Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2GB

[2010] NSWADT 262

CITATION:

Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2GB [2010] NSWADT 262

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Sam Ekermawi

1st RESPONDENT
Alan Jones

2nd RESPONDENT
Harbour Radio Pty Ltd t/as Radio 2GB

FILE NUMBER:

101021

HEARING DATES:

13 April 2010

SUBMISSIONS CLOSED:

11 May 2010

 
DATE OF DECISION: 

5 November 2010

BEFORE:

Hennessy N - Magistrate (Deputy President)

CATCHWORDS:

LEAVE – racial vilification – standing of the applicant – substance of the complaint – whether fair and just to grant leave

LEGISLATION CITED:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Racial Discrimination Act 1975 (Cth)

CASES CITED:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Jones & Anor v Ekermawi [2009] NSWCA 388
An v Nichigo Press Pty Ltd [2005] NSWADT 164
Veloskey v Karagiannakis [2002] NSWADTAP 18
Burns v Radio 2UE Pty Ltd & Ors [2004] NSWADT 267
Western Aboriginal Legal Service v Jones [2000] NSWADT 102

REPRESENTATION:

APPLICANT
P Batley, counsel

RESPONDENT
K Eastman, counsel

ORDERS:

Leave for the applicant’s complaint of racial vilification to proceed is granted.

REASONS FOR DECISION

Introduction

1 On 8 December 2005 Alan Jones, broadcasting on Radio 2GB, made comments and read text messages and e-mails from listeners on the subject of what has become known as the Cronulla riots. Mr Ekermawi complained to the President of the Anti-Discrimination Board that some of Mr Jones’ comments and statements constituted racial vilification in breach of s 20C(1) of the Anti-Discrimination Act 1977 (AD Act). That provision states that:

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

2 Harbour Radio Pty Ltd trading as Radio 2GB was also named as a respondent.

3 Mr Ekermawi did not hear the broadcast. His complaint was prompted by an article published by a journalist, David Marr, on 13 December 2005 referring to comments some of which had been made by Alan Jones the previous week. Three comments referred to in that article formed the basis of the complaint. One of the comments was repeated several times. Those remarks and the immediate context in which they were made, are set out below. The comments and statements 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 on 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 this 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 back off and letting, backing off and 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”.

Procedural history

4 The President of the Anti-Discrimination Board declined Mr Ekermawi’s complaint as lacking in substance. Mr Ekermawi applied to the Tribunal for permission or ‘leave’ for the complaint to go ahead: AD Act, s 96. The Tribunal refused leave and Mr Ekermawi appealed to the Supreme Court. His appeal was successful and the matter has been remitted to the Tribunal following the decisions in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 and Jones & Anor v Ekermawi [2009] NSWCA 388.

Issue

5 The issue is whether leave should be granted for Mr Ekermawi's complaint to go ahead. Mr Batley, representing Mr Ekermawi, submitted among other things that Mr Ekermawi has standing to make the complaint and that the complaint itself is not lacking in substance. Ms Eastman, representing the respondents submitted that leave should be refused for reasons including any one or more of the following:

a) the complaint is vague and uncertain;

b) Mr Ekermawi does not have standing to make the complaint;

c) the complaint lacks substance because:

(i) there was no public act because Mr Ekermawi did not hear the broadcast;

(ii) Mr Ekermawi has failed to identify the persons or ‘audience’ who are alleged to have been as incited by the broadcast;

(iii) Mr Ekermawi has not adduced evidence that the broadcast incited the audience members to hate, have serious contempt for or severe ridicule of persons of particular race; and

(iv) race was not ‘the’ ground or reason for any vilification as distinct from a substantial ground or reason.

