Ekermawi v Jones and Harbour Radio Pty Ltd

[2011] NSWADT 280

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280

Hearing dates:

28 July 2011, 13 October 2011

Decision date:

29 November 2011

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President
J Schwager, Non-Judicial Member
M Nasir, Non-Judicial Member

Decision:

1. The respondents' application for all or part of the complaint to be dismissed is refused.

2. The matter is listed for case conference on 19 December 2011 at 9.30am.

Catchwords:

RACIAL VILIFICATION - standing of complainant- meaning of "race" in Anti-Discrimination Act 1977 -

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Jones & Anor v Ekermawi [2009] NSWCA 388
Ekermawi v Jones and Harbour Radio Pty Ltd t/as 2GB [2010] NSWADT 262
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Ha v Regina [2010] NSWCCA 83
Puchalski v Regina [2007] NSWCCA 220
King-Ansell v Police [1979] 2 NZLR 531
Mandla v Dowell Lee [1983] 2 AC 548
Saint Francis College v Al-Kharzari 481 US 604 at 610, n 4 (1987)

Texts Cited:

Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Text, Cases and Materials, The Federation Press, 2009

Category:

Interlocutory applications

Parties:

Sam Ekermawi (Applicant)
Alan Jones (First Respondent)
Harbour Radio Pty Ltd t/as 2GB (Second Respondent)

Representation:

Counsel
P Batley (Applicant)
K Eastman (Respondents)
Legal Aid Commission (Applicant)

File Number(s):

101021

REasons for decision

Introduction

1. The applicant, Mr Ekermawi, complained that Alan Jones and Harbour Radio Pty Ltd (the respondents) racially vilified a group of people in a radio broadcast on 8 December 2005 (the broadcast). On that date Alan Jones, broadcasting on Radio 2GB, made comments, read text messages from listeners and interviewed several people including the then Premier Morris Iemma, on the subject of what has become known as the Cronulla race riots. These were incidents of assault and mob violence originating in Cronulla and spreading to other parts of Sydney.

1. The respondents have applied for the proceedings to be dismissed on the basis that the applicant does not have "standing" to bring the complaint under the Anti-Discrimination Act 1977 ( AD Act ). The "standing" provision is in s 88 of the AD Act :

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(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.

1. Both parties agreed that this provision represents a "jurisdictional fact", that is, something which must exist before the Tribunal can entertain the complaint.

1. The respondents submitted that the applicant does not have standing because he is not a member of the "race" which was the ground for the alleged vilification. They say that the relevant comments were about "Lebs", "wogs" and "Middle Eastern" people and that only the term "Lebs" denotes a "race". The applicant is not Lebanese. He was born in Jerusalem in 1945 when it was under the control of the British Mandate for Palestine. His parents were Arabic speaking Muslims and he was raised within what he describes as an Arabic culture. According to the respondents, because neither "Middle Eastern" nor "wogs" come within the definition of "race" in the AD Act, the complaint, insofar as it alleges those grounds, should be dismissed.

1. The applicant says that the words including "Lebs", "wogs" and "Middle Eastern" which were used to describe the group of people being discussed in the broadcast, refer to one group of people, namely people of Arabic descent or ethnic origin including people from Lebanon, Palestine, Syria, Jordan and Iraq. According to the applicant, he is of the same race that was the ground for the conduct that constitutes the alleged contravention or he claims to be of that race and there is no sufficient reason to doubt that claim. In those circumstances he has standing to bring the complaint and it should not be dismissed.

1. It was agreed that the issue of standing could be determined by answering three questions. Those questions, and our answers, are as follows:

1. On the ground of which race or races is it alleged that the respondents have breached s 20C of the Anti-Discrimination Act 1977?

Arab

2. Is that a race or races within the meaning of the term "race" in the Anti-Discrimination Act ?

Yes

3. Is the applicant a person of that race or races and/or does he claim to be a person of that race or races and is there no sufficient reason to doubt that claim?

