260 It was said by Kiefel J in Toben v Jones at ([63]) that the inquiry is as to the "true reason or true ground" for the conduct. See also Bharatiya at [18]; Kaplan at [526], [536]. Her Honour explained that a person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did, and there may be other circumstances which throw light upon the reason for their actions. As will be seen, those observations are particularly pertinent in the present case.
261 The requisite causal connection is between the conduct and the race, etc, of the person or group reasonably likely to be offended, insulted, humiliated or intimidated: Eatock v Bolt at [307]; Bharatiya at [19]; Kaplan at [524]. The conduct is the same conduct as that referred to in para (a), ie the conduct that is reasonably likely to cause offence, etc: Eatock v Bolt at [304]; Kaplan at [530], [536]. "Motive is not necessary, but in any given factual situation may be relevant, indeed centrally relevant": Kaplan at [526]; see Toben v Jones at [151]. The provision "does not require that there be an intention to offend, insult, humiliate or intimidate another person or a group of people in order for an act to be unlawful": Bharatiya at [14].
262 "[T]he quality of offensiveness of statements might be used to deduce something about motive and in any given factual situation could perhaps supply the causal connection required by s 18C(1)(b)": Toben v Jones at [67]; Kaplan at [541]. But "[t]he making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires": Toben v Jones at [69]. Further, "[s]ome statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others": Toben v Jones at [69].
"Race, colour or national or ethnic origin"
263 Paragraph (b) uses the expression "race, colour or national or ethnic origin." None of the component parts is defined. I accept, as observed by Bromberg J in Eatock v Bolt (at [310]), that the attributes in para (b) have an obvious overlap. Together they comprise a composite expression with each component bringing its own meaning or emphasis to the "somewhat elusive concept of race", with the expression itself being intended to offer a broad and non-technical basis for protection against what might loosely be referred to as racial discrimination: see Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 1643; 90 FCR 202 at 209–211 per Carr, Sundberg and North JJ. The EM to the Racial Hatred Bill 1994 which led to the inclusion of Pt IIA in the RDA explained as follows:
