Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49

CITATION: Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

APPLICANT Sam Ekermawi PARTIES: RESPONDENT Harbour Radio Pty Ltd trading as 2GB Radio

FILE NUMBER: 061083

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 8 September 2007

DATE OF DECISION: 7 February 2008

BEFORE: Grotte E - Judicial Member

CATCHWORDS: Leave to re-open case

MATTER FOR DECISION: Preliminary matter

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

CASES CITED: Minister of Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597

APPLICANT In person REPRESENTATION: RESPONDENT In person

ORDERS: Mr Ekermawi's complaint of racial vilification against Harbour Radio Pty Ltd trading as 2GB Radio is revived.

REASONS FOR DECISION The Complaint to the Anti Discrimination Board 1 On 26 July 2005 Sam Ekermawi lodged a complaint with the Anti Discrimination Board (ADB) alleging racial vilification by Harbour Radio Pty Ltd trading as 2GB Radio. 2 Mr Ekermawi claimed that on 21 July 2005, 22 July 2005 and 25 July 2005, 2GB Radio attacked Muslims. He claimed that on 21 July 2005 at 9:30am the radio commentator stated "there is a fight between Moslems and Christians and that Moslems are unable to live within Australian communities". Mr Ekermawi considered the commentator's comments were offensive and incited hatred. Mr Ekermawi stated that many "phone calls followed and the commentator agreed to what the callers have said". Mr Ekermawi stated that comments such as "the Moslems should be deported as they don't fit into the Australian communities for this is a Christian country." 3 Mr Ekermawi stated that one caller asked for the name and address of a previous Muslim caller so that this person "would take his mates and do him in". Mr Ekermawi claimed a Muslim caller asked the commentator whether he had read the books the commentator was "inciting his listeners about" and the commentator replied that he would not read "that garbage". 4 Mr Ekermawi claimed, "the commentator usually encouraged violence against Muslims, saying they are bad people and follow a bad religion and then suddenly he would say not all Moslems are bad". 5 Mr Ekermawi claimed that "on the afternoon of the 21 and just about all day 22 July 2005 the saga continued with an onslaught of Islamic hatred". Mr Ekermawi claimed the commentator referred to the "story of three brothers who raped a girl about three years ago" and he referred to them as "Afghani Moslems". 6 Mr Ekermawi claimed these were examples of 2GB inciting hatred against Muslims and vilifying their religion. He claimed that about 10:30 am on 25 July 2005 "2GB played the song 'My Australia' after some very poisonous propaganda". 7 Mr Ekermawi claimed the Arabic/Islamic community has been identified as one of the four most vilified groups in Australia and that the forms of vilification experienced by that group vary in both nature and degree, from relatively isolated incidents to more subtle and entrenched forms of systemic and institutionalised racism. 8 On 9 August the ADB wrote to 2GB Radio requesting a copy of the relevant recordings of the broadcasts nominated by Mr Ekermawi. On 29 August 2005 Ms Merryn Vincent, Chief Operating Officer of 2GB wrote to the ADB stating "I have reviewed the programs referred to and am unable to identify any material which may be the matters complained of." 9 The audio copies of the nominated programs were received and transcribed by the ADB. The transcripts were forwarded to Mr Ekermawi. He was asked if these were the ones referred to in his complaint. 10 On 17 October 2005 Mr Ekermawi wrote to the ADB stating that the transcribed broadcasts were not the ones the subject of his complaint. 11 On 27 October 2005 the ADB wrote to Mr Ekermawi stating that 2GB had provided the broadcasts nominated by him. He was asked to provide more accurate times and dates so that the correct broadcasts could be examined. 12 On 2 November 2005 Mr Ekermawi wrote to the ADB confirming the details already provided as being correct and maintaining that 2GB was deliberately misleading the Board by providing wrong information. 13 On 6 September 2006 the ADB declined Mr Ekermawi's complaint stating that it was lacking in substance because there was insufficient information to support his complaint. According to the ADB none of the broadcast recordings relating to the dates and times provided by Mr Ekermawi contained any of the statements complained of by him. The ADB also expressed the view that there was no evidence to support the claim that 2GB had provided incorrect recordings or was deliberately trying to mislead the ADB with respect to the content of the recordings. The complaint of racial vilification was therefore declined. Complaint to the Tribunal 14 At Mr Ekermawi's request his complaint was referred to the Equal Opportunity Division of this Tribunal. The complaint could only proceed if the Tribunal granted leave for it to proceed because it had been declined by the President of the ADB for lacking in substance. Leave was granted by the Tribunal on 8 November 2006 and the matter was listed for a case conference on 31 January 2007. 