Scully (at [110]–[113]) in concluding that "Jews in Australia" are a group of people with an "ethnic origin" for the purposes of the RDA. Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [47] per Basten JA, Santow and Ipp JJA agreeing, is to the same effect.
273 I adopt the formulations of a group with common ethnic origins from King-Ansell v Police and Mandla v Dowell-Lee quoted above. That is consistent with the express references to those formulations in the EM, the prior judgments in this Court identified above, and with the protective purpose of the RDA and s 18C in particular; it is to give the expression a non-pedantic and not unduly narrow meaning as referred to by Deane J cited above.
274 The RDA does not seek to protect people on the basis of their religious beliefs per se – religious rights and protections lie outside the RDA – but, common religious beliefs, customs, practices or rituals may form an important component of ethnic identity arising from common ethnic origins. That much is clear from the cases on Jewish ethnic origin already referred to, and it is perhaps even clearer in Regina (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728. It is also clear in the case of Sikhs as discussed in Mandla v Dowell-Lee.
275 No evidence was adduced before me on the history of Islam and there is little evidence before me on the question of what it means to be Muslim. Mr Moolla's evidence is that he is Muslim but non-religious and non-practising (see [98] above). Senator Faruqi, in positioning herself "somewhere in the middle" between being highly observant at the one end of the spectrum and merely culturally attached to the religion at the other, implicitly accepted that it is possible to be "culturally Muslim" (T88:8-23). That may suggest that Muslims have an identity beyond their religion, but it is not clear whether that can be said to arise from race or ethnicity, or something else. The parties also made very little by way of submissions on the question. That makes it particularly difficult to come to a decision on whether or not Muslims or Muslims in Australia are a protected group within the meaning of s 18C(b). It is obviously undesirable for a judge, with their own particular circumstances of education, life experience and religion, to try to define what it means to be Muslim unaided by evidence. The importance of evidence on the question is explained in Sackville R, "Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act" (2016) 90 Australian Law Journal 631 at 640.
276 An academic article referred to by Professor Paradies in his report, which was the subject of cross-examination and relied upon by Senior Counsel for Senator Faruqi in closing submissions is Yeasmeen T, Kelaher M and Brotherton JML, "Understanding the types of racism and its effect on mental health among Muslim women in Victoria" (2023) 28(2) Ethnicity & Health
