Ekermawi v Nine Network Australia Pty Limited

[2018] NSWCATAD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ekermawi v Nine Network Australia Pty Limited [2018] NSWCATAD 112
Hearing dates:	3 May 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The application by Nine Network Australia Pty Limited and Ms Kruger for Mr Ekermawi’s complaint of racial vilification to be summarily dismissed is refused. 2. The matter is listed for Directions on 19 June 2018 at 2:00 p.m.
Catchwords:	HUMAN RIGHTS – racial vilification – meaning of “ethno-religious origin” - whether complaint should be summarily dismissed because Muslims living in Australia do not have an “ethno-religious origin” – principles of summary dismissal
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 20C, 88, 89(2), 92, 94A, 93A, 93B, 93C and 102 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) Racial Discrimination Act 1975 (Cth)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Dee v Commissioner of Police [2003] NSWADT 217 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Ealing London Borough Council v Race Relations Board [1972] AC 342 Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 Ekermawi v Harbour Radio Pty Ltd [2013] HCASL 190 Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62 Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 Kitoko v Sydney Local Health District [2017] NSWCATAD 209 Langley v Niland [1981] 2 NSWLR 104 Mabo v The State of Queensland (No 1) (1988) 166 CLR 186 Margan v University of Technology, Sydney [2003] NSWADTAP 65 Murtough v NSW Bar Association [2011] NSWADT 243 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Texts Cited:	New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1827 New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 16 September 2004 at 11044
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:	Nil

REASONS FOR DECISION

Summary

1. Nine Network Australia Pty Ltd and Ms Sonia Kruger have applied to the Tribunal for a complaint of racial vilification made by Mr Ekermawi to be dismissed without a hearing. The complaint relates to comments made by Sonia Kruger, a presenter on the Nine Network’s Today program. Responding to a newspaper article by Mr Andrew Bolt, Ms Kruger agreed with the proposition that the Australian borders should be closed to Muslims. She said that Mr Bolt had a point when he said there was “a correlation between the number of people who … are Muslims in a country and the number of terrorist attacks”.

2. Mr Ekermawi, a Muslim living in Australia, complained that Ms Kruger and the Nine Network had breached the racial vilification provisions of the Anti-Discrimination Act 1977 (NSW). Section 20C makes it 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.

3. The group Mr Ekermawi identified as having been vilified was “ethnic Muslim Australians”. He has since described the group in various ways including as “the Australian Muslim community”. We understand him to be referring to Muslims living in Australia. He did not allege that the comments vilified Muslims living anywhere outside Australia.

4. One basis for the respondents’ application to summarily dismiss the complaint is their contention that Muslims living in Australia do not come within the definition of a “race” in the Anti-Discrimination Act 1977 (NSW). That term is defined in s 4 to include “colour, nationality, descent and ethnic, ethno-religious or national origin”. Mr Ekermawi claims that Muslims living in Australia have an ethno-religious origin. That is not an assertion which is untenable or so lacking in merit that the complaint should be dismissed without a hearing. He should be given an opportunity to argue his case fully at a hearing.

Test for summary dismissal

5. The Tribunal has power to dismiss a complaint before a final hearing “if the complaint is frivolous, vexatious, misconceived or lacking in substance” or “if the Tribunal is satisfied that for any other reason no further action should be taken”: Anti-Discrimination Act, s 102, s 92(1)(a)(i),(ii) and (b) and Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b). As the powers in the Civil and Administrative Tribunal Act are a sub-set of the powers in the Anti-Discrimination Act, there is no need to consider the provisions separately.

6. As a general proposition, a complaint should not be summarily dismissed except in the clearest of cases: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [10]. The respondents have the onus of establishing that the proceeding should be dismissed without a hearing: Murtough v NSW Bar Association [2011] NSWADT 243 at [24]. Any facts which Mr Ekermawi asserts, must be accepted for the purpose of the summary dismissal application: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [9].

7. The words “frivolous, vexatious, misconceived or lacking in substance” have been held to refer to the “insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all”: Langley v Niland [1981] 2 NSWLR 104 at [9]; referred to in Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [9].

8. In State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] Ormiston JA stated that the term “misconceived” is commonly used by lawyers to mean “a misunderstanding of legal principle” and the term “lacking in substance” to mean “an untenable proposition of law or fact”. That characterisation has been accepted by this Tribunal and its predecessor, the Administrative Decisions Tribunal in many cases: see Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26].

