CITATION: Trad v Jones & anor (No. 3) [2009] NSWADT 318 DIVISION: Equal Opportunity Division Applicant: Keysar Trad PARTIES: First Respondent: Alan Jones Second Respondent: Harbour Radio Pty Ltd FILE NUMBER: 071036 HEARING DATES: 12 & 13 August 2009 SUBMISSIONS CLOSED: 4 September 2009 DATE OF DECISION: 21 December 2009 BEFORE: Britton A - Deputy President; Bolt M - Non-Judicial Member; Kelleghan D - Non-Judicial Member CATCHWORDS: Racial vilification Administrative Tribunal Act 1997 Anti-Discrimination Act 1977 LEGISLATION CITED : Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Radiocommunications Act 1992 (Cth) Broadcasting Services Act 1992 (Cth) 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 CASES CITED: 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 102 Applicant Representative: K Nomchong, barrister REPRESENTATION: Respondent Representative: K Eastman, barrister 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. ORDERS: 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. KEYSAR TRAD: Well, firstly the Muslim community is not accountable for every person who goes on a platform and speaks. 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: 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. KEYSAR TRAD: It's not going on every week (indistinct). 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. 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. 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. 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. 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: 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. Another: 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. That's part of a press release. Another one: 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. 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. 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? 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: 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. 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. 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. CALLER COLLEEN: Thank you. ALAN JONES: Excellent points. And you see, Kevin has written to me: 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: 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. 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. 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? 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? 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). 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. ALAN: Of course there were families in this congregation at Bankstown Town Hall. You say 70 per cent of perpetrators are family members. KAREN: Family members, close family friends, someone the woman goes to school with or works with, makes up 70 per cent of perpetrators, yes. 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. 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. 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: 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. KEYSAR TRAD: Well, firstly the Muslim community is not accountable for every person who goes on a platform and speaks. 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: 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. KEYSAR TRAD: It's not going on every week (indistinct). 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. 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: 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. 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. 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. 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. 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. 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. CALLER: He is just like that other man who just previously spoke. ALAN: Absolutely. 58 In closing his conversation with 'Amy', Mr Jones commented: ALAN: Basically we have had enough of all of this. CALLER, 'AMY': That's for sure. 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. 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. CALLER, 'FATIMA': The reason why - let me just- - - 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: 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: Dieting, working out. And then they're in: Strapless, backless, sleeveless, skirts, nothing but Satanic skirts. And he screamed when he said that: Slit skirts, translucent blouses. 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 www.islamicsydney.com 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. The hoons at The Rocks, stopped by police, said it was "harassment and a random Lebo check", while police, to their faces, were called "corrupt and a bunch of dogs". And the hoons sang, "Old Macdonald had a farm and on that farm they had some pigs", and this just feet from police in a patrol car. How did the officers respond? They rolled up the car windows. Now, is this the stage we've reached? Is it because they're scared or because senior police don't know, don't care, or both, or tell them to do nothing? Now, what's to say about the state of policing in New South Wales? It seems that the leadership's completely lost control. It's appalling. I don't believe any policeman should be called a "pig" and the person uttering that language get away with it. That's my view. If that's not an offence, make it an offence and arrest people. I mean, where is the civil - where does civil disorder begin and end? Disgusting stuff. "A random Lebo check". The rules are pretty simple: it's legal, away you go and you can do it. If it's illegal, you've got to expect trouble and you should fear the police, if you are going to behave in an illegal way. "Old Macdonald had a farm and on that farm they had some pigs" - spitting it out at the police, and they get away with it. They get away with it. So what's that telling these people? They can do it there, they can do it at Auburn, they can do it at Parramatta, they can go and do it at Brighton-Le-Sands, they can do it at Lilli Pilli, they can do it at Vaucluse. And they are. 72 The Channel 9 story to which Mr Jones referred was, it seems, about misbehaviour by young car drivers in The Rocks. Some, perhaps most, of the offensive behaviour recorded by Channel 9 in The Rocks towards police was committed by young men of Lebanese ethnicity, a point Mr Jones repeatedly made. 73 Once again the theme of cultural conflict was raised by Mr Jones's listeners and embraced by him: ALAN JONES: How - how are you? CALLER PHIL: I'm good, mate. Bit sick of all this business. ALAN JONES: Yeah, absolutely. CALLER PHIL: At what point, you know - I marched in place of my father last weekend for Anzac Day. ALAN JONES: Yes. CALLER PHIL: He didn't go to war for any of this. At what point are we allowed to – ALAN JONES: Good point. CALLER PHIL: -- reclaim our country from these -- ALAN: That's it. CALLER PHIL: -- ultimate scumbags? ALAN JONES: The mob on the Ray - Ray Martin's programme last night are from Lebanese backgrounds and they made a point of emphasising the fact: We ride together, we die together. CALLER PHIL: And thank you for acknowledging it. Because the - the Ray Martin show didn't, and it was blaringly [sic] -- ALAN JONES: Oh, yeah, too frightened, you see. They were described - they described The Grand Parade Brighton-Le-Sands - I'm looking at Paul's notes – as "Beirut by the bay". CALLER PHIL: At what point are we allowed to make that Sydney again? ALAN JONES: Yes, that's right. CALLER PHIL: I've had enough of this, and I'll tell you, a lot of people on the street have. ALAN JONES: That's right… 74 The story was allowed by Mr Jones to develop from one about a group of young Lebanese male "car hoons" misbehaving towards police in The Rocks to one about the Lebanese community as a whole. In the second episode of the day Mr Jones had a another conversation, this time with a caller named 'Angie': CALLER ANGIE: Yeah, I just wanted to comment about Ray Martin's story last night. ALAN JONES: Yep. CALLER ANGIE: I really believe that we need to do something about these people, because it is predominantly - predominantly the Lebanese community. ALAN JONES: Yep. CALLER ANGIE: And, I mean, nobody -- ALAN JONES: They made a point of emphasising the fact. They didn't apologise for it. CALLER ANGIE: They do. And it's a segregation. I mean -- ALAN JONES: "We ride together, we die together" says the - the cowards. They're always in numbers, aren't they? CALLER ANGIE: Exactly right. And they - and, believe me, they can't do anything unless they're - unless they have a group of them. ALAN JONES: That's it. CALLER ANGIE: And - ALAN JONES: Grand Parade, Brighton-Le-Sands, they said was "Beirut by the bay". CALLER ANGIE: Well, exactly. And honestly, I would not go there any more because it's just - it's - it's - it's like one big - one big party of the Lebanese community, and any girl or anybody else that happens to not be -- ALAN JONES: Yep. CALLER ANGIE: -- a Lebanese person that walks past is usually insulted. ALAN JONES: And they just brazenly told reporters that their hotted-up cars -- CALLER ANGIE: Yes. ALAN JONES: -- could reach speeds of up to 160Ks and they drove them at that speed. CALLER ANGIE: Yes. Well, I mean, when's it - when's it going to be enough? When are people going say, "This is enough" (overtalk). ALAN JONES: Well - well, no, hang on, hang on, two weeks ago we had Wedderburn and all his cronies in the Attorney-General's Department telling us that crime's under control. CALLER ANGIE: Crime's definitely not under control. ALAN JONES: Yeah, well, go down to Hickson Road and have a look at that stuff. Thank you. Thank you, Angie. Dead right. I mean, problems every day. We'll get there, but, I'll tell you what, we'll only get there through you, only by the public, putting their foot down, and we're going to get there. 