Ekermawi v Nine Network Australia Pty Limited

[2019] NSWCATAD 29

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 Eastman SC (First and Second Respondents)   Solicitors: Kings Law Group (Applicant) Baker McKenzie (First and Second Respondents)
File Number(s):	2018/00056061
Publication restriction:	Unrestricted

REASONS FOR DECISION

Introduction

1. The Today show is a daytime television programme produced by the Nine Network. Ms Sonia Kruger is one of the presenters on the programme. On 18 July 2016, in the wake of a terrorist attack in Nice, France, approximately 75,000 people were viewing the show. They watched as Ms Kruger spoke with co-presenter Ms Lisa Wilkinson about whether Australia’s borders should be closed to Muslims. Ms Kruger said:

“Or is it actually really simple? I mean, personally, I think Andrew Bolt has a point here, that there is a correlation between the number of people who, you know, are Muslim in a country and the number of terrorist attacks. Now I have a lot of very good friends who are Muslim, who are peace-loving who are beautiful people, but there are fanatics. And does the population and the correlation between those two things, is it having an impact? I mean, if you look at Japan, Japan has a population of 174 million. It has a hundred thousand people in that country who are Muslim. We never hear of terrorist attacks in Japan. Personally I would like to see it stopped now for Australia. Because I want to feel safe, as all of our citizens do, when they go out to celebrate Australia Day. And I'd like to see freedom of speech and Lisa I think, you know we're seeing journalists threatened... .”

...

‘’Lisa Wilkinson: … But just to clarify Sonia, are you saying that you would like our borders closed to Muslims at this point?

SK: Yes I would. I would. Because I think at this point...

LW: Which is the Donald Trump approach...

SK: I think we have something like 500,000 now in our country and I... Well perhaps it is... but for the safely of the citizens here, I think it's important.’’

2. The day after the broadcast, Ms Kruger made some further comments on the Today show. She repeated her view about “the correlation between the Muslim population of certain countries and the number of subsequent terrorist attacks”. Ms Kruger acknowledged that the views she had expressed the previous day “may have been extreme” but said that she wanted “to make it very clear that (she) has complete respect for people of all races and religions”. 

3. The matter which needs to be determined by the Tribunal is as follows – did Ms Kruger’s remarks amount to “racial vilification’’ in contravention of the Anti-Discrimination Act 1977 (NSW) (“ADA”)?

The Complaint

4. Mr Ekermawi (the Applicant) complains that the totality of the relevant statements made by Ms Kruger (the Second Respondent) on Nine Network Australia Pty Ltd’s (the First Respondent) Today program on 18 July 2016 racially vilified Australian Muslims. He claims both Nine Network Australia Pty Ltd (“Nine Network”) and Ms Kruger racially vilified Australian Muslims by broadcasting and making the statements during the television broadcast.

5. Mr Ekermawi describes himself as an Australian Muslim. He is a Muslim and an Australian citizen. He has lived in Australia since 1960.

6. The transcript of the relevant section of the Today program of 18 and 19 July 2016, as supplied by the Nine Network, is reproduced at the end of this Decision at Annexure 1 and 2 respectively. We note that we have also viewed a video of the same section of the Today program of 18 and19 July 2016.

7. In his original complaint to the Anti-Discrimination Board, Mr Ekermawi described the group he claims was racially vilified in various ways, including: Ethnic Australian Muslims, Ethnic Muslim Australians, Ethnic-Muslims segments of our society, Australians Ethnic-Muslims communities, Ethnic-Muslims as a group, Muslim Australians. 

8. On 29 May 2018, the Tribunal heard an application from the Nine Network to summarily dismiss the case without a hearing, primarily on the basis that, however described, the group Mr Ekermawi claims was vilified is not a “race” as defined in the ADA: Ekermawi v Nine Network Australia Pty Ltd [2018] NSWCATAD 112. The definition of “race” in the ADA includes the term “ethno-religious origin”. The Tribunal declined Nine Network’s application and allowed the case to proceed to hearing.

9. The Tribunal at [14] stated that it is important to identify the subject matter of the complaint because, unlike most applications that can be lodged with the Tribunal, complaints alleging a breach of the ADA must be lodged first with the President of the Anti-Discrimination Board. When the President refers a complaint to the Tribunal under s 93A, s 93B or s 93C, it is treated as an application in the Tribunal’s general jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW), s 28, s 29 and Sch 3, cl 3(a).

10. The Tribunal described the subject matter of the proceedings at [20]-[21] as follows:

‘’[20]   Mr Ekermawi submitted that the subject matter of his compliant includes that:

(1)   on 18 July 2016 each of the Respondents racially vilified a group described as ethnic Muslim Australians;

(2)   this had been done on a broadcast on Channel 9 through the words spoken by Ms Kruger on the Today show;

(3)   some of the words spoken by Ms Kruger were set out in the letter of complaint, but the entire transcript was not provided;

(4) the conduct was said to be in breach of s 20C of the ADA;

(5) Ethnic Australian Muslims are said to be a “race” as defined in the ADA.

[21]   For the purposes of these proceedings, we agree with this characterisation of the subject matter of the complaint.’’

11. The Tribunal also stated that it understood the relevant group to be “Muslims living in Australia” and, at [18], noted that although Ms Kruger commented on the broadcast the following day, the second broadcast is not relied on as a separate public act in breach of the racial vilification provisions.

12. The case was allowed to proceed on the basis that Mr Ekermawi’s assertion that Muslims living in Australia have an ethno-religious origin and “is the targeted group is not an untenable proposition” or so lacking in merit that the complaint should be dismissed without a hearing (Ekermawi v Nine Network Australia Pty Ltd [2018] NSWCATAD 112 at [4] and [24]).

13. On 12 July 2018, Mr Ekermawi filed Points of Claim. Mr Ekermawi there refers to the racially vilified group as “Australian Nationals who profess the religion of Islam and engage in Islamic religious and cultural practices (Australian Muslims)”: see [2] of the Points of Claim.

14. During the full hearing, Mr Ekermawi referred to the allegedly vilified group as “Australian Muslims”. The Nine Network and Ms Kruger referred to the group by the term the Tribunal used in the hearing on 29 May 2018, that is, as “Muslims living in Australia”. They objected to any different description of the alleged ‘race’ said to be vilified. They also objected to any attempt by the Applicant to travel beyond the previously identified sections of the broadcast of 18 July 2016. In reply, the Applicant was content to agree with this description of the subject matter of the application.

15. It is accurate to say that in the original complaint the description of the targeted group was "ethnic Muslim Australians". The difficulty arises because such a description could be said to encompass either Australian citizens or nationals who profess a belief in Islam, as described in the filed Points of Claim, or Muslims who are living in Australia.

16. By and large, we accept it is for the Applicant to define what is the alleged targeted group. We are inclined to think that the Applicant could have pursued in his application before us either or both of these descriptions, provided this was done with clarity and proper notice to the Respondents. An issue may have arisen as to whether the remarks of Ms Kruger, which was targeting simply the "Muslim population" in Australia, only could be referring to those who live here, as opposed to Australian nationals who are also Muslims.

17. In the result, we do not need to consider this issue any further given that in the submissions before us at hearing the Applicant was content to have his application dealt with on the basis that the targeted group was "Muslims living in Australia". In the balance of this decision sometimes we refer to "Muslim Australians" or "ethnic Muslim Australians" or even the Muslim community in Australia and the like. In each case, we are still referring to "Muslims living in Australia".

18. In the result, the Tribunal will take the subject matter of the complaint to be as previously summarised by the Tribunal and as described above.

The Law

19. ‘Racial vilification’ is defined in section 20C (1) of the ADA:

‘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.’

20. ‘Public act’ is defined in section 20B of the ADA 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.’

21. Section 20C (2) lists the exceptions to the definition of public act. A public act will not be unlawful if it is:

‘(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.’

22. ‘Race’ is defined in Section 4 of the ADA:

‘"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.’

The Issues – What must Mr Ekermawi demonstrate to succeed in his complaint?

23. The following issues rise for determination by the Tribunal:

1. Did the Nine Network and Ms Kruger engage in a public act in respect of the broadcast of the Today program on 18 July 2016?

2. Are Australian Muslims, or Muslims living in Australia, a group that has an ethno-religious origin?

3. Did Ms Kruger’s statements made on the 18 July 2016 Today program have the capacity to incite hatred, severe contempt or serious ridicule on the ground of ethno-religious origin?

4. Were Ms Kruger’s statements a fair report of a public act?

5. Were Ms Kruger’s statements a public act, done reasonably and in good faith for purposes in the public interest, including discussion or debate about the expositions of any act or matter?

Did the Nine Network and Ms Kruger engage in a public act in respect of the broadcast of the Today program on 18 July 2016?

Was the broadcasting of Ms Kruger’s statements by the Nine Network on the 18 July 2016 Today program a public act?

24. This is not in dispute. The Nine Network agrees that its broadcasting of Ms Kruger’s statements was a public act within the meaning of s.20C of the ADA. Section 20C of the ADA includes both broadcasting and telecasting in its list of forms of communication to the public that are public acts.

Did Ms Kruger engage in a public act when she made her statements on the 18 July 2016 Today program?

