Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 Hearing dates: 23, 24 August 2010 and 14 October 2010 Decision date: 27 April 2011 Jurisdiction: Appeal Panel - Internal Before: R Madgwick, Deputy President R Perrignon, Judicial member E Hayes, Non -Judicial member Decision: 1.The parties are to file and serve within 14 days any written submissions (not exceeding 12 pages in length) as to whether the Appeal Panel should depart from the reasoning expressed in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 and within 21 days any reply (not exceeding three pages in length) to the opposing party's submission. 2.The parties are to file and serve within 14 days any written submissions (not exceeding five pages in length) as to extending the appeals or either of them to the merits in the light of our reasons, and within 21 days any reply (not exceeding two pages in length) to the opposing party's submission. 3.The case is adjourned to a date to be fixed for further consideration. Catchwords: Anti-discrimination law - racial vilification - meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' - whether the term 'Muslim' used in broadcasts should have been understood to fall within the statutory concept of a race. Anti-discrimination law - racial vilification - whether Administrative Decisions Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error. Anti-discrimination law - racial vilification - meaning "public act" in s20B Anti-Discrimination Act (NSW) - both presenter of talkback radio show as well as licensed broadcaster "broadcast" Anti-discrimination law - racial vilification - necessary to distinguish between the 'public acts' of the presenter and the licensed broadcaster respectively, since different defences might be available to each Anti-discrimination law - racial vilification - whether Tribunal failed to consider the actual material complained of objectively and impermissibly misused merely contextual material to enquire as to speaker's subjective state of mind Anti-discrimination law - racial vilification - whether Tribunal erred by failure to identify the actual audience to whom the material was directed Anti-discrimination law - racial vilification - whether s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of Anti-discrimination law - racial vilification - meaning of 'fair report' in s 20C(2)(a) Anti-discrimination law - racial vilification - meaning of 'good faith' for the purposes of 20C(2)(c) Anti-discrimination law - racial vilification - Whether the Tribunal erred in law by awarding successful complainant damages for single short broadcast Legislation Cited: Anti-Discrimination Act Administrative Decisions Tribunal Act 1977 Defamation Act 2005 Cases Cited: Patten v NSW [1997] EOT(NSW) 90-91 Burns v Radio 2UE Sydney Pty Limited [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 Mandla v Lee [1982] UKHL 7 Category: Principal judgment Parties: Alan Jones (Appellant/Cross Respondent) Harbour Radio Pty Limited (Appellant/Cross Respondent) Keysar Trad (Respondent/Cross Appellant) Representation: K Eastman (Appellant/Cross Respondent) K Nomchong (Respondent/Cross Appellant) Baker McKenzie (Appellant/Cross Respondent) Turner Freeman Lawyers (Respondent/Cross Appellant) File Number(s): 109004, 109005 Decision under appeal Citation: Trad v Jones & anor (No 3) [2009] NSWADT 318 Date of Decision: 2009-12-21 00:00:00 Before: Equal Opportunity Division File Number(s): 071036 Reasons for Decision Cross-appeals about a finding and allegations of hate speech 1These are cross-appeals from a decision of the Tribunal in its Equal Opportunity Division which found that Mr Jones and Harbour Radio had incited hatred, serious contempt and severe ridicule of Lebanese Muslims in a radio broadcast on 28 April 2005 and awarded him damages of $10,000. The Tribunal rejected claims that other broadcasts on 27 and 28 April had targeted any ethno-religious group and were confined to attacks on Muslims as believers in Islam. 2Mr Trad is and was a controversial public figure often in the Sydney media seeking to defend perceived excesses by some Muslim clerics and speaking on other issues of concern to Muslims. Mr Trad was born in Lebanon, lives in Sydney with his family and is a practising Muslim. He was the President of the Lebanese Muslim Association which conducts a large and well-known mosque at Lakemba, near Bankstown. 3Mr Jones, also a controversial public figure, hosted a popular talkback radio show, as he still does. It featured his strongly stated opinions on public issues and frequently blunt treatment of interviewees and listeners who call or write in to him. Harbour Radio runs the radio station to which Mr Jones is attached and is the licensed broadcaster under the Commonwealth legislation regulating radio broadcasting in respect of 2GB, the relevant radio station. How the impugned broadcasts arose 4Many Lebanese Muslims live and lived in the Bankstown area. 5On 24 April 2005 Ms Miranda Devine, a newspaper columnist, wrote a story about a Muslim sheik, Faiz Mohammad, who had on 18 March 2005 at a public meeting at Bankstown Town Hall suggested that women who dressed as young women in Australia commonly do were themselves responsible if they were sexually assaulted. 6Mr Jones soon after came into possession of a tape recording of the sheik's remarks, which had been made in English. In broadcasts between 26th and 29th April, among other subjects, Mr Jones expressed his outrage at the sheik's statements and an apparent absence or tardiness of censure of the sheik by Muslims and in particular by their leaders such as, and including, Mr Trad. 7On 27th April a television current affairs show featured a story showing young men who self-identified as of Lebanese origins behaving on 24th April, the day before Anzac Day, in an alarming way in Hickson Road at The Rocks area of Sydney. They drove in an untoward manner, taunted police who attended as 'pigs', and mocked the Anzac traditions. The police did not arrest them. On and after 28 April Mr Jones commented, again in outraged tones, about this event, among other items. The broadcasts actually complained of 8In the ultimate statement of his points of claim, the broadcast material of which Mr Trad complained was divided into two categories, set out in 'Schedule A' and 'Schedule B'. 9Schedule A, relating to 28th April, which is relatively short, was in these terms: Mr 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 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 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. [emphasis added] 10The Schedule B broadcasts made on 27th and 28th April mainly dealt with reactions by Mr Jones and his listeners to the story of the sheik's offensive remarks. Those broadcasts, along with the Schedule A material are marked in italics in the Appendix to these reasons. 11Mr Jones and Harbour without objection also placed before the Tribunal records of the entirety of Mr Jones' programs on the days in question. Transcripts of all the segments of the programs that deal with the relevant subject matters run to 122 pages. There was much other, more voluminous, material: '[a]part 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': Tribunal Decision para.116 12The Tribunal summarised the relevant features of the broadcasts that it regarded as having the 'greatest evidentiary significance' in paras 26 to 113 inclusive of its reasons. An edited version of that summary appears as the Appendix to this decision. The segments complained of by Mr Trad in his particulars are identified in bold type. There was no serious complaint on appeal as to the general accuracy of that summary or selection of the material quoted in it, though strong complaint was made of the relevance and fairness of comments apparently reflecting on Mr Jones' subjective states of mind - that matter is further discussed below. The NSW legislative prohibition on 'hate speech' 13Mr Trad complained to the Anti-Discrimination Board about aspects of some of these broadcasts, alleging that Mr Jones and Harbour had, contrary to s20C of the Anti-Discrimination Act (the 'AD Act') Act, incited hatred, serious contempt and/or severe ridicule of Lebanese Muslims and/or Muslims generally. In time his allegations were heard by the Tribunal. 14The relevant provisions of that Act are ss 20C, 20B and the definition of 'race' in s4. Mr Jones and Harbour sought to draw comfort from the absence of the term 'vilification'' in s4A. It was also suggested that s4(3) could assist Mr Trad's case. Those provisions state: 20C (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 20B In this Division, "public act" includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) ..., and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 4 (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin. (3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race 4A If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. The decision at first instance 15In its decision the Tribunal upheld Mr Trad's complaint about the Schedule A material and awarded him damages of $10,000 on the basis that it incited hatred etc. of Lebanese Muslims, admitted by Mr Jones and Harbour to be a group of 'ethno-religious origin', on the ground of their 'race'. The sting was obviously mainly in the words emphasized in the extract set out above. The Tribunal directed that the parties confer as to the form of an apology it considered that Mr Jones and Harbour should be ordered to make. The Tribunal further directed that Harbour Radio should conduct a 'critical review of its policies and practices on racial vilification' and staff training in such matters. 