two groups have combinations of the pleaded characteristics (a), (b), (c) and (e), namely persons of colour, migrants to Australia, persons born in Australia who are of migrant heritage and Muslim people. The inclusion of people who are of relatively recent migrant heritage with migrants recognises that first or second generation Australians are often and easily characterised or treated as immigrants, and also that as a matter of historical fact all Australians descending from those who have arrived after the British settlement of Australia are technically of migrant heritage. This is explained by Professor Paradies (T107:10-21).
234 The other categorisations are too broad to be of utility because they are not reasonably considered the targets of Senator Hanson's tweet. For example, the hypothetical reasonable person in Australia who is not a person of colour and who is not a migrant or of relatively recent migrant heritage or Muslim would be likely to find the tweet offensive, possibly even to the requisite degree of seriousness, because of its attack on vulnerable groups and its inherent racism, but the members of such a group are not the target or the subject of the tweet; they are not the people that the legislation is aimed at protecting.
The likely reaction
235 The conduct is assessed from the point of view of the hypothetical representative in relation to the claim that the group of people were offended, etc, and in relation to each of the identified persons where a personal claim is made: Eatock v Bolt at [250]. Moreover, it must be remembered that a group of people may include the sensitive as well as the insensitive, the passionate and dispassionate, and the emotional and the impassive, so the "ordinary" or "reasonable" member or members of the group should be isolated for the assessment: Eatock v Bolt at [251].
236 It was said in Kaplan (at [513]) that in the operation of para (a) in respect of "a group of people", "an applicant need not prove the likely objective reaction or effect in the entire group, but must at least prove the likely objective reaction or effect in most of the group" (emphasis in original). That was later expressed differently as being a requirement in relation to "enough of the group that the purpose of the legislative prohibition is advanced." I do not read those statements as saying anything different from what was said in Eatock v Bolt about the hypothetical representative of the group, but rather to emphasise that that construct must have the group as a whole in mind, or most or enough of its members, so that the inquiry is not too sensitive to the idiosyncratic – it should exclude the exceptionally robust and the hypersensitive or peculiarly susceptible.
