Following the announcement of the death of Queen Elizabeth II, Greens Senator Maureen Faruqi tweeted: ‘Condolences to those who knew the Queen.

I cannot mourn the leader of a racist empire built on stolen lives, land and wealth of colonised peoples. We are reminded of the urgency of Treaty with First Nations, justice & reparations for British colonies & becoming a republic.’

In reply, Senator Pauline Hanson tweeted:

‘Your attitude appalls and disgusts me. When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament. It’s clear you’re not happy, so pack your bags and piss off back to Pakistan.’

Hanson’s ‘piss off back to Pakistan’ was found by a Federal Court judge to be unlawful under s 18C of the Racial Discrimination Act 1975 (Cth). Faruqi’s slander of Western civilisation and British colonialism was not questioned. Faruqi and the judge should read Nigel Biggar’s Colonialism: A Moral Reckoning, in which he states, ‘Not all failure to do good or avoid evil is immoral and culpable. Some of it is honest and tragic. Where that is so, the fitting response is not blame, but compassion.’

Alas, blame prevailed, and the court ordered Hanson to pay Faruqi’s costs. Faruqi wanted to rub Hanson’s nose in it by requiring her to donate $150,000 to the Sweatshop Literacy Movement in Western Sydney and undertake anti-racism training. Thankfully, the judge denied the request.

To a bad Act should be added an addled decision by a judge who swallowed the intergenerational trauma gambit, the white fragility and minority powerlessness tropes, intersectionality, identity theory and more. Poor legislation opened the door to every dingbat theory under the sun and moon.

Professors were trotted out to add weight to Faruqi’s claims of hurt. The judge opined, ‘With regard to the question of equivalence between white and black racism, Senator Faruqi’s view is orthodox. As explained by Professor Paradies, a racist slur at someone based on their membership of a powerful group is qualitatively different from such a slur at a member of a marginalised or oppressed group.’ This is straight-out radical identity theory. It is anything but orthodox and should, in any event, never be entertained as proof in a court of law.

The judge stated, ‘Senator Hanson’s tweet conveys messages targeting immigrants, people of colour and Muslims.’ Clearly, it does not. It refers to someone not born in Australia. Faruqi was born in Pakistan; where else would she go back to? Suggesting someone should piss off is a reference to ‘be gone’. Adding a place of birth is common; it does not rise to the level of some life-altering insult.

The leader of Faruqi’s party, Adam Bandt, who tweeted about the Queen, was rhetorically invited to leave the country by another Federal member of Parliament. The overwhelming sentiment was ‘if you don’t like it here, leave’ (irrespective of where you come from).

The Hanson tweet was not made ‘because of’ race but in response to Faruqi’s tweet, which attacked the late Queen. Faruqi’s position as an immigrant was the only material used by Hanson to demonstrate Faruqi’s hypocrisy, as Hanson saw it.

The Act requires that Faruqi must be a group member. Faruqi claimed membership as someone of migrant heritage, born in Australia. But she was not born in Australia. She claimed that because of her appearance, she had been incorrectly identified as a migrant. She was not ‘incorrectly’ identified as a migrant because she is a migrant.

And she claimed membership in a group with ‘visible signs or expressions of religion’. There was no evidence of visible signs or expressions of Islam. Further, ‘People from Pakistan’ is not a group that Faruqi pleaded, nor a group that her ‘expert’ witnesses were asked to consider. Moreover, ‘Muslims’ are not protected under the Act.

Faruqi has shown an intense dislike of much in Australia’s liberal society. Her tweets are anti-liberal, anti-free speech, and anti-freedom of political communication. Her comments, as were Hanson’s, were political. Faruqi attributed her life circumstances to the tweet. Her ‘emotional toll’ may be real, but where was the proof that Hanson’s tweet was responsible? The Act applies only to serious or profound conduct. A spat between public officials does not qualify.

Anyone with regard for free speech and the oppressive Section 18C of the Racial Discrimination Act should support Hanson’s appeal here.

Gary Johns is chairman of Close the Gap Research