Yes

Procedural history

1. Mr Ekermawi lodged a complaint of racial vilification against the respondents with the President of the Anti-Discrimination Board (ADB) on 17 October 2006. On 13 September 2007, following an investigation, the President declined the complaint as lacking in substance. Mr Ekermawi then applied to the Tribunal for permission or "leave" for the complaint to go ahead: AD Act , s 96. The Tribunal refused leave and the applicant appealed to the Supreme Court. Following a further appeal to the Court of Appeal the matter was remitted to the Tribunal for further consideration: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 and Jones & Anor v Ekermawi [2009] NSWCA 388. On remittal, the Tribunal granted leave for the complaint to proceed: Ekermawi v Jones and Harbour Radio Pty Ltd t/as 2GB [2010] NSWADT 262. These proceedings relate to an interlocutory application by the respondents for the complaint to be dismissed because Mr Ekermawi does not have standing.

Statutory provisions

1. The complaint alleges a breach of the racial vilification provisions of the AD Act - s 20C:

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.

1. Race is defined in s 4 as follows:

"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

1. A race may comprise two or more races. Section s 4(3) states that:

For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race.

1. The "standing" provision, s 88, is set out above at [2].

Question 1: On the ground of which race or races is it alleged that the respondent has breached s 20C?

Subject matter of the complaint

1. Before the first question can be answered we need to resolve an issue concerning the scope of the complaint. The respondents submitted that the relevant race or races should be determined on the basis of just three comments made by Alan Jones during the broadcast because only those comments were the subject of the complaint: Ekermawi v Jones & anor [2008] NSWADT 93 at [2] and Ekermawi v Jones and Harbour Radio Pty Ltd t/as 2GB [2010] NSW ADT 262 at [3]. On that basis the respondents objected to the applicant tendering the transcript of the whole broadcast.

1. In the decision granting leave for the complaint to proceed, the Tribunal characterised the complaint as relating to three comments made by Alan Jones (AJ): Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2 GB [2010] NSWADT 262 at [3]. Those comments are italicised. The immediate context is also included.

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 understand the young blokes who've sent that text message yesterday, "Come to Cronulla this weekend to take revenge", it says. "This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day , bring your mates, let's show them that his is our beach and they're never welcome." Well, now that's not the way, I do understand what you're saying, P, but we've just got to back off a bit here. We're not giving any ground to them. I'm saying backing off and letting, backing off land let the police do the job.

Third comment

AJ: Yeah, well I've got, I've got a stack of emails in front of me, let me read you this one, "Alan, its not just a few Middle Eastern bastards at the weekend, its thousands. Cronulla is a very long beach and it's been taken over by this scum. It's not a few causing trouble. It's all of them, it's an attitude that you feel whenever you go there, it's just straight out racism against the skippies , it will not go away, the police have their hands tied - I'll come to that later in the program - reduce numbers and powers, I wish there was an answer".

1. According to the respondents, it is now beyond the Tribunal's jurisdiction to cast the complaint as comprising the entire broadcast and it would also deny the respondents procedural fairness to do so. The complaint has not been amended and should be confined to the three comments identified above. Based on those comments, the races identified are "Australian" (on the basis that "Aussie" and "skippies" refer to Australians) and "Lebanese" (on the basis that "Leb" refers to Lebanese).

1. The applicant disagreed pointing to the terms of the complaint lodged with the President of the ADB on 17 October 2006 and the follow up letter from the applicant dated 30 November 2006. He said that the complaint should be characterised as a complaint about the broadcast as a whole because it was not confined to any particular part of the broadcast.

1. The original letter of complaint from the applicant begins by saying:

I refer to race and incitement of hatred by 2GB radio station on or about the 8 December 2005 by Alan Jones, incitement of hatred which is the main cause of the Cronulla racist riots.

1. The letter then contains an extract from a newspaper article by Marce Cameron about matters including the content of the broadcast. The only direct quote from the broadcast is the third comment set out in italics above at [13]. The letter ends by saying, "Considering the above I request legal action be taken."

