For more than 30 years, section 18C of the Racial Discrimination Act 1975 has survived a political argument that never really went away. Coalition governments talked about reforming it, civil libertarians attacked it, racial-discrimination advocates defended it, and successive parliaments ultimately left it standing. Now Pauline Hanson may achieve through constitutional litigation what its political opponents repeatedly failed to achieve through parliament.
Hanson has applied for special leave to appeal to the High Court after the Full Federal Court unanimously upheld the finding that her 2022 response to Greens Senator Mehreen Faruqi contravened section 18C. The exchange followed Faruqi's denunciation of Queen Elizabeth II and the British Empire immediately after the Queen's death. Hanson responded by telling the Pakistan-born senator, among other things, to pack her bags and "p*ss off back to Pakistan." The courts have held that this crossed the statutory line. Hanson now wants the High Court to consider whether that line itself is constitutionally valid.
The case could become the first occasion on which the High Court squarely determines the constitutional validity of section 18C. That makes it far more important than a quarrel between two senators on social media. Hanson is effectively asking the Court how far the Commonwealth can go in making offensive racial speech unlawful, particularly when that speech occurs at the heart of political controversy.
Section 18C is often inaccurately described as a criminal prohibition. It is not. The Act expressly says that conduct made unlawful by this Part is not thereby made a criminal offence. Section 18C makes public conduct unlawful where, in the circumstances, it is reasonably likely to "offend, insult, humiliate or intimidate" another person or group and is done because of their race, colour, or national or ethnic origin. Section 18D provides exemptions for certain conduct done reasonably and in good faith, including genuine public-interest discussion and fair comment.
The constitutional attack is likely to proceed along two substantially independent fronts, and this is what makes Hanson's case unusually interesting.
The first concerns the external affairs power in section 51(xxix) of the Constitution. The Commonwealth does not possess an unlimited general power to legislate about speech or racial discrimination. One constitutional foundation for the racial-vilification provisions is Australia's implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, or ICERD. Under the external affairs power, the Commonwealth can enact legislation implementing Australia's international treaty obligations.
But that raises the critical question: how closely must the domestic legislation correspond to the obligation contained in the treaty?
Hanson's argument is that section 18C goes too far. ICERD addresses racial discrimination, racial hatred, incitement and associated serious conduct. Article 4 deals with such matters as dissemination of ideas based upon racial superiority or hatred, incitement to racial discrimination and violence. Section 18C, by contrast, descends all the way to conduct reasonably likely merely to offend or insult.
Constitutional law professor Anne Twomey has identified precisely this difficulty. She has criticised the Full Federal Court's treatment of ICERD and particularly its failure, in her view, adequately to consider the convention's protection of freedom of expression. Twomeys point is not that the Commonwealth cannot legislate against racial hatred. The question is whether a treaty concerned with serious racial discrimination provides constitutional support for a domestic prohibition extending substantially further down the scale of harmful expression.
This presents the High Court with a familiar constitutional problem. Parliament cannot manufacture legislative power merely by entering an international treaty and then attaching to it whatever domestic law it wishes. Legislation implementing a treaty must bear a sufficient relationship to the treaty obligation being implemented.
The Commonwealth's answer will be that preventing lower-level racial abuse is legitimately adapted to implementing the convention's broader objective. One need not wait until speech becomes an incitement to racial hatred or violence before addressing the conditions from which racial discrimination develops. The Full Federal Court essentially accepted the validity of this preventative approach.
But the argument contains an obvious danger. If legislation against racial hatred constitutionally supports legislation against mere racial offence because offence might contribute to something worse, where does the implementing power end? The constitutional requirement that legislation genuinely implement the treaty risks becoming exceedingly elastic.
The High Court could therefore conclude that the problem lies not with racial-vilification legislation as such, but with the breadth of particular words in section 18C. The words "offend" and "insult" would then become especially vulnerable.
Indeed, this possibility has been present in Hanson's litigation from the beginning. Justice Stewart identified as an issue whether section 18C might be invalid "in full, or in part" because the statutory threshold had been set too low through the words "offend", "insult" and/or "humiliate".