25. While it is admitted that the Nine Network engaged in a public act in respect of the broadcast of 18 July 2016, the Respondents deny that there was a separate public act by Ms Kruger separate from the act of broadcast made by the Nine Network. The Respondents submit that simply “making” comments is not sufficient to engage s.20B of the ADA. Section 20B(a), the Respondents submit, is concerned with the form of communication, not the content, for the purpose of identifying the person who did the public act.

26. By his Points of Claim, Mr Ekermawi relies upon s.20B(a) of the ADA to claim that Ms Kruger also engaged in a “public act”. Relevantly then, the section at (a) defines “public act” to include any form of communication to the public, including speaking. It is obvious that Ms Kruger during the relevant Today program was communicating to the public by speaking on the Nine Network program. As stated by Ward JA in the NSW Court of Appeal decision of Jones v Trad (2013) 86 NSWLR 241 at [43]-[44]:

“43. Section 20B(a) is in very broad terms (“any form of communication to the public”). It makes clear that a communication to the public for the purposes of s.20C may take one of a number of forms. Relevantly, it includes “speaking” as well as “broadcasting”. Even if the concept of broadcasting in that section is limited to the technical act of making the radio transmission to the public by use of the necessary electronic equipment, whether that person be authorised by a statutory licence or not, rather than (as I consider would be most consistent with the ordinary usage of the word “broadcasting”) including the conduct of someone publicly speaking by the medium of a licensed broadcaster’s equipment, there is nothing in s.20C to suggest that there may not, in the course of particular conduct of which complaint is made, be two separate contraventions.

44.   In the present case, Mr Jones spoke the offending words into a microphone or other sound transmission equipment for the purpose of those words being broadcast almost simultaneously to his radio audience. Harbour Radio, as is conceded by it, played a different role in the technical act of broadcasting Mr Jones’ speech by way of radio transmission. The fact that, by reason of the technical act of making the radio transmission to the public, Harbour Radio has engaged in a public act by making the Schedule A broadcast, does not in my view preclude a finding that at the same time Mr Jones was engaged in a separate public act when speaking the words for public broadcast.”

27. The Respondents accepted the legal principles enunciated above but contended that there was an absence of evidence that would allow the Tribunal to find that Ms Kruger’s involvement or words spoken amounted to a form of communication to the public by speaking. It is true that the evidence before the Tribunal substantially involves evidence of the broadcast itself and not any particular evidence about Ms Kruger’s role or contract for the Nine Network. However, the Tribunal has before it the actual broadcast and it has watched that broadcast during the hearing of the complaint. The plain inference to be drawn from the broadcast viewed by the Tribunal is that Ms Kruger was a presenter on the Today program engaged in a discussion or “speech” via the equipment of the Nine Network for the purpose of those words being broadcast, if not instantaneously at least contemporaneously during the course of that day, to Nine Network’s free-to-air television audience.

28. Accordingly, the Tribunal finds that Ms Kruger has engaged in a public act within the meaning of s.20C(a) of the ADA when she spoke the words the subject of the complaint on the Today program.

29. Further, the Tribunal notes that the First Respondent in its Response admits that it publicly broadcasted on its free-to-air channels in Australia the material the subject of the complaint.

Are Australian Muslims, or Muslims living in Australia, a group that has an ethno-religious origin?

Meaning of “ethno-religious origin”

30. As previously mentioned, s.4 of the ADA defines “race” so as to include “ethno-religious” origin. “Racial vilification” under s.20C(1) of the ADA is not satisfied unless “race” was the reason or ground for the requisite degree of ill-feeling being incited: Veloskey v Karagiannakis [2002] NSWADTAP at [30]; Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [114].

31. The Respondents submit that “Muslims living in Australia” do not fall within the definition of persons of an ethno-religious origin, and thus are not a race, for the purpose of s.4 of the ADA. According to the Respondents, the description of “Muslims living in Australia” is to persons who may or may not be adherents of Islam or to persons holding certain religious beliefs rather than to an ethno-religious origin.

32. The extent to which the racial vilification and discrimination provisions of the ADA extend to groups such as Jews, Muslims and Sikhs remains unclear at the current time. The expression “ethno-religious origin” was introduced into the ADA by the Anti-Discrimination (Amendment) Bill 1994. On 4 May 1994 the Hon. J. L. Hannaford MLC, NSW Attorney-General, in the Second Reading Speech said:

“Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of “race” will include concepts of descent and ethno-religious origin … The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present, it is not clear whether such groups are covered by the racial vilification discrimination provisions, although this would appear to be the position at common law. The amendment will make it clear that vilification or discrimination against a person on the basis of ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with existing judicial authority from both New South Wales and overseas which indicates that ethno-religious background is included in the legal concept of race.”

33. By virtue of s.34 of the Interpretation Act 1984 (NSW), the Tribunal may use this Second Reading Speech to assist in determining the meaning of the provision, even though that speech is not determinative of the proper legal construction of the provision. The Second Reading Speech will have a role to play because it can be accepted that the phrase “ethno-religious origin” does not have a clearly received ordinary meaning, and is obscure, or potentially ambiguous. Further, in this context the use of dictionaries is not likely to be particularly helpful. We agree with the proposition that “the statutory concepts of race, origin, ethnicity, ethno-religious are notoriously muddy, slippery and (to say the least of it) imprecise”: see Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62 at [13]. As was pointed out in that decision, a number of dictionaries do not recognise the term “ethno-religious”, let alone “ethno-religious origin”: Trad (No 2) at [16].

34. We note that in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 the Administrative Decisions Tribunal (“ADT”) had to consider the meaning of the term “ethno-religious” in the context of the ADA. It stated that the Attorney-General’s Second Reading Speech and the examples there given of Jews, Muslims and Sikhs “are not very useful aids to interpretation”: at [18]. The Tribunal stated (at [18]-[20]):

“18.   It is not even clear that Muslims, to use the words of the Attorney-General "share a common racial, national or ethnic origin". While Muslims are all adherents to Islam, they do not share common racial, national or ethnic origins. There are Muslims in every continent and of many different racial and ethnic backgrounds. It is common knowledge for example that there are South Asian, South-East Asian, African, Middle-eastern and European communities of Muslims. Many African-Americans, most famously Muhammed Ali, are Muslims. No doubt within those broader groupings there are further ethnic sub-groups which nonetheless adhere to Islam. Hence the ambiguity in referring to Muslims as a single "ethno-religious" group. For this reason, the examples given in the Second Reading Speech are not very useful aids to interpretation.

19.   It is a fallacy to refer only to ethnicity or to religion in determining whether or not a person belongs to an "ethno-religious" group. It is a short-hand generic description of a complex type of cultural grouping which has ethnic, cultural, historical and religious aspects all entwined. Better examples of what is meant by an "ethno-religious" group than were given in the Second Reading Speech might be, for example, Javanese Christians, Bosnian Muslims or Northern Irish Catholics.

20.   It therefore follows that, in our view, there is no very helpful extrinsic material to which we have been referred by either party to construe the meaning of the term. It accordingly falls to us to attempt a definition. We do so, among other things, by taking account of the objects of the Act. In our opinion, the term signifies a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices.”

(Emphasis original).

35. The Tribunal is not bound by the doctrine of precedent or stare decisis to follow earlier decisions of the Tribunal or the ADT. However, it has been the practice of the Tribunal to follow earlier decisions to maintain confidence in the consistent decision-making of the Tribunal: see, for example, Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [60]-[62], Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 2007 at [107].

36. There is, however, no clear line of authority as to the correct approach to the interpretation of the term “ethno-religious … origin”. Doubt has been expressed by the Appeal Panel of the Administrative Decisions Tribunal as to the correctness of the interpretation given by the Administrative Decisions Tribunal in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20] in the subsequent decision of Trad (No 2): see also Ekermawi v Nine Network Australia Pty Ltd [2018] NSWCATADT 112 at [37]. At [19] the Appeal Panel in Trad (No 2) stated that the inclusion of the term “ethno-religious … origin” meant that:

”some religious groups with sufficient cultural characteristics to amount to part of their identity were to be afforded protection as if they were of the same race or had a common ethnic origin, even though Parliament was apparently assuming (rightly or wrongly) that they could or might not fairly be seen simply as groups having a common ethnic origin.”

.

37. The proposition is that, in the context of the broadcast, Muslims living in Australia are a “race”. To rule on this proposition requires consideration of the various different previous authorities dealing with the meaning of the term “ethnic, ethno-religious … origin”.

38. Prior to World War II the expression “ethnic origin” appears not to have been used in any international or domestic legal text. The concept of “ethnic origin” was introduced in 1963 by Article 2(1) of the United Nations Declaration on the Elimination of all forms of Racial Discrimination. It provides:

“No State, institution, group or individual shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons, groups of persons or institutions on the ground of race, colour or ethnic origin.”

39. In 1965, the United Nations concluded the International Convention on the Elimination of all forms of Racial Discrimination (“CERD”). Article 1(1) of the CERD defines “race discrimination” in the following terms:

“In this Convention, the term racial discrimination shall mean any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on any equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

40. The expression “ethnic origin” is not defined in the CERD.

41. In 1968 the Race Relations Act (UK) was enacted and included discrimination on the ground of “ethnic … origins” by s.16(1). Lord Simon in Ealing LBC v Race Relations Board (1972) AC 342 at 362 considered how the concept of “race” is more than merely a biological or scientific concept, saying:

“Moreover, “racial” is not a term of art, either legal or, I surmise, scientific. I apprehend that anthropologists would dispute how far the word “race” is biologically at all relevant to the species amusingly called homo sapiens.

