Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd
[2010] NSWADT 145
•10 June 2010
CITATION: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Sam EkermawiRESPONDENT
Respondent (file 061083) Harbour Radio Pty Ltd
First Respondent (files 071003, 071004) Nine Network Australia Pty Ltd
Second Respondent (files 071003, 071004) Harbour Radio Pty LtdFILE NUMBER: 061083, 071003, 071004 HEARING DATES: 31 November, 1 and 2 December 2009 SUBMISSIONS CLOSED: 25 January 2010
DATE OF DECISION:
10 June 2010BEFORE: Chesterman M - Deputy President; Kelleghan D - Non-Judicial Member; Schneeweiss J - Non-Judicial Member CATCHWORDS: Equal opportunity – racial vilification LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Racial Discrimination Act 1975 (Cth)CASES CITED: A obo V and A v New South Wales Department of School Education (EOD) [2000] NSWADTAP 14
Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89
Burns v Dye [2002] NSWADT 32
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v Laws (No 2) [2007] NSWADT 47
Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351
Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49
Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334
Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295
Harrison v Melhem [2008] NSWCA 67
Hollows v Macquarie University [2009] NSWADT 23
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Jones v Scully [2002] FCA 1080
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1
King-Ansell v Police [1979] 2 NZLR 531
Kunhi v University of New England [2008] NSWADT 333 Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548
Toll Pty Ltd trading as Toll Express v Abdulrahman (EOD) [2007] NSWADTAP 70
Trad v Jones (No 3) [2009] NSWADT 318
Western Aboriginal Legal Service v Jones [2000] NSWADT 102REPRESENTATION: APPLICANT
RESPONDENT
In person
A Stewart, solicitorORDERS: 1. The complaints filed by the Applicant are dismissed as against both Respondents
2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
REASONS FOR DECISION
Introduction
1 In these three matters, which were heard in conjunction, the Applicant, Mr Sam Ekermawi lodged complaints under the Anti-Discrimination Act 1977 (‘the Act’) against two Respondents, Harbour Radio Pty Ltd and Nine Network Australia Pty Ltd. The grounds of his complaints were that the Respondents, by broadcasting certain statements in radio or television programs within New South Wales, contravened the provisions against racial vilification contained in section 20C of the Act.
2 The procedural history of these matters is relatively complex. An outline of the significant aspects of this history follows.
Procedural matters
3 Initially, Mr Ekermawi lodged two complaints about the broadcasts by the Respondents with the Anti-Discrimination Board (‘the Board’), on 26 July 2005 and 19 August 2005 respectively.
4 The earlier complaint – that of 26 July 2005 – related to material within programs broadcast by Harbour Radio Pty Ltd (‘Harbour Radio’) on its radio station, 2GB, on 21, 22 and 25 July 2005. The later complaint– that of 19 August 2005 – related to material within programs broadcast by Harbour Radio on 2GB on 16 and 17 August 2005 and to a segment of a program broadcast by Nine Network Australia Pty Ltd (‘Nine Network’) on Channel 9 television on 19 August 2005.
5 On 6 September 2006, the President of the Board declined the earlier complaint under section 92(1) of the Act on the ground that it was lacking in substance. At a case conference held on 8 November 2006, however, the Tribunal granted leave under section 96 for this complaint to proceed. It did not publish reasons for granting leave. The file number for the Tribunal proceedings stemming from this earlier complaint is 061083.
6 On 18 July 2007 the Tribunal dismissed these proceedings under section 107 of the Act on the ground of want of prosecution. But in a decision delivered on 7 February 2008 (Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49), the Tribunal determined, on grounds of procedural fairness, that the proceedings should be revived.
7 On 4 January 2007, the President of the Board declined the later complaint on the ground that it was lacking in substance. On 12 December 2007, however, the Tribunal granted leave under section 96 for this complaint to proceed against both Respondents (Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295). The file numbers for these proceedings in the Tribunal are 071003 and 071004.
8 At the hearing before us on 30 November and 1 and 2 December 2009, Mr Ekermawi represented himself. Because of his unfamiliarity with the relevant legal principles and some apparent difficulties with the English language, his evidence and submissions were at times disjointed and confusing. Mr Andrew Stewart, solicitor, appeared for both Respondents.
9 At the conclusion of the hearing, we directed that supplementary submissions should be filed and served and set out a timetable for this to be done.
10 During the hearing and in his supplementary submissions, Mr Stewart drew our attention to significant discrepancies between (a) the allegedly vilificatory statements claimed by Mr Ekermawi, in his two complaints to the Board, to have been made during the broadcasts by the Respondents and (b) the statements on which Mr Ekermawi now relied and which were shown in CD or DVD recordings and accompanying transcripts, tendered by Mr Ekermawi, to have in fact been broadcast by the Respondents. The nature of these discrepancies was as follows: (i) a number of the allegedly vilificatory statements described by Mr Ekermawi in his complaints to the Board did not form part of the broadcast material contained in the recordings and transcripts; and (ii) this broadcast material included allegedly vilificatory statements, on which Mr Ekermawi now sought to rely, which were not mentioned in either of his complaints to the Board.
11 Mr Stewart argued that the allegedly vilificatory statements which Mr Ekermawi should be permitted to put before us should be confined to those which were both described in one or other of his complaints to the Board and included in the broadcast material contained in the tendered recordings and transcripts.
12 We indicated to Mr Stewart that, since there were no relevant admissions by either of the Respondents, we would only take into consideration allegedly vilificatory statements that were shown by the recordings and transcripts to have in fact been broadcast. We would leave out of account any such statements described in the complaints to the Board that were not included in the recordings or transcripts.
13 On the other hand, we ruled that Mr Ekermawi should be permitted to rely on allegedly vilificatory statements which he failed to describe in his complaints to the Board but which were included in the recordings and transcripts. We rejected Mr Stewart’s submission that since (a) this material was not included in the complaints for which the Tribunal granted leave to proceed and (b) Mr Ekermawi had made no formal application to enlarge the scope of these complaints, the material could not now be added to his case. At the hearing, we stated that the two Tribunal decisions granting leave to proceed, viewed in conjunction with subsequent directions and letters emanating from the Tribunal, sufficiently indicated that this material was not to be excluded. We held also that, even though Mr Ekermawi had failed to mention some of this material in Points of Claim served by him on 29 September 2009, the Respondents could not maintain that they would be prejudiced by lack of notice if it were admitted into evidence.
14 With reference to this decision by us at the hearing, we would further point out that under section 103 of the Act, the Tribunal may on its own motion amend a complaint and in doing so may add matters that were not in the complaint as investigated by the President of the Board.
15 A further matter to be mentioned in this specific context is that both in his correspondence with the Board and subsequently, Mr Ekermawi alleged that Harbour Radio had deliberately refrained from supplying recordings of relevant parts of the broadcasts about which he complained. Mr Stewart advised us that Harbour Radio strongly denied this allegation.
16 In his supplementary submissions, Mr Stewart stated that Mr Ekermawi appeared no longer to be maintaining this allegation. We are not sure that this is correct.
17 In order to avoid any doubt, we wish to make it clear that we do not attach any credence to this allegation by Mr Ekermawi. It was an allegation of seriously improper conduct, in support of which he provided no evidence at all.
18 In the result, we admitted into evidence recordings of various segments of programs broadcast by one or other of the two Respondents on the dates indicated in Mr Ekermawi’s complaints to the Board. We also admitted transcripts of this broadcast material. In the course of the hearing, the recordings were all played in open court.
