Jones and Harbour Radio Pty Limited v Trad (EOD) - [2011] NSWADTAP 19

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19
Hearing dates: 23, 24 August 2010 and 14 October 2010
Decision date: 27 April 2011
Jurisdiction: Appeal Panel - Internal
Before: R Madgwick, Deputy President
R Perrignon, Judicial member
E Hayes, Non -Judicial member
Decision:
1.The parties are to file and serve within 14 days any written submissions (not exceeding 12 pages in length) as to whether the Appeal Panel should depart from the reasoning expressed in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 and within 21 days any reply (not exceeding three pages in length) to the opposing party's submission.
2.The parties are to file and serve within 14 days any written submissions (not exceeding five pages in length) as to extending the appeals or either of them to the merits in the light of our reasons, and within 21 days any reply (not exceeding two pages in length) to the opposing party's submission.
3.The case is adjourned to a date to be fixed for further consideration.

Catchwords: Anti-discrimination law - racial vilification - meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' - whether the term 'Muslim' used in broadcasts should have been understood to fall within the statutory concept of a race.
Anti-discrimination law - racial vilification - whether Administrative Decisions Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error.
Anti-discrimination law - racial vilification - meaning "public act" in s20B Anti-Discrimination Act (NSW) - both presenter of talkback radio show as well as licensed broadcaster "broadcast"
Anti-discrimination law - racial vilification - necessary to distinguish between the 'public acts' of the presenter and the licensed broadcaster respectively, since different defences might be available to each
Anti-discrimination law - racial vilification - whether Tribunal failed to consider the actual material complained of objectively and impermissibly misused merely contextual material to enquire as to speaker's subjective state of mind
Anti-discrimination law - racial vilification - whether Tribunal erred by failure to identify the actual audience to whom the material was directed
Anti-discrimination law - racial vilification - whether s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of Anti-discrimination law - racial vilification - meaning of 'fair report' in s 20C(2)(a)
Anti-discrimination law - racial vilification - meaning of 'good faith' for the purposes of 20C(2)(c)
Anti-discrimination law - racial vilification - Whether the Tribunal erred in law by awarding successful complainant damages for single short broadcast
Legislation Cited: Anti-Discrimination Act
Administrative Decisions Tribunal Act 1977
Defamation Act 2005
Cases Cited: Patten v NSW [1997] EOT(NSW) 90-91
Burns v Radio 2UE Sydney Pty Limited [2004] NSWADT 267
John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35
Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209
Mandla v Lee [1982] UKHL 7
Category: Principal judgment
Parties: Alan Jones (Appellant/Cross Respondent)
Harbour Radio Pty Limited (Appellant/Cross Respondent)
Keysar Trad (Respondent/Cross Appellant)
Representation: K Eastman (Appellant/Cross Respondent)
K Nomchong (Respondent/Cross Appellant)
Baker McKenzie (Appellant/Cross Respondent)
Turner Freeman Lawyers (Respondent/Cross Appellant)

File Number(s): 109004, 109005
Decision under appeal

Citation:

Trad v Jones & anor (No 3) [2009] NSWADT 318

Date of Decision:

2009-12-21 00:00:00

Before:

Equal Opportunity Division

File Number(s):

071036

Reasons for Decision

Cross-appeals about a finding and allegations of hate speech

These are cross-appeals from a decision of the Tribunal in its Equal Opportunity Division which found that Mr Jones and Harbour Radio had incited hatred, serious contempt and severe ridicule of Lebanese Muslims in a radio broadcast on 28 April 2005 and awarded him damages of $10,000. The Tribunal rejected claims that other broadcasts on 27 and 28 April had targeted any ethno-religious group and were confined to attacks on Muslims as believers in Islam.

Mr Trad is and was a controversial public figure often in the Sydney media seeking to defend perceived excesses by some Muslim clerics and speaking on other issues of concern to Muslims. Mr Trad was born in Lebanon, lives in Sydney with his family and is a practising Muslim. He was the President of the Lebanese Muslim Association which conducts a large and well-known mosque at Lakemba, near Bankstown.

Mr Jones, also a controversial public figure, hosted a popular talkback radio show, as he still does. It featured his strongly stated opinions on public issues and frequently blunt treatment of interviewees and listeners who call or write in to him. Harbour Radio runs the radio station to which Mr Jones is attached and is the licensed broadcaster under the Commonwealth legislation regulating radio broadcasting in respect of 2GB, the relevant radio station.

How the impugned broadcasts arose

Many Lebanese Muslims live and lived in the Bankstown area.

On 24 April 2005 Ms Miranda Devine, a newspaper columnist, wrote a story about a Muslim sheik, Faiz Mohammad, who had on 18 March 2005 at a public meeting at Bankstown Town Hall suggested that women who dressed as young women in Australia commonly do were themselves responsible if they were sexually assaulted.

Mr Jones soon after came into possession of a tape recording of the sheik's remarks, which had been made in English. In broadcasts between 26th and 29th April, among other subjects, Mr Jones expressed his outrage at the sheik's statements and an apparent absence or tardiness of censure of the sheik by Muslims and in particular by their leaders such as, and including, Mr Trad.

On 27th April a television current affairs show featured a story showing young men who self-identified as of Lebanese origins behaving on 24th April, the day before Anzac Day, in an alarming way in Hickson Road at The Rocks area of Sydney. They drove in an untoward manner, taunted police who attended as 'pigs', and mocked the Anzac traditions. The police did not arrest them. On and after 28 April Mr Jones commented, again in outraged tones, about this event, among other items.

The broadcasts actually complained of

In the ultimate statement of his points of claim, the broadcast material of which Mr Trad complained was divided into two categories, set out in 'Schedule A' and 'Schedule B'.

Schedule A, relating to 28th April, which is relatively short, was in these terms:

Mr Jones: Yes, it's 20 past nine. I've just received this letter, which has just been sent to me by a listener. Frightening.

He says:

I watched in horror as Lebanese males --

this is in relation to the Channel 9 programme last night -

openly taunted police who were sent there to try and shift these idiots from the area. The camera clearly showed Lebanese males swearing and challenging police to fight, openly humiliating them. Singing 'pig songs' and walking up to the window of the police car and hurling abuse at the police inside. What did the police do? Nothing? They drove off to the cat calls and abuse of a clearly out-of-control crowd.

Remember, these people announced themselves as Lebanese Muslims.

Were police reinforcements called to make arrests? No.

He says:

If ever there were clear examples of the offence 'intimidate police' that was captured on film. But the police involved just meekly drove away. It was sickening. But more was to come. A number of these mongrels then pretended to hold a minute's silence for Anzac Day. Obviously this film was - this segment was filmed on the 24th of April. They then bowed their heads and pretended to cry and began to laugh and make jokes about our fallen heroes. It was absolutely gut-wrenching to watch and listen to these mongrels desecrate our national memory.

If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it. They have no connection to us. They simply rape, pillage and plunder a nation that's taken them in. I can't believe what I'm seeing. What did we do as a nation to have this vermin infest our shores? What about the sacrifices that our war dead gave to this country to make it what it is today, and these mongrels laugh at them on national TV.

Tell me we don't have a national security problem in the making. And that show last night would have shown Bob Carr for what he is - a liar. 'We have delivered safer streets for the community', he shouts. He continues to talk about how his government have made the New South Wales Police Force the number one force in the country. What we saw last night was a graphic example of the Carr Government deception, and the incredible failures of not only Ryan but now Moroney.

We have a Police Force that allows itself to be humiliated and assaulted by mobs of rampaging youths at Redfern, Macquarie Fields and anywhere else in Sydney. This is the age of the academic trained police, who are taught to turn the other cheek and cop whatever comes their way. When police simply back down and absorb the insults and the humiliation that I saw last night then I know we've lost control of the streets.

Well, we pay government to be able to address these issues and yet again they don't. And as I said before, if there's someone out there who can't do the job, turn over your badge and give it to someone who can.

[emphasis added]

The Schedule B broadcasts made on 27th and 28th April mainly dealt with reactions by Mr Jones and his listeners to the story of the sheik's offensive remarks. Those broadcasts, along with the Schedule A material are marked in italics in the Appendix to these reasons.

Mr Jones and Harbour without objection also placed before the Tribunal records of the entirety of Mr Jones' programs on the days in question. Transcripts of all the segments of the programs that deal with the relevant subject matters run to 122 pages. There was much other, more voluminous, material: '[a]part from Mr Jones's own commentary and interviews, the broadcasts included news, commentary, advertising, music, weather and traffic reports, promotions for other 2GB programs and other items in which he did not speak': Tribunal Decision para.116

The Tribunal summarised the relevant features of the broadcasts that it regarded as having the 'greatest evidentiary significance' in paras 26 to 113 inclusive of its reasons. An edited version of that summary appears as the Appendix to this decision. The segments complained of by Mr Trad in his particulars are identified in bold type. There was no serious complaint on appeal as to the general accuracy of that summary or selection of the material quoted in it, though strong complaint was made of the relevance and fairness of comments apparently reflecting on Mr Jones' subjective states of mind - that matter is further discussed below.

The NSW legislative prohibition on 'hate speech'

Mr Trad complained to the Anti-Discrimination Board about aspects of some of these broadcasts, alleging that Mr Jones and Harbour had, contrary to s20C of the Anti-Discrimination Act (the 'AD Act') Act, incited hatred, serious contempt and/or severe ridicule of Lebanese Muslims and/or Muslims generally. In time his allegations were heard by the Tribunal.

The relevant provisions of that Act are ss 20C, 20B and the definition of 'race' in s4. Mr Jones and Harbour sought to draw comfort from the absence of the term 'vilification'' in s4A. It was also suggested that s4(3) could assist Mr Trad's case. Those provisions state:

20C (1) 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.

