Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89

CITATION: Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Faruque Ahmed RESPONDENT Macquarie Radio Network (Radion Station 2GB)

FILE NUMBER: 051058

HEARING DATES: 5/09/2005 & 9/12/2005

SUBMISSIONS CLOSED: 12/09/2005

DATE OF DECISION: 03/27/2006

BEFORE: Needham J SC - Judicial Member; Antonios Z - Non Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: Racial - Vilification

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Anti-Discrimination Act 1977

Khan v. Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 CASES CITED: Veloskey & anor v. Karagiannakis & ors [2002] NSWADTAP 18 Western Aboriginal Legal Service v. Jones & anor [2000] NSWWADT 102

APPLICANT In person REPRESENTATION: RESPONDENT K Eastman, barrister

ORDERS: 1. The application is dismissed; 2. Liberty to the respondent to relist the matter before the Tribunal on the question of costs

REASONS FOR DECISION The Complaint 1 The applicant lodged a complaint with the Anti-Discrimination Board on 16 May 2002, alleging discrimination on the grounds of racial discrimination by the defendant, a radio broadcaster. Part of that complaint, which related to a broadcast by Mr Jim Ball, on 12 September 2001, was not accepted by the President of the Anti-Discrimination Board as it did not indicate any contravention of the provisions of the Anti-Discrimination Act, 1977 ("the Act"). The balance of the complaint, which related to a broadcast in the early hours of 14 May 2002, was accepted as it appeared to fall within s 20C(1) of the Act. 2 The President of the Anti-Discrimination Board received a response to the complaint by the broadcaster, including a tape of the broadcast, and declined the complaint as "lacking in substance" pursuant to s 90(1) of the Act. Specifically, the President said:- "… to constitute unlawful vilification under s 20C of the … Act, the broadcast on 14 May 2002 would have to have been such that a reasonable listener, to the broadcast, would have been incited to hatred towards, serious contempt for or severe ridicule of a person or group of persons on the ground of their race. … The information provided by Mr Ahmed was not … sufficient to substantiate his claims of unlawful vilification under the Act". 3 On 17 March 2005 the applicant requested that the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal pursuant to s 91(2) of the Act. 4 The matter was heard on 5 September 2005, when the applicant requested an adjournment. As the basis for the adjournment was a matter which had been canvassed at previous directions hearings, and the respondent would have been prejudiced by the adjournment, it was refused. Documents were tendered and a witness called for the respondent, there being no witnesses for the applicant being required for cross-examination who were present to give such evidence available on that day. The applicant then sought a further adjournment, based on health reasons, which was granted. Unfortunately, there was a delay of over three months before the matter could be relisted, on 9 December 2005. The hearing proceeded and concluded on that day. 5 The Tribunal accepted the tape into evidence and listened to the tape. It was agreed at the hearing that the transcription provided by the respondent was the more accurate version. The caller was an unidentified woman and the tape reveals that she spoke carefully, rather than heatedly. The relevant parts are as follows:- Caller: Its so hypocritical actually to state that umm, it is such a pure society because it is not, right, it is not at all, just the same as the Christian isn't because, I've got a book there and the dictionary of politics. I used to read it in, ah, I think it was about in 1957 perhaps, a dictionary of the world anyway Jim Ball: mmmm.. Caller: … and politics and the countries of the world and the Muslim societies, now particularly Iran and where a lot of these people are coming from, look two thirds of them are addicted to what they were growing, opium. Do you know what I mean, it's so hypocritical to assume that ah for Jim Ball: Well that's right. I mean, you look at Afghanistan it's where the biggest producers of umm and growers, growers of poppy and producers of opium in the world. Caller: Exactly and the lifestyle was such and still remains such that the majority of people just peddle their goods ah, along with each other and people who came to the ports or trade you know, this is a culture, way of life and then just sitting down most of the day in groups smoking opium, heroine or whatever derivatives of all those substances. Doing things in their own time as they please, no law, no law at all. Answer to nobody except, you know, whoever is a bit more powerful than the other. Jim Ball: Mmm, mmm. Caller: You know, tribal type of situations, you know. But you do not, umm get in there and say well look we're going to build the nation, we're going to start from scratch, we're going to become totally civilized and then educate everybody, you see. Umm this is all very