Ekermawi v Jones & anor [2008] NSWADT 93

CITATION: Ekermawi v Jones & anor [2008] NSWADT 93

DIVISION: Equal Opportunity Division

APPLICANT Sam Ekermawi

PARTIES: FIRST RESPONDENT Alan Jones

SECOND RESPONDENT Harbour Radio Pty Ltd trading as Radio 2GB

FILE NUMBER: 071118

HEARING DATES: 12 December 2007

SUBMISSIONS CLOSED: 22 January 2008

DATE OF DECISION: 20 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 CASES CITED: Veloskey v Karagiannakis [2002] NSWADTAP 18 Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENTS S Thomas, agent

ORDERS: 1. Leave is refused for the complaint of racial vilification against Alan Jones to proceed 2. Leave is refused 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 a complaint of racial vilification to go ahead despite the fact that the President of the Anti-Discrimination Board declined the complaint as lacking in substance. The complaint relates to a broadcast on Radio 2GB on 8 December 2005 during the Breakfast with Alan Jones program. The context of the broadcast was civil unrest especially in the Cronulla beach area in early December 2005. 2 The complaint was prompted by an article published by David Marr on 13 December 2005 referring to comments some of which had been made by Alan Jones on 8 December. Three comments referred to in that article formed the basis of the complaint. One of those comments was repeated several times. Those remarks and the immediate context in which they were made, are set out below. The comments complained of are italicised. First comment P: The police obviously can't or won't do anything about it. The politicians are not listening to us as usual. If need be, mate, I'll get babysitters for my kids on Sunday and I'll be down there. AJ: OK. Now, let me tell you, P, let me just say this to you because – you know I'm the person that's led this charge here. Nobody wanted to know about North Cronulla. Now, it's gathered to this, we really have to be hands off here we don't want a situation whereby there's open warfare between people calling themselves Aussie whites and people calling themselves Lebs or whatever. We have at least alerted the government. Second comment AJ: And the text message urges Aussies yesterday to take revenge and Lebs and wogs. Now it's got pretty nasty when you start talking like this. It says, "Come to Cronulla this weekend to take revenge. This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day . . ." I do understand what people are saying, let's give the police a chance to do the job. And I can understand the young blokes who've sent that text message yesterday, "Come to Cronulla this weekend to take revenge", it says. "This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day, bring your mates, let's show them that his is our beach and they're never welcome." Well, now that's not the way, I do understand what you're saying, P, but we've just got to back off a bit here. We're not giving any ground to them. I'm saying backing off and letting, backing off land let the police do the job. Third comment AJ: Yeah, well I've got, I've got a stack of emails in front of me, let me read you this one, "Alan, its not just a few Middle Eastern bastards at the weekend, its thousands. Cronulla is a very long beach and it's been taken over by this scum. It's not a few causing trouble. It's all of them, it's an attitude that you feel whenever you go there, it's just straight out racism against the skippies, it will not go away, the police have their hands tied – I'll come to that later in the program – reduce numbers and powers, I wish there was an answer". 3 In March 2007, the Australian Communications and Media Authority (ACMA) published a report into the investigation of complaints made about broadcasts on 5, 6, 7, 8 and 9 December 2005. In relation to the broadcast on 8 December 2005, ACMA found that the licensee had breached the commercial Radio Code of Practice 2004 by broadcasting a program, which was likely to vilify people of Middle-Eastern background on the basis of ethnicity. Having made that finding ACMA did not need to decide whether or not the program was also likely to incite or perpetuate hatred. ACMA also found that the licensee had not presented the material "reasonably and in good faith". Approach to leave applications 4 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]. 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. Apart from lack of merit, another circumstance where leave may be refused is where the respondent has taken appropriate steps to remedy or redress the conduct. That circumstance is among the matters listed in section 92(1)(a) of the AD Act which may justify the President declining a complaint. 5 The issue for the Tribunal is whether there is a substantial reason, given all the circumstances of the case, for granting leave for the complaint to proceed. Relevant legislative provisions 6 If this matter went to a hearing, Mr Ekermawi would have the onus of proving that broadcasting the material set out above at [2] was a 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 sub-section (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. 7 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. 8 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. Consideration of merits of the complaint 9 A person? The complaint, as referred by the President of the Anti-Discrimination Board, was against Alan Jones and Harbour Radio Pty Ltd trading as Radio 2GB. Both are a "person" for the purpose of the AD Act. 10 Public act? The broadcast is likely to come within the definition of a "public act" in section 20B and the respondents did not submit otherwise. 11 Incitement? 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 for or severe ridicule of Lebanese people or people from a Middle Eastern background. The view of the President of the Anti-Discrimination Board was that the material did not reach this threshold. On the other hand, ACMA decided that the broadcast on 8 December was likely to vilify people of Middle-Eastern background on the basis of ethnicity. That decision took into account the third comment set out in [2] in the context of the broadcast as a whole. ACMA's report did not specifically refer to the other two comments. The complainants to ACMA were also concerned with a passage where Mr Jones said, ". . . we don't have Anglo Saxon kids out there raping women in Western Sydney. So let's not get carried away with all this mealy-mouthed talk about there being two sides." That comment was not part of the complaint to the President of the ADB. 12 It is not necessary for Mr Ekermawi to prove that Radio 2GB or Mr Jones intended to incite anybody to hate, have serious contempt for, or severely ridicule people of Lebanese or Middle Eastern background 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, serious contempt or severe ridicule. 