migrants in Australia and Muslims who are people of colour in Australia.  

The messaging conveyed by Senator Hanson’s tweet was deemed to infer that immigrants are second-class citizens, less worthy of what Australia has to offer.  

Importantly, Justice Stewart highlighted the aggravating factor that due to Senator Hanson’s political position and large following on X, her offensive messaging was amplified to a greater audience, with the likely effect of condoning or promoting messages of the same nature, or worse.  

Because of race – s 18C(1)(b) 

In relation to whether Senator Hanson’s post was done so because of Senator Faruqi’s race, Justice Stewart found that Senator Hanson’s anti-Muslim rhetoric was directed at Muslims as much because of their race, colour and immigrant status as it was about their religious beliefs. This was supported by Senator Hanson’s tendency to link anti-Muslim comments with anti-Asian rhetoric.  

Defences  

 Fair comment – s 18D(c)(ii) 

While it was accepted that Senator Hanson was addressing a matter of public interest in replying to Senator Faruqi’s tweet and that her comments were an expression of her genuine belief, her response was deemed not to be a fair comment. This was because it was not made in good faith as there was no conscientious approach to advancing the exercise of Senator Hanson’s free speech. Further her comment was not based on fact and instead constituted an attack, offering no meaningful or relevant commentary on Senator Faruqi’s original tweet.  

Implied freedom of political communication  

Senator Hanson argued that s 18C and s 18D are invalid as they are in conflict with freedom of political communication, as implied under the constitution. The Court did not accept this argument and found that there was no burden on freedom of political communication, in particular as these sections of the RDA necessarily regulate racial vilification and discrimination which continue to be significant problems in Australia that cause harm to individuals and communities, and result in silencing of and limiting the rights of migrants in exercising their freedom of political communication. 

Senator Hanson was unsuccessful in her defence of the claim and was ordered to remove her offending tweet and pay Senator Faruqi’s legal costs in the proceeding 

Senator Hanson has since expressed her intention to appeal the Courts ruling.  

Commentary 

Senator Faruqi called the judgment historic, saying that it sent a clear message to racists that they will be held accountable and that hate speech was not free speech. She describes that the judgment was an affirmation for migrants and people of colour who have been told to ‘go back to where they came from’ (of which there are many), that they no longer have to be grateful or keep quiet, saying   

“I will be speaking out more loudly and more strongly than ever before…Today’s judgment is landmark … It is a warning for people like Pauline Hanson, and I do hope it emboldens individuals and communities to assert their right to live free from racism.” 

Senator Faruqi’s lawyer, Michael Bradley noted that the judgment changes the conversation around tolerance for racist discourse and the weaponising of people’s ethnicity or colour against them. The judgment recognises the insidious and damaging nature of ‘coded’ forms of racism which can be just as harmful as overt comments.  

Despite Senator Hanson’s intention to appeal, Bradley noted that nevertheless, victims of Australia’s tradition of comfortable white racism can feel validated, seen and heard. 

The link to the full text of the judgement can be found here.  

Case summary written by Kali Wischmann (Associate) and Angelina Livingstone (Solicitor) at Wotton Kearney.