Ekermawi v Network Ten Pty Ltd

[2008] NSWADT 334

CITATION:	Ekermawi v Network Ten Pty Limited [2008] NSWADT 334
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sam Ekermawi RESPONDENT Network Ten Pty Limited
FILE NUMBER:	081092
HEARING DATES:	18 November 2008
SUBMISSIONS CLOSED:	18 November 2008
EXTEMPORE DECISION DATE:	18 November 2008
DATE OF DECISION:	16 December 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Racial vilification, definition of race, Islam
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3 Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Veloskey & Anor v Karagiannakis [2002] NSWADT AP 18
REPRESENTATION:	APPLICANT In person RESPONDENT D Gardner, solicitor
ORDERS:	Leave is refused.

1 Mr Ekermawi has applied for written reasons for a decision I gave orally on 18 November 2008. Below is the text of my oral decision with minor editorial changes.

2 Mr Ekermawi made a complaint to the President of the Anti-Discrimination Board on 4 April 2008 alleging racial vilification in relation to a broadcast by Channel 10 on the David and Kim programme. The content of that programme was provided to the Tribunal in a DVD format. I viewed the DVD before the hearing.

3 In a letter dated 22 August 2008, the President of the Anti-Discrimination Board declined Mr Ekermawi’s complaint on the ground that it had no substance. In those cases, the Tribunal needs to grant leave before the complaint can continue: Anti-Discrimination Act 1977, section 96. The Tribunal’s approach to deciding whether to grant leave was set out in the decision of Xu vSydney West Area Health Service [2006] NSWADT 3. I adopt these principles in relation to this case especially the points made at paragraphs 17 and 18.

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

4 In summary an applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success.

5 Mr Ekermawi alleged that there had been a breach of section 20C of the Anti-Discrimination Act 1977. That provision says that:

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

(2) 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.

6 The broadcast, which is the subject of this complaint, was an interview with Ayaan Hirsi Ali on 28 December 2008. The elements that Mr Ekermawi would have to prove in order to satisfy the Tribunal that there had been a breach of section 20C are firstly that there has been a public act; secondly, that that act incited hatred towards serious contempt for or severe ridicule of a person or group of people and thirdly, that the incitement was on the ground of race. There is no dispute in this case that the broadcasting of the interview is a public act as defined in section 20B of the Anti-Discrimination Act 1977. There is, however, dispute over the other two elements of racial vilification. In particular, Channel 10 says that even if there has been incitement of hatred in the interview it is not on the ground of race. Their argument is that section 4 of the Anti-Discrimination Act defines race to include “colour, nationality, descent and ethno-religious or national origan” and that Islam per se is not an ethno-religious origin. Rather, it is a religion and religion is not covered by the Anti-Discrimination Act.

7 In response to that argument Mr Ekermawi says that the race, which has been vilified in this case, is Islam and that just as Jews have been said to be protected by racial vilification provisions in the Federal jurisdiction, so adherence to Islam should also be protected. There does indeed seem to be a disparity in the way that courts have classified Jews as members of an ethno-religious group whereas Muslims, who come from diverse ethnic background, have not been characterised as a race. Nevertheless, the authorities are clear that Islam per se is not an ethno-religious origin under the provisions of the Anti-Discrimination Act. Those authorities include the case Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131. I adopt the reasoning of the Tribunal in that case at paragraphs 18 to 20.

8 It is up to Parliament, if it wishes to do so, to amend the Anti-Discrimination Act to protect religious belief from vilification. This Tribunal cannot interpret the legislation and give it a meaning any different from the ordinary or plain meaning of the words in the Act. For that reason alone I would refuse to give Mr Ekermawi leave for his complaint to go ahead because, in my view, there is little or no prospect of him succeeding on the ground of race. Even if he did have some prospect of success on the ground of race it is also my view that it would be highly unlikely that he would be able to prove the other element in dispute which is that the broadcast incites hatred, serious contempt or severe ridicule.

9 I have listened to the broadcast and while it is highly critical of Islam and makes certain generalisations, some of which may not be accurate, it falls short, in my view, of inciting hatred. It is insufficient for a public act to convey hatred; something more is required. The broadcast must positively incite hatred of another group. Authority for that proposition can be found in Veloskey & Anor v Karagiannakis [2002] NSWADT AP 18 at 21 where the Appeal Panel held that the word “incite” has invariably been given its ordinary English meaning, namely to urge, spur on, stir up, animate, stimulate or prompt to action. As I said, it has been held that it is not sufficient if words merely convey hatred or express serious contempt or ridicule. Neither is it necessary to show that there has been any intention to incite hatred. The test is whether the ordinary, reasonable viewer would understand from the public act that he or she is being incited to hatred towards serious contempt for or severe ridicule of a person on the ground of race.

10 I can fully understand Mr Ekermawi’s concerns about the highly critical way in which Ayaan Hirsi Ali portrayed Islam and her interpretation of the way that religion was being conveyed to children and others. However, the Anti-Discrimination Act does not prevent robust criticism, it does not prevent inaccuracies and it does not prevent generalisations. It only prevents a much more serious type of conduct and that is incitement to hatred, serious contempt or severe ridicule which, in my view, a Tribunal would not find from this broadcast. For those reasons leave is refused.