An Interesting Decision about Muslim Immigration Critiques By Ian Wilson LL.B

     First, the basic material, then my analysis:

“Channel Nine TV host Sonia Kruger vilified Muslim people when she said Muslim immigration to Australia should be banned because she wanted to feel “safe”, a tribunal has found. But it was not racial vilification, because Muslim people are not a race, the NSW Civil and Administrative Tribunal said, in its decision released today on Kruger’s remarks on the Today during a panel chat in July, 2016. “Personally, I would like to see it (Muslim immigration) stop now for Australia,” Kruger said on-air on July 18, during a discussion in the wake of terror attacks in Nice on Bastille Day, on whether the number of migrants and refugees allowed into a country increased the risk of terror attacks.  “Because I want to feel safe, as all of our citizens do when they go out to celebrate Australia Day, and I’d like to see freedom of speech,” Kruger continued.

An avalanche of criticism followed, with Kruger defending her comments. She acknowledged on-air the following day the comments may have been “extreme” said she had “complete respect for people of all races, and religions”, and repeated her view about “the correlation between the Muslim population of certain countries and the number of subsequent terrorist attacks”. “I acknowledge my views yesterday may have been extreme. It is a hugely complex and sensitive issue, it’s an issue with no simple answer and it’s an issue that cannot be fully discussed in a short televised segment,” she said. Major sponsors distanced themselves from her, with Kruger going to ground and staying away from social media account of Australian Muslim man Sam Ekermawi filed a complaint to the tribunal. In its decision released today, the tribunal said Kruger’s “vilifying remarks” in July 2016 had the capacity to “encourage hatred towards, or serious contempt for, Australian Muslims by ordinary members of the Australian population”.

But Mr Ekermawi’s racial vilification complaint was dismissed: “The evidence does not support a finding that Muslims living in Australia are a ‘race’ by reason of a common ethnic or ethno-religious origin”, the Tribunal said. “The result on this point, however, might have been different had there been different or additional, objective evidence. The tribunal noted that while Kruger’s comments were “calm and measured” and she “made it clear she did not think every Muslim in Australia or overseas was a fanatic”, taken in context her comments were likely to encourage or incite “feelings of hatred towards, or serious contempt for, Australian Muslims as a whole” by linking them to terrorist attacks. The Tribunal said it accepted that Kruger and her employer, Nine, were “acting in good faith without malice and not for an improper purpose” but said it “cannot accept that the remarks of Ms Kruger were ‘reasonable’”.

“She expressed the view that the size of Australia’s Muslim population meant there should be no further Muslim migration irrespective of any other matter. This appears to be unsupported by any evidence or material placed before the Tribunal,” the tribunal said. Here are the guts of the decision:

“Are Australian Muslims, or Muslims living in Australia, a group that has an ethno-religious origin? Meaning of “ethno-religious origin”

30.    As previously mentioned, s.4 of the ADA defines “race” so as to include “ethno-religious” origin. “Racial vilification” under s.20C(1) of the ADA is not satisfied unless “race” was the reason or ground for the requisite degree of ill-feeling being incited: Veloskey v Karagiannakis [2002] NSWADTAP at [30]; Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [114].
31.    The Respondents submit that “Muslims living in Australia” do not fall within the definition of persons of an ethno-religious origin, and thus are not a race, for the purpose of s.4 of the ADA. According to the Respondents, the description of “Muslims living in Australia” is to persons who may or may not be adherents of Islam or to persons holding certain religious beliefs rather than to an ethno-religious origin.
32.    First, the terms “ethnic, ethno-religious ... origin” are not to be given a pedantic or unduly narrow meaning”: Mabo v The State of Queensland (No 1)  (1988) 166 CLR 186, 230 (Deane J).
33.    Second, the broad interpretation of ethnic origin referred to in King-Ansell v Police [1979] 2 NZLR 531 per Richardson J at 543 and Mandla v Dowell-Lee[1983] 2 AC 546 (HL) per Lord Fraser at 562 is applicable under the ADA and, if a common religion different from that of neighbouring groups or the general community surrounding the group is involved, those decisions can also assist in interpreting the term ethno-religious origin: see Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [75].
34.    Third, the mere fact that members of the group – such as Australian Muslims – are of diverse national and racial origins from different parts of the world, does not preclude the group having a common ethnic or ethno-religious origin: King-Ansell v Police [1979] 2 NZLR 531 at 534, 543. A group will be identifiable in terms of its ethnic origins if the evidence establishes that it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from a common racial stock. Of importance will be whether or not the evidence establishes that the group has an historically determined social identity in their own eyes and in the eyes of those outside the group.
35.    Fourth, it is insufficient for the Applicant merely to assert his Muslim faith to fall within the statutory definition of race: Khan v Commissioner, Department of Corrective Services  [2002] NSWADT 131 at [21].
36.    Fifth, if a common religion different from that of neighbouring groups or the general community surrounding the group is involved, the group may have a common ethno-religious origin if the group’s characteristics can fairly be seen as being so closely akin, having regard to the general objects and purposes of the Act, to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin, even if in current, ordinary language it would not fairly be said that the group has an ethnic origin: Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62 at [25].
37.    Sixth, It is possible for a person to have more than one “ethnic origin”. For example, Jews in Germany (as has been explained) may have an ethnic origin based in Germany or other parts of the world as well as being Jewish and having an ethnic origin further back than the creation of the State of Germany. Depending on the evidence, the group may be regarded as having an “ethno-religious origin”, despite coming from different national or ethnic origins particularly where the people identify with the shared history and customs associated with the religious practices of the group and are viewed as having a separate and distinct identity by other Germans or members of the State in question: see Ealing London Borough Council v Race Relations Board[1972] AC 342 at 365.
38.    We are of the view that to the extent the statutory construction of the term “ethno-religious origin” in Khan is inconsistent with the above principles, we prefer the approach of the Appeal Panel in Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62

Cutting to the chase, the action was dismissed, but only just: “However, we need not consider this question further in light of our conclusion as to whether the evidence establishes that Muslims living in Australia have a common ethno-religious origin. Apart from that issue, we would have found that both of the Respondents engaged in racial vilification of the Australian Muslim community, being Muslims living in Australia, in breach of s.20C of the ADA.”

     Even in most of Europe, statements like Kruger’s would not be sufficient to justify use of race hate laws, so it shows that Australia has quietly dismantled free speech to a degree unsurpassed in the West. Section 18 C and like laws, could have been rejected, but the politically correct pollies simply lacked the guts to stand up to the lobbies. Now, it never will be. A philosophical point something of a tangential reflection on all the material here on the fall of the West; what purpose did all the sacrifices of Anglo-Australia in the past serve? That was the question posed to me by my father who served in World War II. Although ill, he still reads the items on the sites we cover from his bed using his trusty laptop. Would you fight for this country again if you had your time over again Dad, and knew where it was all going, I said? No, he replied, the place is just not worth it, it was lost long ago. As Trump would say, sad.  He said, maybe we deserve China to pull the rug out from under us because we have gone soft from creature comforts of the good life, losing sight of what is really important. 



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