CITATION: Trad v Jones & anor (No. 3) [2009] NSWADT 318 DIVISION: Equal Opportunity Division PARTIES: Applicant:
Keysar TradFirst Respondent:
Second Respondent:
Alan Jones
Harbour Radio Pty LtdFILE NUMBER: 071036 HEARING DATES: 12 & 13 August 2009 SUBMISSIONS CLOSED: 4 September 2009
DATE OF DECISION:
21 December 2009BEFORE: Britton A - Deputy President; Bolt M - Non-Judicial Member; Kelleghan D - Non-Judicial Member CATCHWORDS: Racial vilification LEGISLATION CITED: Administrative Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Radiocommunications Act 1992 (Cth)
Broadcasting Services Act 1992 (Cth)CASES CITED: Alexander v Home Office [1998] 2 All En 118
Burns v Dye [2002] NSWADT 32
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v Laws (No 2)[2007] NSWADT 47
Burns v Radio 2UW Sydney Pty Ltd [2004] NSWADT 267
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Dimozantos v The Queen (No2) (1993) 178 CLR 122
Farquhar v Bottom [1980] 2 NSWLR 380
Hall v Sheiban (1985) ALR 503
John Fairfax Publications Ltd v Kazak [2002] NSWADT 35
Jones v Toben No 2 (2003) 199 ALR 1
Kunhi v University of New England [2008] NSWADT 333
London Artists Ltd v Littler [1969] 2 QB 375
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009]
Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70
Trad v Jones & anor [2008] NSWADT 272
Velosky v Karagiannis [2002] NSWADT 18
Western Aboriginal Legal Service v Jones [2000] NSWADT 102REPRESENTATION: Applicant Representative:
Respondent Representative:
K Nomchong, barrister
K Eastman, barristerORDERS: 1. The complaint of racial vilification as against the first and second respondents in respect of Schedule A of the Points of Claim is substantiated. The balance of the complaint is dismissed
2. The respondents are to pay the applicant within 21 days, damages in the sum of $10,000, for which they are jointly and severally liable.
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.
4. The parties are directed to confer about the time, form, extent and manner of publication of the apology to be issued in accordance with these Reasons. If the Tribunal is not notified within eight weeks of the date of these orders that agreement has been reached directions will be issued under s 108(2)(d) of the Anti-Discrimination Act 1977 about the details of the apology.
5. Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. Within a further 28 days, the opposing party is to file and serve submissions in reply.
6. The matter of costs is to be resolved ‘on the papers’, under s 76 of the Administrative Decisions Tribunal Act 1997.
REASONS FOR DECISION
1 For a number of days in April 2005, Mr Alan Jones, a popular radio “talk-back” broadcaster and commentator, made observations, expressed opinions and read letters and emails from listeners on his 2GB morning radio show which, taken as a whole, Mr Keyser Trad alleges constituted unlawful vilification of Muslims, Lebanese Muslims, Lebanese people and others.
2 Mr Trad, who was born in Lebanon and now lives in Sydney with his family is a practising Muslim. He alleges that segments of the broadcasts made by Mr Jones on 26, 27, 28 and 29 April incited listeners of the programs to hatred towards, or serious contempt for, amongst others, members of the Lebanese Muslim community living in New South Wales and that the broadcaster, Mr Jones, and the owner of the radio station, Harbour Radio Pty Ltd (“2GB”), thereby breached s 20C(1) of the Anti-Discrimination Act 1977 (the Act).
3 Under s 20C(1) it is “unlawful for a person, by a public act, to incite hatred towards, or serious contempt for… a person or group of persons on the ground of the race of the person or members of the group.” The heading of the section uses the umbrella term “racial vilification” to encompass these types of acts.
4 Not all public acts in which racially contemptuous language is used are unlawful under s 20C. The section also provides a number of exceptions or defences. A fair report of an unlawful public act is lawful: s 20C(2)(a). A public act “done reasonably and in good faith, for … purposes in the public interest, including discussion or debate about and expositions of any act or matter” is also lawful: s 20C(2)(c).
5 A number of themes emerged in the broadcasts which Mr Jones related together: among them were a speech by a Lebanese-Australian Muslim cleric called Sheik Faiz Mohammed; the allegedly inflammatory nature of that speech which Mr Jones interpreted as an excuse for or incitement of sexual assaults by Muslim men upon non-Muslim women and as blaming the victims for the crimes committed against them; the fact that the speech was given to a large audience of Muslim people in the Bankstown area; the alleged reaction or lack of reaction by the audience and, in particular, people identified by Mr Jones only as “the Muslim leadership”; the fear of non-Muslim women; the anti-social behaviour of “car hoons”, identified by Mr Jones as Lebanese Muslim youths, in the Rocks area and Brighton-le-sands and their disrespect for police; the feebleness of police in response to the behaviour of the “car hoons” due to the weakness of police management and government; the need for a populist reaction against this weakness; Mr Jones’s view that Australia is a not multi-racial but a mono-cultural society; and his view that this monoculture is under threat from “enemies within”. In the last two days, after apparently receiving hundreds of emails from Muslim listeners, a theme also developed that many of the “Muslim rank-and-file” had disowned their “leadership” in favour of the type of leadership offered by Mr Jones.
6 The broadcasts elicited responses from his listeners, almost all of them supporting his viewpoint. Some of the supportive comments came from listeners who identified themselves as Muslims. A small number of his listeners challenged his views. Mr Trad, who was invited onto the programme by Mr Jones, while condemning and distancing himself from Sheik Faiz Mohammed’s speech, was, nevertheless, subjected to trenchant criticism by Mr Jones, both during the interview and when Mr Trad was not able to respond on air. Mr Jones identified Mr Trad on air as part of the “Muslim leadership” which he considered had failed in its duty to censure or censor Sheik Faiz Mohammed or to take action to control and discipline the “car hoons”. Mr Trad subsequently complained to the Anti-Discrimination Board, and the complaint was ultimately referred by the President of the ADB to the Tribunal for determination.
7 Mr Trad bears the burden of proving, on the balance of probabilities, that the broadcasts were public acts that incited or had the effect of inciting “hatred towards, or serious contempt for… a person or group of persons on the ground of the race of the person or members of the group.”
8 The test is an objective one, not dependent on the intention of the broadcaster: John Fairfax Publications Ltd v Kazak [2002] NSWADT 35; Velosky v Karagiannis [2002] NSWADT 18; Burns v Radio 2UW Sydney Pty Ltd [2004] NSWADT 267.
9 Whether Mr Jones himself knew that he was offending, or intended to offend or to hold out the Lebanese Muslim community to the contempt of others, is irrelevant to this consideration. The answer is gauged by how an independent and reasonable observer would comprehend the broadcasts.
10 Nor are the historical sensibilities of the group relevant to that consideration. If, as may be the case for certain minority groups, individuals within the group or the group as whole have heightened sensitivity to public acts, that is an irrelevant consideration in determining objectively the meaning and impact of the public act: see John Fairfax v Kazak [2002] NSWADT 35. It may be the case that, following 9/11, the Bali bombings, the declaration of the “War against Terror” and other events of the last decade that Lebanese Muslims resident in Sydney are acutely sensitive to nuances of public utterances by others.
11 Even if so, the Act does not afford them any greater protection than it affords to others because of their peculiar circumstances. The reasonable listener is neither more disposed, because of the historical circumstances of the group, nor less disposed, because of sympathy for them, to be incited to hatred or serious contempt for them.
12 Both Mr Jones and 2GB deny that a reasonable listener could construe the broadcasts, or episodes within the broadcasts, singly or taken as a whole, as an incitement to hatred or serious contempt of Lebanese Muslims or Lebanese people.
The scope of the complaint
13 In his Second Further Amended Points of Claim (the Points of Claim), Mr Trad particularised his complaints. He alleged, first, that at about 9.20am on 28 April 2005 Mr Jones broadcast words, set out in Schedule A to the Points of Claim, which offend the provisions of the Act. Mr Jones’s broadcasts were transcribed. That segment of the broadcast went as follows:
ALAN 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 program last night -- 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.
14 Mr Trad alleges that this section of the broadcast “vilified Lebanese Muslims and/or Lebanese males and/or Lebanese people and/or Muslims”, including himself, on the grounds of race. He alleges that it was unlawful in that it was “capable of inciting and/or incited serious contempt for” members of the vilified groups.
15 Mr Trad alleges that the words broadcast conveyed imputations that the group are “despicable people”, “unsuitable immigrants” and are “not suitable citizens for Australia”; that they “do not and cannot assimilate”; that they “behave in a manner similar to a badly behaved conquering army during war time”; that they are “prone to commit sexual assaults”; that they are “violent”; that they “violently take what they can from Australia”; that they are “obnoxious persons”; that the group is “akin to disgusting insects or small animals, such as rats or rodents”; that members of the group are “not human”; that they are “parasites”, “have overrun the country”, are destructive and “have invaded Australia”; that they are “unreliable citizens or residents” and are “an internal danger to the security of the country”.
16 Secondly, Mr Trad also complained that broadcasts on 26, 27 and 28 April 2005 breached s 20(1)C of the Act in that they incited hatred and serious contempt towards members of the Muslim, Lebanese-Muslim and Lebanese communities on the grounds of their ethno-religious or ethnic/national origin. The particulars of the broadcasts complained of were set out in a schedule to the Points of Claim (Schedule B).
17 No broadcast is particularised in Schedule B for 26 April but relevant extracts from it are set out below to provide context for the first broadcast relied on by Mr Trad for 27 April took place. That broadcast was a segment of Mr Jones’s program which commenced at about 7.25am. It went as follows:
ALAN JONES: Gary, hang on there, Karen hang on. Keysar Trad is the spokesman for the Lebanese Muslim Association. Keysar Trad, good morning.
KEYSAR TRAD: Good morning, Alan, how are you?
ALAN JONES: I'm not happy. You've been caught red-handed now, you see every time this happens you people go into denial. This was March 18. How is it that you said nothing until 26 April.
KEYSAR TRAD: Quite often when problems happen people try to resolve them internally. They try to highlight these problems to the people involved rather than scandalise it all over the media.
ALAN JONES: Well, Mr Khalid Yassin who was on the platform with this fellow wasn't interested in resolving anything and nor was anyone in the congregation. We're lucky that Gary came forward and gave me a tape.
KEYSAR TRAD: Well, just for your information there were a number of people in attendance had actually walked out and a number of others spoke to this person later on and explained to him that these comments were not balanced and they were --
ALAN JONES: Not balanced? Do you understand - look, this bloke was on television last night, Keysar, this bloke was on television last night saying he'd been misconstrued, so as well as being a troublemaker, he's also a liar. He wasn't misconstrued. When is there going to be discipline within the Muslim leadership to make sure this man is not preaching? You see our suspicion is this goes on every week.
KEYSAR TRAD: This young man actually went on radio yesterday as well --
ALAN JONES: Yesterday was 26 April. This occurred on 18 March and the Muslim community did nothing between then and now to apologise to Australians for this repulsive behaviour.
