Federal Court Reaffirms That Racism Is Not Protected by Free Speech

By Brian AJ Newman, LLB – Employment & Human Rights Advocate

The Full Court of the Federal Court has unanimously dismissed Senator Pauline Hanson’s appeal against a finding that she breached Australia’s Racial Discrimination Act 1975 (Cth) by telling Greens Senator Mehreen Faruqi to “pack your bags and piss off back to Pakistan.”

The decision is significant, not because it involves two high-profile politicians, but because it reinforces an important principle that applies to every Australian.

Freedom of speech is not unlimited.

When speech crosses the line into unlawful racial discrimination, Australia’s laws provide protection.

Federal Court Reaffirms That Racism Is Not Protected by Free Speech

What Was the Case About?

The proceedings arose from a social media post made in September 2022 following the death of Queen Elizabeth II.

After Senator Faruqi posted comments about the legacy of the British Empire, Senator Hanson responded by suggesting she should “pack your bags and piss off back to Pakistan.”

In 2024, Justice Angus Stewart found that the comments contravened section 18C of the Racial Discrimination Act, concluding they were reasonably likely to offend, insult, humiliate or intimidate Senator Faruqi because of her race or ethnic origin.

Senator Hanson appealed that decision.

On 27 July 2026, the Full Court unanimously dismissed the appeal, upholding the original judgment.

Why Does This Matter?

This decision is not simply about one politician or one tweet.

It confirms several important legal principles.

1. Context Matters

Courts do not examine isolated words in a vacuum.

They consider:

• who made the statement;

• who received it;

• the historical meaning of the words;

• the broader social context; and

• how an ordinary member of the relevant community would understand the message.

The Court accepted that telling a migrant to “go back” to another country is a well-known racist trope with a long history in Australia and overseas.

2. The Law Protects Individuals—and Communities

Although Senator Faruqi was the person directly targeted, the Court recognised that comments of this nature can affect many other Australians from similar racial or ethnic backgrounds.

Racial abuse aimed at one individual can reinforce prejudice against an entire community.

That is one of the reasons Parliament enacted the protections contained in the Racial Discrimination Act.

3. Free Speech Has Limits

One of the arguments advanced in the appeal was that section 18C improperly restricts political communication.

The Full Court rejected that argument.

Australia certainly values freedom of political discussion.

However, that freedom has never been absolute.

Defamation laws, contempt of court laws, privacy laws and anti-discrimination legislation all place lawful limits on speech in appropriate circumstances.

The Court confirmed that the protections contained within the Racial Discrimination Act remain constitutionally valid.

What Does This Mean for Australian Workers?

Many Australians assume that racial discrimination laws only apply in government or political settings.

They do not.

The same legislation frequently arises in workplaces.

Examples include:

• racial abuse by managers or colleagues;

• repeated racist jokes or comments;

• offensive social media conduct connected to employment;

• being treated less favourably because of race or ethnic origin;

• racial harassment by customers that employers fail to address; and

• workplace cultures that tolerate discriminatory behaviour.

Employers have legal obligations to provide workplaces free from unlawful discrimination and harassment.

Ignoring complaints can expose organisations to significant legal risk.

A Reminder for Social Media

This decision also serves as another reminder that social media is not a legal free-for-all.

Posts made online can have very real legal consequences.

Whether someone is a politician, business owner, manager or employee, publishing material that unlawfully discriminates on the basis of race may expose them to legal proceedings.

Deleting a post after the fact does not necessarily remove liability.

The Bigger Picture

Reasonable people will continue to disagree about politics, immigration, constitutional reform and many other issues.

Healthy public debate is essential in a democratic society.

However, Australia’s laws distinguish between robust political disagreement and conduct that unlawfully targets a person because of their race or ethnic background.

The Federal Court has now reaffirmed that distinction.

Whatever one’s political views, the decision reinforces that respectful debate remains protected, while unlawful racial discrimination does not.

Have you experienced racial discrimination at work?

If you believe you have been subjected to racial discrimination, racial harassment or victimisation in your workplace, it is important to obtain advice promptly. Strict time limits may apply depending on the jurisdiction.

This won’t be the last One Nation racism claim you’ll read about this year. I’m personally suing another former One Nation’s Candidate for Richmond, for racial discrimination and vilification.

Watch this space, decision pending .....