The terms "ethnic origin" and "race" are complementary and are intended to be given a broad meaning.
The term "ethnic origin" has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of "ethnic origin" as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.
The term "race" would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims.
264 It is uncontroversial in this case that groups identified by colour and immigration status (as an expression of "national origin" as distinct from nationality which is a purely legal status and may be transient – see Macabenta at 210–213) are protected. It is, however, contentious whether Muslims or Muslims in Australia are a protected group because of a shared "ethnic origin." It is that expression that requires particular attention.
265 With reference to the passage in the EM just quoted, there can be little doubt that it was intended, at least by the Executive that introduced the Bill, that Muslims would be a protected group. That is twice made express in successive paragraphs. However, subjective intention is, of course, irrelevant, and statements made in an explanatory memorandum, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31]. The object, after all, is to ascertain the meaning of the legislation, not the meaning of the legislature, cf Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [97] quoting Holmes OW, "The Theory of Legal Interpretation", (1899) 12 Harvard Law Review 417 at 419.
266 Section 15AB of the Acts Interpretation Act 1901 (Cth) allows consideration of the EM to assist in the ascertainment of the meaning of the provision in order to confirm that the meaning is the ordinary meaning conveyed by the text (taking into account its context and purpose) or to determine the meaning when it is ambiguous or obscure, or when the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable. There is no dispute in this case that the EM can be used to assist in ascertaining the meaning and reach of the expression "race, colour or national or ethnic origin" as well as its component parts.