16However the Tribunal rejected Mr Trad's complaint about the matter in Schedule B, holding that it had not gone beyond criticising Muslims seen only as religious observers, and therefore finding it unnecessary to determine whether Schedule B amounted to incitement of hatred etc. or whether the criticisms were on the ground of race. The appeals 17Under the Administrative Decisions Tribunal Act 1977 ('ADT Act') an appeal lies as of right to an Appeal Panel of the Tribunal on a question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: ADT Act ss 112-3. Both parties asked that their respective appeal should be so extended. The broadcasters' appeal 18Mr Jones and Harbour appeal on questions of law against the Schedule A conclusions. They say the questions of law are in substance: a) Whether Mr Jones may be properly said to have engaged in a 'public act' when it was Harbour which was the licensed broadcaster and controlled the equipment which enabled the transmission of the material complained of to the public. (Ground 1 in the Jones-Harbour Notice of Appeal) b) Whether it was necessary for the Tribunal to distinguish between the 'public acts' of Mr Jones and Harbour respectively, since different defences might be available to each. (Also Ground 1) c) Whether it was procedurally unfair for the Tribunal to have referred to material on 29th April in its decision about Schedule A which was confined in particulars only as to 28th April. (Ground 2) d) Whether the Tribunal failed to consider the actual material complained of objectively and impermissibly misused the contextual material to enquire as to Mr Jones' subjective state of mind from time to time. (Grounds 3, 7 and 8) e) Whether the Tribunal erred by failure to identify the audience to whom the material was directed. (Ground 6) f) Whether the Tribunal erred by finding that s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of. (Ground 9) g) Whether various findings were not supported by evidence and/or were irrelevant. (Ground 10) h) Whether the Tribunal by some unwarranted findings manifested actual or ostensible bias against Mr Jones (Ground 11) i) Whether the Tribunal failed to consider the defences available to Harbour Radio as distinct from Mr Jones (Ground 13) j) Whether the Tribunal erred by construing 'fair report' in s 20C(2)(a) as referring to a reasonable report rather than an accurate one (Ground 12) k) Whether the Tribunal erred by misapplying the test for 'good faith' for the purposes of 20C(2)(c) (Ground 14) l) Whether the Tribunal erred in law by awarding Mr Trad damages (Ground 15) m) Whether the Tribunal erred in law by making its direction as to an apology (Ground 16) n) Whether the Tribunal erred in law by making the order that Harbour review its policies and practices as to racial vilification (Ground 17) Mr Trad's appeal 19Mr Trad also appeals. He contests the rejection of his Schedule B complaints and asserts in substance that the following questions of law arise: o) Whether the previously received approach to the meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' is incorrect so that the term 'Muslim' used in the Schedule B broadcasts should have been understood to fall within the statutory concept of a race. p) Whether as to Schedule B the Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error. Consideration a) Whether Mr Jones may be properly said to have engaged in a 'public act' when it was Harbour which was the licensed broadcaster and controlled the equipment which enabled the transmission of the material complained of to the public. (Ground 1 in the Jones-Harbour Notice of Appeal) 20The gravamen of Ms Eastman's argument was that s 20B(a) 'is concerned with the form of communication, not the content for the purpose of identifying the person who did the public act... [Mr Jones' role was to provide content. [He] had no capacity to communicate the content to the public in his own right'. 21This cannot be sustained. Mr Jones clearly 'communicate[ed] to the public' by presenting his own words and those of his listeners for near-immediate radio broadcast transmission by Harbour. He intended, wished and it was in his interests that his material should reach as many people as possible. He did in fact have the capacity to communicate the content to the public by reason of his private company's contractual arrangements with Harbour. By consent these arrangements were accorded confidentiality for commercial reasons. He knew that the content he fed into the microphone would go to the public. Mr Jones was not for the purpose of the AD Act merely an accessory to Harbour's public acts. 22It is irrelevant, as the Tribunal indicated, that under Commonwealth laws Harbour was actually the party licensed to make the actual transmission or that 'broadcast' may have some technical meaning for the licensing legislation. Neither in s20B nor elsewhere in the Act or its context is there any indicator that the breadth of the meaning of the words 'communication' and 'broadcast' in ordinary usage should be constricted. On the contrary, an expansive meaning has been given to a 'public act' and the mischief that the s20C prohibition on public racial vilification is aimed at suggests that no narrow interpretation should be given to the statutory extensions of that term. 23While it is not determinative, a similar approach has long been taken by the Tribunal and its predecessor: Patten v NSW [1997] EOT(NSW) 90-91, Burns v Radio 2UE Sydney Pty Limited [2004] NSWADT 267. b) Whether it was necessary for the Tribunal to distinguish between the 'public acts' of Mr Jones and Harbour respectively, since different defences might be available to each. (Also Ground 1) 24While it is true enough that, practically speaking, Mr Jones and Harbour engaged as collaborators in the same public acts, as Ms Nomchong submitted for Mr Trad, the exact nature of what each did differed and might have made relevant different considerations in relation to the pleaded defences of fair report and reasonable, good faith discussion or debate. The Tribunal did not consider these differences and there was no separate consideration of the defences available to Mr Jones and Harbour. Among the consequences of that, Mr Jones would not benefit as a result of any defence of Harbour's succeeding. 25The significance of this lack of separate consideration lies only as to Harbour's defences. Whether there was any legal error that might have affected the result will be considered below in relation to the complaint about the lack of such separate consideration. c) Whether it was procedurally unfair for the Tribunal to have referred to material on 29th April in its decision about Schedule A which was confined and particularised only as to 28th April. (Ground 2) 26It was conceded that, as to the issue of reasonable, good faith discussion, all the material before the Tribunal was available for consideration. The high point of the suggestion that the Tribunal for other purposes unfairly took into account material from the 29th April program was what the Tribunal said at paras. 131-4: 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, 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. 27But this extract, which could mistakenly suggest that Mr Jones' own subjective state of mind was relevant to the question for objective determination, was immediately followed by these observations: 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. 28In other words, the correct, objective test was in fact applied. It seems likely that in paras 134-5 the Tribunal was trying to put itself by the radio of the ordinary reasonable listener. The Tribunal appears to have referred to the 29th April material only for an apt summary of what such a listener might have thought on hearing the Schedule A broadcast. In any case, it was not taken into account to supplement the objective meaning of Schedule A with what Mr Jones indicated was his subjective view on a later occasion. 29There was no unfairness and no legal error. d) Whether the Tribunal failed to consider the actual material complained of objectively and impermissibly misused the contextual material to enquire as to Mr Jones' subjective state of mind from time to time. (Grounds 3, 7 and 8) 30Mr Jones and Harbour ('the broadcasters') tendered the records of all the broadcasts (including matter having no connection with the sheik, Muslims, Lebanese or 'car hoons') in aid of the view that the Tribunal should listen to and interpret them as wholes (and a whole), particularly insofar as the broadcasts may have reported a third party. It was also their factual argument that the forensic condensation involved in considering only the parts of that material complained of and/or abstracted by the Tribunal tended to an unreal enlargement of the likely actual significance of the few items complained of out of the vast amount of broadcast material, as those items and that other material would have been heard by listeners. 31They say that, in resorting to matter outside that contained in the two Schedules relied on by Mr Trad, the Tribunal went beyond fair dealing with the contextual material: it discerned 'themes' pursued by Mr Jones, it 'editorialised' and drew adverse inferences about the meanings of words spoken and the intentions of their speakers. Counsel submitted that '[in] paras [29]-[113] the Tribunal appears to have undertaken a task of finding grounds for complaint rather than determining the complaint advanced by Mr [Trad]'. (Those paragraphs are reproduced in the Appendix to these reasons). Thereby also, counsel says, the Tribunal failed to look only at the likely effect, objectively ascertained, of the words broadcast on an ordinary, reasonable member of the listening audience. 32It is, as the broadcasters submitted, settled law that the intentions or motives of a putative inciter are not relevant to the objective assessment required by s20C: John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 at [24], Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12]. 33However, Mr Jones by his pleaded defences claimed, among other things, that in presenting to the public the Schedule A material (as well as the Schedule B matter) the broadcasts were made reasonably and in good faith, for purposes of discussion or debate about and expositions of the matters set out in [the broadcasts on 26, 27 and 28 April] and he was thereby exonerated by s20C(2)(c) from what might otherwise have been unlawful conduct. That defence was carefully and, in our view, correctly pleaded. 34s20C(2)(c) protects A public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter, 35That defence is a broad and generous one in the interests of the virtues of free speech. Had the words 'including discussion or debate about and expositions of any act or matter' not been included, it may well have been right, by application of the ejusdem generis principle, to construe 'other purposes in the public interest' as limited to purposes of the same kinds as 'academic, artistic, scientific or research purposes', that is to say, purposes of serious, intellectual kinds. However the concluding words indicate that 'other purposes in the public interest' are to be taken to include the purposes of discussion or debate about any act or matter, as well as expositions (that is, setting forth or explaining) of some subject. Thus words said for the purpose of discussion or debate about virtually any subject are deemed to be said for a purpose that is in the public interest. 36In order that the width of the subs (2) purposes might not denude the s20C(1) prohibition against public, racial vilification of scope for application, the legislature has insisted that the publication of what would otherwise be prohibited must be done 'reasonably and in good faith'. In the context of this legislation, which differs from that in some other jurisdictions, the Tribunal must give full force and effect to those concepts when considering their application. 