19 The statements within these programs that according to Mr Ekermawi amounted to unlawful racial vilification were made by three well-known presenters: Mr Alan Jones, Mr Chris Smith and Mr Ray Hadley. At the commencement of the hearing before us, Mr Ekermawi applied for leave to join these three presenters as additional respondents in the proceedings. He maintained that the Board should have done this and that since he was not a lawyer he could not be expected to have realised that if he wished them to be joined it was not sufficient merely to mention the matter (as he had done) in his Points of Claim.
20 Mr Stewart opposed this application, pointing out that during 2008 and 2009 Mr Ekermawi had had advice from a lawyer funded by legal aid and arguing that to allow the application would occasion significant prejudice to his clients.
21 We rejected this application by Mr Ekermawi, essentially on the grounds advanced by Mr Stewart.
22 Mr Ekermawi attached to his supplementary submissions a CD which he described as a recording of material broadcast on Radio 2GB on 21 July 2005. He attached also a document purporting to be a transcript of this material. It comprised statements by Mr Jones and discussions between him and various listeners to his talkback program. None of it was included in the recording or the transcript of material broadcast on this date that we admitted into evidence. The transcript had numerous errors of grammar and spelling.
23 In supplementary submissions filed in reply, Mr Stewart argued that we should disregard this new material because it had not been admitted into evidence during the hearing and Harbour Radio had had no opportunity to confirm the authenticity of the CD or the accuracy of the transcript.
24 We agree with Mr Stewart, for the reasons that he gave, that this new material should not be admitted as a component of Mr Ekermawi’s case in these proceedings.
Relevant legislation
25 The provisions of the Act that have direct relevance to these proceedings are the definition of ‘race’ in section 4(1), and the provisions of section 20B, section 20C and section 88. These are as follows:-
4 Definitions
race includes colour, nationality, descent and ethnic, ethno-religious or national origin.
In this Division, public act includes:20B Definition of “public act”
(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(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.(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
20C Racial vilification unlawful(2) Nothing in this section renders 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.
(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.
A vilification complaint cannot be made unless each person on whose behalf the complaint is made:88 Vilification complaints
(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or
(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.
The broadcast material that we admitted into evidence
26 All five of the relevant radio programs, broadcast by Harbour Radio on 2GB, were talkback programs. The presenter discussed a range of issues with callers, often adding comments of his own. Mr Jones was the presenter in three of these, while Mr Smith and Mr Hadley each presented one of the programs. The relevant segment of the single television program, broadcast by Nine Network on Channel Nine, comprised a monologue by Mr Jones.
27 The first three programs (‘Programs 1, 2 and 3’) were broadcast on 21, 22 and 25 July 2005 respectively. This was soon after the terrorist bombing attacks in London on 7 July 2005, which caused the deaths of 52 people. There were further attempted bombings in London on 21 July 2005. In the series ‘Sixty Minutes’ on 24 July 2005, Channel Nine put to air a program on migration patterns and increasing Muslim populations. By the time when Programs 1, 2 and 3 went to air, it was known that the perpetrators of the attacks of 7 July were British citizens who had spent some time in Pakistan, where they had been exposed to radical forms of Islam. There was a significant amount of public discussion in Australia of the risk that ‘home-grown terrorists’ might exist in this country.
28 The fourth, fifth and sixth programs (‘Programs 4, 5 and 6’) were broadcast on the mornings of 16, 17 and 19 August 2005 respectively. On 15 and 16 August 2005, Channel Seven had included in an evening program, in the series ‘Today Tonight’, a segment in which several young men, describing themselves as Muslims, displayed a significant degree of alienation from mainstream Australian values.
29 The following material (from ‘Program 1’) was broadcast on Radio 2GB on 21 July 2005. The presenter, Mr Jones, spoke to various callers:-
Neville: Hello. Yeah, good day, Alan.
Jones: Yeah.
Neville: Just on that Mullah al Fardi, mate, ah, just thinking to meself, you know, I’m Lebanese Christian and I’m pretty extremist in my ways, but to say that I will go and do suicide bombing go on a train and blow up a train with passengers or just innocent people and little kids and that, mate, I reckon that’s just ridiculous. You know that’s just sad. It shows how much of a coward he is.
Jones: But of course that’s a rational explanation and what we’re saying here now I think Joe is that these people don’t admit to rational explanations. This is utterly irrational behaviour and that’s why there has to be a very significant rethinking about what alienates these people to such a point that they can be brainwashed in such a way. And that is the big concern and that is happening and that’s why I mentioned this morning the circumstances in Pakistan where this kind of teaching is going on and the teaching is directed against the infidels and the teaching is directed in training people into this sort of violent behaviour, hence the 200 or so arrests that have occurred in Pakistan in the last 24 hours. The wood is being put on Pakistan and I made the point this morning that Mamdo Habib said he was off to Pakistan to find some schools for his kids. Perhaps he might explain to us what sort of schools.
Neville: Yeah I think if he wants to show how tough he is we can introduce him to the SAS and see how tough he is then.
Jones: That’s a very good point. There’s lots of ways to prove your toughness, aren’t there.
Neville: Yeah, blow yourself up in front of little kids, mate.
Jones: Yeah well, I mean, all your explanations of these things are rational explanations and we are dealing with people that don’t have a rational perspective on things but nonetheless emerging in the last week as I said this morning is this component of Pakistan. I mean some of these kids were born, their parents were born in Pakistan, they went to Pakistan, they were brainwashed in Pakistan and now there’s a suggestion that, by intelligence people, that the operation was driven from overseas, perhaps Pakistan, and I made this point about these radical madrassahs and if you see them, read about them. They are hard line religious schools and one of them is known as the university of jihad and it’s been the cradle of the Taliban which ruled Afghanistan as you know for more than five years and it is the recruiting centre for militant Pakistani groups. And that’s where these kids have been trained. There are no extra curricular activities at these schools. Television and radio are banned. They learned nothing other than how to read, memorise and recite the Koran and the number of madrassahs has multiplied. I made the point this morning that when Pakistan gained independence in 1947, there were only 137 of them. Now there are 13,000 with an enrolment of close to 1.7 million. Now the President of Pakistan, who isn’t democratically elected, he’s the beneficiary of power through a military coup, says he’s part of the coalition of the willing opposing terrorism. Well I think he’s got to start explaining to the civilised world what his madrassahs are doing and to whom. I have a feeling the bloke might up to this point be having sixpence each way. Veronica, hello. Oh Veronica, what’s happened there. Something funny going on there. We’ll just take a break. 121873 is my number and Veronica if you’re listening hang on because you aren’t coming through. 27 to 10.
Jones: Okay. 121873 George, hello.
George: Yeah, Alan.
Jones: Yes.
George: I’ve just been listening this morning, I just want to raise a little comment. I believe that we need to get back to educating these people that these thoughts that they’re having are completely, completely wrong because you have to understand these people have been …the propaganda that’s been occurring from their parents, from their grandparents, from the countries they’ve been coming from.
Jones: Yep yep.
George: They can only understand this.
Jones: Yep.
George: Now, if these people aren’t educated we’ve got a lot of problems.
Jones: And we’ve got a lot of work to do, you’re quite right.
George: A hell of a lot of work because like I said like what’s happened in London like Leeds like a lot of probably listeners don’t know that that part of England, it’s a very poor country.
Jones: Yeah.
George: Poor suburbs.
Jones: Yeah, poverty is a problem and that’s the problem about integration as opposed to segregation. You’ve got to bring these people in, you’ve got to integrate them, you’ve got to educate them.
George: Education.
Jones: Yeah.
George: At the end of the day this is what they have to understand that this is wrong.
Jones: Mmmm.
George: You can’t just go and blow someone up or kill someone because they don’t, ah, believe the same thing as you.
