Since 11 September 2001, Muslims around Australia have reported increased levels of anti-Arab and anti-Muslim prejudice, discrimination and vilification. Community leaders say these attitudes have caused fear, isolation and uncertainty within their communities. Do our laws offer them effective protection against discrimination and vilification?

This issue of the Erace Forum examines whether Muslims are protected by the Racial Discrimination Act 1975. The Act (the 'RDA') outlaws discrimination and vilification based on race, colour, descent, national origin or ethnic origin - but not religion.

"In 1998 the Commission recommended that religious discrimination be made unlawful in all areas of public life, albeit with appropriate exemptions for religious institutions. This recommendation has not yet been taken up by the Government", Acting Race Discrimination Commissioner, Dr William Jonas said. "Yet discrimination and vilification because of religion persist, particularly affecting Muslims and Jews."

Jews and Sikhs are currently covered by the RDA because they are recognised as ethnic groups as well as religious groups. However, Australian courts have yet to decide whether Muslims share an 'ethnic origin' as well as a religion. "In the meantime", Dr Jonas noted, "it may seem anomalous that anti-Semitism is outlawed but Islamophobia is not."

If federal legislation is not amended to make religious discrimination unlawful, the future inclusion of Muslims will depend on whether courts accept evidence that Australian Muslims see themselves and are seen by others as sharing an ethnic origin. The interpretation of the term 'ethnic origin' is outlined in a HREOC paper on 'Islam and the RDA'.

"I invite readers to comment on the issues raised in this paper", Dr Jonas said. "I am especially keen to hear your views on the following questions:

• How do Australian Muslims identify themselves and how are they seen by others in the community - as members of an ethnic group or a religious group or both?
• When Muslims from the Middle East are vilified or discriminated against, is it because of their religion, their ethnicity or a mixture of both?
• Should religious discrimination and vilification be covered by federal law?"

Important note: discrimination and vilification against Muslims because of their race, colour, descent, national origin or ethnic origin is covered by the RDA.

Islam and the RDA

Introduction

The Racial Discrimination Act 1975 (Cth) (the RDA) makes racial discrimination and vilification unlawful in Australia. The RDA covers discrimination and vilification based on race, colour, descent, national origin or ethnic origin, or being a relative or associate of someone of a particular race, etc.

It does not cover discrimination or vilification based on religion.

However, it is important to note that Muslims can make complaints to the Commission about discrimination or vilification when the act was based on race, colour, descent, national origin or ethnic origin.

The only national law protecting people from discrimination because of their religion only applies to employment and is not enforceable in court. :"(Human Rights and Equal Opportunity Commission Act 1986 - Cth - Part II, Division 4, referring to Convention Concerning Discrimination in Respect of Employment and Occupation - ILO 111.)":

Coverage of Muslims by State and Territory anti-discrimination laws varies. Because there is no national protection against religious discrimination or vilification, we need to ask whether the term 'ethnic origin' can apply to Muslims in Australia in any circumstances.

• How do Australian Muslims identify themselves and how are they seen by others in the wider community - as members of an ethnic group or a religious group or both?
• When Muslims from the Middle East are vilified or discriminated against, is it because of their religion, their ethnicity or a mixture of both?
• Should religious discrimination and vilification be included in federal law?

These are the questions posed for your comments in this issue of the Erace Forum. Questions about any aspect of this paper or information about your personal experience would also be welcome.

Defining 'ethnic origin'

Although it is used in both the treaty on which the RDA is based (the 'Race Convention') and the RDA itself, the term 'ethnic origin' is not defined there. No Australian cases have yet decided the question whether Muslims are covered by the term.

In the absence of clear legal precedent, how would a court go about defining 'ethnic origin'? There are five main sources for defining this term (in a court of law):

1. The words should be given their plain and ordinary meaning unless it is clear that the Parliament intended something else
2. The interpretation should promote the objects of the Act.
3. Other evidence of Parliament's intention may be consulted. :"(Acts Interpretation Act 1901 - Cth - section 15AB.)":
4. The interpretation of the RDA should be consistent with the interpretation of the Race Convention.
5. The approach of the courts in other common law countries may assist.

1. Plain and ordinary meaning of the words

How would a court interpret the plain and ordinary meaning of 'ethnic origin'?

Judges will often begin with a dictionary definition. We consulted two dictionaries: the Concise Oxford (1995) and the Macquarie (1997).