37In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004), speaking of the Commonwealth racial vilification legislation, French J said: 78 There is a number of definitions of 'reasonable' in the Shorter Oxford English Dictionary. The relevant ones are: '3. Agreeable to reason; not irrational, absurd or ridiculous. 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.' The adverb 'reasonably' is defined as 'in a reasonable manner; sufficiently, fairly'. 79 There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable . It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and recognition of the two competing values that are protected by those sections. 80 ... An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise 'inferior' to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to par (b) of s 18D. 81 The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done 'reasonably'. A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered 'reasonably'. 82 The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s 18D. (emphasis added). 38By way of broad analogy and for a possibly useful list of some of the kinds of matters that might be relevant to a consideration of whether an inciter of hatred, serious contempt or severe ridicule has nevertheless acted reasonably (not an intuitively easy concept), s30 of the Defamation Act 2005 may be instructive. It provides for a defence of qualified privilege for the publication of defamatory matter to a person if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. 39The section continues: (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5)... 40To qualify for s20C(2) protection, not only must the public act be done 'reasonably', it must be done 'in good faith'. There must be material before the Tribunal to show that it was. Mr Jones did not give evidence and the only material that might have shown that was the broadcasts themselves. 41The phrase 'in good faith' envisages honesty and sincerity of purpose, including as to observance of the law against public hate speech. There is a subjective and an objective aspect to it. It is more than just the absence of malice. Particularly in the absence of positive extrinsic evidence from which such honesty and sincerity might be inferred, various matters might prevent a finding of good faith, including apparent recklessness as to the serious harm likely to be caused. In Bropho French J said of 'good faith': 95 ... s 18D ... requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict . It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin. 96 It follows from the preceding discussion that good faith may be tested both subjectively and objectively . Want of subjective good faith, i.e. seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively .... 101 Generally speaking the absence of subjective good faith, e.g. dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes. But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required. In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section. 102 A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith. (emphasis added) 42Where, as here, the statute outlaws not public acts that merely 'offend, insult, humiliate or intimidate' people by reason of their race, but only acts that incite actual 'hatred towards, serious contempt for, or severe ridicule of' a person or group on the ground of their race, it is even more important that the Tribunal give effect to the principle, as French J put it, that ... good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively. 43The present point of all this is that a shrewd review of all the contextual material was perfectly appropriate for the purpose of investigating the validity of Mr Jones' defence, and that a wide variety of matters including Mr Jones' own apparent states of mind might be relevant, as was properly conceded. 44The question to be answered is whether the Tribunal did in fact use its review thus properly undertaken and its criticisms of Mr Jones for legally mistaken purposes. 45As to the summary of the broadcasts, the Tribunal's remarks that might and did reflect adversely on Mr Jones, and the matter it reproduced that implied unbalanced and excessive overstatement by him, went to questions of his fairness and balance towards the Muslim, Lebanese Muslim or Lebanese people, leaders and callers, as well as Mr Trad personally, whose actions and inaction he and many of his other callers found wanting. The Tribunal itself does not appear overall to have lacked balance or been unfair to Mr Jones: it recorded conciliatory remarks, disavowals of concern about Lebanese people and Muslims who were not leaders, and a paean of praise for a young Muslim caller Ahmed that Mr Jones made in the later broadcasts. (A single occasion of legally excessive criticism of Mr Jones is dealt with below). 46However, later passages in the Tribunal's reasons for decision suggest that it may have confused the relevance of the material not included in the Schedules and in particular Schedule A. Under the heading 'Were the broadcasts capable of inciting hatred or serious contempt?' the Tribunal indicated it was 'entitled to take into account a number of matters' that it clearly found incriminatory. These included his public prominence, his capacity to influence listeners, his evident technique of provoking inflamed comment and his tone which 'combined, often simultaneously, elements of urgency, anxiety, anger, aggression and contempt' (para 172). 47In looking to judge the likely effects of the Schedule A material and its capacity to incite hatred etc., we see no error of law in the Tribunal having considered such matters. It is true that a person with a high public profile who is an influential opinion leader is in no worse position as to the legal right to freedom of speech than any other. However the potential for such a person's stated opinions or endorsements of others' remarks to influence the ordinary reasonable member of a more or less unremarkable audience may well be thought likely to be greater than that of some unknown plodder: people in the latter class are rarely sought for product endorsements, for example. The hypothetical listener may well have thought that Mr Jones was urging agreement with what he was saying or apparently endorsing although, had the same message been conveyed by an inarticulate and unknown person, the same conclusion may not have been drawn. The Tribunal had at para 158 correctly stated that the test was an objective one. 48The Tribunal did not, however, stop there. It continued: 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". ... 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. (emphasis added). 49The Tribunal ultimately answered the question it had posed to itself in para 158 ('Were the broadcasts capable of inciting hatred or serious contempt?') in para 178 in terms that were themselves legally unobjectionable. Para 177 needs to be understood in the light of that. 50It was indeed of no direct relevance to that answer whether Mr Jones' words 'throughout the broadcasts ... constituted an incitement to hold the Lebanese Muslim community in serious contempt'. However the forensic context is of importance. As we understand it, the principal factual arguments urged for Mr Jones were that the small Schedule A segment would tend to be lost for the hypothetical, ordinary, reasonable listener in among the vast amount of material of very different kinds that was broadcast by him; that what he said on 28th April and overall was not all one way to the detriment of Lebanese Australians, and that he was only complaining in Schedule A of the 'car hoons'' behaviour. The degree to which his other broadcasts highlighted for his listeners criticisms of Lebanese Australians generally, and the degree of virulence of those criticisms, could be relevant to all of those submissions. The weight to be given to those matters was a factual question for the Tribunal. 51The one area where Mr Jones has been able to point to a legally objectionable finding was the Tribunal's apparent suggestions (in para 175) that Mr Jones called for violence by way of populist action and (in paras 175 and 213) that he gave a gung-ho caller named Usel 'to believe that [Usel's] proposed 'vigilante' solution was a welcome suggestion and that this 'implied [Mr Jones'] partiality for a vigilante solution to the problem'. Under the Briginshaw principle such serious criticisms should not have been based on such a tenuous inference. 52But this occurred in the section of the decision headed, 'Were the broadcasts reasonable commentary?' Further, that aspect was but one among several reasons given by the Tribunal for a negative answer to its question, and the several reasons were in the character of strands in a rope of reasoning rather than links in a chain such that the invalidity of one strand would not invalidate the conclusion. 53Accordingly we do not accept that the Tribunal misinterpreted 'incites', incorrectly applied the objective test for that concept or took irrelevant material into account. e) Whether the Tribunal erred by failure to identify the audience to whom the material was directed. (Ground 6 54It is common ground that the identification and nature of the audience were essential matters. As Ms Eastman put it, the question is whether the words spoken were likely to incite 'the ordinary reasonable listener within that audience'. 55Counsel put the argument before us in this way: 60. At [130], the Tribunal referred to various formulations of the legal test to identify the audience but then failed to make any factual finding about the identity of the audience for the purpose of identifying the 'ordinary reasonable listener' for the purpose of the Schedule A broadcast. The Tribunal failed to refer to any of the evidence about the audience for the broadcasts for the purpose of making a finding about the ordinary reasonable listener in this audience. The Tribunal did not address the unchallenged evidence of Mr Thomas as to the nature of the audience (Exhibit R7 paragraphs 21 - 34). 61. At various places, the Tribunal refers to 'Mr Jones's audience' but does so without reference to the evidence about the audience or the composition of the audience: see [103], [106], [120], [125], [170], [171], [173], [174], [195], [197], [200], [220] and [223]. These references refer to the audience collectively rather than an 'ordinary reasonable listener' within the particular audience. 