This case usefully sharpens a difficult question that any elected representative must confront: where robust political disagreement ends and conduct caught by section 18C of the Racial Discrimination Act 1975 begins, writes STEVEN FENNELL.
Section 18C makes it unlawful to do a public act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people because of their race, colour, or national or ethnic origin. Section 18D then supplies important exemptions. Exemptions covering, among other things, fair comment on matters of public interest; provided the act is done reasonably and in good faith. These provisions sit alongside the constitutional implied freedom of political communication, which the High Court has long recognised as essential to the system of representative government yet never treated as absolute.
The fine line between free speech and vilification is real and often contested. Political exchange can be sharp, even abrasive, without automatically attracting liability; yet speech that targets protected attributes rather than ideas can cross into territory the statute is designed to restrain. Distinguishing the two requires careful attention to context, wording and apparent purpose rather than reflexively labelling every harsh exchange as either protected or prohibited.
There is an important legal distinction here that I think deserves closer attention. Section 18C does not make every offensive political statement unlawful. There are three elements to consider: the act must be public, it must be reasonably likely to have one or more of the specified effects, and it must be done because of a person’s race, colour or national or ethnic origin. Section 18B also makes clear that race need only be one of the reasons for the act; it need not be the dominant or substantial reason. That is important because the question is not simply whether a political disagreement existed, but what role a protected attribute played in the conduct.[1]
For any prominent member of parliament the practical challenge is the same. Whether the speaker is a polished orator or a more curmudgeonly polemicist, the risk of monomania—fixating on one rhetorical mode at the expense of broader judgment remains. The High Court’s willingness to examine these boundaries therefore matters far beyond the immediate parties. A clear, workable standard that applies evenly will help ensure political office neither shields nor unduly exposes those who hold it. That, ultimately, is the institutional interest at stake.
The constitutional aspect is particularly interesting. The implied freedom of political communication is not a personal licence to say whatever one wishes. It is a limitation on legislative and executive power arising from the system of representative and responsible government established by the Constitution. But that does not make it any less important. It means that laws restricting political communication must be justified against the constitutional system they operate within.[2]
In the original Faruqi v Hanson decision, Stewart J accepted that Part IIA of the Racial Discrimination Act burdened political communication, although he considered the burden slight and constitutionally justified. The Full Court subsequently took a different view of the extent of that burden, describing it as significant, but nevertheless concluded that the provisions remained constitutionally valid. I think that distinction is worth noting. The existence of a significant burden does not automatically make a law unconstitutional; the question is whether that burden is justified under the constitutional test.[3]
There is another aspect of this that I think deserves consideration: section 18D. I don’t see it as merely an afterthought or a loophole in the legislation. It is an important part of the balance Parliament has attempted to strike between protection from racial vilification and freedom of expression. In Bropho v Human Rights and Equal Opportunity Commission, the Full Federal Court considered what it means for expression to be undertaken reasonably and in good faith. French J explained that reasonableness involves a rational relationship between the expression and the legitimate activity being undertaken, and that the expression should not be disproportionate to what is necessary to carry out that activity.[4]
That is an interesting test because it does not require political speech to be polite, agreeable or inoffensive. Equally, simply describing something as political comment or a matter of public interest does not automatically bring it within section 18D. The nature of the expression, its purpose, the manner in which it is made and the surrounding circumstances all matter.
I would also be interested in how the High Court considers the principles in Coleman v Power. That case dealt with insulting language directed at a police officer during a political protest. The High Court’s consideration of the importance of robust political communication, including language that is insulting or abrasive, is relevant here. It recognised that political communication does not always arrive in a measured or particularly polite form. Of course, the circumstances and statutory provisions are different, but the underlying constitutional question about the protection of robust political exchange is worth considering.[5]
Perhaps the real test here is whether we can maintain meaningful protection against racial discrimination without creating an environment in which legitimate political disagreement becomes unnecessarily constrained. I don’t think those objectives are mutually exclusive. Indeed, I would argue that a law capable of protecting one while respecting the other is a stronger law for it.
One final point: the High Court’s decision to grant special leave to appeal should not be mistaken for a decision on the merits. It has agreed to hear the constitutional arguments; it has not yet decided whether Hanson’s appeal should succeed. Nor should a finding of unlawfulness under section 18C be casually described as a criminal conviction. These are important legal distinctions.[6]
I don’t pretend to have all the answers here, but I do think the legal questions deserve to be examined without assuming that one side’s interests must automatically prevail. The protection of people from racial vilification and the preservation of robust political debate are both important. Getting the balance right is the challenge.
Sources and footnotes
[1] The legislation — sections 18B, 18C and 18D
Racial Discrimination Act 1975 – Federal Register of Legislation.
Section 18B is particularly relevant because it explains how an act can be done for more than one reason. This supports the distinction between political disagreement and racial motivation.
[2] The constitutional principle
Lange v Australian Broadcasting Corporation [1997] HCA 25.
This is the foundational High Court authority on the implied freedom of political communication.
[3] The two Faruqi decisions
- Faruqi v Hanson [2024] FCA 1264 – Federal Court original proceedings.
- Hanson v Faruqi [2026] FCAFC 96 – Full Court appeal judgment.
The second is especially important. The Full Court found that the burden on political communication was significant, but not constitutionally impermissible.
[4] Section 18D and reasonableness
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16.
Australian Human Rights Commission – legal analysis of Bropho.
The discussion of French J’s reasoning is particularly useful for understanding the relationship between reasonableness, proportionality and good faith.
[5] Robust political communication
Coleman v Power [2004] HCA 39.
High Court of Australia – Coleman v Power.
This is a useful authority for the constitutional protection of political expression, including insulting language. It is not a section 18C case, so its relevance is by analogy rather than direct application.
[6] The current High Court proceedings
Hanson v Faruqi [2026] HCADisp 293 – High Court special leave decision, 5 November 2026.
This confirms that the High Court granted special leave. It does not determine the substantive appeal.