Ealing London Borough Council v Race Relations Board

PRC The appellant had argued that the visas were not in substance established for humanitarian and compassionate reasons, by reference to the manner in which persons from the PRC were treated. She pointed out that there was an apparent anomaly in the case of persons who came from the PRC after the Tiananmen Square massacre and before 1 November 1993, because some persons in that category were not given any entitlement to a visa or a residence until the promulgation of the Statutory Rule. His Honour held that the evidence as to this inconsistency in relation to an indeterminate number of persons from the PRC did not affect the central consideration that the visas were in substance established for humanitarian and compassionate reasons based on the expectations of persons from the countries specified. Those expectations were based, so his Honour held, on continued prior government conduct in permitting and enabling the continued residence in Australia of persons from the specified countries. GROUNDS OF APPEAL National origin The appellant contended that the primary judge erred in law in finding that the term "national origin" used in s 10 of the RDA did not include the nationality of a person. It was submitted on her behalf that, as a matter of construction, the section simply required a factual inquiry as to whether or not a class of persons perceived themselves as possessing a particular "national origin" and whether others perceived them in the same manner. That question of perception, so it was put, was to be resolved not by reference to potentially complex legal issues, but rather by reference to simple factual issues. Counsel for the appellant argued that just as the phrase "ethnic origin" was construed by the House of Lords in Mandla v Lee [1983] 2 AC 548 at 562 in such a fashion, so too should the statutory expression "national origin". Counsel contended that a determination of "national origin" was thus neither necessarily resolved by a determination as to either "nationality" or original nationality. The term "national origin" was to be construed broadly without constraint by any arbitrary legal characterisation fixed by reference to current or original nationality. The appellant submitted that, as a matter of construction, s 10 did not require any distinction to be necessarily drawn between "nationality" and "nation origin". The object and purpose of the RDA was to prohibit racial discrimination; nationality being a principal and common basis upon which such discrimination occurred. There was no reason, so it was argued, consistent with such object and purpose, to draw any distinction between "nationality" and "national origin". The term "nationality" according to its normal dictionary meaning did not necessarily connote a legal characterisation as opposed to a quality or character. We were taken by counsel to decisions of the Supreme Court of the United States of America which were said to show that no relevant distinction was drawn in that jurisdiction between "nationality" and "national origin". So far as English and Australian authorities were concerned, the appellant argued that the construction of the phrase "national origin" had not been resolved by any decision binding on this Court. To the extent that a distinction had been drawn between "national origin" and "nationality" by the House of Lords in Ealing London Borough Council v Race Relations Board, or decisions by judges at first instance in this Court when construing s 9 of the RDA, the appellant contended that such decisions did not resolve the issue in this matter, either because they dealt with different statutory provisions or were obiter dicta. Alternatively, to the extent that such decisions were inconsistent with the submissions advanced by the appellant, it was contended that those decisions were erroneous. The appellant relied upon documents relating to the evolution of the drafting of the Convention as evidencing: · that the terms "nationality" and "national origin" did not necessarily have the same meaning as ascribed to them by English law; · a debate as to the meaning to be ascribed to either term; · an absence of any intent to draw a necessary distinction between them and as supporting the contention that "national origin" included current possession of a particular nationality as well as a different original nationality. There was, so it was put, an intended overlap between "national origin" and "ethnic origin", both being identified facets of "race". The appellant submitted that it was illusory to attempt any process of statutory construction which prescribed a specific and exclusive content to one particular facet as opposed to another. The legislative intent was, so it was contended, to ensure that all features of race were included. There was no reason consistent with the object and purpose sought to be achieved by the RDA to draw any such distinction. Finally, assuming (contrary to her primary submission) that the expression "national origin" was not synonymous with the expression "nationality", the appellant contended that s 10 came into operation by a factual inquiry. In the present case, so it was submitted, the facts were as follows: · persons with current Chinese nationality, who otherwise satisfy the Visa Provisions, may apply; · those persons