(2) Nothing in this section renders unlawful:

(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.

20B In this Division, "public act" includes:

(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) ..., 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.

4 (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

...

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

(3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race

4A If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

The decision at first instance

In its decision the Tribunal upheld Mr Trad's complaint about the Schedule A material and awarded him damages of $10,000 on the basis that it incited hatred etc. of Lebanese Muslims, admitted by Mr Jones and Harbour to be a group of 'ethno-religious origin', on the ground of their 'race'. The sting was obviously mainly in the words emphasized in the extract set out above. The Tribunal directed that the parties confer as to the form of an apology it considered that Mr Jones and Harbour should be ordered to make. The Tribunal further directed that Harbour Radio should conduct a 'critical review of its policies and practices on racial vilification' and staff training in such matters.

However the Tribunal rejected Mr Trad's complaint about the matter in Schedule B, holding that it had not gone beyond criticising Muslims seen only as religious observers, and therefore finding it unnecessary to determine whether Schedule B amounted to incitement of hatred etc. or whether the criticisms were on the ground of race.

The appeals

Under the Administrative Decisions Tribunal Act 1977 ('ADT Act') an appeal lies as of right to an Appeal Panel of the Tribunal on a question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: ADT Act ss 112-3. Both parties asked that their respective appeal should be so extended.

The broadcasters' appeal

Mr Jones and Harbour appeal on questions of law against the Schedule A conclusions. They say the questions of law are in substance:

a) Whether Mr Jones may be properly said to have engaged in a 'public act' when it was Harbour which was the licensed broadcaster and controlled the equipment which enabled the transmission of the material complained of to the public. (Ground 1 in the Jones-Harbour Notice of Appeal)

b) Whether it was necessary for the Tribunal to distinguish between the 'public acts' of Mr Jones and Harbour respectively, since different defences might be available to each. (Also Ground 1)

c) Whether it was procedurally unfair for the Tribunal to have referred to material on 29th April in its decision about Schedule A which was confined in particulars only as to 28th April. (Ground 2)

d) Whether the Tribunal failed to consider the actual material complained of objectively and impermissibly misused the contextual material to enquire as to Mr Jones' subjective state of mind from time to time. (Grounds 3, 7 and 8)

e) Whether the Tribunal erred by failure to identify the audience to whom the material was directed. (Ground 6)

f) Whether the Tribunal erred by finding that s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of. (Ground 9)

g) Whether various findings were not supported by evidence and/or were irrelevant. (Ground 10)

h) Whether the Tribunal by some unwarranted findings manifested actual or ostensible bias against Mr Jones (Ground 11)

i) Whether the Tribunal failed to consider the defences available to Harbour Radio as distinct from Mr Jones (Ground 13)

j) Whether the Tribunal erred by construing 'fair report' in s 20C(2)(a) as referring to a reasonable report rather than an accurate one (Ground 12)

k) Whether the Tribunal erred by misapplying the test for 'good faith' for the purposes of 20C(2)(c) (Ground 14)

l) Whether the Tribunal erred in law by awarding Mr Trad damages (Ground 15)

m) Whether the Tribunal erred in law by making its direction as to an apology (Ground 16)

n) Whether the Tribunal erred in law by making the order that Harbour review its policies and practices as to racial vilification (Ground 17)

Mr Trad's appeal

Mr Trad also appeals. He contests the rejection of his Schedule B complaints and asserts in substance that the following questions of law arise:

o) Whether the previously received approach to the meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' is incorrect so that the term 'Muslim' used in the Schedule B broadcasts should have been understood to fall within the statutory concept of a race.

p) Whether as to Schedule B the Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error.

Consideration

a) Whether Mr Jones may be properly said to have engaged in a 'public act' when it was Harbour which was the licensed broadcaster and controlled the equipment which enabled the transmission of the material complained of to the public. (Ground 1 in the Jones-Harbour Notice of Appeal)

The gravamen of Ms Eastman's argument was that s 20B(a) 'is concerned with the form of communication, not the content for the purpose of identifying the person who did the public act... [Mr Jones' role was to provide content. [He] had no capacity to communicate the content to the public in his own right'.

This cannot be sustained. Mr Jones clearly 'communicate[ed] to the public' by presenting his own words and those of his listeners for near-immediate radio broadcast transmission by Harbour. He intended, wished and it was in his interests that his material should reach as many people as possible. He did in fact have the capacity to communicate the content to the public by reason of his private company's contractual arrangements with Harbour. By consent these arrangements were accorded confidentiality for commercial reasons. He knew that the content he fed into the microphone would go to the public. Mr Jones was not for the purpose of the AD Act merely an accessory to Harbour's public acts.

It is irrelevant, as the Tribunal indicated, that under Commonwealth laws Harbour was actually the party licensed to make the actual transmission or that 'broadcast' may have some technical meaning for the licensing legislation. Neither in s20B nor elsewhere in the Act or its context is there any indicator that the breadth of the meaning of the words 'communication' and 'broadcast' in ordinary usage should be constricted. On the contrary, an expansive meaning has been given to a 'public act' and the mischief that the s20C prohibition on public racial vilification is aimed at suggests that no narrow interpretation should be given to the statutory extensions of that term.

While it is not determinative, a similar approach has long been taken by the Tribunal and its predecessor: Patten v NSW [1997] EOT(NSW) 90-91, Burns v Radio 2UE Sydney Pty Limited [2004] NSWADT 267.

b) Whether it was necessary for the Tribunal to distinguish between the 'public acts' of Mr Jones and Harbour respectively, since different defences might be available to each. (Also Ground 1)

While it is true enough that, practically speaking, Mr Jones and Harbour engaged as collaborators in the same public acts, as Ms Nomchong submitted for Mr Trad, the exact nature of what each did differed and might have made relevant different considerations in relation to the pleaded defences of fair report and reasonable, good faith discussion or debate. The Tribunal did not consider these differences and there was no separate consideration of the defences available to Mr Jones and Harbour. Among the consequences of that, Mr Jones would not benefit as a result of any defence of Harbour's succeeding.

The significance of this lack of separate consideration lies only as to Harbour's defences. Whether there was any legal error that might have affected the result will be considered below in relation to the complaint about the lack of such separate consideration.

c) Whether it was procedurally unfair for the Tribunal to have referred to material on 29th April in its decision about Schedule A which was confined and particularised only as to 28th April. (Ground 2)

It was conceded that, as to the issue of reasonable, good faith discussion, all the material before the Tribunal was available for consideration. The high point of the suggestion that the Tribunal for other purposes unfairly took into account material from the 29th April program was what the Tribunal said at paras. 131-4:

131 Schedule A This segment of broadcast identified concerned the behaviour of a group of young "car hoons" who had been filmed confronting police officers in Hickson Rd, The Rocks. It is set out in full at [13] of these Reasons. The letter itself identifies the people behaving badly as "Lebanese males" and twice uses the phrase. Mr Jones then added his own editorial comment: "Remember, these people announced themselves as Lebanese Muslims".

132 Counsel for the respondents argues that Mr Jones's criticism was directed at a small group of Lebanese males who were engaged in anti-social or unlawful conduct, not at Lebanese people or Lebanese Muslims generally. She argues that this would have been understood as such by the ordinary, reasonable listener.

133 She further argued that the ordinary, reasonable listener would not have inferred that Mr Jones was criticising Lebanese people or Lebanese Muslims in a general sense, but that his criticisms were concentrated solely on the small group of "hoons" behaving badly.

134 If the proposition put for the respondents is correct, why was it necessary for Mr Jones to refer to their race at all? The answer, surely, is that, as Mr Jones put it to Mr Michael Gallagher during an interview on 28 April, he perceived the behaviour of the "hoons" to be integral to and symptomatic of a wider "Lebanese Muslim" problem.

135 In our view it is a considerable oversimplification to argue that "any disparagement expressed by Mr Jones towards the men was directed not to their race, but rather to the conduct of specific individuals." Yes, Mr Jones was undoubtedly concerned with those individuals and their conduct, but it is evident that he saw them as representative of the threat posed to Australian society by Lebanese Muslims and Lebanese males.

But this extract, which could mistakenly suggest that Mr Jones' own subjective state of mind was relevant to the question for objective determination, was immediately followed by these observations:

136 While plain that the trigger for the segment was "the hoons", in our view the ordinary reasonable listener would have understood that they were not the sole group targeted by, or referred to, in the broadcast. In our view this is apparent from the segment taken as a whole and in particular having regard to Mr Jones's interpolation - "Remember, these people announced themselves as Lebanese Muslims", the repeated references to "Lebanese males" and the following passage read out by Mr Jones:

If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it. They have no connection to us. They simply rape, pillage and plunder a nation that's taken them in. I can't believe what I'm seeing. What did we do as a nation to have this vermin infest our shores? What about the sacrifices that our war dead gave to this country to make it what it is today, and these mongrels laugh at them on national TV.

Tell me we don't have a national security problem in the making...

137 We find that the ordinary reasonable listener would have understood that "Lebanese males" and "Lebanese Muslims" were referred to in the Schedule A broadcast.

In other words, the correct, objective test was in fact applied. It seems likely that in paras 134-5 the Tribunal was trying to put itself by the radio of the ordinary reasonable listener. The Tribunal appears to have referred to the 29th April material only for an apt summary of what such a listener might have thought on hearing the Schedule A broadcast. In any case, it was not taken into account to supplement the objective meaning of Schedule A with what Mr Jones indicated was his subjective view on a later occasion.

