One Nation leader Pauline Hanson has taken one of Australia’s longest-running free-speech battles to the High Court, seeking special leave to challenge a landmark Federal Court ruling that found she unlawfully racially discriminated against Greens Senator Mehreen Faruqi.
The case has the potential to move well beyond the bitter dispute between two senators. Hanson’s lawyers are seeking to put the constitutional validity of key provisions of the Racial Discrimination Act 1975, including section 18C, before Australia’s highest court, potentially forcing a definitive ruling on how far federal law can restrict racially offensive political speech.
Hanson has lodged an application for special leave to appeal after the Full Court of the Federal Court unanimously rejected her appeal on July 27. The three-judge bench of Justices Melissa Perry, Geoffrey Kennett and Elizabeth Bennett upheld the original finding that Hanson breached section 18C when she told Faruqi on social media to “piss off back to Pakistan”.
The dispute began on September 9, 2022, hours after the death of Queen Elizabeth II.
Faruqi, who migrated from Pakistan to Australia and represents New South Wales in the Senate, posted criticism of the British Empire and colonialism while saying she could not mourn the monarch.
Hanson responded by accusing Faruqi of taking advantage of Australia and telling her to “pack your bags and piss off back to Pakistan”.
Faruqi subsequently pursued the matter under Australia’s racial discrimination laws.
In November 2024, Federal Court Justice Angus Stewart found Hanson’s response breached section 18C because it was reasonably likely to seriously offend, insult, humiliate and intimidate Faruqi and relevant groups of people, and was made because of Faruqi’s race, colour or national or ethnic origin.
Justice Stewart found the statement carried a message that an immigrant person of colour could be treated as a second-class citizen whose right to remain in Australia was conditional.
The court also found the statement drew on the well-recognised racist trope of telling migrants to “go back to where you came from”.
Justice Stewart rejected Hanson’s attempt to rely on the free-speech protections contained in section 18D, finding the comment was not made reasonably and in good faith for the purpose of fair comment on a matter of public interest.
Hanson was ordered to delete the tweet and pay Faruqi’s costs.
However, the court rejected several additional remedies Faruqi had sought. Justice Stewart declined to permanently restrain Hanson from using similar phrases in future, rejected a proposed order requiring her to pin a statement about the judgement to her social media account, and refused proposed orders involving a donation and anti-racism training.
Hanson appealed.
Her legal team challenged not only the findings about her particular tweet but the constitutional foundations of the legislation itself.
The Full Federal Court ultimately dismissed all nine grounds of appeal, covering the evidence relied upon by the original judge, interpretation of section 18C, the section 18D exemption and two major constitutional questions.
Those constitutional arguments now sit at the heart of Hanson’s proposed High Court case.
The first concerns whether sections 18B, 18C and 18D are properly supported by a Commonwealth constitutional head of power.
The Commonwealth Parliament does not have unlimited legislative power. Federal laws generally need to be connected to one or more powers given to Parliament under the Constitution.
Part IIA of the Racial Discrimination Act has historically been supported principally through the Commonwealth’s external affairs power in section 51(xxix), relying on Australia’s obligations under international agreements including the International Convention on the Elimination of All Forms of Racial Discrimination, or ICERD.
Hanson’s argument challenges whether section 18C goes further than the obligations contained in the international convention and therefore whether the external affairs power can constitutionally support its full reach.
Section 18C makes it unlawful to do a public act that is reasonably likely to “offend, insult, humiliate or intimidate” another person or group where the act is done because of their race, colour or national or ethnic origin.
It is important to note that section 18C is a civil provision, not a criminal offence. A breach can lead to court remedies and costs but does not itself result in criminal conviction or imprisonment.
Section 18D, meanwhile, protects certain forms of expression that would otherwise fall within section 18C, including artistic works, genuine academic or scientific discussion, fair reporting and fair comment on matters of public interest, provided the conduct is undertaken reasonably and in good faith.
Hanson’s constitutional case argues, in part, that the international convention relied upon to support section 18C does not require Australia to outlaw speech merely because it reaches the statutory threshold of serious offence, insult or humiliation.
Her lawyers have questioned whether legislation operating at that level can properly be characterised as implementation of Australia’s treaty obligations.
The Full Federal Court rejected that argument.
It relied heavily on the earlier 2003 Full Federal Court decision in Toben v Jones, which upheld the racial hatred provisions as a valid exercise of the external affairs power.
The judges found no compelling reason to depart from that precedent.
The court said Australia’s international obligations went beyond one particular provision of ICERD dealing with incitement to racial hatred.
It pointed to Article 2, which requires states to pursue the elimination of racial discrimination, as well as other provisions requiring governments to combat racial prejudice and discrimination.
The Full Court concluded that Parliament had latitude to determine how those treaty obligations should be implemented domestically and that Part IIA of the Racial Discrimination Act was reasonably capable of being regarded as implementing ICERD.
It therefore held that the provisions were supported by the external affairs power.
The second, and potentially more politically explosive, argument concerns Australia’s implied freedom of political communication.
Australia does not have a US-style constitutional right to free speech.
Instead, the High Court has recognised that Australia’s system of representative and responsible government necessarily requires freedom for people to communicate about political and governmental matters.
That implied freedom operates primarily as a restriction on government power rather than as an individual personal right to say anything without legal consequences.
The Full Federal Court expressly accepted that section 18C does burden political communication.
Indeed, the judges said Hanson’s post illustrated the point particularly clearly.