well to umm, portray that the, the Muslim religion umm, is a culture and all the rest of it. Umm, you see its got so many flaws, you know, you go back over the centuries and the flaws are there today, just the same as our flaws have become entrenched, the last thirty years, particularly at this particular moment, we've become, uh we've allowed this uncivilized lifestyle Jim Ball: mmm Caller: to come in and this is not on. That is not our culture you see now, I mean, I'm swerving off the point about, when I'm looking another thing that was made today with Lois O'Donoghue, umm, stating everything in their problems more or less, or well you know abuse of substances was the white settlement. Now look my people were here with the white settlement and none of them have ever abused, they don't even drink alcohol, they might have wine once a year. Jim Ball: Well, Lois O'Donoghue, that's the last one that should be talking because she, [Caller: That's right] she admits that the was umm, removed as a child and she's done very nicely out of being removed as a child. So, she's done very nicely out of white society. Caller: Exactly, [Jim Ball: mmm] you see if they can't control their own minds or they're no different from you or me or from the Muslim over in Afghanistan, or somebody up in Sweden. Jim Ball: Somebody is responsible, and that somebody is you, meaning yourself. Caller: Look you can, people, I've got bottleshops up the street they've been brought in in the last um twenty years. Bottleshops all over the place [Jim Ball: mmm]. Hotels up the corner [Jim Ball: mmm], but that doesn't mean I'm going to be going there and drinking all day. [Jim Ball: mmm] The same with the poker machines. We, ahh, its our own weak natures and we want to blame somebody else. Jim Ball: That's right. Caller: So they have to pull their horns in and state that [Jim Ball: yep] they're the problem, right, and nobody else so they can get out there and fix it up. Start them working, get their minds off alcohol and start and get a bit of discipline. The whole thing is it all boils down to lawlessness, no discipline but but what I really wanted to state tonight, I was listening to them, actually umm, talking to one of the gentlemen there. A lot of people have been very frightened about this umm you know budget, and that, the disabled will be disadvantaged. Jim Ball: Yes Caller: But you see, the whole thing is that the Howard government is, is not out to get the innocent person or, the honest person, but only out there, I would say, to try and reign in a lot of these people umm Jim Ball: Rorts Caller: The Rorts. See now I've got people, umm, well I must say also that they are foreigners, they've only been here well, they've been here for the last twenty years but they don't want to speak English. Jim Ball: Yep Caller: They did buy a few houses and they've lived life, see I'm on a corner, along side me, but ah, you see they, ah collected, one of them can collect the disabled pension but then go out five o'clock in the morning in their van picking up everybody and off and go cleaning. Jim Ball: Yes well, see that's rorting, that's ripping off the system. That's what we would expect all governments of all persuasions to be right on to Caller: And its very right. Jim Ball: Yes Caller: The innocent people are the ones that are defenceless and they do get frightened because they know that their only means of survival umm when they do have a disability is the Centrelink or Social Securities, whatever they call it. And one can really feel sorry for them but you can pass the buck for this for trying and frightening people at the media, particularly the ABC and the Labor Party. [Jim Ball: yep] then Simon Crean, he needs to pull his head in too. Jim Ball: Well like I say, the media sees themselves as the government in exile, That's the way they see it. Caller: The ABC and Simon Crean. Why haven't they got headlines there that. Rockdale, now we're going to get through the whole of the Labor Party and these councils. Why are, why have we dropped that we're not going to investigate. 6 The applicant submits that the interview represented by the transcript breaches s 20C of the Act. Sub-section (1) of that section provides:- "(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group." 7 The applicant must show, in order to invoke subs-s 20C(1), that he is an "aggrieved person" as provided for by s 88 of the Act. That section provides:- "A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim." 8 The applicant submitted (ex B) that his "actions have been prompted by a wide range of individuals and groups, many with non-English speaking backgrounds who all feel seriously aggrieved by the racial filth that has emanated night after night from the Mr Jim Ball program on 2GB". However, the application was in Mr Ahmed's name alone and it is he who needs to show that he falls within s 88 of the Act. The parties 9 The respondent raised issues relating to the standing and propriety of the parties. Firstly, it alleged that the applicant lacked standing. 