75 The fourth episode of relevance extracted in the appendix is a news report broadcast on 2GB that morning to the effect that Sheik Faiz Mohammed had been disciplined, that Muslim community leaders were "working on a way to deal with the community outrage" and stating that Islam does not condone rape. 76 The next episode extracted was an editorial comment by Mr Jones quoting Mr Irfan Yousef, a Sydney lawyer and prominent Muslim. Mr Yousef had written an opinion piece for the Sydney Morning Herald pointing out that Sheik Faiz Mohammed was on the fringe of Islam and that he and others were a minority group within Islam. Mr Yousef's piece was quoted by Mr Jones as describing the adherents of Sheik Faiz Mohammed's fringe sect of Islam as "hate-filled youngsters". Mr Yousef argued in his piece that Sheik Faiz Mohammed ought to have been condemned by Muslim leaders. Mr Jones congratulated Mr Yousef and used his comments, which did not mention Mr Trad, nevertheless to condemn him as one of the leaders who had failed. 77 In the next episode, an editorial by Mr Jones, he told his listeners: Keysar Trad has written to me warning of the damage I have done to his people. You can't get your head further in the sand than that without disappearing. 78 While the previous day, Mr Jones had been dismissive of protestations of innocence and outrage from one of his Muslim listeners who had emailed him, the flood of emails he had received since then had by 28 April persuaded Mr Jones that there were, after all, some good Muslims listening to his message. In the ninth episode extracted from the transcripts of 28 April, Mr Jones quoted several "wonderful, wonderful emails" from Muslim listeners all of whom condemned the "outlandish comments" of Sheik Faiz Mohammed. This was a significant change in the tone of the broadcasts but his attack on "the Muslim leadership" continued unabated. 79 Despite the supportive emails he had received from Muslim listeners, the very next caller, a woman called 'Colleen' was encouraged by Mr Jones to launch into a lengthy diatribe against multiculturalism. "I'm letting you go on because you're making excellent points", he told her. A couple of these "excellent points" were that "If you want to be Lebanese, the place to be Lebanese is in Lebanon" and that it was wrong for parents to speak to their children in a language other than English. 80 Again, the themes of cultural conflict and of internal enemies emerged. In the same episode, Mr Jones enthused over a couple of emails he had received: ALAN JONES: … Kevin has written to me: 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: 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. 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. 81 Later in the programme, in the tenth episode extracted, Mr Jones, in a conversation with a caller 'Bob', linked Mr Trad to the "car hoon" story. The apparent connection was that the "hoons" were, according to Mr Jones, Lebanese Muslims, and Mr Trad is a Lebanese Muslim leader and spokesperson for a section of that community. 82 Mr Trad again became the object of Mr Jones's ire in the eleventh episode. Mr Trad had apparently complained to Mr Jones of gross unfairness and asserted that he could not be held to account "for the words of every member of his community". Mr Jones retorted, "You were accountable for any of the mules, one of the leaders, and you said absolutely nothing about it until they were flushed out". 83 One of the more subtle callers, 'Sam', himself a Lebanese Muslim, told Mr Jones that his Ayatollah had taught that Muslims, when coming to Australia, contracted to obey the laws of the country. He also told Mr Jones that Mr Trad represented only a minority. He said that he had concluded that the "hoons" were not following their religion because they did not respect others: "They're not Muslims. They might be Lebanese. They are not Muslims", he told Mr Jones. Referring to Sheik Faiz Mohammed, he told Mr Jones "it's basically the media's fault for giving these guys even attention". Mr Jones could not accept that: "Oh, I don't think that. It's time we understood this is going on. There's a thousand people …" 84 In the thirteenth episode, Mr Jones read out – with his own interpolations – the lengthy and very excited letter which forms the substance of the Schedule A broadcast. (See above at [13]. For ease of reading, we repeat it here.) It is notable for the fact that it likens Lebanese men "in their vast numbers" to "vermin", raping and pillaging "a nation that has taken them in": ALAN: 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 programme last night -- openly 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 24 th 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. 85 In the next episode, speaking about the Channel 9 programme, Mr Jones made a curious comment: You've got to see it to know just the level of depravity to which we've sunk with these people admitting – admitting they're Lebanese and having no regard, no respect, no nothing [for the police]. Frightening stuff. 86 Mr Jones did not give reasons for using the phrase "admitting they're Lebanese" but it is clear from the context that he considered this to be of great significance. 87 In the same episode, Mr Jones again linked the misconduct of the "car hoons" to Mr Trad. In a conversation with a caller 'Ellen', speaking about the "hoons" and their offensive behaviour towards the police, the following exchange took place: CALLER ELLEN: They make me sick at -- ALAN JONES: They are sickening. And where's Keysar Trad? He says he's the leader of the Lebanese Muslim community. Well, has he said anything? Doesn't he see it? Or is he going to condone it? Apologise for it? Excuse it or introduce a few more "howevers"? CALLER ELLEN: As always. And the other thing that is just all the time, why don't they go back where they came from? Alan, they are not going to go back to where they came from. They've got it great here in this country. ALAN JONES: Yeah. 88 Between that call and the next, Mr Jones commented: ALAN JONES: Yes, okay. Well, thank you for ringing. 131873. People have had an absolute gut full. 131873. They said - they emphasised their Lebanese backgrounds. They made a point of emphasising their Lebanese backgrounds. They said: "We ride together. We die together." And they described the Grand Parade Brighton Le Sands, which they also use to race their cars as "Beirut by the bay". Try doing that in Beirut and see what will happen to you. 89 The next caller was a person who identified himself as 'Usel', a man of Turkish Muslim background who had served in the Australian Army. In relation to 'Usel's' Muslim faith Mr Jones commented, "Oh, we don't care. We just want people to come here and work, Usel. That's all we want." 90 'Usel' enthusiastically offered to deal with the "Beirut bad boys" and, while not expressly endorsing the proposed vigilante action proposed by 'Usel', Mr Jones embraced him as a supporter in the campaign against the Lebanese Muslim "car hoons": CALLER USEL: All I want to say simply, if any of these Beirut bad boys are listening, just - any Australian hurt in any way, they better watch out. Because we know who they are. We know who they are. We can find them very easily. ALAN JONES: The police - the police don't seem to be able to find them, or the leadership. CALLER USEL: Well, believe me, I - I've got the resources and the friends to find them. ALAN JONES: I mean, Usel - I didn't see it, but I asked Paul to take notes, and the letter that I've just got in tells me about this business last night in - in Hickson Road that was on the Ray Martin show: 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. CALLER USEL: But the police - the police have their hands tied. ALAN JONES: They do. CALLER USEL: Because - I don't know, can I say Bob Carr's not doing nothing about it? ALAN JONES: Police hands are tied - they have got their hands tied. You're quite right. Therefore, the leadership are not prepared to give the rank and file the backing they need. CALLER USEL: I don't know, Mr Jones. ALAN JONES: None of us know, Usel. None of us know. I wish we did know, because it's all so obvious to you and to me… CALLER USEL: [My grandfather] fought in the first world war and I got the balls to join the Australian army because I love this country so much. And what does this guy [a "car hoon"] do? He gets in front of a camera and he says, I want to do this, do that. Put me in charge - put me in charge, and I'm telling you now, Mr Jones, no-one has to lock their family, their family or their houses or their cars if I was put in charge for two weeks. That's all I need. Two weeks. ALAN JONES: Good on you, Usel. Great call. You keep in touch with us, hey. Thank you for ringing. We appreciate your sentiments. 91 Later in the programme, Mr Jones spoke to Mr Michael Gallagher, the Opposition Shadow Minister for Police and a former police officer. They were discussing various problems of policing New South Wales when Mr Jones finished the interview by asking the question, "So how are we going to deal with this gang problem, this Lebanese Muslim problem, the hoon problems? What do we do?" Mr Gallagher did not contradict the assumptions which loaded that question but neither did he explicitly accept them. Instead, he responded evenly with a bland answer about the police complaints system and the police hierarchy, and the interview concluded. 92 The second last caller of the morning was a man called 'Michael', who identified himself as "an Australian of Lebanese origin". He was antipathetic towards the "car hoons" and people disrespectful of the Anzac tradition. He said, "… I want all your listeners to know that, you know, being Lebanese and living in this country we – we are proud of the country's history and [the misconduct of the "car hoons"] doesn't represent our people at all. It's only a minority, those idiots out there." 93 Mr Jones thanked him for his comments and said, "Nice of you to get on the open line and say that, because it's very reassuring to people." 