Both record that the word 'ethnic' is derived from the Greek word 'ethnos' which has been variously translated as 'heathen', 'pagan', 'foreigner', 'nation' or 'people'. :"(Richard Jenkins, Rethinking Ethnicity: Arguments and Explorations - Sage Publications, London, 1997 - at page 9. See also Marie de Lepervanche, 'From Race to Ethnicity', 1980 16-1 Australian and New Zealand Journal of Sociology. )":

The Concise Oxford defines 'ethnic' as having a common national or cultural tradition; denoting origin by birth or descent rather than nationality; relating to race. 'Ethnic minority' means a '(usually identifiable) group differentiated from the main population of a community by racial origin or cultural background'. A 'race' is defined as 'A tribe, nation, etc regarded as a distinct ethnic stock; a group of persons connected by common descent'. In the Shorter Oxford version, therefore, the concept of 'ethnic origin' is (1) a close relation of the concept of 'race' and (2) is defined by a shared culture or a common biological ancestor or both.

The Macquarie Dictionary defines an 'ethnic group' as a group of people racially or historically related, having a common distinctive culture. In this version an ethnic group always shares a common culture. Having a common language is given particular emphasis in the definition of 'ethnic'. An ethnic group is constituted by individuals with a shared biology/descent or history (or both). The Macquarie sees ethnicity as distinct from race (although they are 'loosely' connected). 'Race' refers to shared physical characteristics transmitted by descent.

'Origin' is defined in both dictionaries as a 'person's parentage or ancestry' without limiting the term to a specific place or geographical territory.

Care should be taken about relying too much on dictionary definitions which may be too simplistic or too technical. Judges refuse to be 'tied to the precise definition in any dictionary'. Instead they ask how a term is used by people 'who read newspapers at the present day'. :"(Mandla v Dowell Lee [1983] 2 AC 548, per Lord Fraser at 562.)":

Despite their relative complexity, other sources of information such as anthropological and sociological literature may help to shed light on the 'plain and ordinary' meaning of ethnic origin.

Key question: What is the current understanding of the term 'ethnic origin' in Australia - i.e. the plain and ordinary meaning of the words?

2. Object of the Act

The interpretation of the phrase 'ethnic origin' in the RDA should promote the purpose or object underlying the Act. :"(Acts Interpretation Act 1901 [Cth] section 15AA; Mills v Meeking - 1990 - 91 ALR 16 at 30-31.)": The RDA does not contain an 'objects' clause but its preamble stipulates that the intention of the Act is 'to make provision for giving effect to the [Race] Convention' and to prohibit 'racial discrimination and certain other forms of discrimination'.

Attorney-General Enderby began his 1975 Second Reading speech about the RDA with the statement that, 'The purpose of this Bill is to make racial discrimination unlawful in Australia and to provide an effective means of combating racial prejudice in our country'. :"(House of Representatives Hansard 13 February 1975, page 285.)": He later said, 'The Bill introduces into Australian law for the first time the obligations contained in the International Convention on the Elimination of All Forms of Racial Discrimination'. :"(Explanatory Memorandum, Racial Hatred Bill 1994 [Cth], pages 2-3.)": These statements confirm the importance of referring to the way the Race Convention is interpreted (see point 4 below).

3. Other evidence of Parliament's intention

There was no Explanatory Memorandum for the RDA and Attorney-General Enderby's Second Reading speech did not discuss the meaning of any of its terms, including 'ethnic origin'. When the RDA was amended in 1995 to include racial vilification, however, the Explanatory Memorandum explicitly stated an intention to include Muslims:

The terms `ethnic origin' and `race' are complementary and are intended to be given a broad meaning. The term `ethnic origin' has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p. 531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p. 562). It is intended that Australian courts would follow the prevailing definition of 'ethnic origin' as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

The term `race' would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims. :"(Re Bolton; ex parte Beane - 1987 - 70 ALR 225 at 227-228, per Mason CJ, Wilson and Dawson JJ)":

However, the Explanatory Memorandum is not conclusive. If the Explanatory Memorandum is at odds with the clear intention of the legislation when looked at in isolation, it will be unlikely to influence the court's interpretation. :"("The words of a Minister must not be substituted for the text of the law . . . It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of parliament as expressed in the law.")":

Key question: How much weight should be given to the 1995 Explanatory Memorandum?