10 The applicant is a taxi driver who describes himself as a "regular contributor of radio 2GB". He often telephoned the station and spoke to Mr Jim Ball, amongst others. He is a Muslim who, it emerged from the evidence, holds a Bangladeshi passport. 11 Secondly, the respondent submitted that the named respondent is not the proper respondent to the complaint. 12 The respondent is a company which owns, as its wholly owned subsidiary, a company called Harbour Radio Pty Ltd. Harbour Radio holds the radio licence for radio station 2GB, an AM station specialising in talkback radio. Mr Jim Ball is a presenter for 2GB, through his company Rahdan Pty Ltd, which contracts Mr Ball's services to Harbour Radio. On the second day of hearing, Ms Eastman, counsel for the respondent, indicated that she also represented Harbour Radio, but not Rahdan Pty Ltd or Mr Ball. 13 The respondent submits that since the Respondent does not hold the commercial broadcasting licence, it cannot be held responsible for conduct which occurs during a broadcast. Nor is it the employer of Mr Ball; Rahdan Pty Ltd presumably employs Mr Ball, and contracts his services to Harbour Radio. 14 Each of these are important preliminary questions and should be dealt with separately. The Applicant's Standing 15 The applicant brings the complaint as a person of the Islamic religion. In order to have standing, he needs to show that he is a member of the racial group vilified, as well as being an "aggrieved person" pursuant to s 88 of the Act as set out above. 16 The applicant, as set out above, identifies as a Muslim and is a Bangladeshi national. He indicated that he could not identify his "race" in that Bangladeshis such as he had Iranian blood as well as descent from other areas. He was able to summarise his complaint about the 14 May 2002 broadcast, as it affected him, that it "put Muslims in a particular corner" and that 2GB, generally, was anti-Muslim, anti-migrant, and "anti-people of my background". He sought to rely on other broadcasts, summarised in the material he sought to tender in these proceedings, to show that 2GB was as he alleged. The tender was not allowed on that basis, as the Tribunal was restricted to considering the complaint referred by the Anti-Discrimination Board, which complaint referred only to the 14 May 2002 broadcast. 17 "Race" is defined in s 4(1) of the Act as follows:- "In this Act, except insofar as the context or subject matter otherwise indicates or requires:- "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin". 18 The applicant, on his own admission, could not identify his "race" per se. His reliance on his religion means that he needs to establish that he achieves standing by membership of a group of ethno-religious origin. The meaning of the words "ethno-religious" have been examined by this Tribunal in Khan v. Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 as signifying "a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices." (at [20]). 19 It is notable that the applicant did not, until his submissions after the evidence had closed, indicate his nationality or ethnicity (and then, as to the latter, only to say that he could not identify it). He did not identify himself as Bangladeshi either in the complaint to the Anti-Discrimination Board or in his written materials presented at the hearing. It was not until the very heel of the hunt that he was able to indicate, orally, that he was Bangladeshi. We should make it clear, however, that the point that he was a Muslim had been made strongly and often throughout the complaint procedure. 20 There was no evidence of any associations, strong or otherwise, between the applicant's nationality, ethnicity, culture or history on the one hand, and his religious beliefs on the other. While there is no basis at all to doubt that his religious convictions are strongly and honestly held, in order to base standing for a vilification claim he needs to provide evidence upon which the Tribunal may find that he has the characteristic of the relevant ethno-religious background required by s 88 of the Act. 21 In the Tribunal's view, the applicant lacks standing to bring this complaint, and the complaint should be dismissed. The Question of the Correct Respondent 22 If we are wrong on the question of standing, then the other issues would need to be considered. First amongst them is whether the respondent is the correct one. 23 The outline of the structure of the relevant players has been given above. It is important to note that Harbour Radio, the licencee of the broadcasting licence, is a wholly owned subsidiary of the respondent, Macquarie Radio Network. While not a party, Harbour Radio was represented by the same counsel and solicitors as the respondent. There was no point made that the hearing would have been run in some other way if Harbour Radio had been joined. On the contrary, evidence was given and submissions were made about the practices of Harbour Radio in seeking to maintain radio standards and compliance with relevant codes of practice. 