FEDERAL COURT OF AUSTRALIA
Faruqi v Hanson (evidence rulings) [2024] FCA 225
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Details
- Case
- [2024] FCA 225
- Decision Date
CaseChat Overview and Summary
The case of Faruqi v Hanson involves a dispute between Senator Samah Faruqi and Senator Pauline Hanson, focusing on whether Senator Hanson's tweet, which included the phrase "piss off back to Pakistan", constituted offensive behaviour due to race, colour or national or ethnic origin under the Racial Discrimination Act 1975 (Cth). The Federal Court was tasked with determining the admissibility of various pieces of evidence, including expert reports and autobiographical affidavits, and whether they were constrained by provisions of the Parliamentary Privileges Act 1987 (Cth) and the Evidence Act 1995 (Cth). The court also had to consider the relevance of the evidence to the broader issue of the impact of racism in society and its implications under the Constitution, particularly in relation to the implied freedom of political communication.
The key legal issues included whether the autobiographical affidavits and expert reports could be admitted as evidence, considering the exclusions under section 16(3) of the Parliamentary Privileges Act, and whether they met the criteria for admissibility under the Evidence Act. The court needed to assess the probative value and prejudicial effect of the evidence, particularly regarding hearsay, tendency, opinion, and the potential to establish constitutional facts relevant to the inquiry into the purpose of section 18C of the Racial Discrimination Act. The court further examined whether the evidence of the subjective effect of the impugned conduct on particular people and the expert opinions on rhetoric, social psychology, and social epidemiology were admissible and relevant.
The court held that the autobiographical affidavits were admissible as they did not infringe upon the prohibitions under section 16(3) of the Parliamentary Privileges Act. It found that these affidavits could serve as evidence to establish constitutional facts, particularly the effects of racism and prejudice on individuals in society, which was relevant to the purpose of section 18C of the Racial Discrimination Act. Regarding the expert reports, the court ruled that the objections to the admissibility of Associate Professor Jennifer Wingard's report were dismissed, as it provided relevant insights into the historical and social implications of the language used in Senator Hanson's tweet. However, certain sections of the reports by Professors Reynolds and Paradies were deemed inadmissible as they contained opinions on matters that would not be proved. The court also found that some documents referenced in the applicant’s notice were inadmissible, but objections based on parliamentary privilege could be raised at a later stage.
The court ordered that objections to the admissibility of the autobiographical affidavits and the amended expert report of Associate Professor Wingard were dismissed, with certain exclusions. The objections to the expert reports of Professors Reynolds and Paradies were dismissed with specific inadmissibility of certain paragraphs. Objections to the admissibility of certain documents were also dismissed, except for those specified. The costs of the interlocutory application were reserved.
The key legal issues included whether the autobiographical affidavits and expert reports could be admitted as evidence, considering the exclusions under section 16(3) of the Parliamentary Privileges Act, and whether they met the criteria for admissibility under the Evidence Act. The court needed to assess the probative value and prejudicial effect of the evidence, particularly regarding hearsay, tendency, opinion, and the potential to establish constitutional facts relevant to the inquiry into the purpose of section 18C of the Racial Discrimination Act. The court further examined whether the evidence of the subjective effect of the impugned conduct on particular people and the expert opinions on rhetoric, social psychology, and social epidemiology were admissible and relevant.
The court held that the autobiographical affidavits were admissible as they did not infringe upon the prohibitions under section 16(3) of the Parliamentary Privileges Act. It found that these affidavits could serve as evidence to establish constitutional facts, particularly the effects of racism and prejudice on individuals in society, which was relevant to the purpose of section 18C of the Racial Discrimination Act. Regarding the expert reports, the court ruled that the objections to the admissibility of Associate Professor Jennifer Wingard's report were dismissed, as it provided relevant insights into the historical and social implications of the language used in Senator Hanson's tweet. However, certain sections of the reports by Professors Reynolds and Paradies were deemed inadmissible as they contained opinions on matters that would not be proved. The court also found that some documents referenced in the applicant’s notice were inadmissible, but objections based on parliamentary privilege could be raised at a later stage.
The court ordered that objections to the admissibility of the autobiographical affidavits and the amended expert report of Associate Professor Wingard were dismissed, with certain exclusions. The objections to the expert reports of Professors Reynolds and Paradies were dismissed with specific inadmissibility of certain paragraphs. Objections to the admissibility of certain documents were also dismissed, except for those specified. The costs of the interlocutory application were reserved.