ALAN JONES: Every time something like this happens it's misconstrued, it's not translated properly. We haven't understood, we meant something else. It was on television last night saying he'd been misconstrued. How can you be misconstrued when women are being blamed for rape. Let my listeners hear again what he said in the first instance with Hitler-like venom:KEYSAR TRAD: Well, firstly the Muslim community is not accountable for every person who goes on a platform and speaks.
Sexual harassment, perversion, promiscuity, a victim of rape every minute somewhere in the world. Why? No-one to blame but herself. No-one to blame but herself.
A vicious Hitler-like oration.KEYSAR TRAD: Firstly people in Australia do not think it was that comment at all.
ALAN JONES: We get that every time, you don't agree. What have you done about it? How often is this bloke going to be preaching in the mosques and how often is it being said and we don't know what's being said? Thank God we have got a translation now and you people can't run away from it.
KEYSAR TRAD: That's not a translation, it's actually spoken in English.
ALAN JONES: That's exactly right.
KEYSAR TRAD: The whole thing (indistinct).
ALAN JONES: Yes. So he's misconstrued. He said on TV last night he's misconstrued. Is he a liar as well.
KEYSAR TRAD: What the - I'm not trying to defend him --
ALAN JONES: He said he was misconstrued on TV last night. Is that a lie?
KEYSAR TRAD: Well, do you want me to answer the or --
ALAN JONES: Yes, you answer the question, that's a yes or no answer.
KEYSAR TRAD: What I'm trying to say to you is I'm not trying to defend the young man. These are statements that cannot be defended. However, at the same time the whole lecture was about something called death and it's not about this issue and how I digressed --
ALAN JONES: I see: “She is degrading herself by being an object of sexual desire” is about death and that's becoming vulnerable to men?
KEYSAR TRAD: Yes, but you have --
ALAN JONES: Is this bloke still preaching? See, Keysar Trad, your cover has been blown, you people. We are sick to death of this stuff going on week in week out and you people in denial all the time. We have done our best to accommodate this nonsense and we have now had enough.
KEYSAR TRAD: Well, Alan, this is not fair to taint the whole community with the words --
ALAN JONES: This bloke is still preaching.
KEYSAR TRAD: This bloke is not preaching at the mosque --
ALAN JONES: He's been caught out, he's been caught out, he's been caught out. We now have exactly what he's said. In every other occasion Sheik El-Hilaly, he had on the platform one of the leading Muslim spokespeople in the world, Khalid Yassin. Did Khalid Yassin say anything that night to reprimand this fellow for his performance?
KEYSAR TRAD: Well, let me just explain. I was not there at the night, but after --
ALAN JONES: Oh, here we go.
KEYSAR TRAD: What happened after this lecture is a number of people, including this man that you just mentioned did say to this young man that this was not appropriate, that this was not --
ALAN JONES: Not appropriate.
KEYSAR TRAD: There was a formal reprimand --
ALAN JONES: Do you know what the people listening to you right now are thinking, they're thinking that they've had a gutful of this. If a Protestant cleric publically ridiculed Muslim women wearing burqas, he'd be run out of town. You people are getting away with cultural murder and the leadership does nothing about it.
KEYSAR TRAD: Well, that's not true, Alan.
ALAN JONES: It is true. That is cultural murder what that man was going on about.
KEYSAR TRAD: And that is not cultural murder.
ALAN JONES: Oh, I see.
KEYSAR TRAD: What happens is the whole community - (indistinct) distanced itself from comments that were made by some members of the Christian community about Muslims and the whole community, the Australian community has distanced from Christians who have made terrible comments about --
ALAN JONES: Keysar Trad, I've got to go to the news. There's one lesson from this. You better tell your people how to behave because out there you people have gone a mile backwards. People are sick and tired of this stuff and they have a suspicion that it's going on every week. Fortunately we have got proof here that this is happening.
ALAN JONES: Look, I don't think your denials are deserving of any time on this programme. Gary, thank you for your time and Karen Wallis, thank you for yours. In the continuing state of revulsion we will go to the news.KEYSAR TRAD: It's not going on every week (indistinct).
18 The second section of Mr Jones’s programme that is subject of Mr Trad’s complaint began at about 9.26am on 27 April. Excluding a short, irrelevant passage at the commencement of the extract complained of, it went as follows:
CALLER, 'JADE': I just wanted to say, like, I was raised up as a Church of England. Like my mum always said to us, like we always wore like longer skirts, you know, that sort of thing, we weren't allowed to go to the teenage parties that all my friends went to, and stuff like that, we were raised like that so we wouldn't entice stuff like that. I'm not saying this guy's said the right thing or said the wrong thing or anything, but I just sort of like in a way, like, I feel like, you know, like not that he has a point, but he is sort of saying, you know, like we were raised to dress moderately, like, you know, so we wouldn't entice stuff like that.
ALAN JONES: It would have been better, Jade, if you'd called for a bit of self-control amongst Muslim men and respect for all women and made it quite clear and didn't speak in such Hitlerian tones. I mean, the delivery is frightening, isn't it, would frighten anyone. Have you heard what he said?
CALLER, 'JADE': Yes, I have, yes, heard it all morning.
ALAN JONES: Frightening. I take the point that you're making but I'm simply saying --
CALLER, 'JADE': The other thing I was going to say. I kind of feel like we're in a way we're making this in a way worse because we're bringing it up and making it really loud and we're saying over and over again what this guy is saying and stuff like that. We're enticing hatred now for the Muslims and it's one guy who said this and now everybody is going to be hating the Muslims, so that when a lady does walk down the street and she's got a thing on her head she's going to basically be looked at or spat at or something now because there's so much hatred going out there because of what this guy has said, you know.
ALAN JONES: Well, Jade, look, this has been going on for some time and people have been arguing it and it's been denied. We're always being told people are being misrepresented and misquoted and I think when that kind of behaviour undermines the cultural unity of this country someone's got to do something about it. If there is a consequence --
CALLER, 'JADE': Yes, but don't you think that the rest of those Muslim people they're going to end up being treated unfairly by, like --
ALAN JONES: Jade, in answer to that question I'd sake [sic] this features on 18 months we have not heard from one Muslim person in opposition to those comments until they were flushed out yesterday, not one Muslim person. Now, Keysar Trad said a couple walked out. Now, I've checked with my Gary who was there. He didn't see anyone walk out and indeed the man who spoke after him who is one of the most eminent speakers in the world of Islamic faith had absolutely nothing to say in condemnation of those comments, so I think we have got to be very careful to understand that you're own cultural strengths are being undermined and when that happens you've got to expect there will be a bit of a fight and there will be a fight all right and there may be some fallout. Jeanine, hello.
CALLER, 'JEANINE': Hello, Alan, unfortunately Jade's gone off on one tangent which is that some people think they're better than others for wearing a certain garb or not. What I was ringing up I was quite worried when I heard the boy Abdul saying - say he was actually a student of the Sheik and I wonder a student under which - in what capacity, what is he being taught. Does this indoctrination, living around in –
ALAN JONES: Propaganda.
CALLER, 'JEANINE': Living in the Bankstown area I often wonder why the boys look at women and girls in this area as they do, why do they treat us the way they do and now this makes me think it's because of how they're being taught and when you go you feel uneasy and uncomfortable, I'm in my 40's. I mean, it doesn't matter how you dress and it doesn't matter just the fact that you're not a Muslim woman and your head's not covered is enough for you to feel unsafe.
ALAN JONES: That's it and threatened.
CALLER, 'JEANINE': And threatened and they're usually in groups.
ALAN JONES: We have got to say now we have a wake up to you. We know these things are being said and you're on notice. We will be sending a few more people into the back of the mosque with the tape-recorder.
CALLER, 'JEANINE': The only difference it makes is I used to have a part-time job as a young girl in that area and my daughters can't. It's not safe there.
ALAN JONES: My word, there's a major erosion of our very cultural being, isn't there.
CALLER, 'JEANINE': When we're walking through a shopping centre our daughters walk between my husband and myself so as to avoid these looks and stars and they can be covered from top to toe.
ALAN: That's right, good comment, Jeanine, you're quite right. This is a threat to our cultural entity. Sarah, hello.
CALLER, 'SARAH': Yes, hi, I was just wondering, I'm a Muslim girl, listening to all of this. I am grateful for what you are saying, I mean a girl can wear what they wants, it's up to the individual, but I just wanted to comment about two months ago on the Today Show there were some Rabbi Schloppson or something on the Today Show on Channel Nine he was actually saying these girls these days dress like prostitutes. Now, why doesn't anyone comment about what he was saying about the ladies today wearing prostitution clothes and can't get a man because of the way they look?
ALAN: Well, Sarah, I wasn't aware of those comments otherwise I would have - I mean, if you can get the dates specific I'll make sure I can find it.
CALLER, 'JEANINE': Yes, see when a Muslim person says something everyone jumps on them, but when somebody else like a Jewish person comments about a particular thing no-one really --
ALAN JONES: I'm not too sure.
CALLER, 'SARAH': (Indistinct).
ALAN JONES: We have had plenty of this sort of stuff and you heard me earlier this morning. I mean, this goes way back into the 1980's when Sheik El-Hilaly made the most appalling comments that have ever been made about Jews.
CALLER: I understand that, but what about the Jewish people who actually as well say something.
ALAN JONES: If things were said which were offensive to Australians we would address them, if they came to our attention. We don't sort of discriminate here on the basis of creed or religious faith. There are certain standards and value systems that apply in Australia and what was said here at Bankstown Town Hall offends those and that's the reason we're addressing them, Sarah, because people have got to understand Australia is Australia. We have a certain cultural standard and you fit that cultural standard or else you've got to face the censure of the community and too often we see Muslim leadership transgressing. That's why we're addressing those comments this morning and people - you can gather by the calls that are being made people are very angry.
CALLER, 'SARAH': That's right, especially when it comes to being a Muslim, but when a Jewish person –
ALAN JONES: Don't get an inferiority complex, Sarah. Don't get an inferiority complex, it's not because you're a Muslim, it's got nothing to do with Muslim, it's tied up with the comments that are made and the comments that are made under the cloak of the Islamic faith. That bloke was preaching and to use a religious faith to propagate that kind of nonsense is a betrayal of the religion but more importantly a betrayal of Australians. Michelle, hello.
CALLER, 'MICHELLE': Good morning, Alan, and I'm glad you've had your show this morning. Well, I'd like to remind the Muslim women that while they're in this country they have a choice. Their men don't give them their choice. They should be free and have their own minds. Now, do those women realise that why they're covering from head to toe have a look at their men. They are doing what you ordinary Australian men do, thongs, skirts, shirts and enjoying themselves. They're not sweating out, are they?
ALAN JONES: That's a good point.
