Ekermawi v Jones (No 3)
[2014] NSWCATAD 58
•08 May 2014
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 MemberDecision: 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 2005Cases 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 [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
McGlade v Lightfoot [2002] FCA 1457 Nicholls & Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Sunol v Collier (No 2) [2012] NSWCA 44
Trad v Jones & anor (No 3) [2009] NSWADT 318
Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13
Veloskey v Karagiannakis [2002] NSWADTAP 18Category: Principal judgment Parties: Sam Ekermawi (Applicant)
Alan Jones (First Respondent)
Harbour Radio Pty Ltd (Second Respondent)Representation: P Batley (Applicant)
K Eastman SC (First and Second Respondents)
Legal Aid NSW (Applicant)
Baker & McKenzie (First and Second Respondents)
File Number(s): 101021
reasons for decision
Introduction
In 2005, a few days after an alleged attack on surf lifesavers at North Cronulla, a suburb of Sydney, Mr Alan Jones presented his morning radio program on 2GB. The previous day a text message had been sent encouraging "every Aussie in the (Sutherland) shire (to) get down to North Cronulla to support Leb and wog bashing day". One of the topics for discussion on the radio program was the response of politicians and the Police Force to the unrest in the area. In the course of that discussion, white Australians were described as "Aussies", "local surfers" and "skippies", while those from an Arab background were referred to using terms including "Middle Eastern bastards", "scum" and "Lebs and wogs".
Mr Ekermawi complains that Mr Jones and Harbour Radio Pty Ltd (the licensee of Radio 2GB) have racially vilified Arabs in breach of the Anti-Discrimination Act 1977 NSW (the Act). The three allegedly vilifying comments or quotes by Mr Jones, in context, are:
(1) Okay. Let me tell you, Paul, let me just say this to you, because, you know, I'm the person that's led this charge here. No-one seemed to want to know about North Cronulla, and now it's gathered to this.
......
(2) I can understand the young blokes who have sent that text message yesterday, "Come to Cronulla this weekend to take revenge," it says. It says:
This Sunday, every Aussie in the shire get down to North Cronulla to support Leb and wog bashing day. Bring your mates and let's show them that this is our beach and they are never welcome.
(3) Yeah. I've just got a stack of emails in front of me. Let me read you this one:
Alan, it's not just a few Middle Eastern bastards at the weekend, it's 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 -
We have decided that the third of the three comments is in breach of the racial vilification provisions of the Act. The first and second comments are not. Our brief reasons are that Mr Jones' comment that he has 'led the charge' is referring to the 'charge' to bring the situation at North Cronulla to the attention of politicians and police, not to a 'charge' against Arabs.
While the content of the text message does vilify Arabs on the ground of their race, the respondents the 'fair report' exception applies because they were giving a 'fair report' of the text message which had been published in the Daily Telegraph that day.
That exception does not apply to the reading and broadcast of a racially vilifying email because the respondents were not reporting a public act. The email itself was not a communication to the public. It was the respondents who brought the public's attention to the email by reading it and broadcasting it.
Procedural history
The President of the Anti-Discrimination Board dismissed Mr Ekermawi's complaint as lacking in substance. He elected to have the complaint referred to the Tribunal. The Tribunal refused permission for the complaint to proceed: EkermawivJones [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 again: EkermawivADT [2009] NSWSC 143. The Court of Appeal dismissed an appeal by the respondents against Justice Schmidt's decision: JonesvEkermawi [2009] NSWCA 388. The matter was remitted to the Tribunal and, on the second occasion, the Tribunal granted permission for the complaint to proceed: EkermawivJonesandHarbourRadioPtyLtd [2010] NSWADT 262.
The respondents then applied to the Tribunal for the complaint to be dismissed on the ground that Mr Ekermawi did not have 'standing' because he was not of the same race as the race of the group that, allegedly, had been vilified. The relevant comments were about "Lebs", "wogs" and "Middle Eastern" people and, according to the respondents, only the term "Lebs" denotes a "race" (Lebanese). Because Mr Ekermawi was born in Jerusalem in 1945 when it was under the control of the British Mandate for Palestine, the respondents submitted that he is not Lebanese, Middle Eastern or a "wog".
Section 88 of the Act is the provision relating to 'standing' to bring a vilification complaint:
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.
The Tribunal dismissed the respondents' application for dismissal deciding that "Arab" was both Mr Ekermawi's race and the race that had allegedly been vilified: EkermawivJonesandHarbourRadioPtyLtd [2011] NSWADT 280. The Appeal Panel dismissed the respondents' appeal against that decision: JonesvEkermawi [2012] NSWADTAP 50.
Mr Ekermawi then applied to amend his complaint either to cover the whole of the broadcast or other unidentified parts of the broadcast. The Tribunal dismissed that application because Mr Ekermawi did not allege that everything Mr Jones said during the entire program constitutes racial vilification. In addition, the respondents were not on notice of the unidentified parts of the broadcast that Mr Ekermawi sought to include and it would have been a denial of procedural fairness to allow him to amend the complaint without notice: EkermawivJonesandHarbourRadioPtyLtd [2013] NSWADT 79.
Legislative provision
Section 20C(1) of the Act makes racial vilification unlawful:
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.
The onus is on the applicant to prove, on the balance of probabilities, that each respondent has breached this provision.
"Public act" is defined in s 20B to include:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
There are three exceptions to unlawful racial vilification provided for in s 20C(2). The respondents relied on the "fair report" exception in paragraph (a) and the "public interest" exception in paragraph (c).