Jones: That’s why I think we’ve made some progress. The Muslim leadership have been very good in opposing it and you know the Fatwa in London was outstanding. They all came together, they were seen side by side with Tony Blair and that is very good for I think the Muslim community to see. Now they’ve got to try and identify who the militants are and educate them, argue with them, plead with them, gain their support and gain their confidence and let them see that there is another way of life which is much more beneficial and productive than the one they are contemplating choosing. Geoff, hello.
Geoff: Good morning Alan, I hope you’re feeling better mate.
Jones: Oh it’s a battle.
Geoff: Yeah, you’re doing a great job.
Jones: Thank you.
Geoff: Listen I just want to cover two things quickly. The first is that I think everyone should have a look at yesterday’s article by Andrew Bolt in Melbourne’s Herald Sun.
Jones: He’s outstanding, isn’t he.
Jones: He begins his article by saying:Geoff: Yes, precisely and he says there’s some of these so called moderate leaders don’t always give 100% support to…
- It’s time we accepted the difficult truth many of the Muslims we invite to live in Australia want to destroy us. For 4 years since the September 11 attacks I have begged our Islamic leaders to drive extremists from their mosques. For 4 years I have also reassured you that most Muslims here are moderate. I have even insisted they have some moderate Muslim leaders and last week again endorsed Sheik Fami Naji El Imam of Preston mosque as a man of peace. How eager I was to praise. Heavens I described as moderate the Melbourne based Islamic Information Services Network of Australia which purged from its website articles I had noted claiming democracy was a sin, Jews were behind September 11 and western society was a pollution. Was I just kidding myself? Isn’t it becoming terribly clear that Islam, at least the Islam of Australia’s Arab sheiks and imams, is hostile to our society?
Geoff: Yeah, we’ve imported a big problem here, Alan.
Jones: Mmmm.
Geoff: And in the English situation they’re running around now trying to lock the gate after the horse has bolted.
Jones: That’s it.
Geoff: After all these years of uncritical tolerance of it and I fear that we’re in the same situation here. One of the things that’s emerged is that one of the more fanatical extremist groups active in the Luton area in England is a group called [cannot be transcribed] Tahir.
Jones: Yes, yes, yes.
Geoff: Right, now it turns out that they were behind, the driving force behind a teenager over there Sabina Beegan’s successful court battle to wear the head to toe dress hajib.
Jones: Yeah, I’ve talked about that before and you know who defended Beegan.
Geoff: Yes, I know, I couldn’t believe that when you…
Jones: Tony Blair’s wife.
Geoff: Exactly.
Jones: Hopefully she’s woken up as well. I mentioned consistent with what Andrew Bolt is saying and with what you’re saying and it’s worth repeating. Sir Harry Gibbs, the former Chief Justice of the High Court of Australia, said in 2002 in an Australia Day message in part while it would be grossly offensive to modern standards for a state to discriminate against any of its own citizens on the ground of race, a state is entitled to prevent the immigration of persons whose culture is such that they are unlikely readily to integrate into society, or at least to ensure that persons of that kind do not enter the country in such numbers that they will be likely to form a distinct and alien section of society with the resulting problems that we have seen in the United Kingdom. That’s 2002.
Geoff: Yeah, precisely Alan. And this group is good to hear. I don’t know whether they were active in a similar situation here earlier this year with that girl here in Sydney but if you cast your mind back to the first week of November 2002, a meeting was held in, ah, Auburn where over 400 people attended a meeting by [cannot be transcribed] Tahir and the main speaker of that meeting was a guy by the name of Ashraf Derahi.
Jones: Yep, that’s right.
Geoff: Also and he turns out to be a Design and Contract Engineer of North Sydney Council.
Jones: Yep.
Geoff: You know, we’ve got to wake up and you know even little things like going you covered well today that the ambulance prayer…
Jones: Mmmm.
Geoff: Yesterday that business about the prayer up at Lennox Head.
Jones: That’s right.
Geoff: This is all part of the problem.
Jones: Part of the problem. We’ve to got to stand…
Geoff: I’ll tell you what, I’ll tell you what Alan. Out of all the public people in Australia, the media people that type of thing, you’re doing a stand-up job for standing up for traditional Australia.
Jones: Well look I think, I think you’d have to concede that we have made some progress in the last month, haven’t we.
Geoff: Oh for sure, yeah.
Jones: And that’s the key. Thank you Geoff.
Geoff: You’re right.
Jones: Appreciate your call, it’s 16 to 10.
Jones: Colin, hello.
Colin: Alan, how are you.
Jones: I’m well thank you.
Colin: In response to Fardi I was … I’ve been on the phone a while because I was absolutely fuming when I … I’ve calmed down a bit now, mate.
Jones: Yes.
Jones: Well you heard me ask him, some Muslims, the hate Muslims, are saying you should learn military tactics and that if a person speaks ill of Islam it’s acceptable to kill them and he said yes it is. Now whenever we’ve got people procreating that argument in this country at leat he’s highlighted what some say is an illusion, it’s no illusion, that’s a reality. There are people out there who think that way. Our job is to identify them, identify them and make sure that they are neutralised within our society and preferably by the leadership, the Muslim leadership, we’ve got to work together. We’ll keep talking about it. As I said this is not an issue that we can say, oh well it’s gone now, we’ll get on with something else. This is an enduring concern for all Australians. 2 to 10.Colin: Can I just send a message to Fardi. Get the wax out of your ears, mate, and listen to this. My dear old Dad he fought for 3 years over in New Guinea in World War II. He’s gone now. Now he came back with a massive shrapnel wound, deaf in one ear, half deaf in the other ear, malaria and the worst case of shingles you’ve ever seen in your life. Now he wasn’t an agnostic, he was an atheist. Now what I’m trying to say, Alan, is he did not need any religious leader or anybody for that matter to tell him when to take up arms. His basic instinct told him when he was needed to that because his country and his way of life was under threat. Now while anybody needs a religious leader or anybody for that matter to tell them how to conduct themselves they are not relying on their own instinct to do that. They are conditioned and it’s an unfortunate situation that people aren’t able to make up to their own minds.
30 The following material (from ‘Program 2’) was broadcast on Radio 2GB on 22 July 2005. The presenter, Mr Smith, spoke to a caller named Bill:-
Bill: Hey mate, how are you.
Smith: Good, thank you for waiting on.
Bill: I should have said Happy Birthday.
Smith: You don’t need to, you don’t need to.
Bill: Mate, look I know this bloke he was, mmm, born in Lebanon and his parents came from elsewhere and he said to me, mmm, that he would never ever ever be Lebanese. You know he’s always, mmm…
Smith: What, is he Lebanese Christian or Lebanese Muslim?
Bill: Ah they’re Muslims. And lets say they’re Iraqis. He is considered in Lebanon as an Iraqi though he was born there. And mmm he said to me recently, oh Mum and Dad have just gone back over to Lebanon to sell the house, mmm, he said because if Mum and Dad were to die the house would then revert to the State.
Smith: Oh, is that how it works?
Bill: Yeah, so I mean you know there’s no connection. He said this country here, Australia, has been very … very mmm good to him because he now has his first country. He’s now an Australian citizen.
Smith: Don’t worry about that mate. This country is awfully good to anyone that comes to it.
Bill: Yeah, but see the point is I mean you know you hear people like yourself and Ray Hadley and Ray Hadley is a beauty for its own, you know. He was born here, you idiot, you know there’s nothing you can do about. Well look if Lebanon can, you know, just say that, you know, it doesn’t matter where you are if your parents came here you will always be from that place and if there’s a problem just go back to where you came from. You know what I mean.