94 The final caller of the morning was a woman called 'Anne-Marie'. Her suggestion was that the police ought be trusted. She thought that they had probably studied the psychologies of different cultures and had worked out how to approach different cultural groups. Mr Jones did not accept this proposition. Time was up on the programme and Mr Jones cut her nuanced, thoughtful (if somewhat inarticulate) contribution off with the comment: ALAN JONES: It's our society that prevails though, Ann-Marie. You see, people are revolted by this behaviour. They don't have to accommodate it. At the end of the day the reason the police accepted the behaviour is they didn't have the numbers to be able to withstand it. I'd like to talk to you more, but we've run out of time. But please ring again. The 29 April 2005 programme 95 On 29 April, the fourth day in a row, Mr Jones carried on with the twin, and by now linked, themes of the threats presented by Sheik Faiz Mohammed's speech of 18 March and the "car hoons" to "monocultural" Australia. 96 Mr Jones began as follows: ALAN JONES: Every so often in this job and as you know, I don't know how much longer I can sustain it, but I try to answer everything that comes across my desk every day so that we turn it around. I tell you what, yesterday was a titanic struggle. There were literally hundreds and hundreds of emails. I have answered them all for one reason, it was a complete sociology lesson for me yesterday. Your emails were unbelievable and it's comforting to know that there are people out there who think as mainstream Australia thinks, and politicians and others had better wake up. He then told his audience that "predominantly my letters were from Muslim women who are absolutely outraged" but almost immediately, instead of quoting the outraged Muslim women, he quoted a man called 'Paul's' email: It's way past time the population of this country stopped being scared to defend their own rights and say enough is enough. They are the most intolerant of people and make Australians feel uncomfortable in their own environment. It is past time for Australians to stand up for themselves and put these people back in their place. I'm truly afraid of the future of Australia if we continue to pander to these people. Alan, I may not be articulating my point to maximum effect -- [ALAN JONES] You're kidding, Paul. You are articulating it, as did hundreds of people who wrote -- but I hope you can see where I'm coming from. 97 Mr Jones then went on, however, to quote an email from an unidentified Egyptian Christian correspondent. The writer disputed claims made by Muslims that Islam disapproved of rape. He claimed that "Islam looks at women as only objects of sex and nothing more. Man is inflamed by sexual lust and woman is created to satisfy his inflamed desire." The writer further claimed that "Muslims are allowed by the Qur'ran, the traditional teaching of Mohammed, to lie for the sake of Islam". 98 Mr Jones read out lengthy extracts from this email before commenting, "… and he explains this clash, this repugnant clash of cultures." This was followed by quotation of an email from an alarmed female pharmacist who complained that men with Middle Eastern names were buying large amounts of Viagra which she referred to as "the male rape drug". 99 In the second episode of the morning, Mr Jones quoted more emails. One was from a correspondent 'Yvonne' who claimed that when she had confronted an imam during a lecture on Islam he had admitted that Muslims were commanded by Allah to "kill everyone who is not of your faith". Mr Jones commented that he had received a "major sociology lesson" from this and other emails he had received the previous day. 100 Mr Jones first caller during the second episode was a man called 'Osmond' who identified himself as a Muslim. 'Osmond' attacked those in authority in the Muslim community and argued that they should "get rid of this whole mantra of being victims" and "fix our problem" (the nature of which he did not identify). He also contended that they should "try and uphold some of the values of this society". During the conversation the following exchange took place: CALLER 'Osmond': Oh, look, just too many, Alan, and I'm just tired of this whole synonym of hating the west -- ALAN JONES: Good on you. CALLER 'Osmond': -- and blaming Australian society. I'm -- ALAN JONES: And hating, hating people. CALLER 'Osmond': Oh, look, it's just not on, Alan. It is absolutely ... ALAN JONES: Thanks, Osmond, and thank you for ringing and you give great encouragement to people out there. There are good people. 101 The next caller, 'Hussein', provided some context and illumination of the issues. In particular, he sought to make distinctions between groups within Islam. Mr Jones, with respect, appears not to have grasped these. Instead he sought to focus the discussion back on the Lebanese "car hoons": CALLER 'Hussein': Good morning, Alan, how are you doing? ALAN JONES: Well, thank you. CALLER 'Hussein': That's good. Just a couple of quick notes. I'd like people to still make a distinction between the Salafi group that have all these ideas about violence and, you know, women and all this stuff. ALAN JONES: How many of them are there? CALLER 'Hussein': They're actually a minority that actually come out from Saudi Arabia and Afghanistan. ALAN JONES: But how many, do you reckon? CALLER 'Hussein': They're not many; they're actually a minority. ALAN JONES: But see, why doesn't the leadership stand up to them? CALLER 'Hussein': I mean, they stand up to them. I mean, you probably don't hear much about it on the radio because it's not well represented, but we are actually in the majority of (indistinct) is actually opposing to these teachings. ALAN JONES: Yes. CALLER 'Hussein': It is part of our teachings to oppose these things. So I don't think -- ALAN JONES: This is the Salafi group? CALLER 'Hussein': This is the Salafi group or the Wahabi group. That's -- ALAN JONES: Yeah, I - I spoke about them the day before yesterday, yeah. CALLER 'Hussein': Yeah, so I'd just like people to make the distinction between them. I mean a lot of -- ALAN JONES: Well, I have made the point, though, over and over again here, Hussein, that the bulk of my letters yesterday - well, not the bulk of them but a stack of them, were from Muslim women and Muslim people, outraged by this person. CALLER 'Hussein': That's exactly right. I'm one of them and -- ALAN JONES: And at the same time there is - there is awful violence by Muslim teenagers that - we saw that down at The Rocks, spitting on - on our policemen, abusing them, desecrating the Anzac spirit. So the leadership's got to do something about these people. CALLER 'Hussein': But we don't have a leadership, unfortunately, and there's a lot of reasons for that. ALAN JONES: Yeah. CALLER 'Hussein': And it's a (indistinct) thing. I just want to, just resorting back to these young fellows that did all these bad things, which we Muslims are outraged at, just one little thing. Like, I was watching Ray Martin yesterday, and everyone is going on about them, (indistinct) and, you know, Lebanese Muslims, whatever, and, you know, one of them talking to the police and trying to take his gun and, you know (indistinct) -- ALAN JONES: Yeah, yeah, yeah. CALLER 'Hussein': -- and he was wearing a cross. He was a young Lebanese Christian, if anybody missed that. ALAN JONES: Yeah. CALLER 'Hussein': You see this is the sort of thing I'm talking about. ALAN JONES: Well, there are two issues. CALLER 'Hussein': These are issues that I (indistinct). ALAN JONES: There are two issues, that's Lebanese -- CALLER 'Hussein': -- the law has to deal with them. The law has to deal with them. ALAN JONES: No, I agree with you. I agree with you. CALLER 'Hussein': Yes, the law has to deal with them -- ALAN JONES: Good on you. CALLER 'Hussein': -- so far and we would like the law to -- ALAN JONES: That's a very good point. CALLER 'Hussein': -- be applied to these people. ALAN JONES: That's what Hussein says. CALLER 'Hussein': Okay, thanks, Alan. ALAN JONES: You're most welcome. Hussein's got it right. The law has to deal with these people. I'll be looking at that after seven o'clock this morning. Bill, hello. 102 During the same episode, at the conclusion of a conversation with a caller 'Charlie', who had described the "car hoons" as "the Lebanese community's toilet", Mr Jones commented: ALAN JONES: Charlie, I've got - I had a lot of footballers who played for me with Lebanese - of Lebanese parentage and the governor of New South Wales, Marie Bashir, her husband is Nicholas Shehadie, and Ben Elias, who played for me, and so on. Everyone understands that. What we are saying is where are the Lebanese Australian leadership standing up to these people and saying, "Listen, you're not part of us and we want the full force of the law to take charge"? We want to hear from these people. Now, that's all - I think that's all the public is saying, really, and that kind of behaviour in anybody - it's got nothing to do with race, creed, colour or whatever, that kind of behaviour is ultimate material unacceptable. There are two problems. One is the problem of the behaviour; two is the failure of authorities to address it in the way the public expects it to be addressed. 103 In the fourth episode of the morning, Mr Jones began his commentary by referring to the work of the Australian 7th Division in Lebanon during the Second World War. Mr Jones told his audience that a veteran had called him and suggested that he remind young Lebanese of the food, water and protection the AIF had provided during the war. He then went on to state: Sydney's Islamic community do not support this scumbag [Sheik Faiz Mohammed] who was spewing out that bile back in March 18 nor do they support the leadership of the Islamic community which has failed to do anything about it. Still no apology to women from the leadership. And it has been – it is condemning its leaders, including the sheik. Angry Muslims continue to speak out, and now publicly, which is a real breakthrough. 