There was no unfairness and no legal error.

d) Whether the Tribunal failed to consider the actual material complained of objectively and impermissibly misused the contextual material to enquire as to Mr Jones' subjective state of mind from time to time. (Grounds 3, 7 and 8)

Mr Jones and Harbour ('the broadcasters') tendered the records of all the broadcasts (including matter having no connection with the sheik, Muslims, Lebanese or 'car hoons') in aid of the view that the Tribunal should listen to and interpret them as wholes (and a whole), particularly insofar as the broadcasts may have reported a third party. It was also their factual argument that the forensic condensation involved in considering only the parts of that material complained of and/or abstracted by the Tribunal tended to an unreal enlargement of the likely actual significance of the few items complained of out of the vast amount of broadcast material, as those items and that other material would have been heard by listeners.

They say that, in resorting to matter outside that contained in the two Schedules relied on by Mr Trad, the Tribunal went beyond fair dealing with the contextual material: it discerned 'themes' pursued by Mr Jones, it 'editorialised' and drew adverse inferences about the meanings of words spoken and the intentions of their speakers. Counsel submitted that '[in] paras [29]-[113] the Tribunal appears to have undertaken a task of finding grounds for complaint rather than determining the complaint advanced by Mr [Trad]'. (Those paragraphs are reproduced in the Appendix to these reasons). Thereby also, counsel says, the Tribunal failed to look only at the likely effect, objectively ascertained, of the words broadcast on an ordinary, reasonable member of the listening audience.

It is, as the broadcasters submitted, settled law that the intentions or motives of a putative inciter are not relevant to the objective assessment required by s20C: John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 at [24], Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12].

However, Mr Jones by his pleaded defences claimed, among other things, that in presenting to the public the Schedule A material (as well as the Schedule B matter) the broadcasts were made reasonably and in good faith, for purposes of discussion or debate about and expositions of the matters set out in [the broadcasts on 26, 27 and 28 April] and he was thereby exonerated by s20C(2)(c) from what might otherwise have been unlawful conduct. That defence was carefully and, in our view, correctly pleaded.

s20C(2)(c) protects

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,

That defence is a broad and generous one in the interests of the virtues of free speech. Had the words 'including discussion or debate about and expositions of any act or matter' not been included, it may well have been right, by application of the ejusdem generis principle, to construe 'other purposes in the public interest' as limited to purposes of the same kinds as 'academic, artistic, scientific or research purposes', that is to say, purposes of serious, intellectual kinds. However the concluding words indicate that 'other purposes in the public interest' are to be taken to include the purposes of discussion or debate about any act or matter, as well as expositions (that is, setting forth or explaining) of some subject. Thus words said for the purpose of discussion or debate about virtually any subject are deemed to be said for a purpose that is in the public interest.

In order that the width of the subs (2) purposes might not denude the s20C(1) prohibition against public, racial vilification of scope for application, the legislature has insisted that the publication of what would otherwise be prohibited must be done 'reasonably and in good faith'. In the context of this legislation, which differs from that in some other jurisdictions, the Tribunal must give full force and effect to those concepts when considering their application.

In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004), speaking of the Commonwealth racial vilification legislation, French J said:

78 There is a number of definitions of 'reasonable' in the Shorter Oxford English Dictionary. The relevant ones are:

'3. Agreeable to reason; not irrational, absurd or ridiculous.

4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.'

The adverb 'reasonably' is defined as 'in a reasonable manner; sufficiently, fairly'.

79 There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable . It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and recognition of the two competing values that are protected by those sections.

80 ... An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise 'inferior' to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to par (b) of s 18D.

81 The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done 'reasonably'. A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered 'reasonably'.

82 The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s 18D.

(emphasis added).

By way of broad analogy and for a possibly useful list of some of the kinds of matters that might be relevant to a consideration of whether an inciter of hatred, serious contempt or severe ridicule has nevertheless acted reasonably (not an intuitively easy concept), s30 of the Defamation Act 2005 may be instructive. It provides for a defence of qualified privilege for the publication of defamatory matter to a person if the defendant proves that:

(a) the recipient has an interest or apparent interest in having

information on some subject, and

(b) the matter is published to the recipient in the course of giving to

the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is

reasonable in the circumstances.

The section continues:

(3) In determining for the purposes of subsection (1) whether the conduct

of the defendant in publishing matter about a person is reasonable in the

circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the

performance of the public functions or activities of the person,

and

(c) the seriousness of any defamatory imputation carried by the

matter published, and

(d) the extent to which the matter published distinguishes between

suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the

matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant

operates, and

(g) the sources of the information in the matter published and the

integrity of those sources, and

(h) whether the matter published contained the substance of the

person's side of the story and, if not, whether a reasonable

attempt was made by the defendant to obtain and publish a

response from the person, and

(i) any other steps taken to verify the information in the matter

published, and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under

subsection (1) is defeated if the plaintiff proves that the publication of

the defamatory matter was actuated by malice.

(5)...

To qualify for s20C(2) protection, not only must the public act be done 'reasonably', it must be done 'in good faith'. There must be material before the Tribunal to show that it was. Mr Jones did not give evidence and the only material that might have shown that was the broadcasts themselves.

The phrase 'in good faith' envisages honesty and sincerity of purpose, including as to observance of the law against public hate speech. There is a subjective and an objective aspect to it. It is more than just the absence of malice. Particularly in the absence of positive extrinsic evidence from which such honesty and sincerity might be inferred, various matters might prevent a finding of good faith, including apparent recklessness as to the serious harm likely to be caused. In Bropho French J said of 'good faith':

95 ... s 18D ... requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict . It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.

96 It follows from the preceding discussion that good faith may be tested both subjectively and objectively . Want of subjective good faith, i.e. seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively

....

101 Generally speaking the absence of subjective good faith, e.g. dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes. But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required. In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section.

102 A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith.

(emphasis added)

Where, as here, the statute outlaws not public acts that merely 'offend, insult, humiliate or intimidate' people by reason of their race, but only acts that incite actual 'hatred towards, serious contempt for, or severe ridicule of' a person or group on the ground of their race, it is even more important that the Tribunal give effect to the principle, as French J put it, that

... good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively.

The present point of all this is that a shrewd review of all the contextual material was perfectly appropriate for the purpose of investigating the validity of Mr Jones' defence, and that a wide variety of matters including Mr Jones' own apparent states of mind might be relevant, as was properly conceded.

The question to be answered is whether the Tribunal did in fact use its review thus properly undertaken and its criticisms of Mr Jones for legally mistaken purposes.

As to the summary of the broadcasts, the Tribunal's remarks that might and did reflect adversely on Mr Jones, and the matter it reproduced that implied unbalanced and excessive overstatement by him, went to questions of his fairness and balance towards the Muslim, Lebanese Muslim or Lebanese people, leaders and callers, as well as Mr Trad personally, whose actions and inaction he and many of his other callers found wanting. The Tribunal itself does not appear overall to have lacked balance or been unfair to Mr Jones: it recorded conciliatory remarks, disavowals of concern about Lebanese people and Muslims who were not leaders, and a paean of praise for a young Muslim caller Ahmed that Mr Jones made in the later broadcasts. (A single occasion of legally excessive criticism of Mr Jones is dealt with below).

However, later passages in the Tribunal's reasons for decision suggest that it may have confused the relevance of the material not included in the Schedules and in particular Schedule A. Under the heading 'Were the broadcasts capable of inciting hatred or serious contempt?' the Tribunal indicated it was 'entitled to take into account a number of matters' that it clearly found incriminatory. These included his public prominence, his capacity to influence listeners, his evident technique of provoking inflamed comment and his tone which 'combined, often simultaneously, elements of urgency, anxiety, anger, aggression and contempt' (para 172).

In looking to judge the likely effects of the Schedule A material and its capacity to incite hatred etc., we see no error of law in the Tribunal having considered such matters. It is true that a person with a high public profile who is an influential opinion leader is in no worse position as to the legal right to freedom of speech than any other. However the potential for such a person's stated opinions or endorsements of others' remarks to influence the ordinary reasonable member of a more or less unremarkable audience may well be thought likely to be greater than that of some unknown plodder: people in the latter class are rarely sought for product endorsements, for example. The hypothetical listener may well have thought that Mr Jones was urging agreement with what he was saying or apparently endorsing although, had the same message been conveyed by an inarticulate and unknown person, the same conclusion may not have been drawn. The Tribunal had at para 158 correctly stated that the test was an objective one.

The Tribunal did not, however, stop there. It continued:

175 Seventh, while the issue we are required to determine is whether the Schedule A broadcast had the capacity to incite, the broadcasts throughout the entire period of the complaint are also relevant although not determinative. Over the period of the broadcasts he emphasised repeatedly the terrifying nature of the threats posed by Sheik Faiz Mohammed, his followers, the "car hoons", at one point heightening the rhetoric to suggest these enemies were present in "vast numbers". Mr Jones repeatedly made unspecific complaints against "the car hoons" and the Lebanese Muslim community generally and offered comments such as "people have had an absolute gutful". Although the complaints were expressed this way, when combined with frequent denunciations of government and police inaction, the implication appeared to be that populist action may be required to address the issue. In a conversation with 'Usel', who offered to take vigilante action against the "car hoons", Mr Jones, while not expressly endorsing this approach, emphasised that "the police don't seem to be able to find them" and that "police hands are tied". ... This theme was consistent with the closing lines of the Schedule A broadcast:

Well, we pay government to be able to address these issues and yet again they don't. And as I said before, if there's someone out there who can't do the job, turn over your badge and give it to someone who can.

176 When talking with Mr Michael Gallagher, Opposition shadow Minister for Police, Mr Jones conflated a number of issues suggesting that they were aspects of the same problem: "So how are we going to deal with this gang problem, this Lebanese Muslim problem, the hoon problems? What do we do?" he asked Mr Gallagher. Mr Jones seems to have considered that the ethnicity of the "car hoons" was integral to their anti-social behaviour. At one point he commented to his listeners that the "hoons" had "admitted" being Lebanese as though this, in itself, was some sort of criminal trait or characteristic. It is not surprising, then, that he received emails from apparently alarmed Lebanese Muslim correspondents keen to distance themselves from the "hoons" and to point out that the "hoons" were not representative of the wider Lebanese Muslim community.

