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Australia’s racial discrimination case milestone judgment: “Go back to where you came from” speech constitutes racial discrimination!

Home » Blog » Australia’s racial discrimination case milestone judgment: “Go back to where you came from” speech constitutes racial discrimination!

Legal Facts

The case involves a legal dispute between Australian Greens Senator Mehreen Faruqi, a Pakistani-born Muslim, and One Nation Party Senator Pauline Hanson. in 2022 after the death of Queen Elizabeth II, Ms. Faruqi sent a tweet mourning the Queen’s death, but the tweet also criticized the colonial influence of the British Empire. In response, Ms. Hanson tweeted, “Fuck off back to Pakistan,” to which Ms. Faruqi later responded by calling it racist and offensive.

Ms. Faruqi argues that Ms. Hanson’s tweets are unlawful under Section 18C of the RDA (Federal Racial Discrimination Act of 1975). Section 18C of the RDA prohibits any offensive, insulting, humiliating or intimidating conduct on the basis of race or ethnicity. Ms. Hanson defends her tweets by claiming that they are comments on a matter of public interest protected by the implied political freedom of communication and protected by an exemption under RDA section 18D. Reasonable and bona fide “fair comment” is exempt under section 18D of the RDA.

Legal Focus

Whether Hanson’s tweets violated section 18C of the RDA: Does Ms. Hanson’s response to Ms. Faruqi’s tweets meet the standard of “offensive conduct” under section 18C?
Implied freedom of political communication: Does RDA Part IIA, and in particular Section 18C, unconstitutionally restrict political communication?
Applicability of section 18CD exemption: Can Ms. Hanson’s conduct qualify as “fair comment” under section 18D and be exempted on the basis that it was reasonably and in good faith published?

Reasons for judgment

The Federal Court ruled in favor of Ms. Faruqi. The Court found:

Possibly offensive: Ms. Hanson’s tweets were likely to offend, insult, humiliate or intimidate Ms. Faruqi and groups of people with similar characteristics, in particular immigrants, Muslims and people of color, and that Ms. Hanson believed that the phrase “go back to Pakistan” was a variation of the slogan “go back where you came from”. “Go back to Pakistan” is a variation of the slogan “Go back where you came from”. And that slogan is a racist rhetoric with a long history. The phrase carries a history of anti-immigrant and nativist beliefs that can be traced back to Australia’s White Australian Policy. The phrase is a common form of racism. “The phrase ”go back where you came from“ has been described as ”a fairly strong form of racism …… very xenophobic and very concerned with belonging to and excluding groups.

Racial motivation: Ms. Hanson’s comments were directed at Ms. Faruqi because of her race, color and ethnic origin, in particular her status as a Pakistani-born Muslim. The phrase “go back to Pakistan” was interpreted as a derogatory statement about Ms. Faruqi’s identity.

The section 18D exemption did not apply in this case: the court found that Ms. Hanson’s comments were not reasonable or good faith fair comment. The language it applied went beyond the scope of application of fair comment and did not meet the standard for public interest immunity under Section 18D.

Constitutional validity: The Court found that sections 18C and 18D did not infringe the implied freedom of political communication. These sections impose minimal restrictions on political speech, consistent with Australia’s constitutional commitment to representative government.

Court decisions

The court ordered Hanson to: delete the tweet within seven days; and pay Ms. Faruqi’s legal costs.

This judgment clearly demonstrates that hate speech is not freedom of expression and that those who target marginalized groups with racial discrimination do not enjoy impunity. This landmark ruling is historic and groundbreaking, and sets a new precedent for how racism will be treated in this country in the future. It is a serious warning to people like Pauline Hanson and will encourage individuals and community groups to assert their right to be free from racism.

This case highlights the complex intersection between freedom of political expression and the right to be free from racial discrimination. It affirms the constitutional validity of section 18C and reinforces the effectiveness of this provision in protecting individuals and community groups from being seriously injured and stigmatized on the basis of racial discrimination, even in the context of political speech. In addition, the decision highlights the commitment of the Federal Court to balance the fundamental rights of individual dignity and freedom of expression, particularly in a diverse society.

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