Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Araiji v Mihailuk [2011] NSWADT 282 Hearing dates: 8 November 2011 Decision date: 08 November 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of racial vilification to proceed is refused. Catchwords: LEAVE - complaint of racial vilification declined as lacking in substance - whether fair and just for it to proceed - complaint does not reach threshold required for vilification complaints Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Veloskey v Karagiannakis [2002] NSWADTAP 18 Burns v Radio 2UE Pty Ltd & Ors [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Harou-Sourdon v TCN Channel Nine Ltd (1994) (EOC) 92-604 Category: Interlocutory applications Parties: Helen Araiji (Applicant) Tania Mihailuk (Respondent) _ Representation: Counsel S Stanton (Respondent) H Araiji (Applicant in person) File Number(s): 111100 REasons for decision Introduction 1Ms Araiji complained that the State Member for Bankstown, Tania Mihailuk, racially vilified her in a verbal exchange just prior to the New South Wales election in March 2011. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. Ms Araiji requested that the complaint be referred to the Tribunal. 2Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, cannot proceed unless the Tribunal gives its permission or 'leave'. The issue is whether leave should be granted for Mr Araiji's complaint to go ahead 3In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. 4When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant. The complaint 5Ms Araiji complained that on 25 March 2011 at about 4.30 pm at the Bankstown City Council Building, Ms Tania Mihailuk: . . . had an altercation with a female who worked at the Bankstown Council. I was handing out "how to vote" pamphlets outside the electoral roll office for pre-election voting. I was handing out papers on how to vote for the Liberal Party and Tanya was a candidate for Bankstown. The only thing that Tania Mihailuk knew about me was very little besides the country I was from which is Lebanon. After the woman left very upset I said to Tanya that she didn't need to divulge private information when it was a "needs to know" basis. Tanya replied that, "I need to know and she can say or do whatever she likes." I answered that I agree but up to a certain extent. Tania Mihailuk replied that I "will be going back to the hole I came from and I don't belong here. That I shouldn't (sic) NOT be supporting Liberal if I was from here and don't know all the great work she has done to the community." I was shocked and horrified. I replied to Tanya, "that she doesn't know about me and I will be making an official complaint." 6Ms Mihailuk's reply to the complaint was, in part, as follows: I deny strenuously all these allegations and all the words attributed to me by Helen Araiji. None of these words were said by me nor were they implied. I only knew Ms Ajaija on the day as Helen and I can only assume that this is the same lady whose daughter recognized me and gave me a hug on election day. I am surprised that this lady has made such a claim given we had a very few chats limited to friendly, casual chitchat. Certainly at no stage was her or my cultural background discussed. To suggest I had some type of issue with her background is ludicrous. I myself come from a non-English-speaking background and my campaign director was Palestinian and my assistant director was of Lebanese heritage, both of whom were with me during the campaign. 7Further correspondence to the President of the Anti-Discrimination Board followed this initial exchange. However, the only question in relation to these proceedings is whether the words that were alleged to have been said could constitute racial vilification. 8The President of the Anti-Discrimination Board declined the complaint as lacking in substance. The reasons for that decision were that: In order to substantiate a complaint of racial vilification, you must be able to show that, in the context of all the reported comments, the particular comments made by Ms Mihailuk could incite an ordinary, reasonable person not immune from susceptibility to incitement nor holding racially prejudiced views, to hatred, serious contempt or severe ridicule of Lebanese people. You have failed to show this. The decision in Harou-Sourdon v TCN Channel Nine Ltd (1994) (EOC) 92-604 makes it clear that the standard is very high, and some instances are not covered. It is not enough to incite contempt it must be 'serious' contempt. Similarly it is not sufficient to incite ridicule it must be 'severe' ridicule. Accordingly, I am of the opinion that your complaint does not meet the standards required under the ADA. Racial vilification provisions 9Section 20C of the AD Act provides that: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 10Various defences are set out in subsection (2) but none is relevant to these proceedings. Consequently, if permission were granted for Ms Araiji's complaint to proceed, she would have to prove that: (1)Ms Mihailuk engaged in a public act; (2)which incited hatred serious contempt or severe ridicule against a person or group of people (3)on the ground of the race of that person or the members of that group. 11Public act? A public act is defined in s 20B of the AD Act to include: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and 12Ms Araiji did not say in her complaint whether the alleged comments were heard or were capable of being heard by others. Nevertheless, for the purposes of these proceedings, I have assumed that if the matter went ahead Ms Araiji would be able to prove that Ms Mihailuk engaged in a public act by speaking to her in a public place. 13Incitement? The second element is about the effect that the public act has on the actual or potential audience. A public act is unlawful if the ordinary reasonable member of the community is incited to feel hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race: Veloskey v Karagiannakis [2002] NSWADTAP 18. As the Tribunal said in Burns v Radio 2UE Pty Ltd & Ors [2004] NSWADT 267 at [14] in relation to homosexual vilification: It remains necessary for the Tribunal to decide whether the ordinary reasonable listener, drawing on their own knowledge and experience of worldly affairs, could have understood from the broadcast that they were being incited to hatred towards, serious contempt for, or severe ridicule of homosexual men (see, eg John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [16]). This requires us to hypothesise as to the likely effect of the comments on the ordinary reasonable listener. 14There is no need for Ms Araiji to prove actual incitement of any person who overheard the conversation. However, even if a Tribunal were to accept that Ms Mihailuk said words to the effect of, "You will be going back to the hole you came from and you do not belong here", those words do not reach the threshold of incitement to hatred, serious contempt or severe ridicule of a person. The ordinary meaning of " incite " is to spur on, stir up, prompt, provoke, urge, or stimulate. There is nothing in Ms Araiji's complaint which suggests that the words Ms Mihailuk allegedly used were said in any way other than as a communication to her. "Conveying" a message does not constitute racial vilification. The communication must "incite" a certain response in others. 15In addition, the response "incited" cannot be mere disapproval or indignation. The communication must incite a much stronger response, namely hatred, serious contempt or severe ridicule. Telling a person that they do not belong somewhere or that they will be going back to the hole they came from, may be regarded an inappropriate or even offensive. But that is not the test. 16Causation. The final element is causation. Ms Araiji's race, that is "Lebanese," must be the ground or reason for the audience being incited to hatred, serious contempt or severe ridicule. The causal link does not relate to Ms Mihailuk's reasons for the conduct but rather to the impact on the audience. The ordinary, reasonable member of the community must be incited to hatred, serious contempt or severe ridicule of Lebanese people because of that group's race. If Ms Araiji were able to prove the second element of racial vilification, it is likely that she would also be able to prove that the ground for the conduct was her race. However, as it is highly unlikely that she will be able to establish that the communication meets the second element of the test for racial vilification, the entire compliant will fail. Conclusion 17I am not satisfied on the basis of the evidence and submissions before me that it is fair or just for Ms Araiji's complaint to proceed. If the complaint did proceed, and Ms Araiji was able to establish that Ms Mihailuk said the words she is alleged to have said, it is highly likely that the Tribunal would find that the alleged comments do not constitute incitement to hatred, serious contempt or severe ridicule. Orders Leave for the applicant's complaint of racial vilification to proceed is refused. ********** 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: 01 December 2011