24 Ms Merryn Vincent gave evidence, and was cross-examined. She described herself as the "Chief Operating Officer of the Respondent", and said that she was "responsible for ensuring that the Respondent complies with the regulatory framework applicable to the Respondent …" She gave no evidence of any inability on her part to obtain information relating to Harbour Radio's practices; on the contrary, she specifically referred in her affidavit and in her oral evidence to her knowledge of the practices of Harbour Radio in seeking to so comply. 25 The respondent submitted that it "does not hold the commercial broadcasting licence and therefore cannot be held liable for conduct which occurs during a broadcast. Furthermore, the Respondent is not the employer of Mr Ball …". While both those things are strictly true, it is clear from the affidavit of Ms Vincent, and particularly from her own descriptions of her responsibilities as Chief Operating Officer of the respondent, that a significant degree of actual control over Harbour Radio and over Mr Ball is exercised by the respondent. While the submissions seek to differentiate between actions taken by Harbour Radio to control Mr Ball and the responsibilities of the respondent, it is clear from Ms Vincent's evidence that the respondent did in fact burden itself with those responsibilities and take the actions it relies on as exculpatory, should liability be found against it. 26 Section 52 of the Act deals with "aiding and abetting". It provides:- "It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act". 27 There is no evidence of causation, instruction, inducement or aiding. However, the evidence does allow an inference of "permission" to be drawn by reason of the wholly-owned nature of the licence holder, Harbour Radio, by the respondent, and of Harbour Radio's contractual relationship with Mr Ball and his service company. 28 Section 53 of the Act deals with vicarious liability. Sub-section (1) provides:- "(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act." 29 The respondent submits that Mr Ball was not an "agent or employee" of the respondent. It is clear that he is not an employee. However, "agent" is a broad term and could apply to the relationship between Harbour Radio and the respondent, or even Mr Ball and the respondent. 30 Accordingly, while the correct respondent would have been either Mr Ball or Harbour Radio Pty Ltd, the naming of the respondent would not, of itself, have been fatal to the applicant's case by reason of the application of one or other of ss 52 or 53 of the Act. Consideration of the Complaint 31 If we are wrong that the complainant lacks standing, we should then consider the substance of the complaint. 32 The applicant, as noted above, claims that he has been racially vilified in contravention of s 20C of the Anti-Discrimination Act. The elements of racial vilification are:- a) it must be a "public act" (s 20B) b) it must:- i) incite hatred towards, serious contempt for, or severe ridicule of a person, or group of persons on the ground of their race; and ii) not fall within the exceptions in sub-s 20C(2). 33 It is conceded that the act of broadcasting the caller is a public act. Mr Ahmed variously characterises the broadcast as:- a) "false and misleading trick and techniques which could incite animosity or violence against any particular section of the community due to their sex, race or religion" (see Submissions 6 July 2005) b) "racial filth" (see Ex B) c) part of an "ongoing, relentless, five nights a week, racist attack on people from Islamic and/or Middle East descent/appearance etc" (see Ex B); d) Mr Ball exceeding "the bounds of normal political debate and indulg(ing) in racial vilification" (see Ex C). 34 The above list is only a selection of descriptions of the broadcast from the extensive material relied upon by the applicant. It is difficult to isolate comments which relate solely to the May 2002 broadcast, as the material put forward by the applicant, including his submissions, deal with a number of other incidents. It is clear that Mr Ahmed feels strongly and genuinely about his complaints about Radio 2GB in general and Mr Ball in particular. As noted above, the Tribunal may deal only with the particular complaint referred to it. 35 The applicant submits that the broadcast was such as to incite hatred or serious contempt. In Veloskey & anor v. Karagiannakis & ors [2002] NSWADTAP 18, the Appeal Panel held that the word "incite" was to be given its ordinary meaning, that is, "to urge, spur on, stir or stir up, animate, stimulate or prompt to action". In order for the application to be successful, the applicant must prove, on the balance of probabilities, that the broadcast must have incited others to have hatred for, serious contempt for, or to severely ridicule, those of a particular race. That test is to be determined objectively, in other words, the effect must be reasonably likely to have that impact on its audience (see Western Aboriginal Legal Service v. Jones & anor [2000] NSWWADT 102). 