form a "class", whether that class is defined by reference either to current nationality or their original nationality; · there are persons who form another "class" whether that class is defined by reference to current nationality (for example, Philippino) or original nationality; · there was no applicant who was not originally a Chinese national who currently holds Chinese nationality. Thus, so it was argued, as a factual matter there was a class of persons who do not enjoy the same right as, or enjoy it to a more limited extent than, a Chinese visa applicant. The appellant submitted that the very existence of such a class was sufficient to confer the same right upon the appellant as was possessed by a Chinese visa applicant. Senior counsel for the appellant submitted, in oral argument, that Article 1.3 of the Convention was deliberately drafted so that the home State may treat its citizens in a particular way, but that as far as all the other non-citizens were concerned the home State could not differentiate between them on the basis of race colour or national origin. Section 10 was intended, so it was submitted, to ensure that if a law conferred a right on one class of persons then section 10 "bit" to ensure that the two classes of persons have the same right, or the right to the same extent, if by reason of the law it "fastens" upon race, colour or national or ethnic origin. The section did not use the word "discrimination" which was a notion underpinning s 9, a section designed for an entirely different purpose. The Respondent's Contentions The respondent submitted that the primary judge was correct in his analysis which was summarised in the following extract from the respondent's outline of submissions: "In substance, his Honour held that the concepts of national origin and nationality (and hence citizenship) were quite distinct. As the relevant regulation under the Migration Act included as a criterion for entitlement to a class 850 or 851 visa particular specified citizenship, his Honour held that the conferral of benefits provided by s 10 was not triggered." This conclusion was supported by reference to Sremcevic v Gurry (1994) 51 FCR 194 at 210-211 and Yildiz v Minister for Immigration and Ethnic Affairs (1982) 46 ALR 112 at 121. The respondent contended that Mandla reinforced the distinction between the concept of ethnicity and the concept of nationality. In relation to the decisions of the Supreme Court of the United States of America, the respondent argued that they were not authorities for the proposition that, in that jurisdiction, no distinction was drawn between "nationality" and "national origin". The respondent submitted that such a distinction was consistently drawn in Australian, English and United States case law. Reasoning By adopting the phrase "… race, colour or national or ethnic origin" in s 10 of the RDA, the Parliament can be seen to have transposed into that Act a substantial part of the text of Article 1.1 of the Convention. As Mason J noted in Gerhardy v Brown (1985) 159 CLR 70 at 94, s 10 (unlike s 9 of the RDA) makes no reference to "descent" which appears in Article 1.1 and consistently elsewhere in the provisions of the Convention. However, despite that omission we think that the prima facie legislative intention must be that the transposed text, which we have quoted above, should bear the same meaning in the RDA as it bears in the Convention and that it would be erroneous to adopt a rigid priority in the application of interpretative rules when interpreting such a treaty: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-231. In our view the "holistic but ordered approach" referred to in the above passage provides the key to resolving the present issue. As Brennan CJ said "the holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning." The object and purpose of the treaty are, in our opinion, sufficiently clear. They can be seen to be the elimination of racial discrimination and the provision of guaranteed rights without distinction as to race, colour, or national or ethnic origin. The core concern is racial discrimination. Our reading of the extrinsic materials relied upon by the appellant, and in particular the debates in the Sub-Commission on Prevention of Discrimination and Protection of Minorities and in the General Assembly itself (in Committee), shows that the addition of the words "colour, or national or ethnic origin" was intended to give added content and meaning to the word "race" or "racial discrimination". The delegates had divergent views on whether "national origin" meant something different from "ethnic origin". But in the end, they were all agreed that the quest was to capture the somewhat elusive concept of race. In our opinion, the description "ethnic origin" lends itself readily to factual inquiries of the type described by Lord Fraser in Mandla v Lee at 562. For example, is there a long shared history?, is there either a common geographical origin or descent?, is there a common language?, is there a common literature?, is there a common religion or a depressed minority? One can easily appreciate that the question of ethnic origin is a matter to be resolved by those types of factual assessments. Ethnic origins may once have been identifiable by reference to national borders, but that time ended hundreds or perhaps thousands of