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NSW Crest

Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:
Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62
Hearing dates:
23 & 24 August 2010, 14 October 2010
Decision date:
21 December 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 28 days any further written submissions (not exceeding five pages in length) as to the merits in the light of our reasons, and within 14 days after such service any reply (not exceeding two pages in length) to the opposing party's submission.

2. As to the direction of the Tribunal below 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",

the appeal of Mr Jones and Harbour Radio is extended to the merits on this point, the direction is set aside and in lieu the following direction is given:

"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."

3. The case is adjourned to a date to be fixed for further consideration should the Tribunal consider that it cannot be determined upon the basis of the written material filed, in accordance with Section 76 of the Administrative Decisions Tribunal Act 1997.

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.
Legislation Cited:
Anti-Discrimination Act
Administrative Decisions Tribunal Act 1977
Evidence Act 1995
Cases Cited:
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

1In our first decision (see [2011] NSWADTAP 19) we dealt with appeals by Mr Jones and Harbour Radio and invited further submissions in relation to Mr Trad's appeal. We now give our decision in relation to the outstanding issues. These reasons must be read in conjunction with the reasons for the first decision to appreciate the factual matters and their contexts.

2The two matters raised by Mr Trad were:

  • 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
  • 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.

3Mr Trad categorised 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.

4In 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 or quasi-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.

5Mr 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.

6To 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

7The 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.

8There 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)).

9The Tribunal dealt with these matters in the following way:

Are 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.

Who or what group was the target of the broadcasts?
126 In his Points of Claim Mr Trad identified the group vilified [by the Schedule 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.

10Mr Trad called evidence from two apparently well-qualified sociologists. That evidence included the facts and opinions extracted in the Second Appendix to the first decision (see [2011] NSWADTAP 19). 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 material 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.

11We 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, and we stress the importance of the context, verbal abuse aimed at people identified by the abuser as 'Muslims' might indeed be abuse of them as a group of 'ethno-religious origin' without the necessity to show precisely that Muslims of some common ethnicity were targeted. In our view, there was much helpful material that might have been of persuasive value in the experts' report, notwithstanding (with due respect to a discipline that is not our own) that some of the jargon and an occasional problematic scent of post-modernism, and that in parts the report is best seen as submissions.

12It 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.

13In our view there is no simple answer to the questions raised by Mr Trad's appeal. As the statutory concepts 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 only 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 integrate with us and their first allegiance is to their fellow Muslims, including terrorists such as Al Qaeda', that might (depending on all the evidence) well be seen as an insult to Muslims seen as a group of ethno-religious origin, and on the ground of that origin.

14S 4, it will be recalled, 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.

15As a matter of purely textual interpretation, the 'ethno-religious origin' of a group must be a species or subset of, or practically synonymous with, the religious origin of the group. If the 'ethno-religious origin' of a group were a species or subset of, or practically synonymous with, the ethnic origin of the group, 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.

16It is doubtful whether there is any received ordinary meaning of the terms 'ethno-religious' or 'ethno-religious origin'. A number of dictionaries do not recognise the term 'ethno-religious' let alone 'ethno-religious origin'. In ordinary usage (to the extent that there is any), the imprecise expression 'ethno-religious origin' of a group may not have the limited meaning just indicated: it might mean a group defined by the ethnic origin of its members which also has a common religious background. But because such an ethnic origin would of itself constitute that group a race within the statutory definition, that is very unlikely to be the meaning intended by the statute.

17Two NSW Attorneys General in relevant parliamentary speeches about the Act indicated that the original intention of the inclusion of groups of ethno-religious origin in the definition of "race" had been to include groups such as 'Jews, Muslims and Sikhs'. In the second reading speech on the Anti-Discrimination (Amendment) Bill 1994 on 4 May 1994 Hon J L Hannaford MLC said:

"Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include concepts of descent and ethno-religious origin.... The effect of the later amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present, it is not clear whether such groups are covered by the racial vilification discrimination provisions, although this would appear to be the position at common law. The amendment will make it clear that vilification or discrimination against a person on the basis of ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with existing judicial authority from both New South Wales and overseas which indicates that ethno-religious background is included in the legal concept of race."