Orders
Orders of the court
1. The objections to the admissibility of the nine autobiographical affidavits are dismissed.
2. Save that:
(a) the references in paragraphs 23 and 25 of the report to the “It’s okay to be white” motion introduced by Senator Hanson in the Senate in 2017 are not admissible, and
(b) objections based on the witness expressing an opinion about Senator Hanson’s state of mind are yet to be specifically identified and ruled on,
the objections to the admissibility of the amended expert report of Associate Professor Wingard are dismissed.
3. Save for paragraphs 41-46 and 33-35 of their respective reports which are inadmissible, the objections to the admissibility of the expert reports of Professors Reynolds and Paradies are dismissed.
4. Save for:
(a) the documents referred to at items 1, 2, 9, 13, 17, 19, 20 and 61 of the schedule thereto, which are inadmissible; and
(b) any objections in reliance on parliamentary privilege which can be raised and ruled on in due course,
the objections to the admissibility of the documents referred to in the applicant’s amended notice of intention to adduce tendency evidence are dismissed.
5. The costs of the interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I therefore conclude that admission into evidence of the affidavit of Ms Sri is not prohibited by s 16(3) of the Parliamentary Privileges Act. Constitutional facts For completeness it should be observed that the autobiographical affidavits may also be admitted as evidence establishing constitutional facts, being the effects of racism and prejudice on individuals in society. That is relevant to the inquiry whether s 18C serves a legitimate purpose – see [9] above. Mr Tran’s position for the Attorney-General is that the autobiographical affidavits could have some relevance to constitutional facts, and the Attorney-General may seek to rely on them at trial if they are admitted, but he does not specifically advocate for their admission.Jennifer Wingard (rhetoric) Senator Hanson challenges Senator Faruqi’s intention to rely on an expert report by Associate Professor Jennifer (Jen) Wingard. Associate Professor Wingard has a PhD in Composition and Cultural Rhetoric from Syracuse University. She is currently an Associate Professor with tenure at the University of Houston where she has taught rhetoric and writing for 15 years. Her areas of research generally focus on political and legal rhetoric, and more specifically on how politicians and news media use repetitive phrases and memes to impact public opinion and voting practices. Her scholarship draws from rhetorical scholars who see language use as more than persuasion and debate, but as central to how people come into understanding and shape their lives. Associate Professor Wingard expresses the opinion that the phrase “go back to where you came from” has stood in for anti-immigrant sentiment in western countries since nation-states began limiting immigration. She draws in particular on the use of that phrase in the United States of America as expressing anti-immigrant sentiment notwithstanding that country’s cultivated image as a “melting pot”. She says that the identified phrase has become a palimpsest that carries with it all connotations that the phrase has carried through history. She says that it is ubiquitous across history and merely needs to be uttered for people to understand that the recipient is being flagged as not belonging. Associate Professor Wingard also addresses the use of the phrase “go back to where you came from” in Australia. She draws on other scholarship to identify that immigrants in Australia have been made to feel never fully equal, always marked and to feel lucky to have a spot in the nation; but the spectre of the dangerous immigrant and the consequences of that title, non-acceptance and/or deportation are always looming. Associate Professor Wingard says that Senator Hanson’s tweet illustrates how immigrants are either acceptable or dangerous in Australian multiculturalism, and that the phrase “piss off back to Pakistan” works as a palimpsest that carries with it the historical meanings of “go back to where you came from”. Associate Professor Wingard also identifies Senator Hanson as having been vocal about the threat that Asian and Muslim immigrants pose to Australia in her public statements over the past three decades. Associate Professor Wingard says that it is the embedded racism of the fantasy of the white nation, which is found in the public statements of Senator Hanson, that makes statements like “go back to where you came from” dangerous for immigrants and citizens of colour. She says that Senator Hanson’s anti-Islam and anti-immigrant rhetoric over the course of her career and her fellowship with other far-right conservative public figures allows her to read the tweet as discriminatory based on Senator Faruqi’s identity as an immigrant and Muslim.