Smith: If they’ll have you back.
Bill: Well I don’t know what you do, how do you get rid of them.
Smith: You can’t, they’re in limbo, mate, and therefore they are here even if we say to them, ah, we’re going to take your citizenship away, you really can’t do it because they have no citizenship to revert to.
Bill: Well I mean I just wonder what this guy does. Like he doesn’t really have a citizenship anywhere else either. You know
Smith: I don’t know, you know him, you’re telling the story.
Bill: He’s Australian now but when he lived in Lebanon he certainly wasn’t a citizen of … he was born there but he was certainly not a citizen there.
Smith: It’s one thing to bring in laws to try and send people back from you know where they came so we can actually tell them that we don’t need them in this country. We don’t need their hate, we don’t need their kind but it’s another thing to actually make it happen.
Smith: Thank you Bill. Appreciate your call.Bill: Well look as far as I’m concerned you know some of these people here that hate us so much stick them in a Hercules and put a parachute on them and shove them out the back door over Pakistan.
31 The following material (from ‘Program 3’) was broadcast on Radio 2GB on 25 July 2005. The presenter, Mr Hadley, spoke to a number of callers:-
Hadley: Let’s get straight into emails which are usually ignored in the first hour… Greg says your earlier guest has given us all the answer. Get all the westerners out of the Middle East and in turn get all the Muslims out of the West, says Glen Actley from Caringbah. Thank you for that. 131873 is the open line number. Hello Garth.
Garth: Yeah good mate, how are you going?
Hadley: Well thanks Garth.
Garth: Yes mate I just aahh have a bit of a comment about this just what I feel like. Mate they mentioned that they aahh are striving for an Islamic state in their aahh, in the Middle East and that we’re forcing our way of life upon them which is obviously a democracy aahh. Just aahh, what aahh, look a good answer would be, why don’t we go and liberate them, it would help them liberate them with an Islamic state instead of helping liberating them with a democracy which they don’t want. If we help them establish an Islamic state then maybe we can send them all home.
Hadley: Well that is what our previous emailer said Garth and you are in agreement with him. 131873 is the open line number. 2GB.com. Hello Carole.
Carole: Hello Ray
Hadley: Yes Carole.
Carole: I am surprised that none of your callers has mentioned the fact regarding the Sixty Minutes interview that the Koran says that, aahh, all Muslim religions are pure as spring water and everybody oustside that religion is sewer water. Now I don’t know about you but I take offence at that.
Hadley: Well it is offensive, but I don’t know that it is illegal, but it is certainly offensive.
Carole: It says that that’s what the Koran says and that if the Muslims associate with non-Muslims they are polluting the pure water that is their religion.
Hadley: Well, well don’t forget that it was said by a raving lunatic called Sheik Khalid Yassim who happens to be an adopted Muslim. He is an American who served in Vietnam.
Carole: Exactly but he said that the Koran said that. I mean I haven’t read the Koran.
Hadley: Well if Sheik Khalid Yassim, Carole, told me that it was raining I would have to go out and check, to be perfectly honest. I don’t know that we would place too much credence in what the old Sheik says. He also compared homosexuality to bestiality and said people of that ilk should be killed. 131873 is the open line number. 2GB.com, click onto the feed back icon if you would like to join us. Miriam, hello.
Miriam: Hi Ray how are you?
Hadley: Well, thank you Miriam.
Miriam: I am actually calling just regarding the previous speaker and the previous caller that says that in the Koran it says that you know non-Muslims are regarded as, as sewer water and we’re regarded or Muslims are regarded as being pure water, it does not say that in the Koran and neither was it said by Khalid Yassim it was actually a Christian priest who was interviewed by Sixty Minutes. Just that little correction there.
Hadley: Thank you Miriam, nice of you to correct it.
Miriam: Yeah, secondly, people like Khalid Yassim, [cannot be transcribed], I mean all of these, these people are simply exercising their democratic right to speak about their different views and their religion.
Hadley: No, no, no, no, Miriam, stop stop, Miriam, Miriam. You want to be factual and I am happy to let you. Miriam, just stop. It’s not his democratic right to say that homosexuals should be put to death. Now can we stop this nonsense now. You want to be factual, I want to be factual.
Miriam: Ray, Ray.
Hadley: No Miriam, no Miriam please, we can’t allow, we can’t allow you to just simply go without censure. You can’t say that what he was doing last night was exercising his democratic right. We have laws in Australia that prevent him from saying what he said in the same way it prevents me from saying what I might say from time to time.
Miriam: Fair enough, Ray, fair enough but if you talk to your local evangelical Christians they will literally say the same thing about homosexuality. They will say to you that those that practise it, those that engage in it, are pretty much regarded in the same was as what Islam regards it.
Hadley: Excuse me. Excuse me, how dare you. They don’t say put them to death.
Miriam: No, but they say …
Hadley: No, no, no, don’t you dare compare with what this lunatic said last night with what fundamentalist Christians might say about homosexuality. Yes, they might say they are not welcome in the Church, but I don’t remember too many of them saying
Miriam: [cannot be transcribed]
Hadley: Miriam, Miriam, no Miriam, Miriam. They don’t say put them to death.
Miriam: I’m not saying they do.
Hadley: Well … excuse me you just said they say the same thing. They don’t say the same thing.
Miriam: They say they share a similar view …
Hadley: Miriam, Miriam, you are a Muslim woman, I am happy to accommodate you but I won’t let you use this program to perpetrate untruths.
Miriam: No, I’m not … well why don’t you correct what you saying when you say that all Muslims believe Koran it says that non-Muslims are regarded as sewer water …
Hadley: Nah, did you listen to what I said to the woman. I said …
Miriam: [cannot be transcribed]
Hadley: I did not … I said I did not hear what was said last night. You’ve corrected it. You’ve said it was said by someone else, not by Shiek Khalid Yassim. Now if you want to debate it, Miriam, I’ll debate it with you, but I’ll give you a tip. You won’t win the argument when you’re telling untruths.
Miraim: Look, Ray, you’re being just as unreasonable as, as most people regard you as being. I mean talking about Yassim as mad as a cut snake. I mean, I mean, look at yourself. You are the most unreasonable, you know, talkback host I’ve ever seen.
Hadley: And I’m happy to wear that badge of courage when I’m talking to lunatics like him and you as well.
Miriam: [cannot be transcribed] words through Ray and you and most other people could have noticed the exactly same thing from listening to what [cannot be transcribed]
Hadley: So you’re a Muslim woman, you tell me what you think, Miriam.
Miriam: About what? About what issue?
Hadley: About Wassam Durahie.
Miriam: I don’t know him personally and I can’t comment on him personally.
Hadley: Well let’s start with Sheik Khalid Yassim, you know him apparently.
Miriam: No, I don’t, I don’t. I just watched the interview on 60 Minutes.
Hadley: And you don’t think what he said was unreasonable last night.
Miriam: With regards to education and like I said, these issues were taken completely out of context. I did not hear the whole presentation so I cannot comment on what he said.
Hadley: Out of context. University is a gateway for deviation because you forget your Islamic direction.
Miriam: I am a University graduate. I can’t agree with that.
Hadley: Well I’m happy to hear that. God strike me pink if you spent 5 years at University I’d hope you were putting a bit of thought into what you were doing.
Miriam: Look I’m a small business owner in the Punchbowl area. I’m familiar with dealing with many people from different religions and different backgrounds and I’m extremely tolerant to people’s views if they are tolerant to mine.
Hadley: You would appreciate, you would appreciate that people like this fellow and I’m not talking about mainstream Muslims, people like this fellow would have you hidden away. You wouldn’t be able to run your own business.
