Trad v Jones
[2008] NSWADT 272
•3 October 2008
CITATION: Trad v Jones & anor [2008] NSWADT 272 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Keysar TradFIRST RESPONDENT
SECOND RESPONDENT
Alan Jones
Harbour Radio Pty LtdFILE NUMBER: 071036 HEARING DATES: 14 August 2008 SUBMISSIONS CLOSED: 14 August 2008
DATE OF DECISION:
3 October 2008BEFORE: Britton A - Deputy President CATCHWORDS: Scope of complaint - amendment of complaint MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cth)CASES CITED: Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89;
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16;
Haider v Combined District Radio Cabs Pty Lid trading as Central Coast Taxis [2008] NSWADT 123;
Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1;
Sleiman v Kmart Australia Limited [2003] NSWADT 21; Langley v Niland [1981] 2 NSWLR;
Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR;
Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70.REPRESENTATION: APPLICANT
RESPONDENT
T Goldberg, solicitor
K Eastman, barristerORDERS: 1. The Applicant is invited to file Amended Points of Claim in accordance with paragraph [35] of these Reasons providing they are filed and served within 21 days from the date of there orders
2. The Respondents are to file and serve Points of Defence and all evidence on which they seek to rely within 35 days of the date of these orders
3. Matter to be set down for further directions at a date to be fixed by the Registrar.
1 In April 2005, Mr Keysar Trad lodged a complaint with the Anti–Discrimination Board against broadcaster, Alan Jones and Radio 2GB licensee, Harbour Radio Pty Ltd. Mr Trad complained that Mr Jones racially vilified him and ‘the entire Australian Muslim community and the entire Lebanese community’ during his morning radio program broadcast over a number of days.
2 The respondents contend that the Points of Claim filed on 9 August 2007 are defective and reveal that Mr Trad has misunderstood the complaint referred by the President. In short, they argue that the Points of Claim extend the scope of Mr Trad’s initiating complaint, by including segments of Mr Jones’ program not mentioned in that complaint. In addition they contend that the Points of Claim ‘plead’ religious vilification, which is not covered by the Anti–Discrimination Act 1977 (the Act).
3 Mr Trad disagrees. He contends that the subject matter of the complaint is not restricted to the parts of the broadcast expressly mentioned in the initiating complaint. He argues that the ephemeral nature of radio means that it is not possible for a complainant to identify with precision in their complaint all offending comments. Nonetheless, Mr Trad requested that if the Tribunal does not accept his contention that the Points of Claim reflect the scope of the complaint, that it grant leave for the complaint to be amended under section 103 of the Act. That application is opposed.
4 Mr Trad rejects the respondents’ claim that the Points of Claim plead religious vilification.
Complaint to the Board
5 Using a pro forma complaint form provided by the Board Mr Trad wrote (at p 4): (words in bold were written by Mr Trad):
- When did it happen?
Give exact date and time if you can.
It began on: 7 am, Tuesday 26 April 2005.
It finished on: Friday 29 April 2005, 10 am.
Is it still going on? Unsure but is highly likely.
6 Under the heading ‘What happened?’ (at p 6) Mr Trad went on to write:
- Mr Jones made derogatory comment about me as the President of the Lebanese Muslims Association and about the entire Australian Muslim community.
His remarks about me included references to my leadership, during an interview that I agreed to give him on Wednesday 27 April 2005, Mr Jones kept speaking over me and did not give me the opportunity to answer questions that he put to me and he used that interview to further lambaste me for the rest of the morning and the next day.
Mr Jones' comments included words to the following effect, this list was taken on Wednesday 27 April between 8:40 am and 9:40 am:
‘We have been too soft, we have acted like cowards, it is time to “take the gloves off and teach these bastards”.’
(I believe that this comment in particular is a call for physical violence against members of the Muslim community KT)
‘Much discredited Lakemba mosque.’
‘We are far too tolerant of these people, we have to take out the root cause’.
‘You have been caught red handed’.
On Thursday April 28, b/t [illegible] Mr Jones read out two paragraphs from a complaint letter that I clearly marked ‘without prejudice’.
In addition to these, on Friday 29 April between the hours of 8:40 and 9:00, a caller said that car hoons are recruited at the mosque, Mr Jones replied: You’re dead right.
7 In answer to the question, ‘What would you like to happen to sort out this complaint?’ Mr Trad wrote:
- I would like Mr Jones to recant all his comments against the religion of Islam, the Muslim community, the Lebanese community and myself and to do so over the same number of days and with the same frequency that he made the derogatory remarks.
8 Mr Trad attached to the complaint a copy of an email exchange between him and Mr Jones about his interview with Mr Jones on 25 April. In it Mr Trad accused the broadcaster of misrepresenting his views about the controversial comments made by cleric, Sheikh Taj el-Din al-Hilali and asked him to:
- …Refrain from tarnishing an entire community with the words of one person…I also ask you to do something to undo the damage that you have done through your program over the past two days’.
