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Ekermawi v Jones (No 3)

Ekermawi v Jones (No 3)

Case [2014] NSWCATAD 58 8 May 2014

Racial Vilification

Compensatory Damages

Apology

Anti-Discrimination Law

Type to search within this case.

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Hearing dates: 21 & 22 October 2013
Decision date: 08 May 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: N Hennessy LCM, Deputy President
J Schwager, General Member
D Kelleghan, General Member
Decision:
1. The applicant's complaint is substantiated, in part.
2. Within 28 days the respondents are to pay the applicant damages in the sum of $10,000.
3. Within 28 days the respondents are to publish an apology. The apology is to be made between 6.00 am and 6.30 am on a week day by Mr Jones saying, and Harbour Radio Pty Ltd broadcasting, on Radio 2GB the following words:
"This apology is made as a result of an order made by the NSW Civil and Administrative Tribunal on 8 May 2014.
On 8 December 2005, on my breakfast program on Radio 2GB, I was discussing reports in the media about racial tensions between people thought to be of Arab or Middle Eastern background and surf life savers at Cronulla Beach. In the course of that discussion I read out an email from a listener. The NSW Civil and Administrative Tribunal has found that by reading this email, I and Radio 2GB, have racially vilified Arabs in breach of the Anti-Discrimination Act.
I apologise for reading that email. I acknowledge that the words that I used vilified Arabs in breach of the Anti-Discrimination Act. The aim of that Act is to promote tolerance, understanding and acceptance of people regardless of their race.
I also apologise on behalf of Radio 2GB."
4. The applicant's application for costs is refused.
5. The respondents' application for costs is refused.

Catchwords: ANTI-DISCRIMINATION - racial vilification - meaning of racial vilification provisions of the Anti-Discrimination Act 1977
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Defamation Act 2005
Cases Cited: Barry v Futter [2011] NSWADT 205
Blackman v Federal Commissioner of Taxation (1993) 30 ALD 346
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105
Burns v Corbett [2013] NSWADT 227
Burns v Cunningham [2011] NSWADT 240
Burns v Dye [2002] NSWADT 32
Burns v Laws (No 2) [2007] NSWADT 47
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207
Ekermawi v ADT [2009] NSWSC 143
Ekermawi v Jones [2008] NSWADT 93
Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262
Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280
Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79
GLBTI v Wilks [2007] QADT 27
Hall v Sheiban (1985) ALR 503
John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35
Jones and Anor v Ekermawi (No. 2) (Costs) (EOD) [2013] NSWADTAP 18
Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19
Jones v Ekermawi [2009] NSWCA 388
Jones v Ekermawi [2012] NSWADTAP 50
Jones v Trad…

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 (No 3)

Details

AGLC: Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Case: [2014] NSWCATAD 58
Decision Date: 08 May 2014

CaseChat Overview and Summary

In Ekermawi v Jones (No 3), the NSW Civil and Administrative Tribunal was asked to determine whether a radio broadcaster, Mr Jones, had racially vilified a group of people by reading out an email on his breakfast radio show that contained offensive comments about Arabs. The applicant, Mr Ekermawi, argued that the broadcast constituted racial vilification under the Anti-Discrimination Act 1977, and sought damages, an apology, and an order for the respondents to refrain from future similar conduct. The respondents, Mr Jones and Harbour Radio Pty Ltd, denied the allegations and argued that the comments were not made with the intention to incite hatred or contempt.

The primary legal issue for the Tribunal was to interpret the meaning of the racial vilification provisions within the Anti-Discrimination Act 1977. Specifically, the Tribunal had to determine whether the email read out by Mr Jones constituted conduct that was "likely to offend, insult, humiliate or intimidate another person or a group of people who are identified by reference to their race". The Tribunal also needed to consider whether the broadcast was done with the requisite intention, which was to incite hatred or contempt towards the group of people identified by reference to their race.

The Tribunal found that the email read out by Mr Jones did constitute racial vilification under the Anti-Discrimination Act 1977. The Tribunal accepted that the email contained offensive comments about Arabs and that the broadcast was likely to offend, insult, humiliate or intimidate another person or a group of people who were identified by reference to their race. The Tribunal also found that Mr Jones intended to incite hatred or contempt towards the group of people identified by reference to their race. The Tribunal ordered that the respondents pay damages to the applicant in the sum of $10,000 and that Mr Jones publish an apology on Radio 2GB. The Tribunal refused both parties' applications for costs.

