John Fairfax Publications Pty Ltd v Kazak

Appeal Panel

CITATION:	John Fairfax Publications Pty Ltd -v- Kazak (EOD) [2002] NSWADTAP 35
PARTIES:	APPELLANT John Fairfax Publications Pty Ltd RESPONDENT Ali Kazak
FILE NUMBER:	009022
HEARING DATES:	08/02/2001
SUBMISSIONS CLOSED:	02/08/2001
DATE OF DECISION:	10/25/2002
DECISION UNDER APPEAL:	[2000] NSWADT 77
BEFORE:	Latham M - DCJ (Deputy President); Goode P - Judicial Member; Antonios Z - Member
CATCHWORDS:	leave to extend to the merits - no evidence - Racial vilification - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991094
DATE OF DECISION UNDER APPEAL:	06/22/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1987 Judiciary Act 1993 (Cth)
CASES CITED:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Murphy v Farmer (1988) 79 ALR 1 Project Blue Sky v ABA (1998) 194 CLR 355 IW v The City of Perth (1997) 191 CLR 1 Waters v Public Transport Corporation (1991) 173 CLR 349 Steel Pty Ltd v Banovic (1989) 168 CLR 165 Inquiry into Broadcasts by Ron Casey (1989) 3 BR 351 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 Malco & Ors. v Massaris & Ors [1998] NSWEOT (12/2/98) Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102
REPRESENTATION:	APPELLANT S Rares SC, barrister RESPONDENT In person
ORDERS:	1. Appeal allowed; 2. Decision of Tribunal below set aside; 3. Complaint dismissed.

1 The Appellant appeals against the substantiation of a complaint of racial vilification brought by the Respondent to this appeal. The complaint arose out of an article published by the Appellant in the Australian Financial Review on 23 December 1998. The text of that article and the text of an article in reply, published one week later on the same opinion page of the newspaper, are set out in full in the Tribunal’s decision below at paras 7 and 9 respectively. The Tribunal found that the article of 23 December 1998 infringed s 20C of the Anti Discrimination Act (the AD Act), in that it incited hatred towards the Palestinian people or serious contempt for them, on the ground of their race, and did not fall within any of the exceptions provided for by that Act. The Tribunal also upheld the constitutional validity of s 20C, according to the test prescribed by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

2 The Notice of Appeal filed by the Appellants on 20 July 2000 raised three alleged errors of law on the part of the Tribunal, namely that it had misconstrued s 20C(1), that it had erred in its construction of s 20C(2)(c), and that it had erred in its application of the test laid down in Lange. This Notice of Appeal was filed within 28 days of the Tribunal’s decision. An Amended Notice of Appeal was filed on 1 February 2001, which added a further…