Miriam: No, they know me in the community and I am able to run my own business.
Hadley: No, but I’m talking about Sheik Khalid Yassim. He wouldn’t allow you to run your own business. You, you are nothing more than a chattel to him.
Miriam: No, why not. I can’t say that about him and neither can you, Ray. We haven’t put that question to him, have we.
Hadley: Oh look Miriam, I don’t mind being reasonable but I won’t be reasonable about a lunatic like Sheik Khalid Yassim or someone equally as unreasonable as Wassam Durahie.
Miriam: Like I said, I can’t comment on those individuals. I don’t know them in person. It’s just like the Catholic world view is to have everybody shown the light of Jesus. The Islamic point of view is to have everybody shown the light of Islam.
Hadley: Hang on, hang on, well, well, the light of Islam, where does that fit in with the terrorists who have killed people, innocent people, some of them Muslims, in London and in Bali and in New York? Where does that fit in to the world view?
Miriam: That’s absolutely disgusting and I don’t classify them as being Muslims.
Hadley: Hang on, hang on. They are Muslims but you don’t classify them as being Muslims.
Miriam: No, there are not true Muslims. They are not true followers of Islam.
Hadley: Well what’s a true follower of Islam, Miriam? Enlighten us.
Miriam: A true follower of Islam follows the examples given to them by the Prophet and what’s written in the book, the holy book, the Koran. Simply put that’s exactly what it is.
Hadley: So is Wassam Durahie a true follower of Islam?
Miriam: I am no person to judge him.
Hadley: Well you’ve heard him this morning obviously.
Miriam: I am no person to judge him. If his views are simply saying that he wishes that Islam is spread throughout the world, that’s, that’s the view of most people sharing a particular view or religion. Hey would like everybody …
Hadley: By what means?
Miriam: By … no … not by violent means. Did the Prophet spread the word by violent means? The Prophet showed them by example. If he was going to be nice to his neighbour and call them names and be rude to them, that’s not Islam.
Hadley: You appreciate that as a Muslim woman, that this is a mainstream Christian society?
Miriam: Yes, I do.
Hadley: And do you wish it to be a Muslim society at some time in the foreseeable future?
Miriam: I, I wish for everyone to at least have a look at Islam and at least see that it offers humanity and it offers humanity …
Hadley: Are you a born Islam or did you convert, or a revert, sorry?
Miriam: I’m a born Muslim. I was born in Australia as a Muslim and I’m one of 5 girls all of which have been through University and schooling and my mother is educated and …
Hadley: What about if you had been born to someone of the Muslim faith who wanted you to not be part of all of this like Sheik Khalid Yassim? Do you appreciate that there are women of your religion who can’t achieve as you and your sisters have because you’re not viewed as equal?
Miriam: No I think they set their own limitations and I’m a pure example of that. My limitations were set by … my religion tells me to seek education, tells me to seek knowledge. It doesn’t tell me to sit at home …
Hadley: What about the young woman whose family is in Court at the moment because they shaved her head and kidnapped her because, or allegedly…
Miriam: Right.
Hadley:… because she wanted to go away from the strictest rulings of Islam?
Miriam: Well, Ray, where in Islam does it say you can shave a woman’s head and lock her up if she doesn’t agree?
Hadley: Well it doesn’t say but obviously…
Miriam: No.
Hadley:… there are some people of that faith that believe it is a just cause.
Miriam: It’s not faith issues, Ray, it’s a cultural issue. It’s a cultural issue. There are cultural boundaries that, that govern the way these men look at their women and how they treat them. It is not Islam [cannot be transcribed].
Hadley: You’re very lucky that you were born of an enlightened Muslim family perhaps, Miriam, as opposed to some of your sisters who weren’t.
Hadley: So it’s about culture, not religion.Miriam: Well I feel sorry for them and I feel sorry for the fact that their parents are bound by their culture and not by their religion.
Miriam: It’s about culture, not religion.
Ray: Anyway I’m an unreasonable commentator, Miriam. I’m happy to wear that tag. I think you’ve had more than enough say. 131873 is the open line number and when it comes to the Wassam [cannot be transcribed] and the Sheik Khalid Yassim’s of this world, Miriam, I’ll continue to be in your eyes hopefully, unreasonable.
Hadley: It’s 18 past 10. Helen says from Balgowlah to Miriam I hear Saudi Arabia is lovely this time of year. As I said 18 past 10. Sydney’s traffic for Doors Plus no fuss Don Moxham.
Hadley: Arianne, hello
Arianne: Hi Ray, I am long listener and first time caller. I am originally from Afghanistan and I would like to leave a message for Steve. What these young Muslims now believe to just convert other people to Islam before even looking at themselves say how much they doing good things as a Muslim for the community, not for the religion, not for the going and sitting on the lectures while their friends and family are living and the Department of Community Services waiting for a Muslim family to come and pick them up. I have found so many families living in Sydney contacted Department of Services to go and take care of those kids. Where are all those poor Muslim where all those young educated university students to come and do some community work so that [cannot be transcribed] as a good Muslim and they do nothing else, they just sit and say we follow this, this and that but in reality there are lots of other things that need to be done. There are lots of other community work that they have to put it as a part of their religion and part of their humanity. You have to be a good person to follow the religion, you have to be a good human, you have to be a good helpful person to be accepted as a, as a community member. If you just go and sit there and go okay I need to follow this and I have to convert in the next twenty years this amount of people it is not going to work if you can’t really help them. If you can really help your own people, your own community, when I come as a refugee to Australia I didn’t find, to be honest, I didn’t find anyone from my community to come and help me, I found my school teachers and I didn’t really want, I didn’t come in with intention to make other people Muslims I just came to escape from what I have in my country. So before these Muslims like by brothers and sisters before they are just defending themselves and say okay we are Muslim and we want everyone to be Muslim there are lots of others things that they have to look at before they convert others. They have to first build a good relationship with their own people, some Muslims they don’t talk to other Muslims, why don’t they say that.
Hadley: Arianne, your English might not be great but I tell you what, you make a lot of sense and you are a most welcome resident here in Australia from Afghanistan. Thank you for calling.
Arianne: Thanks.
Hadley: Thank you very much, you were very nervous but you said it so eloquently. You didn’t come here to change everyone to Muslims, you came here to because it is a better way of life and that is in the main why a lot of people come to this wonderful country and she is a most welcome resident and I hope she is citizen. Arianne from Afghanistan. 131873 is the number. Good day, David.
David: Good day Ray, I was just wondering if we know where Miriam’s bookshop is?
Hadley: I think she said she is in Punchbowl from memory.
David: Well I think she is a mum and that is not a mum as in, that’s a mixed up Muslim. Okay.