104 He then stated that "a dozen Muslim organisation yesterday joined forces to deplore the sheik's comments" and listed various bodies which had done so. 105 In the next episode, he returned to the issue of "car hoons" and their disrespect for police. He invited Mr Jeff Schuberg, an ex-Assistant of Police, on to the programme to discuss the issue. In his introduction to that interview, Mr Jones played some of the audio tape of the Channel 9 programme in which voices are heard calling police "pigs" and other epithets before commenting: ALAN JONES: Well, the police drove off to the catcalls and the abuse of a crowd out of control. Were police reinforcements called to make arrests? No. If ever there were clear examples of the offence intimidate police, it was captured on the film on Ray Martin's program. But the police involved 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. They then bowed their heads and pretended to cry, and began to laugh and make jokes about our fallen heroes. It was gut-wrenching to watch and to listen to this desecration of our national memory. If ever there was a clear example that Lebanese males in their vast numbers not only hate our country but our heritage, this was it. 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. And what about the sacrifices of our war dead made for this country to make it what it is today and to have these mongrels laugh at them on national television? 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. And, worse, the agents of law and order, the police service as it's called, has allowed itself to be humiliated and assaulted by mobs of rampaging youths at Redfern, Macquarie Fields and anywhere else in Sydney. Is this age the age of the academically-trained policeman who's taught to turn the other cheek and cop it? When police back down and absorb the insults and humiliation that we've seen this week, we know we've lost control. 106 In further episodes through the morning, Mr Jones continued to link the questions of Sheik Faiz Mohammed's behaviour, the response of "the Muslim leadership" and the Lebanese "car hoons", as did members of his audience. In the eighth episode, the following exchange took place in which the themes of race, religion, anti-social behaviour and law-and-order were combined by both Mr Jones and his caller 'Tony': CALLER 'Tony': Yeah, about the antisocial behaviour of these - these hoons, these Lebanese Muslims and that. I'd guarantee, Alan, that these people, I mean, you know, it will just keep happening. You don't - you know, you can't see Italians or Greeks or any other nationality – ALAN JONES: No. CALLER 'Tony': -- of young people born in this country that behave in this manner. ALAN JONES: No, quite. CALLER 'Tony': I mean, they're - they're bought up in a Christian way of life. You know, their parents teach them, you know, respect, they teach them empathy, and all the other good, you know, God-given qualities that they need to get along with other people, you know. ALAN JONES: Yep, yep. CALLER 'Tony': And these people, they preach this religion -- ALAN JONES: Well, I think Jeff Schuberg has a point. Well, Jeff has a point; Jeff Schuberg has a point. You round them up and you lock them up. That's simple, isn't it? CALLER 'Tony': Exactly right. Exactly right. ALAN JONES: And they'll get - they'll get tired of it before you do. Round them up and lock them up, and they'll get sick of it. CALLER 'Tony': Exactly right. ALAN JONES: They'll whinge and complain. Confiscate the car. Confiscate the car, round them up and lock them up. They can do whatever they like if it's legal. If it's illegal and they want to spit at police and abuse police and confront police and involve themselves in antisocial behaviour, Jeff Schuberg said lock them up. That's what you do. CALLER 'Tony': That's right. I just think that it's a part of way of life for them, these people. I mean, it's really in their DNA. You can't change their Christian - their - their way of life, you know. ALAN JONES: They're entitled to believe it's their way of life if they just drive off unchallenged. CALLER 'Tony': That's right, exactly. ALAN JONES: They just drive off unchallenged. "So we'll be back tomorrow, folks. We've just ended the show for tonight. But we'll be back tomorrow." CALLER 'Tony': That's right. Exactly right. ALAN JONES: Good on you, Tony. CALLER 'Tony': I mean, we allow them to attend to mosques here in this country as well. ALAN JONES: Oh, yeah, build a mosque everywhere. CALLER 'Tony': Exactly right. And they recruit people like this in their mosques. ALAN JONES: That's dead right. CALLER 'Tony': And we can't do anything about it. ALAN JONES: Well, of course, thankfully, there are Muslim people ringing and Muslim people writing and they are as outraged as you are, and that's the good sign in all of this; and Muslim leadership found sorely wanting. 107 In the same episode, Mr Jones pondered on the question of what to do. In a conversation with a caller 'John' he suggested, "We are the government. Government's meant to do the bidding. It's government of the people by the people." 108 Also in that episode, Mr Jones spoke to a caller 'Steve'. He asked the caller, "What should we be doing?" Steve was unable to answer the question but offered a few thoughts which Mr Jones found helpful: CALLER 'Steve': Mate, I'm like you. I've had a bloody gutful. I'm - I'm nearly 51. I've lived in - I'm born and bred in this country. I'm sick of hearing what I'm hearing on the radio and I'm - I appreciate what you're saying, but what - what can be done of what's happening out there at the moment? My wife is from New Zealand. Years ago she said, "Steve, I'd like to live in New Zealand," and I said, "No, but I like it here." And I really think now, "Why the hell didn't I go over there?" That's the way I feel because I'm sick of this bloody government. You do your best, but what I hear out there with minority groups, with the Lebanese community, other communities, I'm just fed up. And I've got kids that I've brought into this world and I don't even know what's going to happen to them. I'm just fed up, Alan. ALAN JONES: Good on you. Well, it helps. I mean, the level of public anger helps. I'm as fed up as you are, I have to say. But the first thing is at last we seem to have overwhelming consensus about the seriousness of the problem, and that is a very important step. Now we've got to work out: what do we do? You're quite right, and that includes me as well as you. 109 The next caller was a young man who identified himself as 'Ahmed', a Lebanese Muslim. He expressed embarrassment and shame at the behaviour of some of his co-religionists and compatriots: CALLER 'Ahmed': Mate, look, I'm calling in - in relation to the Current Affair programs and quite the debate that's been going on over the last couple of days. ALAN JONES: Yeah. CALLER 'Ahmed': Can I say as a young Lebanese Muslim working in - working and living in Sydney that I'm completely embarrassed by it, so is my -- ALAN JONES: Yes, good on you. Good on you for ringing. CALLER 'Ahmed': And also, mate, I'm horrified by the disrespect shown in relation to the Anzac Day and general Anzac spirit. ALAN JONES: Good on you, Ahmed. CALLER 'Ahmed': But can I please make this statement, Alan? ALAN JONES: Yeah. CALLER 'Ahmed': It's very important. Just because people from a certain community are born into Islam doesn't necessarily make them a Muslim, Alan. You know, we need to really, really detach the argument of identifying these thug - and that's exactly what they are - as being Muslims. What I'd say - what I dare say is these people are young Australians, whether they be Lebanese of an Australian background, an Asian of an Australian - sorry, an Australian of an Asian background, at the end of the day these guys are thugs. What we need is we need the police, we need the executive and we need the judiciary to work together to come up with a plan that will actually see right through, from the beginning to the end, an actual cause and effect where these guys will stop doing what they're doing. It's very simple. The problem that you've got at the moment is you've got an arm, and you've got an arm of the law that tries to do one thing, which is being sort of negated at the other end. Now at the same time we're being misrepresented as a community. And I know you might be trying to do your best Alan, to try and - how can I say it - put us to best light, but it doesn't help when we can't - when we don't as Lebanese Muslims have the opportunity to educate the community to say, "Listen, if there's a bunch of thugs and there's a bunch of louts hanging out at Brighton le Sands, it doesn't represent the rest of us here." We're embarrassed. I'm having dinner with my wife or with my family, and we're embarrassed at what we see. We're embarrassed at people from an Australian background or from any other background ring up and suggest that it is those people from that sort of a religion - our religion has nothing to do with the behaviour that you saw at Brighton and the behaviour that you saw on A Current Affair. It's inexcusable and unacceptable. ALAN JONES: Well now, Ahmed, can I just say this to you? CALLER 'Ahmed': Yes. ALAN JONES: It's quite amazing, isn't it? This is how bad the problem has got, because I've never known in all the time I've been here the Muslim community rank and file to be so outspoken in anger and indignation over two issues: one over the sheik and the rubbish that he spewed out at Bankstown, and the behaviour that we've seen on the Ray Martin show. And it is to the great credit of all those Muslim women who have written to me and the Muslim women who have come on this open line, and people like you, Ahmed, and others who have been at great pains in a most articulate way to say, "They are not part of us" and to have the courage and the public place to set your face against them. CALLER 'Ahmed': Alan, sorry; Alan, can I just say also: not only are they not part of us; they are not part of the Australian community in general. ALAN JONES: No, they're not. They're not CALLER 'Ahmed': They are not people who represent any part of the community. ALAN JONES: No, they're not. CALLER 'Ahmed': Any segment of the