CALLER, 'MICHELLE': And they're looking at our women and the young girls. Now, a young girl can dress like she wants to. I have been a big person all my life and I'm not queer, but if I see a pretty girl I think oh, I wish I looked like that and them boys are thinking the same thing, looking at those girls because they are pretty.
ALAN JONES: You're talking about the way in which Muslims treat their own women and deny them certain freedoms. You're right quite, you're quite right.
CALLER, 'MICHELLE': That's right. Another thing they say the Muslims we respect our mother and our father. Now, why can't they respect us. We are mothers and fathers.
ALAN JONES: Well said, well said. All this is as plain as the nose on your face, really. Tom, hello.
CALLER, 'TOM': Hi, how are you?
ALAN JONES: Well, thanks.
CALLER, 'TOM': Alan, that lady that just rang before, that a Jewish Rabbi said something like that, I think it's the biggest furphy ever. If ever I would say this the congregation would boot him out from the synagogue.
ALAN JONES: Yeah, well, I agree with that comment.
CALLER, 'TOM': The Jewish religion, the women is a sacred person who is very much revered because they are the mother of the children and never ever are they hurt, anybody, any rabbi condemn whatever. People make choices, they are liberal Jews, they are orthodox Jews and they dress as the religion wants to, but have never been commented on their dress (indistinct).
ALAN JONES: Good on, you thank you Tom, thank you for ringing. It's 15 to 10.
19 The third segment of the broadcast about which Mr Trad complained in Schedule B started at about 8.38am on 28 April 2005. This is how it went:
ALAN JONES: It's 21 to nine. Well, after 48-hours of unrelieved gloom from that Muslim trash out at Bankstown there are some wonderful, wonderful emails. Listen to this:
I'm a 24-year old Muslim of Turkish background and religion is a major factor in my life. I wear my head scarf with pride. This doesn't mean I'm not subjected to being attacked. A friend of mine, also wears the veil, was sexually assaulted because her attacker was interested in what was underneath. Therefore I'm appalled and disgusted about the statements which have come out of these so-called Islamic leaders. They are nothing but a disgrace.
I apologise to everyone on behalf of all the true Muslims and hope this doesn't leave yet another bad impression about Muslims. We're not all monsters. Some of us actually have brains, and most importantly some of us have big hearts. Thank you for your time.It's people like him who make true Muslims like me look bad. I'd just like to remind him and his followers that it's un-Islamic and one of the major sins in Islam to judge others and to put them down according to their lifestyle, dress code, et cetera. We, as Muslims, believe that this world is a test to accept people for who they are, they choose to dress, how they choose to live their lives, and to purify your mind of such evil thoughts and to be able to treat all people equally and with respect. That's the biggest test, and these low-lifes have definitely failed.
Another:
As a young Australian woman who was born into the Muslim faith, I found the statement made by the Muslim cleric about women's dress inappropriate. Although Islam has a dress code for men and women, those not part of the faith should not be judged by those who are. Regardless, nobody asks to be raped.
So many of these people are making excellent points. Mohammad says:
Another:
I'm a young Muslim living in Sydney. With regard to the comments made by the Sheik, let me assure you the majority of Muslims do not like this any more than you do. His comments in no way represent mainstream Islamic thought. In fact, the majority of Muslims don't attend this person's lectures or classes and do not subscribe to his views. They are alien to the teachings of Islam.
Australian Muslims say they are deeply concerned at the comments of a Sydney religious teacher who told a public meeting that a rape victim had no-one to blame but herself.
Another one:
That's part of a press release.
I'm an Australian Muslim and it's taken me two days to be able to control my thoughts and write something regarding this Sheik Faiz and his ill-manifestations in the name of Islam. Muslims throughout Sydney are disgusted by his comments and his way of downgrading women, particularly the victims of rape.
However, the greatest hypocrisy of all is the fact that he uses words such as 'satanic skirts' to mobilise his audience of the such evilness and hatred. Who needs Satan?First, this former nightclub bouncer, Faiz, wasn't educated in Saudi Arabia. Rather, he was recruited from the same school of terror which recruited the likes of Grand Satan Bin Laden and his mob. Second, it's very clear that Faiz has a great rage in his soul towards the wider society in which he was born and raised, and that shows his disloyalty to this great country and its people.
Finally:
Thousands of Muslim women get raped every year throughout the Islamic world and many of these victims are fully covered women. I wonder whose side Satan is on.
Another:
There are many Muslims out there who share the same sentiments as I do. It's not fair that their image be tainted because of one ignorant man.I'm a young Australian Muslim female outraged by the comments made by the Sheik Faiz Mohammad. Not only do I find his comments offensive, but as a Muslim, also as a young female. His outlandish comments should not be taken to represent the view of all Muslims. Islam is innocent from such claims, as it condemns the actions of rape, regardless of the way a person decides to dress.
Well, you see, the public know. The only people who can't seem to discipline him are the Muslim leadership. Colleen, hello.CALLER COLLEEN: Good morning, Alan.
ALAN JONES: Yeah.
CALLER COLLEEN: Look, I heartily thank those Muslims who are ringing in, because for a long, long while they've been very silent and they have been visually silent and vocally silent.
ALAN JONES: Yep.
CALLER COLLEEN: And they all have to jump up and down like we are --
ALAN JONES: And apologetic like Keysar Trad.
CALLER COLLEEN: Well - oh, I mean --
ALAN JONES: Excusatory.
CALLER COLLEEN: -- I turn off TV or radio when he comes on because he pays lip-service.
ALAN JONES: Yeah, all the time.
CALLER COLLEEN: Pays lip-service to our --
ALAN JONES: There's always an 'however'. There's always an 'however'. Someone's always misquoted or badly translated.
COLLEEN: Yeah, yeah. Now, look what I'm ringing about is this - a certain rugby league club years ago used to have these multicultural weekends. Now, I had the opinion then and I still hold it now today that you encourage people to be anything other than Australian is a big mistake.
ALAN JONES: You're dead right.
CALLER COLLEEN: And they found out the hard way. Now, look, why do people come to this country - and I'm not saying all migrants do, but a lot of them do - and they have their own newspapers, they want their own hospitals, their own nursing homes. They want their - you know, own, what do you call it, TV programs or whatever. Look, if you want to be Vietnamese the place to be it is in Vietnam. If you want to be Lebanese, the place to be Lebanese is in Lebanon.
If you come here it's up to the immigration people who let people into Australia to make it known to them that you're coming to a country (a) that's mostly overpoweringly a Christian country, the language is English and it is not enough to learn it, you've got to use it. And it's expected of you, never mind what you're going to get when you come here, what you have to give is some loyalty, visually and vocally to Australia. And we expect nothing less and we will accept nothing less.
Because, I mean, I go down to a - you know, to shop, and there are women and mothers and fathers with two and three-year-old kids and they are talking to them in a foreign language. Now, those children - the parents need to be told, 'Look, I'm sorry, that belongs in another country'. This is Australia. You know --
ALAN JONES: Well, I'm letting you go on because you're making excellent points.
CALLER COLLEEN: -- English has got to be the number one language.
ALAN JONES: Excellent points. Excellent points. Excellent points, Colleen. And thank you for ringing.
ALAN JONES: Excellent points. And you see, Kevin has written to me:CALLER COLLEEN: Thank you.
This so-called young man who preaches Hitler-like sermons at Bankstown Town Hall teaches at the Global Islamic Youth Centre in George Street, Liverpool.
He says:
Can you imagine what he's saying there behind closed doors? This treason has to be stamped out.
Good stuff, isn't it. And Terry says:
Gough Whitlam, Al Grassby and Malcolm Fraser all love the word 'multicultural'. Just look at France and Canada with their multicultural societies. Look what trouble they've having. You can't complain to anyone because you're being described as a racist bigot. It's reverse apartheid here.I have a young Islamic person working for me. He goes to Lakemba mosque. He told me one day it will be a pan-Islamic state in the Pacific region. And you guessed it, it's Australia. Not now, but in 20 years or so. Heaven help our kids and grand kids.
The issues to be determined
20 Mr Trad’s allegations raise a number of questions:
First, were Mr Jones’s broadcasts his “public acts” for the purposes of the Act? The respondents claim that the broadcasts were not Mr Jones’s public acts but those of the radio station.
Second, who or what group was the subject of the broadcasts? In particular, was the group Muslims, Lebanese Muslims, Lebanese males or Lebanese people?
Fourth, if the broadcasts were an incitement on racial grounds, do any of the exceptions or defences under s 20C(2) apply? Mr Jones and 2GB contend that if the Tribunal finds against them on the first three issues, they can rely on the statutory defences under s 20C(2)(a) and (c).Third, did the broadcasts incite or have the capacity to incite a reasonable person listening to them to hatred of, or serious contempt for, that person or group of people on the grounds of their respective race?
21 To resolves these issues, it is necessary to examine the broadcasts in detail as they provide the context within which the sections of those broadcasts about which Mr Trad’s complains must be understood.
22 Before dealing with them, however, it is necessary to deal briefly with a submission made for the respondents that the Tribunal ought dismiss Mr Trad’s claim, because, amongst other reasons, he made an error in Schedule B of the Points of Claim by attributing a statement to Mr Jones at 8.38am on 26 April when the transcript shows that it was not said at that time on that date. It was also argued that as Mr Trad had agreed that he had not been offended by anything else said by Mr Jones that day, the Tribunal ought dismiss that part of the claim.
23 That argument must itself be dismissed. The evidence is the transcripts of 26 to 29 April, not Mr Trad’s faulty recollection of a single transcript. Whether or not Mr Trad heard the whole broadcast on 26 April or was offended by any of it is irrelevant to the primary questions this Tribunal must resolve to which objective tests apply. This argument can only be relevant to damages, not to the substance of the claim.
The broadcasts
24 Most of the facts in this matter are not disputed. The ultimate issue for the Tribunal is the application of the relevant legal principles to the facts. To do so, it is necessary to set out the background to the broadcasts about which Mr Trad complains and relevant passages from the transcripts of the broadcasts themselves. In his Points of Claim, Mr Trad made complaints only in respect of relatively short passages of the broadcasts Mr Jones made during the period 26 to 29 April 2005.
25 To allow an accurate and fair assessment of the single and combined effect of these broadcasts we think it is necessary to set them out in full. As the transcripts of the relevant broadcasts are very lengthy, running to 122 pages even when extracted from the full programme transcripts, they are set out in an appendix to these Reasons. While we regard them all as highly material, especially when taken as a whole body of commentary, and have closely considered them all, we will refer here only to those we regard as having the greatest evidentiary significance.
26 On 18 March 2005, a man called Sheik Faiz Mohammad addressed a public meeting at Bankstown Town Hall attended, according to Mr Jones’s informant, by more than 1000 people. Mr Jones did not attend the meeting himself. Mr Trad was not at the meeting either and learned about the details of Sheik Faiz Mohammed’s comments mainly from media reports.
