It’s a sad sign of how thoroughly our institutions have been captured that a string of obviously bad court judgments have had to go all the way to the High Court. Judgments so obviously at odds with not just the law and natural justice, but basic commonsense.
The case against Cardinal George Pell, for instance. From the very beginning, it was obvious that this should never have proceeded. Police went fishing in the absence of any complainants and DPPs repeatedly rejected the brief. One of the ‘victims’ (conveniently deceased by the time Victoria Police rammed the case through courts) was on the record explicitly denying anything had happened. Witnesses reported nothing happening. Circumstances – the timeline, the layout of the place – defied any realistic idea that it even could have happened.
Yet, two lower courts simply waved it on through. It took the full bench of the High Court to unanimously decide an innocent man had been framed.
Entrepreneur Sall Grover also knows a thing or two about the ideological capture of the courts. She is also having to fight all the way to the High Court in the pursuit of the commonsense admission that a hulking man in a wig is not a ‘woman’.
Now it’s Pauline Hanson’s turn to be put through the punishment-by-process of having to go all the way to the High Court in pursuit of justice and commonsense.
A leading constitutional law expert has cast doubt on the Federal Court’s decision to reject Pauline Hanson’s appeal in her racial discrimination case, saying free speech issues are not given the “proper judgment” they deserve.
Hanson’s crime? Responding to Greens senator Mehreen Faruqi’s disgusting tweet on the day of Queen Elizabeth II’s death, sneering about a “racist empire”, by telling the Pakistani-born politician that if she found Australia so appalling she could “piss off back to Pakistan”. A rough, direct and thoroughly Australian retort between two politicians on a political matter. The sort of thing that once passed for robust debate.
Instead, the Federal Court found it breached section 18C of the Racial Discrimination Act. The Full Court upheld that ruling last month. Hanson is now preparing to seek leave for the High Court.
Constitutional law expert Professor Emerita Anne Twomey has already flagged the problems. The judgment, she notes, is contradictory, ignores the most recent High Court authority on the implied freedom of political communication, and leaves the reasoning muddy in key places. These are important constitutional issues that have not been given the proper analysis and judgment they deserve.
The High Court itself established that Australians enjoy an implied right to free speech in political communications. If that right does not protect a politician criticising another politician over a political issue – here, the Queen’s legacy and national identity – then it is meaningless. Or worse, a polite fiction wheeled out only when it suits the right people.
The real farce is the double standard. Faruqi’s own record makes a mockery of her victimhood. Faruqi is more than happy to boost unabashed racism when it suits her own bigotry.
When her son, Age journalist Osman Faruqi, tweeted that “Mediocre white people should be in the bin but instead they own everything and are every-f***ing-where,” she refused to call it racism. Instead, she resorted to offensive blanket statements about white people. Textbook race essentialism dressed up as progressive insight.
Faruqi has form of her own. She has bellowed the genocidal Hamas rallying-cry in parliament and defended the defacing of the Australian War Memorial with the Hamas death-mark. She has posed smiling beside a placard depicting the Star of David being dumped in a bin under the slogan “Keep the world clean”. The message was unmistakable. Cleanse the world of Jews. She later claimed not to have noticed.
One rule for thee, another for me. A white, working-class Queenslander tells a migrant politician to leave if she hates the place: racial vilification. A migrant politician’s son tells white people they belong in the bin, and the politician herself traffics in blood libels against Jews: free speech, or better still, “speaking truth to power”.
This is what institutional capture looks like. Lower courts enforce the ideology. Experts like Twomey point out the legal holes. And ordinary Australians are left watching a politician who lectures about racism while practising a selective, power-obsessed version of it herself, while the woman who dared answer back must spend years and a fortune chasing commonsense all the way to the highest court in the land.
If the High Court does not restore the implied freedom to actual meaning, it will confirm what many already suspect: the law is no longer a shield for free political speech. It is a weapon for those who have decided which opinions are permitted and which are not. And the rest of us can just piss off – especially if we’re white.