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
Each respondent has the onus of proving any exception: s 104.
The alleged public acts
The comment and the quotes set out above were made by Mr Jones and broadcast by Radio 2GB between about 6.12 am and 6.14 am on 8 December 2005. The reason the complaint is confined to the three highlighted comments is that Mr Ekermawi based his complaint on an article by David Marr in The Age newspaper on 13 December 2005 in which those comments were quoted.
We have reproduced below that part of the transcript of the broadcast where Mr Jones first speaks to a listener, Paul. The extract concludes when Mr Jones turns to another topic. This passage contains the immediate context in which the allegedly vilifying comments were made. The first comment is Mr Jones' own words. The second comment includes Mr Jones reading part of the text message calling on "Aussies" to get down to North Cronulla to support "Leb and wog bashing day". The third comment is an email from a listener, part of which Mr Jones reads on-air. The three comments complained of are highlighted in bold font.
MR JONES: . . . Paul, hello. Hello Paul.
PAUL: Yes, mate, just a quick call, Alan.
MR JONES: Yeah.
PAUL: I just wanted to let you know, mate, that this is what it's come to, mate. This has been going on for years.
MR JONES: Yes.
PAUL: 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.
MR JONES: Okay. Let me tell you, Paul, let me just say this to you, because, you know, I'm the person that's led this charge here. No-one seemed to want to know about North Cronulla, and 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. I spoke to Morris lemma last night. They are aware there is a problem, and now the resources are being there. We have to say to people, "Stay out of this. We aren't a country where we become our own law enforcement authorities. 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 have sent that text message yesterday, "Come to Cronulla this weekend to take revenge," it says. It says:
Now, that's not the way. I do understand what you're saying, Paul, but we've just got to back off a bit here.
PAUL: Yeah.
MR JONES: We're not giving any ground to them. I'm saying backing off and let the police do the job.
PAUL: How frustrated people are out there - - -
MR JONES: It is. I agree.
PAUL: This has been going on for years. I've moved out of Riverwood for that very reason.
MR JONES: Yeah. I've just got a stack of emails in front of me. Let me read you this one:
Alan, it's not just a few Middle Eastern bastards at the weekend, it's 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 -
and I'll come to that later in the program -
reduced numbers and powers. I wish there was an answer.
Issues
The first respondent, Mr Jones, initially submitted that speaking the words that were broadcast by the second respondent, the licensee of Radio 2GB, does not constitute a public act. Following the Court of Appeal's decision in JonesvTrad [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 in speaking the words was a 'public act' for the purposes of s 20B(a) of the Act. No more needs to be said about that issue.
Both respondents denied that any public act incited hatred, serious contempt or severe ridicule of Arabs on the ground of their race. The first issue is:
(1) Did the acts 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?
The respondents submitted that even if either or both of them have breached s 20C(1) of the Act, they are not liable because at least some of their conduct comes within the fair report and/or the public interest exceptions. The second and third issues are:
(2) Were the second and third comments a "fair report" of a public act that is racially vilifying?
(3) Were any of the three comments done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter?
Because Mr Ekermawi was in the Middle East on 8 December 2005 and did not hear the broadcast, the respondents submitted that he was not entitled to damages for any breach of the Act. Finally, the respondents submitted that they should not be ordered to apologise in the form suggested by Mr Ekermawi or at all. The fourth and fifth issues are:
(4) If either or both respondents have breached the Act, is Mr Ekermawi entitled to any remedy including damages and/or an apology?
(5) If so, what is the quantum of damages and the form and timing of any apology that either or both respondents should make?
Were the public acts racially vilifying?
What is meant by incite and who is the relevant audience?
Merely "expressing" hatred, serious contempt for, or severe ridicule of a person is insufficient. The public act must be one which could encourage or spur on others to harbour such emotions: BurnsvDye [2002] NSWADT 32 at [20]; BurnsvLaws (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: JohnFairfaxPublicationsPtyLtdvKazak [2002] NSWADTAP 35 at [10]; BurnsvDye [2002] NSWADT 32 at [21]; VeloskeyvKaragiannakis [2002] NSWADTAP 18 at [24]; BurnsvCunningham [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, been incited by the public act: VeloskeyvKaragiannakis [2002] NSWADTAP 18 at [25]; CatchtheFireMinistriesIncvIslamicCouncilofVictoriaInc [2006] VSCA 284; (2006) 15 VR 207 at [14].
In a case concerning the constitutionality of s 49ZT, the homosexual vilification provision of the Act, the Court of Appeal held that whether or not a person has "incited" hatred, serious contempt or severe ridicule must be determined by reference to an ordinary member of the class to whom the public act is directed. The question is not to be asked by reference to the reasonable person test: SunolvCollier(No2) [2012] NSWCA 44, Bathurst CJ at [34]. Adopting the view of the Victorian Court of Appeal (Ashley and Neave JJA) in CatchtheFireMinistriesInc, Bathurst CJ concluded that:
... the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.
As we have said, after this matter was heard, the Court of Appeal handed down its decision in JonesvTrad [2013] NSWCA 389. The respondents made further submissions on the basis of that judgement.
In that case the Court considered the meaning of the word "incite" in relation to s 20C(1). Ward JA, with whom Gleeson JA and Emmett JA agreed, concluded at [61] to [63] that the Tribunal at first instance had erred in law. The first error was failing to make a finding identifying the audience in relation to which the likely effect of the public act could be assessed. The second error was failing to consider the likely effect of the public act on an ordinary member of that audience. Ward JA quoted Bathurst CJ's view in SunolvCollier(No2) that the decision maker should consider the particular class to whom the speech or other public act is directed.
