Race and national extraction
704 In substance, the Ombudsman's pleaded case was that race and national extraction were one and the same. But they are not synonymous and, in construing any statutory provision, a court must strive to give meaning to every word: Project Blue Sky at [71]. Still, the terms may overlap, just like race and colour or race and ethnicity. In some circumstances, people of the same race or colour may have the same national extraction and vice versa, but that is by no means invariably so. Whatever else may be clear, however, there is no bright line between race, colour, and national extraction nor, for that matter, between race and religion. Indeed, the lines between race, colour, national extraction, religion and social origin are equally blurry.
705 The Butterworths Australian Legal Dictionary (Butterworths, 1997) defined "race" as "a group of people who regard themselves as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins".
706 In Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450 at 455 Tamberlin J observed that the popular understanding of race "accords importance to physical appearance, skin colour and ethnic origin": His Honour went on to say:
There can be no single test for the meaning of the expression "race" but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins. Another consideration is whether the characteristics of members of the group are those with which a person is born and which he or she cannot change.
707 The Equal Opportunity Act 1984 (Vic) defined "race" in s 4(4) to include "colour, nationality, and ethnic or national origin". Its successor, the Equal Opportunity Act 2010 (Vic), defines "race" (in s 4) to include "colour… descent or ancestry… nationality or national origin… [and] ethnicity or ethnic origin". Both even contemplate that one might have more than one race, for they include in the definition a stipulation in the following terms (s 4(e) of the current Act) or to the following effect (s 4(5) of the 1984 Act):
[I]f 2 or more distinct races are collectively referred to as a race -
(i) each of those distinct races;
(ii) that collective race[.]
708 The obvious intention of the Victorian Parliament was to ensure that the term "race" was interpreted as broadly as possible. Similarly, the intention of the Australian Parliament was to ensure that no-one fell through the cracks.
709 In Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 209-10, the Full Court (Carr, Sundberg and North JJ), noting that the phrase used in s 10 of the Racial Discrimination Act 1975 (Cth) - "race, colour or national or ethnic origin" - were transposed from Art 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (Racial Discrimination Convention), held that the same phrase in the Racial Discrimination Act should carry the meaning intended by the Convention. Their Honours continued:
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.
(Emphasis added.)
710 In its 2003 report on the Protection of Human Genetic Information in Australia, the Australian Law Reform Commission observed at [36.42] that:
It is now well-accepted among medical scientists, anthropologists and other students of humanity that "race" and "ethnicity" are social, cultural and political constructs, rather than matters of scientific "fact".
711 The Ombudsman referred in her closing submissions to two dictionary definitions of race before effectively ignoring them.
221. The Macquarie Dictionary defines 'race' as '1. A group of people sharing genetically determined characteristics such as skin pigmentation or hair texture. 2. The differentiation of people according to genetically determined characteristics. It is defined in the Shorter Oxford English Dictionary as 'a tribe, nation or people, regarded as of common stock; any of the major divisions of humankind, having in common distinct physical features or ethnic background'.
222. No Australian court or tribunal has sought to advance a precise or exhaustive definition of "race". Overseas courts have considered the definition of race and eschewed scientific or sociological definitions of race. The case law states that race should be understood in the popular sense rather than an anthropological or biological sense. The real test is whether the individuals or group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.
712 In Shackley v Australian Croatian Club Ltd [1995] IRCA 475; 61 IR 430 an employee, who claimed she was told by the president of the Croatian Club that she was dismissed from her employment because she was not Croatian, succeeded in establishing that she was dismissed because of her race in contravention of s 170DF of the Industrial Relations Act 1988 (Cth). But the Court (Moore J) was at pains to emphasise that no submission was made that the characteristic of being Croatian is not a characteristic of "race" as the term was used in s 170DF(1)(f) (a predecessor of s 772(1)(f) of the FW Act), in contradistinction to "national extraction or social origin". Rather, the matter proceeded on the assumption that it was. The issue between the parties was primarily a factual one, whether the words the employee attributed to the Club's president were uttered.
713 The only authorities on the question of race to which I was taken were Ealing London Borough Council v Race Relations Board [1972] AC 342 and King-Ansell v Police [1979] 2 NZLR 531.
