referred to at [38] above. It is not necessary to go into the detail of each one. It suffices that in each she perceived that she was treated differently because of her race, colour or religious/cultural observance (eg wearing a shalwar kameez in one incident and not wishing to wear shorts in another), and objectively on the facts presented that is what occurred. The case of being forced to wear shorts to play football is a typical example of a facially neutral condition that is indirectly discriminatory–it prejudices only those with cultural or religious reasons not to wear shorts and in that way casts them as outsiders. The submission that there were objectively no grounds for Senator Faruqi to have taken offence in those incidents is rejected as unfounded.
257 There is no basis to find that Senator Faruqi's actual reaction to Senator Hanson's tweet, and the effects of it that she experienced, are unusual or out of the ordinary. There is also no basis to find that she is overly sensitive or lacking in resilience. Indeed, her family, professional and public service history would all suggest that she is highly competent, purposeful and self-assured which tends to suggest that she is not overly sensitive or lacking in resilience. The fact that the tweet had the effects that it did on her serves to support the conclusion that it is reasonably likely to have had serious effects on the so-called reasonable victim.
258 It is well established by the evidence that the likely effects of the messages in Senator Hanson's tweet rise to and above the necessary "gravity or severity inherent in the prohibition" in s 18C, and that they are "profound and serious" and cannot be "likened to mere slights" (see Kaplan at [30] and Constantinou at [21] referred to above). I find that the para (a) requirements are established.
PARA (B) – DONE BECAUSE OF RACE, ETC
The principles
"Because of"
259 Bearing in mind the terms of s 18B (canvassed at [22] above), for an act to have been done "because of" a relevant attribute, it suffices that it be "a factor" in the respondent's decision to act: Creek v Cairns Post at [28]; Toben v Jones at [37] per Carr J, [62] per Kiefel J and [152] per Allsop J. That is to say, what must be shown is that "a reason for the conduct … was the race [or other attribute] of the group found reasonably likely to have been offended, insulted, humiliated or intimidated": Kaplan at [526].