1. A follow up letter from the applicant dated 30 November 2006 answers various questions posed by the President of the ADB about the complaint and goes on to say, "the following article speaks for itself other then (sic) the one I sent you last." The applicant then inserts extracts from a second newspaper article by David Marr dated December 13, 2005. That article reproduced the three comments set out above which were made by Mr Jones during the broadcast.

1. When writing to the President of the ADB on 16 July 2007 in response to the applicant's complaint, the second respondent's Chief Operating Officer, Mr Thomas, wrote that:

We understand that the complaint alleges that comments made during the Alan Jones Show (Program) on or about 8 December 2005 about persons of Middle Eastern background at Cronulla amounts to racial vilification.

1. The letter went on to say that:

We consider that complaints about comments made during the broadcast of a radio program should not be considered in isolation, but rather in context. In particular, any statement made in the Program should be considered against the context of material in both:

the Program as a whole, and

the immediately surrounding context.

1. Mr Thomas then quotes from the broadcast as a whole and from the immediately surrounding context.

1. According to the applicant, it was the respondents' response to the ADB dated 16 July 2007 that focused on the three comments quoted in David Marr's article. The applicant says he was never asked to particularise his complaint and has not characterised the complaint as being confined to the three comments in the second newspaper article. The applicant's position is that the whole broadcast constitutes racial vilification. Alternatively, even if the alleged conduct is confined to the three comments, the race or races of the group of people being referred to in those comments should be identified having regard to the broadcast as a whole.

Consideration and findings

1. The complaint comprises the original complaint lodged with the President, any amendment to the complaint and "any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations": s 94A. Despite having power to do so, the President of the ADB did not require either respondent to provide a tape or transcript of the broadcast when investigating the complaint: AD Act , s 90A.

1. In accordance with s 94A, the complaint comprises the original complaint dated 16 October 2006 and the follow up letter dated 30 November 2006. There are no other documents or information which help to identify the subject matter of the complaint.

1. The material in the complaint letters came from newspaper reports of the broadcast. Those reports include certain comments made by Mr Jones during the broadcast. The complaint does not refer to any other part of the broadcast.

1. The applicant first had the benefit of legal representation before the Tribunal at the second leave hearing in April 2010. At that stage the applicant's lawyers accepted, but only for the purpose of those proceedings, that the complaint comprised the three comments identified above at [13]: Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2 GB [2010] NSWADT 262 at [21].

1. Despite the general comment made in the first paragraph of his original letter of complaint, that he was referring to incitement of hatred by 2GB and Alan Jones on or about 8 December 2005, the only specific conduct identified are the three comments referred to in the newspaper articles. The applicant highlighted those comments in bold in his letters of complaint. It follows that the subject matter of the complaint is confined to the things that Mr Jones said as reported in those articles. The applicant has not applied to amend his complaint to include other "public acts": AD Act , s 103.

1. Even though the conduct complained of is confined to those three comments, it is necessary to refer to the entire broadcast to identify the race or races of the group of people who were the subject of those comments. That is because we are satisfied that the various expressions are used throughout the broadcast to identify a single group of people. On that basis, the transcript of the broadcast is relevant and is admitted into evidence.

Identification of race or races

1. The applicant said that throughout the broadcast Mr Jones was contrasting two distinct groups of people who were referred to respectively as:

(1)   "Aussies", " local surfers", "Aussie whites", "Anglo-Saxon", "Skippies", "Australians"; and

(2)   "ethnic people", "Lebs and wogs", "Middle Eastern descent", "Lebs or whatever", " Middle Eastern bastards", "this scum", "people of Middle Eastern background", "Middle Eastern", "the gangs are of one ethnic composition", "Lebanese gangs", " Middle Eastern males", "little Middle Eastern gang members", "Middle Eastern invasion"; and "these other people".

1. The applicant submitted that the relevant "race" of the second group can be defined as including:

(1)   people of Arabic descent or ethnic origin or community having strong connections with Arabic culture and history;

(2)   people from or descended from people from countries and localities in the Middle East including Lebanon, Syria, Jordan, Palestine, and Iraq.

