Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Trad v Jones (No. 3) (EOD) [2012] NSWADTAP 33 Hearing dates: 21 December 2011 Decision date: 02 October 2012 Jurisdiction: Appeal Panel - Internal Before: R Madgwick, Deputy President R Perrignon, Judicial member E Hayes, Non-Judicial member Decision: The appeal is dismissed. Parties are to file submissions on costs within 14 days of this decision. Catchwords: Facts reconsidered in view of error of law Cases Cited: Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62 Murtough v NSW Bar Association [2011] NSW ADT 243 Category: Principal judgment Parties: Alan Jones (Appellant/Cross Respondent) Harbour Radio Pty Limited (Appellant/Cross Respondent) Keysar Trad (Respondent/Cross Appellant) Representation: Counsel 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 REASON FOR DECISION 1In Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62 (21 December 2011), our second decision in a set of cross-appeals, we upheld Mr Trad's complaint of an error of law, and invited further submissions as to the merits of his complaint in view of the legal error. (For a full understanding it is necessary also to see our first decision, Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 (27 April 2011)). 2In the second decision we said: "Preliminary view of the facts The targeted group 45.It is impossible for us not to have formed a tentative view of the factual questions arising as a result of the success of Mr Trad's appeal on questions of law. It may shorten and better focus any further submissions if we outline that view. 46.It is to be remembered that the Schedule B material complained of is relatively confined and that the other material set out or summarised in the Appendix is contextual merely. It is also the case that the relevant context of the Schedule B broadcasts for the ordinary reasonable listener was the material that preceded each of them. 47.The first question is who was targeted by Mr Jones' and/or his callers' criticisms. It will suffice for Mr Trad to succeed if we conclude that the ordinary reasonable listener would conclude that the group targeted consisted of Muslims considered as religious adherents who shared characteristics of their religious group that can fairly be seen as so closely akin, having regard to the general objects and purposes of the Act, to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin, even if in current, ordinary language it would or might not fairly be said that the group has an ethnic origin. 48.The Tribunal below negatived the narrow question whether Lebanese Muslims were targeted and, while the line may be close, we feel no disquiet about that conclusion. Respect and weight should be given to the fully stated reasoning and conclusion of the primary trier of the facts. While most of the important material was not given in oral evidence, it is still not possible, apart from on a full rehearing de novo, to recreate the advantages that the primary fact finder had of assimilating the evidence as it gradually unfolded and having very considerable, focussed time to weigh its significance and value. 49.The subject of the criticisms was essentially religious: Mr Jones and his callers evidently thought that a religious leader had made stupid and offensive remarks in the course of a religious sermon to co-religionists in a place of religious observance. His offensive remarks were allegedly not disavowed by any of the other religious adherents present. When his remarks became public, there was allegedly tardiness in their being disavowed by fellow religious adherents and, for a while, apparent acceptance of them. There was apparently no disciplining of the offending cleric. The only leaderships or community who might have been able to discipline him or to disavow him in the name of their religion were Muslims considered as religious adherents. 50.The evidence is not all one way. The sense conveyed on some occasions, particularly having regard to the contextual material, was that local Muslims considered as a group having an alien culture generally were being strongly criticised. However, assuming that there is no legal onus of proof, the Tribunal nevertheless needs to be moved to hold a comfortable satisfaction of mind that in the Schedule B material as a whole something more than just a religious group was targeted, and the matter should not be weighed 'on golden scales'. The Tribunal below considered that the ordinary, reasonable listener would have construed the group or groups referred to as the Muslim not Lebanese Muslim community, and [concluded] that Mr Trad was targeted as a Muslim religious leader not a Lebanese Muslim leader. (at [156]) 51.We do not presently have a comfortable satisfaction of mind that the actual material complained of would have been understood as targeting Muslims as other than a religious group. It cannot be accepted that in Australia, Sydney or the Bankstown area references to Muslims are necessarily to a group not '[only] identified ... as a religious classification', as Ms Nomchong seemed to put it and the experts appeared to argue. The ground of the alleged incitement 52.Even if that be a mistaken view, s20C(1) requires that it be shown that a putative vilifier has by a public act incited hatred etc. of a person or group on the ground of the race (including the ethno-religious origin) of the person or members of the group. 53.In many cases the identification of the targeted group as one whose members have an ethno-religious origin will go far, perhaps even the whole distance, to identifying the ground of the alleged incitement. But that is not necessarily so. Nor is it the case that to condemn the religious practice or behaviour in a religious context of a person or group ethno-religiously defined for its allegedly destructive tendencies against the mainstream culture is necessarily to condemn it on the ground of their ethno-religious origin. One may say with impunity of such a group that its religious beliefs and practices are odious, whether or not such a statement would involve the necessary element of incitement. 