177 In our view, his vehemently expressed views on these subjects throughout the broadcasts, together with his invitations to callers to express theirs, and his frequent affirmation of those views that coincided with his own, constituted an incitement to hold the Lebanese Muslim community in serious contempt.

178 In respect of the Schedule A broadcast we find that not only did it convey the impression that Mr Jones held the Lebanese Muslim community and Lebanese males in deep contempt but also was capable of inciting the ordinary reasonable listener to feel serious contempt for both groups.

(emphasis added).

The Tribunal ultimately answered the question it had posed to itself in para 158 ('Were the broadcasts capable of inciting hatred or serious contempt?') in para 178 in terms that were themselves legally unobjectionable. Para 177 needs to be understood in the light of that.

It was indeed of no direct relevance to that answer whether Mr Jones' words 'throughout the broadcasts ... constituted an incitement to hold the Lebanese Muslim community in serious contempt'. However the forensic context is of importance. As we understand it, the principal factual arguments urged for Mr Jones were that the small Schedule A segment would tend to be lost for the hypothetical, ordinary, reasonable listener in among the vast amount of material of very different kinds that was broadcast by him; that what he said on 28th April and overall was not all one way to the detriment of Lebanese Australians, and that he was only complaining in Schedule A of the 'car hoons'' behaviour. The degree to which his other broadcasts highlighted for his listeners criticisms of Lebanese Australians generally, and the degree of virulence of those criticisms, could be relevant to all of those submissions. The weight to be given to those matters was a factual question for the Tribunal.

The one area where Mr Jones has been able to point to a legally objectionable finding was the Tribunal's apparent suggestions (in para 175) that Mr Jones called for violence by way of populist action and (in paras 175 and 213) that he gave a gung-ho caller named Usel 'to believe that [Usel's] proposed 'vigilante' solution was a welcome suggestion and that this 'implied [Mr Jones'] partiality for a vigilante solution to the problem'. Under the Briginshaw principle such serious criticisms should not have been based on such a tenuous inference.

But this occurred in the section of the decision headed, 'Were the broadcasts reasonable commentary?' Further, that aspect was but one among several reasons given by the Tribunal for a negative answer to its question, and the several reasons were in the character of strands in a rope of reasoning rather than links in a chain such that the invalidity of one strand would not invalidate the conclusion.

Accordingly we do not accept that the Tribunal misinterpreted 'incites', incorrectly applied the objective test for that concept or took irrelevant material into account.

e) Whether the Tribunal erred by failure to identify the audience to whom the material was directed. (Ground 6

It is common ground that the identification and nature of the audience were essential matters. As Ms Eastman put it, the question is whether the words spoken were likely to incite 'the ordinary reasonable listener within that audience'.

Counsel put the argument before us in this way:

60. At [130], the Tribunal referred to various formulations of the legal test to identify the audience but then failed to make any factual finding about the identity of the audience for the purpose of identifying the 'ordinary reasonable listener' for the purpose of the Schedule A broadcast. The Tribunal failed to refer to any of the evidence about the audience for the broadcasts for the purpose of making a finding about the ordinary reasonable listener in this audience. The Tribunal did not address the unchallenged evidence of Mr Thomas as to the nature of the audience (Exhibit R7 paragraphs 21 - 34).

61. At various places, the Tribunal refers to 'Mr Jones's audience' but does so without reference to the evidence about the audience or the composition of the audience: see [103], [106], [120], [125], [170], [171], [173], [174], [195], [197], [200], [220] and [223]. These references refer to the audience collectively rather than an 'ordinary reasonable listener' within the particular audience.

62. The evidence was directed to the features of a talk-back audience. While the Tribunal referred to the features of talk-back radio at [162] - [163] of the Decision, it failed to make findings about the ordinary reasonable listener in the particular audience. The Tribunal failed to address the evidence that the ordinary reasonable listener was a member of a talk-back audience, who understands and expects that the talk-back forum is one for discussion and debate. The ordinary reasonable listener in this audience expects that current affairs and issues in the public domain will be discussed. The ordinary reasonable listener in this audience wants to be both informed and entertained. The ordinary reasonable listener of a program broadcast by the Second Appellant expects the presenters (including the First Appellant) to express his opinion and that he will invite listeners to call in to express their opinions, on matters of interest. The ordinary reasonable listener of a program broadcast by the Second Appellant does not expect that the First Appellant will be a moderator of the debate. The ordinary reasonable listener would be used to the First Appellant's tone and style of presentation.

63. The Tribunal's failure to identify the ordinary reasonable listener of the particular audience meant that it erred in construing s 20C and could not then have made findings that the Schedule A broadcast could have incited the audience to serious contempt of Lebanese men.

It is apparent from the general references given by counsel that the Tribunal found the audience to be large; 'within the general public'; used to Mr Jones approaching even less controversial topics with vigour; inclusive of at least hundreds of Lebanese Muslims, and inclusive of people far more extreme in their apparent antipathy to the Lebanese Muslim community than Mr Jones himself.

When the Tribunal specifically came to deal with the broadcasters'

arguments, it said:

162 It was argued for the respondents that with respect to the broadcasts an ordinary, reasonable listener would not have considered that they were being incited to hate or hold Lebanese Muslims or Lebanese people living in Sydney in serious contempt.

163 In advancing that argument, it was put to us by counsel for the respondents that we ought take into account "the nature of commercial broadcasting" and, in particular, "the nature of talk-back radio", as well as the significant public interest in the two issues raised by Mr Jones. We have done so.

164 We accept that talk-back radio derives its entertainment value from the fact that broadcasters such as Mr Jones are highly opinionated and that their opinions are expressed vigorously. We accept that debate and discussion about current affairs are the bread-and-butter of talk-back radio. We accept that talk-back broadcasters are advocates for causes, often of a populist nature. This is part of the rich texture of our media. The American writer David Foster Wallace described talk-back radio and the cultural identity of talk-back hosts in the United States in a way that seems apt to describe the type of show Mr Jones presents:

And talk radio is very deliberately not part of ... elite media... a large part of [the hosts'] on-air persona is that they are of and for their audience - the Little Guy... the talk show host's persona and appeal are deeply, totally populist... 1 "Host" in Consider the Lobster and other essays" Little, Brown & Co, New York 2006 p304.

165 Notwithstanding the peculiar qualities of talk-back radio, we have concluded that the Schedule A broadcast had the tendency or capacity to incite the ordinary, reasonable listener to hatred of, or serious contempt for, Lebanese Muslims and Lebanese males.

It is true that the Tribunal did not refer to some known attributes of Mr Jones' probable audience.

But the matter needs to be approached in a practical way. The only distinguishing attributes of Mr Jones' audience mentioned in argument before us but not referred to by the Tribunal were that there was a mild preponderance of women, that most listeners were at home, and that they were in the older reaches of the general population's age distribution. It was not suggested that a hypothetical ordinary reasonable listener from a population with those attributes or any of them would be likely to have any different comprehension or reaction to Mr Jones' words than a hypothetical ordinary reasonable person drawn from the population at large. Nor was there any evidence that might have sustained such an unlikely proposition.

The real burden of the broadcasters' argument was that the significant likely characteristics of Mr Jones' actual audience were its liking, or at least being attuned to, the methods and common practices of talkback radio generally and of Mr Jones' program in particular, and its desire to be entertained as well as to be informed. Manifestly the Tribunal took this submission into account and weighed it.

No legal error with a reasonably possible effect on the outcome has been shown.

f) Whether the Tribunal erred by finding that s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of. (Ground 9)

There were two aspects to the submissions. The first was that because of the expressio unius principle and the terms of s4A, 'on the ground of' in s20C(1) should be read as meaning on the sole ground, that is to say 'the' ground, of race. The second was that the Tribunal confused the issue of identification of the person or group putatively vilified with the issue of whether their race was the ground on which they were vilified.

The first proposition must be rejected, on a consideration of the mischief to which s20C was directed. The section proscribes very serious racist hate speech including what are among the most appalling kinds of words human beings can utter, and conduct that in living memory and current international example has led people down roads to the most horrific cruelties and suffering. Speech or writing that may incite hatred or contempt of a group may commonly occur in the context of observations on some subject connected with the group that may itself be a perfectly legitimate matter for discussion: the reference in s20C(2)(c) to 'academic, artistic, scientific or research purposes' clearly indicates as much. Particularly having regard to the width of the additional defence relating to 'discussion or debate about and expositions of any act or matter' (which we have already explained), the suggested construction would rob s20C of what may confidently imputed to be the legislature's view of its proper, broad scope. It would be, to put the matter with extreme understatement, unlikely that the legislature would have wished that a perpetrator of racist hate speech should escape s20C merely because he or she could point to another and subsidiary reason for the hate speech than racism.

Trite law would indicate that it is implicit in the notion of 'on the ground of ...race' that race should be a real, operative and substantial ground of the vilification. No other limitation is necessary or warranted. However in Veloskey & Anor -v- Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 an Appeal Panel said:

30 [The reactions of hatred etc.] must be aroused because of the race of the person or group of persons, said to be vilified by the public act. Race, in these circumstances, must be "a substantially contributing factor" to the incitement. It is not sufficient if there are other, equally consistent, grounds for the incitement, given that s 4A of the AD Act does not apply to the vilification provisions: Kazak v John Fairfax Publications Ltd; Western Aboriginal Legal Service Ltd v Jones & Anor.; Burns v Dye.

It is perhaps open to doubt whether in s4A 'discrimination' does not include racial vilification (what is the latter but a species of discrimination?) and whether if race and another ground equally contribute that is not enough, but those questions need not be considered further here.