Evidence
Evidence Before The Court
Section 18C is aimed at combatting racism in Australia. I reject the contention that the impact of racism on individuals and society is irrelevant.Survey evidence The letters of instruction to Professors Reynolds and Paradies explained that in June 2023 Senator Faruqi’s legal representatives published a form on the internet which people were invited to complete. Completion of the form was promoted by Senator Faruqi and her solicitors on their social media accounts. The purpose was to collect evidence from the Australian public, including those who share any relevant group attributes with Senator Faruqi, as to the impact and effect of Senator Hanson’s tweet. There were 776 responses to the form. The letters record that from the analysis conducted by the legal representatives the following was identified:(a) 494 participants that responded to the How Does It Make You Feel Form indicated that they identify with one or more of the Group Attributes. Of these:(i) 434 participants indicated that they experienced one or more of “offence,” “insult,” “humiliation” and/or “intimidation” as a result of the Hanson Tweet; and (ii) a further 25 participants indicated that they experienced some other form of negative impact and or emotion as a result of the Hanson Tweet, but did not indicate that they experienced “offence,” “insult,” “humiliation” and/or “intimidation”.(b) 650 participants that responded to the How Does It Make You Feel Form indicated that they experienced one or more of “offence,” “insult,” “humiliation” and/or “intimidation” as a result of the Hanson Tweet. The deponents of the autobiographical affidavits were drawn from the people who responded to the invitation to complete the form. Amongst the many documents that were furnished to Professors Reynolds and Paradies under cover of the letters of instruction were the 776 responses to the form. In relation to those responses, the witnesses were asked what their observations and/or comments were about the impact of Senator Hanson’s tweet on people that share any or some of the relevant group attributes and to what extent the material supports their responses to other questions that they were asked. Ms Taylor confirmed what I had previously been told in a case management hearing, namely that there was no intention of tendering or in any other way relying on the “survey” results. Professor Reynolds addressed the questions directed to her about the responses recorded in the forms at paragraphs 41 to 46 of her report. Professor Paradies included some comments in response to those questions at paragraphs 33 to 35 of his report. Those paragraphs in the two reports are of no utility as they express opinions on matters which will not be proved. They should be struck out. Ms Taylor accepts as much.Section 135 Ms Chrysanthou SC submits that the limited assistance that the expert evidence of Professors Reynolds and Paradies might provide is outweighed by the prejudicial impact it will have on the length of the trial and the unfair prejudice it will visit on Senator Hanson. In particular, Ms Chrysanthou SC refers to the scholarly material provided with Professor Paradies’ report which amounts to 1410 pages. She submits that it is unduly burdensome on Senator Hanson’s lawyers to have to go through that material and prepare cross-examination, and that the cross-examination will have the result that the five days currently set for the trial will be inadequate.
Decision
Reasons for decision
The Explanatory Memorandum (EM) to what became the Parliamentary Privileges Act explained the following in relation to s 16(3)(c):(c) drawing inferences or conclusions to support a criminal or civil action This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day. In relation to all the paragraphs of s 16(3), the EM stated the following:These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person. In Laurance v Katter, Davies JA analysed the EM and the second reading speech (at 203) and concluded that s 16(3)(c) is only enlivened if the evidence, submissions etc “would impeach or question the freedom of proceedings in Parliament” (at 204). Subsequent cases have taken a broader view of the application of s 16(3)(c). In Rann v Olsen, Doyle CJ (with whom Mullighan J agreed) and Perry J expressly rejected Davies JA’s construction of s 16(3) (see [53], [110]-[114] per Doyle CJ and [255] per Perry J, cf [224] per Prior J). Their Honours took the view that Davies JA’s construction resulted in introducing, without warrant, an “unexpressed proviso”, namely that something apparently made unlawful by s 16(3) is not to be rendered unlawful unless, in the opinion of the court in which the matter arises, the apparently prohibited activity in fact impairs the freedom of speech in Parliament of the person whose statements are to be challenged. Both Doyle CJ and Perry J preferred a wider construction of s 16(3), not limited in scope to the operation of Art 9 of the Bill of Rights, although Perry J also endorsed what was said by the Privy Council in Prebble, ie that s 16(3) is an “emphatic re-affirmation of the immunity from scrutiny in courts” (at [254]). However, notwithstanding his Honour’s broad construction of s 16(3), Doyle CJ was prepared to accept that matters “concerning proceedings in parliament” could be “proved simply as matters of fact” without offending s 16(3) so long as the purpose for which the matter is raised is not proscribed by the provision (see [63]-[73]).
Ratio Decidendi
Legal Principle Established
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