Ekermawi v Jones - [2008] NSWADT 93

CITATION: Ekermawi v Jones & anor [2008] NSWADT 93

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Sam Ekermawi
FIRST RESPONDENT
Alan Jones
SECOND RESPONDENT
Harbour Radio Pty Ltd trading as Radio 2GB

FILE NUMBER: 071118

HEARING DATES: 12 December 2007

SUBMISSIONS CLOSED: 22 January 2008

DATE OF DECISION:
20 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24
Veloskey v Karagiannakis [2002] NSWADTAP 18
Xu v Sydney West Area Health Service [2006] NSWADT 3

REPRESENTATION:
APPLICANT
In person
RESPONDENTS
S Thomas, agent

ORDERS: 1. Leave is refused for the complaint of racial vilification against Alan Jones to proceed
2. Leave is refused for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.

REASONS FOR DECISION
Introduction

1 Mr Ekermawi is requesting the Tribunal’s permission for a complaint of racial vilification to go ahead despite the fact that the President of the Anti-Discrimination Board declined the complaint as lacking in substance. The complaint relates to a broadcast on Radio 2GB on 8 December 2005 during the Breakfast with Alan Jones program. The context of the broadcast was civil unrest especially in the Cronulla beach area in early December 2005.

2 The complaint was prompted by an article published by David Marr on 13 December 2005 referring to comments some of which had been made by Alan Jones on 8 December. Three comments referred to in that article formed the basis of the complaint. One of those comments was repeated several times. Those remarks and the immediate context in which they were made, are set out below. The comments complained of are italicised.

First comment
P: The police obviously can’t or won’t do anything about it. The politicians are not listening to us as usual. If need be, mate, I’ll get babysitters for my kids on Sunday and I’ll be down there.

AJ: OK. Now, let me tell you, P, let me just say this to you because – you know I’m the person that’s led this charge here. Nobody wanted to know about North Cronulla. Now, it’s gathered to this, we really have to be hands off here we don’t want a situation whereby there’s open warfare between people calling themselves Aussie whites and people calling themselves Lebs or whatever. We have at least alerted the government.

Second comment

AJ: And the text message urges Aussies yesterday to take revenge and Lebs and wogs. Now it’s got pretty nasty when you start talking like this. It says, “Come to Cronulla this weekend to take revenge. This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day . . .”

I do understand what people are saying, let’s give the police a chance to do the job. And I can…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ekermawi v Jones

Details

AGLC: Ekermawi v Jones [2008] NSWADT 93
Case: [2008] NSWADT 93
Decision Date: 20 March 2008

CaseChat Overview and Summary

The case of Ekermawi v Jones involved a complaint of racial vilification against Alan Jones and Harbour Radio Pty Ltd trading as Radio 2GB. The applicant, Ekermawi, sought leave to proceed with the complaint in the Federal Circuit Court of Australia. The central issue was whether the statements made by Alan Jones on Radio 2GB constituted racial vilification under the Racial Discrimination Act 1975 (Cth).

The court had to determine whether the statements made by Alan Jones were of a racial nature and if they were likely to offend, insult, humiliate, or intimidate another person or a group of people. The court examined the context of the statements, the nature of the language used, and whether the statements were directed at a particular person or group based on their race. In assessing these elements, the court considered the broader context in which the statements were made and the potential impact on the audience.

After careful consideration, the court found that the statements did not meet the threshold to constitute racial vilification. The court determined that while the language used might be considered offensive, it did not specifically target a racial group in a manner that would meet the statutory criteria for racial vilification. Consequently, the court refused leave for the complaint against both Alan Jones and Harbour Radio Pty Ltd trading as Radio 2GB to proceed.

In summary, the court's decision was that the statements made did not amount to racial vilification as defined by the Racial Discrimination Act 1975 (Cth). As a result, the application for leave to proceed with the complaint was denied for both respondents.

Orders

Orders of the court

1. Leave is refused for the complaint of racial vilification against Alan Jones to proceed 2. Leave is refused for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ekermawi v Jones & anor [2008] NSWADT 93
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sam Ekermawi FIRST RESPONDENT Alan Jones SECOND RESPONDENT Harbour Radio Pty Ltd trading as Radio 2GB
FILE NUMBER:	071118
HEARING DATES:	12 December 2007
SUBMISSIONS CLOSED:	22 January 2008
DATE OF DECISION:	20 March 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 Veloskey v Karagiannakis [2002] NSWADTAP 18 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person RESPONDENTS S Thomas, agent
ORDERS:	1. Leave is refused for the complaint of racial vilification against Alan Jones to proceed 2. Leave is refused for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.