Faruqi v Hanson (evidence rulings)[2024] FCA 225
Background
Senator Mehreen Faruqi published a tweet in response to the
death of Queen Elizabeth II in September 2022 as follows:
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.
Replying to the above tweet, Senator Pauline Hanson published a
tweet as follows:
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. – PH
Senator Faruqi made a complaint about Senator Hanson’s tweet
to the Australian Human Rights Commission. When Senator Hanson
declined to participate in that process, the complaint was
terminated, enabling Senator Faruqi to pursue her claim in the
Federal Court. Senator Faruqi claims that Senator Hanson engaged in
unlawful offensive behaviour because of race, colour, or national
or ethnic origin under Pt IIA of the Racial Discrimination Act
1975 (Cth).
Expert evidence
Senator Faruqi intends to rely on the expert report of A/Prof.
JW, who has a PhD in Composition and Cultural Rhetoric, whose areas
of research focus on political and legal rhetoric, and more
specifically on how politicians and news media use repetitive
phrases and memes to impact public opinion and voting
practices.
A/Prof. JW expressed the opinion that the phrase “go back
to where you came from” has stood in for anti-immigrant
sentiment, and that Senator Hanson’s tweet illustrates how
immigrants are either acceptable or dangerous in Australian
multiculturalism.
Senator Hanson challenged the admissibility of A/Prof. JW’s
report based on: parliamentary privilege, the evidence not being
based on specialised knowledge, and the probative value of the
evidence is outweighed by its being prejudicial, misleading, and a
waste of time.
As to parliamentary privilege, the court held that deletions
from A/Prof. JW’s report have sought to remove any reliance on
anything stated or done by Senator Hanson in Parliament.71
The court was satisfied that A/Prof. JW has specialised
knowledge based on her study and experience in political and legal
rhetoric, and that she has the requisite specialised knowledge to
express the opinions that she expresses in her report, having
taught and published extensively in the area. Likewise, the court
acknowledged that rhetoric is a legitimate and recognised area of
specialised knowledge and expertise.77
Senator Hanson objected to A/Prof. JW’s evidence with
respect to her state of mind, but the court did not consider that
A/Prof. JW intended to give any evidence on this topic. It was
found that in the section of her report where she draws on Senator
Hanson’s public statements as matters of historical record,
A/Prof. JW does so for the purpose of contextualising the likely
understanding and impact of Senator Hanson’s tweet in
Australia.81 To the extent that any particular sentence in
A/Prof. JW’s report addresses Senator Hanson’s state of
mind, the court accepted that A/Prof. JW is not in a position to
give evidence on that matter.82
The court rejected Senator Hanson’s claim that A/Prof.
JW’s report is of very little probative value. Also, the court
did not accept that Senator Hanson will be prejudiced in the
conduct of her case by being restricted in the way in which her
counsel can cross-examine A/Prof. JW about parts of her report that
have been deleted because of parliamentary privilege.87
Senator Hanson also challenged Senator Faruqi’s intention to
rely on the expert reports of Prof. KR, social psychologist, and
Prof. YP, social epidemiologist, based on, among others, the
limited utility of the evidence is allegedly outweighed by its
impact on the trial and unfair prejudice to Senator Hanson. In
particular, Senator Hanson submits that the scholarly material
provided with Prof. YP’s report (1410 pages) is unduly
burdensome, and that the five days set for the trial will be
inadequate.
This objection was rejected. Insofar as burden or prejudice is
concerned, the court ruled that it is an everyday matter for
counsel to have to prepare cross-examination of experts by becoming
relative experts themselves in the relevant field, which inevitably
entails extensive reading of background scholarly material,
including the material referred to by the expert.108
The court went on further to state that the burden of
preparation of that nature is not relevant prejudice. It was also
held irrelevant that the trial may be prolonged by reasonable or
necessary cross-examination of a relevant witness, because to
exclude probative evidence on the basis that pertinent
cross-examination of it might cause a trial to exceed the days for
which it was first listed would visit prejudice on the party
seeking to adduce the evidence. 108
Ultimately, objections to the admissibility of the expert
evidence of A/Prof. JW, Prof. KR, and Prof. YP were all
dismissed.
Key takeaways
- Experts must not attempt to comment on a person’s state of
mind in their reports. - Rhetoric is a legitimate and recognised area of specialised
knowledge and expertise. - An expert report is not unduly burdensome to a party’s
counsel by virtue of being lengthy or scholarly. Barristers
regularly have to prepare cross-examination of experts, which
inevitably entails extensive reading of background scholarly
material, including the material referred to by the expert.
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