HUMAN RIGHTS – immigrant Senator told to “piss off back to Pakistan” and that she has taken “advantage” of Australia – Racial Discrimination Act 1975 (Cth), s 18C – whether conduct reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the applicant and groups of people – where the groups are identified as 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 – whether conduct was done because of the race, colour or national or ethnic origin of the applicant – whether s 18D(c)(ii) fair comment made reasonably and in good faith exemption made out – appropriateness of the form and extent of the remedies sought under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth)
CONSTITUTIONAL LAW – implied freedom of political communication – whether Pt IIA of the Racial Discrimination Act 1975 (Cth) is constitutionally invalid – whether the prohibition of a certain type of speech by s 18C as subject to the exemptions in s 18D infringes the implied freedom 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) – whether the law effectively burdens the implied freedom – whether the purpose of the law is compatible with the constitutionally prescribed system of representative and responsible government – whether the law is reasonably appropriate and adapted to advance that legitimate purpose in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government – where Pt IIA effectively burdens political speech but only slightly – where the purpose of Pt IIA is to deter and eliminate, and protect members of the public from racial hatred and discrimination – whether the terms of Pt IIA are reasonably appropriate and adapted to advance that legitimate purpose
International Convention on the Elimination of all Forms of Racial Discrimination (1965), opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Faruqi v Hanson [2024] FCA 1264
Case
[2024] FCA 1264
Decision Date
CaseChat Overview and Summary
Senator Samah Faruqi, a Muslim immigrant to Australia and Senator for New South Wales, brought proceedings against Senator Pauline Hanson, a member of the Australian Senate, alleging racial discrimination under the Racial Discrimination Act 1975 (Cth). Senator Faruqi claimed that comments made by Senator Hanson on Twitter, which included a statement telling her to "piss off back to Pakistan" and accusing her of taking "advantage" of Australia, were reasonably likely to offend, insult, humiliate, or intimidate her and other individuals based on their race, colour, or national or ethnic origin. The court was required to determine whether Senator Hanson's conduct was unlawful under section 18C of the Racial Discrimination Act, whether section 18D(c)(ii) provided a fair comment exemption, and whether the remedies sought by Senator Faruqi were appropriate.
The court found that Senator Hanson's conduct was reasonably likely to offend, insult, humiliate, or intimidate Senator Faruqi and others, particularly people of colour who are migrants to Australia or Australians of relatively recent migrant heritage, as well as Muslims who are people of colour in Australia. The court also found that the conduct was done because of the race, colour, or national or ethnic origin of Senator Faruqi. However, the court found that section 18D(c)(ii) did not provide a fair comment exemption, as the comments were not made reasonably and in good faith. The court concluded that Part IIA of the Racial Discrimination Act, which includes section 18C, did not infringe the implied freedom of political communication and was not unconstitutional. The court held that the purpose of the law was to deter and eliminate racial hatred and discrimination, and the terms of Part IIA were reasonably appropriate and adapted to advance that legitimate purpose.
The court ordered Senator Hanson to delete the offending tweet from her Twitter profile, pay Senator Faruqi's costs of the proceeding, and granted the parties liberty to apply for a variation of the costs order within 14 days of the orders being made.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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 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 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. 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. 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. 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. 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. 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. 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. 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.
Decision
Reasons for decision
Thirdly, the terms of Pt IIA are not so uncertain or vague as to render them inadequate in their balance, contrary to the submissions on behalf of Senator Hanson. The vagueness and uncertainty to which the joint judgment of Kiefel CJ, Bell and Keane JJ in Brown at [78]-[79] pointed must be understood in the specific statutory context dealt with there: see [78]-[86]. Their Honours drew attention to the fact that, under the impugned legislation, the police had a power to give protestors a direction that would, in practice, bring a protest to an end, and that such directions may be given based on a mistaken (but reasonable) belief about the parameters of a business premises or business access area due to the vagueness of those terms which would serve to stifle political expression further beyond the strict operation of the law. This reasoning has no application to Pt IIA. As was made clear, vagueness or uncertainty is not otherwise some sort of free-floating criterion of validity in Australia, unlike the position in the United States: at [147]-[151].Conclusion In the result, I am not satisfied that Hely J’s conclusion in Jones v Scully is plainly wrong. I agree with his Honour’s conclusion that Pt IIA does not infringe the implied freedom of political communication and is not unconstitutional. REMEDY The parties are agreed that the question of relief in the event of a finding of unlawful conduct under s 18C is governed by s 46PO(4) of the AHRC Act. That provision is in the following terms:(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;(c) an order requiring a respondent to employ or re-employ an applicant;(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section – see section 43 of the Federal Court of Australia Act 1976.Note 2: [omitted] That power to fashion an appropriate remedy, or appropriate remedies, is obviously broad. The power is said to include the various matters set out in paras (a) to (f), from which it is apparent that it is not restricted to those matters: McGlade v Lightfoot [2002] FCA 1457; 124 FCR 106 at [80] per Carr J. Also, it provides for orders contemplated by those paragraphs “or any order to similar effect”, indicating that the paragraphs themselves are not to be restrictively interpreted or applied.