The complaint

9. The complaint relates to a television broadcast on the Today breakfast show on 18 July 2016. Mr Ekermawi wrote, in part that:

Sonia Kruger’s migration comments highlight ‘uncomfortable’ reality for Ethnic Australian Muslims, on TV 9 on or about 18 July 2016 she made racial vilification and hatred remarks against Ethnic Muslim Australians.

10. He also quoted some of the things Ms Kruger said during the broadcast. For example:

… I want to feel safe, as all of our citizens do when they go out to celebrate Australia Day.

11. I have reproduced the full text of the complaint at the end of these reasons (Annexure 1).

12. The Nine Network provided the Tribunal and Mr Ekermawi with a copy of the transcript of the 18 July 2016 broadcast. That transcript is reproduced at the end of these reasons (Annexure 2). Nine Network mentioned in their written submissions that a USB with the full video as broadcast on 18 July 2016 is available. I did not ask for it to be provided because my conclusions are not affected by the manner in which the comments were delivered.

13. The day after the broadcast, Ms Kruger made some further comments on the Today show. She repeated her view that Mr Bolt had made some relevant points when he wrote 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”. The transcript of the 19 July is re-produced at the end of these reasons (Annexure 3).

14. The respondents made detailed submissions about what constitutes “the subject matter” of the complaint. 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 Anti-Discrimination Act must be lodged first with the President of the Anti-Discrimination Board. When the President refers a complaint to the Tribunal under s 93A, 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).

15. The respondents relied on the case of Dee v Commissioner of Police [2003] NSWADT 217 at [6]–[7] in support of the proposition that a complaint cannot “go beyond the parameters of the original complaint contained in the President’s Report”. The respondents also submitted that the President of the Anti-Discrimination Board “confined the subject matter of the complaint” by stating, in a letter to the respondents dated 11 April 2017, that:

The complainant alleges that the “Today” show’s presenter made vilifying comments about Muslims by referring to them as terrorists.

16. In 2004, a year after the decision in Dee v Commissioner of Police was handed down, the Anti-Discrimination Act was amended to add s 94A: Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No 79 (NSW). Since that time if a complaint is referred to the Tribunal, it is comprised of: the original complaint; any amendment made to the complaint by the President; and “any other document or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject matter of the complaint or otherwise contain an allegation of a contravention of a provision of” the Anti-Discrimination Act or the regulation: s 94A(1)(c). (Emphasis added.)

17. The President did amend the complaint to add the broadcast on 19 July 2016. In the summary of complaint accompanying the President’s report, the President’s delegate wrote that:

On 16 March 2017 the President’s delegate accepted the complaint of racial (ethno religious) vilification for investigation pursuant to section 89B of the Anti-Discrimination Act 1977 (NSW) (“the Act”). The Board’s investigation is limited to events alleged to have occurred on 18 July 2016.

On or around 6 December 2017 (undated) the President’s delegate amended the period of investigation to include events alleged to have occurred on 18 July 2016 and 19 July 2016, pursuant to s 91C of the Anti-Discrimination Act 1977 (NSW) (“the Act”).

18. Mr Ekermawi clarified 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. Rather, her explanation the following day was said to be relevant to an assessment of her overall conduct. In view of my ultimate conclusion that the complaint should be dismissed, I do not need to reach any conclusion about this issue.

19. It follows that the complaint can go beyond the parameters of the original complaint contained in the President’s Report. While the subject matter of the complaint may be gleaned from documents or information “obtained or recorded by the President”, it is not confined to the way in which the President characterised the complaint in particular correspondence with the respondents.

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 Anti-Discrimination Act;

5. Ethnic Australian Muslims are said to be a “race” as defined in the Anti-Discrimination Act.

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

22. It is not in dispute that during the course of the investigation, the “race” which had allegedly been vilified was put on various bases including “Ethnic Australian Muslims” in the original complaint and “the Australian Muslim community” in a letter from Mr Ekermawi’s solicitors dated 20 June 2017. The identification of the group being targeted is a question of fact which will depend on what the ordinary reasonable viewer would conclude was the group.

23. Mr Ekermawi submitted that a person listening to the program would have clearly understood Ms Kruger to be saying that the risk of terrorist attack was not simply something that might arise from future migrants coming to Australia. One of the reasons Ms Kruger gave for calling for a stop to Muslim migration was that there were 500,000 Muslims in Australia and there was a correlation between the size of the existing population and number of terrorist attacks in a country. Ms Kruger also said that while some Muslims in Australia were “peace-loving”, there are “fanatics”.