27 It seems that Sheik Faiz Mohammed told his audience of predominantly Muslim men that, among other things, a ‘victim of rape’ had no one to blame except herself. It seems that he also told the meeting that women dressed in ‘strapless, backless, sleeveless … satanic skirts, slit skirts, translucent blouses, mini-skirts and tight jeans’ ‘tease man and appeal to his carnal nature’.
28 It appears that the media reports were generated from information passed on to various journalists and others by one or more people who had been present when Sheik Faiz Mohammed spoke on 18 March. The first media report appears to have been that by Ms Miranda Devine in the Sun-Herald on 24 April 2005. In the days following, other media picked up the story, including 2GB.
The 26 April 2005 programme
29 By 26 April 2005, Mr Jones and 2GB had received recorded extracts of the 18 March 2005 speech. (Whether that recording had been made legally under the Listening Devices Act 1984, which was in force in 2005, is not clear. That question and the legality of playing the recordings on air was not raised as an issue in this hearing.)
30 At about 6.12 a.m on his breakfast programme that day, Mr Jones discussed Ms Devine’s article. Having outlined the background to the 18 March 2005 meeting, he then played an extract from a recording made by one of Sheik Faiz Mohammed’s audience. In inviting his listeners to call in to comment, he made the following comment:
This is a Lebanese Muslim Sheik, he's born in Sydney, he’s Australian. What do you make of all of this? Unbelievable, isn’t it? Well, it's not unbelievable, I should stop using that word, it’s very believable. 131873 is my open line number.
31 Over the next four hours or so, a number of callers responded to the invitation, and Mr Jones made comment either to prompt and invite listener reaction or in reaction to listeners’ calls. There were 12 such episodes on this day.
32 On this day, Mr Jones’s comments, and conversations with his callers, were initially largely focussed on Sheik Faiz Mohammed and the meeting on 18 March. Mr Jones interpreted the comments of the Sheik as an insult to the victims of pack rapes perpetrated by a group of Muslim men in 2000, as a form of degradation of women in general and, finally, in a conversation with a caller called ‘Michael’, as an incitement “of behaviour in society we don’t want”. In saying that, Mr Jones had picked up and adopted a comment by ‘Michael’ who had expressed the opinion that Sheik Faiz Mohammed had incited “violence against Australian women”.
33 Also on 26 April, Mr Jones expressed a concern that 1000 people had come out of the meeting “breathing hell stone – brimstone and fire” after Sheik Faiz Mohammed had whipped them up with “hell fire and brimstone”. The implication of these comments, taken together, was that Sheik Faiz Mohammed, had incited and licensed his audience to attack women by telling them that women who dressed immodestly by his standards had no one to blame but themselves if they were raped. Mr Jones commented, “I mean we don’t know who those thousand were who were in there and what kind of behaviour are they going to be responsible for when they leave.”
34 As the programme travelled along, however, the attack broadened from its concentration on Sheik Faiz Mohammed to a more general condemnation of the thousand attendees at the meeting. Then, in conversation with a caller named ‘Scotty’ who had characterised Sheik Faiz Mohammed as “the enemy within”, Mr Jones adopted this phrase but applied it to a wider group: “Thank you, mate,” Mr Jones said, “that’s what Margaret Thatcher said didn’t she. She always said the enemy was within and there they are.”
35 In the context of the conversation, this may have related to Sheik Faiz Mohammed’s audience or it may have been meant by Mr Jones to apply more broadly.
The 27 April 2005 programme
36 On 27 April, there were 16 episodes during the programme in which Mr Jones and his callers commented on the speech of Sheik Faiz Mohammed. He also introduced the topic of “the hoons on The Rocks”, the ‘hoons’ being young Lebanese-Australian males who were apparently conducting, or trying to conduct, unlawful street races on Hickson Road, The Rocks. When challenged by police, they were highly disrespectful to the police officers and their misbehaviour was captured and broadcast by the television station Channel 9 on the evening of 26 April.
37 The highlight of Mr Jones’s show on 27 April, however, was a series of interviews, the first with a man identified only as ‘Gary’ who had attended Sheik Faiz Mohammed’s meeting on 18 March and who had provided the tape used by Mr Jones on his show the previous day. From the context it appears that ‘Gary’ is himself a Muslim.
38 ‘Gary’ linked Sheik Faiz Mohammed with mainstream Muslim clerics associated with the Lakemba mosque. Mr Trad is also associated with the Lakemba mosque.
39 ‘Gary’ took exception to Sheik Faiz Mohammed implying that women like his wife and daughters “are the unclean ones, are the Kafir, as he referred to them, they’re the dirty ones, they’re the equivalent to a prostitute”.
40 He did not explain his rationale for sending the tape to Mr Jones, nor did Mr Jones ask him, but perhaps his motive may be divined from his comments to Mr Jones that:
This guy’s a very popular speaker. I've spoken to a lot of Muslim young men who listen to this fella. He's very popular, but it's not just him, you know, I've heard other speakers who speak in such a way — they throw this attitude across the audience of it's them and us. We are the Muslim community and everybody out there that's not the Muslim community is sort of against you, you know, so they're developing these bad attitudes. I mean, on the night you had fathers there with young kids, there was 10-year-old kids sitting in this auditorium listening to this stuff, you know. What attitude are they going to take home?
41 ‘Gary’s’ concerns appear to be encapsulated in his comments that the Muslim community feels that the rest of the community is against them and that speakers like Sheik Faiz Mohammed promote “bad attitudes” by emphasising this feeling of “them and us”. It appears that he hoped that, by speaking to Mr Jones, he would help redress these tendencies within the Muslim and non-Muslim communities. At no point did ‘Gary’ suggest or imply that Sheik Faiz Mohammed had given permission to, or incited, his audience to become rapists. Mr Jones, however, did not respond to ‘Gary’s’ comments about the alienation of Muslims in the community but immediately changed tack, introducing a second guest, Ms Karen Willis, a spokesperson from the NSW Rape Crisis Centre. (When Mr Jones played excerpts from the interview later in the programme, ‘Gary’s’ description of Muslims being alienated from mainstream Australian society were edited out.)
42 Ms Willis gave fair and measured responses to Mr Jones. She gave various statistics concerning sexual assault before the following exchange took place:
ALAN: Your website says that in the last financial year nearly 11,000 sexual attacks were reported to New South Wales report [sic].
KAREN: Sexual and indecent assault, that's right.
ALAN: So for every assault that's reported how many do you think there wouldn't be.
KAREN: The Australian Bureau of Stats estimates only about 20 per cent of sexual assaults are reported, so, yes, that's only about a fifth of what's actually going on out there.
KAREN: Family members, close family friends, someone the woman goes to school with or works with, makes up 70 per cent of perpetrators, yes.ALAN: Of course there were families in this congregation at Bankstown Town Hall. You say 70 per cent of perpetrators are family members.
43 Mr Jones’s linkage of sexual assault by family members with Sheik Faiz Mohammed’s meeting at Bankstown was something neither suggested nor adopted by Ms Willis, but was consistent with the message that he had purveyed the previous day about the attendees of the meeting. Later in the conversation, Mr Jones again sought to make a link between the meeting and the terrible pack rapes of 2000 but Ms Willis refused to adopt that proposition:
ALAN: [Quoting from the Sheik Faiz Mohammed tape] A woman displayed her beauty to the entire world degraded herself by being an object of sexual desire and thus becoming vulnerable to a man who looks at her for gratification of his sexual urge.
ALAN: Of course this delivery not far from the Bankstown Trotting Club where five years ago a woman, Miss C 18 was raped 25 times by 14 men over six hours and The Daily Telegraph editorialised at the time:KAREN: I mean it's blaming the victim, but also as a man I think I'd be quite appalled to think that there's some idea out there that I could be walking down the street as a normal functioning adult human then all of a sudden turn into a raging violent animal at the sight of a skirt.
Instead of sexual gratification the rapes were primarily intended to subjugate and degrade to establish racial superiority over another nationality through sexual domination and cruelty. This woman was just going for a job dressed in her best suit .
KAREN: I'm not sure that that analysis is one hundred per cent accurate. What we do know about gang rape is that it's often around a group of people needing to prove themselves to the leader in that particular group who can quite often have psychopathic type tendencies and that's where you see with gang rape that often the level of violence and degradation will increase over the process of the rape as each of the members try to prove themselves more worthy.
44 Mr Jones’s third guest during the interview was Mr Trad. Mr Jones immediately confronted Mr Trad about Sheik Faiz Mohammed’s speech and “the Muslim leadership”, as Mr Jones called it, and its response to the media outcry:
ALAN: Gary, hang on there, Karen hang on. Keysar Trad is the spokesman for the Lebanese Muslim Association. Keysar Trad, good morning.
KEYSAR TRAD: Good morning, Alan, how are you?
ALAN: I'm not happy. You've been caught red-handed now, you see every time this happens you people go into denial. This was March 18. How is it that you said nothing until 26 April.
KEYSAR TRAD: Quite often when problems happen people try to resolve them internally. They try to highlight these problems to the people involved rather than scandalise it all over the media.
ALAN: Well, Mr Khalid Yassin who was on the platform with this fellow wasn't interested in resolving anything and nor was anyone in the congregation. We're lucky that Gary came forward and gave me a tape.
KEYSAR TRAD: Well, just for your information there were a number of people in attendance had actually walked out and a number of others spoke to this person later on and explained to him that these comments were not balanced and they were --
ALAN: Not balanced? Do you understand - look, this bloke was on television last night, Keysar, this bloke was on television last night saying he'd been misconstrued, so as well as being a troublemaker, he's also a liar. He wasn't misconstrued. When is there going to be discipline within the Muslim leadership to make sure this man is not preaching? You see our suspicion is this goes on every week.
KEYSAR TRAD: This young man actually went on radio yesterday as well --
ALAN: Yesterday was 26 April. This occurred on 18 March and the Muslim community did nothing between then and now to apologise to Australians for this repulsive behaviour.
ALAN: Every time something like this happens it's misconstrued, it's not translated properly. We haven't understood, we meant something else. It was on television last night saying he'd been misconstrued. How can you be misconstrued when women are being blamed for rape. Let my listeners hear again what he said in the first instance with Hitler-like venom:KEYSAR TRAD: Well, firstly the Muslim community is not accountable for every person who goes on a platform and speaks.
Sexual harassment, perversion, promiscuity, a victim of rape every minute somewhere in the world. Why? No-one to blame but herself. No-one to blame but herself.
A vicious Hitler-like oration.KEYSAR TRAD: Firstly people in Australia do not think it was that comment at all.
ALAN: We get that every time, you don't agree. What have you done about it? How often is this bloke going to be preaching in the mosques and how often is it being said and we don't know what's being said? Thank God we have got a translation now and you people can't run away from it.
KEYSAR TRAD: That's not a translation, it's actually spoken in English.
ALAN: That's exactly right.
KEYSAR TRAD: The whole thing (indistinct).