community. ALAN JONES: And therefore the end result, you're saying, is round them up, as Jeff Schuberg said, and lock them up. CALLER 'Ahmed': That's exactly right. But what I'm also saying - okay, let me - let me give you a brief scenario. I travel. Because my wife is from overseas, so I travel to Lebanon quite regularly. They have days in Lebanon that are called - I guess you could call them an equivalent to justice day. On justice day you have the military which is out on the street. When I say military, it's military/police; okay? Any guy or any woman or any man or any person that is stopped by the police, and the police simply ask them a question - and I personally experienced this; okay - if I answer the policeman in a manner which is perceived to be disrespectful, I may have no intention of it being disrespectful but if it is simply perceived as being disrespectful, I'm rounded up, my car is impounded. There needs to be a respect for the police in New South Wales. There needs to be a general respect for authority in New South Wales and Australia at large. And anybody that doesn't follow that doctrine of living in this modern Western society whereby we have the freedom to practise our religion, whereby people choose to wear what they want to wear without being sort of, you know, told in an indoctrinated way that, "No. Look, you know, my point of view is correct and yours is wrong;" we need to respect that. And if you don't have the audacity to respect that, then you need to find somewhere else to live. And if you can't, then the police and the judiciary should give them a nice little cell in the gaol somewhere where they can reflect on their thoughts. ALAN JONES: Well, how outstanding are you. How outstanding -- CALLER 'Ahmed': Well, I'm very - I'm very frustrated, Alan. ALAN JONES: I know. Well, hang on. CALLER 'Ahmed': I've been upset. For the last three days I have been upset because I have been listening to people tarnish my reputation. When I say my reputation, I don't mean it as an individual, Alan. My reputation as a proud Australian with Lebanese background. My father came to this country at 19 years of age with nothing on his back. He worked his little behind off for years and years and years, and he raised us not so that we can sit back and see these thugs going around representing us. They cannot represent me. They cannot represent any other Australian in this country. They represent a minority of criminal thugs, and those criminal thugs are represented by all nationalities; not by Islam, not by Lebanese, not by Asians, not by Greeks, not by Australians. We have a minority in all groups, Alan. And you're a smart man. You can't disagree with me when I say things like that. ALAN JONES: I'm not disagreeing with anything you're saying. I think you're absolutely outstanding and you've helped - you've helped tip the balance of confidence that the public want in the wider community, that they do understand the nature of the problem. 110 In a later conversation with another caller, 'Aaron', Mr Jones described 'Ahmed' as "inspiring and reassuring" and his caller sought to reassure 'Ahmed' that there are "plenty of us out there who aren't ignorant to the fact that these idiots are the minority." 111 Towards the end of the episode, Mr Jones became positively supportive of the wider Lebanese community in a way that he had not been earlier in the week. In a conversation with a caller 'Paul' the following exchange took place: CALLER 'Paul': Look, I didn't ring you up for this reason, but I'd like to say something to Ahmed. He sounds like a guy (indistinct) very like to be Australian. But I want to say something to him and to all those people from the Lebanese community that rang up and said how abhorrent they are of what happened. Words are cheap. They could say all the things like that as much they want, but the day I see their leadership reflect what they are saying is the day I believe that their community are serious about -- ALAN JONES: Well, they are - they are all saying that. I can assure you. I sat up last night answering hundreds of letters and, without exception, they are just as embarrassed by their leadership as they are by the behaviour. And, remember, just forget all this issue, Paul, that you go to schools, don't you, and the P&C, and you see the P&C and you think, "Oh, why don't the P&C do this," and then you say - you're having a whinge and someone says to you, "Well, look, why don't you - why don't you go and be the leadership position of the P" - "I'm too busy." And so many of the Muslim people who have written to me are criticising the leadership, but they're too busy looking after their kids and running their ordinary lives to be the leaders, but they're just as embarrassed about the leadership as you are. CALLER 'Paul': That's right. But unfortunately it's a bad reflection on them and I think ­­ ALAN JONES: Still, we've made more progress than we've ever made. We've never had so many Muslims outspoken against the behaviour and the leadership, never. CALLER 'Paul': That certainly is encouraging. ALAN JONES: Very. 112 In the next episode, Mr Jones went even further in a conversation with another Muslim caller, 'Murat': CALLER 'Murat': Alan, first of all, I just want to make a couple of points. First of all, I really like to thank you for making it quite clear to your listeners that the majority of the Muslim community, such as myself, are disgusted by the events that have taken place over the last few days. Secondly, I would like to commend Ahmed as well. I think he summed it up perfectly. From one Muslim to another, I thank you very much. I know you're listening. And, thirdly, I'll take exception to one of the callers just a couple of moments ago that said as long as the Muslim leaders in the community don't denounce this, he finds the rest of us accountable. I don't particularly agree with that. ALAN JONES: No, I think that's - I think that's a bit rich. That's a bit rich. All the letters I've got, Murat, and I've had hundreds of them, have been very critical of the leadership. CALLER 'Murat': Yep. I'm very critical of the leadership myself. ALAN JONES: You see, the great thing is this is the first time we've had Muslim people speaking out, and it's been very reassuring at the end of the week to other Australians to know that there are Muslim Australians who feel as they do. CALLER 'Murat': Absolutely, Alan. I'm very critical of the Muslim leadership myself. I would just hate for your listeners to think that it's a community - a Muslim community issue because, I mean, if the government doesn't do something right or if the government played down the effect, basically the Redfern riots, and Macquarie Field riots and everything, I don't see how the communities, the Australian, Christian -- ALAN JONES: No, that's right. No, that's dead right. CALLER 'Murat': -- can be blamed for the government's -- ALAN JONES: Sure. Good point. Good analogy. Don't blame the community for the fact that its government fails. Yeah, well done, Murat. 113 The last significant comment by Mr Jones to a caller on these topics came during the final few minutes of the show when he commented to a caller 'Brian": ALAN JONES: … These kids are born here, and that's the challenge we've got. So it's the way they're being taught. It's the kind of propaganda that's being pushed into their heads, and that's the thing we have to address. And the key and encouraging factor in the last 48 hours is that the Muslim community rank and file have risen against this as much as you and I. Were Mr Jones's broadcasts his "public acts"? 114 Section 20B(a) of the Act relevantly defines a "public act" as "any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material". 115 Mr Jones and 2GB concede that the broadcasts were public acts for the purposes of the Act, but contend that they were the acts of the radio station and not of Mr Jones. Their argument is that the broadcasts were "not exclusively or solely Mr Jones speaking". 116 It is beyond dispute that the broadcasts were transmitted by medium of equipment owned and controlled by 2GB. Apart from Mr Jones's own commentary and interviews, the broadcasts included news, commentary, advertising, music, weather and traffic reports, promotions for other 2GB programs and other items in which he did not speak. The radio station is a licensed broadcaster whose broadcasting activities are subject to regulation under various statutes which include the Radiocommunications Act 1992 (Cth) and the Broadcasting Services Act 1992 (Cth). The station is also subject to the Commercial Radio Codes of Practice and Guidelines. The Codes and Guidelines apply only to commercial radio licensees. 117 It is contended for the respondents – curiously, no one appears to have adverted to the apparent conflict of interest here – that while the broadcasts were indubitably public acts of 2GB's, they were not public acts on the part of Mr Jones. 118 That argument must be rejected. The programme in question was known as "Breakfast With Alan Jones". While others speak on the programme, and while there is a constant interpolation of news reports, advertising, promotions and other things during the programme, Mr Jones is the presenter and "star". A reading of the transcripts for the four days in question reveals that Mr Jones offers editorial comment on various topics, structures the talk-back segments around those editorials, invites listeners to speak to him and, through him, to convey their thoughts and opinions to government and other bodies with authority so that they act on them. A large proportion of the time spent between 5.30 a.m., when the programs commenced, and 10 a.m. — when they finished — is spent with Mr Jones speaking on air, either offering editorial comment or in conversation with various interviewees, some of whom are apparently invitees and others are listeners calling in. 119 For the purposes of the Act, it is irrelevant whether 2GB is a pirate radio station operating outside the regulatory structure of the broadcasting legislation or a fully licensed and regulated commercial radio station. The question is whether Mr Jones's voice and opinions are broadcast by 2GB. It is a false dichotomy to suggest that if the public act in question is the act of one person it is not the act of another. An act may be a joint enterprise. Whether it is or is not will depend on the circumstances. That 2GB uses its own equipment to broadcast Mr Jones's voice and opinion does not derogate from the fact that his voice, plus all the other items featured in his show, is broadcast. 