Common(wealth) Knowledge #79: Racial discrimination laws to protect Australian Jews and Palestinians

How racial discrimination laws protect Jews and Palestinians in Australia.

As a temporary truce stops fighting between Hamas and Israel, the international community has a chance to pause and consider the broader picture of the conflict. Countries are beginning to assess their own domestic responses to civil unrest and protests over the conflict. Australia is no exception.

Australia has seen protests both in favour of an end to a ceasefire and in support of Israel. The Greens have joined Arabic and Muslim community leaders in criticism the Labor government for being too pro-Israel, while the Liberals and Nationals have called for Labor to do more to protect Israel.

Anti-semitism and Islamophobia are on the rise in Australia. However, anti-discrimination legislation is very clear; discrimination against Jews or Palestinians on racial grounds, by either private citizens or the government, is unlawful.

Under Section 9(1) of the Racial Discrimination Act 1975 (Cth), discrimination on the basis of ‘race, colour, descent or national or ethnic origin’ generally is unlawful, and Section 10(1) prohibits any government from doing so too.

Naturally, any discussion on the definition of ‘race’ is going to be controversial, especially when considering old models like Social Darwinism and biological superiority. To resolve this, the New Zealand Court of Appeal in King-Ansell v Police [1979] said the best thing to do is to adopt a broad definition based on ‘common usage.’

This was used to convict Colin King-Ansell, founder of the National Socialist Party of New Zealand.

Legislation and the courts have had a much easier time defining an ‘ethnic group.’

In Mandla v Dowell Lee [1983] the British House of Lords gave a criteria list to tick to determine if a group is an ethnic group.

There must be a long, common shared history that is still alive today and is distinct to that group, and its own cultural traditions, which may be associated with religious practices.

In addition to the two mandatory requirements, courts can also consider a common geographical origin or descent, a common language, a common literature, a common religion different from that of its neighbours or the community surrounding it, and being a minority group or a sub-set of a larger group that is being oppressed by the rest of the group.

Because of this criteria, Jews can be considered a distinct ethnic group. They are not characterised solely by their religious traditions, as there are secular Jews, but their historical cultural traditions are still shaped by that religion.

However, although there has been some support on the High Court for racial sub-groups to be protected under the Australian Constitution, in Miller v Wertheim [2002] the Federal Court said that when religious differences between Jewish sub-groups are the cause of discrimination, it is no longer racial discrimination.

This blurring of religion, culture, and ethnicity was also used to protect Sikhs from racial discrimination in Athwal v Queensland [2023], as seen in Common(wealth) Knowledge #69.

The application of the RDA to discrimination against Muslims is yet to be tested. However, UK and New Zealand discrimination laws have not been applied to Muslims.

The differences amongst Muslim communities are so large that it would make any definition too clunky and ineffectual. The Islamic world stretches from the Atlantic coast in West Africa to Indonesia, and is so diverse that it cannot be protected as an ethnic group.

However, Palestinians do meet the Mandla test, with even the last optional requirement being met when considering how many Palestinians live in Israeli territory.

Just like with Muslims, Palestinians have not been tested under RDA. But they are much easier to define as an ethnic group. Palestinians are influenced by Islamic culture, but the Sunni/Shia divide and the presence of Israel means that they are more distinct than a broad ‘Muslim’ category.

Importantly, racial discrimination laws have sidestepped the issue of a Jewish or Palestinian state, by refusing to consider a person’s nationality, making legal questions about ethnicity much clearer.

Although the racial discrimination laws protect ‘national origins,’ cases like Ealing London Borough Council v Race Relations Board [1972], another House of Lords case, and Australian Medical Council v Wilson (1996) have made it clear that ‘national origin’ refers a status gained upon birth based on the location of their birth and their parents. It does not mean ‘nationality,’ which is the same as citizenship.

Ultimately, racial discrimination laws today are based more on a distinct social and cultural identity than biology. As a result, Jews and Palestinians are protected under these laws, but the status of Muslims is unclear.

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Sources:

Athwal v Queensland [2023] QCA 156.

Australian Medical Council v Wilson (1996) 68 FCR 46; [1996] FCA 1618.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12

Ealing London Borough Council v Race Relations Board (1972) 1 All ER 105; [1971] UKHL 3.

King-Ansell v Police [1979] 2 NZLR 531.

Mandla v Dowell Lee [1983] 1 All ER 1062; [1982] UKHL 7.

Miller v Valheim [2002] FCAFC 156.

Racial Discrimination Act 1975 (Cth).