Nature and scope of Tribunal's powers on remittal

6 Before addressing these and other issues, there was some discussion in the parties’ submissions about the nature and scope of the Tribunal’s powers on remittal. The question arises as to whether the Tribunal is bound by any of the findings it made or conclusions it reached when the matter was first before it. The Tribunal's reason for refusing leave at the first hearing was that “the most effective way of limiting the conduct, if it does breach the [AD Act], is for radio 2GB to develop and implement a training programme aimed at eliminating racial vilification in the future. As it is in the process of doing so, leave should be refused.” Ekermawi v Jones & anor [2008] NSWADT 92 at [22]. The Supreme Court found that the Tribunal had not afforded Mr Ekermawi procedural fairness in reaching the conclusion that leave should be refused. The Supreme Court quashed the Tribunal's first decision and remitted the matters to the Tribunal. No directions were given as to how the matters should be dealt with on remitter.

7 At the hearing on 13 April 2010, after the matter had been remitted, the respondents stated that they no longer relied on the implementation of the training programme as a reason for refusing leave.

8 Mr Batley said that his client came to the present hearing with certain assumptions based on the first hearing, for example that the Tribunal was satisfied that lack of merit was not a reason to refuse leave to proceed.

9 The Supreme Court has quashed the Tribunal’s first decision and has not made any directions constraining the Tribunal’s consideration of whether leave should be granted. The Tribunal is not bound by any of the findings in the now quashed decision. The Tribunal must consider afresh the question of whether leave should be granted based on the complaint that has been referred by the President and the submissions of the parties: Blackman v Federal Commissioner of Taxation (1993) 30 ALD 346.

Principles for determining leave

10 Section 96 of the AD Act provides that a complaint that is referred to the Tribunal after it has been declined by the President, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted.

11 In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:

Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

12 When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. While it is not the Tribunal’s role when determining a leave application to decide whether or not the complaint has been substantiated, the merits of the complaint are relevant.

13 The test for determining whether to grant leave is not the same as the test for determining whether a complaint should be summarily dismissed because, for example, it lacks substance. In particular, the Tribunal is not required to accept the applicant’s evidence at its highest, nor is the Tribunal obliged to grant leave if there are serious question of fact to be determined or serious questions of credit involved. The complexity and novelty of the issues as well as the strength and credibility of each parties’ version of events is relevant when determining whether leave should be granted, but none of those factors is determinative. In all cases, the touchstone is fairness and justice.

14 Schmidt AJ briefly summarised the purposes of the AD Act in the passage set out above, saying that they include precluding unlawful discrimination and permitting those who have been so discriminated against, a remedy. Similar purposes apply to complaints of vilification. Mr Batley surveyed the legislative scheme in more detail in his written submissions. He highlighted the fact that the ability of an applicant to complain of discrimination, to proceed in the Tribunal and to appeal against any decision is circumscribed by several provisions including the following:

a) a person must firstly lodge a complaint with the President of the Anti-Discrimination Board; it is not possible for a person complaining of discrimination to apply directly to a court for a remedy;

b) the President has power to accept or decline to accept a complaint and that decision cannot be reviewed by the Tribunal: AD Act , s 89B;

c) the President may decline a complaint at any stage of the investigation if he or she is satisfied of certain matters;

d) a declined complaint cannot be the subject of proceedings before the Tribunal without leave: AD Act , s 96;

e) a decision to refuse leave is not appellable to the Appeal Panel: AD Act , s 115;

f) the Tribunal may summarily dismiss a complaint at any stage of the proceedings if the complaint is frivolous vexatious misconceived or lacking in substance: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 73(5)(g)(ii).

15 Mr Batley submitted that some of these circumscribing provisions were taken into account in An v Nichigo Press Pty Ltd [2005] NSWADT 164 at [6] and should also be taken into account in this case.

16 The fact that there are several circumscribing provisions in the AD Act and ADT Act, does not mean that leave should be granted any more readily than would otherwise be the case. While it is appropriate, as Schmidt JA said in Ekermawi, to have in mind the purposes of the AD Act and what is fair and just in the circumstances, the existence of several grounds on which a complaint may be declined or dismissed and the limited rights of appeal are not relevant considerations when determining whether leave should be granted.

17 When considering the merits of the complaint, Mr Batley submitted that the issues identified by the respondent raise complex questions of fact and law that ought properly be determined after taking into account relevant evidence from both parties at a hearing. He said that it is not appropriate to finalise the case on the basis of the issues raised by the respondent without a hearing on the merits. In their written submissions, the respondents acknowledged that the racial vilification provisions of the AD Act raise some complex and technical issues of law. In their submissions in reply, the respondents maintained that the issues identified in their first submissions do not raise complex questions of fact or law.

