Ekermawi v Fairfax Publications Pty Ltd

[2008] NSWADT 351

CITATION:	Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sam Ekermawi RESPONDENT Fairfax Publications Pty Ltd
FILE NUMBER:	081121
HEARING DATES:	2 December 2008
SUBMISSIONS CLOSED:	2 December 2008
EXTEMPORE DECISION DATE:	2 December 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave, racial vilification complaint
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3 Kahn v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
REPRESENTATION:	APPLICANT In person RESPONDENT K Lynch, solicitor
ORDERS:	Leave is refused.

1 On 2 December 2008 the Tribunal gave the following oral reasons for decision.

2 Mr Ekermawi lodged a complaint with the Anti-Discrimination Board on 8 August 2008 in relation to an article in the Sydney Morning Herald on 4 August 2008. The article was written by Ms Hirsi Ali and it related to the review of a book entitled The Suicide of Reason by Lee Harris. The review had been published previously in the New York Times.

3 The respondent to this application is Fairfax Publications Pty Limited. Ms Hirsi Ali was removed as a respondent as she is not a resident in Australia and neither Mr Ekermawi nor the Anti-Discrimination Board was able to contact her in relation to these proceedings.

4 The President of the ADB declined the complaint as lacking in substance. Mr Ekermawi needs the Tribunal’s permission or “leave” before he can go proceed: Anti-Discrimination Act 1977, section 96(1). The principles by which the Tribunal determines whether to grant leave were set out in a decision of Xu v Sydney West Area Health Service [2006] NSWADT 3 and I adopt the principles in that case as set out particularly in paragraphs 17 and 18. In summary, Mr Ekermawi needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has some prospects of success. The provisions under which Mr Ekermawi says his complaint comes are sections 20B and 20C of the Anti-Discrimination Act 1977. Those provisions state that:

In this Division, "public act" includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

20C Racial vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

5 The elements of these provisions are that there must be a public act which incites hatred towards, serious contempt for or severe ridicule of a person or groups of persons on the ground of race. Without going through the exceptions to the racial vilification provisions, I will deal firstly with those three elements. There is no dispute that publication of this article in a newspaper is a public act, as defined in section 20B. The second element is that there has been incitement of hatred, serious contempt or severe ridicule of a person or group of persons on the ground of race. Mr Ekermawi has pointed to several passages in the article which he says amounts to incitement. In particular, the passage at the end of the first paragraph of the article which says:

Since the September 11, 2001, attacks, Islam has often been seen as the chief threat to the Enlightenment’s legacy. But is there also something internal to Western intellectual history that leaves us vulnerable to the enemies of reason?

6 The second passage which Mr Ekermawi highlighted was in the next paragraph where the author says:

The alpha male, in our societies, is pacified and groomed to study hard, find a good job, and plan prudently for retirement. ‘While we, in America, are drugging our alpha boys with Ritalin,’ writes Lee Harris author of the Suicide of Reason , ‘the Muslims are doing everything in their power to encourage their alpha boys to be tough, aggressive and ruthless.’

7 The final passage to which Mr Ekermawi refers is at the bottom of the first page of the article which says:

It is not reason that accommodates and encourages the persistent segregation and tribalism of immigrant Muslim populations in the West. It is Romanticism and its descendents. Multiculturalism and moral relativism promote an idealisation of tribal life and have shown themselves to be impervious to empirical criticism. I see today’s Western leaders squandering a great and vital opportunity to compete with agents of radical Islam for the minds of Muslims, especially those within their borders. But to do so, they must allow reason to prevail over sentiment.

8 Mr Ekermawi then quotes the final paragraph of the article in full, which I will not read onto the record in these proceedings. Mr Ekermawi’s submission is that the inference that can be drawn from those passages is that the author is spurring the individual on to action against Muslims. In particular he gets that inference from the final sentence of the article which says, “While this conflict between Islam and the West is undeniably a deadly struggle between cultures it is individuals who will determine the outcome.”

9 I do not agree with Mr Ekermawi’s conclusion on the basis of these passages. In my view those passages do not reach the standard of inciting hatred, serious contempt or severe ridicule of a person or group of people. Certainly the article can be understood as a criticism of the Muslim religion and as contrasting the way Muslims in general behave with the way that people in the West behave, nevertheless, criticism is not unlawful. Mr Ekermawi says that we can do without these words. It is not a matter of whether these words are beneficial or not beneficial to society, it is a matter of whether they reach the standard of hatred or contempt as prescribed in the legislation.

10 Furthermore, while the article is addressed to Muslims, Islam is a religion and is not covered by the definition of race in the Anti-Discrimination Act. Section 4 of the Act defines race to include “colour, nationality, descent and ethnic or ethno-religious or national origin.” This Tribunal has decided in cases including Kahn v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 (31 July 2002) that religion per se is not included in the definition of race. Mr Ekermawi did not nominate any ethno-religious origin as being the subject of the article.

11 Finally, if any further reason were needed, Mr Lynch acting for Fairfax Publication Pty Limited maintained that even if the publication amounted to racial vilification, the respondent would have a defence under section 20C(2)(c) which says that:

Nothing in this section renders unlawful a public act done reasonably and in good faith for academic, artistic, scientific or research purposes or for other purposes in the public interest including discussion or debate about an exposition of an act or matter.

12 Given that this article is a book review, that the book itself has been published and that this is a review of that publication it may well be that it could come within the exception. However, my main reasons for determining that this complaint has no prospect of success are the two reasons that I have given namely, that it does not reach the standard of incitement to hatred, serious contempt or severe ridicule and even if it does such incitement is not on the ground of race, but on the ground of religion.

13 I do not criticise the terms of Mr Ekermawi’s complaint although I do agree with Mr Lynch’s comments about the relevance of some of the material in the complaint. I have preferred to focus on the article itself and whether or not it comes within the provision in the Anti-Discrimination Act. For those reasons leave is refused.