In oral submissions counsel for the applicant submitted that the audience is the 'ordinary person living in New South Wales'. The respondents make the point that there was no evidence that Mr Jones' program was being broadcast by Harbour Radio throughout NSW. The respondents added that despite the fact that the broadcast that morning was from the Harvey Norman store at Castle Hill, the applicant adduced no evidence from anyone who was present as to whether they heard the broadcast. The respondents submitted that because Mr Ekermawi did not adduce any evidence identifying the audience his complaint cannot succeed.
Section 20C relates to public acts. By definition, the relevant audience is a member or members of the public. The purpose of identifying the particular audience is so that the likely effect of the public act on a hypothetical, ordinary member of that audience can be assessed. Attributes or characteristics of the audience which may inform an assessment of the likely effect of the public act may be relevant but there is no requirement that, in order for a complaint to be substantiated, formal evidence must be adduced of those matters. Similarly, a complaint will not fail merely because an applicant does not identify how many people became aware of the public act or where in New South Wales they were located when that happened.
In this case the particular audience is the people in New South Wales listening to Radio 2GB at the relevant time. No formal evidence is required to 'identify' that particular audience. By Mr Jones' own estimation, "hundreds of thousands" of people were listening to him on the morning of 8 December 2005. If there is evidence that members of the audience hold particular views, that evidence may be relevant when assessing the "likely effect" of the broadcast on an ordinary member of the audience.
In this case, many listeners emailed Mr Jones or phoned in to make a comment about the events taking place at Cronulla. Mr Jones spoke to some listeners on air and read out emails from others. Some of the comments which listeners made include:
(1) Alan, you're talking about Cronulla Beach. I'm from Cronulla, I know, but let me tell you, this is at Hurstville, this is at Strathfield, this is at Fairfield, this is at Bondi, this is at Manly. This is suburban this stuff, and these people only know one thing. They hate us and they're going to take over. (transcript p 2)
(2) Mate, I know how to keep those Middle Eastern thugs off the beach ... quite easy, mate. Just get our women to dress like their women, and they'll get - there's nothing for them to go down and perve at. They don't go down to swim and they're certainly not going down to have a wash. We know that. Have a good day, sir. (transcript p 9)
(3) Alan, it's not just a few Middle Eastern bastards at the weekend, it's 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. (transcript p 9)
Two of the more moderate comments which listeners made on air include:
(1) Look, I've just been listening to this whole issue on Cronulla and I don't condone violence, but - and I'm not from a Middle Eastern family, but all I say to you is there are two sides to everything. When I've been down there, I've heard some really derogatory remarks towards the Middle Eastern people, and I've heard a lot of egging going on against them, and I think honestly there has to be an issue there that has to be fixed up, but there are two sides to everything. (transcript p 15)
(2) I'd like to say firstly I don't know which side of myself to bash, the Australian side or the wog side. (transcript p 16)
Mr Jones says at one point that he has been "inundated" with correspondence supporting his view that "Middle Eastern people" not Catholics, Protestants or Anglicans, for example, are to blame.
We are satisfied on the basis of this evidence that some members of Mr Jones' audience hold racist views about Arabs and some do not. But that is not a basis for concluding that a public act addressed to that audience is more or less likely to incite the relevant emotion than a public act addressed to the general public. The audience is a section of the general public. We will make our assessment in relation to the likely effect of the public acts on that section of the public.
What do hatred, serious contempt and severe ridicule mean?
The words "hatred", "serious contempt" and "severe ridicule" are to be given their ordinary meaning. In KazakvJohnFairfaxPublicationsLimited [2000] NSWADT 77 at [40] the Tribunal set out their ordinary meaning as defined in the Macquarie and Oxford Dictionaries:
"hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford);
"serious" means "important, grave" (Oxford); "weighty, important" (Macquarie);
"contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);
"severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie);
"ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at" (Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie).
While Mr Ekermawi agreed that the three comments are more likely to incite hatred and serious contempt, he said they could also incite severe ridicule.
On the ground of race
The phrase "on the ground of" does not require the race of the person or group in question to be the sole or a substantial reason for the incitement. It is sufficient if race is one of the real, genuine or true reasons: JonesvTrad [2013] NSWCA 389 at [98]; Nicholls&NichollsvDirector-General, DepartmentofEducationandTraining(No2) [2009] NSWADTAP 20 at [37].
Context
Summary of relevant context
The context in which the words were spoken or broadcast is relevant when determining whether Mr Jones and Radio 2GB breached s 20C(1). That context includes:
(1) media reporting of events in Cronulla in the days before and including 8 December 2005;
(2) the subject matter of the discussion earlier in the broadcast;
(3) the immediate context in which the words were spoken and broadcast as set out in the passage from the transcript extracted above; and
(4) the nature of the public acts including that they were made on talk back radio.
Media reports of events in Cronulla
The respondents tendered newspaper articles from the Daily Telegraph and the Sydney Morning Herald published between 6 and 8 December 2005. The articles all relate to an alleged violent incident involving surf lifesavers at Cronulla Beach on 3 December 2005. We accept these newspaper articles as evidence of the kind of information that the ordinary person listening to Radio 2GB on the morning of 8 December 2005 would have known about the situation in North Cronulla at the time.