years ago. To some extent the same can be said of national origins as human mobility gained pace. It may well also be appropriate, given the purpose of the Convention, to embark on a factual enquiry when assessing whether the indicia of a law include national origin as a discrimen. Ethnic origins may have become blurred over time while national origins may still be relatively clear. That further reference point of national origin may be needed in order to identify a racially-discriminatory law. National origin may in some cases be resolved by a person's place of birth. In other cases it may be necessary to have regard to the national origin of a parent or each parent or other ancestors either in conjunction with the person's place of birth or disregarding that factor. If by reference to matters of national origin one can expose a racially-discriminatory law, then the Convention will have served its purpose. However, no Convention purpose is in any manner frustrated by drawing a distinction between national origin and nationality, the latter being a purely legal status (and a transient one at that). Some guidance can, we think, be derived from the manner in which those who drafted the Convention approached the legal concept of nationality or citizenship, which senior counsel for the appellant treated as being synonymous for present purposes. Article 1.3 of the Convention reads: "Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality." Despite the qualification expressed in the above proviso, we think there can be seen again a concentration on the essential discrimen of race. In Gerhardy v Brown at 99, Mason J perceived a constitutional reason why: "… s 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination." In oral submissions, senior counsel for the appellant contended that it was "… an exercise in intellectual arrogance to fix upon the phrase 'national origin' a fixed meaning…" against a background where the ordinary meaning of "national" and "nationality" differs as between, on the one hand in English and French and, on the other hand, in the Slavonic or German languages. But, in our view, to extract and separate "nationality" in terms of citizenship as having a meaning distinct from "national origin" is hardly an exercise of intellectual arrogance. Citizenship (which for present purposes has been accepted as synonymous with nationality) is, in international terms, a universally recognised and understood concept or status. It is, of course, not the only personal status which international law recognises as being both capable of change and at the same time having no necessary connection with matters of race. Another which springs readily to mind is domicile, which may provide a useful analogy. The international community has long accepted that there is, on the one hand, a domicile of origin which remains forever available as a reference point of potential relevance, but not necessarily having any connection with race, and, on the other, a changeable domicile of choice again having no necessary connection with race. We think that the primary judge was right in construing nationality as equivalent to citizenship, but different from "national origin". We agree, respectfully, with the primary judge that the same meaning should be given to the expression "national origin" in s 9 of the RDA as in s 10 of that Act. We agree also with his Honour's acceptance of the guidance provided by the decisions of the House of Lords in Ealing, by the Full Court of this Court in Australian Medical Council and by Merkel J in De Silva. To that list may be added the Full Court decisions of Yildiz v Minister for Immigration and Ethnic Affairs (1982) 70 FLR 105 at 112-114 and Melkman v Commissioner of Taxation (1988) 20 FCR 331 at 335-337. In particular, we agree, respectfully with the following passage from the speech of Lord Cross in Ealing (at 365-6) cited by his Honour: "There is no definition of 'national origins' in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as 'a nation' - whether or not they also constitute a sovereign state…. Suppose, for example, that a man of purely French descent marries a woman of purely German descent and that the couple had made their home in England for many years before the birth of the child in question. It could ... be said that the child had three 'national origins'; French through his father, German through his mother and English not because he happened to have been born here but because his parents had made their home here. Of course, in most cases a man has only a single 'national origin' which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But 'national origins' and 'nationality' in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide." See also Lord Donovan at 354-5, Viscount Dilhorne at 359-360 and Lord Simon at 363. Lord Kilbrandon's dissent was a most hesitant one (see 369). We do not accept the appellant's submission that the statutory provision with which Ealingwas concerned was relevantly different. We can see no material difference between the purpose or the language of s 1(1) of Race Relations Act 1968 (UK) and s 10 of the RDA. We do not regard the American decisions, relied upon by the appellant, as indicating that a different direction has been taken in the United States of America. The Supreme Court of the United States has referred to