4. Consistency of interpretation with the Race Convention

Australia's RDA was intended to incorporate our international obligations as set out in the Race Convention - the International Convention on the Elimination of All Forms of Racial Discrimination (also shortened to 'ICERD'). The RDA should, as far as possible, be interpreted in the same way as the Convention. :"(Applicant A v Minister for Immigration and Ethnic Affairs - 1997 - 190 CLR 225; De L v Director General of Community Services - 1996 - 187 CLR 640 at 675; Waters v Public Transport Corporation - 1991 - 173 CLR 349 at 359, 372, 394 and 406-407.)":

The starting point for interpreting the Convention is the intentions of the countries which drafted it. Did they intend to protect Muslims or members of other religions in any circumstances?

Two things are certain. The first is that the Race Convention was not intended to include religious discrimination. :"(Egon Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination' - 1966 - 15 International and Comparative Law Quarterly 996 at page 999; see also Natan Lerner, Group Rights and Discrimination in International Law - Martinus Nijhoff Publishers, 1991 - at page 123.)": The United Nations originally envisaged a joint treaty covering both racial and religious discrimination. There was opposition to this and, as a compromise, religious discrimination was relegated to the back burner. :"(The opposition to a joint treaty came principally from Arab countries - reflecting the Arab-Israeli conflict - and Eastern European countries which considered issues relating to race to be more important: Lerner, note 11, at page 2; Schwelb, note 11, at pages 997ff.)": A Declaration (non-binding) on race discrimination was completed in 1963 followed by the Convention (binding) in 1966. The Declaration on religious discrimination was finalised only in 1981. There is still no Convention on religious discrimination.

The second point is that the Race Convention was intended to include anti-Semitism. In other words, anti-Semitism was recognised as a form of racism even though it was not explicitly mentioned in the Convention. :"(Lerner, note 11, at page 123.)": This partly explains why discrimination against Jewish people is often covered by race discrimination legislation around the world including in Australia, the UK and New Zealand.

So far the Race Convention's monitoring committee of experts has not defined 'ethnic origin' or considered the question whether Muslims are covered. However, the Convention is a 'living instrument' :"(Tyrer v United Kingdom, 25 April 1978, Series A No. 6, pages 15-16, paragraph 31; Dudgeon v United Kingdom, 22 October 1981, Series A No. 45, pages 23-24, paragraph 60; S Joseph, M Castan & J Schultz, The International Covenant on Civil and Political Rights: cases, materials and commentary - Oxford University Press, 2000 - at page 19.)": and its interpretation will change over time. One major theme which is now emerging is that race discrimination legislation should recognise that religion is often used as a proxy or pretext for what is, in reality, race discrimination.

As far back as 1978, the UNESCO Declaration on Race and Racial Prejudice recognised that 'religious intolerance motivated by racist considerations' is a form of racism (article 3).

More recently the Council of Europe has similarly recognised that religious intolerance can be used as a pretext for racism. The First Additional Protocol to the Council's 2001 Cybercrime Convention defines 'racist and xenophobic material' to mean:

" ¦ any written material, image, or any other representation of thoughts and theories, which advocates, promotes or incites hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent, or national or ethnic origin, as well as religion if used as a pretext for any of these factors (article 2.1).

In his April 2000 report on racial and religious discrimination, the UN's Special Rapporteur on religious intolerance, Abdelfattah Amor, described the common overlap of ethnic and religious groupings and the difficulties, in many cases, of identifying a single cause for discrimination against them.

[T]he distinctions between racial and religious categories " ¦ are not clear " ¦

There are borderline cases where racial and religious distinctions are far from clear -cut. Apart from any discrimination, the identity of many minorities, or even large groups of people, is defined by both racial and religious aspects. Hence, many instances of discrimination are aggravated by the effects of multiple identities. :"(Abdelfattah Amor, 'Racial Discrimination and Religious Discrimination: Identification and Measures', UN Doc A/CONF.189/PC.1/7, 13 April 2000, paragraphs 5 and 6.)":

[R]eligious status is often difficult to dissociate from the cohesion of a social group in terms of its identity or ethnic origin and largely covers minority status. Discrimination, measures of intolerance and xenophobic practices cannot be defined or dealt with separately. The discrimination is aggravated because it is difficult in some instances to dissociate ethnic aspects from religious aspects. :"(Amor, note 15, paragraph 29.)":

He argued that because most international instruments, including the Race Convention, :"(Amor, note 15, paragraph 55.)": recognise this overlap, 'discrimination against a person or minority group on religious grounds may be characterized as racial discrimination'. :"(Amor, note 15, paragraph 58.)":

Key question: Are these international developments relevant to the experiences of Muslims in Australia?