In any case the expressio unius principle is not the strongest of reeds. It does not here have the strength of the contextual considerations mentioned.

Our approach is consistent with the later formulation in Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 as the Tribunal here summarised it:

182 In Nicholls & Nicholls ... an Appeal Panel considered the meaning of the phrase 'on the ground of' in the context of s 50 of the Act which deals with the complaint of victimisation. The Panel concluded that the question posed is:

Whether the fact that the [complainant] had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. (emphasis added)

The second part of the submission, that the Tribunal confused the issue of identification of the person or group putatively vilified with the issue of whether their race was the ground on which they were vilified, must also be rejected. The suggestion was that because the Tribunal found (at para 136) that the 'trigger' for [Schedule A] was "the hoons"', and that it vilified only Lebanese males the vilification could not have been on the ground of their race.

The passages complained of were under the heading 'Who or what group was the target of the broadcasts?' The Tribunal said:

128 The argument concerning "Muslims" is dealt with above. Males self evidently do not, by themselves, constitute a race for biological purposes or for the purposes of the Act. A race, by definition, must be constituted by people of both genders. Nonetheless s 20C operates to make unlawful vilification of a person or group of persons on the ground of their race. The offending conduct need not be directed at the "entire race". Accordingly if the public act incites the requisite emotion towards a group of males on the ground of their race, it will be caught by the provision.

...

136 While plain that the trigger for the segment was "the hoons", in our view the ordinary reasonable listener would have understood that they were not the sole group targeted by, or referred to, in the broadcast. In our view this is apparent from the segment taken as a whole and in particular having regard to Mr Jones's interpolation - "Remember, these people announced themselves as Lebanese Muslims", the repeated references to "Lebanese males" and the following passage read out by Mr Jones:

If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it. They have no connection to us. They simply rape, pillage and plunder a nation that's taken them in. I can't believe what I'm seeing. What did we do as a nation to have this vermin infest our shores? What about the sacrifices that our war dead gave to this country to make it what it is today, and these mongrels laugh at them on national TV.

Tell me we don't have a national security problem in the making...

137 We find that the ordinary reasonable listener would have understood that "Lebanese males" and "Lebanese Muslims" were referred to in the Schedule A broadcast.

There was no confusion of concepts and no misapplication of the causal test. While the 'hoons' were indeed the trigger for the reading of the letter and its being written, the letter-writer went on to a broadside against Lebanese males generally. Mr Jones would clearly have been understood by the hypothetical ordinary listener to have endorsed this: the sound recording of the segment confirms this. Further, by his (mistaken) reference to Lebanese Muslims, Mr Jones would have been taken to have also focussed the attack against them.

In a later section of its reasons, headed Was the incitement 'on the ground of' race? the Tribunal then said:

179 Mr Trad bears the onus of proving that Mr Jones's comments had the capacity to incite the ordinary, reasonable listener to feel serious contempt for Lebanese Muslims and Lebanese males on the ground of their respective races. It will be implicit in what we have said above that we consider that this element is established.

180...

181 The respondents contend that s 20C(1) will not be satisfied unless established that race was the ground or reason, that is, the sole ground or reason for the vilification, not a substantial ground or reason. ...

182 In Nicholls & Nicholls v Director-General Department of Education and Training (No 2 ) [2009] NSWADTAP 20 an Appeal Panel considered the meaning of the phrase 'on the ground of' in the context of s 50 of the Act which deals with the complaint of victimisation. The Panel concluded that the question posed is:

Whether the fact that the [complainant] had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment . Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. (emphasis added)

183 In our view that approach applies equally to complaints of vilification and we adopt it in these Reasons. ...

...

185 The issue of course is not whether the broadcast incited serious contempt towards "the hoons" on the ground of their race or races, but instead whether it incited serious contempt towards Lebanese males and/or Lebanese Muslims on the grounds of their respective races.

186 Mr Jones forged the link, in his broadcasts, between the conduct of the young "car hoons" and their ethno-religious background. According to Mr Jones, the "hoons" had made a point of their own ethno-religious background and he embraced their own self-description as a springboard for his later comments about a "Lebanese Muslim problem". As we have observed above, Mr Jones wanted it noted that the young men were - and he emphasised the point - "Lebanese Muslims".

187 This was not lost on his listeners, some of whom he later quoted. While many commented on the behaviour of the "hoons", virtually all who did so, as the transcripts show, also referred to the ethno-religious background of the "hoons".

188 In our view it is overly simplistic to argue - as the respondents have sought - that any incitement towards these groups (which is denied) was solely on the grounds of the poor behaviour of some of their number. While no doubt a reason for the incitement, the repeated reference and emphasis on race leads us to conclude that their respective races was one of the 'real', 'genuine' or 'true' reasons for serious contempt being incited towards Lebanese Muslims and/or Lebanese males in respect of the Schedule A broadcast.

These latter extracts indicate the Tribunal's approach to the question under consideration. No legal error is apparent in it.

g) Whether various findings were not supported by evidence and/or were irrelevant. (Ground 10)

The submission was that the following findings were not open on the evidence:

(a) the First Appellant's 'very technique' lends itself to incitement [172];

(b) the First Appellant's tone was of urgency, anxiety, anger, aggression and contempt [173];

(c) the First Appellant called for violence by way of populist action [175]; and

(d) the First Appellant was implicitly referring to 'car hoons' as terrorists and was thereby engendering fear based on terrorism [216].

It was also suggested that there was no evidence before the Tribunal to support the finding (at para 170) that Mr Jones was 'an opinion leader directed with considerable influence in the community'

As earlier indicated we agree as to (c), but consider that the error was not of a character to invalidate the result reached by the Tribunal.

Findings (a)-(b) and (d) were very much matters of impression and questions of fact. We do not agree that there was no evidence to sustain them or that no reasonable person could have come to those conclusions. The Tribunal had the record of all the broadcasts touching on the subject matters raised in Schedules A and B. They provide the evidence themselves.

As to Mr Jones' influence, the Tribunal said:

170 ... as his broadcasts in the week in question demonstrate, Mr Jones, in 2005, exercised considerable influence. His influence is not limited to high places: that he received on his own account hundreds of emails and letters during the week in question shows, if it needed to be shown, that he has an audience and a wide influence within the general public. A close reading of the transcripts shows that in many cases, listeners who were interviewed on radio by Mr Jones used phrases that he had used previously. For example, when describing Sheik Faiz Mohammed, a number of listeners who called in picked up the use of Mr Jones's "Hitler" analogy (something he himself had adopted from a listener). In short, he is an opinion leader with considerable influence within the community.

The Tribunal could hardly have spelled out any more clearly a) that there was evidence to support its conclusion, and b) what that evidence was.

In any case it is a matter of notoriety in Sydney that Mr Jones has for a number of years been an influential opinion leader. It would bring the law into disrepute if the case had proceeded on any other basis. The Tribunal was not bound by the rules of evidence, but if it were, s144 of the Evidence Act 1995 would likely come into play. It provides:

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

It was not suggested that Mr Jones and Harbour did not have every chance to contest the view that Mr Jones' opinions and endorsements of others' were likely to carry weight.

h) Whether the Tribunal by some unwarranted findings manifested actual or ostensible bias against Mr Jones (Ground 11)

The only legally unwarranted finding related to the suggestion that Mr Jones was at least complaisant about the prospect of vigilante action in relation to misbehaviour by young Lebanese men.

In order to consider this suggestion of bias, it has been necessary to form some impression of the factual bases for the other findings. It is enough to say that we feel no disquiet in a factual sense about those various criticisms of Mr Jones. The strong impression one has is that there was a heavy preponderance of unfairness and a lack of reasonable balance exhibited by Mr Jones in his own comments and in his express and implied endorsements of callers and correspondents, some of them even less fair and balanced, notwithstanding that in the later parts of the broadcasts he did, if inconsistently, go some distance to making amends.

There is nothing in the Tribunal's reasons on these scores that betokens actual bias against Mr Jones. Nor would a reasonable observer who knew something about the legal system and the Tribunal's role have any reasonable suspicion that the Tribunal members were unable to bring to bear an unbiased set of minds in considering the case.

As to the alleged softness towards vigilantism, there was some material to found a possible inference of the kind made by the Tribunal, tenuous and unreliable though we consider that inference to be. The fact that the Tribunal made a single unwarranted factual error to Mr Jones' considerable discredit, though unfortunate, betokens neither actual nor ostensible bias against him. It shows no more than that an error was made.

i) Whether the Tribunal failed to consider the defences available to Harbour Radio as distinct from Mr Jones (Ground 13)

As we have already indicated, the Tribunal did so fail.

Notwithstanding that the course of the proceedings and the way Harbour, as it were, threw in its lot with Mr Jones in the running of the case may have accounted for the Tribunal's oversight, Harbour was entitled to have its defences separately considered.

The question then is whether there was any reasonable chance that the result against Harbour might have been different had that been done.

Harbour's defences, as those of Mr Jones, were that:

firstly, the broadcasts were a fair report of sheik Faiz Mohamad's public, offensive remarks and/ or of material published on an Islamic website and/or of the television report on 27th April 2005 of the filmed Hickson Rd events of 24 April, and

secondly, the broadcasts were made reasonably and in good faith in the public interest for purposes of public discussion and/or debate about and /or expositions of the matters just mentioned allegedly fairly reported.

Insofar as a defence of fair reporting was raised, it seems to have proceeded on a misreading of s 20C(2)(a). That paragraph speaks not of a fair report of a public act, but of a fair report of a public act 'referred to in subsection (1)'. A public act referred to in subs (1) is one by which someone has incited hatred etc in respect of a person or group on the ground of their race. In plainer language, a defence is given for the fair reporting of a public act involving proscribed racial vilification. That defence was not pleaded and there was no apparent basis on which it might reasonably have been pleaded. There is no broader defence of fair reporting beyond what is inherent in s20C(2)(c) and, having regard to the breadth of that paragraph, no apparent need for any.