24. The identification of the relevant group will be a question of fact for the Tribunal. The Tribunal will have to construe Ms Kruger’s remarks, take into account any submissions made, and make a finding. In my view, the construction put forward by Mr Ekermawi, that Muslims living in Australia is the targeted group is not an untenable proposition of fact. I decline to dismiss the complaint on that basis.

Does Mr Ekermawi have standing to make the complaint?

25. If the Tribunal agrees with Mr Ekermawi that, as a question of fact, the group of people allegedly being vilified is Muslims living in Australia, another question is whether Mr Ekermawi has standing to make the complaint. He will have standing if he has, or claims to have, “the characteristic that was the ground for the conduct that constitutes the alleged contravention”: Anti-Discrimination Act, s 88.

26. Mr Ekermawi claims to be a Muslim living in Australia. The respondents put forward as a “subsidiary issue” that Mr Ekermawi’s ethno-religious origin is not “Ethnic Muslim Australian” because he has given evidence about his ethnic origin in previous Tribunal proceedings. For example, he has given evidence that his “ethnicity” was Palestinian and that he considered himself to belong to a long-standing ethnic and religious community that had its origin in Palestine and the Middle East: Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 at [8], [29].

27. The House of Lords has held that a person can have more than one “national origin”: Ealing London Borough Council v Race Relations Board [1972] AC 342 at 365. It is not an untenable proposition of law or fact that Mr Ekermawi has standing. I decline to dismiss the complaint on that basis.

In context, are Muslims living in Australia a group with an ethno-religious origin?

28. A Tribunal hearing this case would have to be satisfied that, in the context of the subject matter of the complaint, Muslims living in Australia constitute a group with an ethno-religious origin. The respondents submitted that the broadcast on 18 July 2016, was a discussion about the Muslim religion and migration, not about “race” as that term is defined in the Anti-Discrimination Act. Ms Kruger does not refer to any person’s ethno-religious origin and Mr Ekermawi is not permitted to draw inferences or rely on imputations on the basis of the words spoken by Ms Kruger. Accordingly, it is said that the complaint is misconceived or lacking in substance because the definition of race does not include religion.

29. Thirty years ago the High Court held in the context of the Racial Discrimination Act 1975 (Cth) that “the word ‘race’ and the phrase ‘national or ethnic 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).

30. When parliament amended the definition of race to include “ethno-religious … origin” in 1994 the then Attorney General, the Hon JP Hannaford, expressed the view in parliamentary debates that that term includes Muslims as well as Jews and Sikhs: New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1827. That opinion is not binding on the Tribunal.

31. In 2002, the Administrative Decisions 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": Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20]. On several occasions the same Tribunal and this Tribunal have applied that definition to dismiss complaints about vilification of Muslims. A summary of many of those cases was given 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."

32. In 2004 the then Attorney General, the Hon Bob Debus, expressly stated in parliamentary debate that it was the government’s intention that Muslims should be protected by the racial discrimination provisions: New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 16 September 2004 at 11044. Again, even if that is the case, the Tribunal is not bound to interpret the legislation in that way.

33. In 2011 the Appeal Panel of the Administrative Decisions Tribunal put forward a broader interpretation of the phrase “ethno-religious … origin” in Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62 at [11]. The Tribunal noted at [13] that the word “race” and the statutory terms used to define it, are imprecise. The Tribunal regarded the context of the public act – the actual words used – as “almost everything”. To illustrate its general approach, the Tribunal gave the following examples:

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.

34. The third example is the closest to the facts of this case. Depending on the context, it was the Appeal Panel’s view that it may not be necessary to show that Muslims with some common ethnicity were targeted. The Tribunal’s overall conclusion was that:

[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.

35. Ultimately the Appeal Panel decided at [51], 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”. In those circumstances the discussion of the meaning of “ethno-religious … origin” is not binding on this Tribunal. Nevertheless, Mr Ekermawi agrees with the Appeal Panel’s reasoning and urged the Tribunal to adopt it.

36. In 2013 the High Court refused Mr Ekermawi 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 attempted to agitate 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)”.