5. Approach in other common law countries

The UK's Race Relations Act 1976 prohibits discrimination on 'racial grounds'. This means 'any of the following grounds, namely colour, race, nationality or ethnic or national origins'. In the UK these grounds are discrete categories which are treated as separate alternatives. :"(Boyce v British Airways PLC - EAT unreported 385/97, 31 July 1997; Northern Ireland Joint Police Board v Power [1997] IRLR 610 at 613.)":

The 1983 House of Lords decision Mandla v Dowell Lee :"(Mandla, note 4.)": is the UK's leading case on the meaning of the term 'ethnic origins'. Lord Fraser set out seven criteria: the first two must be present in every case for a group to be 'ethnic' and the five others are 'relevant'.

For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community.

The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups. :"(Mandla, note 4, at 562.)":

Applying these seven criteria, the UK courts have decided that Jews :"(Seide v Gillette Industries Ltd [1980] IRLR 427.)": and Sikhs :"(Mandla, note 4.)": belong to ethnic groups but Muslims do not.

For example, in Nyazi v Rymans a Muslim woman asked her employer for a day of leave to celebrate a religious festival. Her employer refused to grant her request. She complained she had been discriminated against on the basis of her ethnic origin. The Industrial Tribunal held it could not make a finding that Muslims come within the meaning of 'ethnic origins' saying:

All we can say is that Muslims profess a common religion in a belief in the Oneness of God and the prophethood of Muhammed. No doubt there is a profound cultural and historical background and there are traditions of dress, family life and social behaviour. There is a common literature in the sense that the Holy Quaran is a sacred book. Even so, many of the other relevant characteristics would seem to be missing.

The Muslim faith is widespread, covering many nations, indeed many colours and languages, and it seems to us that the common denominator is religion and a religious culture. In other words we believe Muslims are a group defined mainly by reference to religion ... :"(The Industrial Tribunal's finding was quoted by the Employment Appeal Tribunal and its decision was affirmed: Nyazi v Rymans [1988] EAT 86. See also Tariq v Young 247738/88, EOR Discrimination Case Law Digest No 2; JH Walker Ltd v Hussain & Others [1996] IRLR 11.)":

The meaning of 'ethnic origins' was also considered in the 1979 New Zealand case King-Ansell v Police. :"(King-Ansell v Police [1979] 2 NZLR 531.)": The Court held that Jews form a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ).

[A] group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what is biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents. :"(King-Ansell, note 25, at 543.)":

Australian courts have adopted the Mandla criteria for identifying ethnic origin. :"(Macabenta v Minister of State for Immigration and Multicultural Affairs [1998] 159 ALR 465 at 472 [Full Federal Court]; Jones v Scully [2002] FCA 1080.)": In Miller v Wertheim the Federal Court said that, on the basis of the UK and New Zealand precedents, it can readily be accepted that Jews in Australia comprise a group of people with an 'ethnic origin' for the purposes of the RDA. :"([2002] FCAFC 156 at [14].)": A discussion of the term 'ethnic origin' in relation to Jewish people can also be found in the recent decision of Jones v Scully. :"([2002] FCA 1080 at [110]-[113].)": The Court again approved the King-Ansell and Mandla tests for use in Australia.

Key question: How do the Mandla criteria apply to Muslims in Australia?

Some religious minorities initially make no claim for membership that might distinguish them for the rest of the population sharing with them the same racial or ethnic membership and sometimes even many characteristics including cultural characteristics. A sort of mutation takes place when factors such as state policy, extremism and the spreading of racist ideas and incitement to ethnic and racial hatred add an ethnic dimension to the minority religion. As pointed out by the special rapporteur on racism, this takes the form of physical aggression, murder, attacks on property belonging to immigrant, ethnic, racial or religious minorities, desecration of cemeteries and destructions of places of worship. :"(Amor, note 15, paragraph 106)":

Key question: Have recent events changed Muslims' perceptions of their group identity?