That creates the possibility of a surgical rather than revolutionary High Court decision. The Court need not necessarily destroy the whole section. Depending upon the arguments concerning severance and statutory construction, it could potentially remove or restrict the operation of the constitutionally excessive portion while leaving a prohibition directed toward more serious racial vilification intact. The Commonwealth itself has previously addressed questions of partial disapplication and severance during the litigation.
The second constitutional battlefield is even more politically explosive: the implied freedom of political communication.
Australia does not have an American First Amendment. Nor does the Constitution confer upon each Australian a freestanding personal right to say whatever he likes. The High Court has instead held that the system of representative and responsible government created by the Constitution requires sufficient freedom for political communication to allow that constitutional system to function.
That distinction matters. Hanson cannot simply walk into the High Court and say, "I have a constitutional right to free speech." She does not, at least not in the American constitutional sense.
Her stronger argument is that section 18C burdens political communication and that the burden cannot be constitutionally justified to the extent that it suppresses political expression merely because it offends or insults.
And Hanson has an unusually useful factual vehicle for making that argument because nobody can seriously contend that the underlying exchange had nothing to do with politics.
Faruqi is a senator. Hanson is a senator. Faruqi made a public political statement concerning monarchy, colonialism, Indigenous Treaty, reparations and republicanism. Hanson responded publicly to that statement. The Full Federal Court itself accepted that Hanson's communication was close to the core of political communication and that section 18C imposes a significant burden upon political communication. Hanson is therefore not trying to constitutionalise a racial insult shouted during a drunken argument outside a hotel. She is challenging the application of the provision to communication occurring between elected federal politicians in an explicitly political dispute. That gives the case constitutional significance extending far beyond the attractiveness of Hanson's particular words.
The High Court's implied-freedom analysis broadly asks whether a law burdens political communication, whether its purpose is constitutionally legitimate and whether the restriction is justified in relation to that purpose. The precise doctrinal formulations have evolved through a notoriously complicated series of cases, which itself explains some of the uncertainty surrounding this litigation.
Hanson can readily clear the first hurdle. Section 18C plainly burdens at least some political communication. The serious fight concerns justification. The Commonwealth will argue that protecting people from racial vilification and facilitating equal participation in Australian society are legitimate objectives compatible with representative government. It can further argue that section 18D protects reasonable and good-faith political and public-interest expression, meaning that sections 18C and 18D together strike a constitutionally permissible balance.
Hanson's response will be that this turns the implied freedom upside down if the government is permitted to restrict political disagreement in order to protect people from the offence generated by that disagreement.
Recent High Court authority may give that argument additional force. Hanson's application reportedly relies upon Farmer v Minister for Home Affairs, in which the High Court rejected protection of community feelings or sensitivities against hurt as sufficient to legitimate the curbing of political disagreement and debate. Her lawyers also complain that the Full Federal Court failed adequately to engage with recent implied-freedom authorities. This is potentially the most dangerous point for section 18C.
The constitutional question is not whether Hanson's tweet was polite. It plainly wasn't. Nor is it whether Australians should approve of telling an immigrant politician to return to her country of origin. Millions may regard that as objectionable.
The question is whether offensiveness itself can justify governmental suppression of political communication.
Australian political discourse has never operated according to the standards of a university seminar. It contains insult, ridicule, exaggeration, anger and occasionally vicious personal attack. The constitutional protection of political communication would mean comparatively little if it extended only to measured statements that judges regarded as civil and reasonable.
There is another uncomfortable asymmetry in Hanson's case. Faruqi's original communication was deliberately provocative political speech. She characterised the British Empire as racist and built upon stolen lives, land and wealth. Such statements may understandably offend Australians who admired Queen Elizabeth II, identify strongly with Australia's British inheritance or reject Faruqi's interpretation of colonial history. Yet being offended provides them with no equivalent cause of action under section 18C unless the necessary racial or ethnic elements exist. In Australia Anglo Australians simply have to take it.