…

This is rubbery and elusive language … understandably when the draftsman is dealing with so imprecise a concept as “race” in its proper sense and endeavouring to leave no loophole for evasion.”

42. In 1971 New Zealand enacted the Race Relations Act 1971 (NZ). It was expressed to be an act to implement the CERD. It included the concept of “ethnic origins”. This was followed in 1975 by the Racial Discrimination Act 1975 (Cth) (“RDA”) following upon Australia’s ratification of CERD on 30 January 1975. It uses the concept of “ethnic origin” in s.9 which was also followed in s.3(1) of the Race Relations Act 1976 (UK) (“RRA”). In 1977 New South Wales enacted the ADA and by s.6(1), “race” included “ethnic … origin”. Each of these pieces of legislation did not include any definition of the concept “ethnic origin”.

43. The first significant judicial consideration of the phrase “ethnic origin” was by the New Zealand Court of Appeal in the context of the Race Relations Act 1971 (NZ) in King-Ansell v Police (1979) 2 NZLR 531. The Court had to consider whether Jews in New Zealand shared a common “ethnic origin”. Richardson J said at 543:

“…a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”

44. According to Richardson J (at 542), the:

“…real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.”

45. It is important to note the nature of the expert evidence in support of the claims that Jews are an ethnic group. It was noted in the case of Jews in New Zealand and worldwide that members of the Jewish people are of diverse national and racial origins: at 534, 543. According to the expert evidence, ‟There are black Jews, there are Asian Jews, there are European Jews. They are of vastly different origins, that is racially″: King-Ansell v Police at 534.

46. The New Zealand Court of Appeal held that Jews in New Zealand formed a group with common ethnic origins within the meaning of the legislation. The passage at 543 was approved by the House of Lords in Mandla v Dowell Lee (1983) 2 AC 548 at 564 and in several other cases such as Jones v Scully (2002) 120 FCR 243 at [111]-[112] and Miller v Wertheim [2002] FCAFC 156 at [14].

47. The issue in the decision of Mandla v Dowell Lee was whether or not Sikhs formed a racial group with an “ethnic origin”. The broadest interpretation of the concept of “ethnic origin” was provided by Lord Fraser, who referred to the 1972 supplement to the Oxford English Dictionary defining “ethnic” as “pertaining to or having common racial, cultural, religious or linguistic characteristics, esp. designation of racial or other group within a larger system;…”. Lord Fraser at 562 said:

“For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.

Some of these characteristics are essential, others are not essential, but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to those two essential characteristics, the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors (4) a common language, not necessarily peculiar to the group (5) a common literature peculiar to the group (6) a common religion different from that of neighbouring groups or from the general community surrounding it (7) being a minority or being in a less predominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.”

48. In 1994 the Commonwealth Government introduced the Racial Hatred Bill. The following appears at pp.2-3 of the Explanatory Memorandum:

“The terms “ethnic origin” and “race” are complementary and are intended to be given a broad meaning.

The term “ethnic origin” has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell-Lee [1983] 2 AC 546 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of “ethnic origin” as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of the characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broader spaces for protection of peoples such as Sikhs, Jews and Muslims. The term “race” would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims.”

49. In the same year (1994) the expression “ethno-religious origin” was introduced to the ADA. We have already set out the relevant parts of the Second Reading Speech at [32] above.

50. The reference to the “position at common law” is not clear and is not entirely accurate. It would appear that the Attorney-General was referring to the earlier decisions referred to above and also referred to by the Attorney-General of the Commonwealth dealing with NZ and UK statutes, being King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell-Lee [1983] 2 AC 546 (HL) per Lord Fraser at p.562. A reasonable interpretation of the Attorney-General’s remarks is that the broader concepts of ethnic origin referred to in those decisions should apply under the ADA or, if a common religious origin is involved, those decisions can also assist in interpreting the term ethno-religious origin: see Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [75].

51. Since 1994 it has frequently been accepted that Jews in Australia have “ethnic origins or ethno-religious origins”. In Miller v Wertheim [2002] FCAFC 156 at [14], a Full Court said, on the basis of King-Ansell, that it can readily be accepted that Jewish people in Australia can comprise a group of people with an ‘‘ethnic origin’’ for the purposes of the RDA.

52. Based on evidence that Jewish people see themselves as a distinct community; that Jews are bound by common customs and beliefs; have a common language; and share other common characteristics, Hely J found Jewish people in Australia are a group of people with an ‘‘ethnic origin’’ for the purposes of the RDA: see Jones v Scully [2002] 120 FCR 243 at 272, [113].

53. The Appeal Panel in Droga v Birch [2017] NSWADTAP 22 at [35] stated that “persons who identify themselves as Jewish and see themselves as part of the “Jewish community” constitute a race” for the purposes of the definition as set out in s.4 of the ADA. In Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [75], Basten JA said:

“It has long been accepted that Jews constitute a “race” for the purposes of this definition: see King-Ansell v Police (1979) 2 NZLR 531 based upon the phrase “ethnic origins”. Any possible doubt on this score was removed by the inclusion in 1994 in the ADA of the term “ethno-religious”: Parliamentary Debates (NSW), Legislative Council, 4 May 1994, p 1827.”

54. The attempt to spread these decisions to Muslims has met with mixed success. For example, we were referred to the decision of Nyazi v Rymans Ltd (unreported, 1988 EAT/6/88 decision of the Employment Appeals Tribunal of the UK). The Tribunal found that Muslims were not an ethnic group because the Muslim faith was widespread covering many nations, colours and languages. Further, The Tribunal held that the reason for the alleged discrimination was on the basis of religion, not “ethnic origin’’.

55. Similar remarks were made by the ADT in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131, which we have already referred to above. The approach in Khan has been applied and followed in numerous Tribunal decisions. Many cases have failed on either the ground that there was insufficient evidence that Muslims in Australia generally form an ethno-religious group or, alternatively or further, that, correctly characterised, the alleged conduct was on the ground of religious discrimination, not racial.   Many of those cases were summarised in Alchin v Rail Corporation NSW [2012] NSWADT 142 at [43]–[46]:

43 The questions of the construction of the words "ethno-religious ... origin" in the definition of "race" and whether "on the ground of race" includes "on the ground of being a Muslim" have been considered in a number of cases under the ADA. In Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20] the Tribunal held that "ethno-religious ... origin" signifies "a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices". On this basis, the Tribunal concluded at [21] that:

"it is insufficient for the Applicant merely to assert his Muslim faith to fall within the statutory definition [of race]".

44 In Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 the Tribunal accepted what had been decided in Khan and went on to hold in relation to Mr Ahmed's claim of racial vilification in which he had only identified being a Muslim as the relevant characteristic of vilification as follows at [20]:

"There was no evidence of any associations, strong or otherwise, between the Applicant's nationality, ethnicity, culture or history on the one hand, and his religious beliefs on the other. While there is no basis at all to doubt that his religious convictions are strongly and honestly held, in order to base standing for a vilification claim [under s 20C] he needs to provide evidence upon which the Tribunal may find that he has the characteristic of the relevant ethno-religious background required by s 88 of the Act."

45 Likewise in Kunhi v University of New England [2008] NSWADT 333 at [4] it was held by the Tribunal that:

"Race is defined in section 4 of the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Ms Kunhi says she is an Australian national and a Muslim. Ms Kunhi declined to identify her race any more precisely. Islam is a religion, not a race or an ethno-religious origin: Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70."

46 Similar comments were made by the Tribunal in Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 at [7] and [8]:

"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. ..."

and in Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145 at [55] (quoted in Ekermawi v Harbour Radio Pty Ltd (No 2) [2010] NSWADT 198 at [10]):

"First, vilification of Muslims does not fall within section 20C(1), because Muslims are not a 'race' as defined in section 4 of the Act. The reason, as the Tribunal said in Khan at [18], is that Muslims 'do not share common racial, national or ethnic origins' and are therefore not an ethno-religious group such as the definition embraces. In so ruling, we follow the decisions, commencing with Khan, that are listed above at [44]. We are unaware of any recent authority to the contrary. It follows that any statements broadcast by the Respondents that generated negative feelings towards Muslims generally, or any group of Muslims, on the ground of their being Muslims could not amount to unlawful racial vilification."

56. On the other hand, it has been accepted that being “Middle Eastern Muslim” is a race within the definition of “ethno-religious origin”: Haider v Combined District Radio Cabs Pty Ltd t/as Central Coast Taxis [2008] NSWADT 123 at [50].

57. In Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62, the Appeal Panel of the Administrative Decisions Tribunal appeared to take a different approach. It firstly stated the following:

“11.   We think that, despite Khan et al. the Tribunal did not correctly appreciate the meaning of “ethno-religious ... origin” in the definition of “race”. In our view, on the preferable view of that expression, but depending on the context, and we stress the importance of the context, verbal abuse aimed at people identified by the abuser as “Muslim” might indeed be abuse of them as a group of “ethno-religious origin” without the necessity to show precisely that Muslims of some common ethnicity were targeted.

