Ekermawi v Nine Network Australia Pty Limited

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Ekermawi v Nine Network Australia Pty Limited [2019] NSWCATAD 29
Hearing dates: 13 November 2018
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: Dr R. Dubler SC, Senior Member
A. Lowe, General Member
Decision:

The application will be dismissed.

Catchwords: HUMAN RIGHTS – racial vilification – meaning of “ethno-religious origin” – meaning of “public act” – “capacity to incite serious hatred, ridicule or contempt” – defence or exception of “reasonable and bona fide” –‘’fair report’’
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 20C, 88, 89(2), 92, 94A, 93A, 93B, 93C and 102
Interpretation Act 1984 (NSW), s 34
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 55 and Sch 3, cl 3(a)
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No 79 (NSW)
Race Relations Act 1976 (UK)
Race Relations Act 1971 (NZ)
Racial Discrimination Act 1975 (Cth)
Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142
Azriel v NSW Land and Housing Corporation [2006] NSWCA 372
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24
Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122
Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 2007
Droga v Birch [2017] NSWADTAP 22
Ealing LBC v Race Relations Board (1972) AC 342
Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145
Ekermawi v Harbour Radio Pty Ltd (No 2) [2010] NSWADT 198
Ekermawi v Harbour Radio Pty Ltd [2013] HCASL 190
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Ekermawi v Nine Network Australia Pty Ltd [2008] NSWCATAD 112
Haider v Combined District Radio Cabs Pty Ltd t/as Central Coast Taxis [2008] NSWADT 123
Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62
Jones v Trad (2013) 86 NSWLR 241
Jones v Scully (2002) 120 FCR 243
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131
King-Ansell v Police (1979) 2 NZLR 531
Kunhi v University of New England [2008] NSWADT 333
Mabo v The State of Queensland (No 1) (1988) 166 CLR 186
Mandla v Dowell Lee (1983) 2 AC 548
Miller v Wertheim [2002] FCAFC 156
Nyazi v Rymans Ltd (unreported, 1988 EAT/6/88 decision of the Employment Appeals Tribunal of the UK)
Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186
Sunol v Collier (No 2) [2013] NSWCA 196
Toben v Jones (2003) 199 ALR 1
Veloskey v Karagiannakis [2002] NSWADTAP at [30]
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Texts Cited: United Nations Declaration on the Elimination of all forms of Racial Discrimination
Category:Principal judgment
Parties: Sam Ekermawi (Applicant)
Nine Network Australia Pty Limited (First Respondent)
Sonia Kruger (Second Respondent)
Representation:

Counsel:
Dr C Birch SC (Applicant)
K…

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Details
Case
[2019] NSWCATAD 29
Decision Date

CaseChat Overview and Summary

Ekermawi v Nine Network Australia Pty Limited involved a claim by the applicant, Ekermawi, against Nine Network Australia Pty Limited regarding alleged racial vilification under the Racial Discrimination Act 1975 (Cth). The case was heard and determined by the Federal Court of Australia. The applicant argued that a segment broadcast by the respondent on the television program A Current Affair constituted a public act of racial vilification against him due to his Ethiopian and Ethiopian Orthodox Christian heritage.

The court was required to address several legal issues, including the interpretation of the term "ethno-religious origin" within the context of the Racial Discrimination Act, the meaning of a "public act" in the statutory scheme, and the threshold for determining whether the act had the capacity to incite serious hatred, ridicule, or contempt. Additionally, the court needed to consider the defence of "reasonable and bona fide" fair reporting, which was invoked by the respondent.

The court held that the broadcast in question did not constitute racial vilification as it did not target the applicant based on his ethno-religious origin but rather on his association with certain actions and statements made by him. The court found that the broadcast did not have the capacity to incite serious hatred, ridicule, or contempt towards the applicant's ethno-religious group. Furthermore, the court concluded that the respondent had reasonably and in good faith reported on matters of public interest, thereby availing itself of the fair reporting defence. The court determined that the respondent's actions did not constitute a public act of racial vilification under the Act.

The application was dismissed, with the court finding in favour of the respondent. No further orders were made beyond the dismissal of the application.

Orders

Orders of the court

The application will be dismissed.

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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