The Tribunal's decision highlights the importance of carefully considering the potential impact of one's words and actions, particularly in the media. The Tribunal found that Mr Jones's conduct constituted racial vilification, even though he did not intend to offend or insult anyone. The decision also underscores the need for broadcasters and other media outlets to be aware of their obligations under the Anti-Discrimination Act 1977, and to take steps to ensure that their conduct does not constitute racial vilification.

Orders

Orders of the court

1. The applicant's complaint is substantiated, in part.

2. Within 28 days the respondents are to pay the applicant damages in the sum of $10,000.

3. Within 28 days the respondents are to publish an apology. The apology is to be made between 6.00 am and 6.30 am on a week day by Mr Jones saying, and Harbour Radio Pty Ltd broadcasting, on Radio 2GB the following words:

"This apology is made as a result of an order made by the NSW Civil and Administrative Tribunal on 8 May 2014.

On 8 December 2005, on my breakfast program on Radio 2GB, I was discussing reports in the media about racial tensions between people thought to be of Arab or Middle Eastern background and surf life savers at Cronulla Beach. In the course of that discussion I read out an email from a listener. The NSW Civil and Administrative Tribunal has found that by reading this email, I and Radio 2GB, have racially vilified Arabs in breach of the Anti-Discrimination Act.

I apologise for reading that email. I acknowledge that the words that I used vilified Arabs in breach of the Anti-Discrimination Act. The aim of that Act is to promote tolerance, understanding and acceptance of people regardless of their race.

I also apologise on behalf of Radio 2GB."

4. The applicant's application for costs is refused.

5. The respondents' application for costs is refused.

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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Citations

AGLC Citation

Ekermawi v Jones (No 3) [2014] NSWCATAD 58

Most Recent Citation

Valkyrie and Hill v Shelton [2023] QCAT 302

Cases citing this decision · 7 of 7 shown

Southey v Butler
[2024] NSWCATAD 146 Para 35

…to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40] ( Kazak ); Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and “ridicule”, as defined in the Macquarie Dictionary and O…
Edwards v Western NSW Local Health District
[2024] NSWCATAD 121 Para 54

…cule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and…
Valkyrie and Hill v Shelton
[2023] QCAT 302 Para 3

…or v Owen [2014] QCAT 661 at [18], and to a section of the public even if they held racist views about Arabs in Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [32] (although the test was also applied to ‘ordinary members of the particular audience’ at [44] and [47]).…
Wolf v Secretary, Department of Education
[2023] NSWCATAD 202 Para 48

…cule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and…
Feldman v Nationwide News Pty Ltd
[2020] NSWCA 260

…bner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ekermawi v Jones (No 3) [2014] NSWCATAD 58 Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56 Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The…
Riley v State of NSW (Department of Education)
[2019] NSWCATAD 223 Para 130

…cule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. The applicants allege in their Further Amended Points of Claim that the public acts of Ms Head and Ms Bermingham incited severe ridicule and severe (pre…
Ekermawi v Nine Network Australia Pty Limited
[2019] NSWCATAD 29 Para 133

…In Ekermawi v Jones (No 3) [2014] NSWCATAD 58, the Tribunal stated that: what must be fair is the report of a public act (at [56]) and a reporter, when reporting a public act, is free to add his or her own opinion as long as the opinion itself is not vilifying (at [56]). The Tribunal also stated that defamation law c…

View all 7 citing cases →

Cases cited in this decision · 27 of 27 shown

Jones v Trad
[2013] NSWCA 389 Para 1

…dcast by the second respondent, the licensee of Radio 2GB, does not constitute a public act. Following the Court of Appeal's decision in Jones v Trad [2013] NSWCA 389 at [44], in which that submission was rejected, the respondents advised the Tribunal that they accepted that decision and conceded that Mr Jones' act…
Burns v Corbett
[2013] NSWADT 227 Para 1

…In Burns v Corbett [2013] NSWADT 227 at [44], the Administrative Decisions Tribunal referred to GLBTI v Wilks [2007] QADT 27 noting that the Queensland Anti-Discrimination Tribunal had held that both the writer of the letter and the publisher of the newspaper had engaged in unlawful homosexual vilification. Mr Burns…
Jones and Anor v Ekermawi (No. 2) (Costs) (EOD)
[2013] NSWADTAP 18 Para 1

…As the Appeal Panel noted in Jones and Anor v Ekermawi (No. 2) (Costs) (EOD) [2013] NSWADTAP 18, seven of the specific considerations focus on procedural misconduct by an opposite party (see para (a), and para (b)). The remaining two address primarily the substance and strength of the cases presented (paras (c) and (…
Ekermawi v Jones and Harbour Radio Pty Ltd
[2013] NSWADT 79 Para 1

