278 On the basis of what I have set out in the preceding paragraphs, there is a case to be made that Muslims in Australia are an ethno-racial group within the meaning of s 18C(b) identified above and not merely a religious group. It may also be that judicial notice could properly be taken of the characteristics that I have identified in the immediately preceding paragraph under s 144 of the Evidence Act. But those are not characteristics that have been put to the parties to enable them to make submissions and to refer to information as required by s 144(4). Perhaps they are more "open to question" and less "common knowledge" than what they seem to me to be (s 144(1)). In the circumstances, I am hesitant to make a finding on Muslims in Australia as an ethnic or ethno-racial group.
279 Another difficulty is that one can conceive of circumstances in which something highly offensive, insulting etc is said about a Muslim or group of Muslims, but not because of their race, colour or national or ethnic origin. For example, something meeting the high-level requirements of para (a) may be directed at some particular aspect of Islamic beliefs or practice that is quite separate from and unmotivated by any of the para (b) factors, ie a discretely religious doctrinal attack or criticism. If Muslims or Muslims in Australia were to be regarded as a necessarily protected group within the meaning of para (b), then such a case would fall foul of s 18C which may be beyond its ordinary and intended meaning.
280 The result of that is that I do not read the para (b) requirements to necessarily be met if it is established that the relevant act was done because a person or a group of people is Muslim. However, as I will come to, in a particular case it may be established that by the act being done because a person (or a group of people) is Muslim, the act was also done because of the race or colour or ethnic origin of the person (or group). That will depend on the intersectionality between their identity as Muslim and their identity with reference to race, colour or national or ethnic origin. Thus, the role played by a person or a group of people's Muslim identity will be fact dependent in each case.
Consideration
281 When answering the inquiry called for by para (b), it is the relevant offensive conduct that is at the heart of the inquiry. Thus, the inquiry is whether race, etc, was a factor in Senator Hanson publishing the tweet in the offensive terms that she used, not simply in publishing an angry tweet in response to Senator Faruqi's tweet.
282 A place to start in answering the question whether Senator Hanson published her tweet "because of" the race, colour or ethnic or national origin of the relevant group or of Senator