18 These proceedings raise complex questions of law and questions of mixed law and fact which require detailed consideration before they can be resolved. Many of those questions are discussed briefly below in order to gauge whether or not the complaint has sufficient merit to make it fair and just for it to proceed. The complexity of the issues and the fact that neither this Tribunal nor the courts have considered some of the issues in detail are relevant factors when determining whether to grant leave.

President's reasons for declining the complaint

19 The President of the Board declined the complaint as lacking in substance for the following reasons:

The complainant was out of Australia at the time the alleged racially vilifying comments/statements were made and only heard of isolated extracts of the broadcast via the Internet. The complainant did not provide information regarding the immediate context or context of the program as a whole in which they were made.

The respondent provided information regarding the context in which the particular comments/statements were made which were verified by transcripts of the broadcast. In context the comments/statements appeared to alter their worth.

The Board is of the view that some of the broadcast would be considered as promoting severe hatred and serious contempt for people of Middle Eastern or Lebanese background or of the Muslim faith.

However, applying the objective test for incitement based on case law, the specific alleged comments/statements within the immediate context are unlikely to meet the requirements for racial vilification under s 20B and 20C of the Anti-Discrimination Act 1977.

Form of the complaint

20 The respondents submitted that leave should be refused because, as the President of the Board found, the complaint itself was vague and uncertain. Although that was not a basis on which the President declined the complaint, we understand that the respondents now make that submission.

21 The respondents set out the history of the complaint in detail in their written submissions. Having done so, they accepted, for the purpose of these proceedings, that the complaint is as described at [3] above noting that only the third comment appeared in Mr Ekermawi's original letter of complaint to the President. The respondents point out various alleged deficiencies in the complaint including that the whole letter is an incomplete extract of an online opinion piece published by Green Left Weekly on 25 January 2006 and that the letter does not particularise any relevant public act by either respondent or identify whether Mr Ekermawi heard the broadcast.

22 A complaint does not have to take any particular form and need not demonstrate a prima facie case: AD Act, s 89. Having accepted that the complaint is as described at [3] above, there is no basis on which the respondents can now submit that leave should be refused because the complaint is vague and/or uncertain.

Mr Ekermawi’s standing to make the complaint

23 Complaints of vilification can only be made by people who have, or claim to have, certain characteristics. Section 88 of the AD Act states that:

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.

24 Not hearing the broadcast

. The respondents submitted that Mr Ekermawi has no standing to bring the complaint because he did not hear the broadcast. He cannot be ‘aggrieved’ by the conduct unless he heard the words being spoken. Ms Eastman contended that there was no authority to support the proposition that a complaint can be about a public act which is based on a second-hand account or another person's commentary. Mr Ekermawi concedes that he did not hear the broadcast and that he has no firsthand knowledge of what Mr Jones said. His complaint is based on written second-hand accounts of the Mr Jones’ comments and statements. Mr Ekermawi obtained information about the broadcasts from articles written by David Marr and Mr/Ms Cameron.

25 There is no requirement in the AD Act for an applicant to hear or see the public act or be ‘aggrieved’ by the conduct when it occurred in order to make a complaint of racial vilification. Section 20C makes public acts which have a certain impact on the ground of race unlawful. Any person can make a complaint about the public act as long as they have or claim to have the characteristic referred to in s 88. A public act is unlawful if the ordinary reasonable member of the community is incited to feel hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race: Veloskey v Karagiannakis [2002] NSWADTAP 18. Whether and to what extent Mr Ekermawi is aggrieved by the conduct relates only to the remedy to which he may be entitled if the complaint is substantiated.

26 Mr Ekermawi’s race. In accordance with s 88 of the AD Act, for Mr Ekermawi to have standing, his race must be the same race that was the ground for the conduct that constitutes the alleged contravention. Alternatively, the race he claims to have must be the same race that was the ground for the conduct and there is no sufficient reason to doubt that claim.

