Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295

CITATION: Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295

DIVISION: Equal Opportunity Division

FIRST APPLICANT Sam Ekermawi

FIRST RESPONDENT Nine Network Australia Pty Limited PARTIES: SECOND APPLICANT Sam Ekermawi

SECOND RESPONDENT Harbour Radio Pty Limited trading as Radio 2GB

FILE NUMBER: 071003, 071004

HEARING DATES: 31 July 2007

SUBMISSIONS CLOSED: 31 July 2007

DATE OF DECISION: 12 December 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

CASES CITED: Veloskey v Karagiannakis [2002] NSWADTAP 18 Xu v Sydney West Area Health Service [2006] NSWADT 3

In person REPRESENTATION: K Wood, solicitor (First Respondent) S Thomas, solicitor (Second Respondent)

ORDERS: 1. Leave is granted for the complaint of racial vilification against Nine Network Australia Pty Ltd to proceed; 2. Leave is granted for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.

REASONS FOR DECISION Introduction 1 Mr Ekermawi is requesting the Tribunal's permission for two complaints of racial vilification to go ahead despite the fact that the President of the Anti-Discrimination Board declined them as lacking in substance. When the President declines a complaint as lacking in substance, the applicant must obtain the Tribunal's leave before the complaints can proceed: Anti-Discrimination Act 1977 (AD Act), section 96. The first complaint relates to broadcasts on Radio 2GB on 16 and 17 August 2005 by Mr Alan Jones. The second complaint relates to a telecast on Channel Nine's Today Show on 19 August 2005, again involving Mr Jones. In both cases Mr Jones read an email from a listener by the name of Robert. It appears that the email was in response, among other things, to a program on Channel 7 on 15 August 2005 when three Muslim youths allegedly expressed extremist views and said their loyalties were to Islam, not to Australia. Content of Radio Broadcasts on 17 August 2005 2 In relation to the broadcasts on Radio 2GB, Mr Ekermawi said that on 16 and 17 August 2005, between 8.45 and 9.15 am Mr Jones made inflammatory comments including reading an email he had received from a listener. Mr Ekermawi also mentioned a telephone call from a person about a hotel on the Gold Coast which has prayer rooms for Islamic people but no prayer rooms for Christians. A compact disc labelled "2GB 16/8/05" was provided to the Tribunal together with a transcript of some of the material on that compact disc. The transcript is set out below: ALAN JONES: Ken, hello. CALLER KEN: Hello Alan. ALAN JONES: Yeah. CALLER KEN: It's always a delight to listen to Radio 2GB because your whole team there, from their management and every single one of you have got such high ratings because you're so positive, you're so encouraging, you're so democratic in so many ways. I just simply love it... ALAN JONES: Thank you. CALLER KEN: ... I'm entertained, I'm educated. ALAN JONES: Thank you, thank you. CALLER KEN: Now, in brief, you were speaking about values. Well, there's values and there's attitudes and methods. And, of course, our attitude in some respects, certainly has to improve. Our sense of values is what we know to be right and Aussies are the best at it. ALAN JONES: Mmm. CALLER KEN: If we study the history of Australia a little bit from Eureka Stockade, Ballarat, Peter Lalor and company, the convict era, have a brief look at things such as Against the Wind and all that sort of thing, you begin to understand a little bit more. But for the last 50 years since I've been involved in the education of children and still trying to learn with them as I go and with the parents, there's no doubt in my mind, you're 100 per cent right that we have to correct our attitude towards our culture which is character building with refinement, but nevertheless the Aussie spirit's got to prevail. ALAN JONES: Mmm, well that's right. And Ken I just got an email in front of me here and he says, Robert says, I'm afraid that sadly our Aussie culture and character are being taken from us slowly but surely... CALLER KEN: Yeah, he's right. ALAN JONES: ... one of the various races and religions being allowed to settle here. It breaks my heart to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies, and our future descendants will suffer, are beyond our decent beliefs. They might be a minority now, but they'll spread like a cancer and those that pretend to be our friends now will show their true colours and show their loyalty to Islam and not Australia. He says, my family has paid the price of freedom, the blood of three of our family members soak the battlefields of the Somme, Pozieres, New Guinea and Malaya with many others serving and thankfully surviving. These newcomers don't understand that blood has been spilt in conflict to give us our character and make Australia the place to live. As a young child in the 50's, I remember getting the good old Aussie wink from Aussie blokes. Most of these men wore a small badge on their lapels of their suits or vests – yes, they were returned servicemen from World War I and World War II – the wink I now know to have meant, no worries little boy, you're safe now son, live your life in safety and peace. I'm older now and no longer see many of these men, but I'll never forget them. I'm sure they'd be turning in their graves watching what's happening to their beloved country now. These newcomers to our land are unaware of the cost and sacrifice endured by earlier Australians in gaining the freedom they now enjoy and will never understand us or integrate with us. The point is that I agree with you and many of the people who call you, that something must be done to maintain our Australian culture and character. We owe it to those who've gone before us and built this country, many with their lives. Wonderful letter, and that's exactly what people are talking about. 