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When the case returned for a final day of trial on Thursday, Henson’s barrister Kieran Smark SC said the Greens senator’s skin color was the last thing his client was thinking about when she sent the tweet in September 2022.
“Your Honor would have no proper basis to conclude that ‘go back to Pakistan’ has anything to do with skin color or indeed religion,” he told Judge Angus Stewart.
“What it’s about is the death of the Queen and talking about these political causes at the time.”
The Greens MP tweeted hours after the Queen’s death that he could not mourn the death of the leader of a “racist empire built on the stolen lives, land and wealth of colonized peoples”.
Henson responded by saying she was appalled and disgusted by the Greens senator’s comments, telling her to “pack her bags and get angry back in Pakistan”.
Smark rejected the claim that what “triggered Sen. Henson” was the fact that Faruqi was dark-skinned or Muslim.
“We’re saying it’s just far, far in the realm of not just speculation, it’s just unsubstantiated,” he said.
Henson’s comments were a “rhetorical device” used to attack and criticize Faruqi in a way that was not meant to be kind or polite, he told the court.
“There’s the engine of Hanson’s anger … and disgust that drives the sending of this message,” he said.
“Color seems to be the last thing on his mind.”
Given the One Nation leader’s history of being outspoken against Muslims and Islam, one would expect it to be mentioned in the tweet if it was racially motivated, Smark said.
“If she has something to say about Islam, then she will,” he told the court.
“His absence from the tweet is conspicuous.”
Stewart said he struggled to understand how Faruqi’s tweet was an attack on the Queen herself, as opposed to the institutions of monarchy and colonialism.
Smark argues that while lawyers can distinguish between the two, that doesn’t mean the average person would.
The judge also questioned the One Nation leader’s claim that she had responded to highlight the Greens senator’s hypocrisy in “taking advantage” of living in Australia while criticizing the Queen.
He noted that Hanson was also very outspoken when criticizing government policies.
“Why is it hypocritical for anyone else to be critical of aspects of Australia or its history unless it’s because they’re from somewhere else and not really welcome here?” he asked.
The attack was legitimately launched and addressed political issues, Smark said.
The hypocrisy involved breaking the well-known convention that one should not criticize someone within hours of their death, he told the court.
Smark also made submissions as to why certain sections of the Racial Discrimination Act relied on by Faruqi should be struck down as contrary to the constitutionally implied freedom of political communication.
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