Although there are obvious difficulties in defining precisely the concept of `national origin` as used in the [GDR], it does not, in my view, concern current nationality or nationality at a given time which bears no relation to the national origin of the persons concerned. [106] (emphasis added) In AB v. New South Wales,[209] Driver FM found that the time, condition or requirement imposed on the applicant to be an Australian or New Zealand citizen or Australian permanent resident in order to qualify for tuition at a selective school run by the respondent was not appropriate in the circumstances. His honour said: The final genetic ancestry of a New Zealander is not subject to legal evidence. The breed is clearly used in its popular sense. Those are the other words. The real test is whether individuals or groups look at each other and are seen by other members of the community as a particular historical identity in relation to their skin colour or racial, national or ethnic origin. This must be based on a conviction shared by the members of the group. [78] A group is identifiable in terms of ethnic origin if it is a part of the population that differs from others in a sufficient combination of common customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if it does not originate from a common biological racial tribe. It is this combination that gives them a historically determined social identity in their own eyes and in the eyes of those who are not part of the group.
They have a distinct social identity based not only on group cohesion and solidarity, but also on their belief in their historical predecessors. [85] The term refers to the rights and freedoms that must be recognized and respected and that a person must be able to enjoy and exercise if he or she wishes to live as he or she was born – “free and equal in dignity and rights,” as stated in the Universal Declaration of Human Rights. The concept of human rights and fundamental freedoms contained in the Convention in the definition of racial discrimination describes the set of rights and freedoms the enjoyment of which enables every member of a society, on an equal footing with all other members of that society, to live in full dignity, to participate freely in any public activity and to enjoy the public good of that society. [223] In relatively few cases, indirect discrimination issues have been addressed under the RDA. However, here are some general principles from cases in which indirect discrimination provisions have been taken into account in other anti-discrimination laws in order to facilitate the interpretation of the provisions of Article 9(1a). The development of these principles in the context of the SDA and DP is discussed in more detail in Chapters 4 and 5. [179] Driver FM considered it appropriate to make a comparison between persons of Romanian national origin and persons of Australian or New Zealand origin (“national origin” is a distinct concept of nationality)[216] in order to determine whether or not there had been indirect discrimination. Of course, in most cases, a man has only one “national origin” that coincides with his nationality at birth in the legal sense, and in most cases, his nationality remains unchanged throughout his life. But “national origin” and “nationality” in the legal sense are two very different terms, and they may not correspond or continue to correspond.
[96] The case was argued on the basis that the appropriate comparison in determining whether rights were “equally” was between Dr. Siddiqui`s group (defined as “foreign-trained physicians” or “foreign-trained doctors of Indian origin”) and applicants from accredited medical schools who were not required to write the examination. stock. [245] Although Article 5 of the Convention is broad with respect to the right of residence, it does not follow that any non-citizen lawfully entering Australia has the right to reside permanently here. The equality provided for in the exercise of enumerated rights does not include circumstances where, on humanitarian grounds, a government has refused to return a group of persons from certain States to its nation-states. Therefore, the law does not affect people from other countries who do not have similar backgrounds and who are affected differently because of this history. [231] If the 2002 decision had provided a different test for the suspension or termination of Aboriginal persons and for non-Aboriginal persons, this would obviously trigger the application of section 10 and lead to a constructive adaptation of rights, as provided for in the section. However, that is not the case here. There is no contradiction between racial treatment, either in the act or in the 2002 provision. [59] Prior to the insertion of Article 9(1A) in the GDR, a statement pointed out that the wording of Article 9(1) and the specific prohibitions of the GDR were sufficiently broad to cover indirect racial discrimination. It was suggested that the section should be inserted in order to dispel doubts that Article 9(1) and subsequent provisions did not cover indirect discrimination, and not because its wording was not broad enough to do so. [181] In Australian Medical Council v Wilson[182] (“Siddiqui”), the Full Court held that subsections 9(1) and (1A) of the RDA must be interpreted as mutually exclusive.
Justice Heerey explained that such an approach is “consistent with the wording of the provisions, their genesis and the balance of authority.” [183] This does not preclude the applicants from alleged, in the alternative, direct and indirect discrimination. [184] We recognize that the degree to which the content of a universal human right is modified or restricted by laws and legitimate rights recognized in Australia will always be a question of the degree of determination. We also emphasize that these remarks are not intended to imply that fundamental human rights protected by the DR Act may be hindered by laws that have a purported public purpose but are in fact discriminatory. However, we very much doubt that this is the case. [282] Although the term “racial hatred” appears in the title of Part IIA of the RDA, it does not appear in any of the provisions of this section. It was decided that an applicant did not have to prove that the conduct complained of was based on “racial hatred” to prove a violation of Part IIA. [286] The term “national origin” has been interpreted by the courts as distinct from nationality or nationality.