…and it would have been a denial of procedural fairness to allow him to amend the complaint without notice: Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79.…
Trad v Jones (No. 3) (EOD)
[2013] NSWADTAP 13 Para 1

…According to the applicant, the respondents elected to argue every point. In Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 at [16] the Appeal Panel made the following comment:…
Jones v Ekermawi (EOD)
[2012] NSWADTAP 50 Para 1

…rmawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280. The Appeal Panel dismissed the respondents' appeal against that decision: Jones v Ekermawi [2012] NSWADTAP 50.…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 1

…r of the class to whom the public act is directed. The question is not to be asked by reference to the reasonable person test: Sunol v Collier (No 2) [2012] NSWCA 44, Bathurst CJ at [34]. Adopting the view of the Victorian Court of Appeal (Ashley and Neave JJA) in Catch the Fire Ministries Inc , Bathurst CJ conclu…
Ekermawi v Jones and Harbour Radio Pty Ltd
[2011] NSWADT 280 Para 1

…dismissal deciding that "Arab" was both Mr Ekermawi's race and the race that had allegedly been vilified: Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280. The Appeal Panel dismissed the respondents' appeal against that decision: Jones v Ekermawi [2012] NSWADTAP 50.…
Burns v Cunningham
[2011] NSWADT 240 Para 1

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. The focus is on what the respondents did and whether that constitutes incitement. It is not necessary to prove that a person has, in fact, b…
Barry v Futter
[2011] NSWADT 205 Para 1

…In Barry v Futter [2011] NSWADT 205 at [74] - [76] the Tribunal considered whether conversations between or among two or more colleagues at a workplace constitute a public act. The Tribunal listed the circumstances that may be relevant when determining whether a communication "by speaking" is a public act. Among the…
Jones and Harbour Radio Pty Limited v Trad (EOD)
[2011] NSWADTAP 19 Para 1

…about the facts." The Tribunal's conclusion about the fair report exception was set aside by the Appeal Panel: Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19 because the public act being reported was not itself, racially vilifying. Consequently it did not come within s 20C(1). Having come to that view, the…
Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2GB
[2010] NSWADT 262 Para 1

…to the Tribunal and, on the second occasion, the Tribunal granted permission for the complaint to proceed: Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262.…
Trad v Jones (No 3)
[2009] NSWADT 318 Para 1

…The defence in the Act has been discussed in only one case of which we are aware. In Trad v Jones & anor (No 3) [2009] NSWADT 318 at [195], the Tribunal said that a fair report "connotes an objective, balanced approach by a reporter who is seeking to present to the audience the facts of the particular story unembell…
Jones & Anor v Ekermawi
[2009] NSWCA 388 Para 1

…ain: Ekermawi v ADT [2009] NSWSC 143. The Court of Appeal dismissed an appeal by the respondents against Justice Schmidt's decision: Jones v Ekermawi [2009] NSWCA 388. The matter was remitted to the Tribunal and, on the second occasion, the Tribunal granted permission for the complaint to proceed: Ekermawi v Jones…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 1

…, genuine or true reasons: Jones v Trad [2013] NSWCA 389 at [98]; Nicholls & Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].…
Ekermawi v Administrative Decisions Tribunal of New South Wales
[2009] NSWSC 143 Para 1

…d to the Supreme Court. Justice Schmidt held that the Tribunal had applied the wrong test and remitted the matter to be decided again: Ekermawi v ADT [2009] NSWSC 143. The Court of Appeal dismissed an appeal by the respondents against Justice Schmidt's decision: Jones v Ekermawi [2009] NSWCA 388. The matter was rem…
Ekermawi v Jones
[2008] NSWADT 93 Para 1

…substance. He elected to have the complaint referred to the Tribunal. The Tribunal refused permission for the complaint to proceed: Ekermawi v Jones [2008] NSWADT 93. Mr Ekermawi appealed to the Supreme Court. Justice Schmidt held that the Tribunal had applied the wrong test and remitted the matter to be decided a…
Burns v Laws (No 2)
[2007] NSWADT 47 Para 1

…he public act must be one which could encourage or spur on others to harbour such emotions: Burns v Dye [2002] NSWADT 32 at [20]; Burns v Laws (No 2) [2007] NSWADT 47 at [113]. Nor is it necessary to prove that either Mr Jones or Radio 2GB intended to incite any of the requisite emotions in the audience: John Fairf…
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc
[2006] VSCA 284 Para 1

