Andrew L. Urban.
Pauline Hanson’s Appeal will test the High Court, and reveal how the Racial Discrimination Act s 18C has a broader reach than its title might suggest. It may also embarrass the Federal Court. Importantly, the High Court has agreed to hear the appeal; it has not yet decided the constitutional questions. Was her Federal Court conviction wrongful?
The real issue in Hanson’s case is not whether Pakistan (Faruqi’s home country) is a race. It is whether the words used, considered in their full context, were sufficiently motivated by Faruqi’s protected national, ethnic or racial characteristics, rather than being an expression of political hostility towards her views. Or, as I maintain (see below) it simply meant ‘go back home’, driven by Faruqi’s baseless accusations against Her Majesty the late Queen and her Government.
There is also an interesting jurisprudential issue here: the difference between what a person is (nationality, ethnicity or religion) and what a person believes or advocates (political opinion).
Those distinctions become particularly important when politicians engage in robust debate about immigration, national identity, multiculturalism and citizenship.
That is where the Hanson appeal raises questions extending well beyond the immediate dispute.
Section 18C(1)(b) of the Racial Discrimination Act 1975 (Cth) refers to conduct performed because of a person’s:
- race;
- colour;
- national origin; or
- ethnic origin.
It does not say that the person must belong to a distinct biological race.
Consequently, telling somebody to return to Pakistan could potentially engage the provision because of their national or ethnic origin, even though Pakistan itself is a country rather than a race.
But even so, to my mind, telling Faruqi to go back to Pakistan cannot be considered an offence against s 18C because Hanson did not disparage Pakistan nor Faruqi’s national or ethnic origin. As the full context of her message makes clear, it simply meant ‘go back home’. She wrote: “When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament,” she wrote. “It’s clear you’re not happy, so pack your bags and piss off back to Pakistan.” If the High Court finds that I am right, the Federal Court will be (should be) deeply embarrassed for mistaking that remark as a crime. The High Court should not wish to let it stand as precedent. It would put in jeopardy any similar remark such as “pack your bags and piss off back to England”.
And just by the way, Faruqi’s comment after offering condolences on the death of the Queen noted that she could not mourn “the leader of a racist empire built on stolen lives, land and wealth of colonised peoples”. Might those words be considered an offense under the same ‘national origin’ provisions of s18C?
If the High Court allows Hanson’s appeal on a ground that defeats the legal basis of the original finding, it could:
- Set aside the Full Federal Court’s dismissal of her appeal.
- Set aside or vary the original finding of contravention.
- Set aside the order requiring deletion of the tweet, depending on the orders made.
- Determine the appropriate costs consequences.
- Make any further orders necessary to resolve the proceedings.
This would be a legal victory in this particular dispute.
Section 18C makes certain public conduct unlawful where it is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person because of race, colour or national or ethnic origin. (Hanson’s text does not, Faruqi’s does…)
Section 18D provides exemptions for specified forms of expression, subject to requirements including reasonableness and good faith. If Hanson succeeds on her implied freedom argument, the High Court could find that the statutory restriction imposes an unjustified burden on constitutionally protected political communication.
In November 2024, the Federal Court found that Hanson’s September 2022 tweet contravened s 18C of the Racial Discrimination Act.
The Court ordered Hanson to delete the tweet.
On 27 July 2026, the Full Federal Court dismissed Hanson’s appeal in Hanson v Faruqi [2026] FCAFC 96.
On 5 November 2026, the High Court agreed to hear Hanson’s further appeal.
The Racial Discrimination Act identifies the International Convention on the Elimination of All Forms of Racial Discrimination as a principal basis for the legislation, including the Commonwealth’s external affairs power under s 51(xxix) of the Constitution.
If the High Court accepts Hanson’s argument on legislative power, the consequences could be substantial.
Depending on the reasoning:
- The relevant provisions might be declared invalid.
- The scope of the Commonwealth’s external affairs power might be clarified or restricted.
- Future federal legislation implementing international treaties could face closer constitutional scrutiny.
- The Commonwealth might need to reconsider the legislative mechanism used to regulate the relevant conduct.
The extent of the consequences would depend on whether the Court invalidated only the particular provisions or adopted reasoning affecting a wider category of treaty-implementing legislation.
Perhaps we should thank Mehreen Faruqi for opening this Pandora’s Box by suing Hanson in the first place? Or not. Perhaps it should have been addressed voluntarily (by the Attorney-General), after the many public expressions that have been critical of s 18C over recent years. This is Government inaction, not in action.