Introduction

2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.

Conclusion

Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.