ALAN: Yes. So he's misconstrued. He said on TV last night he's misconstrued. Is he a liar as well.
KEYSAR TRAD: What the - I'm not trying to defend him --
ALAN: He said he was misconstrued on TV last night. Is that a lie?
KEYSAR TRAD: Well, do you want me to answer the or --
ALAN: Yes, you answer the question, that's a yes or no answer.
KEYSAR TRAD: What I'm trying to say to you is I'm not trying to defend the young man. These are statements that cannot be defended. However, at the same time the whole lecture was about something called death and it's not about this issue and how I digressed --
ALAN: I see: “She is degrading herself by being an object of sexual desire” is about death and that's becoming vulnerable to men?
KEYSAR TRAD: Yes, but you have --
ALAN: Is this bloke still preaching? See, Keysar Trad, your cover has been blown, you people. We are sick to death of this stuff going on week in week out and you people in denial all the time. We have done our best to accommodate this nonsense and we have now had enough.
KEYSAR TRAD: Well, Alan, this is not fair to taint the whole community with the words --
ALAN: This bloke is still preaching.
KEYSAR TRAD: This bloke is not preaching at the mosque --
ALAN: He's been caught out, he's been caught out, he's been caught out. We now have exactly what he's said. In every other occasion Sheik El-Hilaly, he had on the platform one of the leading Muslim spokespeople in the world, Khalid Yassin. Did Khalid Yassin say anything that night to reprimand this fellow for his performance?
KEYSAR TRAD: Well, let me just explain. I was not there at the night, but after --
ALAN: Oh, here we go.
KEYSAR TRAD: What happened after this lecture is a number of people, including this man that you just mentioned did say to this young man that this was not appropriate, that this was not --
ALAN: Not appropriate.
KEYSAR TRAD: There was a formal reprimand --
ALAN: Do you know what the people listening to you right now are thinking, they're thinking that they've had a gutful of this. If a Protestant cleric publically ridiculed Muslim women wearing burqas, he'd be run out of town. You people are getting away with cultural murder and the leadership does nothing about it.
KEYSAR TRAD: Well, that's not true, Alan.
ALAN: It is true. That is cultural murder what that man was going on about.
KEYSAR TRAD: And that is not cultural murder.
ALAN: Oh, I see.
KEYSAR TRAD: What happens is the whole community - (indistinct) distanced itself from comments that were made by some members of the Christian community about Muslims and the whole community, the Australian community has distanced from Christians who have made terrible comments about --
ALAN: Keysar Trad, I've got to go to the news. There's one lesson from this. You better tell your people how to behave because out there you people have gone a mile backwards. People are sick and tired of this stuff and they have a suspicion that it's going on every week. Fortunately we have got proof here that this is happening.
ALAN: Look, I don't think your denials are deserving of any time on this programme. Gary, thank you for your time and Karen Wallis, thank you for yours. In the continuing state of revulsion we will go to the news.KEYSAR TRAD: It's not going on every week (indistinct).
45 During the course of the interview, Mr Trad made clear to Mr Jones that he and others had taken action to counsel Sheik Faiz Mohammed and that he and “the Muslim leadership” had distanced itself publicly from Sheik Faiz Mohammed’s comments. As the above extract from the transcript shows, Mr Jones treated these observations with incredulity and contempt. Significantly, when Mr Trad protested that it was “not fair to taint the whole community” with Sheik Faiz Mohammed’s ill-judged comments, Mr Jones ignored this and his explanations of what had been done to counsel Sheik Faiz Mohammed, continuing to upbraid Mr Trad derisively and concluding in an accusation that “you people are getting away with cultural murder” (a term he did not define).
46 This theme of “cultural murder” continued throughout the programme. In a short editorial comment Mr Jones said:
ALAN: 21 and a half to 8 and I'm still livid. It's Wednesday April 27. Look, a this mob have been caught red-handed. We now know what we suspected that this goes on almost every other day. I've been asked to appear on a platform with Keysar Trad and others. I'll be telling Keysar Trad today I want nothing to do with them until such time that it's clear that this bloke has been stood down pending a total apology to Australian women. If that's not forthcoming this mob had better know we're going after them. This is as I said cultural murder and Australians are sick of it. The only difference is this time we have got proof.
47 A few minutes later he made other similar comments:
ALAN: 15 and a half to 8. Just a joke for myself I thought, I'll tell myself a joke. What did the Teddy bear say when it was offered dessert? "No thanks, I'm stuffed." Well, that's about exactly how I feel. You can't escape the thought of that bloke. He's just a mongrel. If you used the Australian language to describe these people they're just mongrels. White-anting and undermining our cultural strengths and if the bloke wants to train in Saudi Arabia and preach that sort of stuff let him go back to Saudi Arabia. That's the way they treat women over there. 34 years of age. Then of course goes on television last night and tells lies. He was misunderstood, so as well as a trouble maker he's a liar as well.
48 Later again in the programme Mr Jones played excerpts from his interviews and added the following comments, again emphasising the theme of “cultural murder”:
ALAN: ... I said earlier today they'd been caught red-handed. We now know what we suspected, this sort of stuff goes on almost every other day. As I said, I've been asked to appear on a platform with Keysar Trad and others. I want nothing to do with him until such time as it's clear that this bloke has been stood down pending a total apology to Australian women. If that's not forthcoming this mob had better know we're going after them. This is cultural murder and Australians are sick of it. The only difference is this time we have got proof. They can't claim to be misquoted it's there in the English language.
49 Mr Jones also misrepresented Mr Trad. At one point during the broadcast he replayed a lengthy excerpt from Sheik Faiz Mohammed’s speech, commented “Well, the man’s plainly ill” and then asserted, “I spoke to Keysar Trad from the Lebanese Muslim Association and he had his usual go at defending the indefensible.” As the full interview with Mr Trad excerpted above shows, Mr Trad did not seek to defend Sheik Faiz Mohammed but sought to deflect Mr Jones from unfairly holding the whole Muslim community to account for the Sheik’s conduct.
50 The theme of cultural conflict with Muslims was picked up by a listener ‘Clive’ whose comments were encouraged by Mr Jones:
ALAN: Good on you, Clive, good call. Thank you, that's what the open line is for and it's a wonderful vehicle to let the public and politicians know just where the sentiments are coming from and how strong they are.CALLER, 'CLIVE': And Muslims are tied up in this, the Muslim Courts, look, we're at war with these people and if people don't understand that they're kidding. It will be our grandkids that will have to stand up in the streets and fight for their survival and I don't like it.
51 In this case, but for the fact that Mr Jones had previously himself claimed that there was “cultural murder” being perpetrated and had supported the “enemy within” concept, Mr Jones might simply have been understood to have been encouraging the forthrightness of ‘Clive’s’ opinions. Having made a claim of an internal conflict of cultures, however, Mr Jones’s enthusiasm for Clive’s comments suggested that he embraced and agreed with Clive’s apocalyptic forecast.
52 The theme of cultural conflict was taken up again that morning by Mr Jones, this time indirectly, in a discussion with a caller ‘Axel’:
CALLER, 'AXEL': Look, in the wake of these comments which I think are absolutely abhorrent I think it's also a bit of a wake-up call for Australia who's trying so hard to foster, to promote, if you like, a multicultural society. I think it's a wonderful - (indistinct) topic, because if we - it's lovely to have a multiracial society, I think that's excellent.
ALAN: That's what we are, we're monocultural.
ALAN: I agree with you entirely, we are not a multicultural society, we are a multiracial society. We are monocultural. If you can't fit under the umbrella of the Australian culture then you shouldn't be allowed to stay or go somewhere elsewhere you can. This bloke trained in Saudi Arabia.CALLER, 'AXEL': Absolutely, but when we start to get these people trying to impose these extreme views or extreme policies on our society I think that's rubbish and we shouldn't tolerate it.
53 The transcript suggests either that Mr Jones misconstrued ‘Axel’s’ initial comment or that ‘Axel’ was mistranscribed. Either way, Mr Jones advanced his argument that Australia was a monocultural society, that other cultures were alien to it, and that those who did not assimilate ought be forced to leave.
54 Up to this point, none of Mr Jones’s listeners had offered a counter point of view. In the eleventh episode that morning, however, a caller called ‘Abdul’, who identified himself as a student of Sheik Faiz Mohammed, spoke to Mr Jones in attempt, it seemed, both to bring some balance back into the argument and to correct what he perceived as Mr Jones’s misinterpretation of Sheik Faiz Mohammed’s message to the audience on 18 March. In particular, he tried to make the points that the speech had been “blown way out of proportion” and that Sheik Faiz Mohammed had never intended to convey a message that rape victims “deserved to be raped”, which was the imputation Mr Jones and some of his listeners were claiming the speech conveyed. ‘Abdul’ attempted to explain to Mr Jones that the message conveyed was that if women dressed immodestly they were “partly to blame for their own predicament” (a proposition put to him by Mr Jones and with which he agreed).
55 Mr Jones was withering in his treatment of ‘Abdul’ and cut him off straight away without addressing the point that he may have misconstrued Sheik Faiz Mohammed’s intentions:
ALAN: I see, so coming back to the point, the women who is to blame for her predicament, you've just proved my case, Abdul. Listen, can I tell you something, radio time is so valuable - I don't ever do this - but it cannot be wasted listening to the nonsense that you are propagating here. If this man is a mate of yours he is a disgrace to Australia and doesn't belong within the cultural norms of Australian life. Good morning. Amy, hello, give us a bit of sanity, please.
56 To the next, more congenial listener, ‘Amy’, Mr Jones commented:
ALAN: He's a student of the language, that last fellow: No-one to blame but herself. Then he gives me an analogy, in other words you're driving a car and you're going quickly and you have an accident. I said so you've contributed to your own consequence. Yes. So this means this woman is contributing to her being raped simply because she's attractive. I mean, these people, you know, there's no end to them and the arrogance of them.
57 During this conversation, Mr Jones read out an email from a listener ‘Shirley’ who likened Sheik Faiz Mohammed to evil “vermin”. ‘Amy’ and Mr Jones then joined ‘Abdul’ to the condemnation of Sheik Faiz Mohammed:
ALAN: Shirley says here to me:
I'm outraged and furious that we have to call vermin like that Faiz Mohammad Australian. He is evil, he's inciting his followers to evil.
ALAN: Absolutely.
CALLER: He is just like that other man who just previously spoke.
58 In closing his conversation with ‘Amy’, Mr Jones commented:
ALAN: Basically we have had enough of all of this.
ALAN: Everyone's had enough and at the end of the day someone stronger than us and more powerful than us in government is going to have to do something.CALLER, 'AMY': That's for sure.