They described her response to Faruqi as involving the death of Australia’s head of state, the British Empire, colonialism, the conduct of a sitting senator and political debate — placing the exchange “close to, if not at, the core” of political communication protected by the constitutional implication.
That finding is important.
The Full Court did not say Hanson’s tweet fell outside political communication and therefore did not deserve constitutional scrutiny.
Instead, it accepted that the legislation burdened political speech and then considered whether that burden was constitutionally justified.
The judges concluded it was.
They identified the purpose of Part IIA as protecting people against serious harm — including serious offence, humiliation and intimidation — inflicted because of race.
The court held that was compatible with Australia’s system of representative government.
The Full Court also reasoned that racial abuse can itself have a silencing effect on political participation, particularly for people from minority backgrounds.
At first instance, Justice Stewart accepted evidence that such attacks could make targeted people feel their place in Australia was vulnerable and discourage them from participating openly in public debate.
The judges ultimately concluded that the restrictions imposed by sections 18C and 18D were proportionate to the legitimate objective pursued by Parliament and therefore did not impermissibly infringe the implied freedom.
Hanson wants the High Court to reconsider those conclusions.
The case has attracted particular attention after University of Sydney constitutional law professor Anne Twomey publicly questioned aspects of the Full Federal Court’s reasoning.
Twomey has argued there are substantial constitutional issues warranting consideration by the High Court, including questions about the relationship between international treaty obligations, political communication and section 18C. She has also raised concerns about aspects of the Full Court’s analysis and its treatment of more recent High Court authority.
That does not mean Hanson’s challenge will succeed.
Before the substance of an appeal can even be heard, Hanson must persuade the High Court to grant special leave.
High Court appeals are generally a two-stage process. An applicant must first establish that the case raises an issue warranting consideration by Australia’s final appellate court.
Under section 35A of the Judiciary Act, considerations include whether a case involves a question of law of public importance, whether the High Court needs to resolve conflicting legal authority, and whether the administration of justice requires the court to intervene.
Special leave applications can be decided on the papers or after a hearing, and many are refused without proceeding to a full appeal.
If special leave is granted, however, the case could become the most consequential High Court examination of section 18C since the provision was inserted into the Racial Discrimination Act by the Keating government’s Racial Hatred Act 1995.
Section 18C has been politically contentious almost from its inception.
Supporters say it provides an important civil remedy against serious racial vilification while section 18D preserves legitimate debate, journalism, art and academic discussion.
The Australian Human Rights Commission notes that courts have interpreted the words “offend, insult, humiliate or intimidate” as requiring effects that are profound and serious, rather than mere slights.
Critics argue the statutory words remain too broad and create a chilling effect because Australians may avoid controversial discussions out of fear of complaints and costly litigation.
That debate reached Parliament in 2017 when the Turnbull government attempted to remove “offend”, “insult” and “humiliate” from section 18C and replace them with “harass”, leaving the proposed test as “harass or intimidate”.
The proposal was defeated in the Senate, with Labor, the Greens and several crossbenchers opposing the change. The existing wording remained.
Hanson and One Nation have campaigned against section 18C for years.
Following the original 2024 judgement, One Nation described the provision as an unjustified restriction on political expression and argued that controversial views should ordinarily be answered through debate rather than litigation.
Faruqi and the Greens have taken the opposite position.
After the Full Federal Court dismissed Hanson’s appeal in July, Faruqi described the decision as a victory against racism and argued that “hate speech is not free speech”.
The Greens said the judgement demonstrated that racial vilification by powerful public figures can have legal consequences and argued that migrant, Muslim and other minority communities should not be expected to accept racial abuse as the price of participating in Australian public life.
The Full Federal Court’s ruling also rejected Hanson’s argument that section 18D protected her tweet as fair comment.
The judges upheld Justice Stewart’s finding that there was not a sufficient rational relationship between the personal attack made against Faruqi and Hanson’s stated purpose of criticising Faruqi’s position on the Queen.
They also upheld the finding that Hanson had not demonstrated the “good faith” required to invoke the statutory exemption.
The High Court application therefore presents Hanson with two different objectives.
At its narrowest, she is trying to overturn the legal finding against her and remove the consequences flowing from the Faruqi case.
At its broadest, she is seeking a constitutional ruling capable of changing the operation — or even the validity — of one of Australia’s most controversial racial discrimination provisions.
A successful challenge would not necessarily mean every racial vilification law in Australia disappears. States and territories have their own anti-discrimination and vilification regimes, and the precise consequences would depend heavily on the reasoning and orders of the High Court.
But a finding that section 18C is unsupported by Commonwealth legislative power, or that it impermissibly burdens political communication in some or all of its operation, would represent a major constitutional development and could force Parliament to reconsider the balance between racial protection and political expression.
Conversely, if special leave is refused — or if Hanson ultimately loses a High Court appeal — the Full Federal Court’s judgement would remain an unusually strong appellate endorsement of section 18C.
It would stand for the proposition that the law can apply even to political exchanges between elected federal parliamentarians, including communication at the core of political debate, provided the statutory requirements are met, and the section 18D protections do not apply.
The dispute that began with two senators trading sharply different views over Queen Elizabeth II’s death has therefore evolved into something much larger.
Nearly four years later, it is no longer simply a fight about whether Hanson’s words to Faruqi crossed the legal line.
If the High Court agrees to hear the case, Australia’s highest judges may be asked to decide where that line itself can constitutionally be drawn.
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