Pauline Hanson’s High Court appeal will put freedom of speech to the test
By Anne Twomey, Professor Emerita in Constitutional Law, University of Sydney ·
This article was originally published by The Conversation. Author: Anne Twomey, Professor Emerita in Constitutional Law, University of Sydney.
Senator Pauline Hanson has persuaded the High Court to hear an appeal against a finding that she breached section 18C of the Racial Discrimination Act 1975 by publishing a tweet about Greens Senator Mehreen Faruqi.
At stake is the constitutional validity of section 18C. The section makes it unlawful for a person to engage in a public act that is reasonably likely to offend, insult, humiliate or intimidate another person or group, if it is done because of their race, colour or national or ethnic origin.
What started the conflict?
When Queen Elizabeth II died in September 2022, Faruqi published a tweet that included the line: “I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised people”.
Hanson tweeted in reply that Faruqi’s tweet appalled and disgusted her. She claimed that when Faruqi immigrated to Australia, she took every advantage of the country, and concluded that: “It’s clear you’re not happy, so pack your bags and piss off back to Pakistan”.
Faruqi made a complaint to the Human Rights Commission that Hanson’s tweet breached section 18C. Hanson declined to participate in a conciliation process.
Faruqi then took the matter to the Federal Court. At first instance, Justice Angus Stewart found Hanson’s conduct in publishing the tweet was unlawful under section 18C and didn’t fall within a defence. He ordered Hanson’s tweet be deleted and that she pay Faruqi’s legal costs.
Hanson then appealed to the full court of the Federal Court. It upheld the lower court’s decision. The High Court has now agreed to hear a final appeal by Hanson. It is likely to be heard early next year.
The issues
The case will raise two issues concerning the constitutional validity of section 18C of the Racial Discrimination Act. The first is whether the Commonwealth had the power to validly enact section 18C. The second is whether 18C breaches the implied freedom of political communication.
While these issues have previously been addressed by lower courts, they have not yet been decided by the High Court. This means the outcome may have broader ramifications for other laws, such as those banning hate groups, restricting protests and banning the use of political slogans.
Legislative power and the external affairs power
The Commonwealth Parliament cannot enact laws on any subject it wants. It can only enact laws that fall within certain powers conferred on it by the Constitution. One of those powers is the external affairs power in section 51(xxix) of the Constitution. It allows the Commonwealth Parliament to enact laws to implement obligations in treaties that Australia has ratified.
The question is whether section 18C, in fact, implements Australia’s treaty obligations in article 20(2) of the International Covenant on Civil and Political Rights or article 4 of the Convention on the Elimination of all Forms of Racial Discrimination.
The essential problem is that 18C covers conduct at the serious level (that is, conduct that humiliates and intimidates), as well as less serious conduct (such as that which offends or insults).
In contrast, the treaty obligations require the prohibition of very serious acts. Article 20(2) provides that any advocacy of racial hatred that incites discrimination, hostility or violence shall be prohibited by law. Article 4 deals with inciting racial discrimination or violence on the basis of race.
In contrast, section 18C doesn’t deal with inciting hatred, hostility, discrimination or violence. It deals instead with how a person targeted on the basis of their race might reasonably feel – not whether others are incited to act.
These treaty provisions were set at a high level of seriousness because they also recognise the importance of freedom of speech. For example, article 4 is subject to the qualification that the parties to the treaty must act with due regard to the principles in the Universal Declaration of Human Rights and the rights set out in article 5, which include freedom of opinion and expression.
The question for the High Court, therefore, is how far a law can drift away from the express terms of a treaty and still be treated as valid because it is implementing the treaty’s obligations. This is especially important when the words of the treaty were chosen carefully to balance otherwise conflicting rights.
The full court of the Federal Court justified the lower-level conduct made unlawful by section 18C on the ground it “nips in the bud” conduct that may later escalate into the more serious conduct addressed by the treaties.
This would seem to expand an already very broad external affairs power into one where only a loose connection with a treaty is needed. This appeal will test whether the High Court accepts such an expansion.
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The implied freedom of political communication
Political communication can sometimes involve statements that are offensive or insulting to others. Both participants in this tweet exchange seemed willing to offend and insult for political purposes.
The High Court has held that laws that restrict freedom of political communication are invalid unless they are reasonably appropriate and adapted to serve a legitimate purpose that is compatible with the system of government imposed by the Constitution.
Shutting down political debate has not been regarded as a “legitimate purpose” because it is contrary to the democratic system. There must be another purpose, such as protecting people from violence or harm, for the law to be justified.
In a recent case concerning the American commentator Candace Owens Farmer, the High Court recognised that protecting segments of the community from intimidation or vilification is a legitimate purpose.
However, it considered that protecting the feelings or sensitivities of a segment of the community from being hurt is not a legitimate purpose. Terms such as “offend” or “insult” fall into a grey area in which the High Court has found it difficult to articulate the constitutional boundaries.
This issue will be relevant also to the challenge Ismail v Queensland to the recitation of certain political slogans in Queensland.
The bigger picture
In fraught political times, freedom of speech is put to the test. While parliaments make the laws they consider necessary to support social cohesion by restricting speech, it is the High Court that ultimately decides whether they breach the Constitution by unduly restricting freedom of political communication.
In the next 12 months, the High Court will face a slew of such cases. Hopefully this will result in greater clarity on the issue, so that parliaments and the people can be clear about the boundaries of free speech and legislative powers.
Anne Twomey has received funding from the Australian Research Council and occasionally does consulting work for Parliaments, government bodies and inter-governmental bodies. She also has a YouTube Channel, Constitutional Clarion, that discusses constitutional issues.
Originally published by The Conversation — Australia selected topics