3 The compact disc provided to the Tribunal also contained other conversations with listeners, including a conversation with a listener who commented on the number of Muslims on the Gold Coast and that there were two Islamic prayer rooms at Sea World. No transcript was provided of this conversation. Content of telecast on Nine Network 4 The following is a transcript of the telecast on the Nine Network that Mr Ekermawi complained about: 1. Good morning to Karl and Tracey and to all our viewers everywhere. At weeks' end, one issue on my radio program has dominated all others this week, and its not Telstra or industrial relations. Earlier this week on a television program, and not this station, young Muslim residents from the suburbs of Sydney were very outspoken about Australia and Australians. In what they said they were defiant, arrogant, militant and indifferent and basically they were saying they were not Australians they were Muslims first and their loyalty was to Islam and they laughed about the fact that there were a lot of them and virtually inferred that you would be courting trouble if you took them on. 2. One person wrote to me to say My name is X I watched that program, I was so angry at the audacity of those middle eastern youths proclaiming that their countrymen will never assimilate into our way of life. 3. Another challenged the Prime Minister to get out into Lakemba, not far from where Mr Howard went to High School. 4. Listeners complained that out there, hardly anyone speaks English, they congregate around cafes with mobile phones all day and my listeners were wondering how they can afford all this, what are they doing, what is their business, listeners asked. 5. My jaw dropped when another told me about the University of Newcastle which this week was celebrating Islamic Awareness Week. The wife of a student wrote to me and said, the sense of joy and protest with which students and faculty pronounced this demonstration is beyond belief. In almost every second lecture my husband is subject to hearing America mocked, ridiculed and hated. 6. Well that all led to Robert emailing me and such was the substance of what he said that many have argued it should be shared with you. This is what Robert said: 7. "Dear Alan, I'm afraid that sadly our Aussie culture and character is being taken from us slowly but surely. It breaks my heart, he said, to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies and our future descendants will suffer are beyond our decent beliefs". 8. I should point out here that I constantly say that these are minority militant Islamic groups, the same minority groups who don't care whether they do damage to us or their own people. 9. But Robert went on: 10. "They might be a minority now, but they will spread like cancer. And those that pretend to be our friends now will show their true colours and their loyalty to Islam and not Australia". He went on. "My family has paid the price of freedom, the blood of three of our family members soaks the battlefields of the Somme, New Guinea and Malaya. These new comers do not understand the blood that has been spilt in conflict to give us our character and make Australia the place to live". 11. Now then listen to this he said: 12. "As a young child in the 50's, I remember getting the good old Aussie wink from Aussie blokes. Most of these men wore a small badge on the lapel of their suits or vests. Yes, they were returned servicemen from World War 1 and World War 2. The wink I now know to have meant, no worries little boy, you are safe now son, live your life in safety and in peace". 13. But Robert then said: 14. "I'm older now. I no longer see many of these men but I'll never forget them. I'm sure they would be turning in their graves watching what is happening to their beloved country now. I agree with you and many of the people who call you, that something must be done to maintain our Australian culture and character. We owe it to all those who have gone before us and built this country, many with their lives". 15. Well that was Robert in an email to me this week and many Australians would argue that the issues he raises are far more important than the sale of Telstra or industrial relations. Approach to leave applications 5 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 6 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. The applicant said that the complaints did have a reasonable prospect of success and that leave should be granted. Relevant legislative provisions 7 If this matter went to a hearing, Mr Ekermawi would have the onus of proving that the material set out above is in breach of section 20C of the AD Act. That provision states that: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 8 A "public act" is defined in section 20B to include: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 9 In summary, Mr Ekermawi would have to prove that: a) a person has b) by a "public act" c) incited hatred towards, serious contempt for, or severe ridicule of, a person or group of persons d) on the ground of the race of the person or members of the group. 