Christopher Jon Bjerknes
Even if the courts in Australia arbitrarily and in plain error rule that the term "Jew" can be applied to a "race" and/or an "ethnicity"; the courts must also rule that the term "Jew" can be applied to a religious community, a group of persons which anyone can enter by way of conversion to the faith without changing one's genetics or ethnic status. This places the burden of establishing the defendant's mental state on the prosecution, and one of the elements of the alleged "offense" must be that the government prove that the defendant believed and meant to say that "Jews" are a race or ethnicity, as opposed to a religious group.
It is important that the court not only determine whether or not "Jews" can be categorized as a race or an ethnicity, but more importantly whether or not the term "Jews" can accurately be applied to a religious group. This applies not only to the trial, but also to the indictment itself, which, to be sufficient to claim an offense, must allege that the defendant meant to state that "Jews" are a race or ethnicity, an allegation which must first be made in the indictment, then proven at trial, which it cannot be.
If the indictment fails to allege that the defendant believed the "Jews" to be a race or ethnicity, and that the defendant used the term "Jew" to intentionally categorize and vilify a race or ethnicity, then the indictment does not allege an offense and must be dismissed. Should the court ever hold hearings to determine whether or not "Jews" can be accurately categorized as if a race or ethnicity, without concurrently holding hearings to determine whether or not "Jews" can be accurately categorized as a religious group, then the court will have violated the defendant's due process rights to argue his defense and to not be prosecuted under an indictment which fails to allege that a crime has been committed.
If the government is allowed to prosecute the defendant without alleging an offense and all of its elements, if the government is allowed to indict the defendant without alleging that the defendant believed that the "Jews" are a race or ethnicity, then the government will not have to prove what was not alleged, and an innocent man will face the loss of his liberty for a charge that fails to allege that a crime has been committed.