Hanson responded offensively to offensive political speech, but because her response invoked Faruqi's Pakistani origin, the legal machinery of section 18C became available.
That does not establish constitutional invalidity. Parliament frequently protects particular classes against particular harms. But it helps expose the broader philosophical question underlying the litigation: should Australian political speech depend upon the identity of the person being offended?
There is nevertheless a formidable case on the other side. Racial abuse can itself suppress democratic participation. If people from minority backgrounds withdraw from public debate because participation exposes them to systematic racial vilification, freedom of political communication may theoretically exist while becoming practically unequal. On this account, section 18C does not merely restrict expression; it helps create conditions under which citizens of different backgrounds can participate in political life. Hanson's lawyers will argue, this case is not one of them.
That argument has considerable constitutional force and should not be caricatured. The High Court could readily decide that Parliament is entitled to address racial vilification and that section 18D provides sufficient breathing space for legitimate political disagreement.
There is also an awkward question for Hanson herself: section 18D protects certain public-interest and fair-comment expression only where it is done reasonably and in good faith. The courts were plainly unimpressed by the proposition that her particular tweet deserved that protection. The High Court may therefore distinguish between robust criticism of immigration, multiculturalism, monarchy or Faruqi's political views and telling an individual politician to return to Pakistan.
Hanson consequently faces several possible outcomes. The High Court could refuse special leave, ending the constitutional adventure before it properly begins. It could grant leave but uphold section 18C entirely. It could uphold the provision under the external affairs power while finding some operation constitutionally impermissible under the implied freedom. It could find particular elements, most obviously "offend" and "insult," constitutionally unsupported or unjustifiably burdensome while preserving the remainder. Or, at the most dramatic end, it could invalidate section 18C more broadly.
The middle outcome may be the most constitutionally interesting. The High Court does not have to choose between unrestricted racial abuse and the existing section exactly as Parliament drafted it. Constitutional litigation often turns on whether an excessive law can be confined, severed or partially disapplied rather than demolished altogether.
That is why the Hanson litigation could succeed even if the High Court has no appetite for declaring open season on racial vilification.
The irony is considerable. For decades Australia's political establishment has been unable to settle the argument over section 18C. George Brandis famously defended the right to be a bigot. Tony Abbott attempted reform and retreated. Labor treated repeal or substantial amendment as licensing racism. The political avenue effectively closed. Now seven High Court justices may have to confront questions Parliament preferred not to resolve.
Paul Kelly's observation that Australia has developed a strangely contradictory free-speech settlement is therefore timely. Section 18C can reach political expression because it is racially offensive, while extremely inflammatory expression arising in other political contexts may remain protected. At the same time, Federal Court Justice Ian Jackman has recently argued from almost the opposite direction that the implied freedom has itself been taken too far in restricting parliamentary attempts to deal with threatening or socially destructive protest.
The two debates point toward the same constitutional problem. Australia lacks a clearly expressed constitutional settlement concerning freedom of speech. Instead, Parliament enacts restrictions and courts determine their compatibility with an implied freedom whose boundaries have been constructed case by case.
Hanson could now force the High Court to clarify one particularly important boundary.
Her words to Faruqi were crude. They may have been insulting, offensive and unnecessary; so what? None of that answers the constitutional question. Constitutional protections are most important precisely when the speech being tested is speech many people dislike. Nobody needs constitutional doctrine to protect pleasant conversation.
If section 18C falls merely because racial hatred cannot constitutionally be regulated, Hanson should lose. But that is not really the strongest case she is putting. Her potentially powerful argument is narrower: a Commonwealth power to implement an international convention against serious racial discrimination may not extend to suppressing mere offence and insult, and representative government may not permit Parliament to impose such a low threshold upon political speech between elected representatives.
That argument is serious enough that the High Court should hear it. And if the Court eventually concludes that Parliament crossed the constitutional line when it made racial offence and insult unlawful, Pauline Hanson may accomplish something that governments, attorneys-general and free-speech campaigns have failed to accomplish for three decades: force Australia to redraw section 18C from the Constitution down rather than from Parliament up.