“Pack your bags and piss off back to Pakistan.”
That’s what Pauline Hanson tweeted at her fellow senator Mehreen Faruqi in 2022, on the day of the queen’s death. Her tweet was a reply to one posted by Faruqi. You can read both of them below to get the full context:
Last week the Federal Court heard Faruqi’s claim that Hanson’s tweet put her in breach of Section 18C of the Racial Discrimination Act. The onus is on Faruqi to prove that the tweet was a public act that was reasonably likely to offend, insult, humiliate or intimidate another person or group, and the act was done because of that person or group’s race, colour or national or ethnic origin.
While much of the criticism of 18C is that the choice of words (especially “offend” and “insult”) set too low a benchmark, the courts have consistently applied a gloss to them — that the offence etc must be “profound and serious”. It’s a high bar.
The complaining also ignores Section 18D, which radically limits the prohibition’s reach; it says that 18C doesn’t apply to anything said or done honestly, reasonably and in good faith, in making a fair comment on a matter of public interest.
Hanson’s defence had two parts. First, she said her tweet didn’t have the effect 18C prescribes or, if it did, then 18D applied because she acted reasonably and in good faith. Secondly, if that all fails, 18C and 18D are invalid laws anyway, because they infringe the constitutional implied freedom of communication on government and political matters.
Both senators were cross-examined at length during the hearing. Faruqi also introduced evidence from three expert witnesses and nine lay witnesses, the latter speaking to their subjective experiences of racism in Australia.
The nub of Faruqi’s case was that the phrase chosen by Hanson is a variation on a thematic form of words that is globally recognised by migrants and people of colour: go back to where you came from.
Faruqi’s argument was that this language carries meaning that goes way beyond its literal definition, a meaning understood immediately by both victims and perpetrators of racist abuse. Its corollary is simple: you do not belong; you do not have the right to complain. Do not bite the hand that feeds you.
Hanson made two key points in response: one was that her attack on Faruqi was unrelated to the latter’s race or any other attribute, but was a fair criticism of what Hanson saw as Faruqi’s hypocrisy in insulting the queen. The other was that, anyway, this was a spat between two senators over a public interest issue, part and parcel of the robust debate that is an essential feature of our democracy.
I’ll leave the case there, since it’s now in the hands of the judge to determine where the correct legal balance lies. It’s not quite over yet, because Faruqi has applied to reopen her evidence to address Hanson’s assertion during cross-examination that, at the time of posting her tweet, she didn’t know Faruqi was a Muslim.
I’ve noticed a couple of interesting features in the media reporting of the case as it has unfolded. Initially I assumed it was just laziness that was causing so many outlets to report it as a defamation case (including the ABC, and Guardian Australia as recently as yesterday), but they’ve continued to do it. Even Crikey fell into the hole this week, publishing a piece by Derryn Hinch in which he made the same mistake. Mortifying.
The Canberra Times published a think piece this week by Crispin Hull under the sub-heading “Valuable court time is being taken up with bizarre defamation cases”, in which Hull lumps the Faruqi case in with the (actual) defamation cases brought by Ben Roberts-Smith and Bruce Lehrmann.
In fairness, Hull does know the difference and can blame it on a subeditor, but his central point is that all these cases (along with Linda Reynolds’ suit against Brittany Higgins) illustrate the same lesson: “that the greater the latitude given to free speech, the less scope there will be for expensive, resource-draining legal bin-fights.”
Aha, I thought, no wonder everyone keeps making the same category error. They are genuinely seeing no qualitative difference between these high-profile defamation debacles and a racial hate speech claim. To them, they are all the same thing.
That is very telling. What these people are buying into, unconsciously I assume, is the ancient notion that speech is all the same and words cannot cause harm more serious than hurt feelings and a bit of reputational damage. They can’t inflict damage that goes beneath the skin, like a knife or a bullet might.
From the perspective of privilege — in this case white privilege, but the same applies in other contexts — that could easily make sense. If you’ve never felt the sting of racist abuse, you might think it’s no different from being defamed.
The difference could not be more profound, however. Othering, whether based on race, gender, sexual identity or disability, inflicts a deep psychic harm that is felt directly and indirectly (for example, through vicarious racism), with intergenerational consequences. The whole point of having laws like 18C is recognition that there are limits to free speech because words don’t just wound; they can destroy.
This case has been fascinating to run, but the tangential experience of observing how its reporting has exposed so much latent ignorance about the mechanics of racism among our supposedly worldly media — that has been really eye-opening.
Disclaimer: Michael Bradley and his firm Marque Lawyers are representing Mehreen Faruqi in her case against Pauline Hanson.