On 6 December 2005, two days before the broadcast, the Sydney Morning Herald published an article headed, "Police cuts blamed for beach gang attack". That report stated that:
The mother of one of three volunteer surf lifesavers bashed on Sunday afternoon by a gang claiming ownership of North Cronulla Beach says she fears for the safety of her 20-year-old son.
My son said there were four young Middle Eastern men. One of them said to his [19 year old] friend, 'Get off our beach.' They said, 'We are just here to protect you, to save you from drowning', then my son's friend got hit.
Police said last night that increased high visibility patrols would be introduced, including mounted police and officers on bicycles. But the Opposition spokesman on police, Andrew Tink, said Sunday's assault was a result of the reduction of police in the Cronulla area, with 18 officers not replaced in the past year.
On 8 December 2005 the Daily Telegraph reported that there was "racial tension" at Cronulla Beach and that on 7 December a "brawl" had erupted near the scene where two lifesavers had been attacked on the previous weekend. The article went on to say:
Officers appealed for calm as disturbing text messages circulating around the Sutherland Shire yesterday urged "Aussies" to take revenge against Legs and wogs.
This Sunday every Aussie in the Shire get down to North Cronulla to support Leb and wog bashing day
an SMS seen by The Daily Telegraph said.
Bring your mates and let's show them that this is our beach and they are never welcome ... let's kill these boys.
the message said.
Another article published by The Daily Telegraph on 8 December 2005 is headed, "Beach bashing arrest - Drowning taunt led to assault: police". The article included the following:
Police have made their first arrest over the bashing of three North Cronulla surf lifesavers as details emerged that the violence was not completely unprovoked.
The subject matter of discussions earlier in the broadcast
As well as the general background in relation to events that had been reported in the media, the context includes references Mr Jones made to the situation at Cronulla Beach earlier in the broadcast. That material is relevant to the extent that it casts light on what Mr Jones was talking about when he spoke to "Paul" and on whether the defences on which Mr Jones and Radio 2GB rely are made out.
Mr Jones referred to the text message circulating in the Sutherland Shire three times in the time slot before 5.49 am. We have reproduced below the transcript of what Mr Jones said immediately before about 5.49 am. The references to the text message are in bold:
Well, the government has woken up. I'll tell you what, I don't know why I've got to go on though for hours and hours before someone understands there's a problem. The government now understands they have a massive problem on their hands, and the problem is not just at Cronulla - sorry, this is law and order. There's 55 other problems they've got as well, but this is law and order; and we're talking about Cronulla Beach here, but your correspondence to me - and I should show my listeners who are here with me. I'll show you the volume of correspondence, just mammoth, and I thank our listeners because without you, we don't really know what's going.
But the listeners are saying one thing. They say: "Alan, you're talking about Cronulla Beach. I'm from Cronulla, I know, but let me tell you, this is at Hurstville, this is at Strathfield, this is at Fairfield, this is at Bondi, this is at Manly. This is suburban this stuff, and these people only know one thing. They hate us and they're going to take over."
Morris lemma has told police to use the full force of the law following more violence and the threat of violence at Cronulla Beach. One man was injured, another was arrested in a brawl yesterday afternoon. They sent everything in, police helicopters, PolAir, the lot. This happened outside the Cronulla Surf Club. An 18-year-old from Bankstown was released on bail after being charged over last weekend's attack. The mothers you would have heard on this program speaking to me. One man said in relation to yesterday's violence: "I saw a group of ethnic people come down as usual and try to start a fight."
He said, "They always do it." Then there are calls for calm. I just thought I had those - were always a bit confused when we get out here. I just was going to - I thought no time like the present, but get that for you later. I'll give you a bit of a snapshot of those emails. Just frightening what they're saying to me. I'll find them there in a moment, but he said, "They always do it," and your letters to me are saying - because, I mean, I can't be everywhere, but your letters to me are saying how this happens. They just come down and they think they're going to take over, and it's violent and there are numbers and it's brutal.
Well, what led to the police reaction yesterday was a text message, and they all text one another, but this was the locals texting. Why are the young ones doing all of this and we've got a lot of young ones sitting here at this early hour of the day here in my broadcast, but the young ones are doing this because they're saying, "Look, we're not going to have these people take over our suburbs or our beaches," and the message urges Aussies yesterday to take revenge against Lebs and wogs. Now, it's got pretty nasty when you start talking like this. It says: "This Sunday, every Aussie in the shire get down to North Cronulla to support Leb and wog bashing day."
This has got to an horrendous state where our law and order, our official law and order authorities, the police, have so abdicated the scene - after all, we had the commissioner telling us that what happened at Macquarie Fields was a disturbance, not a riot, and the riot is defined in the Crimes Act. His own Crimes Act which he ought to know defines specifically a riot where 12 or more people are involved in the kind of circumstances we saw at Macquarie Fields, and the police commissioner calls it a disturbance.
It's because these people have abdicated from their job - and I'm not blaming police because their job is impossible. Their job is absolutely impossible. They are told that human rights come before all this other stuff. The rights of the criminal are most probably more important than the safety of the community. So the youngsters have got to it and they've sent out this text message:
This Sunday, every Aussie in the shire get down to North Cronulla to support Leb and wog bashing day. Bring your mates and let's show them that this is our beach and they are never welcome. Let's kill these boys.
That's what we're heading to. That's got be stopped, and I say to all those young people hey, you're not in charge of law and order. We do have law and order people. Boys, don't get down there and come at this nonsense. This will only make things worse. Police are genuinely concerned now that the SMS is going to inflame things even further, and we're talking about vigilante retribution. The bloke was treated yesterday for facial lacerations - facial lacerations. They know where they're heading.
