Section 18C of the Racial Discrimination Act would apply to religious based complaints

Professor David Flint, writing in The Spectator, has provided an excellent commentary on the applicability of section 18C of the Racial Discrimination Act 1975 (Cth) to religious based complaints.

In his analysis, Professor Flint dispenses with the notion, common among defenders of section 18C, that the provision only applies where offensive conduct is directed to a particular racial group.

While the wording of section 18C provides that an act must be “done because of the race, colour or national or ethnic origin of the other person”, much commentary ignores the role ‘extrinsic material’ plays in courts interpreting a statute. In particular, the use of the explanatory memorandum for the bill which introduced section 18C, the Racial Hatred Act 1995 (Cth), to ascertain the meaning of the words ‘ethnic origin’ and ‘race’. As Professor Flint explains;

… The Keating government made its wishes very clear in this memorandum, saying that the terms ‘ethnic origin’ and ‘race’ are to be complementary and given a broad meaning. They strongly approved of the interpretation of ‘ethnic origin’ in New Zealand and Britain: the ‘King-Ansell’ interpretation says that a ‘common descent’ is not necessary to demonstrate a common ethnic origin. It is all about sharing one or more of several characteristics. Crucially, one of these is sharing a religion different from that of the general community − a minority religion. This would exclude Christianity but as the government decreed, provides ‘the broadest basis for protection of peoples such as Sikhs, Jews and Muslims’.

Ultimately, in this case, a broad definition of ‘ethnic origin’ and ‘race’ was almost inevitable. As Professor Flint explains, in Bolt v Eatock (2011), Justice Bromberg accepted the meaning of ‘ethnic origin’ as outlined in King-Ansell v Police [1979], leaving it unnecessary to ‘rely on extrinsic material to find that muslims have a common ethnic origin for the purposes of 18C.’

This analysis categorically supports the conclusions reached by my colleague Simon Breheny, and Vice-Chancellor of the Australian Catholic University, Professor Greg Craven, and illustrates that section 18C is far more broad than its supporters would like to claim.

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