62. The evidence was directed to the features of a talk-back audience. While the Tribunal referred to the features of talk-back radio at [162] - [163] of the Decision, it failed to make findings about the ordinary reasonable listener in the particular audience. The Tribunal failed to address the evidence that the ordinary reasonable listener was a member of a talk-back audience, who understands and expects that the talk-back forum is one for discussion and debate. The ordinary reasonable listener in this audience expects that current affairs and issues in the public domain will be discussed. The ordinary reasonable listener in this audience wants to be both informed and entertained. The ordinary reasonable listener of a program broadcast by the Second Appellant expects the presenters (including the First Appellant) to express his opinion and that he will invite listeners to call in to express their opinions, on matters of interest. The ordinary reasonable listener of a program broadcast by the Second Appellant does not expect that the First Appellant will be a moderator of the debate. The ordinary reasonable listener would be used to the First Appellant's tone and style of presentation. 63. The Tribunal's failure to identify the ordinary reasonable listener of the particular audience meant that it erred in construing s 20C and could not then have made findings that the Schedule A broadcast could have incited the audience to serious contempt of Lebanese men. 56It is apparent from the general references given by counsel that the Tribunal found the audience to be large; 'within the general public'; used to Mr Jones approaching even less controversial topics with vigour; inclusive of at least hundreds of Lebanese Muslims, and inclusive of people far more extreme in their apparent antipathy to the Lebanese Muslim community than Mr Jones himself. 57When the Tribunal specifically came to deal with the broadcasters' arguments, it said: 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. 58It is true that the Tribunal did not refer to some known attributes of Mr Jones' probable audience. 59But the matter needs to be approached in a practical way. The only distinguishing attributes of Mr Jones' audience mentioned in argument before us but not referred to by the Tribunal were that there was a mild preponderance of women, that most listeners were at home, and that they were in the older reaches of the general population's age distribution. It was not suggested that a hypothetical ordinary reasonable listener from a population with those attributes or any of them would be likely to have any different comprehension or reaction to Mr Jones' words than a hypothetical ordinary reasonable person drawn from the population at large. Nor was there any evidence that might have sustained such an unlikely proposition. 60The real burden of the broadcasters' argument was that the significant likely characteristics of Mr Jones' actual audience were its liking, or at least being attuned to, the methods and common practices of talkback radio generally and of Mr Jones' program in particular, and its desire to be entertained as well as to be informed. Manifestly the Tribunal took this submission into account and weighed it. 61No legal error with a reasonably possible effect on the outcome has been shown. f) Whether the Tribunal erred by finding that s20C(1) is satisfied if 'race' was merely a reason rather than the reason for the act complained of. (Ground 9) 62There were two aspects to the submissions. The first was that because of the expressio unius principle and the terms of s4A, 'on the ground of' in s20C(1) should be read as meaning on the sole ground, that is to say 'the' ground, of race. The second was that the Tribunal confused the issue of identification of the person or group putatively vilified with the issue of whether their race was the ground on which they were vilified. 63The first proposition must be rejected, on a consideration of the mischief to which s20C was directed. The section proscribes very serious racist hate speech including what are among the most appalling kinds of words human beings can utter, and conduct that in living memory and current international example has led people down roads to the most horrific cruelties and suffering. Speech or writing that may incite hatred or contempt of a group may commonly occur in the context of observations on some subject connected with the group that may itself be a perfectly legitimate matter for discussion: the reference in s20C(2)(c) to 'academic, artistic, scientific or research purposes' clearly indicates as much. Particularly having regard to the width of the additional defence relating to 'discussion or debate about and expositions of any act or matter' (which we have already explained), the suggested construction would rob s20C of what may confidently imputed to be the legislature's view of its proper, broad scope. It would be, to put the matter with extreme understatement, unlikely that the legislature would have wished that a perpetrator of racist hate speech should escape s20C merely because he or she could point to another and subsidiary reason for the hate speech than racism. 64Trite law would indicate that it is implicit in the notion of 'on the ground of ...race' that race should be a real, operative and substantial ground of the vilification. No other limitation is necessary or warranted. However in Veloskey & Anor -v- Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 an Appeal Panel said: 30 [The reactions of hatred etc.] must be aroused because of the race of the person or group of persons, said to be vilified by the public act. Race, in these circumstances, must be "a substantially contributing factor" to the incitement. It is not sufficient if there are other, equally consistent, grounds for the incitement, given that s 4A of the AD Act does not apply to the vilification provisions: Kazak v John Fairfax Publications Ltd; Western Aboriginal Legal Service Ltd v Jones & Anor.; Burns v Dye. 65It is perhaps open to doubt whether in s4A 'discrimination' does not include racial vilification (what is the latter but a species of discrimination?) and whether if race and another ground equally contribute that is not enough, but those questions need not be considered further here. 66In any case the expressio unius principle is not the strongest of reeds. It does not here have the strength of the contextual considerations mentioned. 67Our approach is consistent with the later formulation in Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 as the Tribunal here summarised it: 182 In Nicholls & Nicholls ... 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) 68The second part of the submission, that the Tribunal confused the issue of identification of the person or group putatively vilified with the issue of whether their race was the ground on which they were vilified, must also be rejected. The suggestion was that because the Tribunal found (at para 136) that the 'trigger' for [Schedule A] was "the hoons"', and that it vilified only Lebanese males the vilification could not have been on the ground of their race. 69The passages complained of were under the heading 'Who or what group was the target of the broadcasts?' The Tribunal said: 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. ... 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. There was no confusion of concepts and no misapplication of the causal test. While the 'hoons' were indeed the trigger for the reading of the letter and its being written, the letter-writer went on to a broadside against Lebanese males generally. Mr Jones would clearly have been understood by the hypothetical ordinary listener to have endorsed this: the sound recording of the segment confirms this. Further, by his (mistaken) reference to Lebanese Muslims, Mr Jones would have been taken to have also focussed the attack against them. In a later section of its reasons, headed Was the incitement 'on the ground of' race? the Tribunal then said: 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... 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. ... 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. ... ... 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. 70These latter extracts indicate the Tribunal's approach to the question under consideration. No legal error is apparent in it. g) Whether various findings were not supported by evidence and/or were irrelevant. (Ground 10) 71The submission was that the following findings were not open on the evidence: (a) the First Appellant's 'very technique' lends itself to incitement [172]; (b) the First Appellant's tone was of urgency, anxiety, anger, aggression and contempt [173]; (c) the First Appellant called for violence by way of populist action [175]; and (d) the First Appellant was implicitly referring to 'car hoons' as terrorists and was thereby engendering fear based on terrorism [216]. 72It was also suggested that there was no evidence before the Tribunal to support the finding (at para 170) that Mr Jones was 'an opinion leader directed with considerable influence in the community' 73As earlier indicated we agree as to (c), but consider that the error was not of a character to invalidate the result reached by the Tribunal. 74Findings (a)-(b) and (d) were very much matters of impression and questions of fact. We do not agree that there was no evidence to sustain them or that no reasonable person could have come to those conclusions. The Tribunal had the record of all the broadcasts touching on the subject matters raised in Schedules A and B. They provide the evidence themselves. 75As to Mr Jones' influence, the Tribunal said: 170 ... 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. 76The Tribunal could hardly have spelled out any more clearly a) that there was evidence to support its conclusion, and b) what that evidence was. 77In any case it is a matter of notoriety in Sydney that Mr Jones has for a number of years been an influential opinion leader. It would bring the law into disrepute if the case had proceeded on any other basis. The Tribunal was not bound by the rules of evidence, but if it were, s144 of the Evidence Act 1995 would likely come into play. It provides: (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 78It was not suggested that Mr Jones and Harbour did not have every chance to contest the view that Mr Jones' opinions and endorsements of others' were likely to carry weight. h) Whether the Tribunal by some unwarranted findings manifested actual or ostensible bias against Mr Jones (Ground 11) 79The only legally unwarranted finding related to the suggestion that Mr Jones was at least complaisant about the prospect of vigilante action in relation to misbehaviour by young Lebanese men. 80In order to consider this suggestion of bias, it has been necessary to form some impression of the factual bases for the other findings. It is enough to say that we feel no disquiet in a factual sense about those various criticisms of Mr Jones. The strong impression one has is that there was a heavy preponderance of unfairness and a lack of reasonable balance exhibited by Mr Jones in his own comments and in his express and implied endorsements of callers and correspondents, some of them even less fair and balanced, notwithstanding that in the later parts of the broadcasts he did, if inconsistently, go some distance to making amends. 