Let's understand one thing. It's almost a week since one of our own people - Rowan on my program was just minding his own business on the lawn, and he was almost stabbed to death. This is St Ives. That's not telling us this is North Cronulla. That was at St Ives. If we don't have enough police, get the police. But all this is inflamed at North Cronulla because the police weren't there when they should have been there. So now the young blokes are saying, "Come on all you Aussies. Get down here and take revenge." To all those young blokes, I can understand your problem but, boys, you can't do it like that. You can't play their game by trying to solve the problem their game has created. You can't play their game. We're not like that.
So streets in Cronulla yesterday were cordoned off. Police began a manhunt. They had a dog squad. They had the police helicopter in the air. They were everywhere. A man was taken to Miranda Police Station where he was expected to be charged with malicious damage. No lifesavers were involved in the brawl yesterday. The police are now preparing for the grim possibility that Cronulla will become a focus of tension between gangs made up of Middle Eastern descent and surfers. That's where we've come. That's where we got to. That's not just at North Cronulla. But at least it's highlighted the fact that this is a problem and it's a major problem, and let's start saying it as it is.
These are Lebanese gangs. Simple. Forget all this nonsense about not saying who they are, and they are violent and they hate. We're welcome - I keep saying I did a naturalisation ceremony the other night - not the other night, two weeks ago - where
We welcome people as citizens, and I had to make a speech, and I said being a citizen in Australia is just like having someone into your home. You say, We're quite happy to have you in our home. We're happy to share. We open the door. In you come. Look, sorry, one thing before you come in, we're a bit fussy about how you dress, and your feet have got to be clean. We're a pretty busy household in here. There are little jobs and tasks that have to be done.
So we're happy to share our hospitality with you in my home, but I might ask you to do a bit of the washing up or to clean up the floors from time to time and do one or two jobs, because that's the way we operate in this family. We all pull our weight and we pitch together. We don't have arguments, and we all get together. If those are the terms. You're welcome in my home any time. Come on Christmas Day, sit down at the table, but you're not going to sit down at the table and start spitting on my mother or putting your feet onto the table or bringing dog manure in with you. We've got some rules here.
It's no different for the nation. You're welcome in. I don't care where you came from. Yeah, if you're a nice person and you play our game, we're happy to have you, and we'll share our national family with you. These are people who aren't prepared to share the national family with us. That being the case, the family's got to do what a normal family does. It starts to discipline those people who don't behave according to the family standards, and that's where we are in terms of the family of the nation, and these people are fragmenting the family of the nation and not living according to the family's rules. 11 and a half to 6.
Nature of the public act
In this case, the public act is speaking and broadcasting on commercial radio using a 'talk back' format. The segment within which the three comments were made covered approximately 3 minutes while Mr Jones was talking to "Paul". Some of the comments include Mr Jones reading out a text message and quoting an email written by another person.
First comment
I'm the person that's led this charge here. No-one seemed to want to know about North Cronulla, and now it's gathered to this
By making and broadcasting this comment, did Mr Jones and/or Radio 2GB intentionally or unintentionally incite, (that is, spur on or encourage) ordinary members of the particular audience (people listening to 2GB at the relevant time) to hate, hold in serious contempt or severely ridicule a person or group of people on the ground of their race (Arab).
The comment was made in response to a caller, "Paul" who said, "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." Mr Jones' response is that he is the person who has "led this charge here" and "no-one seemed to want to know about North Cronulla, and now it's gathered to this." By using this phrase Mr Jones is expressing his view that he has led a movement or groundswell of opinion which has resulted in politicians and police taking some action in relation to the situation at North Cronulla.
This interpretation of the comments is supported by Mr Jones' earlier commentary relating to the situation in Cronulla. For several minutes prior to 5.49 am on the same morning (pages 2, 3 and 4 of the transcript), Mr Jones was talking about "law and order" saying that the government has a "massive problem on their hands." Mr Jones goes on to refer to the fact that, "Morris Iemma has told police to use the full force of the law following more violence and the threat of violence at Cronulla Beach." He interviews Mr Iemma later in the program.
The comments themselves do not have the effect of inciting ordinary members of his audience to hatred, serious contempt or severe ridicule against 'Lebs or whatever' on the ground of their race. Rather, the comment is about actions Mr Jones credits himself with taking to get politicians and police to do something about the situation in North Cronulla.
This part of the complaint is not substantiated and there is no need to consider the public interest exception in s 20C(2)(c).
Second comment
Vilification?
The second comment and the immediate context in which it was made are as follows:
... I can understand the young blokes who have sent that text message yesterday, "Come to Cronulla this weekend to take revenge," it says. It says:
Now, that's not the way. I do understand what you're saying, Paul, but we've just got to back off a bit here.
Mr Jones was reading a text message that had circulated widely throughout the Sutherland Shire and which the Daily Telegraph had "seen" and published on 8 December 2005.
We find that the likely effect of the words in bold on the particular audience is to incite hatred or serious contempt against a group of people (the group referred to as Lebs and wogs) on the ground of their race (Arab). The words 'revenge' and 'Leb and wog bashing day' in particular would be likely to have that effect. The text message from an anonymous source encourages listeners to take revenge on 'Lebs and wogs' by going to Cronulla and bashing them.
The immediate context does not change the likely effect of the text message on the particular audience. The audience is aware that Mr Jones is quoting from a text message. They are not his words and he does not necessarily agree with what is being suggested. Nevertheless, by reading and broadcasting the message, Mr Jones and Radio 2GB have engaged in a public act in breach of s 20C(1).