10 A person? The complaints, as referred by the President of the Anti-Discrimination Board, were against Harbour Radio Pty Ltd trading as 2GB Radio and Nine Network Australia Pty Ltd. Mr Jones was not named as a respondent. Neither respondent submitted that they were not a "person" for the purposes of section 20C. However, that issue would need to be resolved if the matter goes to hearing and consideration would need to be given to joining Mr Jones. 11 Public act? The broadcasts and telecasts are likely to come within the definition of a "public act" in s 20B and the respondents did not submit otherwise. 12 On the ground of race? In relation to the fourth requirement, "race" is defined in section 4 of the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin". The applicant has identified the race of the group as "Muslim". As the AD Act does not make vilification on the ground of religion unlawful, Mr Ekermawi would need to satisfy the Tribunal that Muslims come within the definition of a "race" in section 4 if that point is not conceded. The material refers to Muslims and Islam in general and not to any particular ethno-religious group. However, neither respondent submitted that leave should be refused because Muslims are not covered by the definition of race. In those circumstances, I have not taken into account the prospects of Mr Ekermawi being able to prove that Muslims come within the definition of "race" in section 4. 13 Incitement? Each of the respondents submitted that the material published by them does not incite hatred towards, serious contempt for, or severe ridicule of, Muslims. The view of the President of the Anti-Discrimination Board was that the material did not reach the threshold of incitement. The response of the Nine Network to Mr Ekermawi's complaint was to apologise to him if he found the telecast to be offensive, but nevertheless to maintain that it did not constitute incitement. The Nine Network said that Mr Jones' comments were directed to claims made by extremist youths and not to Muslims as a whole. Alternatively, the Nine Network said that it was protected by the defence in s 20C(2)(c) because the material was part of a debate or discussion and there was no suggestion that either the Nine Network or Mr Jones condoned any of the comments in the email from Robert. The representative for Radio 2GB adopted the submissions of the Nine Network. Conclusion 14 If leave were granted, Mr Ekermawi would have to satisfy the Tribunal that an ordinary, reasonable member of the community would be incited by the material to hatred, serious contempt or severe ridicule of Muslims. The following passage from Robert's email is particularly relevant: It breaks my heart to see Muslims everywhere in our society, their arrogance and intolerance of our people and culture is blatantly obvious and the terror and lifestyle changes that we Aussies, and our future descendants will suffer, are beyond our decent beliefs. They might be a minority now, but they'll spread like a cancer and those that pretend to be our friends now will show their true colours and show their loyalty to Islam and not Australia. . . . . . . something must be done to maintain our Australian culture and character. 15 It is not necessary to prove that Radio 2GB or the Nine Network intended to incite anybody to hatred, serious contempt for, or severe ridicule of Muslims or to prove that anyone actually had that response. It is enough if the material has the capacity to incite the ordinary, reasonable member of the community: Veloskey v Karagiannakis [2002] NSWADTAP 18. "Incite" means something more than merely "conveying" hatred, or serious contempt or severe ridicule. 16 The compact disc contains material which has not been transcribed but about which Mr Ekermawi complained. I have taken into account the entire content of the material on the compact disc in deciding to give leave for it to be the subject of proceedings. That material satisfies me that Mr Ekermawi has reasonable prospects of establishing that there has been a breach of section 20C. Similarly, Mr Ekermawi has reasonable prospects of establishing that the Nine Network breached section 20C in relation to their telecast. 17 If Mr Ekermawi were able to prove a breach of section 20C, the onus would then shift to the respondents to prove that they are protected by the defence in section 20C(2)(c). The Nine Network asserted that the material was part of a debate or discussion and there was no suggestion that either that the Network or Mr Jones condoned any of the material. Whether or not Mr Jones did condone the comments remains to be determined but the fact that he read the email both on radio and television and regarded mentioned on radio that it was a "wonderful letter" tends to suggest that he agreed with its content. In my view, the merits of the defence are not sufficiently apparent to significantly diminish Mr Ekermawi's prospects of success. Orders 1. Leave is granted for the complaint of racial vilification against Nine Network Australia Pty Ltd to proceed. 2. Leave is granted for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.