1. In support of that proposition, the applicant sought to tender evidence from Associate Professor Dr David Butt. That evidence addressed the following two issues relevant for present purposes:

(1)   In the broadcast, what race or races was Mr Jones referring to?

(2)   What race or races could the terms "wog", " Middle Eastern", or "Lebanese" refer to?

1. The respondents objected to this evidence on several grounds.

1. There is a dispute about the race or races of the group of people being referred to by words including "Middle Eastern", "Lebs or whatever" and "Lebs and wogs". These words are not technical or obscure, nor were they being used in any peculiar sense. As Cross on Evidence states at [3120]:

The judge is presumed to know the English language: evidence of the meaning of an ordinary word is not admissible.

1. Although the Tribunal is not bound by the rules of evidence we decline to admit Professor Butt's evidence on the meaning of these and other similar words and phrases.

1. The respondents did not take into account the words used throughout the broadcast when identifying the race or races to which Mr Jones was referring. They answered the question by referring only to the words used in the three comments and their immediate context. They also merged this question with the second question, that is whether the race identified in the comments is a race or races within the meaning of those terms in the AD Act . On that basis they submitted that the only race identified is "Lebanese". In their view, the terms "Middle Eastern" and "wog" do not constitute a "race" under the AD Act .

1. The respondents also submitted that the expression "Middle Eastern" has been used to describe a person's appearance without denoting membership of an ethnic group: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62, Ha v Regina [2010] NSWCCA 83, Puchalski v Regina [2007] NSWCCA 220.

1. The word 'wog', in the respondents' view, is used to refer to people who are born outside Australia and is not used exclusively to refer to people born in countries located in the Middle East.

Consideration and findings

1. We are satisfied that the two groups of people being referred to in the broadcast as a whole are the same two groups being referred to in the three comments. The group the subject of these proceedings are referred to in the broadcast as "Middle Eastern" - "gangs", "youths" "gang members", "males" and "bastards" and as "gangs made up of Middle Eastern descent". They are also referred to as "Lebs and wogs", "Lebanese gangs", "Lebs or whatever" and "ethnic people". Mr Jones, and those who he quoted or spoke to during the broadcast, were all referring to a group defined by their race as well as by their gender (males) and their age (youths). The group was said to have "one ethnic composition". The broadcast as a whole makes it clear that Mr Jones and those who he quotes and speaks to are all describing people of a certain race or races.

1. The descriptions are not intended to relate merely to people of Lebanese nationality. The word "Leb" is used in conjunctions with "wog" and "whatever" to indicate a broader group than just Lebanese. The repeated use of the word "Middle Eastern" also suggests that the race of the group being referred to is not confined to Lebanese nationals.

1. A further indication of the race of the group comes from the use of the terms "Middle Eastern descent", "Middle Eastern background" and "ethnic people".

1. A final pointer is Mr Jones' description of the people who are not members of this group, namely Anglo-Saxons, Catholics, Protestants and Anglicans. Mr Jones says, "We don't have Anglo-Saxon kids out there raping women in Western Sydney." Another comment was, "I don't hear people complaining about Catholics and Protestants and Anglicans. I'm sorry, but there's this religious element in all of this . .. . the gangs are of one ethnic composition . . . " Whatever race or races Mr Jones and others were referring to in the broadcast, that race does not include Anglo-Saxons and their religion is not Catholic, Protestant or Anglican.

1. It follows that the group includes Lebanese, but is not confined to them. It also includes people of "Middle Eastern" descent or ethnic background. Contrary to the respondents' submission, Middle Eastern in this context is not merely a description of a geographic area. It is used to describe the race of the "gangs", "youths" and "males" being referred to in the broadcast.

1. Assistance in naming the race or races of the group referred to in the broadcast can be obtained from a document published by the Australian Bureau of Statistics (ABS): Australian Standard Classification of Cultural and Ethnic Groups (ASCCEG), 2 nd ed 1249.0. The applicant sought to tender this document as well as another ABS publication, Perspectives on Migration , 2008 3416.0. The respondents objected to the tender saying the documents were not relevant and did not have widespread acceptance. They added that there was no evidence as to what the expressions used in the documents means and what they define.