714 Ealing London Borough Council involved a Polish immigrant (Zesko), who was qualified by residence for housing accommodation afforded by the Council but was not accepted onto the Council's waiting list because of the Council's rule that an applicant had to be "a British subject within the meaning of the British Nationality Act 1948". Zesko complained to the Race Relations Board. The Board determined that the Council had unlawfully discriminated against him on the ground of his "national origins" contrary to the Race Relations Act 1968 (UK), which relevantly outlawed discrimination in the provision of housing accommodation by one person against another on the ground of colour, race or ethnic or national origins. At first instance Swanwick J refused to grant declarations the Board had sought. The question on the appeal was whether discrimination in favour of British subjects (within the meaning of the British Nationality Act) and against aliens was discrimination on the ground of "national origins".
715 By majority, Lord Kilbrandon dissenting, the House of Lords held that Zesko had been discriminated on the ground of his nationality, rather than his national origins, and that therefore the Council had not acted unlawfully.
716 Zesko identified as Polish but his nationality was Russian. At the time of his birth Poland was part of Russia and, in any case, he was born in Siberia. I will return to Ealing London Borough Council later but it is relevant to note at this point that Viscount Dilhorne observed at 359 that Zesko's race was Polish. By rendering unlawful discrimination on the ground of colour, race or ethnic or national origins in an Act the long title of which included the prevention of discrimination on racial grounds, his Lordship considered (at 358) that the use of the words "colour, race or ethnic origins" "show[ed] the content of the word 'racial'". His Lordship also held that Zesko's national origins were Polish.
717 Lord Simon observed at 362 that "racial" was not a term of art and apprehended that anthropologists would dispute how far the word "race" is biologically relevant. He described the crucial expression as "rubbery and elusive language". He intimated that race was being used here "in its popular sense" and that the object was "to leave no loophole for evasion". Similarly, Lord Cross surmised at 366 that the reason "ethnic or national origins" were inserted was to prevent argument over the exact meaning of "race".
718 The question in King-Ansell concerned the meaning of the expression "ethnic … origins of that group of persons" in s 25 of the Race Relations Act 1971 (NZ), which in substance provided that it was an offence to do certain things "with intent to excite hostility or ill-will against, or bring into contempt or ridicule" "any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons". That is not the question in the present case. But the Court did comment on the meaning of "race" in the context of the Race Relations Act.
719 At trial the prosecution called expert evidence from an academic with post-graduate degrees in anthropology and sociology on the meaning of "race" and "ethnic origin". The academic, Dr MacPherson, referred to race as "the possession of a set of genetic characteristics which are typical in all members of that race" (at 534). While Richmond P considered that his definitions were not appropriate in the context of the legislation (at 535) and that the word "race" is used in the Act in a wider, popular sense, his Honour regarded the evidence Dr MacPherson gave about to the traditional customs and beliefs of the Jewish people as "of critical importance to the case".
720 No comparable evidence was adduced here. Still, the Ombudsman argued that the test formulated by Richardson J in King-Ansell was the test that should be applied to the meaning of "race" in the FW Act. She relied on the following statement at 542:
The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.
(Emphasis added.)
721 In Mandla v Dowell Lee [1983] 2 AC 548 (HL), where the question was whether Sikhs were to be regarded as a "racial group" for the purposes of the Race Relations Act 1976 (UK), the answer was said to turn on whether Sikhs were a group defined by reference to "ethnic origin". Lord Fraser of Tullybelton, with whom the other Law Lords agreed, said at 562:
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.
722 At 564 his Lordship approved the remarks of Richardson J in King-Ansell at 542, cited above, and also his Honour's statement at 543 that:
[A] 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 in 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.
723 In The Commonwealth v Tasmania (1983) 158 CLR 1 at 244, however, speaking of the expression "people of any race" in s 51(xxvi) of the Constitution, Brennan J said:
As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power.
724 In the same case, Deane J said at 573-4 that the expression had a "wide and non-technical meaning" and relied on King-Ansell and Mandla.
725 In Eatock v Bolt (2011) 197 FCR 261 at [313] Bromberg J held that the words "race" and "ethnic origin" in the Racial Discrimination Act should be given their "broad popular meanings" and observed that, in popular usage, the terms are often used interchangeably. His Honour considered that attempting to draw a meaningful distinction between them is likely to prove elusive, although "race" can be used to identify a category of people made up of many ethnic origins. He held that Australian Aboriginal people are a race with a common ethnic origin as they are a group of people who regard themselves and are regarded by others as having the two essential distinguishing features mentioned by Lord Fraser in Mandla: a long shared history and a distinctive culture.