59 Mr Jones’s next caller that morning was another Muslim listener, ‘Fatima’. She also sought to correct Mr Jones’s interpretation of the message of Sheik Faiz Mohammed, whom she knew. She challenged him to see Sheik Faiz Mohammed’s lecture and check his facts. He refused, relying on the document or recording he had of the 18 March lecture. He also refused to accept any interpretation of the lecture other than his own:
CALLER, 'FATIMA': I'm a revert [sic] to Islam and I know Faiz myself and I can see how a lot of people would be generally upset with the comment and it can be quite often misconstrued. Now, in a time where there's- - -
ALAN: Misconstrued? He was very specific, this bloke.
ALAN: Don't use those words. He wasn't misconstrued at all. We're not in the business of misconstruing people. We don't misconstrue what people say, Fatima. We don't misconstrue. Can you misconstrue the venom and hate in this utterance? Just listen to the language. I don't know whether you were there. This is him, no-one's making it up, this is not an actor, this is him:CALLER, 'FATIMA': The reason why - let me just- - -
Sexual harassment, perversion, promiscuity, a victim of rape every minute somewhere in the world. Why? No-one to blame but herself .
CALLER: You talk about hatred and that, but as a matter of fact did you actually bother to find out what this man actually does?
ALAN: I know what he does, he preaches this degrading filth to people at Bankstown.
CALLER: You know he's taken a lot of people away from drugs and alcohol when no body else can be bothered to give these people a home. Look, the thing is at the end of the day people do get a little excited and sometimes they do say something and I'm not admitting that he said something wrong, but what I'm trying to say is in a time where, you know, everybody is so hell bent on hatred and everything like that, you know, if we took the time to actually go out there and meet the person ourselves instead of ripping everybody apart may be we would get a little bit more (indistinct) than where we are today.
ALAN: Fatima? Fatima?
CALLER,'FATIMA': This is because- - -
ALAN: Fatima?
CALLER, 'FATIMA': Yes.
ALAN: Drugs poison people.
CALLER, 'FATIMA': Yes, they do.
ALAN: This man is poisoning people's minds. There is very, very little difference between both treatments. The stuff he belched out was poisonous. He spoke about young girls being brought up today, in other words there are parents out there, layers and layers of make-up which they need a shovel to remove afterwards. Now, I'm looking at the men around here. We haven't seen - there's a stack of women work here, we haven't seen any girl with make-up that needs a shovel to remove.
Tanning out in the sun, bronzed, blonde
These were prepared texts, there's no accident in this language:
The lustful ways of men.
They're trying to appeal to, that's what they're doing, women:
And then they're in:Dieting, working out.
Strapless, backless, sleeveless, skirts, nothing but Satanic skirts.
Slit skirts, translucent blouses.
And he screamed when he said that:
60 Again, Mr Jones cut the listener off without addressing the points she sought to make:
Fatima, drugs kill people. This kind of poisoning bile in the minds of young people, Muslim or others is going to destroy their intellectual and emotional strength as well.
61 Even when callers who identified as Muslims expressed disgust at the comments of Sheik Faiz Mohammed Mr Jones was reluctant to accept the sincerity of their protestations. In the eighth episode that morning, Mr Jones read what he described as “an important email” only to dismiss it in favour of an argument by another listener advancing again the “clash of cultures” theory:
ALAN: It's 21 minutes to 9 o'clock. Well, the e-mails are everywhere. This is an important e-mail which says :
As an Australian Muslim I just like the overwhelming majority of Australians, Muslims and non-Muslims are absolutely disgusted at the comments made by Sheik Faiz. Please also check out the views of our Muslims at where we're running a poll. As an Australian Muslim do you agree with the comment made by Sheik Faiz that a woman who dresses provocatively becomes eligible for rape, disagree or agree. Also please see the views on this topic at the Islamic Sydney forums and there's a stack of them listed here. Islamic Sydney dot-com receives over one and a half million hits. I hope you make it clear to all your listeners that Muslims are just as disgusted as the rest of the community.
Well, it's up to the leadership then to take this bloke out of action and have him publicly apologise to all Australian women. That's what he has to do before we can believe any of this business about being outraged. Because Les says:
Islam's view of women is that they are a constant temptation to men. Women have to dress to hide their bodies so as not to tempt men. The Islamic male views himself as the victim constantly vexed by the sensual sinful female. I'm surprised that it's taken this long for the teaching of Islam's view of women to make it into the mainstream media. Culture clashes with Islam will increase as their adherents grow and Islamic teachings proclaimed in the mosque. Nothing can be done to stop its spread. Most people don't understand the threat Islamic fundamentalism holds for the future freedom of the sons and daughters of Australia. By the time the threat's understood it may be too late to stand against it.
62 Several times Mr Jones likened Sheik Faiz Mohammed’s speech to Adolf Hitler’s speeches. One of his listeners, ‘Christopher’, who had grown up in Germany, also picked up the Nazi theme by comparing Sheik Faiz Mohammed to Josef Goebbels, Hitler’s Minister for Propaganda. This imagery is somewhat florid but becomes disturbing when, during a call from a listener called ‘Clive’, the listener and Mr Jones drew a comparison between the “good Germans” who acquiesced in the Holocaust and the “good Muslims” who, according to Mr Jones, (notwithstanding Mr Trad’s claims to the contrary) failed to censure Sheik Faiz Mohammed.
63 In the fifteenth episode that day, Mr Jones once again took up the issue of cultural conflict and an internal enemy by reading an email from a listener (whose name was unable to be transcribed):
ALAN: (Indistinct) say:
Alan, you're on the money again. If any Australian cleric and this is the issue, isn't it, was to assault the Muslim world by deploring their manner of prayer or manner of dress or the way they conduct themselves generally they would be pilloried by Muslims and Australians alike.
We're far too tolerate [sic] with these people. It's not the older mainstream Muslims that we should be aware of, but the younger impressionable dysfunctional members of the Muslim youth who can see this is a way to paradise and all its alleged pleasures. We have to jump on it now and stop it, otherwise it will fester and grow and we will lose both the battle and the war. To solve a problem you must remove the root cause.
64 The episode following this was a conversation with a listener ‘Jade’. She identified herself as an Anglican who had been brought up by her mother to dress modestly. She sought to redress what she saw as unfair and unreasonable debate. Her principal point was that the manner in which the debate was developing was inflammatory and inciting hatred of Muslims.
65 While Mr Jones was courteous to her, he dismissed her comments as those of a well-meaning but misguided person:
CALLER, 'JADE': I just wanted to say, like, I was raised up as a Church of England. Like my mum always said to us, like we always wore like longer skirts, you know, that sort of thing, we weren't allowed to go to the teenage parties that all my friends went to, and stuff like that, we were raised like that so we wouldn't entice stuff like that. I'm not saying this guy's said the right thing or said the wrong thing or anything, but I just sort of like in a way, like, I feel like, you know, like not that he has a point, but he is sort of saying, you know, like we were raised to dress moderately, like, you know, so we wouldn't entice stuff like that.
ALAN: It would have been better, Jade, if you'd called for a bit of self-control amongst Muslim men and respect for all women and made it quite clear and didn't speak in such Hitlerian tones. I mean, the delivery is frightening, isn't it, would frighten anyone. Have you heard what he said?
CALLER, 'JADE': Yes, I have, yes, heard it all morning.
ALAN: Frightening. I take the point that you're making but I'm simply saying --
CALLER, 'JADE': The other thing I was going to say. I kind of feel like we're in a way we're making this in a way worse because we're bringing it up and making it really loud and we're saying over and over again what this guy is saying and stuff like that. We're enticing hatred now for the Muslims and it's one guy who said this and now everybody is going to be hating the Muslims, so that when a lady does walk down the street and she's got a thing on her head she's going to basically be looked at or spat at or something now because there's so much hatred going out there because of what this guy has said, you know.
ALAN: Well, Jade, look, this has been going on for some time and people have been arguing it and it's been denied. We're always being told people are being misrepresented and misquoted and I think when that kind of behaviour undermines the cultural unity of this country someone's got to do something about it. If there is a consequence --
CALLER, 'JADE': Yes, but don't you think that the rest of those Muslim people they're going to end up being treated unfairly by, like --
ALAN: Jade, in answer to that question I'd sake [sic] this features on 18 months we have not heard from one Muslim person in opposition to those comments until they were flushed out yesterday, not one Muslim person. Now, Keysar Trad said a couple walked out. Now, I've checked with my Gary who was there. He didn't see anyone walk out and indeed the man who spoke after him who is one of the most eminent speakers in the world of Islamic faith had absolutely nothing to say in condemnation of those comments, so I think we have got to be very careful to understand that you're own cultural strengths are being undermined and when that happens you've got to expect there will be a bit of a fight and there will be a fight all right and there may be some fallout. Jeanine, hello.
66 Throughout the programme, a constant emphasis was laid by Mr Jones directly or by endorsement of his listeners’ views on the threat posed to Australian society by Sheik Faiz Mohammed, his followers, Muslim youths, Muslims living in the Bankstown area, the frightening nature of the threat and the need to be ready to fight against it.
The 28 April 2005 programme
67 On 28 April, there were again a large numbers of episodes, 16 in all.
68 By this time, political leaders had begun to make guarded comments condemning Sheik Faiz Mohammed’s comments. In the first episode of the day, Mr Jones quoted the then NSW Premier, Mr Bob Carr, and the then Federal Treasurer, Mr Peter Costello to this effect. He then announced to listeners that Mr Trad had written to him seeking an apology and demanding that Mr Jones “repair the problem”. Mr Jones’s on-air response to Mr Trad was:
- You’ve created the problem. You repair it yourself. We’ve all had a gutful and you’d better know that.
69 He went on to condemn Mr Trad in strong terms:
I made the point quite clear. I answered the email earlier this morning. And we have had a gut-full. We're sick and tired of it and they've been caught red-handed. We've suspected this stuff's been going on, and so, thankfully, so had one of our listeners, who went in with a tape-recorder and proved that they're all liars because they deny this is happening, and here they are inciting. And of course Keysar Trad, he's as big a shonk and fraud as any of them, because he made his apology, so-called apology, yesterday. This stuff was delivered in March. If they hadn't been flushed out, nothing would have happened and they would have got away with it and a thousand people laughing and leaving, believing that women who wear short skirts and expose their shoulders or parts of their body are fair game for rape, they deserve it, they bring it on themselves: "No-one to blame but herself", and we have misconstrued. No, I am sorry, Keysar Trad, you are all, as far as I'm concerned, not to be trusted, the lot of you.
70 In the second episode of the morning, Mr Jones noted that many Muslims had emailed him the day before and that many had been “just as outraged by the [Muslim] leadership” as had Mr Jones been. He congratulated them for doing so before turning to the issue of “car hoons”.
71 Mr Jones described a confrontation between police and “the hoons at The Rocks” who were claiming, when stopped by police, that they were being harassed and being subject to “a random Lebo check” (the latter phrase was apparently a quotation from one of the people stopped by police, not a coinage of Mr Jones but he soon used it himself to criticise the attitude of the “hoons”). He was also claimed to have been told that Brighton-Le-Sands had been nicknamed “Beirut by the bay”:
ALAN: But did you see that story on TV last night about the car hoons? We sent Jessica Horton from the newsroom down to The Rocks on Friday and Saturday nights when police inundated the area, but the hoons weren't deterred. We were told last night about Brighton-Le-Sands. "Beirut by the bay", they called it.