1. We have decided to admit the first document but not the second. The respondents themselves expressed a view in their written submissions as to the meaning of the expression "Middle-Eastern" in an Australian context as well as the geographic area it covers and the religious, national and ethnic groups it includes. The respondents said that the expression "Middle-Eastern" is used in a similar way to "European", "Asian", "South American" and "the Pacific". They also said that that from a geographical perspective it appears to cover the region where Europe, Africa and Asia meet and that it is home to numerous religious, national and ethnic groups including Arabs, Persians, Turks, Jews, Kurds, Pakistanis, Assyrians, Armenians, Azerbaijanis, Greeks and Georgians.

1. We are satisfied that the ASCCEG provides a standard for the classification of cultural and ethnic groups in Australia which is relevant and authoritative. We admit that document into evidence.

1. The second ABS document which the applicant sought to tender was Perspectives on Migration, 2008 3416.0. The relevant section was said to be at page 20 under the heading, "How Many People report Middle Eastern Ancestries?" We did not find this publication relevant to any question we have to decide.

ASCCEG

1. ASCCEG was developed "for use in the collection, storage and dissemination of all Australian statistical and administrative data relating to ethnic and cultural identity, as well as ancestry." At page 2, the ABS urges the use of the Standard "by other government agencies, community groups, and academic and private sector organisations collecting, analysing, or using information relating to ethnicity, cultural diversity and ancestry."

1. The Standard divides cultural and ethnic groups into nine "broad groups" one of which is "North African and Middle Eastern". That broad group is divided into three "narrow groups" namely "Arab", "Jewish" and "Other North African and Middle Eastern". Within the "narrow group" of "Arab" fourteen "cultural and ethnic groups" are identified: Algerian, Egyptian, Iraqi, Jordanian, Kuwaiti, Lebanese, Libyan, Moroccan, Palestinian, Saudi Arabian, Syrian, Tunisian, Yemeni, Arab, n.e.c. (includes Baggara, Bedouin, Omani). Jewish is the only cultural and ethnic group included under the narrow group "Jewish". The cultural and ethnic groups under the narrow heading "Other North African and Middle Eastern" are Assyrian/Chaldean, Berber, Coptic, Iranian, Kurdish, Sudanese, Turkish and "Other North African and Middle Eastern n.e.c. (includes Azande, Madi, Nubian)"

1. The authors of ASCCEG note at 9, that the narrow group "Arab" constitutes a "single recognised ethnic or cultural entity".

Consideration and findings

1. Based on all the references in the broadcast to which we have referred, we regard "Arab," as described in ASCCEG, to be the race of the group being referred to in the broadcast. Catholicism, Anglicanism and Protestantism are not religions one normally associates with this group. The fact that ethnic and other racial groups besides "Arab" live in the Middle East does not change our view that the group being referred to under the umbrella terms including "Middle Eastern", "Lebs or whatever" and "Lebs and wogs" was "Arab". That description is a more concise way of identifying the group which the applicant described as "people of Arabic descent or ethnic origin" and "people from or descended from people from countries and localities in the Middle East including Lebanon, Syria, Jordan, Palestine, and Iraq."

Question 2: Is that a race or races within the meaning of the term "race" in the AD Act?

Meaning of 'race'

1. The second question is whether "Arab", as defined, is a "race" or "races" within the meaning of that term in the AD Act . As we have said, "Race" includes colour, nationality, descent and ethnic, ethno-religious or national origin. A "race" may comprise two or more distinct races: AD Act , s 4(3).

1. The most frequently cited cases involving the meaning of "race" have concerned the issue of whether groups such as Jews, Sikhs and Muslims constitute an "ethnic" and/or and "ethno-religious" group. In 1979, the New Zealand Court of Appeal decided that Jews were a race. In 1983, the House of Lords decided that Sikhs were a race. The authorities in relation to whether Muslims constitute race are equivocal: Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209; Abdulrahman v Toll Pty Ltd [2006] NSWADT 221.

