Hanson Appeal Dismissed: What the Full Federal Court's Decision Means for Free Speech and Racial Vilification in Australia

By Brian AJ NewmanEmployment & Human Rights Advocate

The Constitutional Challenge Has Failed

The Full Federal Court has now delivered what is likely to become one of the most significant decisions on racial vilification and political communication in recent Australian legal history.

In Hanson v Faruqi [2026] FCAFC 96, the Full Court unanimously dismissed Pauline Hanson's appeal, confirming that section 18C of the Racial Discrimination Act 1975 (Cth) remains constitutionally valid and that Senator Hanson's social media post contravened the Act.

The decision is significant not simply because it involves two high-profile politicians, but because it finally answers one of the most controversial constitutional questions surrounding Australia's racial vilification laws.

Hanson Appeal Dismissed: What the Full Federal Court's Decision Means for Free Speech and Racial Vilification in Australia

The Appeal Was Never Just About One Tweet

Although the case arose from Senator Hanson's response to Senator Mehreen Faruqi following the death of Queen Elizabeth II, the appeal quickly evolved into something much larger.

The Full Court was asked to decide whether:

• section 18C exceeds Commonwealth constitutional power;

• section 18C impermissibly burdens the implied freedom of political communication;

• the Court should effectively "read down" or partially invalidate section 18C so political speech receives special constitutional protection.

The parties' post-hearing submissions reveal just how broad the arguments became.

Hanson's Constitutional Strategy

The appeal adopted two alternative positions.

Primary argument

Hanson argued that sections 18B–18D should be declared constitutionally invalid in their entirety if unsupported by a constitutional head of power.

Alternative argument

If the legislation remained valid, Hanson argued that it should be partially disapplied so that political communication—particularly communications by elected parliamentarians—would fall outside section 18C.

Her submissions proposed several possible constitutional "reading down" approaches, including:

• exempting political communication generally;

• exempting political communication by Commonwealth parliamentarians;

• limiting section 18C only where political speech imposed an "unjustified burden" on the implied freedom of political communication.

The Commonwealth Took A Different Approach

Interestingly, the Attorney-General did not argue that section 18C could never burden political communication.

Instead, the Commonwealth accepted that if an unconstitutional burden were identified, section 15A of the Acts Interpretation Act 1901 could potentially allow the legislation to continue operating through "partial disapplication."

However, the Commonwealth strongly argued that any constitutional limitation must extend only as far as necessary and should never exempt all political communication from the Act.

Faruqi Rejected Any Special Rules For Politicians

Senator Faruqi's submissions attacked Hanson's proposed exemptions head-on.

They argued that:

• politicians should not receive constitutional immunity unavailable to ordinary Australians;

• creating a "politicians' exception" would undermine equality before the law;

• racial abuse does not become constitutionally protected merely because it occurs during political debate.

Perhaps the strongest observation made in the submissions was that the Court should not work backwards from the desired outcome of allowing Hanson's conduct while preserving the legislation generally.

The Full Court Rejected Every Constitutional Ground

The Court ultimately accepted none of Hanson's constitutional arguments.

According to the Federal Court's published summary:

• section 18C is supported by the Commonwealth's external affairs power;

• section 18C does not impermissibly burden the implied freedom of political communication;

• the legislation is constitutionally valid.

The Court Also Upheld The Original Findings

The Full Court confirmed that the trial judge correctly found Senator Hanson's tweet conveyed three central messages:

• that Senator Faruqi had taken advantage of Australia as an immigrant;

• that she should "go back" to Pakistan;

• an anti-Muslim or Islamophobic message.

The Court also agreed that:

• a reasonable person in Senator Faruqi's position would likely have been offended, insulted, humiliated or intimidated;

• the relevant groups identified by the primary judge had been properly pleaded;

• the racial connection required under section 18C had been established;

• the defence contained in section 18D did not apply because the publication lacked the required reasonableness and good faith.

Why This Decision Matters Beyond Politics

The implications extend well beyond these two Senators.

For many years critics have argued that section 18C suppresses free speech.

Supporters have argued that it simply establishes minimum standards protecting Australians from racial abuse.

The Full Federal Court has now effectively confirmed that Parliament struck a constitutionally permissible balance between those competing interests.

That does not mean political speech cannot be robust.

It does mean that political communication is not automatically immune from laws prohibiting racial discrimination.

The Debate Will Continue

Although the legal issues may now be settled unless special leave is granted by the High Court, the political debate almost certainly will not end.

Calls to repeal or amend section 18C have existed for decades.

Parliament remains free to reconsider where that balance should lie.

What this judgment confirms, however, is that the Constitution does not require section 18C to be struck down simply because it regulates some forms of political communication.

Final Thoughts

Whether one agrees with the outcome or not, the Full Federal Court has delivered an important constitutional ruling.

It reinforces that Australia's implied freedom of political communication is not an unrestricted personal right to say anything in every circumstance. Rather, it is a constitutional limitation designed to preserve Australia's system of representative government, while still allowing Parliament to enact laws that serve legitimate public purposes—including protecting people from racial discrimination.

For advocates, employers, public officials and everyday Australians, the message is clear:

Political debate remains strongly protected in Australia—but it is not beyond the reach of laws designed to prevent unlawful racial vilification.