Hadley: All right mate, thank you. Appreciate your call. 131873 is the open line number. 2GB.com. If you enjoy this line
Hadley: Dimity from Punchbowl, Ray, enjoying the show, went to [cannot be transcribed], had a delicious sandwich on Saturday provided by the 2GB sizzle station. I’m glad you did that Dimity. Thank you. Glad you had a good day there as well. 317873. Re Wassam the possum. Notice how he admits that the total Islamic state he intends Australia to become does not currently exist anywhere else in the world including all Islamic countries. That is a very good point says John from Abbotsford. I have only got one thing to say about these bombings, not all Muslims are suicide bombers but what a coincidence all suicide bombers appear to be at the moment Muslim. That is from George at Wetherill Park, thank you for that. 131873 is the open line number. 2GB.com. I would like to say Miriam, says Lachlan from Narrabeen, you are just as much a fool as Wassam and the bloke from Sixty Minutes last night, stop carrying on with your lunacy and wake up to truth of the Muslim influence on Australia is one of hate and you must be an idiot to defend the fool from Sixty Minutes, it’s unbelievable.Hadley: Fay says from Arncliffe after hearing that fool that you spoke to Wassam to reconsider our immigration policy, I blame the parents of these kids. I am sick to death of turning the other cheek. Well I guess a lot of people are in the same boat. Does Wassam regard the Taliban a pup of the west or are they some sort of Islamic utopia, says Philip from Woollahra. Anwar from Thornleigh, Ray, great show, how long to we have to listen to this garbage, how many bloody Islamic groups are there and who pays for them and so it goes on. Emails everywhere in relation to a whole range of things. Tracy says, what it going to be done about what has already been openly stated by these Islamic extremists, why is the guy on radio making excuses to the Islamic people, what is being done about the blatant disrespect for the country in which they now live. 131873 is the open line number. 2GB.com click onto the feedback icon. The boofhead Wassam you interviewed used the word innocent combatant to define the innocent people injured or killed in London, the dictionary definition of a combatant, a combatant is a soldier or guerrilla member whose waging war, is he implying that all non-Muslim people are the enemy. 131873 is the open line number. It is 25 past 10.
32 The following material (from ‘Program 4’) was broadcast on Radio 2GB on 16 August 2005. The presenter, Mr Jones, spoke to a caller named Ken:-
Jones: Ken, hello.
Ken: Hello, Alan.
Jones: Yeah.
Ken: It’s always a delight to listen to Radio 2GB because your whole team there, from their management and every single one of you have got such high ratings because you’re so positive, you’re so encouraging, you’re so democratic in so many ways. I just simply love it...
Jones: Thank you.
Ken: ... I’m entertained, I’m educated.
Jones: Thank you, thank you.
Ken: Now, in brief, you were speaking about values. Well, there’s values and there’s attitudes and methods. And, of course, our attitude in some respects, certainly has to improve. Our sense of values is what we know to be right and Aussies are the best at it.
Jones: Mmm.
Jones: Mmm, well that’s right. And Ken I just got an email in front of me here and he says, Robert says,Ken: If we study the history of Australia a little bit from Eureka Stockade, Ballarat, Peter Lalor and company, the convict era, have a brief look at things such as Against the Wind and all that sort of thing, you begin to understand a little bit more. But for the last 50 years since I’ve been involved in the education of children and still trying to learn with them as I go and with the parents, there’s no doubt in my mind, you’re 100 per cent right that we have to correct our attitude towards our culture which is character building with refinement, but nevertheless the Aussie spirit’s got to prevail.
I’m afraid that sadly our Aussie culture and character are being taken from us slowly but surely...
Jones:
Ken: Yeah, he’s right.
... one of the various races and religions being allowed to settle here. It breaks my heart to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies, and our future descendants will suffer, are beyond our decent beliefs. They might be a minority now, but they’ll spread like a cancer and those that pretend to be our friends now will show their true colours and show their loyalty to Islam and not Australia.
He says:
My family has paid the price of freedom, the blood of three of our family members soak the battlefields of the Somme, Pozieres, New Guinea and Malaya with many others serving and thankfully surviving. These newcomers don’t understand that blood has been spilt in conflict to give us our character and make Australia the place to live.
As a young child in the 50’s, I remember getting the good old Aussie wink from Aussie blokes. Most of these men wore a small badge on their lapels of their suits or vests – yes, they were returned servicemen from World War I and World War II – the wink I now know to have meant, no worries little boy, you’re safe now son, live your life in safety and peace.
I’m older now and no longer see many of these men, but I’ll never forget them. I’m sure they’d be turning in their graves watching what’s happening to their beloved country now. These newcomers to our land are unaware of the cost and sacrifice endured by earlier Australians in gaining the freedom they now enjoy and will never understand us or integrate with us.
The point is that I agree with you and many of the people who call you, that something must be done to maintain our Australian culture and character. We owe it to those who’ve gone before us and built this country, many with their lives.
Wonderful letter, and that’s exactly what people are talking about.
33 The following material (from ‘Program 5’) was broadcast on Radio 2GB on 17 August 2005. The presenter, Mr Jones, spoke to a caller named Colleen:-
Jones: Colleen, hello.
Colleen: Good morning Alan.
Jones: Yeah.
Colleen: I taped that show last night and watched it this morning about multiculturalism, and what’s happening around Australia, not just here in our city in Sydney.
Jones: Mmm.
Colleen: And it finished up with an elderly lady that had lived 30, 40 years in her hou… or 50 years, I think it was, in her house. And she finished up by saying, I fought for Australia but I don’t know it any more. And she had – she sort of almost cried on the words of it. And I ended up with a lump in my throat.
Jones: Mmm.
Colleen: And you know, there was a professor on and it just goes to show how out of touch a lot of these academics are. He was a professor and he said, it’s an urban myth to say there are enclaves of other nationalities in the suburbs.
Jones: Who was he?
Colleen: Now, I don’t know where he lives.
Jones: No.
Colleen: I don’t know where he works…
Jones: Oh, ivory tower; he inhabits an ivory tower.
Colleen: Well, I don’t know where he shops.
Jones: Mmm.
Colleen: I mean, these people have, you know, blinkers on and they walk around and they don’t see anything except – I mean, even where he lives, maybe at the eastern…
Jones: Yeah [laughs], that’s …
Colleen: …suburbs or whatever, maybe there aren’t any enclaves there. But it’s one of the very few places that there aren’t, I’m here to tell you.
Jones: Yeah.
Colleen: And you know, another thing too…
Jones: And where they are, break them up.
Colleen: And you’re criticised if you comment. I mean, criticism and racism is not the same thing. And, you know, it’s about time some of these people woke up. And the Government has got to listen to this.
Jones: Yeah.
Colleen: And if you’re listening, you mark my words, my ex-husband came from England and he said to me 30 years ago, if Australia’s not careful, it’ll end up like what happened in London when they opened the ga… the floodgates and let…
Jones: Mmm.
Colleen: …everybody in and there were riots.
Jones: That’s it. Enoch P…
Colleen: [Indistinct]…
Jones: Enoch Powell warned against it, Margaret Thatcher warned against it, that’s right…
Colleen: Well, they are cr…the Government…
Jones: They were called racists, yep…
Alan Jones: Yeah, they’re sick – that’s dead right, Colleen. Well, give us a call.Colleen: … is allowing this to go on, is creating racism amongst people, because people are sick to the back teeth of it all.
34 The following statements (‘Program 6’) were made by Mr Jones on Channel 9 on 16 August 2005:-
Good morning to Karl and Tracey and to all our viewers everywhere. At weeks’ end, one issue on my radio program has dominated all others this week, and its not Telstra or industrial relations. Earlier this week on a television program, and not this station, young Muslim residents from the suburbs of Sydney were very outspoken about Australia and Australians. In what they said they were defiant, arrogant, militant and indifferent and basically they were saying they were not Australians they were Muslims first and their loyalty was to Islam and they laughed about the fact that there were a lot of them and virtually inferred that you would be courting trouble if you took them on.
One person wrote to me to say, My name is X, I watched that program, I was so angry at the audacity of those middle eastern youths proclaiming that their countrymen will never assimilate into our way of life.
Another challenged the Prime Minister to get out into Lakemba, not far from where Mr Howard went to High School.
Listeners complained that out there, hardly anyone speaks English, they congregate around cafes with mobile phones all day and my listeners were wondering how they can afford all this, what are they doing, what is their business, listeners asked.