27 Mr Batley submitted that it is not reasonable to expect Mr Ekermawi to provide evidence of his race at a preliminary hearing. Despite that submission, Mr Ekermawi has said that his race is “Australian Muslim Middle Eastern”. The respondents do not accept that Mr Ekermawi’s claimed race is reliable or valid. Nevertheless, for the purposes of these proceedings, we accept Mr Ekermawi’s race as claimed.

28 The words which Mr Jones used include:

a) ‘people calling themselves Lebs or whatever’ (First comment)
b) ‘Leb and wog’ (said twice) (Second comment)
c) Middle Eastern bastards (Third comment)

29 Race is defined in s 4 to include “colour, nationality, descent and ethnic, ethno-religious or national origin.” Mr Batley does not allege that the vilification was on the ground of ethno religious origin.

30 ‘Leb’ Ms Eastman submitted that the term “Leb” appears to refer to persons of Lebanese origin and that because Mr Ekermawi has never purported to be Lebanese he has no standing in relation to those comments. Mr Batley said that the Tribunal should not assume that “Leb” is merely a derogatory shorthand for “Lebanese” people. He said that it is arguable that, as the term was used in Sydney in December 2005, it is a derogatory term for people of Middle Eastern background in Sydney. Mr Ekermawi's complaint should be allowed to go ahead so that he can adduce evidence on that issue. We agree that depending on the evidence, the term ‘leb’ may not be confined to people whose nationality or national origin is Lebanese. Leave should not be refused on that basis.

31 ‘Wog’. Similarly, in relation to the term ‘wog’ Mr Batley says that in the context in which that term was used in the broadcast, Mr Ekermawi will be in a position to give evidence that he is a member of the group offensively described as ‘wogs’. Again, it is not so obvious that Mr Ekermawi is not a member of the ‘race’ described as ‘wog’ that leave should be refused on that basis.

32 Middle Eastern. Ms Eastman submitted that ‘Middle Eastern’ was not a race and tendered numerous references to the Middle East and Middle Eastern which support her contention that it describes a geographical area. Those references, while relevant, are not the only sources of information which could contribute to an understanding of how the term was used in the 2005 broadcast to describe a group of people in Sydney. The Tribunal has not examined the question of whether ‘Middle Eastern’ constitutes a ‘race’ in any detail.

33 For the purposes of the AD Act, “the fact that a race may comprise two or more distinct races does not prevent it from being a race.” Consequently, if, for example, ‘Middle Eastern’ refers to more than one nationality, descent or national or ethnic origin, even if they each have diverse cultural, social, linguistic, ethnic and religious characteristics, that does not prevent it from being a ‘race’. Because there is doubt about whether or not ‘Middle Eastern’ is a race, leave should not be refused on that basis.

34 Conclusion on standing. A person may have more than one ‘race’ as that term is defined in the AD Act. Furthermore, a ‘race’ may be comprised of more than one race. Prior to being legally represented in these proceedings Mr Ekermawi nominated his race as “Australian Muslim Middle Eastern”. I accept Mr Batley’s submission that the meaning of the words “Leb” “wog” and “Middle Eastern” in the context in which they were used is a matter about which further evidence may be adduced if leave is granted. It may be that, if leave is granted, Mr Ekermawi would wish to nominate a different race as being the race that was the ground for the conduct that constitutes the alleged contravention. Even if there is some doubt about whether the race that he has nominated to date is the same race that was the ground for the conduct, that is not a matter which justifies leave being refused.

Lacking in substance

35 The respondents submitted that even if Mr Ekermawi is found to have standing to bring the complaint, the complaint lacks substance for several reasons.

36 Public act. For the reasons given above at [25] we do not accept the respondent’s submission that in order for there to be a public act, the applicant must have heard the broadcast.

37 Liability of second respondent. According to the respondents, Mr Ekermawi’s complaint assumes that Radio 2GB is liable because it is Mr Jones’ employer when in fact Mr Jones is an independent contractor. The respondents submit that on the face of the complaint there is nothing which properly identifies the basis on which the claim is made against each respondent. Mr Batley clarified the position by saying that the applicant does not rely on principles of vicarious liability. Rather, he contends that both respondents have engaged in the public act the subject of the complaint. That is an arguable position.