…been incited by the public act: Veloskey v Karagiannakis [2002] NSWADTAP 18 at [25]; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 at [14].…
Bropho v Human Rights and Equal Opportunity Commission
[2002] FCA 1510 Para 1

…he Fires Ministries Inc , to the earlier interpretation by the Federal Court in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [197]. That view, expressed by Nettle JA at [92], was that:…
McGlade v Lightfoot
[2002] FCA 1457 Para 1

…t under the Racial Discrimination Act 1975 is slightly different. Under s 18C an act must be done "otherwise than in private". In McGlade v Lightfoot [2002] FCA 1457 at [40] Carr J found that when giving an 'on the record' interview with a journalist, the person had 'deliberately and intentionally engaged in condu…
John Fairfax Publications Pty Ltd v Kazak
[2002] NSWADTAP 35 Para 1

…o prove that either Mr Jones or Radio 2GB intended to incite any of the requisite emotions in the audience: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. The…
Veloskey v Karagiannakis
[2002] NSWADTAP 18 Para 1

…in the audience: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. The focus is on what the respondents did and whether that constitutes incitement. It is not ne…
Burns v Dye
[2002] NSWADT 32 Para 1

…severe ridicule of a person is insufficient. The public act must be one which could encourage or spur on others to harbour such emotions: Burns v Dye [2002] NSWADT 32 at [20]; Burns v Laws (No 2) [2007] NSWADT 47 at [113]. Nor is it necessary to prove that either Mr Jones or Radio 2GB intended to incite any of the…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77 Para 1

…The words "hatred", "serious contempt" and "severe ridicule" are to be given their ordinary meaning. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40] the Tribunal set out their ordinary meaning as defined in the Macquarie and Oxford Dictionaries:…
Blackman v Commissioner of Taxation
[1993] FCA 496 Para 1

…sh 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. The respondents were entitled to raise new grounds for opposing leave. If all those grounds had been weak or untenable, then raising them…
Bropho v Human Rights & Equal Opportunity Commission
[2004] FCAFC 16 Para 1

…tle JA in Catch the Fires Ministries Inc , to the earlier interpretation by the Federal Court in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [197]. That view, expressed by Nettle JA at [92], was that:…

Legislation cited in this decision · 5

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 1)
Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Defamation Act 2005 (TAS)
1 mention (from Para 1)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Hearing dates:	21 & 22 October 2013
Decision date:	08 May 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President J Schwager, General Member D Kelleghan, General Member
Decision:	1. The applicant's complaint is substantiated, in part. 2. Within 28 days the respondents are to pay the applicant damages in the sum of $10,000. 3. Within 28 days the respondents are to publish an apology. The apology is to be made between 6.00 am and 6.30 am on a week day by Mr Jones saying, and Harbour Radio Pty Ltd broadcasting, on Radio 2GB the following words: "This apology is made as a result of an order made by the NSW Civil and Administrative Tribunal on 8 May 2014. On 8 December 2005, on my breakfast program on Radio 2GB, I was discussing reports in the media about racial tensions between people thought to be of Arab or Middle Eastern background and surf life savers at Cronulla Beach. In the course of that discussion I read out an email from a listener. The NSW Civil and Administrative Tribunal has found that by reading this email, I and Radio 2GB, have racially vilified Arabs in breach of the Anti-Discrimination Act. I apologise for reading that email. I acknowledge that the words that I used vilified Arabs in breach of the Anti-Discrimination Act. The aim of that Act is to promote tolerance, understanding and acceptance of people regardless of their race. I also apologise on behalf of Radio 2GB." 4. The applicant's application for costs is refused. 5. The respondents' application for costs is refused.
Catchwords:	ANTI-DISCRIMINATION - racial vilification - meaning of racial vilification provisions of the Anti-Discrimination Act 1977
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Defamation Act 2005
Cases Cited:	Barry v Futter [2011] NSWADT 205 Blackman v Federal Commissioner of Taxation (1993) 30 ALD 346 Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 Burns v Corbett [2013] NSWADT 227 Burns v Cunningham [2011] NSWADT 240 Burns v Dye [2002] NSWADT 32 Burns v Laws (No 2) [2007] NSWADT 47 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 Ekermawi v ADT [2009] NSWSC 143 Ekermawi v Jones [2008] NSWADT 93 Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262 Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280 Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79 GLBTI v Wilks [2007] QADT 27 Hall v Sheiban (1985) ALR 503 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 Jones and Anor v Ekermawi (No. 2) (Costs) (EOD) [2013] NSWADTAP 18 Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19 Jones v Ekermawi [2009] NSWCA 388 Jones v Ekermawi [2012] NSWADTAP 50 Jones v Trad…