a person's "national origin" as the country "… where a person was born or, more broadly, the country from which his or her ancestors came", but not embracing citizenship requirements: Espinoza v Farah Manufacturing Co Inc 414 US 86 (1973) at 88-89, cited with approval by Justice Brennan in his separate concurring opinion in Saint Francis College v Al-Khazraji 481 US 604 (1987) at 614. Almost all of the evidence before the primary judge (uncontradicted as it largely was) points to the Australian Government acting, for humanitarian reasons, to resolve uncertainty surrounding the future resident status of citizens from a very diverse range of countries, being countries which have been racked by internal violence and sometimes violence from external sources. There can be no suggestion of racial discrimination in the selection of those countries. They range from persons of Chinese race, through the various races of Sri Lanka, the (presumably Arabic) races of Iraq, Kuwait and Lebanon to (again presumably Slavic) races of the former Yugoslavia. Matters of race, colour or ethnicity plainly had absolutely nothing to do with the selection of the specified countries. As his Honour pointed out, the criterion adopted is whether the person, at the time of entry into Australia, held a valid passport of a specified country. In our opinion, there would have to be very cogent reasons advanced why we should diverge from what we perceive to be a growing body of English and Australian authority and international learning in the field. That body of learning distinguishes between, on the one hand, "national origin" as an indicator of race and, on the other hand, nationality or citizenship as being a sometimes transient legal status. There is no suggestion in this case of any intent to exploit that distinction for the purpose of subverting the object and purpose of the Convention or any such relevant effect. In those circumstances, we think that the interests which the Convention seeks to protect are to be advanced by adding our decision in this case to the growing body of authority and learning to which we have just referred. In short, we consider that the primary judge was correct when he decided that if there were a relevant right, it was not one that was being enjoyed by persons of another national origin by reason of the Visa Provisions. We reject the appellant's alternative proposition which was based on an assumption (contrary to her primary submission) that the expression "national origin" was to be construed as not being synonymous with the term "nationality". The alternative proposition asserted that a factual inquiry was sufficient to show that s 10 came into operation in the present matter. Our reason for doing so is that the argument, although worded to some extent in terms of national origin, focusses upon and is dependent upon nationality. The argument has to be so focussed, because that is what s 10 fixes upon. The comparison required by s 10 is, relevantly, between rights not enjoyed (or enjoyed to a more limited extent) by persons of particular ethnic or national origin by reason, in this case, of the Visa Provisions. The references in the appellant's submissions to two "classes" of nationality also, in our view, bypass the requirement of the section that there be a relevant causal connection between the different enjoyment of rights. It is the operative discrimen of nationality or citizenship which, in our opinion, breaks the claimed chain of causal connection. We think that it is important to have regard to the words "by reason of" when construing s 10. They require the practical application of causation principles explained in March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506, whilst at the same time according due recognition to the beneficial purposes and objects of the RDA. The ambit of the expression "by reason of" is not confined to the absence or limited extent of the enjoyment of the persons first mentioned in the section, but must extend right through to the point at which the section starts to do its deeming work. Applying the well-known causation principles, the Visa Provisions should not be characterised as creating different levels of enjoyment between persons or persons of one (or more - "particular" must be read distributively, see Brennan J in Gerhardyat 122) ethnic origin and "another" national origin. Those differences result from differences of citizenship and time of arrival in Australia. There may be some in the favoured group who are of a different national origin to those in the less favoured group, but that is not by reason of the Visa Provisions. In terms of sensible practical causation, it is because they are citizens of a different country and were not in Australia at the relevant time. Conclusions In view of the conclusions which we have reached in relation to the grounds of appeal considered in the preceding paragraphs, we think that it is unnecessary to consider the other grounds. The appeal will be dismissed with costs. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of the Court.

Associate: Dated: 17 December 1998 Counsel for the Appellant: Mr G A Flick SC with Ms C Ronalds

Solicitors for the Appellant: Messrs Parish Patience

Counsel for the Respondent: Mr J Basten QC with Mr A S Bell

Solicitor for the Respondent: Australian Government Solicitor