Khan v Commissioner, Department of Corrective Services & anor

[2002] NSWADT 131

CITATION:	Khan -v- Commisioner, Department of Corrective Services & anor [2002] NSWADT 131
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rahiman Khan 1. RESPONDENT Commissioner, Department of Corrective Serevices 2. RESPONDENT Australasian Correctional Management Pty Ltd
FILE NUMBER:	011046; 011047
HEARING DATES:	19/12/2001
SUBMISSIONS CLOSED:	12/19/2001
DATE OF DECISION:	07/31/2002
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Member; Clayton S - Member
APPLICATION:	Race Discrimination - Goods and Services - Victimisation
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1987 Race Discrimination Act 1976 (UK) Race Relations Act 1971 (NZ)
CASES CITED:	Khan v Commissioner, Department of Corrective Services & Anor [2000] NSWADT 72 Khan v Commissioner, Department of Corrective Services & Anor (EOD) [2001] NSWADTAP 1 Jedko Game Co Pty Ltd v Collector of Customs (1987) 12 ALD 491 Brutus v Cozens [1973] AC 854 Re Bolton; Ex Parte Beane (1987) 70 ALR 225
REPRESENTATION:	APPLICANT D Hillard, solicitor 1. RESPONDENT T Anderson, barrister 2. RESPONDENT No appearance
ORDERS:	1. The applicant if he so elects, to file and serve Amended Points of Claim, and any evidence and submissions on which he seeks to rely within 28 days of the date of this decision. ; 2. The respondents to file Amended Points of Defence, and any evidence and submissions on which they seek to rely within 28 days of receiving the documents referred to in Order 1.; 3. The parties be granted leave to approach the Registrar for the allocation of hearing dates. ; 4. The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.

1 This decision concerns complaints of race discrimination and victimisation made by Mr Rahiman Khan in respect of the provision of goods and services by the first and second respondents. While in the Junee Correctional Centre Mr Khan was denied access to Halal foods. This, he asserts, constitutes unlawful discrimination on the ground of race contrary to the provisions of the Anti-Discrimination Act 1977 (“the Act”). The Junee Correctional Centre is a private prison managed by the Australian Correctional Management Pty Ltd (the second respondent) on behalf of the first respondent (Commissioner, Department of Corrective Services).

2 In a decision dated 8 June 2000 the Administrative Decisions Tribunal (“the Tribunal”) dismissed Mr Khan’s complaints of victimisation and unlawful race discrimination: Khan v Commissioner, Department of Corrective Services & Anor [2000] NSWADT 72. Mr Khan appealed that decision and the Appeal Panel upheld Mr Khan’s appeal against the dismissal of his complaints on a point of law: Khan v Commissioner, Department of Corrective Services & Anor (EOD) [2001] NSWADTAP 1.

3 The matter has been remitted to us by the Appeal Panel, to determine the meaning of the term “ethno-religious,” which forms part of the extended definition of “race” for the purposes of the Act, and then to decide whether the term, as defined, includes or covers Muslims. This is the preliminary issue to be decided.

Decision of Appeal Panel

4 The Act was amended in 1994 to include the terms “ethno-religious origin” and “descent” in the definition of “race”. Section 4 of the Act now defines race to include “colour, nationality, descent and ethnic, ethno-religious or national origin”. The term “ethno-religious” or “ethno-religious origin” is not defined in the Act.

5 In Khan v Commissioner, Department of Corrective Services & Anor [2000] NSWADT 72 the Tribunal having found that the term “ethno religious” was “ambiguous or obscure” as provided for in s 34(b)(i) of the Interpretation Act 1987 referred for guidance to the Second Reading Speech, introducing the 1994 amendments to the Act, specifically the following passage:

“Schedule 1 to the Bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act . Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include the concepts of descent and ethno-religious origin. . .

The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present it is not clear whether the racial vilification provisions cover such groups, although this would appear to be the position at common law.” (NSW Hansard 4 May 1994, page 827)

6 The Tribunal concluded “ having had reference to that address, it seems to us that all adherents to the Muslim religion are entitled, pursuant to the 1977 Act to be considered to be a racial group for the purpose of that legislation”: Khan v Commissioner, Department of Corrective Services & Anor at [10]. Accordingly the Tribunal determined that Mr Khan as a Muslim, fell within the Act’s definition of race.

7 The Appeal Panel found that the Tribunal had erred in that it failed to make a finding as to the meaning of the term “ethno-religious” within the context of s 4, but had simply adopted the words of the Attorney-General in his Second Reading Speech. The Appeal Panel said the proper course for the Tribunal to have followed in the first instance was to have applied the principles of statutory interpretation, but without immediately relying upon the Second Reading Speech.