15 There is a handwritten note on the leave application result sheet, which states "ADB did not transcribe full version of CDs. Mr E transcribed them and they contain the material he is complaining about". Another note on the same result sheet states the tapes were provided to the Respondent's legal representative who would return them in 48 hours. The matter was also listed for a mediation on 7 December 2006. It appears from the Tribunal file that this date was later vacated and the matter re-listed for 10 January 2007. This appears to be related to mediator availability. 16 The mediation to be held on 10 January 2006 was adjourned at the request of the parties. There is a note on the Tribunal file dated 10 January 2007 which states that the Applicant's "treatment to end by 15 July 2007". 17 The Tribunal appears to have listed the matter for a case conference on 20 June 2007. The parties were notified of this. In a letter from the Tribunal to Mr Ekermawi dated 14 February 2007, Mr Ekermawi was asked to advise the Tribunal in writing and give reasons if he was unable to participate in that case conference. There is no response to this letter on the Tribunal file. 18 Mr Ekermawi failed to appear at the case conference on 20 June 2007. The Respondent was represented at the case conference by its Chief Operating Officer. On that date a Tribunal staff member tried to contact the Applicant on his mobile telephone number. The person who answered the telephone call told the staff member that Mr Ekermawi was overseas with no known date of return. The matter was listed for dismissal on 18 July 2007 and Mr Ekermawi was notified of the date and he was offered an opportunity to confirm in writing whether the complaint was ready to be dismissed. 19 Mr Ekermawi failed to appear at the Tribunal on 18 July 2007 and the complaint was dismissed pursuant to section 107 of the Anti Discrimination Act 1977 which confers on the Tribunal the power to dismiss proceedings before it if it is satisfied the proceedings are subject to a want of prosecution or have been abandoned. 20 On 29 July 2007 Mr Ekermawi wrote to the Tribunal stating that although he had been aware of the case conference on 20 June 2007, he had not been aware that it was listed for dismissal on 18 July 2007. He also enclosed a copy of a letter he claims he sent to the Tribunal dated 2 February 2007, which sets out his request that any further hearing be listed after 15 July 2007. There is no copy of this letter on the Tribunal file and no record that any such letter was received by the Tribunal. Mr Ekermawi also stated that at the mediation conference in January 2007 it had been agreed between the parties that the next case conference would be held after 15 July 2007 after his return from overseas on 22 July 2007. He claimed 2GB was dishonest in not informing the Tribunal of this agreement. 21 It is noted that although the mediator's note refers to the date "15 July 2007" there is nothing to indicate that Mr Ekermawi would be overseas until 22 July 2007 nor that the case conference should be after that date. The date only refers to the time his treatment would be ending. Submissions 22 Submissions were sought from both Mr Ekermawi and the Respondent on the issue of whether the complaint should be revived. 23 Mr Ekermawi submitted that it is in the interests of justice to revive his complaint because he was out of the country at the time of the relevant case conferences and, in any event, 2GB was aware of the agreement that the matter should not be listed until after 15 July 2007 and because his complaint has substance. 24 2GB submitted that the mediation in January 2007 was adjourned in part to enable 2GB to review two other complaints made by Mr Ekermawi so that all matters could be resolved at the same time. 2GB agreed that Mr Ekermawi requested the mediation also be adjourned to a date after 15 July 2007 due to his ill health. 2GB submitted that Mr Ekermawi's complaint should not be re-opened "given the vexation and inconvenience that has been caused by his complaints". 