81There is nothing in the Tribunal's reasons on these scores that betokens actual bias against Mr Jones. Nor would a reasonable observer who knew something about the legal system and the Tribunal's role have any reasonable suspicion that the Tribunal members were unable to bring to bear an unbiased set of minds in considering the case. 82As to the alleged softness towards vigilantism, there was some material to found a possible inference of the kind made by the Tribunal, tenuous and unreliable though we consider that inference to be. The fact that the Tribunal made a single unwarranted factual error to Mr Jones' considerable discredit, though unfortunate, betokens neither actual nor ostensible bias against him. It shows no more than that an error was made. i) Whether the Tribunal failed to consider the defences available to Harbour Radio as distinct from Mr Jones (Ground 13) 83As we have already indicated, the Tribunal did so fail. 84Notwithstanding that the course of the proceedings and the way Harbour, as it were, threw in its lot with Mr Jones in the running of the case may have accounted for the Tribunal's oversight, Harbour was entitled to have its defences separately considered. 85The question then is whether there was any reasonable chance that the result against Harbour might have been different had that been done. 86Harbour's defences, as those of Mr Jones, were that: firstly, the broadcasts were a fair report of sheik Faiz Mohamad's public, offensive remarks and/ or of material published on an Islamic website and/or of the television report on 27th April 2005 of the filmed Hickson Rd events of 24 April, and secondly, the broadcasts were made reasonably and in good faith in the public interest for purposes of public discussion and/or debate about and /or expositions of the matters just mentioned allegedly fairly reported. 87Insofar as a defence of fair reporting was raised, it seems to have proceeded on a misreading of s 20C(2)(a). That paragraph speaks not of a fair report of a public act, but of a fair report of a public act 'referred to in subsection (1)'. A public act referred to in subs (1) is one by which someone has incited hatred etc in respect of a person or group on the ground of their race. In plainer language, a defence is given for the fair reporting of a public act involving proscribed racial vilification. That defence was not pleaded and there was no apparent basis on which it might reasonably have been pleaded. There is no broader defence of fair reporting beyond what is inherent in s20C(2)(c) and, having regard to the breadth of that paragraph, no apparent need for any. 88The defence pleaded was not known to law and could not have been upheld even if it had been separately considered. 89The defence of reasonable, good faith discussion etc of acts or matters was exhaustively considered and rejected as to Mr Jones. All of Mr Jones' broadcasts were contemporaneously played in the hearing of apparently all levels of employees engaged by Harbour. There was a 7 second delay in transmission to enable interception of a broadcast on prudential grounds. That was never done. Nor was there any evidence of any intercession by or on behalf of Harbour with Mr Jones to suggest modification of his rhetoric or lack of fairness and balance. De facto the judgment of whether material might offend the law against racial vilification was apparently effectively abandoned to Mr Jones and the team who answered to him. 90It does not appear to us possible to say that Harbour's conduct in relation to the broadcasts was either objectively reasonable or, to the requisite objective degree in the Brophy sense, done in good faith. There appears to us no reasonable prospect of success by Harbour with that defence either. 91In the particular circumstances, there was no substantive injustice to Harbour from not having its pleaded defences separately considered so as to warrant any disturbance of the outcome before the Tribunal. j) Whether the Tribunal erred by construing 'fair report' in s 20C(2)(a) as referring to a reasonable report rather than an accurate one (Ground 12) 92This question is also predicated on the misreading of s20C(2)(a) already referred to. On a proper application of the law the question does not arise. k) Whether the Tribunal erred by misapplying the test for 'good faith' for the purposes of 20C(2)(c) (Ground 14) 93In substance the submissions in support of this ground seem to restate complaints dealt with above in relation to other questions. It is enough to say that there was no such error. l) Whether the Tribunal erred in law by awarding Mr Trad damages (Ground 15) 94The suggestion was that Mr Trad was not personally identified in schedule A and suffered no loss, even as to hurt feelings, from it. 95Mr Trad was however a Lebanese Muslim man and therefore among those vilified. He also expressed his hurt, albeit on account of the insult to young Lebanese men, including his own sons. He said: "I was distraught and overwhelmed by the fact that having been born here and being part of the Australian community my boys were referred to as hating Australia, hating a country and referred to as rapists, pillages and plunderers and likened to rodents." 96The award of damages in a modest sum was not beyond the bounds of a permissible exercise of a discretionary judgment. m) Whether the Tribunal erred in law by making its direction as to an apology (Ground 16) 97Counsel argued that the Tribunal failed to take into account various matters. However the Tribunal said: 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. ... 230 ... 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 ... 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. 98The only matter referred to by counsel but not specifically mentioned by the Tribunal was apparently amiable correspondence between Messrs Trad and Jones. In long reasons for decision it is not necessary to mention every factor said to be relevant to a discretionary decision. The Tribunal said it had regard to all the circumstances and it has not been shown that it did not. 99No error of law has been made out. n) Whether the Tribunal erred in law by making the order that Harbour review its policies and practices as to racial vilification (Ground 17) 100The Tribunal said: 245 In our view it would be of ... 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. 101The direction was that 3. Within six months of the date of these orders the second respondent is to conduct review in accordance with [245] of these Reasons. Among various criticisms that go only to the merits of the decision, the point was taken that there may well have been such a review in the intervening period. While this may possibly betoken no legal error, the complaint will be satisfied if we extend the appeal into the merits on this point and amend the order to read: 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 or furnish proof that it had already done so. Mr Trad's appeal 102We turn now to the two matters raised by Mr Trad: o) Whether the previously received approach to the meaning of 'ethno-religious ... origin' in the s.4 definition of 'race' is incorrect so that the term 'Muslim' used in the Schedule B broadcasts should have been understood to fall within the statutory concept of a race and p) Whether as to Schedule B the Tribunal's failure to accept sociological evidence about modern concepts of 'race' and the situation of Lebanese and/or other Muslims in Sydney society was a legal error. 103Mr Trad categorised the broadcasts he complained of into Schedule A and Schedule B. In Schedule A Mr Jones expressly identified the persons criticised as Lebanese males, and (erroneously) Lebanese Muslims. 104In the Schedule B broadcasts, however, Mr Jones used the terms "Muslim", "Muslim community", "Muslim leadership" and, on occasions, "Lebanese", and such expressions as "you mob", "these people "and "your lot". Whether any ethnic characteristic or quality of those criticised would likely have been perceived by the hypothetical listener was admittedly less clear than in the Schedule A broadcast. 105Mr Trad brought his claim on three grounds: * First, that at least within the greater Sydney region the term 'Muslim' described a race for the purposes of the Act 'because it is and was at all relevant times an ethno-religious grouping'. * Secondly and in the alternative, 'Muslim' was interchangeable with the term 'Lebanese Muslim' particularly 'if the reference made is to Muslims located in the Lakemba or Bankstown area' because of demographic factors and the pattern of immigration from North Lebanon. * Thirdly and as a further alternative, because of s 4(3) of the Act, which permits 'race' to comprise a number of races, a reference to (Australian) Muslims collectively is to Muslims of a number of national origins. 106To deal with the third formulation first, the Tribunal did not refer to s4(3) but that omission is of no significance to the outcome of Mr Trad's appeal. The proposition relied on is, in our view, misconceived. S 4(3) provides: (3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race 107The subsection contemplates only that if a collection of people qualifies as a 'race' it is not disqualified because on analysis it may comprise more than one distinct race. This appears to have been thought necessary to avoid possible confusion which might otherwise arise from the breadth of the number of ways a group may qualify as a 'race'. S 4(3) adds nothing to the question whether Muslims in Australia are a 'race'. It seems to have no bearing on this case. 108There were two presently relevant questions for the Tribunal. The first was: who was the group against whom hatred etc was allegedly incited. The second was whether that incitement was, in the words of s 20 C (1), 'on the ground of the race of ... members of the group'. Implicitly the group against whom hatred etc was allegedly incited must be a group of a common race (subject to s4(3)). 109The Tribunal dealt with these matters in the following way: 110Are Muslims a "race" within the meaning of the Act? 