Australia’s Race Discrimination Commissioner has moved to join a high‑profile appeal that could clarify how the Racial Discrimination Act applies when a person is targeted for more than one reason, such as both their religion and their race.
The intervention bid comes in Senator Pauline Hanson’s appeal against a Federal Court ruling last year that found she had breached section 18C of the Act over comments about Senator Mehreen Faruqi. The appeal is listed to be heard by the Full Court of the Federal Court in November.
‘This case goes to the heart of how discrimination works in the real world,’ said Race Discrimination Commissioner Giridharan Sivaraman.
‘Everyone has different characteristics that make up who they are. For many people, their cultural or ethnic identity is closely connected to their religious identity. These aspects of identity can’t always be separated. Sadly, people are often targeted for multiple reasons at once.
The Commissioner said courts have long recognised that some religious communities, such as Jewish and Sikh people, attract protection because they are understood in law to have an ethnic dimension, but there is uncertainty about how the Act applies to other religious groups when prejudice has racial elements.
‘In reality, discrimination against other religious groups may also involve racial elements. In this case, the Federal Court said that, in Australia, “to be Islamophobic is almost invariably also to be racist”.’
‘racism can manifest in many ways, and the law must be able to respond to that.’
Sivaraman has asked the court to accept him as a friend of the court, or amicus curiae, confined to legal submissions. He is not seeking to represent either party and will not argue whether the conduct in question amounted to racial vilification.
Section 18C of the Racial Discrimination Act makes it unlawful to do an act, otherwise than in private, that is reasonably likely to offend, insult, humiliate or intimidate another person or group because of their race, colour or national or ethnic origin. It sits alongside section 18D, which provides exemptions for acts done reasonably and in good faith in contexts such as artistic works, academic and scientific debate, and fair and accurate reporting.
Legal observers say the appeal will test how the Act deals with conduct motivated by overlapping characteristics and could guide future cases involving ethno‑religious identity and hate speech.