726 I accept the Ombudsman's argument that "race" in the FW Act is also intended to have a broad meaning. On the assumption that the test formulated by Richardson J in King-Ansell is equally applicable to determining the question of race for the purposes of the FW Act, however, there was a paucity of evidence on the subject. In particular, I was not taken to any evidence to show that the Massage Therapists or Filipinos generally regard themselves and are regarded by others in the community as having such an identity or such features. I was not invited to take judicial notice of the matter and I do not think it is open to me to do so.
727 On the other hand, in cross-examination Mr Elvin admitted that, by deciding to employ people on subclass 457 visas from the Philippines, FTM was "only employing people from one racial group". That constitutes evidence that he recruited massage therapists on FTM's behalf from a particular racial group. Whether that group is properly defined as Filipino or by reference to the particular ethnic group from which they came hardly seems to matter.
728 In King-Ansell Woodhouse J said at 536:
The issue, of course, is not the meaning which very wisely may have been given to the concept of race for purposes of comprehensible scientific discussion but what meaning the word is intended to convey in the statute. In that regard it will be noticed that Dr MacPherson himself has recognised that the word has a "common usage", as he expressed it. And that common usage has for long enabled constant reference to be made to biologically different peoples as a single race. For example it is a natural use of the word to speak of the English race or of the Slavs as a race, or of Germans. It is a meaning which is concerned, not with genetic processes, but with shared characteristics of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations. And when the purpose and language of the Race Relations Act is considered as a whole I am satisfied that is the way in which the term is intended to be used.
(Emphasis added.)
729 A similar approach should be taken to the use of the term "race" in the FW Act. Based on the fact that Mr Elvin accepted that the Massage Therapists came from a single racial group, I accept that they were selected for employment on the basis of their race. Mr Elvin was not asked to identify what that racial group was. Giving race the broad interpretation adopted by Woodhouse J in King-Ansell, however, and consistent with the purpose and language used in the Act, it is enough that they are all Filipino. Regardless, for the reasons given below, I am also persuaded that both their race and national extraction were substantial and operative reasons for the way they were treated in their employment.
730 The Racial Discrimination Act prohibits discrimination by reason of national origin rather than national extraction. The difference in the terminology used in that Act and that which is used in the FW Act, however, is not substantial and may only be attributable to the different historical origins of the provisions in question. The relevant text of the Racial Discrimination Act is taken from Art 1.1 of the Racial Discrimination Convention, which is a schedule to the Racial Discrimination Act and which the Act transposed into Australian domestic law: Commonwealth v McEvoy (1999) 94 FCR 341 at [31] (von Doussa J). "Nationality" is a legal status; "national origins" or "national extraction" is not: Ealing London Borough Council at 365 (Lord Cross); Australian Medical Council v Wilson (1996) 68 FCR 46. In Ealing London Borough Council, which was concerned with unlawful discrimination on the ground of colour, race, or ethnic or national origins under the Race Relations Act 1965 (UK), Viscount Dilhorne said at 358 that, in the context of the Act, the word "national" in "national origins" means "national in the sense of race and not citizenship"
731 In Macabenta, which was concerned with the meaning of "national origin" in s 10(1) of the Racial Discrimination Act, the Full Court at 211-212 applied Ealing London Borough Council, expressly approving the following passage in the speech of Lord Cross at 365 of that judgment:
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.
732 In Merlin Gerin (Australia) Pty Ltd v Wojcik [1994] VSC 209 Nathan J observed that the words "nationality and ethnic or national origin" in the Equal Opportunity Act 1984 (Vic) were "not quite the same as "national extraction and social origin", terms used in the Metal Industries Award 1984 which relevantly prohibited termination of employment on the ground of "national extraction or social origin". His Honour considered that the differences showed "some, but not great, distinction". He said that "national extraction" was "a little wider" than "nationality or national origin" and it was "at least arguable, that nationality is restricted to citizenship or a country other than, or perhaps as well as Australia, but 'national extraction' refers to antecedents as well as citizenship".
733 Later, his Honour said, albeit without reference to authority:
"National extraction" means both the nation and the nationality from which a person is derived, either by birth or by self and community identification. A person may perceive themselves to be, and be seen by the community in which they live, work and mix as being non-Australian despite the fact that they have been born here.