The Full Federal Court’s decision in Hanson v Faruqi [2026] FCAFC 96 is an appalling failure of judicial reasoning. It applies section 18C of the Racial Discrimination Act 1975 (Cth) in a way that ignores more than two millennia of social custom, the clear circumstances of the exchange, and the judiciary’s proper role in giving effect to what society intended the law to achieve. The decision is not merely wrong; it reveals a systemic problem that demands major reform.
The facts
On learning of the death of Queen Elizabeth II, Senator Mehreen Faruqi posted that she would “not mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples.” Senator Pauline Hanson replied, telling Faruqi to “pack her bags and piss off back to Pakistan.” Faruqi sued under section 18C. The Full Federal Court held that Hanson’s post was unlawful, dismissed her appeal, and ordered her to pay damages and costs. Leave to the High Court may yet be sought.
The statute
Section 18C makes it unlawful to do an act, otherwise than in private, that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Section 18D exemptions are not in play here.
Strict application already exposes the absurdity
Faruqi’s original post was itself reasonably likely to offend a large number of Australians, particularly on the day of the Queen’s death. It was also factually false: Queen Elizabeth II directed no such theft. On a literal reading, Faruqi’s statement engaged section 18C. Hanson’s reply, considered in isolation, was also reasonably likely to offend Faruqi. Yet the Court treated the mere act of telling someone to return to their country of birth as necessarily done “because of” national or ethnic origin. That is a stretch few ordinary people would accept. The same logic would criminalise telling a visa overstayer who has committed serious crimes, or any other person whose conduct has rendered them unwelcome, to leave. Most Australians would regard those statements as responses to conduct, not to origin. The Court’s approach therefore converts ordinary, context-driven speech into unlawful acts.
Colourful language (“piss off”) is irrelevant under the statute’s plain words; the test is simply whether the statement is reasonably likely to offend. Strict textualism therefore catches both speakers—or neither—depending on selective application. The Court chose only Hanson.
The spirit of the law and long-standing custom
Courts exist to give effect to the intention of the legislation as understood by the society that authorised it. Parliament cannot foresee every factual permutation; that is why judges are required to look beyond bare words to the mischief the law was meant to remedy.
Society enacted section 18C to stop unprovoked racial abuse of visitors, temporary residents, and foreign-born citizens simply because of who they are. It was never intended to immunise a provocative attack on the host society’s symbols and then punish the retaliatory response. Hanson’s post was not an unprovoked declaration that people of Pakistani origin are unwelcome. It was a direct reply to Faruqi’s own public contempt for Australia’s Head of State and its history.
Two customs older than any modern statute illuminate why that reply was reasonable.
First, the universal custom of hospitality. Across continents and cultures—Native American nations, Bedouin and Arab nomads, steppe peoples, sub-Saharan tribes, medieval Europe, classical Greece, China, and the major religious traditions—hosts extend shelter and protection; guests are expected to show respect, obey household or community rules, and not abuse the host. Faruqi arrived in Australia as an adult, studied and worked in taxpayer-funded roles, and now occupies a Senate seat. Australia extended hospitality under a constitutional monarchy headed by Queen Elizabeth II. Faruqi’s public repudiation of that Head of State and of the society that admitted her is a breach of the guest’s reciprocal duty. Most Australians recognise that breach.
Second, the near-universal custom against speaking ill of the dead, observed across cultures and religions since antiquity. Faruqi’s post, timed to the Queen’s death and directed at her subjects, violated that norm.
Provocation of this kind – flagrant disregard of hospitality custom and speaking ill of the dead – has long been understood to licence a robust reply. The ancient caution remains sound: if you poke the bear or kick the beehive, do not complain about the consequences.
In these circumstances the Court sanctioned the responder and left the provocateur untouched. That outcome is the opposite of what the community that authorised section 18C would regard as just.
The judiciary’s proper role
Judges are not mere linguistic technicians. Their function is to serve the people by applying legislation considering its purpose and the enduring social understandings that give that purpose content. Pure literalism that discards context, custom, and the distinction between unprovoked racial abuse and a provoked response is an abdication of that function. If the task were only to match words on a page, no judiciary would be required.
The unanimous Full Court decision shows the problem is not one aberrant judgment. It is systemic. A judiciary that systematically prefers sterile textualism over the spirit of the law, long-settled custom, and ordinary community standards has ceased to serve the people who ultimately authorise its power. Major reform is required—urgently.