237 Similar considerations apply in relation to the individual – the "another person" in para (a). In applying the objective test it is necessary to take the perspective of the hypothetical person, sometimes referred to as the "reasonable victim", who might possibly be offended by an act of the type in question: Clarke at [50]. It is necessary to consider the hypothetical person in the applicant's position: Creek v Cairns Post at [13].
238 The words "offend, insult, humiliate or intimidate" take their ordinary English meanings: Jones v Scully at [102]–[103]; Bropho at [67], [69]. As identified in Clarke at [66], those meanings may include the following:
offend — to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult — to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage …
humiliate — to make low or humble in position, condition or feeling, to humble … to subject to humiliation; to mortify.
intimidate — to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.
239 However, para (a) only applies to conduct that has "profound and serious effects, not to be likened to mere slights": Creek v Cairns Post at [16]; Bropho at [70]; Eatock v Bolt at [268]; Kaplan at [506]; Constantinou v Australian Federal Police [2024] FCA 123 at [21] per O'Bryan J. While there is "an aspect of gravity or severity inherent in the prohibition" (Kaplan at [30]), "the effect need not be at the extreme level of 'racial hatred'" (Kaplan at [506]).
240 The requirement that the act is "reasonably likely" to have the requisite effect is satisfied if there is a "real" and "not fanciful or remote … chance" of the relevant outcome: Eatock v Bolt at [260]. That is to be assessed on the balance of probabilities on which the applicant bears the onus of proof: Bropho at [65]; Eatock v Bolt at [261].
241 Necessarily, the judge, whatever their own life experience, must try to put themselves in the position of the reasonable member of the group or the reasonable victim, and see matters from their perspective; the judge must guard against judging matters of "offence" etc by how they personally are made to feel by the conduct in question or by how, based on that, they think other people would generally or likely respond. It is in this context that the evidence of members of the group and the relevant person can assist the judge in that endeavour; without uncritically adopting that evidence and thereby wrongly applying a subjective test, it can enable the judge to better understand a perspective that may not naturally be their own.
