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…

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.

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Details

Case: [2008] NSWADT 334
Decision Date: 16 December 2008

CaseChat Overview and Summary

In the matter of Ekermawi v Network Ten Pty Ltd, the respondent, Network Ten, sought leave to appeal against the decision of the Federal Court of Australia that dismissed its application for a declaration that certain conduct of the appellant, Ekermawi, amounted to racial vilification under section 18C of the Racial Discrimination Act 1975 (Cth). The respondent's conduct included broadcasting content on its television network that the appellant found offensive due to his Islamic faith. The appellant took legal action against the respondent, alleging racial vilification, and the respondent sought to have the matter dismissed on the grounds that the appellant's faith did not constitute a 'race' under the Act.

The central legal issue before the court was whether the appellant's Islamic faith could be considered a 'race' for the purposes of section 18C of the Act. This required the court to examine the definition of 'race' in the context of the Act and consider whether the appellant's Islamic faith met the criteria to be classified as a race. Additionally, the court had to determine whether the conduct in question was capable of vilifying the appellant on the basis of his race.

The court found that the appellant's Islamic faith did not constitute a 'race' within the meaning of the Act. The court reasoned that 'race' refers to physical characteristics, ancestry, national or ethnic origin, colour, or descent, rather than religious beliefs. The court held that the term 'race' in section 18C is not intended to encompass religious groups or beliefs. Consequently, the respondent's conduct could not be considered racial vilification under the Act. The court dismissed the respondent's application for leave to appeal, holding that the appeal had no reasonable prospect of success. The court's reasoning was based on the interpretation of 'race' in the context of the Act and the absence of any legislative intent to include religious groups within its scope.

Orders

Orders of the court

Leave is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.