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 [one of which was that a group of 'ethno-religious origin' would cover Muslims] 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. 111Who or what group was the target of the broadcasts? 126 In his Points of Claim Mr Trad identified the group vilified [by the Schedule B broadcast] as "Lebanese Muslims and/or Lebanese males and/or Lebanese people and/or Muslims including the applicant" ... 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. ... 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. ... 131 Schedule A ... 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. ... ... 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. ... 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. Was the incitement 'on the ground of' race? 179 Mr Trad bears the onus of proving that Mr Jones's [Schedule A] 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 183 ...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. ... 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. ... 188 ... 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 the Schedule A broadcast. 112Mr Trad called evidence from two well-qualified sociologists. That evidence included the facts and opinions extracted in the Second Appendix to these reasons. The 'evidence' included opinions on legal matters, historical material as to the development of contemporary ideas of race and ethnicity and opinions on relevant sociological matters, as well as sociological, factual matter. Of this evidence the Tribunal said: 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. 113We think that, despite Khan et al. the Tribunal did not correctly appreciate the meaning of 'ethno-religious ... origin' in the definition of 'race'. In our view, on the preferable view of that expression, but depending on the context, verbal abuse of 'Muslims' might indeed be abuse of them as a group of 'ethno-religious origin'. In our view, there was much of persuasive value in the experts' report, notwithstanding (with due respect to a discipline that is not our own) some of the jargon and an occasional problematic scent of post-modernism. 114It would in the present case be a separate question entirely as to whether any such abuse was on the ground of any such ethno-religious origin, or only on the ground of the religious beliefs or religiously determined, supposed attributes of the group. 115As the fields of race, origin, ethnicity, ethno-religious are notoriously muddy, slippery and (to say the least of it) imprecise, before setting out our reasoning, some examples may clarify our general approach to the matter: a) Consider the statement 'Muslims leave their brains behind when they enter the mosque. They believe in ludicrous, supernatural events. They are, if anything, even less rational than Christians and Jews'. This abuse is clearly of a religious group and on religious grounds. It has nothing to do with ethnicity. b) 'Muslim immigration should be stopped. Islam does not accept a secular state and its attitude to women is medieval'. That is fairly clearly calumniation on the ground of religious affiliation, even if the group might, though we think probably not, be regarded as one of ethno-religious origin. c) If the insult is however: 'The Muslims here, as in Europe, are a bad lot. They don't want to assimilate and their first allegiance is to their fellow Muslims, including terrorists such as Al Qaeda', that is likely to be seen as vilification of the group as one of ethno-religious origin, and on the ground of that origin. S 4 provides: (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin. As a matter of purely textual interpretation, groups of ethno-religious origin ('ethno-religious groups') must be subsets of groups of religious origin: they are not subsets of groups of 'ethnic origin' ('ethnic groups'). If they were the latter, there would be no need of the expression 'ethno-religious' in the definition of 'race'. Words in a statute should not lightly be treated as otiose. In ordinary usage (to the extent that there is any), the imprecise expression 'ethno-religious group' may not have that limited meaning: it might mean a group dually defined by ethnicity and by religion or even one defined as an ethnic group having a common religion as a notable characteristic. 116The practical consequence is that some religious groups are to be afforded protection as if they were ethnic groups, even though they could not fairly be called simply an ethnic group. 117As something of an aside, 'origin' cannot in the context be strictly construed: it must mean something like a distinct, shared, actual or assumed history or background deeply affecting members of the subject group. 118Contextually, one asks: what is the mischief likely to underlie that legislative extension? The answer appears to be the misery and corresponding cruelty often attendant on permitting hate speech against people who are different from the vilifier in ways that closely resemble the differences which recognisable ethnic groups more strictly so-called have, on the ground of such difference. Many minority (and majority) religions and their adherents may at times come in for insult: Scientology, Exclusive Brethren, Mormons, Hare Krishna, Moonies, to name a handful. The Act nevertheless obviously sets its face against protecting mere religions and their adherents from even the strongest condemnation. The statutory line is drawn by requiring that there be actual aspects of the religious group that can fairly be seen as so closely akin to those of an ethnic group that it is fair to call the group an ethno-religious one, even though in current, ordinary language it would not be said that there is a group of ethnic origin involved. 119That approach necessarily implies some inquiry into sociological aspects. Given that the group must have a common religion, such matters as these may be relevant: To what extent, if any, are the group and its members associated with a language other than the lingua franca? Is the group a recognisable minority? Do they tend to congregate other than for formal religious observance? Do its beliefs and attendant customs, such as dress, food taboos, times and manner of religious observance result in distinctive ways of life? Is there a distinct intellectual or recreational culture? How serious are any social as distinct from religious consequences of marrying out of the group, or of apostasy? Are its members seen as outsiders? Are its members subject to discrimination of kinds that in ordinary current speech might reasonably be perceived by ordinary, unprejudiced people as "racial discrimination" without their staying to consider the precise, formal meaning of that term - if a sun-blonded Cronulla boy during the lamentable period surrounding the riots there a few years ago had cursed "bloody Muslims", nobody would have thought him expressing theological criticism, and the word 'racism' might have come readily to mind . Have external events involving co-religionists led to serious condemnation of the group? Has the name given to adherents of the religion come to have overtones of cultural, social or political, and not only religious significance? 120In Mandla v Lee [1982] UKHL 7 Lord Fraser said of a reference to 'ethnic group' in the British Race Relations Act 1976 : ... in seeking for the true meaning of " ethnic " in the statute, we are not tied to the precise definition in any dictionary. ... ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or biological. That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day . In my opinion, the word "ethnic" still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin. For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: - (1)a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group;(6) a common religion, different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups. A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. (emphasis added) 121In the generation that has passed since Mandla the word ethnic has probably loosened even more in the comprehension of the ordinary newspaper reader, listener to talkback radio or web surfer. 122Ms Nomchong's submission for Mr Trad, allowing for some hyperbole, perhaps got a little closer to fair, contemporary, contextual input into the correct interpretation of ethno-religious: what's going on in this case in a very small way [is] exactly what goes on in all sorts of forms of discrimination whether it be on a large scale, genocide ..., or whether it be ... in a set of small broadcasts. That is, creating a division between majority white Anglo Saxon people in this country and Lebanese Muslims or Muslims on the other by describing them as being so different that they deserve to be treated differently. ... the discrimination legislation is all about ... prohibiting vilification on the grounds of race so that you don't create that sense of otherness, so that there is that tolerance that we hold dear in Australian ... public life or we should hold dear. Discrimination is all about not creating that otherness or not allowing that otherness to be a[n] ... enabler for vilifying comments or discriminatory conduct. 123However inconvenient it may be for complete certainty of the law, the necessity to look to social factors and current conditions affecting a group means that the concept of an ethno-religious group is necessarily 'fluid and contextual', as the expert report put it. 124Of particular potential significance here is this material pointed to by Mr Trad's experts: Muslims in Australia gained an image of being problem migrants largely through the particular settlement experience of Lebanese Muslim migrants settled in Sydney as a result of the civil war [in Lebanon]. In particular this image was created and sustained by the fact that Lebanese Muslims experienced chronically high levels of unemployment in the 1980's and the 1990's, by the perception that Lebanese youth were heavily involved in gang activities and by the conviction of Lebanese Muslim brothers for gang rapes in Sydney. Moreover this local context of the production of difference in immigrant groups is to be understood against broader global dynamics in which Muslim immigrants have been associated with international events politicising Islam . Critical to the understanding of this pattern of othering Muslims globally and in Australia is recognising social and political dynamics underpinning the process. That is, in so far as Muslims are seen as a distinct other within Australian society the basis for this difference is not primarily religious or founded on criticisms of Islamic theology but is rather grounded in Muslims being seen as socially, culturally and politically alien to the West in general or to Australian culture in particular. Put otherwise, the widespread perception of Muslims as extremists or intolerant or hostile to modernity has resulted in the actions and behaviour of Muslims being interpreted as religiously determined. The religion Islam thereby becomes a marker for a boundary that has to be understood in social, political and cultural terms. Thus, for example, even where public discussion in Western society appears to be about Islamic religious practice or values such as the wearing of the veil. This policing of religious signs is more about their imagined political content than their religious importance. 