Jones and Harbour Radio Pty Limited v Trad (No 2)

Jones and Harbour Radio Pty Limited, along with their representative Jones, appealed against a decision of the Administrative Decisions Tribunal which found that broadcasts by the radio station were in breach of the Racial Vilification Act 1996 (NSW). The Tribunal's decision was predicated on the finding that the broadcasts were directed at a group identified by reference to their Muslim faith, and that the term 'Muslim' could be understood to refer to a 'race' within the meaning of section 4 of the Racial Vilification Act. The Court of Appeal was required to consider whether the Tribunal was correct in its interpretation of the term 'race', and whether it erred in its approach to the sociological evidence which had been adduced in the proceedings below.

The Court of Appeal found that the term 'Muslim' should be understood to refer to a race within the meaning of the Racial Vilification Act. The Court held that the term 'ethno-religious origin' was intended to include religions which were historically associated with a particular ethnic group, and that Islam was such a religion. The Court rejected the argument that the term 'race' was limited to immutable physical characteristics. The Court also found that the Tribunal did not err in law by failing to accept the sociological evidence, as it was not necessary to determine the question of whether the broadcasts were directed at a group identified by reference to their Muslim faith in order to decide the case.

The appeal was dismissed in part and allowed in part. The Court allowed the appeal on the ground that the Tribunal had failed to conduct the review which was ordered by section 245 of the Administrative Decisions Tribunal Act 1997, and set aside the original direction and substituted a new one. The Court found that the Tribunal had not adequately considered the question of whether the broadcasts were directed at a group identified by reference to their Muslim faith, and that a further review was necessary in order to properly determine the question. The Court adjourned the case for further consideration, should the Tribunal consider that it could not be determined upon the basis of the written material filed.