…

“13.   In our view there is no simple answer to the questions raised by Mr Trad's appeal. As the statutory concepts of race, origin, ethnicity, ethno-religious are notoriously muddy, slippery and (to say the least of it) imprecise, before setting out our reasoning, some examples may clarify our general approach to the matter:

a)   Consider the statement 'Muslims leave their brains behind when they enter the mosque. They believe in ludicrous, supernatural events. They are, if anything, even less rational than Christians and Jews'. This abuse is clearly of a religious group only and on religious grounds. It has nothing to do with ethnicity.

b)   'Muslim immigration should be stopped. Islam does not accept a secular state and its attitude to women is medieval'. That is fairly clearly calumniation on the ground of religious affiliation, even if the group might, though we think probably not, be regarded as one of ethno-religious origin.

c)   If the insult is however: 'The Muslims here, as in Europe, are a bad lot. They don't want to integrate with us and their first allegiance is to their fellow Muslims, including terrorists such as Al Qaeda', that might (depending on all the evidence) well be seen as an insult to Muslims seen as a group of ethno-religious origin, and on the ground of that origin.

…

15.   As a matter of purely textual interpretation, the 'ethno-religious origin' of a group must be a species or subset of, or practically synonymous with, the religious origin of the group. If the 'ethno-religious origin' of a group were a species or subset of, or practically synonymous with, the ethnic origin of the group, there would be no need of the expression 'ethno-religious' in the definition of 'race'. Words in a statute should not lightly be treated as otiose.

16.   It is doubtful whether there is any received ordinary meaning of the terms 'ethno-religious' or 'ethno-religious origin'. A number of dictionaries do not recognise the term 'ethno-religious' let alone 'ethno-religious origin'. In ordinary usage (to the extent that there is any), the imprecise expression 'ethno-religious origin' of a group may not have the limited meaning just indicated: it might mean a group defined by the ethnic origin of its members which also has a common religious background. But because such an ethnic origin would of itself constitute that group a race within the statutory definition, that is very unlikely to be the meaning intended by the statute.”

58. Reference was then made to the two Attorneys’-General comments in Parliament in 1994 and 2004: [19]-[21]. The Appeal Panel then proceeded:

“25.   The statutory line has been drawn, in our opinion, by requiring that there be characteristics of the religious group that can fairly be seen as so closely akin, having regard to the general objects and purposes of the Act, to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin, even if in current, ordinary language it would not fairly be said that the group has an ethnic origin.

26.   However inconvenient it may be for complete certainty of the law, it is necessary, as we attempt to explain below, to look to social factors and current conditions affecting a group, as well as its more or less innate characteristics, to determine whether it is in fact one of ethno-religious origin. This means that the concept of an ethno-religious group is necessarily to a considerable degree contextual or, as the expert report put it, 'fluid and contextual'.”

59. The Appeal Panel referred to the remarks of Lord Fraser in Mandla v Dowell-Lee at [27]. The Panel then continued as follows:

“29.   It is also inescapable, as Lord Fraser recognised, that the actual content of words and concepts such as “ethnic group” and “group of ethnic religious origin” may vary with time. We would add that such content may also vary with place and the social landscape. …

…

32.   The idea seems compelling that when an anti-vilification statute speaks of a “group of ethno-religious origin” as an extension of the problematic concept “race”, it is not contemplating an unchanging entity but a social construct or set of social constructs that is to some degree changeable, chiefly depending on the attitudes of others, including vilifiers and those enduring aspects of the group that can fairly be said to be related to its origin. Thus the application of the Act may vary at a given time and under given circumstances. Nevertheless, as Ms Eastman submitted, the starting point is not the evidence but the proper construction of “ethno-religious origin”. As we have indicated, the word “origin” operates as a stabilising influence against over much emphasis being placed on purely transient perceptions and attitudes. Further, the fact that it is the concept of “race” that is being extended has a similar, colouring influence.

33.   The first necessary task is the identification of the group putatively vilified. That is a question of fact and will depend on what, objectively, the ordinary reasonable observer would, in all the actual circumstances, conclude was the group targeted. People, including vilifiers, in Sydney, for example may, depending on the context, use the term 'Muslims' to mean many things. These include: adherents to Islam wherever located; adherents to Islam throughout the whole world; followers of Islam in Bankstown or other parts of Sydney; people in Australia or some part of it of actual or assumed recent Middle Eastern descent and assumed to be Muslims; people of Indonesian or Malaysian descent assumed to be Muslims, or people known or assumed to be Muslims but assumed to be members of a different and inferior kind of civilisation from that of mainstream Australia - the possible 'other' more fully explained by the sociologists. Plainly, context is almost everything.

34.   The next question is whether the group so identified is one of ethno-religious origin. In many instances, the context will plainly indicate that no such group was being discussed. In other contexts to answer that question would require some inquiry into sociological aspects. Expert sociological evidence may clearly assist this inquiry, though it need not be determinative. In particular it cannot rewrite the statutory definition. The ultimate conclusion is of course for the Tribunal, but there is no reason for the a priori rejection or disregard of the evidence. Expert knowledge and opinion may also assist to frame or focus the inquiry in a factual sense.

…

36.    Given that the group must have a common religious origin, such matters as these (in no particular order) may be relevant to determining whether a particular group qualifies for the Act's protection:

•   Where a large proportion of the members of the group are immigrants or descendants of immigrants, how deeply rooted is their presence as part of the Australian community?

•   To what extent if any are their collective identities marked by a supplementary orientation to ethnic or religious kin in other countries?

•   As a matter of fact, does any such orientation or other social characteristic of the group arouse any common questioning of whether these communities really "belong" in Australia in the same way as do more "authentically" Australian people?

•   To what extent, if any, are the group and its members associated with a language other than English?

•   Is the group a readily socially recognisable minority?

•   Do its members tend to congregate to the practical exclusion of others, other than for formal religious observance?

•   Do its beliefs and attendant customs, such as dress, food taboos, times and manner of religious observance result in distinctive ways of life?

•   Is there a distinct intellectual or recreational culture among group members?

•   How serious are any social as distinct from religious consequences of marrying out of the group, or of apostasy?

•   Are its members generally seen in the wider society as outsiders?

•   Are its members subject to discrimination of kinds that ordinary, unprejudiced people might, in ordinary current speech, reasonably perceive as "racial discrimination" without the observers staying to consider the precise, formal meaning of that term?

•   Have external events involving co-religionists led to widespread serious condemnation of the group as a whole?

•   Has the name given to adherents of the religion come to have overtones of cultural, social or political, and not only religious, significance?

…

38.    In Khan the Tribunal appears not to have accepted the textual limitations of the statutory term to which we have referred and seems to have assumed that an ethno-religious group must have a common 'nationality or ethnicity': it spoke at [20] of the term signifying 'a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices'. In our view this is erroneous: it will suffice if the group has a common nationality or ethnicity as well as religion, but that is not necessary. All that is necessary is, as we have explained, that the person or group have a common religious origin and other characteristics that can fairly be seen as so closely akin to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin, even if in current, ordinary language it would not fairly be said that the group has an ethnic origin.

…

40. The examples given in Khan of possible ethno-religious groups namely Javanese Christians, Bosnian Muslims or Northern Irish Catholics are, with respect, at least in the absence of evidence, not especially persuasive. The examples in fact show the contextual and therefore potentially fluid nature of the concept of an ethno-religious group. Close attention is needed to the context and to sociological facts. Such matters are susceptible to demonstration by evidence, including expert evidence. Resort may also be had to the kind of approach sanctioned by s144 of the Evidence Act 1995 and briefly discussed in our first decision at [2011] NSWADTAP 19 [77]. In that regard the requirements of procedural fairness must be kept in mind.

41.   In the present case it cannot be said, we think, that had the Tribunal adopted a more contextual approach, informed by sociological and, apparently, developing international jurisprudential thinking on the subject, it would necessarily have come to the same view that it did about whether '"Muslims" in the present particular contexts might constitute a 'race'. Not to adopt such an approach led to it not asking the right question. The Tribunal asked itself 'Are Muslims a "race" within the meaning of the Act?' There is no non-contextual answer to this question.

42.   In our opinion, 'ethno-religious origin' is a particular statutory concept in the nature of a neologism for the legislative task at hand and to misconstrue it is an error of law. It is nevertheless not in the categories of a technical legal term nor a term special to any scholarly or other particular field of endeavour. Language, including statutory language, is too protean to be neatly divided between ordinary and technical. If it can be divided into ordinary and other, then this phrase falls within the 'other' category.”

60. The Appeal Panel concluded that the actual material complained of would have been understood as targeting Muslims as a religious group, not as targeting a group with an “ethno-religious ... origin”. Accordingly, the discussion of the meaning of “ethno-religious ... origin” is obiter and not binding on this Tribunal.

61. In 2013 the High Court considered Mr Ekermawi’s application for special leave to appeal from a decision of the Appeal Panel to refuse an extension of time to appeal: Ekermawi v Harbour Radio Pty Ltd [2013] HCASL 190 (3 December 2013). Mr Ekermawi raised the question of whether Muslims are a race but the Court held that the case “does not present a suitable vehicle for the consideration of any question of the proper construction of the Anti-Discrimination Act 1977 (NSW)”.

62. Apart from the strike-out application in these proceedings, we have not been made aware of any consideration of the relationship between Khan’s case and Jones and Harbour Radio Pty Ltd v Trad (No 2). We set out below our understanding of the applicable legal principles concerning the meaning of “ethnic, ethno-religious ... origin”.