Meaning of Ethno-religious in s 4(1)

8 The general rules of statutory interpretation start with the rule that words in a statute will ordinarily be construed according to their ordinary meanings. The question whether a word is to be given its ordinary meaning or some technical or special meaning is a question of law. (See Jedko Game Co Pty Ltd v Collector of Customs (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854.)

9 The usual way of determining the ordinary meaning of a word is to refer to an authoritative dictionary. In Australia, the dictionaries most frequently referred to, it seems, are the Macquarie and the Oxford Dictionaries. Neither of these, as far as we have been able to ascertain, provide a meaning for or definition of “ethno-religious”.

10 We have also consulted a number of electronic dictionaries on the Web without success. It is curious therefore that a search on the Web using the Google search engine is able to throw up nearly 4000 sites at which the word “ethno-religious” is employed if not defined. Some of these related to NSW anti-discrimination policy and legislation, but many were from overseas sources relating, for example, to “ethno-religious” conflict in the Balkans, “ethno-religious terrorism” and so on. It is evident that the word has entered the English language and has a meaning notwithstanding the fact that the major dictionaries apparently lag behind the creation of this neologism.

11 The New Oxford Dictionary (2000 edition), however, provides this meaning for “ethno-”: “Combining form. Ethnic; ethnological: eg ethnocentric; ethnology. Origin: from the Greek ethnos ‘nation’”. The Appeal Panel said “care should be taken when considering a compound expression not to come to a conclusion on the basis of looking at each word and assuming that the meaning of the expression is an amalgam of the meaning of each word.” By this we interpret the Appeal Panel to mean that it should not be assumed that the meaning of a compound word is merely an amalgam of the meaning of two words. Nonetheless, that may be the meaning once the evidence is considered.

12 Because of the ambiguity and recent invention of the word, it is not entirely clear whether the term is “technical” or has a broader, “ordinary” meaning. In our opinion, the fact that the word is not defined in the major dictionaries suggests only that it is a recently minted word, but does not tell us whether it is a word which requires specialist skills to interpret. If expert evidence is required to determine the meaning of the word, that is a strong indication that it has a “technical” meaning. On the other hand, if expertise is not required to find the meaning, it will be given its “ordinary” meaning. Nothing has been put to us to suggest that the word has some special or technical meaning. On the other hand we are unable to agree with the Appeal Panel’s suggestion in obiter dicta that the word has no ordinary meaning. The fact is, apparently, it is a word in use by a significant number of people and must therefore have some “ordinary meaning”.

13 We agree with the submission put by Mr Hillard for the applicant that the meaning of “ethno-religious” is “ambiguous or obscure”. It is therefore appropriate to apply the provisions of ss 33 and 34 of the Interpretation Act 1987. Section 33 provides that a construction consistent with the objects of the legislation shall be preferred where there is any ambiguity. Section 34 provides that recourse may be had to secondary sources to construe a provision, which is ambiguous or obscure. Among the materials that may be considered are the Second Reading Speech, Explanatory Memorandum and any relevant reports of the Law Reform Commission or committees of inquiry.

14 In a submission to the Law Reform Commission in May 1994 the NSW Anti-Discrimination Board asserted that there was a problem with the then definition of “ethnic origin” because it was not wide enough to include Muslims, Hindus and Christians (among others) because of their diverse ethnic origins. It referred to, but did not define, “ethno-religious” groups. There was no Law Reform Commission report before the definition was amended. Neither the Second Reading Speech nor the Explanatory Memorandum are of assistance in defining the term. They simply refer to “ethno-religious groups” without defining such groups or the term itself.

15 The problem of construction this creates was put succinctly in the Law Reform Commission’s 1999 Review of the Act, (Report No 92):

5.12 The concept of "ethno-religious origin" is novel. It appears to have been introduced into the definition of race in order to ensure that Jews and Sikhs were within its scope. In an historical sense, this concern is understandable: much of the pressure for outlawing racial discrimination arose in the post-World War II years as the full enormity of the Holocaust became apparent. It would indeed be ironic if Jews did not fit within the CERD definition of race. Nevertheless, the reason for the amendment remains obscure. As long ago as 1979, the New Zealand Court of Appeal accepted that, in the context of the Race Relations Act 1971 (NZ), Jews constituted a group on the grounds of "ethnic origins". The Commission is not aware of any judicial determination which would cast doubt on that conclusion.

