Faruqi v Hanson (evidence rulings)

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.