38 Identification of audience. The respondents submitted that Mr Ekermawi has failed to identify the persons or ‘audience’ who are alleged to have been incited by the broadcast. In particular, they say that it is not clear whether he relies on the audience for the Marr and/or Cameron publications or the 2GB audience on 8 December 2005. The respondents assert that Mr Ekermawi must point to some evidence that the audience is likely to have had the requisite response to the comments.

39 None of these submissions is persuasive. The respondents have accepted, for the purpose of these proceedings, that the complaint is about the words spoken by Alan Jones on Radio 2GB on 8 December 2005 as set out at [3] above. The nature and identity of the audience is a mixed question of fact and law. I have expressed the view that a public act is unlawful if the ordinary reasonable member of the community is incited to feel hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race: Veloskey v Karagiannakis [2002] NSWADTAP 18. The respondents have set out several similar formulations in their written submissions. It is not correct that, in order to prove his case, Mr Ekermawi must adduce evidence at this stage of the proceedings that the relevant audience is likely to have the requisite response to the comments. As the Tribunal said in Burns v Radio 2UE Pty Ltd & Ors [2004] NSWADT 267 at [14]:

It remains necessary for the Tribunal to decide whether the ordinary reasonable listener, drawing on their own knowledge and experience of worldly affairs, could have understood from the broadcast that they were being incited to hatred towards, serious contempt for, or severe ridicule of homosexual men (see, eg John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [16]). This requires us to hypothesise as to the likely effect of the comments on the ordinary reasonable listener. As some indication of this, in this matter we have in evidence the recordings which tell us how listeners actually responded to the conduct, as we set out below. (Emphasis added.)

40 The respondents correctly acknowledge that there is no need for Mr Ekermawi to prove actual incitement of the audience. It follows that their later submission that he must adduce evidence that the broadcast incited the audience members to whom those statements were directed to hate, have serious contempt for or severely ridicule people of a particular race is not correct. I agree with Mr Batley that if the matter proceeds to hearing, the Tribunal’s task will be to receive the evidence, including the content of the broadcast, and evaluate it in light of any evidence there may be of actual incitement.

41 Causation. The respondents submitted that race must be the ground or reason for any vilification as distinct from a substantial ground or reason. Support for that proposition was said to come from two sources. Firstly, the fact that s 4A of the AD Act expressly states that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination (whether or not it is the dominant or a substantial reason) then the act is taken to be done for a discriminatory reason. There is no equivalent provision in relation to acts of vilification. Similarly, the respondents contrast the racial vilification provisions in s 18B of the Racial Discrimination Act 1975 (Cth) which expressly provides that the act will be unlawful even if it is done for two or more reasons, only one of which is the race of the person.

42 The definition of causation in vilification complaints was left open in Western Aboriginal Legal Service v Jones [2000] NSWADT 102. These proceedings are not the appropriate occasion to express a concluded view about this issue. I note, however, that any comparison with the provisions in the Racial Discrimination Act is of limited relevance because the causal link under that legislation must be between the respondent’s reasons for the conduct and the race of the target group. Under the AD Act the causal link does not relate to the respondent’s reasons for the conduct but rather to the impact on the audience. The ordinary, reasonable member of the community must be incited to hatred, serious contempt or severe ridicule of the complainant’s racial group because of that group’s race.

Conclusion

43 I am satisfied on the basis of the evidence and submissions before me, that it is fair and just for Mr Ekermawi’s complaint to proceed. Mr Ekermawi is not required to lodge a complaint which discloses a prima facie case or which complies with any particular form. It is at least arguable that he has standing and that the complaint has substance. The racial vilification provisions raise some complex and technical issues of law. An applicant is not required to produce evidence of all the matters which must be established on the balance of probabilities in a substantive hearing before leave will be granted.

Leave for the applicant’s complaint of racial vilification to proceed is granted.