63. First, the terms “ethnic, ethno-religious ... origin” are not to be given a pedantic or unduly narrow meaning”: Mabo v The State of Queensland (No 1) (1988) 166 CLR 186, 230 (Deane J).

64. Second, the broad interpretation of ethnic origin referred to in King-Ansell v Police [1979] 2 NZLR 531 per Richardson J at 543 and Mandla v Dowell-Lee [1983] 2 AC 546 (HL) per Lord Fraser at 562 is applicable under the ADA and, if a common religion different from that of neighbouring groups or the general community surrounding the group is involved, those decisions can also assist in interpreting the term ethno-religious origin: see Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [75].

65. Third, the mere fact that members of the group – such as Australian Muslims – are of diverse national and racial origins from different parts of the world, does not preclude the group having a common ethnic or ethno-religious origin: King-Ansell v Police [1979] 2 NZLR 531 at 534, 543. A group will be identifiable in terms of its ethnic origins if the evidence establishes that it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from a common racial stock. Of importance will be whether or not the evidence establishes that the group has an historically determined social identity in their own eyes and in the eyes of those outside the group.

66. Fourth, it is insufficient for the Applicant merely to assert his Muslim faith to fall within the statutory definition of race: Khan v Commissioner, Department of Corrective Services  [2002] NSWADT 131 at [21].

67. Fifth, if a common religion different from that of neighbouring groups or the general community surrounding the group is involved, the group may have a common ethno-religious origin if the group’s characteristics can fairly be seen as being so closely akin, having regard to the general objects and purposes of the Act, to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin, even if in current, ordinary language it would not fairly be said that the group has an ethnic origin: Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62 at [25].

68. Sixth, It is possible for a person to have more than one “ethnic origin”. For example, Jews in Germany (as has been explained) may have an ethnic origin based in Germany or other parts of the world as well as being Jewish and having an ethnic origin further back than the creation of the State of Germany. Depending on the evidence, the group may be regarded as having an “ethno-religious origin”, despite coming from different national or ethnic origins particularly where the people identify with the shared history and customs associated with the religious practices of the group and are viewed as having a separate and distinct identity by other Germans or members of the State in question: see Ealing London Borough Council v Race Relations Board [1972] AC 342 at 365.

69. We are of the view that to the extent the statutory construction of the term “ethno-religious origin” in Khan is inconsistent with the above principles, we prefer the approach of the Appeal Panel in Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62. The key issue is the state of the evidence to which we now turn.

Summary of the Evidence

70. According to the Australian Bureau of Statistics 2016 Census of Population, out of a total population of 23,401,892, 604,240 people identified themselves as Muslims or adherents of Islam. According to the Commonwealth Human Rights and Equal Opportunity Commission Report 2004 “while they share a common religion, Australian Muslims are a culturally and linguistically diverse group. … They speak a range of languages…”

71. The Respondents tendered a 2015 report by Prof Riaz Hassan from the International Centre for Muslim and Non-Muslim Understanding published by the University of South Australia entitled “Australian Muslims: A Democratic, Social and Economic Profile of Muslims in Australia”. Based upon the 2011 Australian census, it concluded that Australian Muslims come from 183 countries and were “one of the most ethnically and nationally heterogeneous religious communities”.

72. Based upon the 2011 census, 37.6% of the Australian Muslim Population were born in Australia. The next most significant countries of birth were as follows:

1. Lebanon (7% of the Muslim population);

2. Pakistan (5.6%);

3. Afghanistan (5.5%);

4. Turkey (5.3%);

5. Bangladesh (5%);

6. Iraq (3.2%);

7. Iran (2.7%);

8. Indonesia (2.6%);

9. India (2.1%);

10. Saudi Arabia (1.8%).

73. Based on the 2011 Australian census, the largest proportion of Australian Muslims (41.9%) were of North African and Middle Eastern origin, followed by South and Central Asia (25%); 10% were European; and 4% were of Saharan African origin. The study concluded: “contrary to the general belief that most Arabs are Muslim, the census ancestry data showed that only 43% of Arabs are Muslims. Also, whilst almost 40% of the world’s Muslims live in South and Central Asia, the large majority of the people in those regions are non-Muslim”.

74. As part of the 2011 Australian census, participants were asked to nominate their national identity. 74.1% of Australian Muslims chose "Australian" compared with 84.9% of all Australians. It was noted that some of these Muslims would have arrived in Australia recently.

73. The 2015 study, however, reported on the way in which Muslims since the ‟9-11″ terrorist attack were treated as a “single community” and one which was regarded as “suspect” and subject to stereotyping and prejudice. There was a reporting of the way in which there was assumed to be an association between this community and terrorism, or that all members of this “Muslim community” were tarnished as potential terrorists or sympathisers of terrorism and grouped together based upon their practices and looks. The study concluded that:

“In the labour market Muslim Australians face discrimination … Despite their high levels of education they are less likely to work in the professions. All these indicators suggest that a significant proportion of Muslim Australians occupy a relatively marginal position in Australian society socially and economically.”

Affidavit of S M Ekemawi dated 21 September 2018

76. This is the affidavit of the Applicant. The numbers in square brackets refer to the paragraphs of the affidavit.

77. The Applicant states he was born in a Muslim family in Jerusalem when it was under the control of the British Mandate ([2] and [3]). After family misfortunes, he arrived in Australia at the age of 15. He socialised with other Muslim children, with people of other faiths, and sought to learn English ([4], [5] and [6]). He joined the Australian army at 21 and developed relationships of friendship with people form different backgrounds and religions ([8]). He become an Australian citizen in 1967 ([11]).

78. He states that, on 18 July 2016, he watched the Today Show with Sonia Kruger on the Nine Network ([14]). He then repeats the conversation which happened on air between Ms Kruger and Mr Wilkinson which we have annexed with the letter A ([15]).

79. He states that, upon hearing those remarks, he anticipated and feared that Mr Kruger’s words would legitimise and increase hate speech, and result in an increase of criticism and acts of abuse towards Muslims in Australia ([17]). He states that after hearing those remarks he “anticipated and observed that my children's lives as Australian Muslims became more difficult” ([18]).

80. He states that he is aware that her daughter in law had a fallout with one of her friends in the aftermaths of Mr Kruger’s remarks; and states that the argument made her daughter in law feel that the level of respect and value that her friend held towards her had diminished ([19]).

81. He then states that there are six articles of belief that he holds as a Muslim ([20]). He sets out the five pillars of Islam which all Muslims must obey ([21]) and he lists some of the occasions, such as Ramadan, that Muslims observe worldwide ([24]). He states that the key beliefs and festivals that are identified above provide the Muslim community in Australia with a shared identity ([26]). He states that due to the requirement of having to pray in Arabic, it is common practice for Australian Muslims to enrol their children in Arabic school ([27]).

82. He then states that Australian Muslims celebrate and mark the occasions mentioned above in a way that is distinguishable from other countries ([28]), but that they also celebrate occasions that are typical to the Australian culture ([29]). He states that Australian Muslims approach to Islam is shaped by their shared cultural values and upbringing as Australians, and this makes the Australian Muslim community very different from other Muslim communities around the world ([30]).

83. The Applicant sets out the occasions in which he interacts with the Australian Muslim community: attending mosques around Sydney; having a wide circle of Muslim friends; interacting with his children’s Muslim friends; attending activities and conferences held by Australian Muslim organisations; being involved in a number of racial vilification proceedings over the years ([30]).

84. He states that in this affidavit, when he refers to the practice of Islam by Australian Muslims or to the Australian Muslim community, “what I mean by this is that these are conclusions that I have formed as a consequence of my participation in, and knowledge of the Australian Muslim community arising from the matters above” ([33]).

85. The Applicant describes how Australian Muslims celebrate Ramadan ([34]), and what they do on Eid days ([35]). With respect to the latter, he states that “Even though Eid is a world-wide celebration, very few Muslims in the world celebrate in the same fashion as we do. Traditionally Muslims around the world attend the mosque and visit family and friends to celebrate Eid, however, in Australia the celebration includes a carnival affair” ([36]).

86. He also observes that Australian Muslims engage in the spirit of Christmas as well, including by way of giving gifts and, for some families, setting up Christmas trees ([37]).

87. He also states that there are celebrations typical to Australia that Australian Muslims attend as part of the Australian community ([38]), such as Australia Day, which many Muslim families celebrate by attending Halal barbecues on parks and on beaches ([39] – [40]). He explains that he raised his children to be Australian Muslims, explaining to them that they are Australian and have to be proud of being so ([41]-[42]).

88. The Applicant goes on to observe that Australian Muslims have a number of unique approaches to life that distinguishes them from other Muslims around the world ([43]), including: the sports that they follow and play such as Rugby League and Australian Football; joining organisations such as Surf Lifesavers and Scouts; the fact that they developed a wide range of specialty clothing into the Australian fashion market; by naming children with names of Judeo-Christian origins, which the Applicant says would be very unusual in many other Muslim communities ([44] [47]).

89. The Applicant then sets out the difference between Australian Muslims’ approach to Islam as compared to other Muslim communities around the world, by providing the following examples: difference with respect to the treatment of women; lack of distinction between Sunni and Shia Muslims; lack of importance of ethnic origin of any particular Australian Muslim, in the sense that a Muslim is seen as such regardless of what country he or she comes from; lack of importance of whether a Muslim is devout or not practicing; lack of ban on pre-marital relationships by referring to the ‘faitha’ (that is, a Chapter in the Quran which sets out the practice of the families of the couples to meet before a marriage) which would be considered unusual in may other countries around the world; lack of stigma for divorced couples; lack of stigma toward Apostasy ([48] – [55]).