125Another helpful passage was: "It would also be reasonable for the term [ethno-religious origin] to be interpreted as indicating that in some cases a religious group is understood in a manner that fulfils the criteria for an ethnic group. That is, ethno-religious origin would refer to a group that is nominally characterised by common religion but that in a particular socio-historical context the nominal identification doesn't or doesn't only refer to specifically religious identity but also extends to its identity as a cultural distinct other. As in the case of ethnicity in general this distinctiveness may be understood in terms of a shared history or distinct cultural traditions and practices or it may be the product of migration experience and social and political conditions that render that group a minority." 126The idea seems compelling that when an anti-vilification statute speaks of race or a group of ethno-religious origin, it is not contemplating an unchanging entity but a changeable, social construct or set of social constructs, so that the application of the Act may vary at a given time and under given circumstances. Nevertheless, as Ms Eastman submitted, the starting point is not the evidence but the proper construction of ethno-religious. 127In Khan the Tribunal appears not to have accepted the textual limitation of the statutory term to which we have referred. 128Further, the Tribunal apparently did not have the benefit of evidence that might have assisted them, a fact it lamented: ... 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. 129The examples given in Khan of possible ethno-religious groups: 'Javanese Christians, Bosnian Muslims or Northern Irish Catholics' are, at least in the absence of evidence, not especially persuasive. Christians are discriminated against in Indonesia, but are there real distinctions between Javanese Christians and those in other parts of the country, other than their Javanese ethnicity? There are deep and serious communal tensions in Northern Ireland and a long history of discrimination against Catholics, but do the religious and political differences between Green and Orange really permit the phrase 'a group of ethno-religious origin' to come comfortably to the tongue? In all the examples a consideration of the question would require close attention to the context and to sociological facts. The examples in fact show the fluid and contextual nature of the concept of an ethno-religious group. 130It cannot be said, we think, that had the Tribunal adopted a more contextual approach, informed by international jurisprudential thinking on the subject, it would necessarily have come to the same view that it did about whether '"Muslims" constitute a race'. Not to adopt such an approach led to not asking the right question. 'Ethno-religious origin' in the Act is not used as an ordinary English word, as we have explained. It is a special statutory concept and to misconstrue it is an error of law. 131As presently advised we see no alternative, in the interests of justice, to extending Mr Trad's appeal to the merits only so far as necessary to enable a conclusion to this and possibly consequential questions. We will however invite the parties' written submissions on that matter in the light of these reasons. Opportunity for further consideration of the Khan approach 132There was enough material, legal and factual, to be covered by counsel in the limited times set for the hearing of the appeals that we are concerned that so important a matter as whether we should depart from Khan , which has been regarded as settling the law on the meaning of ethno-religious origin, may not have been sufficiently fully debated before us. Accordingly, the foregoing discussion of that question should be regarded as a provisional statement of our views pending any further submissions that any party may wish to make. Extension of the appeals to the merits generally 133We will also invite the parties' written submissions on that matter in the light of these reasons. The present tendency of our minds does not favour any other extension. We see no reason for the expense of further oral submissions. Orders 1. The parties are to file and serve within 14 days any written submissions (not exceeding 12 pages in length) as to whether the Appeal Panel should depart from the reasoning expressed in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 and within 21 days any reply (not exceeding three pages in length) to the opposing party's submission. 2. The parties are to file and serve within 14 days any written submissions (not exceeding five pages in length) as to extending the appeals or either of them to the merits in the light of our reasons, and within 21 days any reply (not exceeding two pages in length) to the opposing party's submission. 3. The case is adjourned to a date to be fixed for further consideration. APPENDIX The broadcasts 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. ... 30 At about 6.12 am 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 woman 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 nobody 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. The program segment actually continued: And John says: "In all the understandably emotional debate about the sheik's disgraceful and racially vilifying speech, I heard no reference to Al Grassby and Gough Whitlam , whose (and he uses a swear word there) "multiculturalism and immigration policies surely spawned this divisive behaviour in this country". And Christopher says ' I listened to your show yesterday. After you played the recording of that hate-preaching sheikh, I had to switch off the radio. I had trouble to contain my anger - and to concentrate on my job driving heavy vehicle. I was born in Germany and am a proud new Australian. Part of my education at school back then was to learn about the horror and crimes committed by the Nazi regime. The recording of that sheikh disturbed me so much, because it was if I were listening to a speech of Joseph Goebbels. The same rhetoric and rhythm - even their voices seemed to be similar . I don't know if it would be possible to play a part of Goebbels speeches next to the one of the sheik. I believe it would be an eye opener to the Australian public. It's the same evil we know from the Nazi propaganda, just under the coat of Islam. I'm wondering why none of the audience more than a thousand had the guts to stand up to the protest - do they agree? We must never allow evil of that kind to happen again". He ends by saying "Should there be a fund to establish....to legally disable these public enemies, I'd happily donate one month's pay. Please let me know if such a fighting fund will be established by some organization. The Muslim community will wonder one day what's hit them, should they continue to overstep the mark in our society. Beware, Australia - the enemy lives amongst us already. Lest we forget". And one of those earlier emails made the point to me. It was the one from John, and it says - he makes reference to a comment that I made yesterday - "then of course there's no doubt as you referred to them this morning, the gutless legislators and regulators will be counting the days until this matter blows over." Not a word from anyone, eh? Colleen, Hello? Colleen: I'm absolutely livid. I'm just burning up. That guy Keysar Trad, I call him termite, because they live in the woodwork and they undermine everything until it falls down around you. And that other creature, there's two words I don't want to hear used for him -"man" and "Australian" - because he's neither. Alan Jones: Mmm. Colleen: he's a yellow , lily-livid[sic] coward. he's an ugly little man. He's a little weasel. He's ugly o the outside and he's ugly on the inside, and I mean , you criticise , you know, people like this and the next thing your called racist Alan Jones: Oh yeah, (unclear) cares about that. He's also a liar- Colleen: Well of course he's a liar- Alan Jones: - because he says he was misunderstood and of course he wasn't misunderstood at all. It's all quite clear what he said and it was quite clear about whom he was speaking. Colleen: And to those thousands of creatures that were in there listening to him and were laughing - they didn't....if they were....if any of them were offended, they didn't have to get up and make a protest, all they had to do was get up and walk out outside- Alan Jones: Yes, or tell him to shut up. Colleen: They're all lily-livered like him. they're like, like little sheep - they follow blindly and blithely you know.... Alan Jones: Yeah ,well what about, what about this Khalid Yasin - the bloke who was actually there? He was on the same platform and spoke after him and said nothing. So much for the Muslim leadership censoring him. Colleen: Well, how the hell are these people being allowed into the country-? Alan Jones: Mmm- good question. Well this bloke was born here - Colleen:...and are any charges going to be laid....? Alan Jones: Not allowed here? He was born here this sheikh-he was born here in Sydney of Lebanese parents Colleen: That doesn't make him Australian Alan Jones: No, well it doesn't make him Australian- Colleen: I've said it a million times and ill say it a million and one times- where you are born is geography. It's your mind set-and these people's mindset is somewhere else Colleen: And they're certainly most un-Australian , and there has to be a charge laid against him for inciting violence. Alan Jones: Mmm. Good on you, Colleen- Colleen: And if he was actually talking...if he lied and said he was talking about Muslim women, and he's taking about Muslim women, and he's talking about layers of make-up ... Alan Jones: Well, Keysar Trad said he was talking about death. Colleen: Well listen, but they said he was talking about Muslim women. If he was talking about Muslim women, have you ever seen a Muslim woman with layers of makeup on and translucent blouses and a split skirt? So there he is a liar - he's come undone for a start. Alan Jones: Well done, well done Colleen. The public are not stupid. Thank you for that. Paul says " Again we're subjected to the hatred-filled rantings of a demented sheikh. Again nothing will happen. Our problems with these people-and I mean all our problems- can be traced back to the 1980's when the infamous sheikh El Hilaly was allowed to stay in Australia, despite the hatred and bile he spat from the comfort of the then much discredited Lakemba mosque. you will well recall the deportation orders had been signed, by the then Immigration Minister, only to be over turned by the joint efforts of the then Prime Minister and the sitting local member - both of whom shall remain nameless. From that time onwards, these people knew we were gutless and that they had carte blanche to carry on in whatever way that suited them, free of interference from the infidel. We only have ourselves to blame that twenty years later nothing has changed in this community, and nothing will until we take the gloves off and make life a collective hell for these bastards and their followers." People are angry - understandably. Maureen - hello] 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. Janine, 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 ... 