2GB submitted that Mr Ekermawi has made two other complaints to the ADB and none of these complaints have been found to have any substance by the ADB. It was submitted in the absence of any apparent error the decision of the ADB should be final. Reasons 25 This Tribunal is a statutory Tribunal. It is constituted by the Administrative Decisions Tribunal Act 1997 (ADT Act), which defines its jurisdiction to conduct merits reviews of administrative decisions and also, amongst other things, determine civil claims in the Equal Opportunity Division of the Tribunal. The ADT Act not only establishes the Tribunal but it also sets out its functions and powers. The Tribunal sitting in the Equal Opportunity Division is also conferred powers by the Anti Discrimination Act 1977 (AD Act). 26 The submission made on behalf of 2GB that the decision of the ADB should be final in the absence of any error is misconceived. Section 96(1) of the AD Act allows a complaint which has been declined by the President of the ADB pursuant to section 92(1) to be referred to the Tribunal and to be the subject of proceedings in the Tribunal if leave is granted by the Tribunal to do so. Such leave was granted in this case. The fact that the President of the ADB declined Mr Ekermawi's complaint on the ground that it lacked substance is insufficient reason not to revive his complaint. The Deputy President of the Tribunal considered the complaint had sufficient merit to grant leave for it to be the subject of proceedings in the Tribunal. 27 The real question for the Tribunal is whether the decision to dismiss made by the Tribunal was properly made and whether the power to dismiss conferred by the legislation governing the Tribunal was properly exercised. 28 The Tribunal exercised its power to dismiss the complaint pursuant to section 107 of the AD Act because it was satisfied at the time that the proceedings were subject to a want of prosecution or that the proceedings had been abandoned. The information available to the Tribunal from its file was limited and it appeared that Mr Ekermawi had simply failed to appear without proper explanation. He had been notified of the case conference date. An attempt was made to contact him on 20 June 2007and the Tribunal was informed that Mr Ekermawi was overseas with no known date of return. He was provided with a further opportunity to appear but failed again to do so. The Tribunal does not have on its file the letter Mr Ekermawi claims he sent on 2 February 2007 requesting that any case conference be listed after 15 July 2007. However this appears to have been information known to the Respondent at the relevant time as conceded in it submissions, but the Respondent did not choose to share this information with the Tribunal. 29 It is the Tribunal's view that the decision to dismiss the complaint on the grounds set out in section 107(1)(b) and (c) was based on an erroneous assumption. Mr Ekermawi did not abandon his complaint nor is his complaint the subject of a want of prosecution. 30 The decision made in this matter was not a decision on a substantial matter but was of a procedural nature. It is an administrative decision. There is no express power in either the AD Act or the ADT Act enabling the Tribunal to reconsider one of its own administrative decisions. Similarly, there is no express or implied prohibition on doing so. Interestingly, the AD Act confers on the President of the ADB the power to revive a complaint if the President is satisfied that the complainant wishes to pursue the complaint in circumstances where it appeared to the President that the complainant had abandoned the complaint. No such similar provision is available to the Tribunal. 31 However His Honour Chief Justice Gleeson of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 20 CLR 597 stated "There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised is necessarily spent". He also stated that the finality of decision making is a powerful consideration and the general rule is that once a Tribunal has reached a decision, the decision cannot be revisited because the Tribunal has changed its mind or because there has been a change in circumstances. Despite this statement of the general principle, His Honour noted that "circumstances can arise [as they did in the case before the High Court in Bhardwaj's case] where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness." 32 The Tribunal in the present matter failed to discharge its functions properly because it did not have all of the relevant information necessary to exercise its function properly. It believed incorrectly that Mr Ekermawi did not wish to pursue his complaint. This is clearly not true. In making the decision it did, the Tribunal has denied Mr Ekermawi procedural fairness, which is inconsistent with the statutory requirements governing the Tribunal set out in section 73 of the ADT Act. The Tribunal's decision to dismiss Mr Ekermawi's complaint is a nullity and in the interests of justice, Mr Ekermawi's complaint should be revived. Order 33 Mr Ekermawi's complaint of racial vilification against Harbour Radio Pty Ltd trading as 2GB Radio is revived.