Pauline Hanson’s High Court challenge puts Australia’s limits on political speech to the test. Striking down restrictions on racist expression might ultimately do more to expose it than suppress it.

Popular understanding (if that is the right word) has it that people have a broad right to freedom of speech in Australia. Not so. Too many people have been influenced by watching too many American movies and listening to too many US popular outpourings.

Crispin Hull

There is no individual right to freedom of speech in Australia similar to that of the First Amendment to the US Constitution. But Australia has some fairly narrow free-speech elements in its Constitution.

Last week, the High Court granted special leave to Pauline Hanson to appeal against a decision that her “piss off back to Pakistan” post was unlawful under Section 18C of the Racial Discrimination Act.

It started with a post on X (formerly Twitter) by Greens Senator Mehreen Faruqi following the death of Queen Elizabeth II in September 2022. Faruqi posted that she could not mourn the leader of a “racist empire built on stolen lives, land and wealth of colonised peoples”.

Pauline Hanson replied on X, expressing disgust at Faruqi’s comments and writing: “It’s clear you’re not happy, so pack your bags and piss off back to Pakistan.”

The Federal Court held that Hanson’s tweet was a breach of the controversial Section 18C of the Racial Discrimination Act and ordered her to remove the post and pay Senator Faruqi’s legal costs.

One would like to think that these days, Hanson’s tweet would not pass the pub test. Even Nationals-defecting One Nation MP Barnaby Joyce, a great proponent of the pub test, campaigned against the deportation of Nades and Priya Murugappan, Tamils who fled Sri Lanka during the civil war and settled in the Central Queensland town of Biloela, and had their two daughters there.

Would Joyce’s leader’s “piss off back to Pakistan” comment pass the pub test? One would hope not. It probably would not even pass the Voltaire test: “I disagree with your statement, but I will defend to the death your right to say it.”

This is not a right-wing/conservative vs left/progressive issue. Other freedom-of-speech challenges are on the way: over legislation that makes it a criminal offence to use the phrase ‘from the river to the sea’ in public protests, or to make Nazi salutes.

On one hand, we have a conservative/right view of the world that detests judicial activism and thinks that the courts should apply the black-letter law that parliaments have laid down and not invent trendy leftie ideas about implied freedoms in the Constitution. That view works for them in the case of the NSW law that clamps down on all those pesky progressive lefties objecting to Israeli genocide in Gaza. But it does not work for them in the case of the federal law clamping down on Hanson’s racist hate-speech.

On the other hand, we have a left/progressive view that is happy for NSW to legislate to make it criminal to make Nazi salutes in public. And is happy for the federal government to restrict the access of under-16s to social media and happy for the Feds to legislate against racially hateful speech.

Each of those views is inconsistent with having a coherent legal interpretation of what is permitted and what can be proscribed.

As it happens, neither of those views will prevail in the High Court because the pub test, the Voltaire test, and visceral reactions are not elements of Australian jurisprudence.

The High Court’s job is to deal with Australian law.

Section 18C provides: “It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

The next section provides that 18C does not apply to “any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest”.

The question for the High Court is whether 18C offends the necessity for free political communication that is implied in the Constitution. The court has held that the Constitution sets up a representative democracy with people voting. For that system to be effective voters must be informed. For that to happen there must be free political communication. That implication knocks out state and federal law that unreasonably restricts free political communication.

The Australian Law Reform Commission has recognised that 18C has constitutional difficulties. The biggest is whether it fits the test on acceptable restrictions. Those tests are whether the purpose of the law is legitimate – meaning it serves a compelling public interest (such as public safety, national security, or – in this case – protecting people from intimidation/vilification) and that it is compatible with a system of representative and responsible government. The law must also be reasonably appropriate and adapted to advance that legitimate purpose in a manner that is suitable, necessary, and balanced.

That test might be a bit difficult in the case of 18C given the tiny hurdle of just being reasonably likely to cause offence to one other person for the speech to be proscribed and not a broad objective test. Also, the defences in Section 18D do not include the speech being a political communication. Similarly, with the ‘river-to-the-sea’ ban. It is very hard to connect bans on the utterances of specific words as being appropriate to advancing a compelling public interest.

It is an easier hurdle to jump with the under-16 social media ban. The purpose of that law is legitimate, compatible with representative government (as under-16s do not vote), as is reasonable because a ban is perhaps the only way to reduce the demonstrable harm, including death by suicide, that social media can cause.

Perhaps the most compelling argument to strike down 18C and to remove the fetter against One Nation’s ‘free speech’ is that without 18C the system would better enable One Nation to spout its poisonous racism for all Australia to see and reject at the ballot box – the primary reason for the constitutional prohibition against laws that might fetter political communication in the first place.

Legislative restrictions on racism, Nazism, and antisemitism will not change hearts and minds. They will only create martyrs, and that is clearly what Hanson wants to be – a martyr on the altar of free speech. The High Court should deny her that trophy. Let her insidious, racist agenda be defeated in the court of free public opinion rather than through misguided, ineffectual, if well-intentioned, legislative strictures.

https://www.crispinhull.com.au/2026/11/09/speech-how-ugly-can-it-get/ 

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