Well that all led to Robert emailing me and such was the substance of what he said that many have argued it should be shared with you. This is what Robert said:My jaw dropped when another told me about the University of Newcastle which this week was celebrating Islamic Awareness Week. The wife of a student wrote to me and said, the sense of joy and protest with which students and faculty pronounced this demonstration is beyond belief. In almost every second lecture my husband is subject to hearing America mocked, ridiculed and hated.
Dear Alan, I’m afraid that sadly our Aussie culture and character is being taken from us slowly but surely. It breaks my heart, he said, to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies and our future descendants will suffer are beyond our decent beliefs.
But Robert went on:
I should point out here that I constantly say that these are minority militant Islamic groups, the same minority groups who don’t care whether they do damage to us or their own people.
They might be a minority now, but they will spread like cancer. And those that pretend to be our friends now will show their true colours and their loyalty to Islam and not Australia.
He went on:
My family has paid the price of freedom, the blood of three of our family members soaks the battlefields of the Somme, New Guinea and Malaya. These new comers do not understand the blood that has been spilt in conflict to give us our character and make Australia the place to live.
Now then listen to this. He said:
As a young child in the 50’s, I remember getting the good old Aussie wink from Aussie blokes. Most of these men wore a small badge on the lapel of their suits or vests. Yes, they were returned servicemen from World War 1 and World War 2. The wink I now know to have meant, no worries little boy, you are safe now son, live your life in safety and in peace.
But Robert then said:
I’m older now. I no longer see many of these men but I’ll never forget them. I’m sure they would be turning in their graves watching what is happening to their beloved country now. I agree with you, and many of the people who call you, that something must be done to maintain our Australian culture and character. We owe it to all those who have gone before us and built this country, many with their lives.
Well, that was Robert in an email to me this week and many Australians would argue that the issues he raises are far more important than the sale of Telstra or industrial relations.
The requirement of a ‘public act’
35 It is convenient to note here a concession by the Respondents that the various broadcasts were ‘public acts’ within the meaning of section 20B of the Act.
The issue of race
36 In this section, we discuss several questions arising from the definition of ‘race’ in section 4 of the Act, the use of that term in section 20C(1) and the requirements of section 88. The issue of race was a major topic of contention between the parties.
37 Mr Ekermawi’s evidence and submissions. In his Points of Claim, Mr Ekermawi maintained that he was ‘a person of the group of (race) (Ethno Religion) Islamic, Middle Eastern’ and that the effect of the material broadcast by the Respondents was to incite hatred, serious contempt or severe ridicule against Muslims and Middle Eastern and Lebanese people. In his oral evidence, he said that he had been born in Palestine, that he was a Muslim and that he considered himself to belong to long-standing ethnic and religious communities that had their origins in Palestine and the Middle East.
38 In responding to arguments on the issue of race put forward by Mr Stewart (of which details appear below), Mr Ekermawi contended in his supplementary submissions that his ‘ethnicity’ was Palestinian and his religion was ‘Moslem Abrahamic’. He further argued that Muslims regarded the early followers of Christianity and Judaism who lived in the Middle East, being all of Semitic origin, as ‘the early Moslems… belonging to the Moslem prophet Abraham’. In a lengthy discussion, some of which was difficult to follow, he argued that he therefore had the same ‘ethno-religious origin’ as other Muslims (and indeed Christians and Jews) whose ancestry was in the Middle East, even if they now resided (as he did) in Australia. He relied here on the concept of ‘People of the Book’, referring to a number of academic sources and to the recently published novel by Geraldine Brooks bearing this title. It followed, he claimed, that any vilification of a group of Muslims whose racial background, like his, was in a Middle Eastern country amounted to vilification of them on the ground of their ethno-religious origin.
55 Thirdly, none of the statements broadcast by the Respondents focused on the one category of Muslims that (a) included Mr Ekermawi and (b) might constitute an ethno-religious group under section 4. This category comprises Muslims of Palestinian origin. Mr Ekermawi would have standing under section 88 to sue with respect to any broadcast statements that generated negative feelings towards Muslims of Palestinian origin, or any group within this category, on the ground of their being Muslims of Palestinian origin. But no such statements were broadcast.
56 We are inclined to agree with Mr Stewart that Mr Ekermawi’s evidence on the question whether Muslims of Pakistani origin were in fact an ethno-religious group was somewhat scanty. In Khan at [20], the Tribunal said that there must be evidence of ‘a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices’. The absence of any such evidence was fatal to the applicant’s claim in Ahmed (see the judgment at [20]). But in Khan at [19], the Tribunal gave ‘examples of what is meant by an “ethno-religious” group’, namely, Javanese Christians, Bosnian Muslims and Northern Irish Catholics. In Trad v Jones (No 3) [2009] NSWADT 318, a decision published after the hearing in this case, the Respondents conceded (see the judgment at [127]) that ‘Lebanese Muslims’ and ‘Lebanese people’ constitute a ‘race’, so evidence on this matter was not needed. But it is noteworthy that subsequently (at [141]) the Tribunal, without referring to this concession, described ‘Lebanese Muslims’ as an ‘ethno-religious group’.
57 Implicitly, in these two decisions, the Tribunal appears to have acknowledged that in some instances the requisite ‘strong association’ between ‘nationality or ethnicity, culture, history’ and ‘religious beliefs and practices’ may be taken to exist, as a matter of common knowledge, and need not be established by evidence. But we do not need to resolve this question.
58 We reject Mr Ekermawi’s alternative submissions to the effect that the relevant ethno-religious group in these proceedings is (a) early followers of Christianity and Judaism who lived in the Middle East, together with Middle Eastern Muslims or (b) members of the human race who follow the Islamic religion.
59 We are not persuaded by Mr Stewart’s submission that if any of the broadcast statements were in fact vilificatory (a proposition that he denied), the vilification referred only to facets of the Muslim religion and was therefore religious vilification, falling outside the scope of section 20C(1). In this connection, he cited the above-quoted extract from the Appeal Panel’s judgment in A obo V and A v New South Wales Department of School Education (EOD) [2000] NSWADTAP 14. We prefer, however, the reasoning of the Appeal Panel in a later judgment, Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1. At [44], the Appeal Panel said:-
We accept the appellant’s written submission in relation to the meaning of “on the ground of”. In our view, once the Tribunal is satisfied that an applicant is a member of a particular race, then it is not appropriate to “split” that person’s race into ethnic aspects and religious aspects. As Mr Hillard pointed out, the subject matter of the differential treatment (provision of religiously acceptable food) cannot be equated with the reason or ground for the discriminatory treatment. In each case the Tribunal must ask itself whether race was one of the reasons for the discrimination. In this case the Tribunal made an error of law when, in paragraph 15, it concluded that the refusal to serve the complainant halal food was an act done on the ground of his religion despite its earlier finding that as a Muslim he fell within the statutory definition of “race”. If to be a Muslim could cause a person to fall within the statutory definition of “race”, treatment afforded to that person because he/she is a Muslim must be, for the purposes of the ADA, treatment on the ground of race. As we have previously stated, the issue of whether the complainant, as a Muslim, falls within the statutory definition of “race” awaits proper determination.
60 It was after the remitter of these proceedings to the Tribunal at first instance, as envisaged in the final sentence of this paragraph, that the Tribunal delivered its decision in Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131, to which we have already referred.