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 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- a liar. 'We have delivered safer streets for the community', he last night would have shown Bob Carr for what he is- a liar. 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. 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 to 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'an, 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' [Osman?] 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 [sic]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. Second Appendix (Mr Trad's expert evidence) As currently understood under New South Wales law the category ethno-religious applies to Jews and Sikhs. Muslim has not yet been accepted within this jurisdiction as an ethno-religious group. Like ethnicity the category ethno-religious is also understood in the literature to be fluid and contextual. Our opinion is that Australian jurisprudence may or should take contemporary conditions into account to include Muslims under this category. The primary reason for this is that in the contemporary geo-political context in general and the Australian context in particular, Muslim has become a distinct axis for a distinction that, like Judaism, is not understood in restrictive terms as religious observance but has a strong cultural and political meaning. Already after the Gulf War the consciousness of Muslims as a distinct other was evidenced both from Muslims and non Muslims. This move to distinction or "othering" has significantly deepened since September 11 and under the influence of a pervasive discourse about political Islam or the Islamic world or Islamic fundamentalism and a clash of civilisations. Muslims both experience themselves as and are treated and seen as a distinct social and cultural group. This is manifest in the well documented rise of Islamic phobia in the U.S.A., Europe and in Australia. The absence of any class of race under which Muslims as such can fall is out of keeping with international law concerning contemporary forms of racism. This is clearly evidenced in the mandate given to the Special Rapporteur on Contemporary Forms of Racism appointed by the Commission on Human Rights in 1993 which provided that the mandate of the Rapporteur was "to examine in accordance with this mandate incidences of contemporary forms of racism, racial discrimination, any form of discrimination against blacks, Arabs and Muslims, xenophobia, negrophobia, anti-Semitism and related intolerance as well as governmental measures to overcome them and to report on these matters to the Commission." We note that the term ethno-religious is commonly used in the academic literature to refer to Muslims in the West." "Ethnicity, race and nation should be conceptualised not as substances or things or entities or organisms or collectives of individuals as the imagery of discrete concrete, tangible, bounded and enduring groups encourages us to do but rather as relational, processual, dynamic, eventful and disaggregated terms. This means thinking of ethnicity, race and nation, not in terms of groups or entities but in terms of practical categories, cultural idioms, cognitive schemas, discursive frames, organisational routines, institutional forms, political projects and contingent events. It means the ethnicisation, racialisation and nationalisation, political cultural and psychological processes." It is important not to confuse this notion of ethnic or racial identities constructed within volunteerism or by individuals having the agency to choose or construct their own ethnic identity. On the contrary the boundaries of ethnic groups, the outcome of complex social, political, economic and cultural dynamics, both outside and inside groups ... and forced ethnic boundaries can be powerful determinants of both the content and meaning of particular ethnicities The contextual or situational understanding of ethnic identity becomes particularly important when one moves from the situation where there are said to be several ethnic groups who occupy or have long occupied a single nation state as in some European countries to the concepts of immigration. In an immigrant society the ways in which migrants come to be identified as ethnic groups depend on the particular differences that they are seen to manifest and the differences that are considered salient in a given social and political concept." "Ethnic origin refers to a person's identification with a group where the group is identified by itself and by others but not necessarily symmetrically as distinct, different, and outside the societal norm in the particular, historical, social and political context. Those differences are popularly understood as arising from cultural characteristics and a distinct, shared history. In Australia the understanding of ethnicity has to be understood within the context of patterns of immigration, historical and contemporary understanding of Australian national identity and the production of difference." Particular factors have shaped Muslim migration settlement and identity formation in Australia. Muslim presence is the product of immigration and Muslims only started arriving in Australia in significant numbers in the 1970's. The 2006 census records 340,392 Muslims in Australia for which 37.9 per cent are Australian born. The identity of Muslims in Australia has been shaped by their origins, the process of settlement, the character of Muslim religious community organisations and the settlement experience of Muslim communities. ... while Muslims come from over 180 countries the largest communities comes from Lebanon and Turkey. Based on the 2001 census 10 per cent of Muslims were Lebanese born and 8 per cent were Turkish born. Of the 36.43 per cent Australian born Muslims around 36 per cent were of Lebanese descent and 18 per cent Turkish descent." "The largest Mosque in Sydney is the Lakemba Mosque ... with a predominantly Lebanese congregation and leadership. ... Muslims in Australia gained an image of being problem migrants largely through the particular settlement experience of Lebanese Muslim migrants settled in Sydney as a result of the civil war [in Lebanon]. In particular this image was created and sustained by the fact that Lebanese Muslims experienced chronically high levels of unemployment in the 1980's and the 1990's, by the perception that Lebanese youth were heavily involved in gang activities and by the conviction of Lebanese Muslim brothers for gang rapes in Sydney." "Moreover this local context of the production of difference in immigrant groups is to be understood against broader global dynamics in which Muslim immigrants have been associated with international events politicising Islam "Critical to the understanding of this pattern of othering Muslims globally and in Australia is recognising social and political dynamics underpinning the process. That is, in so far as Muslims are seen as a distinct other within Australian society the basis for this difference is not primarily religious or founded on criticisms of Islamic theology but is rather grounded in Muslims being seen as socially, culturally and politically alien to the West in general or to Australian culture in particular. Put otherwise, the widespread perception of Muslims as extremists or intolerant or hostile to modernity has resulted in the actions and behaviour of Muslims being interpreted as religiously determined. The religion Islam thereby becomes a marker for a boundary that has to be understood in social, political and cultural terms. Thus, for example, even where public discussion in Western society appears to be about Islamic religious practice or values such as the wearing of the veil. This policing of religious signs is more about their imagined political content than their religious importance. What follows from the position that Huntington articulated is that the common identity Muslim, as attributed to people deemed to fall within the group, is for the purposes of this popular discourse only nominally concerned with religious characteristics. For example, Islamic theology, tenets of belief and ritual practices, rather the identity Muslim is understood primarily as a social and political category and in particular, after 2001, the securitisation of Muslims as a potential threat or risk to be policed as turned any public signs of Islam into signs of political rationalisation and therefore danger." The term Lebanese Muslims in Sydney in April 2005 identifies both ethnicity Lebanese and a religion Muslim constituting an ethno-religious group. In the Australian context the term refers to national origin, religion or marginal social position. The term 'Lebanese Muslims' was constituted against the early identity Lebanese which was understood to be overwhelmingly Christian. It alluded to sectarian political conflict in Lebanon and became a stigmatised category from which Christian Lebanese sought to differentiate themselves as good migrants. Demographic factors made Sydney the focus of Lebanese ethnic politics because the Lebanese were overwhelmingly 72.8 per cent concentrated in Sydney, in particular, in the inner Western suburbs. While accepting that it is reasonable to interpret the term ethno-religious origin to refer to a hybrid group as discussed above, it would also be reasonable for the term ethnic-religious origin to be interpreted as indicating that in some cases a religious group is understood in the manner that fulfils the criteria for an ethnic group." I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** 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. Decision last updated: 27 April 2011