120 By being transmitted via electronic equipment there is no effect on his voice except to amplify it and transmit via radio waves to anyone whose receiver is tuned to the correct frequency. He seeks an audience. He gives his audience a telephone number to call. Some of those who call in are selected to speak to him. They converse on air to a large listening audience. It is difficult to think of a more public act than this. Are Muslims a "race" within the meaning of the Act? 121 A key issue in these proceedings is whether Muslims constitute a race within the meaning of the Act. Mr Trad contends that among others, Muslims were the target of the offending broadcasts. 122 "Race" is defined in s 4 of the Act to include colour, nationality, descent and ethnic, ethno-religious or national origin. The fact that a race may comprise two or more distinct races does not prevent it from being a race for the purpose of the Act: s 4(3). 123 The Tribunal, of course, has no jurisdiction to deal with vilification on the basis of religion alone. While it was argued for Mr Trad that the term "Muslim" may be interpreted, for the purposes of the Act, as referring to "race" we do not accept that view. In Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 this Tribunal had to consider the meaning of the term "ethno-religious" in the context of the AD Act. The Tribunal stated (at [18]-[20]): 18 It is not even clear that Muslims, to use the words of the Attorney-General "share a common racial, national or ethnic origin". While Muslims are all adherents to Islam, they do not share common racial, national or ethnic origins. There are Muslims in every continent and of many different racial and ethnic backgrounds. It is common knowledge for example that there are South Asian, South-East Asian, African, Middle-eastern and European communities of Muslims. Many African-Americans, most famously Muhammed Ali, are Muslims. No doubt within those broader groupings there are further ethnic sub-groups which nonetheless adhere to Islam. Hence the ambiguity in referring to Muslims as a single "ethno-religious" group. For this reason, the examples given in the Second Reading Speech are not very useful aids to interpretation. 19 It is a fallacy to refer only to ethnicity or to religion in determining whether or not a person belongs to an "ethno-religious" group. It is a short-hand generic description of a complex type of cultural grouping which has ethnic, cultural, historical and religious aspects all entwined. Better examples of what is meant by an "ethno-religious" group than were given in the Second Reading Speech might be, for example, Javanese Christians, Bosnian Muslims or Northern Irish Catholics. 20 It therefore follows that, in our view, there is no very helpful extrinsic material to which we have been referred by either party to construe the meaning of the term. It accordingly falls to us to attempt a definition. We do so, among other things, by taking account of the objects of the Act. In our opinion, the term signifies 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 . (Emphasis added.) 124 That approach has consistently been adopted by the tribunal at both first instance and appeal panel and in we are not persuaded by Mr Trad's argument that we should depart from that approach in these Reasons. (see for example Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 at [8]; Kunhi v University of New England [2008] NSWADT 333 at [4].) 125 Whether as Mr Trad contends the term "Muslim" when used in Sydney in 2005 in the context of the offending broadcast was understood by the audience to be interchangeable with the term "Lebanese Muslims" or "Lebanese people" is a question of fact to be determined by reference to all of the circumstances surrounding its use. This however is a separate issue to whether for the purpose of the Act adherents of the religions of Islam or "Muslims" constitute a race. Who or what group was the target of the broadcasts? 126 In his Points of Claim Mr Trad identified the group vilified by the Schedule A broadcast as "Lebanese Muslims and/or Lebanese males and/or Lebanese people and/or Muslims including the applicant". In respect of the Schedule B broadcasts Mr Trad clarified that in addition, he was referring to each of these groups "in Australia and in particular in the Sydney region". 127 The respondents accept that "Lebanese Muslims", and "Lebanese people" constitute a race, but not "Muslims" or "Lebanese males". 128 The argument concerning "Muslims" is dealt with above. Males self evidently do not, by themselves, constitute a race for biological purposes or for the purposes of the Act. A race, by definition, must be constituted by people of both genders. Nonetheless s 20C operates to make unlawful vilification of a person or group of persons on the ground of their race. The offending conduct need not be directed at the "entire race". Accordingly if the public act incites the requisite emotion towards a group of males on the ground of their race, it will be caught by the provision. 129 As a first step it is necessary to decide who or what group or groups the ordinary reasonable listener would have understood to have been referred to in respect of the Schedule A and Schedule B broadcasts. 130 There is no argument between the parties about the identity of the ordinary reasonable listener. Various formulations have been used by the Tribunal which do not differ in substance and include: (i) "the hypothetical listener should …be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views"; ( Harou-Sourdon [1994] EOC 92-604 (at para 10), cited with approval by the Tribunal in Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [95] and [99]) (ii) "the ordinary reasonable reader is a person of fair, average intelligence....who is neither perverse....nor morbid or suspicious of mind....nor avid for scandal…"; (Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380 at 385-6) and (iii) "the ordinary, reasonable person is simply representative of a substantial and respectable group of the community". ( Western Aboriginal Legal Service v Jones at [99]) 131 Schedule A This segment of broadcast identified concerned the behaviour of a group of young "car hoons" who had been filmed confronting police officers in Hickson Rd, The Rocks. It is set out in full at [13] of these Reasons. The letter itself identifies the people behaving badly as "Lebanese males" and twice uses the phrase. Mr Jones then added his own editorial comment: "Remember, these people announced themselves as Lebanese Muslims". 132 Counsel for the respondents argues that Mr Jones's criticism was directed at a small group of Lebanese males who were engaged in anti-social or unlawful conduct, not at Lebanese people or Lebanese Muslims generally. She argues that this would have been understood as such by the ordinary, reasonable listener. 133 She further argued that the ordinary, reasonable listener would not have inferred that Mr Jones was criticising Lebanese people or Lebanese Muslims in a general sense, but that his criticisms were concentrated solely on the small group of "hoons" behaving badly. 134 If the proposition put for the respondents is correct, why was it necessary for Mr Jones to refer to their race at all? The answer, surely, is that, as Mr Jones put it to Mr Michael Gallagher during an interview on 28 April, that he perceived the behaviour of the "hoons" to be integral to and symptomatic of a wider "Lebanese Muslim" problem. 135 In our view it is a considerable oversimplification to argue that "any disparagement expressed by Mr Jones towards the men was directed not to their race, but rather to the conduct of specific individuals." Yes, Mr Jones was undoubtedly concerned with those individuals and their conduct, but it is evident that he saw them as representative of the threat posed to Australian society by Lebanese Muslims and Lebanese males. 136 While plain that the trigger for the segment was "the hoons", in our view the ordinary reasonable listener would have understood that they were not the sole group targeted by, or referred to, in the broadcast. In our view this is apparent from the segment taken as a whole and in particular having regard to Mr Jones's interpolation — "Remember, these people announced themselves as Lebanese Muslims", the repeated references to "Lebanese males" and the following passage read out by Mr Jones: 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… 137 We find that the ordinary reasonable listener would have understood that "Lebanese males" and "Lebanese Muslims" were referred to in the Schedule A broadcast. 138 Schedule B In relation to these broadcasts, the evidence concerning the targeted person or group or groups is more complex. Schedule B consists of four segments broadcast over two days. In the first extract, Mr Trad himself is identified by Mr Jones as a principal target for his criticisms. Mr Trad is identified on air as "the spokesman for the Lebanese Muslim Association". On the face of it, in making that introduction, Mr Jones suggested that he may have been focussing on a Lebanese Muslim connection. 139 On the other hand, during the interview with Mr Trad, Mr Jones did not mention the Lebanese connection again but spoke of "the Muslim leadership", "Muslim women wearing burqas" and "Muslim spokespeople". Mr Jones sought to centre the interview with Mr Trad on the preaching of Sheik Faiz Mohammed and the reaction of "the Muslim leadership" to his speech. 