36 The question of a "public act" was conceded by the respondent (see submissions, 19 August 2005, par 32). However, it does not concede that that "public act" was committed by a person within the control of the respondent, in that the objectionable parts of the broadcast were uttered, not by Mr Ball, whom we have found was a person within the control of the broadcaster, but by the anonymous caller. This submission, however, does not take into account the substantially uncontested evidence of Ms Vincent, Chief Operating Officer of the respondent, who said that a "seven second delay" was in operation so that if comments which are deemed offensive are made by callers to a program, the call may be disconnected or "dumped" (see par 11, affidavit of Ms Vincent, 19 August 2005). It is clear but unstated in her evidence that the call the subject of this complaint was not considered by the person making such decisions to be worthy of disconnection, and so a measure of control was exercised by the respondent over the anonymous caller. Having so found, it is unnecessary to consider whether there was an issue of vicarious liability, or of aiding and abetting under s 52 of the Anti-Discrimination Act. 37 More substantially, the respondent says that the broadcast is incapable of maintaining the degree of incitement necessary for racial vilification to be made out. It says that "the onus is on the Applicant to prove that the words used had a meaning which was capable of conveying to the ordinary reasonable listener that he or she was being incited to hold the requisite degree of ill-feeling on the ground of race" (see submissions, par 60). Further, it submits that the requisite vilification must be aroused because of the race of the person or group of persons said to be vilified. 38 It is of course a matter for the Tribunal to reach its own decision as to the content of the broadcast and to determine whether, on the objective standard, a listener would be incited to hatred of a particular race of people (said by the Applicant to be Muslims). The Tribunal listened carefully to the two varying interpretations of the material which have been summarised above, and listened to the tape, both at the hearing and by means of deliberation after the hearing. Leaving aside the question of standing addressed earlier, it appears to us that the broadcast is not capable of inciting racial vilification. It is clear that the broadcaster does not have much time for persons, identified as Muslims, who lead a "tribal" lifestyle or who deal in drugs, but she qualifies that observation in advance by saying "it' (ie the Islamic society, if there be such a thing) is not a pure society – same as Christian really". Likewise, she does not have much time for the Aboriginal community which she wholly equates with the views held by Lois O'Donoghue, persons who cheat on social security, foreigners who do not speak English, or Simon Crean. 39 While it is difficult to imagine a person who identified with the racial group referred to by the caller (being "Muslim societies, now particularly Iran and where a lot of these people are coming from") being anything but discomfited and perhaps angry at the broadcast, there is nothing in it which incites the listener to hatred, ridicule or serious contempt. The caller speaks in a measured tone and calls in aid an encyclopaedia from 1957, which is surely an indication of the level of informed discussion in which she is about to engage. The Tribunal considers that the ordinary, reasonable listener would take the view that the caller, while obviously holding strong views, was stating them in a reasoned and thoughtful (if ill-informed) way, and was not inciting her audience to hatred, ridicule or serious contempt. Mr Ball's comments, which were mainly monosyllabic and apparently in general agreeance with the caller, cannot be elevated above the content provided by the caller. He does make one substantive comment, which relates to opium poppies coming from Afghanistan, and it is difficult to see how that comment can relate to a particular race. 40 The Tribunal finds that the material relied upon by the applicant as grounding a complaint of racial vilification, while it may be found to be distasteful, is not capable of being found to be on the balance of probabilities capable of inciting others to have hatred towards, serious contempt for or to severely ridicule a person or group of persons, including those persons of the race of the Applicant. Accordingly, even if the applicant had standing in the matter, the application would have been dismissed. 41 Having so found, there is no need to continue to examine the exemptions to the Act set out in s 20C(2). Orders 42 The application should be dismissed. 43 The respondent seeks leave to argue the matter of costs. The respondent has leave to relist the matter to raise a question of costs. The Tribunal directs that any submissions on costs be served on the applicant seven days prior to the date fixed for the hearing of those submissions.