The defence pleaded was not known to law and could not have been upheld even if it had been separately considered.

The defence of reasonable, good faith discussion etc of acts or matters was exhaustively considered and rejected as to Mr Jones. All of Mr Jones' broadcasts were contemporaneously played in the hearing of apparently all levels of employees engaged by Harbour. There was a 7 second delay in transmission to enable interception of a broadcast on prudential grounds. That was never done. Nor was there any evidence of any intercession by or on behalf of Harbour with Mr Jones to suggest modification of his rhetoric or lack of fairness and balance. De facto the judgment of whether material might offend the law against racial vilification was apparently effectively abandoned to Mr Jones and the team who answered to him.

It does not appear to us possible to say that Harbour's conduct in relation to the broadcasts was either objectively reasonable or, to the requisite objective degree in the Brophy sense, done in good faith. There appears to us no reasonable prospect of success by Harbour with that defence either.

In the particular circumstances, there was no substantive injustice to Harbour from not having its pleaded defences separately considered so as to warrant any disturbance of the outcome before the Tribunal.

j) Whether the Tribunal erred by construing 'fair report' in s 20C(2)(a) as referring to a reasonable report rather than an accurate one (Ground 12)

This question is also predicated on the misreading of s20C(2)(a) already referred to. On a proper application of the law the question does not arise.

k) Whether the Tribunal erred by misapplying the test for 'good faith' for the purposes of 20C(2)(c) (Ground 14)

In substance the submissions in support of this ground seem to restate complaints dealt with above in relation to other questions. It is enough to say that there was no such error.

l) Whether the Tribunal erred in law by awarding Mr Trad damages (Ground 15)

The suggestion was that Mr Trad was not personally identified in schedule A and suffered no loss, even as to hurt feelings, from it.

Mr Trad was however a Lebanese Muslim man and therefore among those vilified. He also expressed his hurt, albeit on account of the insult to young Lebanese men, including his own sons. He said:

"I was distraught and overwhelmed by the fact that having been born here and being part of the Australian community my boys were referred to as hating Australia, hating a country and referred to as rapists, pillages and plunderers and likened to rodents."

The award of damages in a modest sum was not beyond the bounds of a permissible exercise of a discretionary judgment.

m) Whether the Tribunal erred in law by making its direction as to an apology (Ground 16)

Counsel argued that the Tribunal failed to take into account various matters. However the Tribunal said:

228 Apology Mr Trad seeks an apology from both respondents.

229 The respondents contend that an apology would be of little utility given that the offending conduct occurred four years ago. ...

230 ...

231 The efficacy of ordering an apology where a complaint of unlawful vilification is found to be substantiated has been the subject of extensive consideration by this tribunal ...

232 In our view having regard to all circumstances including, the serious nature of the conduct complained of, the wide reach of the offending programs and the profile of both respondents, a public acknowledgment of wrongdoing is an appropriate order notwithstanding the passage of time.

The only matter referred to by counsel but not specifically mentioned by the Tribunal was apparently amiable correspondence between Messrs Trad and Jones. In long reasons for decision it is not necessary to mention every factor said to be relevant to a discretionary decision. The Tribunal said it had regard to all the circumstances and it has not been shown that it did not.

No error of law has been made out.

n) Whether the Tribunal erred in law by making the order that Harbour review its policies and practices as to racial vilification (Ground 17)

The Tribunal said:

245 In our view it would be of ... utility if the second respondent were to undertake a critical review of its policies and practices on racial vilification and the training provided for employees including all 'on air' personnel with a view to determining whether they are adequate to ensure compliance with the racial vilification provisions contained in the Act. We have directed that a review of this type be conducted.

The direction was that

3. Within six months of the date of these orders the second respondent is to conduct review in accordance with [245] of these Reasons.

Among various criticisms that go only to the merits of the decision, the point was taken that there may well have been such a review in the intervening period. While this may possibly betoken no legal error, the complaint will be satisfied if we extend the appeal into the merits on this point and amend the order to read:

3. Within six months of the date of these orders the second respondent is to conduct a review in accordance with [245] of these Reasons or furnish proof that it had already done so.

Mr Trad's appeal

We turn now to the two matters raised by Mr Trad:

o) Whether the previously received approach to the meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' is incorrect so that the term 'Muslim' used in the Schedule B broadcasts should have been understood to fall within the statutory concept of a race

and

p) Whether as to Schedule B the Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error.

Mr Trad categorised the broadcasts he complained of into Schedule A and Schedule B. In Schedule A Mr Jones expressly identified the persons criticised as Lebanese males, and (erroneously) Lebanese Muslims.

In the Schedule B broadcasts, however, Mr Jones used the terms "Muslim", "Muslim community", "Muslim leadership" and, on occasions, "Lebanese", and such expressions as "you mob", "these people "and "your lot". Whether any ethnic characteristic or quality of those criticised would likely have been perceived by the hypothetical listener was admittedly less clear than in the Schedule A broadcast.

Mr Trad brought his claim on three grounds:

First, that at least within the greater Sydney region the term 'Muslim' described a race for the purposes of the Act 'because it is and was at all relevant times an ethno-religious grouping'.
Secondly and in the alternative, 'Muslim' was interchangeable with the term 'Lebanese Muslim' particularly 'if the reference made is to Muslims located in the Lakemba or Bankstown area' because of demographic factors and the pattern of immigration from North Lebanon.
Thirdly and as a further alternative, because of s 4(3) of the Act, which permits 'race' to comprise a number of races, a reference to (Australian) Muslims collectively is to Muslims of a number of national origins.

To deal with the third formulation first, the Tribunal did not refer to s4(3) but that omission is of no significance to the outcome of Mr Trad's appeal. The proposition relied on is, in our view, misconceived. S 4(3) provides:

(3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race

The subsection contemplates only that if a collection of people qualifies as a 'race' it is not disqualified because on analysis it may comprise more than one distinct race. This appears to have been thought necessary to avoid possible confusion which might otherwise arise from the breadth of the number of ways a group may qualify as a 'race'. S 4(3) adds nothing to the question whether Muslims in Australia are a 'race'. It seems to have no bearing on this case.

There were two presently relevant questions for the Tribunal. The first was: who was the group against whom hatred etc was allegedly incited. The second was whether that incitement was, in the words of s 20 C (1), 'on the ground of the race of ... members of the group'. Implicitly the group against whom hatred etc was allegedly incited must be a group of a common race (subject to s4(3)).

The Tribunal dealt with these matters in the following way:

Are Muslims a "race" within the meaning of the Act?

123 The Tribunal, of course, has no jurisdiction to deal with vilification on the basis of religion alone. While it was argued for Mr Trad that the term "Muslim" may be interpreted, for the purposes of the Act, as referring to "race" we do not accept that view. In Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 this Tribunal had to consider the meaning of the term "ethno-religious" in the context of the AD Act. 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 [one of which was that a group of 'ethno-religious origin' would cover Muslims] are not very useful aids to interpretation.

CALLER 'Tony': Exactly right. Exactly right.

ALAN JONES: And they'll get - they'll get tired of it before you do. Round them up and lock them up, and they'll get sick of it.

CALLER 'Tony': Exactly right.

ALAN JONES: They'll whinge and complain. Confiscate the car. Confiscate the car, round them up and lock them up. They can do whatever they like if it's legal. If it's illegal and they want to spit at police and abuse police and confront police and involve themselves in antisocial behaviour, Jeff Schuberg said lock them up. That's what you do.

CALLER 'Tony': That's right. I just think that it's a part of way of life for them, these people. I mean, it's really in their DNA. You can't change their Christian - their - their way of life, you know.

ALAN JONES: They're entitled to believe it's their way of life if they just drive off unchallenged.

CALLER 'Tony': That's right, exactly.

ALAN JONES: They just drive off unchallenged. "So we'll be back tomorrow, folks. We've just ended the show for tonight. But we'll be back tomorrow."

CALLER 'Tony': That's right. Exactly right.

ALAN JONES: Good on you, Tony.

CALLER 'Tony': I mean, we allow them to attend to mosques here in this country as well.

ALAN JONES: Oh, yeah, build a mosque everywhere.

CALLER 'Tony': Exactly right. And they recruit people like this in their mosques.

ALAN JONES: That's dead right.

CALLER 'Tony': And we can't do anything about it.

ALAN JONES: Well, of course, thankfully, there are Muslim people ringing and Muslim people writing and they are as outraged as you are, and that's the good sign in all of this; and Muslim leadership found sorely wanting.

107 In the same episode, Mr Jones pondered on the question of what to do. In a conversation with a caller 'John' he suggested, "We are the government. Government's meant to do the bidding. It's government of the people by the people."

108 Also in that episode, Mr Jones spoke to a caller 'Steve'. He asked the caller, "What should we be doing?" Steve was unable to answer the question but offered a few thoughts which Mr Jones found helpful:

CALLER 'Steve': Mate, I'm like you. I've had a bloody gutful. I'm - I'm nearly 51. I've lived in - I'm born and bred in this country. I'm sick of hearing what I'm hearing on the radio and I'm - I appreciate what you're saying, but what - what can be done of what's happening out there at the moment? My wife is from New Zealand. Years ago she said, "Steve, I'd like to live in New Zealand," and I said, "No, but I like it here." And I really think now, "Why the hell didn't I go over there?"

That's the way I feel because I'm sick of this bloody government. You do your best, but what I hear out there with minority groups, with the Lebanese community, other communities, I'm just fed up. And I've got kids that I've brought into this world and I don't even know what's going to happen to them. I'm just fed up, Alan.