140 In the other extracts which comprise Schedule B, while there are numerous references by Mr Jones to Muslims, the Islamic faith, Muslim women and men and Muslim clerics, Mr Jones does not mention a Lebanese connection. 141 Mr Trad bears the onus of proving that Mr Jones's allusions to Muslims in Schedule B would have been understood by the ordinary reasonable listener as a reference to an ethno-religious group (Lebanese Muslims), rather than to Muslims as adherents of the Islamic faith. It is argued for the respondents that there is no evidence of racial vilification in the broadcasts of 26 and 29 April and that references in the broadcasts to "Muslims" simpliciter ought not be interpreted to imply a reference to Lebanese ethnicity in conjunction with a reference to adherence to Islam. 142 If the references by Mr Jones were targeting Lebanese Muslims as a group, this must be inferred from the context in which the comments were made, that is, the series of broadcasts concerning Sheik Faiz Mohammed's speech. 143 In picking up the story throughout his 26 April programme, it was clearly of significance to Mr Jones that Sheik Faiz Mohammed was of Lebanese ancestry as he repeated ten times that, although he had been born in Sydney, his parents were Lebanese. On 27 April, Mr Jones, while continuing to refer to "Muslims", did not refer in any substantial way to their ethnic origins. On the other hand, however, it was on that day that he invited Mr Trad, whom he identified with Lebanese Muslims, onto his show. On 28 April, Mr Jones made extensive references to Lebanese Muslims and again on 29 April. 144 Expert evidence was given for the applicant by Professor Humphrey and Dr Celermajer on the subject of the meanings to be attached to the term "Muslims" used by Mr Jones during the broadcasts. Mr Jones and 2GB take issue with much of that evidence and object to one of the reports presented. We accept that "the court does not abdicate its responsibility to an expert; an expert's opinion cannot be determinative, particularly in relation to ultimate facts": Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [60]. In this case, the tests to be applied are objective and relate to what meanings an ordinary, reasonable listener would give to the broadcasts. Ultimately, when the evidence is considered closely, we consider that the appropriate approach is to give little or no weight to those expert reports and to allow the transcripts to speak for themselves. 145 In our view, an inference is available that Mr Jones, when he used the words "Muslim" or "Muslims" in these broadcasts possibly had in mind Lebanese Muslims rather than Muslims of other nationalities or ethnic backgrounds. When referring to the nationality or ethnic backgrounds of the Muslims about whom he was commenting he only ever mentioned Lebanese or Lebanese-Australian Muslims. Some of his listeners mentioned other nationalities, such as Turkish or Egyptian, during calls or emails quoted by Mr Jones but he did not. The excerpts from the transcripts demonstrate this. 146 The inference that Mr Jones was speaking about Lebanese Muslims when he used the term "Muslims" arises principally from his conflation of the two subjects of his week-long campaign: Sheik Faiz Mohammed's speech and the anti-social behaviour of the "car hoons". A fair reading of the transcripts suggests that he saw the two things as different aspects of the same problem, namely a "repugnant clash of cultures", those cultures being the "Australian" (or, more accurately, the Anglo-Australian dominant culture) and the Lebanese Muslim culture. This was apparent when he spoke to Mr Michael Gallagher on 28 April and asked, "So how are we going to deal with this gang problem, this Lebanese Muslim problem, the hoon problems (emphasis added)?" 147 On 27 April, Mr Jones called on Mr Trad, as a leader of the Lebanese Muslim Association, to explain Sheik Faiz Mohammed's behaviour. He denounced Sheik Faiz Mohammed as "sick" person "born in Sydney of Lebanese parents". The reference to Sheik Faiz Mohammed being born of Lebanese parents in Sydney and addressing a large crowd in Bankstown Town Hall suggests that Mr Jones had a particular concern with Lebanese Muslims. It is a matter of common knowledge that many people of Lebanese ethnic origin reside in the Bankstown district. 148 On 28 April, in conversation with his listener 'Ellen', Mr Jones berated Mr Trad in absentio for failing to control Lebanese Muslim "car hoons". The constant references to "Lebanese", "Muslims" and "Lebanese Muslims" in the context of the joint campaigns being run by Mr Jones during this week suggests that he tended to use the terms interchangeably. 149 On 29 April, while Mr Jones himself used the terms "Lebanese Muslims" and "Muslims" and "Lebanese" far less frequently than on previous days, the conflation of the concepts was continued by his listeners and accepted as a given state of affairs by Mr Jones. For example, during the third episode, his caller 'Bill' referred to a Lebanese neighbour of his in the context of the discussion about "car hoons". To his previous caller, Mr Jones had called them "Muslim teenagers". 'Bill' was apparently concerned about the multicultural identities of his Lebanese neighbours and connected the behaviour of the "car hoons" with the problem of assimilating his neighbours. Responding to 'Bill', Mr Jones referred broadly to "these people" who had to meet "certain standards". 150 On the same day, in the third episode also, Mr Jones discussed the problem of anti-social behaviour with a listener 'Charlie'. Having previously used the phrase "the Muslim leadership" or the "Lebanese Muslim" leadership to denominate the leadership group in default , Mr Jones now used the term "the Lebanese Australian leadership": What we are saying is where are the Lebanese Australian leadership standing up to these people and saying, "Listen, you're not part of us and we want the full force of the law to take charge"? We want to hear from these people. 151 This is a further demonstration that Mr Jones's campaigns during that week were focussed on a particular group, the Lebanese Muslims. 152 Other examples can be found in the broadcast of 29 April. The most notable, perhaps, being his extraordinary editorial comment in the introduction to the interview with Mr Schuberg extracted above. It is worthy of note that Mr Jones himself gave no evidence at the hearing and no explanation of his absence has been tendered. In a case of this kind it would have been reasonable to expect that he would have given evidence. It is, therefore, reasonable to draw a conclusion that his evidence would not have been of assistance either to him or to 2GB had he done so. 153 Nevertheless, the broadcasts speak for themselves. While it is clear that in relation to the Schedule A broadcast Mr Jones is focussed on "Lebanese Muslims" as an ethno-religious group, the evidence in relation to the Schedule B broadcasts is ambiguous. In our view, it is more likely than not that the ethnicity of the people being attacked by Mr Jones in those broadcasts was of relatively little significance in comparison with their religious faith and aspects of it that Mr Jones found offensive. Despite his demonstrated dislike of Lebanese Muslims, he placed little weight during his broadcasts concerning Sheik Faiz Mohammed's speech on anyone's ethnic background except the sheik's. 154 To make our approach transparent, we think that although Mr Jones conflated the two stories when he dealt with the "car hoons" issue, there cannot in fairness be a reverse effect. In other words, we do not think that we ought draw an inference from the fact that later in the week Mr Jones melded the two stories into a story about a "Lebanese Muslim" problem to make a finding that on 27 April, when he used the word "Muslim", he was using it as a synonym for "Lebanese Muslim". The fact that he used the phrase "Lebanese Muslims" freely when talking about "car hoons" suggests that he intended to refer to Lebanese Muslims when campaigning on the Sheik Faiz Mohammed story he is likely to have done so. 155 Apart from his experience on 27 April 2005, Mr Trad came in for further criticism from Mr Jones during the broadcasts about "car hoons". Mr Jones seemed to believe that Mr Trad, as a Lebanese Muslim leader, should be held somehow responsible for their anti-social behaviour. This, however, was not pleaded by Mr Trad in his Points of Claim and we take that matter no further. 156 We therefore conclude that, in relation to the Schedule B broadcasts pleaded, the ordinary, reasonable listener would have construed the group or groups referred to as the Muslim not Lebanese Muslim community, and that Mr Trad was targeted as a Muslim religious leader not a Lebanese Muslim leader. Were the broadcasts capable of inciting hatred or serious contempt? 157 Mr Trad must establish that the broadcasts were capable of inciting the ordinary reasonable listener to feel hatred towards or serious contempt for, Lebanese Muslims or Lebanese males. 158 As we noted at the outset, the test is an objective one. In Burns v Laws (No 2) [2007] NSWADT 47 at [111], the test was expressed this way: [W]ould the relevant 'public act' have had the effect of inciting, in the sense of urging or prompting, a hypothetical 'ordinary reasonable person' to experience one or more of the relevant reactions [on the relevant grounds]. 159 To "incite" is an ordinary English word undefined in the Act. The Macquarie Dictionary (online, viewed 24 October 2009) defines "incite" as "to urge on; stimulate or prompt to action. 160 For the purposes of the Act, what is required is that the relevant conduct has the capacity or tendency to incite others. It is not necessary to prove that any particular person was, in fact, so provoked: Burns v Law (No 2) at [93]-[113]; Dimozantos v The Queen (No2) (1993) 178 CLR 122 at 131. 161 On the other hand, conduct that merely conveys a person's hatred of, or serious contempt for, another person or a group is not of itself unlawful: Burns v Dye [2002] NSWADT 32 at [20], [62]. Freedom of expression, even of opinions repulsive to the general community or sections of it, is a right of all Australian citizens. