Peter O’Brien Quadrant Online 1st December 2024
Imagine, if you will, a person who is told of a death in her next-door neighbour’s family. “Oh, I’m sorry to hear of your loss”, she tells the distraught neighbour, “but, to be honest, I never really liked your mother.” Would this person – let’s call her Mehreen – be entitled to feel aggrieved if she were explicitly disinvited from the wake? Well, of course she would not, you would argue. Aha, but what if her skin were brown, I ask? That’s got you thinking, hasn’t it? You would have to concede that this puts a different complexion on the matter (oops, can I say ‘complexion’ in this context?)
Excuse my, only slightly, simplistic metaphor, but how else to interpret the extraordinary judgement of Federal Court Judge Angus Stewart who ruled that Senator Pauline Hanson had racially discriminated against Senator Mehreen Faruqi by telling her to ‘piss off back to Pakistan’. This was in response to Faruqi tweeting, on the day Queen Elizabeth II died, that she could not mourn “the leader of a racist empire built on stolen lives, land and wealth of colonised people”. To put this in context, in all her public life, Queen Elizabeth did nothing but good.
From the ABC website:
Earlier this year, Senator Hanson gave evidence that she didn’t know Senator Faruqi was a Muslim at the time of the tweet, and her lawyers said the reply had nothing to do with religion or colour.
They told the judge the tweet fell within a legal exemption allowing for fair comments on a matter of public interest.
Justice Angus Stewart on Friday rejected that argument, and said Senator Hanson’s tweet was an “angry personal attack” with no discernible comment linked to the issues Senator Faruqi raised.
Justice Stewart concluded that the post was “anti-Muslim or Islamophobic” and that Senator Hanson’s large following empowered others to post similar messages on X, formerly Twitter.
“Senator Hanson has a tendency to make negative, derogatory, discriminating or hateful statements in relation to about or against groups of people relevantly identified as persons of colour, migrants to Australia and Muslims, and to do so because of those characteristics,” he told the court.
Stewart is right about one thing. Hanson’s tweet was an angry personal attack on Faruqi. And since when is an angry personal attack on someone either a criminal or civil offence in this country? Well, only since the Racial Discrimination Act, in particular Section 18C, gave identity politics a leg up. This is what 18C says:
It is unlawful for a person to do an act, otherwise than in private, if:
the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Let’s accept that Hanson’s tweet was reasonably likely to cause offence to Faruqi. I have no doubt offence was intended. That is the purpose of angry tweets or, indeed, verbal slights in the cut and thrust of social interaction.
But the problem for Stewart is the two-part nature of the offence. It is not sufficient for the tweet to give offence, but also that it must done on the basis of Faruqi’s race, colour or ethnic origin’.
Stewart’s logic seems to be that Faruqi is a brown skinned native of Pakistan, then that must be why Hanson objected to Faruqi’s comment, which I am certain gave offence, not only to Hanson but to the vast majority of Australians. Here he falls into the trap, or so it seems to me, that has ensnared so many so-called climate activists – conflating correlation with causation.
There are two elements to this offence, the act itself and the motivation. What in this case was the motivation? There are two possibilities. One, Hanson was simply offended by Faruqi’s presence in Australia or in the Senate and spontaneously decided to troll her? Or two, Hanson responded to a comment by Faruqi that offended her.
Does Stewart imagine that if a New Zealand-Australian or a Canadian- Australian had made the same offensive comment that Faruqi did, Hanson would not have felt obliged to offer the same travel advice? I hold that any reasonable person would believe so.
Stewart, however, notes that Hanson has a ‘tendency to make negative, derogatory, discriminating or hateful statements etc etc’.
Regardless of whether or not you think Senator Hanson is a racist (and I do not), in a criminal court, the previous form of a defendant cannot form any part of the judgment as to guilt in the matter before the court. And if so, why should it be? Perhaps South African-born Justice Stewart’s thumbnail biography offers a clue to his legal perspective:
Faruqi has led a life of privilege and taken full advantage of everything Australia, this product of British colonialism, has to offer, including entrée to the Senate courtesy of the Greens. Hanson came from a working-class family, left school at 15 and has achieved her position as a Senator against all odds. Faruqi’s monumental hypocrisy is evident to everyone, but it took Hanson to call it out. Good on her.
Justice Stewart’s observation that Senator Hanson’s tweet contained ‘no discernible comment linked to the issues Senator Faruqi raised’, is baffling. Faruqi was not making a good faith political argument. She was just offering a gratuitous insult to the Queen and all who admired her.
If I were the appeal court judge, I would weigh up the two competing motivation scenarios, above, and I would have no difficulty deciding that, on the balance of probabilities, Hanson’s tweet was not based on Faruqi’s race or ethnic origin but on Faruqi’s own provocation and that therefore the second element of the offence was not established.
If this verdict stands it is yet one more nail in the coffin of free speech in this country.
Nelle's journey 