90. The Applicant states that what he is claiming can be seen by a way of a single example: if one of his children, who have all been raised as Muslims, were to relocate to another country such as Saudi Arabia, he or she would experience a significant culture shock ([57]).

91. The Applicant states that he has travelled extensively to other Muslim countries, and “My observation is that the majority of Australian Muslims lead their life in accordance with what might be called a fusion between traditional Anglo Australian culture and law on the one hand, and Islamic religion and cultural practices on the other. I consider myself to be an Australian Muslim, practicing customs which are distinguishable from both other Muslims around the world and the wider Australian community.” ([59])

92. The Applicant concludes saying that “Over the 50 or so years I have lived in Australia, I have observed that Australian Muslims generally live their life in a way that is a hybrid between Islamic and Australian culture, while at the same time being distinguishable from both” ([61]).

Conclusion

93. The Respondents objected to paragraphs 20 – 61 of the Applicant’s affidavit. The Respondents were agreeable to the Tribunal dealing with the admissibility and particularly the weight to be given to the Applicant's affidavit in our final deliberations. We accept the Respondents’ submission that for a finding of racial vilification we need to be persuaded generally to the Briginshaw standard by evidence which can provide a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge: Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63 at [73]-[98]; Burns v Nine Network Australia Pty Ltd [2011] NSWADTAP 25 at [16]-[37].

94. ln evidence, the Applicant agreed that he had not held any representative position with respect to the Muslim community. He has not been a religious leader. He is not a religious scholar. . The opinions expressed in the affidavit are generalised and unsubstantiated. The Applicant holds no relevant qualifications to express any expert opinion relevant to the identification of Australian Muslims as an 'ethno-religious' origin or the practices of Muslims worldwide. We note the Tribunal in Khan v Commissioner, Department of Corrective Services & Anor (EOD) [20011 NSWADTAP 1 at [41] has previously stated, ‘’the Tribunal should have before it some expert evidence as to whether or not the appellant's adherence to the Muslim faith accords with the meaning of ‘ethno- religious origin’."

95. The Applicant makes generalised assertions, unsupported by any relevant or reliable sources, about the ‘unique’ common practice or culture of Australian Muslims compared with other Muslim countries which are not identified, other than Saudi Arabia. To the extent his assertions are based on what he has been told by his circle of Muslim friends and acquaintances, it is hearsay.

96. In the result, we conclude that the Applicant’s general statements of opinion as to the following, to be of little or no weight:

• The common practices or culture of the alleged ‘community of Australian Muslims’ as a whole;

• That such common practices or culture are unique which distinguishes the alleged ‘community of Australian Muslims’ from other Muslims around the world;

• That the identified key beliefs and festivals provide the alleged ‘community of Australian Muslims’ with a shared identity or sense of being a distinct homogeneous community regardless of the ethnic origin or religious sect they come from;

• That Australian Muslims consider themselves all part of the worldwide Muslim community.

97. On the other hand, we accept the Applicant, based on personal observation, can give evidence about the common practices of the Muslims in Sydney with whom he interacts, such as:

• the enrolling of their children in Arabic school;

• the celebration of Ramadan and Eid;

• attendance at mosque for Friday prayers, including by Muslims of different origins;

• English as the common language;

• the recitation of the Qur’an and prayers in Arabic;

• the wearing of traditional clothes, such as dashas and hijabs by ‘many’;

• eating certain foods, such as halal meat, kebabs and flatbreads; and

• participating in Australian cultural activities.

98. There is an absence of reliable evidence, however, as to whether the above common practices exist throughout the Muslim population in Australia and beyond Sydney.

99. As explained above, the fact that Australian Muslims have many ethnic origins and many nationalities and have migrated to Australia from many different parts of the world does not prevent the group having a common ‘ethno-religious origin’. Of importance will be whether or not the evidence establishes that the people in the group identify with the shared history and customs associated with the religious practices of the group so that they regard themselves as being one ‘community’ and whether those outside the group view them as having a separate and distinct identity.

100. There is evidence that since the ‟9-11″ terrorist attack Australian Muslims are treated as a “single community” which is regarded as “suspect” as potential terrorists or sympathisers of terrorism and they are grouped together based upon their practices and looks. Indeed, as we explain below, Ms Kruger’s comments treated Australian Muslims as a “single community” which was a threat to the broader community’s safety, simply by virtue of its size.

101. On the other hand, there is no objective evidence that would allow the Tribunal to be comfortably satisfied that Muslims living in Australia regard themselves as being a distinct community irrespective of their different ethnic origins, religious traditions (conservative or liberal, Sunni or Shia), place of birth or how long they have lived in Australia.

102. In conclusion, the evidence does not support a finding that Muslims living in Australia are a ‘race’ by reason of a common ethnic or ethno-religious origin. Section 20C is therefore not engaged and the application is to be dismissed. The result on this point, however, might have been different had there been different or additional, objective evidence.

103. In case we are wrong in this conclusion, we set out our findings on the remaining issues in the case.

Did Ms Kruger’s statements incite hatred, severe contempt or serious ridicule on the grounds of membership of an ethno-religious group?

Parties’ submissions

104. The Applicant first submitted that Ms Kruger’s comments were directed at the Muslim community, rather than at the religious doctrines associated with Islam.

105. The Applicant contended that Ms Kruger’s comments were not a clinical discussion as to whether particular ethno-religious groups within Australia have a higher statistical likelihood to generate offenders in regards to certain types of crime; rather, her comments were singling out the Australian Muslim community as a source of terrorists. The Applicant contended that connecting a particular community within an increased incidence of a crime such as terrorism is capable of inciting hatred or serious contempt towards the group or members of the group.

106. With respect to the audience, the Applicant submitted that a TV channel must be found to have been directing its broadcast to the public at large, and thus that the question of incitement should be determined by its likely effect on the ordinary members of that public.

107. The Respondents submitted, first, that the Applicant must adduce evidence about the audience, as without it, the Tribunal cannot make any assessment of whether an ordinary member of the particular audience may have been incited to the standard required. The Respondents submitted that on the available evidence it is not open to the Tribunal to find that the audience would be the public at large.

108. The Respondents submitted that the Applicant failed to identify which specific words spoken by Ms Kruger were capable of inciting an ordinary member of the audience, but rather that the Applicant relies on mere imputations.

109. Furthermore, the Respondents submitted that the Applicant did not adduce any evidence that the audience was likely to be incited or was in fact incited. The Respondents also submitted that the Applicant failed to specify whether Ms Kruger’s words incited the audience members to hate Muslims living in Australia or hold them in serious contempt.

110. The Respondents also submitted that in the context in which Ms Kruger’s words were spoken (a debate on immigration and its connection to terrorism), nothing can support the finding that those words had the effect of inciting hatred or serious contempt; and that the Applicant cannot point to any express words said by Ms Kruger that makes a causal nexus between her words and Muslims living in Australia.

111. The Applicant replied that the fact that the actual audience of the broadcast is a mass audience measured in hundreds of thousands of people can be established before the Tribunal. The Applicant also submitted that where one's audience is a significant portion of the public, and likely to be people with many different characteristics and views, any identification as to whether the public act was capable of inciting the relevant reactions will almost inevitably need to be resolved by asking whether or not it would have that effect upon an ordinary member of the Australian community.

112. The Applicant also contended that he is not relying on imputations, but is just seeking to demonstrate the meaning conveyed by Ms Kruger’s words.

Relevant legal principles

113. The general principles regarding the interpretation of the word ‘incite’ have been explained by Bathurst CJ in Sunol v Collier No. 2 [2013] NSWCA 196 at [41]:

…

“(a)   Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.

(b)   It is not necessary for a contravention that a person actually be incited.

(c)   It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.

(d)   It is not necessary to establish an intention to incite.”

…

114. With respect to the audience, His Honour held at [33] that the question of incitement has to be decided by reference to an ordinary member of the class to which the incitement is directed, rather than a reasonable member.

115. In the matter of Jones v Trad [2013] NSWCA 389 at [56], Ward JA affirmed that the test to determine whether a public act had the capacity to incite the requisite emotion was an objective one (citing Burns v Laws (No 2) [2007] NSWADT 47 at [111]) and that it was not necessary to prove that any particular person was, in fact, so incited (at [160]) (citing Burns v Laws at [93]-[113]; Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122 at 131). It was necessary, however to identify the “audience” to the act of vilification for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited to have serious contempt for the person the subject of the behaviour complained of.

Relevant audience

116. The Tribunal has before it survey evidence of the likely audience of the broadcast in question. Whilst not completely accurate, of course, this evidence suggests an audience in New South Wales of between 70,000 and 80,000 people consisting of a broad cross-section of the community, but with a possible slight overrepresentation of females and persons who are not in employment.

117. In the result, on the basis of this evidence, we broadly accept that the relevant audience in many respects resembles the population at large.

“On the ground of”

118. The Applicant bears the onus of proving that the relevant public act (being the statements in question) incited or is likely to incite hatred/serious contempt of the persons in question “on the ground of” race, or more particularly in this case “ethno-religious origin”. The expression “on the ground of” requires a causal connection between the public acts in question and the hatred/serious contempt of the group in question.