1. In King-Ansell v Police [1979] 2 NZLR 531 the question for the New Zealand Court of Appeal was whether Jews were a 'race' within the meaning of that term in the Race Relations Act 1971 (NZ). That legislation made it an offence to vilify a person "on the ground of colour, race, or ethnic or national origins." In deciding that Jews came within this definition, Richmond P said at p 533-534 that the term "race" should be understood in a "wide popular sense". In a similar vein, Woodhouse J at 536 adopted a 'common usage', rather than a scientific approach. His Honour went on to say at 537 that:

The problem of racial discrimination is difficult to pin down in any final form of words and those that are used here have been left imprecise because in my opinion they are intended to completely embrace every aspect of that elusive and worrying subject matter. I think it is clear that the kind of discrimination which amounts to religious intolerance alone is not the target of this particular legislation; but to give effect to its important purpose of making every form of racial discrimination unlawful I am satisfied the language must not be interpreted in any confined or restricted way but broadly and in terms of commonsense.

1. Lord Fraser's decision in Mandla v Dowell Lee [1983] 2 AC 548 is the most often quoted decision on the issue of whether a group constitutes an 'ethnic' group. It was submitted that Sikhs are essentially a religious group and that they shared racial characteristics with other groups including Hindus and Muslims. In rejecting that view, Lord Fraser said at 562 that:

. . .ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or biological. That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day. In my opinion, the word "ethnic" still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.

1. The words used in s 4 defining race are ordinary English words in common usage and merely indicate a number of ways "race" may be identified. Those expressions do not have legal or technical meanings. As Rees, Lindsay and Rice have noted in Australian Anti-Discrimination Law, Text, Cases and Materials , The Federation Press, 2009 at 174, "'Race' is not helpfully defined in any Australian anti-discrimination legislation. [Provisions such as s4 of the AD Act ] . . simply refer to a number of cognate concepts, such as colour, descent, ethnic origin and national origin, without attempting any meaningful definition of race or those other concepts." The authors go on to conclude at 176 that, ". . .courts and tribunals have most often opted for a 'common understanding' approach, rather than searching for a scientific or scholarly meaning.

1. Adopting this approach, we are satisfied that "Arab" is a race within the meaning of that term in the AD Act . A decision of the United States Supreme Court in 1987 supports that conclusion. The Court rejected the proposition that there were only three races: Caucasoid, Mongoloid and Negroid when deciding that having Arabian ancestry or ethnic characteristics was a race. The relevant statute enacted in the 19 th century, did not mention the word race but declared that all persons should have the same rights "as is enjoyed by white citizens". The Court construed the provision as forbidding racial discrimination. In doing so the Court adopted a "socio-political", rather than a "biological" classification of race: Saint Francis College v Al-Kharzari 481 US 604 at 610, n 4 (1987). The Court concluded at 613 that if the Iraqi man ". . . could prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under (the relevant provision)."

Question 3: Is the applicant a person of that race or races and/or does he claim to be a person of that race or races and is there no sufficient reason to doubt that claim?

1. The applicant will have standing if he is an Arab or if he claims to be an Arab and there is no sufficient reasons to doubt that claim. He gave evidence that he was born in 1945 in Jerusalem and that at that time, it was under the control of the British Mandate for Palestine. Following British withdrawal from the Mandate in 1948, the area of Jerusalem in which he lived was annexed by Israel. He said his parents were Arabic speaking Muslims and he was raised in the Muslim faith and Arabic culture and language. He always spoke Arabic with his family and friends. He migrated to Australia in 1960 and became an Australian citizen in 1965.

1. We are satisfied that the Mr Ekermawi is an Arab.

1. It follows from the answers to each of the three questions that the applicant is a person who has standing to bring the complaint and that the complaint should not be dismissed.

Costs

1. The respondents applied for costs in the event that the Tribunal dismissed the complaint in whole or in part. As we have not dismissed any part of the complaint, we have not considered the respondents' application.

Orders

1.The respondents' application for all or part of the complaint to be dismissed is refused.

2. The matter is listed for case conference on 19 December 2011 at 9.30am.

**********

Decision last updated: 29 November 2011