High Court decision imminent on whether to hear Pauline Hanson's hate speech appeal

Hanson says section 18C of the Racial Discrimination Act, which bans speech that “offends, insults, humiliates or intimidates” on the basis of race, interferes unacceptably with political communication. A grant of leave would let her argue that the law is invalid in the country's highest court. A refusal would still serve her larger political goal, a referendum on adding an American-style free speech clause to the Constitution, by adding moral leverage to it.

The case dates from 2022, when Faruqi posted within hours of Queen Elizabeth's death: "I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples." Hanson replied that Faruqi's attitude appalled and disgusted her, and told her to "pack your bags and piss off back to Pakistan". Faruqi won a civil suit under section 18C. Hanson appealed, invoking the implied freedom of political communication, a concept that allows courts to intervene if a law is clearly over the top. The Full Federal Court ruled against her.

The implied freedom was first found by the High Court in the 1990s. The court has long held the freedom is real, if unwritten: for citizens to enjoy the democracy promised by the Constitution, they must be able to discuss politics. It is not an individual right but a constraint on what governments can do. Legal conservatives see it as a dangerous invention used by activist judges to take power from parliaments.

The Hanson matter sits among a stack of political communication cases before the seven justices, described by one barrister as “unusually spicy”. The court is deciding whether to strike down Commonwealth laws used to ban the neo-Nazi White Australia Party as a hate group. This week it heard arguments from Reddit that the federal government's under-16 social media ban robbed children of chances for political communication. The Queensland government has banned the pro-Palestine chant “from the river, to the sea”.

Mia Schlicht, executive director of the conservative Samuel Griffith Society, said the Hanson case "will be a litmus test for where the High Court stands on freedom of speech". Former public law barrister Louise Clegg said no High Court justice surpasses Chief Justice Stephen Gageler, who retires in 2028, in supporting a robust implied freedom, and predicted Hanson would win her hearing bid and then her appeal: "I sense this could be a legacy case for the Chief Justice." Anne Twomey, professor emerita of constitutional law at the University of Sydney, called the Full Federal Court judgment "just a really odd judgement" whose reasoning did not take into account the High Court's most recent rulings on the implied freedom. She said the court would be conscious that whatever it does will be a political football, and that this might discourage the justices from going on the field.

Judicial tensions have broken into the open. Justice Simon Steward, who returned to the bench on Monday after several months' sick leave, has called the implied freedom "uncontrollable", "very wrong" and "just too broad". Justice Robert Beech-Jones accused the Samuel Griffith Society of seeking "US-style court stacking". NSW Chief Justice Andrew Bell said in September that the institution can suffer considerable damage "even from one or a handful of bad judicial actors". Former attorney-general George Brandis cautioned against over-interpreting the conflict, saying judges have always had cracks at each other in judgments but that public criticism between them is unconventional. Melbourne University's Adrienne Stone said the strong line of criticism continues to unsettle the doctrine, with the question always hanging in the air of whether the court should overrule it.

Only 58 per cent of Australians feel they have the freedom to express political opinions, according to new research by McKinnon, down 10 percentage points in a year. Among young men the figure fell from 72 per cent to just under 50 per cent.