Does the public act come within the "fair report" exception?
A public act will not be unlawful if it is a "fair report" of a public act "referred to in subsection (1)", that is, a public act which is racially vilifying: s 20C(2)(a). The text message that Mr Jones read out on air and which 2GB broadcast, was itself a 'public act' because it had been communicated to the public by publication in the Daily Telegraph on the same day. To establish the exception, Mr Jones and 2GB must prove that reading and broadcasting the text message was a "fair report" of the Daily Telegraph's publication.
The fair report exception in the Act is expressed in general terms. In contrast, the racial hatred provisions of the RacialDiscriminationAct 1975 (Cth) limit the "fair report" defence to "a fair and accurate report of any event or matter of public interest". In defamation law, the exception is even more confined. Section 29 of the DefamationAct 2005 (NSW) provides for the defence of a "fair report" of "proceedings of public concern" including parliamentary and court proceedings. To be "fair" the report must be a substantially accurate summary. Defamation law can provide a useful guide in determining the meaning of the exceptions.
The defence in the Act has been discussed in only one case of which we are aware. In TradvJones&anor(No3) [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 unembellished with the reporter's own opinions about the facts." The Tribunal's conclusion about the fair report exception was set aside by the Appeal Panel: JonesandHarbourRadioPtyLtdvTrad [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 Appeal Panel did not need to consider the Tribunal's articulation of the test.
What must be 'fair' is the report of the public act. A reporter is free to add his or her own opinion as long as the opinion itself is not vilifying. The fact that Mr Jones' read the text message four times in approximately half an hour and added his own opinion does not mean that the report of the text message was not 'fair'. Contrary to the applicant's submission it does not matter whether Mr Jones' approach was balanced or biased in other parts of the broadcast. The question when applying the fair report exception is whether a public act reporting racially vilifying conduct that is itself a public act, is 'fair'. If it is, then the content of that report will not be an act of vilification by the reporter.
The text message was published in the Daily Telegraph on 8 December 2005, the same day as the broadcast. We do not accept the applicant's submission that because Mr Jones did not identify the source of the text message he cannot be seen as reporting the 'public act' of the newspaper publisher. It is sufficient if there has been a 'public act', such as the newspaper's publication of the text message. Although Mr Jones does not mention that he is quoting from the Daily Telegraph article, the words he uses are the words as published in that newspaper apart from the final words, "let's kill these boys".
Apart from omitting the words 'let's kill these boys' Mr Jones' reading of the text message was accurate. It was a 'fair report' of a public act which was, itself, in breach of s 20C(1). Similarly the broadcast of Mr Jones' words by Radio 2GB was also covered by the 'fair report' exception. The respondents have discharged their onus of proving that the publication of the text message is a 'fair report' of a public act which contravenes s 20(1).
Does the public act come within the 'public interest' exception?
Having found that the fair report exception applies, it is not necessary to consider the alternative exception, on which the respondents rely, that the comment was made "reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter." Nevertheless we will address that exception in case we are wrong about the applicability of the fair report exception.
For the public interest exception to apply the comment must be made both "reasonably" and "in good faith" for certain purposes. Reasonableness is an objective test. To be reasonable, the public act must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out: SunolvCollier(No2) [2012] NSWCA 44, Bathurst CJ at [35] and [41]. The requirement of "good faith," on the other hand, is, at least substantially, a subjective test.
In relation to the meaning of "good faith," the Chief Justice preferred the interpretation of this term given by the Nettle JA in Catch the Fires Ministries Inc, to the earlier interpretation by the Federal Court in BrophovHumanRights&EqualOpportunityCommission [2004] FCAFC 16; (2004) 135 FCR 105 at [197]. That view, expressed by Nettle JA at [92], was that:
The requirement that conduct has been engaged in bona fide for a genuine religious purpose within the meaning of s 11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose.
In summary the interpretation endorsed by Bathurst CJ was that "good faith" involves no more than a "broad subjective assessment" of the defendant's intentions. As the Chief Justice's view is binding on the Tribunal, we reject the respondents' submission, based on Bropho, that good faith is not 'just subjective'.
The onus is on the respondents to establish the reasonableness and bona fides of their actions. In summary, the respondents bear the onus of proving that they each had the subjectively honest belief that their public acts were necessary or desirable to achieve a public interest purpose. As neither respondent gave evidence, there is no basis on which the Tribunal can assess their beliefs and the exception has not been made out.
Third comment
Vilification?
Mr Jones read an email on air. The immediate context is set out below:
MR JONES: Yeah. I've just got a stack of emails in front of me. Let me read you this one:
Alan, it's not just a few Middle Eastern bastards at the weekend, it's 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 -
and I'll come to that later in the program -
reduced numbers and powers. I wish there was an answer.
Again, the question is whether, in context, Mr Jones and/or Radio 2GB (intentionally or unintentionally) incited, (that is spurred on or encouraged) ordinary members of the particular audience (people listening to 2GB at the relevant time) to hate, hold in serious contempt or severely ridicule a person or group of people on the ground of their race (Arab).
The email asserts that "thousands" of "Middle Eastern" people are "taking over" Cronulla beach and causing trouble. The Middle Eastern people (Arabs) are referred to using the very strong epithets "bastards" and "scum". The message is so strongly expressed that it is likely to have the effect of inciting hatred or serious contempt in an ordinary member of the audience, on the ground of the race (Arab) of the group (Middle Eastern 'bastards').