119. The relevant race / ethno-religious origin must be one of the real, genuine or true reasons for the incitement: see Jones v Trad [2013] NSWCA 389 at [98].

120. Ms Kruger made no reference to the Muslim religion, as such, or to any particular portion of the Muslim community being adherents to any particular form of ‘radical’ Islam. She suggested it was ‘actually really simple’ – ‘that there is a correlation between the number of people who, you know, are Muslim in a country and the number of terrorist attacks’. With the Muslim population in Australia ‘being something like 500,000’ ‘for the safely of the citizens here’, she stated there should be a ban on any additional Muslim migration.

121. In other words, Ms Kruger was stating, in effect, that the Australian Muslim community as a whole was a threat to the safely of the citizens of Australia. She did not say a particular brand or brands of Islam breeds terrorism. Her concern was about the size of the Muslim community as a whole irrespective of the nature of the membership of that community. A type of stereotyping was being made in which there was assumed to be an association between this community and terrorism, or that all members of this “Muslim community” were tarnished as potential terrorists or sympathisers of terrorism

118. Accordingly, the attack was on the Muslim Australian community and Muslim culture as a whole, not the observance of the religion as such. The total effect of the statements fits within the third of the categories listed by the Appeal Panel in Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP 62 at [13].

119. In conclusion, if Australian Muslims have a common ‘ethno-religious origin’, then, in our view, Ms Kruger’s remarks were an insult to, or an attack on, such Muslims seen as a group of ethno-religious origin, and on the ground of that origin.

Capacity to incite hatred or serious contempt

124. The Tribunal has before it the actual broadcast and it has watched that broadcast during the hearing of the complaint. We agree with the Respondents’ submission that Ms Kruger’s tone was calm and measured. She did use the term “fanatics” and made it clear she did not think every Muslim in Australia or overseas was a fanatic. She did say some of her best friends were peace-loving Muslims.

125. On the other hand, her comments were presented as part of a serious and earnest debate on an issue of topical importance. We note the evidence before the Tribunal is that some members of the Australian population already regard Australian Muslims as “suspect”, where there is assumed to be an association between this community and terrorism, or that all members of this “Muslim community” are tarnished as potential terrorists or sympathisers of terrorism.

126. As a result, the evidence before the Tribunal is that Muslim Australians face discrimination in the labour market. This suggests that some ordinary members of the Australian population already harbour feelings of hatred towards, or serious contempt for, Australian Muslims as a whole by reason of the assumption that they are potential terrorists or sympathisers of terrorism.

127. In our view, such feelings or emotions would be encouraged or incited amongst ordinary members of the Australian population by Ms Kruger’s remarks. In particular, we refer to her remarks that all Muslim migration should be stopped now "because I want to feel safe, as all of our citizens do, when they go out to celebrate Australia Day" and ‘’ for the safely of the citizens here’’. As stated, her concern was about the size of the Australian Muslim community as a whole irrespective of the nature of the membership of that community. Ms Kruger’s co-host Mr David Campbell, we note, expressed the view that "this [comment] breeds hate’’.

128. In our view, such remarks would likely encourage hatred towards, or serious contempt for, Australian Muslims by ordinary members of the Australian population.

Were Ms Kruger’s statements a fair report of a public act?

129. The Respondents pleaded and relied upon the ground that what was broadcast was either a fair report of a public act pursuant to s.20C(2)(a) or a public act done reasonably in good faith within the meaning of s.20C(2)(c). It should be noted that the matters in s.20C(2) are not defences in the strict sense, namely, matters which the Respondents must prove. Rather, they operate as exceptions to the general prohibition contained in s.20C(1): see Jones v Trad (2013) 86 NSWLR 241 at 252 [105] per Ward JA.

Parties’ submissions

130. It was the Respondents’ contention in paragraph 15(b)(i) of their Points of Defence that the broadcasts were a fair report of media reports about the Nice terrorist attack. The Respondents submitted that:

• Ms Kruger was providing a fair and accurate report of the article by Mr Andrew Bolt, which was the focus of the Mixed Grill segment;

• Ms Kruger’s views were expressed in the context of an accurate report of the comments made by Mr Bolt;

• the fact that Mr Kruger was expressing agreement with Mr Bolt’s views does not detract from the fact that the segment was fairly reporting the article.

131. The Applicant submitted that the words spoken by Ms Kruger did not purport to be a report of what was said by Mr Bolt in the article, rather, the latter was merely a departure point for the expression of views personally held by Ms Kruger.

Applicable law

132. Ward JA, in Jones v Trad (2013) 86 NSWLR 241 at [105] (Emmett and Gleeson JJA agreeing), stated subsection 20C(2) sets out exceptions to the prohibition in subsection (1), and not defences. Her Honour also stated (at [27]):

Like his Honour in Sunol v Collier, albeit in respect of different provisions, I consider that the task of construing the racial vilification provisions is one to be approached with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression (at [59]).

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 can provide a useful guide in determining the meaning of the exceptions under the Anti Discrimination Act (at [54]).

134. Section 24 of the Defamation Act 1974 (NSW) established the defence of a “fair protected report”. In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Hunt J stated (at 63A) that “to be a fair report the matter complained of must with substantial accuracy express what took place in that part of the proceedings of which it purports to be a report”.

Conclusion

135. It can be accepted that the Mixed Grill segment in question involved the discussion about Mr Bolt’s article. The question is whether Ms Kruger’s comments could be said to represent a fair report of that article, or did it go beyond that? The Applicant’s contention was that Ms Kruger used Mr Bolt’s article as a launching pad for her own views which she expressed. The Respondents’ contention was that this characterisation does not accord with a proper analysis of the Mixed Grill segment in question.

136. Overall, Ms Kruger did more than simply provide a fair report of Mr Bolt’s article. She provided commentary to the effect that not only did Mr Andrew Bolt have “a point here”, but that there was a correlation between the number of people who are Muslim in the country and the number of terrorist attacks. She expressed the view in respect of Muslim immigration that she “would like to see it stop now for Australia. Because I want to feel safe, as all of our citizens do, when they go out to celebrate Australia Day.” Next, she expressed the view that she would like to see Australian borders closed to Muslims at this point, given that Australia has something like 500,000 now in our country and that “for the safety of the citizens here, I think it’s important”.

137. Overall, as further explained in the section below this goes beyond simply a fair report of Andrew Bolt’s article. She provided her own views and commentary on the issues and these additions were not just opinion, they were vilifying remarks in their own right.

138. Accordingly, the exception based on s.20C(2)(a), in our view, is not made out

Were Ms Kruger’s statements public act, done reasonably and in good faith for purposes in the public interest, including discussion or debate about an exposition of any act or matter?

Parties’ submissions

139. The Respondents sought to rely upon the terms of s.20C(2)(c) of the ADA which is in the following terms:

“(2)   Nothing in this section renders unlawful:

…

(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 an exposition of any act or matter.”

140. The Respondents contended that the Mixed Grill segment discussed the matter in the context of the opinions expressed by Mr Bolt in his article on the same day. The format was a debate with different opinions and views being discussed and that account should be taken of the duration, tone and nature of the debate. It was submitted that the language was measured and Ms Kruger’s tone and words were not pernicious. It was contended there was nothing done in the form, context or content of the segments that was unreasonable or evidenced bad faith.

141. It was said that the context of the discussion was morning television. The debate was broadcast in New South Wales at a time of day when many people in paid employment would be attending work. The segment was not presented as “news”. It was not a journalistic discussion or akin to a news report.

142. The Applicant’s submission was that there was no evidence cited in support of the various contentions made regarding the size of the Muslim community in Australia being a threat to national security. The Applicant pointed out that Ms Kruger herself defined her views as being “extreme”. The Applicant submitted that the extreme nature of the statements made by Ms Kruger, without having any evidence in support, show that it was not something done “reasonably” in the nature of a discussion on a matter of public interest.

143. In response, the Respondents contended that it was not necessary to cite evidence or statistical support for a proposition before a broadcast could be said to be done “reasonably”. The Respondents contended that there was no authority that supported such a position.

144. Rather, the Respondents referred to case law to the effect that in judging whether or not there was racial vilification, there should be value placed on the principle of freedom of expression - see Allsop P in Sunol v Collier (No 2) at [59] and [60] and Burns v Laws (EOD) [2008] NSWADTAP 32 at [28]-[29].

Relevant legal principles

145. In Sunol v Collier, Bathurst CJ at [41] said that for a public act to be reasonable within the meaning of this exception it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out. To be done in good faith, the public act must be engaged in bona fide and for the protected purpose. His Honour added that reasonableness is to be assessed objectively (at [35]); while good faith involves no more than a broad subjective assessment of the defendant’s intentions (at [37]).

146. In Burns v Laws (EOD) [2008] NSWADTAP 32 the Appeal Panel said at [29]:

“29.    As to the exception itself, the following statements have broad, though not universal, support:

(i) The onus lies on the respondent to satisfy the tribunal of fact that the conduct was done 'reasonably and in good faith' (in NSW, s 104 of the ADA is relied upon).

(ii)    The inquiry as to whether the conduct was 'done reasonably and in good faith' is not confined to evidence relating to the 'doing' of the act (the method), but extends to the contents (the message).