ALAN JONES: Good on you. Well, it helps. I mean, the level of public anger helps. I'm as fed up as you are, I have to say. But the first thing is at last we seem to have overwhelming consensus about the seriousness of the problem, and that is a very important step. Now we've got to work out: what do we do? You're quite right, and that includes me as well as you.

109 The next caller was a young man who identified himself as 'Ahmed', a Lebanese Muslim. He expressed embarrassment and shame at the behaviour of some of his co-religionists and compatriots:

CALLER 'Ahmed': Mate, look, I'm calling in - in relation to the Current Affair programs and quite the debate that's been going on over the last couple of days.

ALAN JONES: Yeah.

CALLER 'Ahmed': Can I say as a young Lebanese Muslim working in - working and living in Sydney that I'm completely embarrassed by it, so is my --

ALAN JONES: Yes, good on you. Good on you for ringing.

CALLER 'Ahmed': And also, mate, I'm horrified by the disrespect shown in relation to the Anzac Day and general Anzac spirit.

ALAN JONES: Good on you, Ahmed.

CALLER 'Ahmed': But can I please make this statement, Alan?

ALAN JONES: Yeah.

CALLER 'Ahmed': It's very important. Just because people from a certain community are born into Islam doesn't necessarily make them a Muslim, Alan. You know, we need to really, really detach the argument of identifying these thug - and that's exactly what they are - as being Muslims. What I'd say - what I dare say is these people are young Australians, whether they be Lebanese of an Australian background, an Asian of an Australian - sorry, an Australian of an Asian background, at the end of the day these guys are thugs.

What we need is we need the police, we need the executive and we need the judiciary to work together to come up with a plan that will actually see right through, from the beginning to the end, an actual cause and effect where these guys will stop doing what they're doing. It's very simple. The problem that you've got at the moment is you've got an arm, and you've got an arm of the law that tries to do one thing, which is being sort of negated at the other end.

Now at the same time we're being misrepresented as a community. And I know you might be trying to do your best Alan, to try and - how can I say it - put us to best light, but it doesn't help when we can't - when we don't as Lebanese Muslims have the opportunity to educate the community to say, "Listen, if there's a bunch of thugs and there's a bunch of louts hanging out at Brighton le Sands, it doesn't represent the rest of us here." We're embarrassed. I'm having dinner with my wife or with my family, and we're embarrassed at what we see. We're embarrassed at people from an Australian background or from any other background ring up and suggest that it is those people from that sort of a religion - our religion has nothing to do with the behaviour that you saw at Brighton and the behaviour that you saw on A Current Affair. It's inexcusable and unacceptable.

ALAN JONES: Well now, Ahmed, can I just say this to you?

CALLER 'Ahmed': Yes.

ALAN JONES: It's quite amazing, isn't it? This is how bad the problem has got, because I've never known in all the time I've been here the Muslim community rank and file to be so outspoken in anger and indignation over two issues: one over the sheik and the rubbish that he spewed out at Bankstown, and the behaviour that we've seen on the Ray Martin show. And it is to the great credit of all those Muslim women who have written to me and the Muslim women who have come on this open line, and people like you, Ahmed, and others who have been at great pains in a most articulate way to say, "They are not part of us" and to have the courage and the public place to set your face against them.

CALLER 'Ahmed': Alan, sorry; Alan, can I just say also: not only are they not part of us; they are not part of the Australian community in general.

ALAN JONES: No, they're not. They're not

CALLER 'Ahmed': They are not people who represent any part of the community.

ALAN JONES: No, they're not.

CALLER 'Ahmed': Any segment of the community.

ALAN JONES: And therefore the end result, you're saying, is round them up, as Jeff Schuberg said, and lock them up.

CALLER 'Ahmed': That's exactly right. But what I'm also saying - okay, let me - let me give you a brief scenario. I travel. Because my wife is from overseas, so I travel to Lebanon quite regularly. They have days in Lebanon that are called - I guess you could call them an equivalent to justice day. On justice day you have the military which is out on the street. When I say military, it's military/police; okay? Any guy or any woman or any man or any person that is stopped by the police, and the police simply ask them a question - and I personally experienced this; okay - if I answer the policeman in a manner which is perceived to be disrespectful, I may have no intention of it being disrespectful but if it is simply perceived as being disrespectful, I'm rounded up, my car is impounded.

There needs to be a respect for the police in New South Wales. There needs to be a general respect for authority in New South Wales and Australia at large. And anybody that doesn't follow that doctrine of living in this modern Western society whereby we have the freedom to practise our religion, whereby people choose to wear what they want to wear without being sort of, you know, told in an indoctrinated way that, "No. Look, you know, my point of view is correct and yours is wrong;" we need to respect that. And if you don't have the audacity to respect that, then you need to find somewhere else to live. And if you can't, then the police and the judiciary should give them a nice little cell in the gaol somewhere where they can reflect on their thoughts.

ALAN JONES: Well, how outstanding are you. How outstanding --

CALLER 'Ahmed': Well, I'm very - I'm very frustrated, Alan.

ALAN JONES: I know. Well, hang on.

CALLER 'Ahmed': I've been upset. For the last three days I have been upset because I have been listening to people tarnish my reputation. When I say my reputation, I don't mean it as an individual, Alan. My reputation as a proud Australian with Lebanese background. My father came to this country at 19 years of age with nothing on his back. He worked his little behind off for years and years and years, and he raised us not so that we can sit back and see these thugs going around representing us. They cannot represent me. They cannot represent any other Australian in this country.

They represent a minority of criminal thugs, and those criminal thugs are represented by all nationalities; not by Islam, not by Lebanese, not by Asians, not by Greeks, not by Australians. We have a minority in all groups, Alan. And you're a smart man. You can't disagree with me when I say things like that.

ALAN JONES: I'm not disagreeing with anything you're saying. I think you're absolutely outstanding and you've helped - you've helped tip the balance of confidence that the public want in the wider community, that they do understand the nature of the problem.

110 In a later conversation with another caller, 'Aaron', Mr Jones described 'Ahmed' as "inspiring and reassuring" and his caller sought to reassure 'Ahmed' that there are "plenty of us out there who aren't ignorant to the fact that these idiots are the minority."

111 Towards the end of the episode, Mr Jones became positively supportive of the wider Lebanese community in a way that he had not been earlier in the week. In a conversation with a caller 'Paul' the following exchange took place:

CALLER 'Paul': Look, I didn't ring you up for this reason, but I'd like to say something to Ahmed. He sounds like a guy (indistinct) very like to be Australian. But I want to say something to him and to all those people from the Lebanese community that rang up and said how abhorrent they are of what happened. Words are cheap. They could say all the things like that as much they want, but the day I see their leadership reflect what they are saying is the day I believe that their community are serious about --

ALAN JONES: Well, they are - they are all saying that. I can assure you. I sat up last night answering hundreds of letters and, without exception, they are just as embarrassed by their leadership as they are by the behaviour.

And, remember, just forget all this issue, Paul, that you go to schools, don't you, and the P&C, and you see the P&C and you think, "Oh, why don't the P&C do this," and then you say - you're having a whinge and someone says to you, "Well, look, why don't you - why don't you go and be the leadership position of the P" - "I'm too busy." And so many of the Muslim people who have written to me are criticising the leadership, but they're too busy looking after their kids and running their ordinary lives to be the leaders, but they're just as embarrassed about the leadership as you are.

CALLER 'Paul': That's right. But unfortunately it's a bad reflection on them and I think

ALAN JONES: Still, we've made more progress than we've ever made. We've never had so many Muslims outspoken against the behaviour and the leadership, never.

CALLER 'Paul': That certainly is encouraging.

ALAN JONES: Very.

112 In the next episode, Mr Jones went even further in a conversation with another Muslim caller, 'Murat':

CALLER 'Murat': Alan, first of all, I just want to make a couple of points. First of all, I really like to thank you for making it quite clear to your listeners that the majority of the Muslim community, such as myself, are disgusted by the events that have taken place over the last few days.

Secondly, I would like to commend Ahmed as well. I think he summed it up perfectly. From one Muslim to another, I thank you very much. I know you're listening.

And, thirdly, I'll take exception to one of the callers just a couple of moments ago that said as long as the Muslim leaders in the community don't denounce this, he finds the rest of us accountable. I don't particularly agree with that.

ALAN JONES: No, I think that's - I think that's a bit rich. That's a bit rich. All the letters I've got, Murat, and I've had hundreds of them, have been very critical of the leadership.

CALLER 'Murat': Yep. I'm very critical of the leadership myself.

ALAN JONES: You see, the great thing is this is the first time we've had Muslim people speaking out, and it's been very reassuring at the end of the week to other Australians to know that there are Muslim Australians who feel as they do.

CALLER 'Murat': Absolutely, Alan. I'm very critical of the Muslim leadership myself. I would just hate for your listeners to think that it's a community - a Muslim community issue because, I mean, if the government doesn't do something right or if the government played down the effect, basically the Redfern riots, and Macquarie Field riots and everything, I don't see how the communities, the Australian, Christian --

ALAN JONES: No, that's right. No, that's dead right.

CALLER 'Murat': -- can be blamed for the government's --

ALAN JONES: Sure. Good point. Good analogy. Don't blame the community for the fact that its government fails. Yeah, well done, Murat.

113 The last significant comment by Mr Jones to a caller on these topics came during the final few minutes of the show when he commented to a caller 'Brian":

ALAN JONES: ... These kids are born here, and that's the challenge we've got. So it's the way they're being taught. It's the kind of propaganda that's being pushed into their heads, and that's the thing we have to address. And the key and encouraging factor in the last 48 hours is that the Muslim community rank and file have risen against this as much as you and I.