61 Because our conclusions on the issue of race show that Mr Ekermawi’s complaints were misconceived in law, it may be asked why the Tribunal gave leave for them to proceed after they had been declined by the President of the Board. The answers are as follows. Leave relating to the proceedings in file 061083 was given at a case conference, without (it would appear) any reference being made to the issue of race. In the Tribunal’s decision giving leave relating to the proceedings in files 071003 and 071004 (Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295), the Tribunal expressly stated at [12] that ‘neither respondent submitted that leave should be refused because Muslims are not covered by the definition of race’. It added: ‘In those circumstances, I have not taken into account the prospects of Mr Ekermawi being able to prove that Muslims come within the definition of “race” in section 4.’
Other aspects of section 20C
62 The parties put forward arguments bearing upon a number of other matters arising under section 20C, notably whether any of the broadcast statements incited ‘hatred, serious contempt or severe ridicule’ against the person or group of persons to whom they referred, and, and if so which statements. In addition, Mr Stewart tendered a significant quantity of evidence, chiefly comprising media articles, recordings and transcripts dealing with the terrorist bombings and attempted bombings in London during July 2005. He did so in support of a submission that, if we made a finding of racial vilification under section 20C(1), the Respondents could rely successfully on the defences set out in paragraphs (a) and (c) of section 20C(2). But because, for the reasons just given, we have concluded that Mr Ekermawi’s complaints must be dismissed, it is not essential that we determine any of these questions.
63 It would of course be open to us to determine some or all of these questions, but we have decided not to. This is principally because, for entirely understandable reasons mentioned above, the arguments put to us by Mr Ekermawi failed, generally speaking, to come to grips with the detailed and somewhat technical issues that arise when deciding whether published material constitutes unlawful vilification under section 20C. The provisions of this section pose difficulties even for qualified lawyers whose first language is English. It is not at all surprising that a person who lacks legal qualifications and is not expert in English would pass over or misunderstand significant questions needing to be addressed. If our conclusions on the issue of race were held on appeal to be incorrect and these proceedings were remitted for redetermination, it would be unfortunate if rulings made by us on the other issues arising under section 20C, based on insufficient arguments on behalf of the complainant, were treated as binding on the parties. In such event, it is to be hoped that Mr Ekermawi’s claims would be argued at the rehearing more effectively than was the case before us.
64 We will, however, make a few observations relating to these remaining issues.
65 On the question whether any of the broadcast statements answered the specifications of ‘vilification’ contained in section 20C(1), we have considered these statements in the light of Mr Stewart’s analysis of these specifications and of the authorities on this subsection to which he referred, notably Western Aboriginal Legal Service v Jones [2000] NSWADT 102, John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 and Trad v Jones (No 3) [2009] NSWADT 318. We have also reviewed the discussions of a similar provision of the Act dealing with vilification on the ground of homosexuality (section 49ZT(1)) in Burns v Dye [2002] NSWADT 32 and Burns v Laws (No 2) [2007] NSWADT 47.
66 We believe that one line of argument emphasised by Mr Stewart carries significant weight. This is that the criticism conveyed in substantial segments of the programs broadcast by the Respondents was confined to certain minorities of Muslims and was not ‘on the ground of’ their adherence to the Muslim faith. Mr Jones in particular pointed out that a number of Muslim leaders, and indeed the majority of Muslims, were opposed to the violent acts and aspirations of these minorities.
67 We incline to the view, however, that a few passages of the transcripts record the broadcast of material which incited hatred or serious contempt of Muslims on the ground of their adherence to the Muslim faith and therefore would have amounted to unlawful vilification under section 20C(1) if Muslims were a ‘race’. One such passage is to be found during the heated debate in Program 3 between Mr Hadley, whose tone of voice was distinctly aggressive, and the caller named Miriam. It is as follows:-
Hadley: Hang on, hang on, well, well, the light of Islam, where does that fit in with the terrorists who have killed people, innocent people, some of them Muslims, in London and in Bali and in New York? Where does that fit in to the world view?
Hadley: Hang on, hang on. They are Muslims but you don’t classify them as being Muslims.Miriam: That’s absolutely disgusting and I don’t classify them as being Muslims.
Hadley: Well what’s a true follower of Islam, Miriam? Enlighten us.Miriam: No, there are not true Muslims. They are not true followers of Islam.
68 We would also mention in this context Mr Hadley’s apparent approval of the opinions of the caller named Garth, near the beginning of the passage quoted above, and his quoting without disapproval the observations communicated to him by ‘Glen’ (at the very beginning of this passage) and by ‘George’ and ‘Lachlan’ (at the end).
69 Another instance is the opening paragraph of the email from ‘Robert’ that Mr Jones read out, with explicit endorsement of its contents, in program 4 and again in program 6. This was as follows:-
I’m afraid that sadly our Aussie culture and character is being taken from us slowly but surely. It breaks my heart to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies and our future descendants will suffer are beyond our decent beliefs. They might be a minority now, but they’ll spread like a cancer and those that pretend to be our friends now will show their true colours and show their loyalty to Islam and not Australia.
70 When granting leave for the complaints in files 071003 and 071004 to proceed, the Tribunal described this passage as ‘particularly relevant’ (see Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295 at [14]). In program 4, Mr Jones read out this passage without seeking to dissent from it in any way. In program 6, he interrupted his reading of it a comment to the effect that only ‘minority militant Islamic groups’ were being referred to. But a short while earlier in this program, he had been prepared to incite a distinctly negative attitude towards Islam generally by offering the following observation:-
My jaw dropped when another told me about the University of Newcastle which this week was celebrating Islamic Awareness Week. The wife of a student wrote to me and said, the sense of joy and protest with which students and faculty pronounced this demonstration is beyond belief.
71 In addition, the discussion between Mr Jones and the caller named Neville at the commencement of Program 1 might well be held to have contained material which incited hatred or serious contempt of Muslims of Pakistani origin on the ground of their being within this group and therefore could have amounted to unlawful vilification under section 20C(1). We draw attention in particular to the following statement by Neville, which Mr Jones described as a ‘very good point’: ‘Yeah I think if he wants to show how tough he is we can introduce him to the SAS and see how tough he is then.’ We take a similar view of the last statement made by the caller named Bill, with which Mr Smith appeared to agree, in Program 2.
72 In submitting that if any of the broadcast material were held to amount to vilification under section 20C(1) the Respondents could invoke the grounds of defence set out in paragraphs (a) and (c) of section 20C(2), Mr Stewart made two broad arguments. The first was that various segments of this material repeated statements that had already been made publicly (for example, in the article by Andrew Bolt, from which Mr Smith quoted in Program 2) and therefore constituted ‘fair reports’ of ‘public acts’ under section 20C(2)(a). The second was that the broadcasts were made reasonably in good faith in the public interest, for the purposes of discussion, debate and exposition relating to the bombings and attempted bombings in London and the Australian reactions to these events, including publications in the Australian media. They therefore fell within the scope of section 20C(2)(c).
73 It will suffice for present purposes to say that, having regard particularly to the discussion of section 20C(2)(c) contained in the Appeal Panel’s decisions in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 and Burns v Laws (EOD) [2008] NSWADTAP 32, these grounds of defence are at least arguable. But for reasons already given (see [62 – 63]), we do not wish to pronounce finally on their availability. The defence set out in section 20C(2)(c) is particularly difficult to interpret and apply, and we are bound to say that Mr Ekermawi’s submissions relating to it provided very little assistance to us.
Conclusion
74 For the reasons explained above at [52 – 61], the complaints brought by Mr Ekermawi in these three sets of proceedings must be dismissed.
75 The Respondents indicated in their submissions that if successful they wished to be heard on the matter of costs. Under section 88(1) of the Administrative Decisions Tribunal Act 1997, the prima facie rule is that the parties to proceedings pay their own costs. But the Tribunal may award costs under section 88(1A) if it is ‘fair’ to do so.
76 We give the following directions regarding costs. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
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