54.In the judgment of these matters of characterisation, having regard to the respect for free speech inherent in the Act, it is appropriate not to diminish unduly the right of free speech, however regrettable its exercise, by a too ready willingness to fit generally lamentable excesses into the categories proscribed by the Act. 55.It presently seems to us tolerably clear that the ground of the strong complaints aired in the Schedule B material was religious only. Tentative conclusion 56.For those reasons Mr Trad's appeal would ultimately fail. It would not be necessary to consider the factual questions concerning incitement." 3Having regard to the written submissions filed by all parties in accordance with the Tribunal's directions, we now give our final reasons on those questions. 4The Appeal Panel has been assisted by the further written submissions of Counsel. 5Ms Eastman submitted that the Appeal Panel should confirm its preliminary view that it would not be satisfied that the contents of the Schedule B broadcast were directed to Muslims as an ethno-religious group, as distinct from Muslims as adherents to the Islamic religion. Ms Nomchong submitted the opposite. In summary, her reasons were that the use of the term "Muslim" in the broadcast answered a number of the factors identified by the Appeal Panel in its second decision as being relevant to whether a particular group exhibits an 'ethno-religious' character attracting the protection of the Act. They included the fact that a large proportion of Muslims in Australia are immigrants or descendants of immigrants, and the suggestions that they are a 'socially recognisable minority' in Australia, that they recognise Arabic as a common language, that their way of life - particularly their food, prayer activities and female dress - is distinctive, and that serious social consequences can result from apostasy or marrying outside the group. 6Ms Nomchong also submitted that the context in which the broadcasts were made themselves indicated that Muslims were being targeted, not because of their religious beliefs, but because they were considered as 'outsiders' within the community. She highlighted a number of statements which could reasonably have been regarded as offensive. 7Despite Ms Nomchong's submissions, we confirm the preliminary view expressed in our second decision. 8We repeat that: (a)only part of the matter in Schedule B was complained of in Mr Trad's complaint before the Tribunal (b)the matter complained of was quite confined, and (c)the relevant contextual material is that which preceded the matter complained of. 9The references in the above extract from our second decision to "the Schedule B material" are to be understood as references to those relevant parts of the Schedule B material. 10While the matter is one of overall assessment rather than easy recognition, in our opinion the group targeted consisted of Muslims considered as religious adherents. Any shared characteristics of that religious group that might make it reasonable to view the group as one of ethno-religious origin were, on our assessment of all the relevant material, neither targeted nor indivisibly caught up in the targeting of the religious group considered as such. The mere fact that some or even most of the factors identified in the second decision as being relevant to whether a group is of an 'ethno-religious' character might exist is not necessarily determinative. Context is more important, particularly in determining whether 'the actual material complained of would have been understood as targeting Muslims as other than a religious group'. Having regard to the relevant contents of the Schedule B broadcasts viewed as a whole, we are unable to be comfortably satisfied that it would have been so understood by an ordinary reasonable listener. 11In any case, in our view the criticisms made by Mr Jones in the Schedule B material complained of (however unfortunate they might have been), understood by reference to the relevant contextual material, were most likely made on the ground of religion only. Conclusion 12Mr Trad's appeal must therefore fail and the ultimate conclusion of the Tribunal at first instance as to the Schedule B material complained of will not be disturbed. Costs 13We invite short written submissions from the parties within 14 days as to the costs of this appeal, the costs of the appeals by Mr Jones and Harbour Radio, and costs in the Tribunal below, which were deferred pending the outcome of these appeals. 14In that regard, we note that the complainant, Mr Trad, was successful at first instance in proceedings brought in the Equal opportunity Division. His success has been confirmed on appeal. The possible 'chilling effect' referred to in Murtough v NSW Bar Association [2011] NSW ADT 243 would appear not to arise for consideration in relation to the proceedings at first instance. 15The appeals of Mr Jones and Harbour Radio have been unsuccessful, except on quite minor and relatively unimportant aspects. In other jurisdictions, they would be obliged to pay almost all of Mr Trad's costs of those appeals, had they been heard alone. However, they were not heard alone, but with Mr Trad's appeal. That appeal was ultimately unsuccessful, though it succeeded in attracting leave to extend to the merits, after success on an important point of law. Much of the hearing time and the voluminous material filed was relevant to both appeals. Orders 16For the reasons expressed in this decision, and in our first two decisions, Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 and Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62, the Appeal Panel makes the following orders: 1) Save for order No 2 made in Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62, the appeals Mr Jones and Harbour Radio are dismissed. 2) Grant leave to Mr Trad to extend his appeal to the merits. 3) Mr Trad's appeal is dismissed. 4) Unless the parties notify the Registrar as to an agreement on the costs of the appeals and costs in the Tribunal below, they are directed to file and serve written submissions on costs within 14 days, and have leave to serve written submissions in reply within a further 14 days. ********** 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: 02 October 2012