37. A complaint should not be summarily dismissed except in a very clear case. There is no binding authority on this Tribunal 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 at first instance in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20]. The proposition is that, in the context of the broadcast, Muslims living in Australia are a “race”. That proposition is not untenable or so lacking in merit that the complaint should be summarily dismissed.

Subsidiary issues

38. The respondents put forward what they described as two “subsidiary issues”. The first was that the complaint fails to identify the elements of s 20C(1), in particular the requirement that the public act “incite” hatred towards, serious contempt for, or severe ridicule of, a person or group of persons. In particular, the respondents submitted that Mr Ekermawi has not identified the audience to whom the broadcast was addressed nor has he identified any other critical elements of his case including how the broadcast incites hatred, serious ridicule or serious contempt.

39. A complainant “need not allege the relevant facts with the particularity of an indictment or of a pleading”: Langley v Niland [1981] 2 NSWLR 104 at 108. Nor does a complaint need to demonstrate a “prima facie case”: s 89(2). A failure to identify the relevant audience or to describe how the broadcast incites that audience, does not disclose any insufficiency or absence of merit in relation to the factual basis for the allegations.

40. The second subsidiary issue was that the complaint should be dismissed “for any other reason”: Anti-Discrimination Act, s 102, s 92(1) (b). That reason was that it was an abuse of process. It was submitted that Mr Ekermawi is a “serial litigant who has had little success”. The respondents did not submit that Mr Ekermawi is vexatious.

41. The respondents asserted that Mr Ekermawi has been a party to 32 hearings before various courts and tribunals, 22 of which related to vilification complaints. The respondents provided information about some of these proceedings and submitted that given his “track record”, it would be an abuse of the Tribunal’s processes to allow the complaint to proceed. The claim was said to be essentially about Mr Ekermawi’s reaction to the broadcast and about religion which is not a ground covered by the Anti-Discrimination Act. In addition, the respondents submitted that the applicant’s conduct has attracted criticism from the Tribunal and that there was a “live issue” as to his standing to bring the complaint.

42. We have addressed the respondents’ submission that religion is not a ground covered by the Anti-Discrimination Act. The respondents do not say that Mr Ekermawi is a vexatious litigant. The generalised allegations go no higher than making prejudicial observations about Mr Ekermawi’s litigation history. They do not identify any proper basis for the dismissal of his complaint.

Order

1. The application by Nine Network Australia Pty Limited and Ms Kruger for Mr Ekermawi’s complaint of racial vilification to be summarily dismissed is refused.

2. The matter is listed for Directions on 19 June 2018 at 2:00 p.m.

Annexure 1 – the complaint

16 March 2017

The Commissioner

Anti Discrimination Board of NSW

Email: complaintsadb a.justice.nsw.gov.au

Dear Sir/Madam

Racial Vilification Complaint Against Sonia Kruger and Nine Network

On behalf of my self and my community members the Ethnic Australian Muslims, I make this complaint.

On or about 18 July 2016 the TV 9, on it's morning "Today Show", it's host comintator Sonia Kruger, a person employed by the Nine Network Australia Holdings Pty Ltd T/A (TV 9) ABN 43124816093, made very racial hatred comments on public media.

Sonia Kruger's migration comments highlight 'uncomfortable' reality for Ethnic Australian Muslims, on TV 9 on or about 18 July 2016 she made racial vilifications and hatred remarks against Ethnic Muslim Australians.

Kruger wants borders closed to Muslims, in that she's implying that they are terorists to dehumanise them. When asked on whether she would like Australia's borders to be closed to Muslims, Sonia Kruger answered yes. Vision: Today Show, Channel Nine.

"Personally I think [columnist] Andrew Bolt has a point here that there is a correlation between the number of Muslims in a country and the number of terrorist attacks," Ms Kruger said.

"I would like to see it [the immigration of Muslims] stopped now for Australia because [I would like 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." obviusly to be racist, misogynistic and xenophobic statements about Ethnic-Muslims segments of our society.

She referred to Japan, a racially homogeneous country with a low proportion of Muslim migrants, and pointed out that they don't experience terror attacks by Islamic extremists. She's playing us and them game of racial hatred as she said;.

"'I want to feel safe, as all of our citizens do when they go out to celebrate Australia Day'',

"I'd been "'rocked to the core" by recent acts of terrorism, and that 1 am woried about the safety of my children".

Why not worried about other Nations children, who's daily, been expoed to crimes of war and crimes against humanities?

