Andrew L. Urban.
Pauline Hanson seeks leave to appeal to the High Court, having been found by the Federal Court to be in breach of section 18C of the Racial Discrimination Act, and if the case proceeds, the High Court will rule for the first time on this provision. It follows years of fruitless political dispute about section 18C. It’s a stress test for the High Court, not Hanson.
Paul Kelly in The Australian hits the bullseye: “Consider the disreputable condition of the country on free speech. Hanson’s comment that Greens senator Mehreen Faruqi should pack her bags and “piss off back to Pakistan”, while impolite, is deemed to be illegal in Australia; while pro-Palestinian demonstrations demanding the elimination of Israel “From the river to the sea” along with calls to “Globalise the intifada” – encouraging the murders of Jews – are permitted and apparently beyond the reach of our laws. A good and decent society is broken under such inconsistency and hypocrisy.”
So it is the High Court’s reputation at stake, not Hanson’s.
Constitutional lawyer Anne Twomey criticised the Federal Court and has raised doubts about the constitutional validity of section 18C, saying the treaty on which it relies, the International Convention on the Elimination of All Forms of Racial Discrimination, does not seem to include the low-level conduct that 18C outlaws. The treaty deals with far more serious offences. Constitutional lawyer Louise Clegg said in The Spectator last month she believed the High Court would invalidate section 18C.
Even though the High Court is yet to look at the issue of anti-Israel protests, Justice Jackman noted the issue of implied freedom gained recognition in the 1990s but the High Court had not updated its position since then.
“A victory for Hanson would be a remarkable event,” notes Kelly, “securing the victory the Coalition had long unsuccessfully sought. Hanson would become a political heroine. It would be a devastating blow for Labor – being exposed for running repeated campaigns attacking the critics for promoting racism only to finish up humiliated by relying for decades on a provision found to be unconstitutional.”
There would be egg on many faces, not least that of the insufferable Faruqi.
WHO ARE THE JUDGES and when were they appointed?
- Stephen Gageler — 9 October 2012 (became Chief Justice on November 6, 2023, succeeding Susan Kiefel)
- Michelle Gordon — 9 June 2015
- James Edelman — 30 January 2017
- Simon Steward — 1 December 2020
- Jacqueline Gleeson — 1 December 2020
- Jayne Jagot — 17 October 2022
- Robert Beech-Jones — 6 November 2023
If the majority decision is to strike down S18C, Beech-Jones is most likely to dissent.See our report.