5.13 It is also suggested that the definition has been broadened to cover Sikhs. Again, the amendment seems quite unnecessary for that purpose: the Race Discrimination Act 1976 (UK) was applied in 1983 to protect Sikhs by holding unlawful, as a form of indirect racial discrimination, a refusal by a school to admit a Sikh boy who declined to cut his hair and cease wearing a turban.

5.14 Accordingly, the insertion of this term in the definition in 1994 was almost certainly unnecessary. More importantly, its scope is confusing. In his Second Reading Speech, the Attorney General stated:

“The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act.
This gives rise to a possible argument that the phrase imports, almost by the back door, a ground of discrimination on the ground of religion, at least in some circumstances which may not be carefully defined.”

5.15 If this were the intention, the proper course is to consider on its merit the addition of religion as a ground. As the Commission concludes that such a ground should be introduced, with the necessary restrictions to avoid inappropriate coverage, the term "ethno-religious origin" should be removed from the definition of race. Groups such as Jews and Sikhs would still be covered by, for example, the category defined by "ethnic origin".

16 The Second Reading Speech, despite the obscurity of its terminology, is, however, noteworthy for the clear pronouncement that it was not proposed to cover discrimination on the grounds of religion:
“The proposed amendment to the definition of race will not allow members of ethno-religious groups, such as Jews, Muslims and Sikhs, to lodge complaints in respect of discrimination on the basis of their religion, but will protect such groups from discrimination based on their membership of a group which shares a historical identity in terms of their racial, national or ethnic origin.”
17 Mr Hillard submits that the Tribunal may rely upon the Second Reading Speech as an “aid to interpretation”. But as the High Court said in In Re Bolton; Ex Parte Beane (1987) 70 ALR 225 at 227-228 : “The words of a Minister must not be substituted for the text of the law.” It becomes all the more difficult to use the Minister’s (or, in this case, the Attorney-General’s) words when they do not actually spell out the meaning of the provision being construed. One is left with the examples proffered in the speech from which to deduce the meaning (if that can be done).

18 It is not even clear that Muslims, to use the words of the Attorney-General “share a common racial, national or ethnic origin”. While Muslims are all adherents to Islam, they do not share common racial, national or ethnic origins. There are Muslims in every continent and of many different racial and ethnic backgrounds. It is common knowledge for example that there are South Asian, South-East Asian, African, Middle-eastern and European communities of Muslims. Many African-Americans, most famously Muhammed Ali, are Muslims. No doubt within those broader groupings there are further ethnic sub-groups which nonetheless adhere to Islam. Hence the ambiguity in referring to Muslims as a single “ethno-religious” group. For this reason, the examples given in the Second Reading Speech are not very useful aids to interpretation.

19 It is a fallacy to refer only to ethnicity or to religion in determining whether or not a person belongs to an “ethno-religious” group. It is a short-hand generic description of a complex type of cultural grouping which has ethnic, cultural, historical and religious aspects all entwined. Better examples of what is meant by an “ethno-religious” group than were given in the Second Reading Speech might be, for example, Javanese Christians, Bosnian Muslims or Northern Irish Catholics.

20 It therefore follows that, in our view, there is no very helpful extrinsic material to which we have been referred by either party to construe the meaning of the term. It accordingly falls to us to attempt a definition. We do so, among other things, by taking account of the objects of the Act. In our opinion, the term signifies a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices.

The applicant’s race

21 For the reasons as set out in this decision in our view it is insufficient for the applicant merely to assert his Muslim faith to fall within the statutory definition, notwithstanding the Second Reading Speech’s examples. There must be some evidence that there exists a close tie between that faith and his race, nationality or ethnic origin for him to be regarded as a member of an “ethno-religious” group.

22 The Points of Claim filed for the applicant state that the applicant is Muslim. The applicant’s case proceeded on the basis that it is enough to establish that he is Muslim to fall within the definition of “race” for the purpose of the Act. Given the uncertainty surrounding the meaning of the term “ethno-religious” in our view procedural fairness demands that the applicant be given the opportunity to file further evidence, if he is of the view that he falls within the definition of “ethno-religious” as set out in these reasons [at 20].

Orders and Directions

(1) The applicant if he so elects, to file and serve Amended Points of Claim, and any evidence and submissions on which he seeks to rely within 28 days of the date of this decision.

(2) The respondents to file Amended Points of Defence, and any evidence and submissions on which they seek to rely within 28 days of receiving the documents referred to in Order 1.

(3) The parties be granted leave to approach the Registrar for the allocation of hearing dates.

(4) The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.