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others. In considering whether conduct by a person has the relevantly inflammatory tendency the circumstances in which the conduct took place are as important as what was said or done: Burns v Radio 2UE Pty Ltd [2004] NSWADT 267. 162 It was argued for the respondents that with respect to the broadcasts an ordinary, reasonable listener would not have considered that they were being incited to hate or hold Lebanese Muslims or Lebanese people living in Sydney in serious contempt. 163 In advancing that argument, it was put to us by counsel for the respondents that we ought take into account "the nature of commercial broadcasting" and, in particular, "the nature of talk-back radio", as well as the significant public interest in the two issues raised by Mr Jones. We have done so. 164 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. We accept that debate and discussion about current affairs are the bread-and-butter of talk-back radio. We accept that talk-back broadcasters are advocates for causes, often of a populist nature. This is part of the rich texture of our media. The American writer David Foster Wallace described talk-back radio and the cultural identity of talk-back hosts in the United States in a way that seems apt to describe the type of show Mr Jones presents: And talk radio is very deliberately not part of … elite media… a large part of [the hosts'] on-air persona is that they are of and for their audience – the Little Guy… the talk show host's persona and appeal are deeply, totally populist… 1 "Host" in Consider the Lobster and other essays" Little, Brown & Co, New York 2006 p304. 165 Notwithstanding the peculiar qualities of talk-back radio, we have concluded that the Schedule A broadcast had the tendency or capacity to incite the ordinary, reasonable listener to hatred of, or serious contempt for, Lebanese Muslims and Lebanese males. 166 We note that, while the Schedule B broadcasts may have incited hatred or serious contempt of a group, the group in question was a religious group (Muslims), not an ethno-religious group and as such, Mr Jones's commentary and broadcasts are not caught by the Act. For this reason it is unnecessary to discuss the content of those broadcasts further. 167 We therefore turn to consider only the Schedule A broadcast. That said, because by 28 April the two stories had overlapped to a significant extent, it is relevant to consider some of what Mr Jones had been saying in respect of the Sheik Faiz Mohammed story when analysing the "car hoons" story. 168 In considering whether Mr Jones incited the reasonable listener to hatred of, Lebanese Muslims or Lebanese males the Tribunal is entitled to take into account a number of matters. 169 First, it is a matter of common knowledge that Mr Jones is a high-profile figure in the community. Before becoming a broadcaster, he was already famous as a sports coach. His rise in the broadcasting business is well-known to have been spectacular and his continuing success and influence has been the subject of media commentary for at least the past two decades or so. Because of his position, his opinions carry weight. 170 Second, as his broadcasts in the week in question demonstrate, Mr Jones, in 2005, exercised considerable influence. His influence is not limited to high places: that he received on his own account hundreds of emails and letters during the week in question shows, if it needed to be shown, that he has an audience and a wide influence within the general public. A close reading of the transcripts shows that in many cases, listeners who were interviewed on radio by Mr Jones used phrases that he had used previously. For example, when describing Sheik Faiz Mohammed, a number of listeners who called in picked up the use of Mr Jones's "Hitler" analogy (something he himself had adopted from a listener). In short, he is an opinion leader with considerable influence within the community. 171 Third, it is obviously of significance, although not decisive, that Mr Jones's broadcasts were public acts. It is one thing for a person to express opinions in a private setting, another for that person to use his or her position to express those opinions to large numbers of strangers in a public setting, such as a radio broadcast. Evidence before the Tribunal from 2GB, some of which was commercial-in-confidence, proves what is, in any event well-known, that Mr Jones has a considerable audience reach and therefore considerable commercial value as a broadcaster. 172 Fourth, Mr Jones's technique in conducting interviews with, and reading correspondence received from, those listeners whose views he agrees with has both an encouraging and a stimulating effect. There appears to be a stimulatory effect working in both directions — Mr Jones feeds ideas to listeners who then call in and repeat back his own ideas. Occasionally, as the transcripts show, he picks up ideas from his listeners and correspondents and feeds them back into the discussion, generating further feedback the other way. In short, his very technique lends itself to incitement. That is, he stimulates, urges and agitates his listeners and correspondents with his emotive editorials and, unsurprisingly, often receives as feedback highly inflamed and inflammatory comment more or less echoing his provocative commentary. Numerous examples can be found in the extracts above and the transcripts in the appendix. 173 Fifth, the tone used by Mr Jones during his broadcasts to which we have listened is critical to our analysis. Throughout the broadcast period when speaking about the subjects relevant to the present matter, his tone combined, often simultaneously, elements of urgency, anxiety, anger, aggression and contempt. This was the case with the Schedule A broadcast. As pointed out by the respondents, it is not unusual for Mr Jones to also approach less controversial topics with vigour. That Mr Jones may use tone and expression to emphasise his views and persuade his audience about other topics does not detract from their power when used in respect of the Schedule A broadcast. 174 Sixth, in respect of the Schedule A broadcast the ordinary listener would have been left with no doubt that Mr Jones endorsed the views of his correspondent. Using his correspondent's heavily-loaded, highly emotive language, and backing it with his own indubitable authority, Mr Jones conveyed to his audience that he perceived the Lebanese Muslim community and Lebanese males as a threat — "a national security problem in the making". It is difficult to think of a metaphor more calculated to arouse fear and loathing in a listener's mind than to endorse a letter describing Lebanese Muslims (as Mr Jones insisted they were) as "vermin" who "in their vast numbers" were raping, pillaging and plundering the generous land that had offered them succour. One of the most contemptuous forms of commentary on another person or group is to describe them in sub-human terms, such as likening them to insects, vermin or animals. Although he did not initiate the use of the term "vermin", Mr Jones implicitly endorsed it by reading his correspondent's letter approvingly. On 28 April, in his introduction to his interview with Mr Jeff Schuberg, the transcript shows that he adopted the term himself to describe the "car hoons". From an objective point of view, it could only be regarded as an incitement to listeners to hate and hold the Lebanese Muslim community and Lebanese males in serious contempt. 175 Seventh, while the issue we are required to determine is whether the Schedule A broadcast had the capacity to incite, the broadcasts throughout the entire period of the complaint are also relevant although not determinative. Over the period of the broadcasts he emphasised repeatedly the terrifying nature of the threats posed by Sheik Faiz Mohammed, his followers, the "car hoons", at one point heightening the rhetoric to suggest these enemies were present in "vast numbers". Mr Jones repeatedly made unspecific complaints against "the car hoons" and the Lebanese Muslim community generally and offered comments such as "people have had an absolute gutful". Although the complaints were expressed this way, when combined with frequent denunciations of government and police inaction, the implication appeared to be that populist action may be required to address the issue. In a conversation with 'Usel', who offered to take vigilante action against the "car hoons", Mr Jones, while not expressly endorsing this approach, emphasised that "the police don't seem to be able to find them" and that "police hands are tied". (See also the comments Mr Jones made on 29 April 2005 to caller 'Steve' at [111] above.) This theme was consistent with the closing lines of the Schedule A broadcast: 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. 176 When talking with Mr Michael Gallagher, Opposition shadow Minister for Police, Mr Jones conflated a number of issues suggesting that they were aspects of the same problem: "So how are we going to deal with this gang problem, this Lebanese Muslim problem, the hoon problems? What do we do?" he asked Mr Gallagher. Mr Jones seems to have considered that the ethnicity of the "car hoons" was integral to their anti-social behaviour. At one point he commented to his listeners that the "hoons" had "admitted" being Lebanese as though this, in itself, was some sort of criminal trait or characteristic. It is not surprising, then, that he received emails from apparently alarmed Lebanese Muslim correspondents keen to distance themselves from the "hoons" and to point out that the "hoons" were not representative of the wider Lebanese Muslim community. 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: … 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… 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. 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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.