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.
Was the incitement ‘on the ground of’ race?
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 In Burns v Laws (No 2)[2007] NSWADT 47 at [124] the Tribunal took the view that the phrase ‘on the ground of’ in s 49ZT of the Act which deals with homosexual vilification, required it to be established that the ‘public act’ objectively conveyed the ‘message’ that the homosexuality of the relevant person or persons was the true basis for the reaction(s) being incited. (This decision was overturned on appeal but not in relation to this point. See Burns v Laws (EOD) [2008] NSWADTAP 32.)
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. Counsel for the respondents submits that it is instructive to compare s 20C of the Act with s 18B of the Racial Discrimination Act 1975 (Cth) which makes clear that where there are multiple purposes, unlawful racial vilification is made out where one of them is race, national or ethnic origin. She points out that the NSW Parliament has “not seen fit to include a similar provision” in the Anti-Discrimination Act.
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. Accordingly Mr Trad must establish that the Schedule A broadcasts objectively conveyed the ‘message’ that their respective race was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for serious contempt being incited towards Lebanese Muslims and/or Lebanese males.
184 It is to be recalled that the respondents’ central contention which we have not accepted, is that the reasonable listener would have understood the Schedule A broadcast to be referring solely to the “car hoons” and not the Lebanese Muslim community or Lebanese males. They contend that if the broadcasts had the capacity to incite serious contempt towards these groups (which is denied) it was on the grounds of the poor behaviour of the hoons and not their race.
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.
189 Conclusion We find that the elements of s 20C(1) are satisfied in respect of Schedule A.
Do any of the exceptions in s 20C(2) apply?
190 The respondents contends that the broadcasts are not unlawful by reason of s 20C(2)(a) and 20C(2)(c). They bear the onus of establishing that one or both of these exceptions apply.
191 In applying these exceptions we adopt the statement of principles set out by the Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 at [28] & [29].
Were the broadcasts fair reports?
192 A fair report of a public act is lawful: s 20C(2)(a). It was argued for Mr Jones that his broadcasts concerning Sheik Faiz Mohammed’s speech and the “car hoon” story were fair reports of public acts for the purposes s 20C(2)(a). As we have decided that only the Schedule A broadcast is caught by s 20C(1), we will analyse the defences only in respect of Schedule A.
193 It is said that the broadcast was a fair report of the “car hoon” story broadcast by Channel 9 and of the public and political response to it.
194 It is true to say that Mr Jones’s two main stories during the week of 26-29 April 2005 were generated by other media reports; but while Mr Jones began by reporting Miranda Devine’s comments on Sheik Faiz Mohammed and Channel 9’s story, the transcripts show that these were used as springboards to commence broader debates and discussions. The “fair reporting” aspect of Mr Jones’s broadcasts, while present to some degree in the content, constituted only a minor part of his programmes. Similarly, the responses of people other than his listeners and callers were used by Mr Jones as material for editorial comment. Again, the reports of public acts by others constituted only a small proportion of the air time Mr Jones gave to these subjects.
195 The Act does not define “fair reporting”. This is, however, not a difficult concept to identify. It connotes an objective, balanced approach by a reporter who is seeking to present to the audience the facts of the particular story unembellished with the reporter’s own opinions about the facts. It is to be distinguished from opinion and editorial commentary. Classical examples of “fair reporting” are accounts of court judgments, Parliamentary debates and news stories. Unembellished stories about other people’s opinions may also constitute “fair reporting”.
196 “Fair reporting” is characterised by the reporter honestly striving for accuracy, fairness and disclosure of all essential facts. “Fair reporting” does not suppress relevant available facts or place a distorting emphasis on particular facts. “Fair reporting” is also characterised by reporters giving subjects of stories, where possible, a reasonable opportunity to be put their side of the story, especially when those people may expressly or implicitly be the subject of criticism in the story.
197 “Fair reporting” is distinguishable from opinion and editorial commentary. A person offering opinion or editorial commentary by definition is offering a subjective perspective on objective facts. A commentator is expressing views, opinions and interpretations from one side of a debate or argument often in an adversarial context and the audience is invited either to share that opinion or at least take it into account when assessing the objective facts.
198 Insofar as he cited and quoted emails, letters, interviews and comments made by his listeners or interviewees, there was again an element of fair reporting, in that it appears that he accurately reported some, at least, of what had been said or sent to him. That material, however, provided a basis for repeated editorials in which he which often paraphrased things said to him, or which commented upon things said to him. In short, as a matter of style and practice, Mr Jones went beyond merely reporting the public acts of others and sought to engage in debate and controversy about those stories, including the “car hoons” story.
199 This can be seen in the Schedule A broadcast taken in isolation but even more so when it is placed in the context of the series of broadcasts Mr Jones made on the topic.
200 In the story itself, Mr Jones used a letter as a sort of springboard for his own comments: he commenced by telling the audience that the story was “frightening” and then quoted his correspondent’s comments with interpolations from himself commenting on the ethno-religious characteristics of the “hoons”. He then covered the fact that police reinforcements had not been called in, before returning to cite the words of his correspondent. He finished the segment with his own commentary.
201 In summary, Mr Jones was citing the letter as evidence for his contentious argument, not merely reporting the fears and comments of his correspondent. That Mr Jones was not merely engaged in “fair reporting” is even more obvious when the Schedule A broadcast is placed in the context of his program as a whole.
202 The respondents bear the onus of proving the defence on the balance of probabilities. For the reasons above it follows that, while no issue could be taken in respect of the decision to report the “car hoon story’, the respondents have failed to establish that Schedule A could be described as a “fair” report.
Were the broadcasts reasonable commentary?
203 A public act “done reasonably and in good faith, for … purposes in the public interest, including discussion or debate about and expositions of any act or matter” is also lawful: s 20C(2)(c).
204 It is clear that during the week of 26 to 29 April 2005, Mr Jones was engaged in “discussion or debate about and expositions of” a couple of subjects which were of public interest: Sheik Faiz Mohammed’s speech and the behaviour of the “car hoons”. Within those two larger categories, other subjects of public interest, such as the leadership of the Lebanese Muslim community, their reaction to Sheik Faiz Mohammed’s speech, immigration policy, multiculturalism and policing, were also discussed.
205 The public interest is a difficult concept to define with precision. In London Artists Ltd v Littler [1969] 2 QB 375 (at 391), a defamation case, Lord Denning said:
I would not myself confine [the definition of what is a matter in the public interest] within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others, then it is a matter of public interest on which everyone is entitled to make a fair comment.
206 This, of course, is not a defamation case and the defence under s 20C(2)(c) is more limited but Lord Denning’s definition of the public interest is useful in this context and we adopt it. We think that the matters about which Mr Jones was broadcasting — Sheik Faiz Mohammed’s speech to a large audience on the subjects of rape and other issues, and anti-social behaviour by “car hoons” — were matters of public interest on which he was entitled to make reasonable comment in good faith.
207 The real questions to be decided are whether he acted reasonably and acted in good faith. They are, in our view, separate issues.
208 In our opinion, Mr Jones’s commentary was, taken as a whole, unreasonable in a number of ways.
209 First, one of the marks of reasonableness is fair consideration and interpretation of the available evidence. In relation to the Schedule A broadcast the claim that “vast numbers of Lebanese males” were raping, pillaging and plundering the country that had succoured them, that they constituted a threat to national security and so forth were built on a very flimsy foundation of evidence: the misbehaviour of a relatively small number of young men in The Rocks. (It is also possible that Mr Jones views and concerns about Sheik Faiz Mohammed’s speech may have been operative in this context but we cannot be certain of this.) Rather than dispassionately analysing the evidence and commenting on it, Mr Jones appears to have been induced or stimulated by his own preconceptions to place highly exaggerated and distorted interpretations on the few objective facts apparently known to him.
210 Second, another of the marks of reasonableness is a capacity to listen and engage rationally, although not necessarily agree with, other points of view. While 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, it is clear from the way that he dismissed Mr Trad Mr Jones had no intention of engaging in a debate with anyone from the Lebanese Muslim community, but was intent on holding them to account for the misdeeds he imagined they had committed. Although Mr Jones had at least given Mr Trad an opportunity to put a case in respect of Sheik Faiz Mohammed, in respect of the Schedule A broadcast and the “car hoon” story Mr Jones did not (although he was not averse to commenting on Mr Trad when running that story).
211 Although Mr Jones was long on commentary he was, in fact, short on debate. In relation to the Schedule A broadcast, he canvassed or broadcast no views other than those that agreed with his. Yet, as we have pointed out above, there were significant flaws in his larger argument that Lebanese Muslims were a national security threat. This in our view went far beyond the bounds of reasonable commentary.
212 Third, it is difficult to imagine circumstances in which it is reasonable for a commentator in a society ruled by law, either directly or indirectly to endorse, or imply endorsement of, violent solutions to social issues or problems. In his discussion with ‘Usel” about the “Lebanese bad boys” in Hickson Rd, ‘Usel’ told Mr Jones that he and others could track down the “hoons” and deal with them. Mr Jones’s response was not one of express endorsement – he was somewhat cautious and commented that the police could not find them and that they had their hands tied – but he gave ‘Usel’ an encouraging farewell: “Good on you, Usel. Great call. You keep in touch with us, hey. Thank your for ringing. We appreciate your sentiments.”
213 While Mr Jones did not expressly adopt the vigilante solution proposed by ‘Usel’, neither did he condemn it. Rather he gave ‘Usel’ to believe that such an approach was a welcome one. Although ‘Usel’s’ proposition was obvious nonsense, Mr Jones’s support implied a partiality for a vigilante solution to the problem.
214 Finally, when Channel 9 originally broadcast its “car hoons” story, it appears from Mr Jones’s own transcripts to have shied away from emphasising the ethnic background of the “hoons”. The story was one of undoubted public interest involving, as it did, an issue of law enforcement in a public place and questions of public safety. It was a legitimate story for Mr Jones to explore and he cannot be criticised for taking it up.
215 However the way he presented the story that week suggested a causal connection between race and crime. Attractive as such simplistic propositions may be, they belie the true complexities of anti-social behaviour. To suggest such a simplistic proposition as “Lebanese Muslim/Lebanese males = hoons = criminal gangs” as Mr Jones did went well beyond the bounds of reasonableness.
216 It was also unreasonable to exaggerate the effects and significance of illegal street car racing by linking it with pack rapes by a small number of vicious Muslim youths several years before and with national security issues (which any average reasonable listener would probably hear as code for terrorism). There was simply no basis for such hyperbole, not even a suspicion that any of the “hoons” were rapists or terrorists or some sort of Fifth Column.
Were Mr Jones’s broadcasts motivated by bad faith?