13 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 Lebanese or Middle Eastern. While Lebanese is a nationality it is less clear that Middle Eastern background comes within the meaning of that term. 14 Defence. If Mr Ekermawi were able to prove a breach of section 20C(1), the onus would then shift to the respondents to prove that the broadcast was a public act, done reasonably and in good faith, for purposes in the public interest: section 20C(2)(c). 15 The main issue in terms of the merits of the complaint is whether the comments, interpreted in the context of the whole broadcast, meet the test of incitement. I do not have a sound recording of the broadcast so am unable to make any assessment about the tone or mood of the broadcast as a whole. Based on a reading of the transcript, it cannot be said that the complaint is so lacking in substance that it has no reasonable prospects of success. Consequently, lack of merit is not a reason to refuse leave for the complaint to proceed. Other reasons for refusing leave 16 Radio 2GB submitted that leave should be refused because it has taken appropriate steps to remedy or redress the conduct. Details of those steps were provided in a submission to the Tribunal following the hearing. Mr Ekermawi made a submission in reply which suggests that he misunderstood the nature of the Tribunal's directions at the hearing. The Tribunal reserved its decision and directed that the respondents provide details of any remedies agreed to with ACMA as a result of its findings. Contrary to Mr Ekermawi's understanding, the Tribunal did not grant leave at the hearing. It is not appropriate for the Tribunal to make the orders suggested by Mr Ekermawi in his submissions. 17 As a result of the findings made by ACMA, Radio 2GB says that it has engaged an expert barrister in discrimination and vilification to produce and implement a supplementary training program for presenters and staff. The expert has met with employees of Radio 2GB and ACMA and prepared a compliance program that includes the following key elements: a) overview of applicable Australian vilification prohibitions and related issues; b) focus on the language and interpretation of both legislation and the Code; c) develop case studies and scenarios. 18 The Expert has finalised the training program following a presentation to ACMA staff. The training program is to be provided to producers, on-air staff and presenters. 19 The remaining question for the Tribunal, having received the parties' submissions, is whether the findings of ACMA and the supplementary training program outlined above, justify a decision to refuse Mr Ekermawi leave to proceed with the present complaint. Put another way, given that in the circumstances of this case a partial remedy has been agreed to, is there a substantial reason for giving leave for the complaint to proceed. The argument in favour of refusing leave is that ACMA has decided that one of the comments which forms part of Mr Ekermawi's complaint breaches a provision of the Code, which is similar to section 20C(1) of the AD Act. Another comment made on the same day was also found to be in breach the Code. In addition, Radio 2GB has taken steps to develop and implement a training program on vilification. As a matter of public policy, a person should not be prosecuted twice for the same actions. While the circumstances of this case do not involve the principles of res judicata or cause of action estoppel, the principle is similar. It is in the public interest to ensure finality and non-duplication of litigation. In my view, it is relevant for the Tribunal to take into account that public policy consideration when determining whether to grant leave. 20 There are at least two arguments against the view that leave should be refused on public policy grounds. The first is that the findings of ACMA do not include all the comments identified by Mr Ekermawi. The second is that if leave were refused, Mr Ekermawi would be deprived of the opportunity to request damages or an apology. In relation to the first point, when read in context, the two comments, which ACMA reviewed, were the most serious of all the comments made in the broadcast. The fact that Mr Ekermawi also singled out other comments, which were less serious when read in context, does not significantly detract from the conclusion that another body has already considered the substance of the complaint. 21 In relation to the second point, there are several remedies available if a complaint of racial vilification is substantiated: AD Act, section 108(2). The most commonly sought remedies are an apology, an award of damages (not exceeding $40,000) and an order that the respondent develop and implement a program or policy aimed at eliminating unlawful discrimination. Orders under the AD Act are designed, not as a punishment or sanction, but to remedy the effect of the respondent's conduct: Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 at [3]. Those orders may be compensatory, preventative and/or remedial. 22 Lebanese people and people from a Middle Eastern background were the subject of the comments made by Mr Jones. Mr Ekermawi as an individual was not the target. Consequently I have assumed that any damages he may have suffered would be no more or less than the damage suffered by any other member of the group. In my view, the argument that the complaint should proceed so that Mr Ekermawi can potentially recover any damage that he has suffered is a relatively weak one. In the particular circumstances of this case, neither compensation to Mr Ekermawi, nor an apology, would significantly remedy the effect of the respondent's conduct. In my view, the most effective way of remedying the conduct, if it does breach the AD Act, is for Radio 2GB to develop and implement a training program aimed at eliminating racial vilification in the future. As it is in the process of doing so, leave should be refused for Mr Ekermawi's complaint to proceed. Orders 1. Leave is refused for the complaint of racial vilification against Alan Jones to proceed 2. Leave is refused for the complaint of racial vilification against Harbour Radio Pty Ltd trading as Radio 2GB to proceed.