(iii)    ln forming a view as to whether the conduct was done reasonably and in good faith, relevant material includes the content of the offensive material (in this case the broadcast), any evidence given by the respondent as to the circumstances, reasons and motives for the publication, any inferences that may reasonably be drawn from the material itself in respect of these matters, the context of the publication including any pattern of conduct by the publisher of the statements.

(iv)    While the expression 'done reasonably and in good faith' may be regarded, broadly speaking, as a composite one, it contains two elements or requirements, to be addressed separately.

(v)    Whether the conduct was done reasonably is to be assessed in an objective manner.

(vi)    Good faith is not established if the respondent acted in bad faith, out of malice or for an improper purpose.

(vii)    Ultimate judgments as to such matters as 'reasonableness' and 'good faith' are ones of fact.”

Consideration

147. Broadly, the Tribunal accepts that the purpose of the discussion in question was to have a debate about the size of the Australian Muslim population, the levels of Muslim migration and whether an increase in the level of either increases the likelihood of future terrorist attacks in Australia. Further, the Tribunal accepts that to have a public discussion on such matters was in the public interest. Finally we accept the Respondents were acting in good faith without malice and not for an improper purpose.

148. However, we cannot accept that the remarks of Ms Kruger were “reasonable”. She expressed the view that the size of Australia’s Muslim population meant there should be no further Muslim migration irrespective of any other matter. This appears to be unsupported by any evidence or material placed before the Tribunal.

149. The principal difficulty we have with Ms Kruger’s comments is that she suggests that 500,000 “Australian Muslims” is too many and that, in and of itself, such a number of Muslims living in Australia poses a safety threat to persons in Australia. Consistently with this proposition, Ms Kruger concludes that all Muslim migration should be stopped because any addition to the number of Muslims in Australia increases the risk of terrorist attacks.

150. Thereby, Ms Kruger goes further than Mr Andrew Bolt, who accepts in his article that “truly, the number of Muslims in the country does not tell the full story”. Mr Andrew Bolt points out that Germany, whilst having possibly more Muslims than France, may have escaped the same level of terrorism as France “perhaps because many of its Muslims came from Turkey, more westernised than the North African countries’’ which are the source of most Muslims in France.

151. Accordingly, the point of Mr Andrew Bolt’s article is that it is the form of the Muslim migration, not the mere fact of Muslim migration, which is of particular importance. It is, as he put it, the “open door” policy of Muslim migration that may contribute to terrorist attacks. Ultimately, Ms Kruger, on the other hand, was putting forward a stereotype in suggesting that it was the size of the Muslim population in Australia per se which leads to terrorist attacks.

152. In our view, Ms Kruger could have expressed her comments in a more measured manner to avoid a finding of vilification. For example, she could have referred to the need for Australia to engage in greater security checking of people wishing to migrate to Australia who may happen to be Muslims and the need to prevent a drift towards radicalisation amongst Muslims currently in Australia, rather than simply stating that 500,000 Muslims represents an unacceptable safety risk which justifies stopping all Muslim migration.

153. It may have been possible for either of the other commentators – Ms Lisa Wilkinson or Mr David Campbell – to make this comment and then seek to have Ms Kruger agree with that. This also would have likely prevented the broadcast amounting to the vilification of Muslims in Australia. Unfortunately, while Mr Campbell appeared to disagree with Ms Kruger, Ms Kruger’s public remarks were still preserved and amounted to a stereotypical attack on all Muslims in Australia.

Relief

154. The Applicant by his Points of Claim filed 12 July 2018 did not seek any relief by way of formal orders. In his Outline of Argument he sought merely a finding of contravention. He also sought in his Outline of Argument an order that the Respondents “issue an apology”.

155. The Respondents submitted that an apology – private or public – would not be an appropriate remedy, including for the following reasons:

1. the Applicant was not named personally in the segment or referred to in any way;

2. there was no damage to the Applicant’s reputation; and

3. any apology is likely to have somewhat limited utility as the acts complained of took place over two years ago.

156. The Tribunal accepts that orders under the ADA are designed not as punishment or sanction, but to remedy the effect of the Respondents’ conduct: Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [3]. Broadly, we accept that in the particular circumstances of this case an apology would not significantly remedy the effect of the Respondents’ conduct.

157. However, we need not consider this question further in light of our conclusion as to whether the evidence establishes that Muslims living in Australia have a common ethno-religious origin. Apart from that issue, we would have found that both of the Respondents engaged in racial vilification of the Australian Muslim community, being Muslims living in Australia, in breach of s.20C of the ADA.

Orders

1. The application will be dismissed.

**********

Annexure 1 – transcript of the 18 July 2016 broadcast

Transcript: Today

LW: Welcome back to the show. Does the number of migrants and refugees allowed into a country increase its risk of terror attacks? News Corp columnist Andrew Bolt certainly believes so, saying Muslim migration in France has opened the door to terror. It's time now for Mixed Grill with Sonia Kruger and David Campbell. Good morning to you guys. David, I'll start with you. Is he right?

[Graphic: "The Mixed Grill. Muslim Migration, Do more migrants increase the risk of terror attacks?"]

DC: Ah, in what I, I read this article, and I'm not the biggest Andrew Bolt fan and that's fine he's allowed to have his opinion. But I was interested about this because Sonia and I were talking about it, you know, before we came on set. So I thought well let me try and find a counter to his argument and I just went onto Google, and the French international press actually give you a much clearer argument. It's not just immigration. And what he's trying to do is make us shut our borders. He wants an immigration change in this country and he's saying look at this horrible example, this is what we shouldn't be doing. But really, you know the bombing in Syria, it started with banning the burka, you're starting, in 2004 in schools, then in 2010, you know, then it goes to airstrikes on ISIS, you know, which they're doing. There's a lot of counter-terrorism they're doing in North Africa and central Africa, this is very dense and very complicated. And it's not just about shutting borders, it's about when you have people in your borders how do you treat them?

SK: Or is it actually really simple? I mean, personally, I think Andrew Bolt has a point here, that there is a correlation between the number of people who, you know, are Muslim in a country and the number of terrorist attacks. Now I have a lot of very good friends who are Muslim, who are peace-loving who are beautiful people, but there are fanatics. And does the population and the correlation between those two things, is it having an impact? I mean, if you look at Japan, Japan has a population of 174 million. It has a hundred thousand people in that country who are Muslim. We never hear of terrorist attacks in Japan. Personally I would like to see it stopped now for Australia. Because I want to feel safe, as all of our citizens do, when they go out to celebrate Australia Day. And I'd like to see freedom of speech and Lisa I think, you know we're seeing journalists threatened...

DC: I'd like to see freedom of religion as well. As well as freedom of speech. They both go hand in hand...

SK: But who.. .We're not saying there's no freedom of religion.

DC: Well if you start doing things...

SK: We're talking about immigration, David.

DC: We are but, this breeds hate. This sort of article breeds hate. When you have someone like Pauline Hanson [inaudible]...

SK: But so you're not allowed to talk about it? You're just not allowed to talk about it? You're not allowed to discuss it?

DC: Yes you are allowed to talk about it, and you're allowed to celebrate and worship whatever you want and whatever you don't want...

SK: Well I would venture that if you spoke to the parents of those children killed in Nice then they would be of the same opinion.

LW: Well in fact, in fact, the very first person who was killed, mown down in truck...

SK: Was a Muslim woman...

LW: ... was a Muslim woman.

SK: Yes.

LW: Yes, so you know it's killing Muslims, I mean it's...

SK: Muslims. Good Muslim people. Yes that's exactly right.

LW: I mean it's indiscriminate. But just to clarify Sonia, are you saying that you would like our borders closed to Muslims at this point?

SK: Yes I would. I would. Because I think at this point...

LW: Which is the Donald Trump approach...

SK: I think we have something like 500,000 now in our country and I... Well perhaps it is... but for the safely of the citizens here, I think it's important.

LW: OK. Alright, we'd love to know your thoughts, let us know on Facebook, email or Twitter.

Annexure 2 – transcript of the 19 July 2016 broadcast

S J: ... Good morning to David and Sonia.

DC: Morning Sylvia

SK: Morning, thank you very much Sylvia. Now before we start the show I'd just like to say a few things about what happened yesterday on the Today Show. The discussion we had was centred around a newspaper article which referenced the correlation between the Muslim population of certain countries and the number of subsequent terrorist attacks. I felt the article made some relevant points.

We've witnessed too many atrocities committed in the name of terrorism and last week's attack on innocent men, women and children in Nice left me in utter disbelief. I saw the image of a baby covered in a plastic sheet with a doll lying beside her and it rocked me to the very core. I imagine what that must have been like for the people of Nice, for the friends and families of the lost and the thought that it could happen here terrifies me.

This type of attack affects people from all walks of life. And I want to make it very clear that I have complete respect for people of all races and religions. I acknowledge my views yesterday may have been extreme. The reaction overnight in the papers, online and via social media demonstrates that there are a myriad of opinions in Australia, which I fully appreciate. It is a hugely complex and sensitive issue, it's an issue with no simple answer and it's an issue that cannot be fully discussed in a short televised segment. Is there a solution? I don't know. We elect politicians to make those calls, they analyse and then they decide and we hope they get it right.

It's a privilege to live in a country such as Australia which embraces a multicultural society, but there is no simple answer here. And if we are to find a solution to the situation, at the very least we need to be able to discuss it.

DC: Well said. Alright, let's move on...

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: 15 February 2019