9 Mr Jones replied:
- …You people have done the damage to yourselves and it’s not been along time coming. If you don’t understand the public have had a gutful, you know nothing about the public.
10 Following receipt of Mr Trad’s complaint, the President commenced an investigation, as required by s 90 of the Act. As part of that investigation he wrote to the General Manager of Radio 2GB and advised that he had received a complaint from Mr Trad alleging racial vilification.
11 In answer to a request by the President the General Manager of Radio 2GB supplied the Board with a CD recording of ‘selected items from the Alan Jones program from 26-29 April, 2005’. The ‘selected items’ covered the period: 26 April commencing at 8:33 am; 26 April commencing at 6:11 am; 27 April commencing at 7:25 am and 9:26 am; 28 April commencing at 8:38 am and 9:20 am.
12 The Board made a transcript of the recording provided by Radio 2GB and forwarded a copy to Mr Trad and asked him to indicate which parts were of ‘most concern’ to him. In a letter to the Board dated 29 September 2005, Mr Trad set out various parts of the transcripts. These included segments of the program apparently broadcast at about:
- 27 April 2005 8:38am
27 April 2005 7:25am
27 April 2005 9:26 am
28 April 2005 8:38 am
28 April 2005 9:20 am
13 By letter dated 27 November 2006, the President invited the second respondent to reply to Mr Trad’s complaint. No reply was received.
14 At the request of Mr Trad, the President referred his complaint to the Tribunal on 21 March 2007.
Statutory provisions
15 The term ‘complaint’ is defined by section 87 of the Act to mean ‘a complaint made under section 87A and includes a matter referred to the Tribunal as a complaint under section 95(2)’. Section 87A provides that ‘a complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations…may be made by one of more persons…’ Section 95(2) provides that the Minister may refer any matter to the Tribunal as a complaint.
16 The Act requires that a complaint be in writing. It ‘does not need to take any particular form’ nor ‘demonstrate a prima facie case’: sections 89(1) and 89(2).
17 Having received a complaint the President is required to determine whether it is to be accepted or declined, in whole or part: section 89B(1). After accepting a complaint under section 89, the President must investigate it: section 90(1).
18 Where the complaint is a vilification complaint the President may, by notice in writing, require any person to produce a copy or transcript of any broadcast the subject of the complaint: section 90A. The President may also require a complainant or a person against whom a specified complaint is made to provide ‘relevant material’: section 90B(1).
19 If the complaint is not declined, terminated or otherwise resolved within 18 months the complainant may request that it be referred to the Tribunal: section 93B (1). In certain circumstances the President may refer the complaint to the Tribunal on his/her own motion (section 90C).
20 Section 94A provides:
- 94A Form of complaint to be referred to Tribunal
(1) If a complaint is referred to the Tribunal under this Division, the complaint is to comprise:
(a) the original complaint lodged with the President, and
(b) any amendment made pursuant to section 91C, and
(c) any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations.
(2) A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint.
21 The referral of the complaint to the Tribunal by the President is taken to be an application for an original decision under the Administrative Decisions Tribunal Act 1997.
Subject matter of Mr Trad’s complaint
22 Mr Trad contends that the offending broadcast contravenes section 20C of the Act which makes ‘it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group’. Race is defined in section 4 to include ‘colour, nationality, descent and ethnic, ethno-religious or national origin’.
23 The respondents contend that the subject matter of the complaint referred to the Tribunal, is confined to the three ‘incidents’ identified by Mr Trad in his initiating complaint which they describe in the following terms:
- (a) on Wednesday 27 April 2005 between 8.40am - 9.40 am, during an
interview between the Applicant and the Second Respondent, the Second
Respondent made derogatory comments about the Applicant, as President
of the Lebanese Muslims Association about the entire Australian Muslim
community and the entire Lebanese community. The Applicant identifies
specific words: see President's Report page 6;
(b) on Thursday 28 April 2005, 8.40am-9.20am, the Second Respondent
read out two paragraphs from the Applicant's letter of complaint which he
had marked ‘without prejudice’: see President's Report page 6;
(c) on Friday 29 April 2005, between 8.40 - 9.00am a caller said ‘car hoons are recruited at the mosque’. The Second Respondent replied ‘Your (sic) dead right’: see President's Report page 6;
24 They argue that the Points of Claim allege ‘public acts’ that go beyond the three incidents described above. They argue that Mr Trad did not complain about the whole of the broadcasts and therefore it is not open to him to use the Points of Claim to extend the scope of his initiating complaint.
25 In my view the respondents have taken an unduly narrow view of the initiating complaint. While clear that Mr Trad complained about the above mentioned incidents, a fair reading of the complaint does not, in my view, support a finding that he saw his complaint as restricted to those incidents.