Second Appendix

(Mr Trad's expert evidence)

As currently understood under New South Wales law the category ethno-religious applies to Jews and Sikhs. Muslim has not yet been accepted within this jurisdiction as an ethno-religious group. Like ethnicity the category ethno-religious is also understood in the literature to be fluid and contextual. Our opinion is that Australian jurisprudence may or should take contemporary conditions into account to include Muslims under this category. The primary reason for this is that in the contemporary geo-political context in general and the Australian context in particular, Muslim has become a distinct axis for a distinction that, like Judaism, is not understood in restrictive terms as religious observance but has a strong cultural and political meaning. Already after the Gulf War the consciousness of Muslims as a distinct other was evidenced both from Muslims and non Muslims.

This move to distinction or "othering" has significantly deepened since September 11 and under the influence of a pervasive discourse about political Islam or the Islamic world or Islamic fundamentalism and a clash of civilisations. Muslims both experience themselves as and are treated and seen as a distinct social and cultural group. This is manifest in the well documented rise of Islamic phobia in the U.S.A., Europe and in Australia. The absence of any class of race under which Muslims as such can fall is out of keeping with international law concerning contemporary forms of racism.

This is clearly evidenced in the mandate given to the Special Rapporteur on Contemporary Forms of Racism appointed by the Commission on Human Rights in 1993 which provided that the mandate of the Rapporteur was "to examine in accordance with this mandate incidences of contemporary forms of racism, racial discrimination, any form of discrimination against blacks, Arabs and Muslims, xenophobia, negrophobia, anti-Semitism and related intolerance as well as governmental measures to overcome them and to report on these matters to the Commission."

We note that the term ethno-religious is commonly used in the academic literature to refer to Muslims in the West."

"Ethnicity, race and nation should be conceptualised not as substances or things or entities or organisms or collectives of individuals as the imagery of discrete concrete, tangible, bounded and enduring groups encourages us to do but rather as relational, processual, dynamic, eventful and disaggregated terms. This means thinking of ethnicity, race and nation, not in terms of groups or entities but in terms of practical categories, cultural idioms, cognitive schemas, discursive frames, organisational routines, institutional forms, political projects and contingent events. It means the ethnicisation, racialisation and nationalisation, political cultural and psychological processes."

It is important not to confuse this notion of ethnic or racial identities constructed within volunteerism or by individuals having the agency to choose or construct their own ethnic identity. On the contrary the boundaries of ethnic groups, the outcome of complex social, political, economic and cultural dynamics, both outside and inside groups ... and forced ethnic boundaries can be powerful determinants of both the content and meaning of particular ethnicities

The contextual or situational understanding of ethnic identity becomes particularly important when one moves from the situation where there are said to be several ethnic groups who occupy or have long occupied a single nation state as in some European countries to the concepts of immigration. In an immigrant society the ways in which migrants come to be identified as ethnic groups depend on the particular differences that they are seen to manifest and the differences that are considered salient in a given social and political concept."

"Ethnic origin refers to a person's identification with a group where the group is identified by itself and by others but not necessarily symmetrically as distinct, different, and outside the societal norm in the particular, historical, social and political context. Those differences are popularly understood as arising from cultural characteristics and a distinct, shared history. In Australia the understanding of ethnicity has to be understood within the context of patterns of immigration, historical and contemporary understanding of Australian national identity and the production of difference."

Particular factors have shaped Muslim migration settlement and identity formation in Australia. Muslim presence is the product of immigration and Muslims only started arriving in Australia in significant numbers in the 1970's. The 2006 census records 340,392 Muslims in Australia for which 37.9 per cent are Australian born. The identity of Muslims in Australia has been shaped by their origins, the process of settlement, the character of Muslim religious community organisations and the settlement experience of Muslim communities. ... while Muslims come from over 180 countries the largest communities comes from Lebanon and Turkey. Based on the 2001 census 10 per cent of Muslims were Lebanese born and 8 per cent were Turkish born. Of the 36.43 per cent Australian born Muslims around 36 per cent were of Lebanese descent and 18 per cent Turkish descent."

"The largest Mosque in Sydney is the Lakemba Mosque ... with a predominantly Lebanese congregation and leadership. ...

Muslims in Australia gained an image of being problem migrants largely through the particular settlement experience of Lebanese Muslim migrants settled in Sydney as a result of the civil war [in Lebanon]. In particular this image was created and sustained by the fact that Lebanese Muslims experienced chronically high levels of unemployment in the 1980's and the 1990's, by the perception that Lebanese youth were heavily involved in gang activities and by the conviction of Lebanese Muslim brothers for gang rapes in Sydney."

"Moreover this local context of the production of difference in immigrant groups is to be understood against broader global dynamics in which Muslim immigrants have been associated with international events politicising Islam

"Critical to the understanding of this pattern of othering Muslims globally and in Australia is recognising social and political dynamics underpinning the process. That is, in so far as Muslims are seen as a distinct other within Australian society the basis for this difference is not primarily religious or founded on criticisms of Islamic theology but is rather grounded in Muslims being seen as socially, culturally and politically alien to the West in general or to Australian culture in particular. Put otherwise, the widespread perception of Muslims as extremists or intolerant or hostile to modernity has resulted in the actions and behaviour of Muslims being interpreted as religiously determined. The religion Islam thereby becomes a marker for a boundary that has to be understood in social, political and cultural terms. Thus, for example, even where public discussion in Western society appears to be about Islamic religious practice or values such as the wearing of the veil. This policing of religious signs is more about their imagined political content than their religious importance.

What follows from the position that Huntington articulated is that the common identity Muslim, as attributed to people deemed to fall within the group, is for the purposes of this popular discourse only nominally concerned with religious characteristics. For example, Islamic theology, tenets of belief and ritual practices, rather the identity Muslim is understood primarily as a social and political category and in particular, after 2001, the securitisation of Muslims as a potential threat or risk to be policed as turned any public signs of Islam into signs of political rationalisation and therefore danger."

The term Lebanese Muslims in Sydney in April 2005 identifies both ethnicity Lebanese and a religion Muslim constituting an ethno-religious group. In the Australian context the term refers to national origin, religion or marginal social position. The term 'Lebanese Muslims' was constituted against the early identity Lebanese which was understood to be overwhelmingly Christian. It alluded to sectarian political conflict in Lebanon and became a stigmatised category from which Christian Lebanese sought to differentiate themselves as good migrants.

Demographic factors made Sydney the focus of Lebanese ethnic politics because the Lebanese were overwhelmingly 72.8 per cent concentrated in Sydney, in particular, in the inner Western suburbs.

While accepting that it is reasonable to interpret the term ethno-religious origin to refer to a hybrid group as discussed above, it would also be reasonable for the term ethnic-religious origin to be interpreted as indicating that in some cases a religious group is understood in the manner that fulfils the criteria for an ethnic group."

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

**********

Decision last updated: 27 April 2011

Medium Neutral Citation:	Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19
Hearing dates:	23, 24 August 2010 and 14 October 2010
Decision date:	27 April 2011
Jurisdiction:	Appeal Panel - Internal
Before:	R Madgwick, Deputy President R Perrignon, Judicial member E Hayes, Non -Judicial member
Decision:	1.The parties are to file and serve within 14 days any written submissions (not exceeding 12 pages in length) as to whether the Appeal Panel should depart from the reasoning expressed in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 and within 21 days any reply (not exceeding three pages in length) to the opposing party's submission. 2.The parties are to file and serve within 14 days any written submissions (not exceeding five pages in length) as to extending the appeals or either of them to the merits in the light of our reasons, and within 21 days any reply (not exceeding two pages in length) to the opposing party's submission. 3.The case is adjourned to a date to be fixed for further consideration.
Catchwords:	Anti-discrimination law - racial vilification - meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' - whether the term 'Muslim' used in broadcasts should have been understood to fall within the statutory concept of a race. Anti-discrimination law - racial vilification - whether Administrative Decisions Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error. Anti-discrimination law - racial vilification - meaning "public act" in s20B Anti-Discrimination Act (NSW) - both presenter of talkback radio show as well as licensed broadcaster "broadcast" Anti-discrimination law - racial vilification - necessary to distinguish between the 'public acts' of the presenter and the licensed broadcaster respectively, since different defences might be available to each Anti-discrimination law - racial vilification - whether Tribunal failed to consider the actual material complained of objectively and impermissibly misused merely contextual material to enquire as to speaker's subjective state of mind Anti-discrimination law - racial vilification - whether Tribunal erred by failure to identify the actual audience to whom the material was directed Anti-discrimination law - racial vilification - whether s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of Anti-discrimination law - racial vilification - meaning of 'fair report' in s 20C(2)(a) Anti-discrimination law - racial vilification - meaning of 'good faith' for the purposes of 20C(2)(c) Anti-discrimination law - racial vilification - Whether the Tribunal erred in law by awarding successful complainant damages for single short broadcast
Legislation Cited:	Anti-Discrimination Act Administrative Decisions Tribunal Act 1977 Defamation Act 2005
Cases Cited:	Patten v NSW [1997] EOT(NSW) 90-91 Burns v Radio 2UE Sydney Pty Limited [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 Mandla v Lee [1982] UKHL 7
Category:	Principal judgment
Parties:	Alan Jones (Appellant/Cross Respondent) Harbour Radio Pty Limited (Appellant/Cross Respondent) Keysar Trad (Respondent/Cross Appellant)
Representation:	K Eastman (Appellant/Cross Respondent) K Nomchong (Respondent/Cross Appellant) Baker McKenzie (Appellant/Cross Respondent) Turner Freeman Lawyers (Respondent/Cross Appellant)
File Number(s):	109004, 109005
Decision under appeal	Citation: Trad v Jones & anor (No 3) [2009] NSWADT 318 Date of Decision: 2009-12-21 00:00:00 Before: Equal Opportunity Division File Number(s): 071036