Does the public act come within the fair report exception?
For the respondents' public act in reading and broadcasting this email to come within the "fair report" exception, the writing or sending of the email must itself be a "public act". A public act includes "any form of communication to the public including writing": s 20B(a). At the hearing, counsel for the applicant conceded that the email that Mr Jones read out was a "public act" or, at least, that that kind of communication can amount to a public act.
On 24 October 2013, two days after the hearing had finished, the Tribunal wrote to the parties in relation to this concession seeking their views as to whether the concession had been made correctly. The applicant's lawyer responded saying that the concession was incorrect as a matter of law and sought leave to withdraw it. The respondents submitted that if the concession was made (no doubt on instructions) there is no reason why it should not be accepted. Whether or not the concession was correct as a matter of law, we grant leave to the applicant to withdraw it. Having invited the respondents to make any further submissions on the subject consequent on that withdrawal, there is no procedural unfairness to them.
The email was not in evidence. Consequently, apart from Mr Jones saying, "I've just got a stack of emails in front of me. Let me read you this one: Alan, . . .", we have no evidence that an email was sent or, if it was sent, who wrote it. On that basis, the respondents have not discharged their onus of establishing that the sending of the email is a public act.
Even if there was evidence that an email had been sent to either or both of the respondents, we are not satisfied that the sending of that email constitutes a 'public act'. The issue of whether a communication is a 'public act' has arisen in analogous situations including sending a letter to the editor of a newspaper, conducting an interview with a journalist and engaging in a conversation with colleagues at a workplace.
In GLBTI v Wilks [2007] QADT 27 a local newspaper published an edited version of a letter to the editor. The Queensland Anti-Discrimination Tribunal held at [13], that:
Section 4A of the Act defines "public act" as including "any form of communication to the public". Although sending correspondence to a private addressee through the post is not a communication to the public, providing correspondence to a newspaper editor for publication is in my opinion a form of communication to the public. The editor's publication of a version of the correspondence is self-evidently a communication to the public.
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 alleged that the publication of an article in the Hamilton Spectator, and the re-publication of parts of that article in other newspapers and online, constituted homosexual vilification. The Tribunal held at [26-27] that any person who makes statements to a journalist and gives express or implied permission for those statements to be published by the journalist commits a 'public act' as defined in the Act.
The test 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 conduct, the natural consequence of which was the publication of his words'. In those circumstances the comments were made 'otherwise than in private'.
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 considerations the Tribunal listed was:
. . .the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it.
Each case will turn on its own facts. The guiding principle is that a public act must come within the definition in s 20B. In this case the communication to the public was Mr Jones reading the email and Radio 2 GB broadcasting his voice. They were not public acts by the author of any email which either respondent may have received. The only act that the purported author performed was to write the email and send it to Mr Jones or Radio 2GB. There is no evidence of his or her intention in sending that email. We are not satisfied that the email was a "form of communication to the public," any other action "observable by the public" or the distribution of any matter to the public" as required by s 20B (emphasis added).
It follows that the respondents have not made out the fair report exception in relation to the email because sending the email, if such an email was sent, was not itself a 'public act'.
Does the public act come within the 'public interest' exception?
The alternative exception on which the respondents rely is that the comment was made "reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter."
Again, the onus is on the respondents to establish the bona fides of their actions. As neither respondent gave evidence, there is no basis on which the Tribunal can assess the respondents' beliefs.
Relief
Remedies sought
We have found the complaint to be substantiated, in part. Mr Ekermawi sought damages and an apology. The remedies which we may order under s 108(2)(a) and (d) include:
(1) an order that the respondents pay damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondents' conduct
(2) an order that the respondents publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
Damages
We do not accept the respondents' submission that Mr Ekermawi is not entitled to relief because he did not hear the broadcast. Mr Ekermawi is an Arab and was a member of the group who was vilified. He was travelling in Palestine and Israel at the time of the broadcast. While Mr Ekermawi did not hear the broadcast, he heard and saw reports in the media and on the internet about what Mr Jones had said. He saw the article by David Marr published in The Age of 13 December 2005 on line.
Decision makers have consistently acknowledged that the task of assessing damages for non-economic loss is a difficult one. There are no precise measurements. Wilcox J commented in HallvSheiban (1985) ALR 503 at [543] that merely because damages for matters such as injury to feelings, distress, and humiliation 'are not susceptible to mathematical calculation', this is not a basis for ignoring those injuries.
Mr Ekermawi gave evidence that he felt distressed and upset by the statements from the broadcast referred to in the David Marr article. Mr Ekermawi went on to say that:
Even though I was out of the country at the time the comments were made, I care for Australia and what happens in this country. I felt shock, as if the comments had been made to my face. I also felt very worried about what was happening in Australia. I felt concerned about what would happen to my wife and four children when we returned to Australia. I had a real fear that we would not be safe. I felt great shame that the comments could be broadcast in Australia and I was determined to come back to Australia to do something to protect my country from these comments being repeated.
...
The vitriolic comments broadcast on Mr Jones' show made me sick and nauseous. I was insulted and pained by what I felt was a call to arms against people of the Arab race and Muslim faith ...
I felt both very sad and very angry by the comments that were broadcast on 8 December 2005. After I had decided to make a complaint to the Anti-Discrimination Board, I found that it took me a long time to write the complaint. I kept telling myself that I should not write the complaint when I was angry, yet often, when I thought about the broadcast I became angry and too upset to write anything. I can remember there were many times when I got up in the middle of the night to go to the computer to try and finish the complaint only to be overcome by feelings of anger and sadness. I was so upset by what I was writing that I was often in tears.