Kruger told the show: "I acknowledge my views yesterday [may have been

extreme,"] but that she'd been "rocked to the core" by recent acts of terrorism, and that she's woried about the safety of her children.

Kruger never told the show: About persons of other Nations travlling to Australia who's countries involved in Crimes of wars and crimes against humanities.

Given those surroundings, instead of asking why Sonia Kruger said what she did, maybe it's better to ask why she was ever given the opportunity and or maybe because the Judiciary Condone such racial racists act, as they also dehumanise Australians Ethnic-Muslims communities, refering to them as a Religion.

Kruger did target Ethnic-Muslims as a group; she believes that Muslim Australians are constructed as terrorist.

Fairfax, authorises employees decision makers to draw an inference of discrimination whare a prima facie case has been made out and the respondent fails to provide any evidence of a legitimate reason for their action.

The experiences and lives of those who live in the shadow of the legislation, who's communities, are kept together and are shielded from hurtfulness supposedly by the ADA. And these experiences are characterised by a feeling of helplessness and powerlessness in the face of these sentiments if they exist at a high enough level amongst media circles.

Too often, the right is given great rhetorical importance, but diminished in legislation. Anti Ethnic Muslims and racism more generally have a paralytic effect on individuals and their communities and their ability to participate fully in Australian society. The above is of concerns to me and my communities for it breach of the provisions: s20C, s4 (1)(3) and s7 of the Anti Discriminations ACT 1977 NSW (ADA) (the Act).

The approaches taken by the ADT/NCAT related to Ethnic-Muslims, seem clearly contrary to the spirit, intention and wording of the legislation, but it stand as precedents as a result of earlier decisions.

Islamophobia is a world wide phenomena, it's so systemic organised and very efficient and consistently by our media. Some one is organising it and paying for it, to have the like of Pauline Hanson, Andrew Bolt, Jacqui Lambie and the Media to be involved.

The Duty of the Anti Discrimination Board is to protect minorities under the ADA from the tide of racisms, for the writer is intended to take this matter all the way to the High Court. For the ADT/NCAT, it has created a culture of inequality and njustice.

Ethnic Muslim Australians are covered under the Statute of the ADA S4 (1)(3), cognate of Race SI; Ethnic and Ethno Religious, as in King-Ansell 1, Mandla 2, Jones 3, Khan (The term "ethno-religious origin" is not clear at 10) 4 Abdurrahman 5 and the Attorney General second reading speech 6, and inforced by J Debus MLA 7. The fact that Muslim Australian costetute several group dos't prevnted from been one Race S3.

Ethnic Muslim Australians don't have to use the Statute of the ADA S4 (1), cognate of Race, Nationality and National Origin as in Khan 8, Trad 9 and Ekermawi 10. for all Muslim Australians are Ethnic and or Ethno-Religious, "the person or members of the group" ADA 20C SI.

In our view, this provision requires a court or Tribunal to take into account the purpose of the legislation even if the meaning of the term is clear . The court or Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. {Mills v Meeking (1990)91 ALR 16 at 30-31.)

Yours Faithfully Sam Ekermawi

respondent; Nine Network Australia

24 Artarmon Rd, Willoughby, NSW 2068 02 - 9906 9999

1- King-Ansell v Police [1979] 2 NZLR 531

2- Mandla (Sewa Singh) and Another v Dowell Lee and Another [1983] 2 AC 548

3- Jones v Scully [2002] FCA 1080 (2 September 2002)

4- Khan v Commissioner, Department of Corrective Services & Anor [2000] NSWADT 72 at 10

5- Abdulrahman v Toll Pry Ltd trading as Toll Express [2006] NSWADT 221

6- 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. (NSW Hansard 4 May 1994, page 1827)

7-   That position is reinforced by to the Anti-Discrimination Amendment (Miscellaneous Provisions) Bill 2004: Second Reading Speech, The Hon R J Debus MLA, NSW, Parliamentary Debates (Hansard), Legislative Council, 16 September 2004,p 11044.

8- Khan -v- Commisioner, Department of Corrective Services & anor [2002] NSWADT 131

9- Trad v Jones & anor (No 3) [2009] NSWADT 318 at 50

10-   Ekermawi v Harbour Radio Pry Ltd, Ekermawi v Nine Network Television Pty Ltd

Annexure 2 – 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 that 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 3 – 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…

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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: 29 May 2018