26 Mr Trad described the temporal scope of the complaint (at p 4), as ‘commencing on 7am 26 April and concluding on 10 am 29 April’. It is common ground that the public acts identified in the Points of Claim fall within this period.) He described the offending broadcasts in broad terms: ‘Mr Jones made derogatory comment about me as the President of the Lebanese Muslims Association and about the entire Australian Muslim community’. He went on to list a number of comments made by Mr Jones which he considered objectionable, prefacing them with the comment ‘Mr Jones’ comments included words to the following effect, this list was taken on Wednesday 27 April between 8:40 and 9:40am [emphasis added]’.
27 Read as whole, the gravamen of Mr Trad’s complaint appears to be derogatory on air comments made by Mr Jones against him and ‘the entire Australian Muslim community the entire Lebanese community’ during the period, 7am 26 April to 10 am 29 April. The subject matter of the complaint should not in my view be read down to the three incidents set out at page six of the complaint. This view is reinforced by Mr Trad’s closing remarks: ‘I would like Mr Jones to recant all his comments against the religion of Islam, the Muslim community, the Lebanese community and myself and to do so over the same number of days and with the same frequency that he made the derogatory remarks [emphasis added].
28 A long line of authority in this Tribunal has accepted the proposition that while a complaint lodged with the President must allege the commission of a contravention of that Act, ‘it need not allege the relevant facts with the particularity of an indictment or a pleading’: Langley v Niland [1981] 2 NSWLR at 107-108. (See Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 at [14]). The narrow approach the respondents urge the Tribunal to adopt, in my view sits at odds with a statutory regime where the only requirement for a valid complaint is that it be in writing and allege a contravention of the Act. It also sits uncomfortably with a regime where a complainant is not required to include any factual details of the allegedly unlawful act in their complaint (See Commissioner of Police, New South Wales Police Service v Orr (EOD) at [14] where the Appeal Panel cited with approval the comments of Merkel J in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR at 93 –94 made in relation to section 50 of the Sex Discrimination Act 1984 (Cth)).
29 But in any event, the relevant complaint for the purpose of identifying the scope of the Tribunal’s jurisdiction is not the initiating complaint made by Mr Trad but the complaint referred which in this case includes the transcript of the broadcasts based on the recording provided by the second respondent and Mr Trad’s comments contained at Tab 5 of the President’s Report (section 94A (1)(c) of the Act.)
30 For these reasons I do not accept the respondents’ contention that the Points of Claim extend the scope of the complaint. Accordingly it is not necessary to consider whether leave to amend the complaint should be granted.
Complaint of religious vilification
31 The respondents contend that paragraphs 20 to 35 of the Points of Claim plead religious vilification and as religion is not a prescribed ground under the Act, Mr Trad should be invited to amend his Points of Claim. They contend that Mr Trad’s claim that ‘Muslims’ or ‘members of the Muslim community’ constitute a race or more specifically an ‘ethno-religious’ group for the purpose of the Act, is unsustainable. They refer to the long line of authority within the Tribunal that Muslims do not fall within the statutory definition of race: Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1; Sleiman v Kmart Australia Limited [2003] NSWADT 21; Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 and Haider v Combined District Radio Cabs Pty Lid trading as Central Coast Taxis [2008] NSWADT 123.
32 It was argued for Mr Trad that there is no binding authority on this issue and the Tribunal constituted for the purpose of determining his complaint is not bound to adopt the approach taken by differently constituted tribunals. He points to the expert evidence filed in these proceedings which challenges the orthodoxy that reference to ‘the Muslim community’ or ‘Muslims’ is solely a reference to adherents of the religion of Islam. He claims that a matter of substance such as this should be permitted to be determined on its merits and not dismissed summarily.
33 In any event it is argued for Mr Trad that the reference to ‘Muslims’ in paragraphs 20 to 35 of the Points of Claim is not a reference to ‘Muslims at large’ but rather a reference to the Muslims referred to by Mr Jones in the offending broadcasts.
34 I agree with Mr Trad that it would be premature at this stage of the proceedings to determine this issue. As Mr Trad correctly points out there is no binding authority on this point and accordingly it is open to the Tribunal to determine this legally complex issue.
35 While for the reasons given I have decided not to strike out paragraphs 20 to 35 of the Points of Claim, if, as argued by Mr Trad the reference to ‘Muslims’ and ‘members of the Muslim community’, is not intended to be a reference to Muslims ‘at large’ but rather to those referred to in the offending broadcast, he is invited to consider whether that is properly reflected in the Points of Claim and if not, to file amended Points of Claim.
Orders
1. The Applicant is invited to file Amended Points of Claim in accordance with paragraph [35] of these Reasons providing they are filed and served within 21 days from the date of there orders
2. The Respondents are to file and serve Points of Defence and all evidence on which they seek to rely within 35 days of the date of these orders
3. Matter to be set down for further directions at a date to be fixed by the Registrar.
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