225 The assessment needs to be undertaken by reference to a "person or group of people": Eatock v Bolt at [243], [246]; Kaplan v Victoria (No 8) [2023] FCA 1092 at [507] per Mortimer CJ. The present case is put in relation to both a person, Senator Faruqi, and a group. Noting the use of the indefinite article in para (a) – "a group" – followed by the definite article in para (b) – "the group" – which indicates that the group in para (b) is the same group as in para (a), this group must be identified in some way with reference to the characteristics listed in para (b), ie race, colour or national or ethnic origin. Identification of the appropriate group or groups is not straightforward.
226 In Creek v Cairns Post (at [13]), Kiefel J described the group with reference to who was likely to be offended, insulted, etc. That was said to be "an Aboriginal mother, or one who cares for children, and who resides in the township of Coen." In Jones v Toben [2002] FCA 1150; 71 ALD 629 (at [96]), Branson J, also with reference to the group that was likely to be offended, insulted, etc, described the relevant group as "members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability."
227 In Jones v Scully (at [108]–[109]), Hely J described the group as Jews in Australia, or Australian Jews. That is because the impugned material was directed against Jews and was distributed in Australia.
228 In Eatock v Bolt (at [287]) the group was described as "fair skinned Aboriginal persons." That was an obvious description because it was the explicit target of the impugned act.
229 In Clarke (at [191]) the group was described as "adult members of the local Aboriginal community, including parents and carers of children." Justice Barker noted (at [189]–[190]) that there is a danger in describing the group too narrowly because that could lead to the focus of the inquiry becoming the subjective or emotional response of a particular person or particular people, but that there is also a danger in describing it too broadly because an act which might truly be offensive will not be so regarded by a reasonable member, or all reasonable members, of a wider group. The point is illustrated by Hagan in which Drummond J (at [25] and [28]) described the group as "members of the Toowoomba indigenous community." His Honour found that members of that Indigenous community were not likely to be offended, etc, by the sign "The ES 'Nigger' Brown Stand" on a football stadium (referring by nickname to the distinguished local athlete Mr ES Brown), although the applicant and members of his immediate family would be. That was because Mr Brown in his time and thereafter had