Mr Ekermawi describes his feelings at the time but does not say that he has continued to experience those feelings. There is no evidence that he has required medical treatment or counselling as a result of hearing or learning of the offending publication. We accept Mr Ekermawi's evidence as to how he felt. While his evidence does not establish any economic loss, it does demonstrate that he was angry, upset and anxious. Those injuries were suffered, at least in part, "by reason of the respondents' conduct." The injuries are relatively mild.
In all the circumstances, compensation of $10,000 is appropriate.
Apology
Although the Tribunal has previously expressed some hesitation about the value of an apology, we are persuaded that Mr Jones and Harbour Radio Pty Ltd should apologise for reading the offending email. Mr Jones should broadcast that apology on air at a similar time to the time he read the email, that is between 6.00 and 6.30 am on a week day. The form of the apology should be as follows:
"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."
Mr Jones and Radio 2GB are to publish this apology within 28 days of the date of these reasons.
Costs
The respondents submitted that if the complaint was dismissed, the applicant should pay the respondents' costs. The complaint was substantiated, in part, so we will not consider that application.
The applicant also applied for costs. The respondent submitted that if the applicant was successful, there should be no order as to costs. The applicant was partially successful so we will consider the applicant's application for costs.
The relevant costs provision is s 88 of the AdministrativeDecisionsTribunalAct 1997: Civil and Administrative Tribunal Act 2013, Sch 1, cl 7(3)(b). The general rule is that each party pays their own costs: s 88(1). The Tribunal may only award costs "if it is satisfied that it is fair to do so having regard to" the matters listed in s 88(1A). The matters listed in that provision are:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
There are nine specific considerations listed and one general consideration - 'any other matter that the Tribunal considers relevant'.
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 (d)). The Appeal Panel also pointed out in that case at [7] that the neutral costs rule helps ensure that the Tribunal's proceedings are accessible: ADT Act, s 3(b). The Appeal Panel concluded at [8], and we agree, that the Tribunal should "exercise great circumspection around making first instance costs orders." The purpose of an award of costs is not to punish the unsuccessful party.
The matters on which the applicant relied as justifying an order for costs were:
(a) that the respondents has been responsible for prolonging unreasonably the time taken to complete the proceedings: s 88(1A)(b);
(b) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law: s 88(1A)(c);
(c) the nature and complexity of the proceedings: s 88(1A)(d); and
(d) any other matter that the Tribunal considers relevant: s 88(1A)(e).
Unreasonably prolonging the time taken to complete the proceedings
The applicant listed the following instances of the respondents unreasonably prolonging the time taken to complete the proceedings:
(a) unsuccessfully raising new grounds for opposing leave to proceed following remission of the matter from the Supreme Court; and
(b) appealing from the Tribunal's decision on the jurisdictional question.
When the matter was remitted by the Supreme Court, the Tribunal re-considered the question of whether to grant the applicant leave for the complaint to proceed: Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262. In those proceedings the respondents raised new grounds for opposing leave including:
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 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.
As the Tribunal said in those proceedings at [9], 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. The respondents were entitled to raise new grounds for opposing leave. If all those grounds had been weak or untenable, then raising them may have unreasonably prolonged the proceedings. The Tribunal rejected each of the respondents' submissions. Three of those submissions were weak, namely that the complaint was vague and uncertain, that there was no public act because Mr Ekermawi did not hear the broadcast and that Mr Ekermawi had not adduced "evidence" of the incitement. But they were not the only matters the respondents raised and there was no appreciable extra delay in addressing the less meritorious aspects of the respondents' case.
The fact that the respondents appealed against the Tribunal's decision on the 'jurisdictional question' did delay the time taken to complete the proceedings. The appeal was unsuccessful and the respondents were ordered to pay part of the applicant's costs: Jones v Ekermawi [2012] NSWADTAP 50. Even though the appeal was dismissed, the delay caused by the appeal does not justify a costs order being made in these proceedings.
Relative strengths of the claims
The applicant submitted that the question of whether it is fair to make a costs order given the relative strengths of the claims, is a matter for the Tribunal to determine in the light of our decision. We have found one of the three comments made by Mr Jones and broadcast by Radio 2GB to be racially vilifying. As the applicant's complaint was partially substantiated, and partially dismissed, any weakness in the respondents' case is not significant enough to justify a costs order.
The nature and complexity of the proceedings
According to the applicant, the case raised complex legal and factual questions about:
(1) the scope and application of the Tribunal's power to give leave for a complaint declined by the President of the Anti-Discrimination Board to proceed: Anti-Discrimination Act, s 92
(2) the scope and application of the 'standing' provision relating to vilification complaints: Anti-Discrimination Act, s 88;
(3) the scope and effect of the racial vilification provision: s 20C.
The proceedings have been procedurally and legally complex. But in this case, taking into account that both parties were represented by lawyers, the complexity of the proceedings does not make it fair to award costs.
Any other matter
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:
In a case of respondents with deep pockets manifestly prepared to take every conceivable legal point, as was apparently the case here, the absence of any prospect of reimbursement for legal costs could itself have a chilling effect on meritorious complainants coming forward, adequately prosecuting a fairly arguable appeal, or resisting an appeal.
This passage does not raise any additional matter that we have not already addressed.
In all the circumstances, it is not fair for the respondents to pay the applicant's costs.
Orders
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 should 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.
*********
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 08 May 2014
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