217 While the unreasonableness of Mr Jones’s attacks on Lebanese Muslims and Lebanese males is manifest, the question whether Mr Jones was acting in good faith in making them is more problematic. In this context, the requirement of good faith is that the broadcaster must hold an honest (but not necessarily reasonable or reliable) belief in the truth of the opinions or comments but not to be motivated by malice, spite, ill-will or any other improper motive: see Western Aboriginal Legal Service v Jones; Jones v Toben No 2 (2003) 199 ALR 1.
218 Counsel for Mr Jones and 2GB fairly conceded that the respondents’ conduct, objectively viewed, must manifest an honest and conscientious endeavour to have regard to, and minimise, the harm the broadcasts would inflict. She fairly argued that this “involved the exercise of a level of prudence, caution and diligence” to ensure that “due care was taken to avoid or minimise the consequences of the offensive statements”: see Western Aboriginal Legal Service v Jones; Jones v Toben.
219 Although at times, especially on 29 April, Mr Jones gave the impression that he had intended no harm to the Lebanese Muslim community, for much of the time he gave the opposite impression. Having listened to the broadcasts and having read the transcripts, the overwhelming impression Mr Jones’s broadcasts left was that much of his material was imprudent, incautious, inflammatory and motivated by prejudice against those whom he apparently believed to be a threat to a culture to which he is very much attached.
220 In our view, Mr Jones was both highly offensive and reckless in repeating to his audience in the Schedule A broadcast his correspondent’s view that and later adopting and repeating these views as his own:
And don't start saying we don't have a national security problem. So much for the government and the police commissioner saying, "We've delivered safer streets." What we've seen this week both at the Bankstown town hall with that sick Muslim sheik and now with these hoons is a graphic example of the extent of social failure amongst us.… Lebanese males in their vast numbers not only hate our country but our heritage… They've got no connection to us. They simply rape, pillage and plunder a nation that's taken them in. No-one who's written to me could believe what they saw. Without exception, you asked what did we do as a nation to have this vermin infect us like this…
221 That there were consequences being felt within the Lebanese Muslim and other Muslim communities as a result of Mr Jones’s broadcasts is also manifest from the broadcasts themselves. Mr Jones himself referred to the hundreds of emails he had received from Lebanese Muslims anxiously seeking to distance themselves from Sheik Faiz Mohammed and the “car hoons”. Mr Jones’s own informant ‘Gary’ had pointed out to him the sense of alienation Muslims feel in this country because “everybody out there … is sort of against you.” It was therefore entirely reasonable for them to feel anxious about the publicity being generated because, as the excerpts from the transcripts demonstrate, some of Mr Jones’s non-Muslim callers and correspondents were far more extreme in their expressions of fear and antipathy towards the Lebanese Muslim community than Mr Jones himself.
222 Until 29 April, we see no evidence that Mr Jones took any action to minimise the damage done to the Lebanese Muslim community. On the contrary, until that day, whenever an opportunity arose to broaden his attack from individuals such as Sheik Faiz Mohammed, Mr Trad or some “car hoons” to encompass the Lebanese Muslim community as a whole, Mr Jones took it himself to make generalisations or else endorsed those offered to him by his listeners and correspondents.
223 His comments about “Lebanese males in their vast numbers” hating Australia and raping, pillaging and plundering the country, about a “national security” crisis, and about the undermining of Australian culture by “vermin” were reckless hyperbole calculated to agitate and excite his audience without providing them with much in the way of solid information.
224 The respondents in our view have not discharged the onus of establishing that Schedule A broadcast was either reasonable or made in good faith. Accordingly the defence contained in s 20C(2)(c) in not available.
Conclusion
225 We find that the complaints of racial vilification as against both respondents are substantiated.
Relief sought
226 Mr Trad seeks an apology, payment of damages, an order proscribing future acts of racial vilification and costs.
227 Mr Trad’s complaint was lodged with the Board before the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 came into effect but was referred to the Tribunal after that date. Accordingly s 108 of the Act applies: clause 15 of Schedule 1 to the Act.
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. They point out that Mr Trad has been engaged in other litigation with Radio 2GB where adverse finding have been made about him and argue that as a consequence, it is inappropriate for an apology to be ordered (Trad v Harbour Radio Pty Ltd [2009] NSWSC 750).
230 It is unclear to us on what basis findings concerning Mr Trad made by the Supreme Court in unrelated proceedings is relevant to whether an apology is an appropriate order in this matter.
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 (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).
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.
233 Mr Trad has proposed a form of apology. We believe it appropriate that the parties be given the opportunity to explore whether agreement can be reached about the details and form of the apology. In the event agreement cannot be reached within a reasonable period we will exercise our power under s 108(2)(d) of the Act to make directions about the form etc of the apology.
234 Damages Mr Trad claims damages for hurt, humiliation and distress. He testified that on hearing the broadcasts he felt distress and felt stress and fear for himself, his family and the community.
235 The respondents contend that it is relevant that after the offending broadcasts Messrs Trad and Jones engaged in amicable email exchanges. They point to Mr Trad’s admission that he was mistaken about the parts of the broadcast he claimed he heard. Furthermore they argue that it is telling that in evidence Mr Trad conceded that he agreed with some of the comments made by Mr Jones and his callers.
236 The general principles underlying an award of damages under the now repealed s 113 of the Act (relevantly similar to s 108(2)) was discussed by an appeal panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23] - [35].
237 The task of assessing damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. This case is no exception. The alleged ‘injury’ is often, as in this case, intangible and difficult to measure. Wilcox J commented in Hall v Sheiban (1985) ALR 503 at 543 that merely because damages for matters such as injury to feelings, distress, and humiliation ‘are not susceptible to mathematical calculation’, this is not a basis to ignore these items. (See also Alexander v Home Office [1998] 2 All En 118 at 122.)
238 That Mr Trad’s distress etc may also have been caused by his abrasive treatment by Mr Jones does not establish, as we understand the respondents to suggest, that his claim to have been distressed etc by those parts of the broadcast rendered unlawful by the operation of 20C of the Act, is disingenuous.
239 Mr Trad said that he couldn’t believe that “public discourse had descended to such a level of calling human beings vermin ... rapists and pillagers…that they a security problem in the making”. He claims that he “felt terrible” on hearing the Schedule A broadcast. We accept that claim. It is plain from his evidence that it was not only the Schedule A broadcast which caused Mr Trad distress, however this does not detract from the fact that he was also distressed by that broadcast.
240 There is no evidence that Mr Trad required medical treatment or counselling as a result of hearing or learning of the offending broadcasts and nor is this asserted. It is apparent from his evidence that he is a reasonably resilient character. Nonetheless we accept his claim that he was distressed by the offending material and anxious for the ramifications it might have for members of his family and community.
241 In our view having regard to all circumstances the sum of $10,000 is an appropriate amount for damages.
242 Ancillary orders Mr Trad seeks orders proscribing any future acts of racial vilification by both respondents and that the respondents develop and implement programs or policies aimed at eliminating unlawful discrimination.
243 The respondents oppose this claim orders arguing, among other things, that the proposed orders are vague and uncertain.
244 We see little value in making a general order that each respondent ‘refrain from future acts of racial vilification’. Such order would do little more than state that the respondents must comply with the law — a self evident proposition.
245 In our view it would be of greater 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.
246 Aggravated damages Mr Trad seeks an order for aggravated damages. The claim is made on the basis of the respondents’ failure to apologise for, or retract the offending comments. Mr Trad argues that this matter is akin to a defamation action where it is well established that the failure to provide an apology or retract defamatory imputations can support a claim for aggravated damages.
247 The respondents oppose this claim arguing among other things that Mr Trad has failed to establish that he suffered any additional loss because of the respondents’ failure to apologise.
248 We agree with the respondents’ argument. From what is before us we could not be satisfied that Mr Trad suffered any additional loss on account of the respondents’ failure to offer a timely apology.
249 Costs Both parties seek an order for costs. The parties are provided with an opportunity to make written submissions in support of their respective applications.
ORDERS
1. The complaint of racial vilification as against the first and second respondents in respect of Schedule A of the Points of Claim is substantiated. The balance of the complaint is dismissed
2. The respondents are to pay the applicant within 21 days, damages in the sum of $10,000, for which they are jointly and severally liable.
3. Within six months of the date of these orders the second respondent is to conduct review in accordance with [245] of these Reasons.
4. The parties are directed to confer about the time, form, extent and manner of publication of the apology to be issued in accordance with these Reasons. If the Tribunal is not notified within eight weeks of the date of these orders that agreement has been reached directions will be issued under s 108(2)(d) of the Anti-Discrimination Act 1977 about the details of the apology.
5. Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. Within a further 28 days, the opposing party is to file and serve submissions in reply.
6. The matter of costs is to be resolved ‘on the papers’, under s 76 of the Administrative Decisions Tribunal Act 1997.
- AGLC
- Trad v Jones (No 3) [2009] NSWADT 318
- Case
- [2009] NSWADT 318
- Decision Date
CaseChat Overview and Summary
The legal issues before the AAT included whether the remarks made by the respondents amounted to racial vilification, as defined under the Anti-Discrimination Act, and whether the respondents were liable for the alleged vilification. Additionally, the Tribunal had to determine the appropriate remedy and compensation for the applicant.
In its decision, the AAT found that the complaint of racial vilification against the first and second respondents was substantiated in respect of Schedule A of the Points of Claim. The Tribunal held that the remarks made by the respondents were racially derogatory and targeted the applicant based on his race, thereby constituting racial vilification. However, the balance of the complaint was dismissed. The AAT ordered the respondents to pay the applicant damages in the sum of $10,000, with the respondents being jointly and severally liable. Furthermore, the second respondent was directed to conduct a review within six months of the date of the orders. The parties were also directed to confer about the details of the apology to be issued to the applicant, with directions to be issued if an agreement was not reached within eight weeks.
The AAT made several orders, including the substantiation of the complaint against the respondents, the payment of damages to the applicant, a review to be conducted by the second respondent, and directions for the publication of an apology. The matter of costs was to be resolved on the papers, under s 76 of the Administrative Decisions Tribunal Act 1997.
Orders
Orders of the court
1. The complaint of racial vilification as against the first and second respondents in respect of Schedule A of the Points of Claim is substantiated. The balance of the complaint is dismissed
2. The respondents are to pay the applicant within 21 days, damages in the sum of $10,000, for which they are jointly and severally liable.
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.
4. The parties are directed to confer about the time, form, extent and manner of publication of the apology to be issued in accordance with these Reasons. If the Tribunal is not notified within eight weeks of the date of these orders that agreement has been reached directions will be issued under s 108(2)(d) of the Anti-Discrimination Act 1977 about the details of the apology.
5. Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. Within a further 28 days, the opposing party is to file and serve submissions in reply.
6. The matter of costs is to be resolved ‘on the papers’, under s 76 of the Administrative Decisions Tribunal Act 1997.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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