18On 16 September 2004 in a second reading speech on another Anti-Discrimination Amendment (Miscellaneous Provisions Bill) Hon R J Debus MLA said:

"I mention in passing one other matter relating to the definition of "race" within the Act. In 1994 the then Attorney, Mr John Hannaford, MLC, in moving the second reading of an earlier bill to amend the Act, noted that the term "ethno-religious origin" was being added to the definition of "race", and I quote; to clarify that groups such as Jews, Muslims and Sikhs, have access to the racial vilification and discrimination provisions of the Act.

Since that time the term ethno-religious origin has been given a narrower judicial interpretation. However, it is important to reiterate the Government's clear position that the original intention of these provisions should continue to apply - that is, that members of specific groups who share a common religious and cultural identity , such as Jews, Muslims and Sikhs, should continue to be protected by the racial discrimination provisions of the Act. Recent international events have highlighted the importance of ensuring that the flames of irrational prejudice are not directed towards the vast majority of law-abiding citizens in New South Wales, regardless of their ethno-religious origin. The Anti-Discrimination Act is designed to protect all such citizens from prejudice and bigotry." (emphasis in italics added)

19While resort to parliamentary speeches may assist in the elucidation of the meaning of statutes, they are of course not determinative. Nevertheless, Mr Debus' language is particularly interesting: he spoke of members of the named groups sharing a 'religious and cultural identity'. The inference seems to be that some religious groups with sufficient cultural characteristics to amount to part of their identity were to be afforded protection as if they were of the same race or had a common ethnic origin, even though Parliament was apparently assuming (rightly or wrongly) that they could or might not fairly be seen simply as groups having a common ethnic origin.

20As will be seen, that inference happens to accord with our own conclusion from legal processes of statutory interpretation: 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.

21As Ms Eastman emphasized, the statutory concept is not 'ethnic group' but the 'ethno-religious origin' of a person or group. The constituent concept of 'origin' cannot be ignored. It serves to indicate that the relevant aspects of the group are not transient or novel. On the other hand, 'origin' cannot in the context of this legislation be construed too strictly. The concept of a 'religious origin' (which is itself qualified further as ethno-religious), as distinct from an ethnic, national or racial origin, is not an easy one, particularly in a statute which is at evident pains to balance a prohibition on some of the worst products of bigotry and xenophobia with protection of freedom of speech, and which resolutely sets its face against outlawing vilification solely based on religious grounds. In the context, 'origin' must be taken to mean something like a distinct, shared, actual or assumed history or background deeply affecting members of the subject group (thus, if the subject extension of 'race' is really necessary to protect Jews, the many irreligious persons who culturally so identify would also have protection).

22Ms Eastman also rightly cautioned against focussing only on verbal vilification to discern the meaning of 'race' or 'ethno-religious origin'. The expressions have application well beyond verbal abuse and to a range of different areas. These terms are not limited to vilification claims and apply to claims of race discrimination in the areas of employment, education, services, accommodation and clubs. The widespread ramifications of the possible interpretations need to be borne in mind.

23The legislative failure in NSW to outlaw discrimination (including by vilification) against religious groups was not accidental. The general and longstanding international consensus, as evidenced by the great international human rights treaties, has maintained, as Ms Eastman points out, a distinction between race and religion with racial discrimination being far less tolerated.

24One may ask then: what is the mischief likely to underlie the legislative extension of the concept of 'race' from the inclusion of 'ethnic origin' to include also 'ethno-religious origin'? The answer appears to be plainly enough what Mr Debus called 'the flames of irrational prejudice': the misery, and corresponding cruelty and injustice, often attendant on permitting hate speech and conduct or discrimination in important areas of economic and social activity against people who are different from the vilifier in ways that closely resemble the differences that readily recognisable ethnic groups more properly so-called have, on the ground of such difference. Many minority (and majority) religions and their adherents may at times come in for serious insult or discrimination: Scientology, Exclusive Brethren, Mormons, Hare Krishna, Moonies, to name a handful. The Act nevertheless staunchly refrains from protecting religions and their adherents from even the strongest condemnation or discrimination. On the other hand, it is very unlikely that Parliament meant to distinguish between the protection or lack of protection available to persons considered only as adherents of different religious beliefs or of none. It is unlikely that the quiet exercise of their cherished religious beliefs by Catholics, Anglicans, other Christians or the irreligious was thought less worthy of legislative protection than that by Jews, Muslims or Sikhs.

25The statutory line has been drawn, in our opinion, by requiring that there be characteristics of the 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 not fairly be said that the group has an ethnic origin.

26However inconvenient it may be for complete certainty of the law, it is necessary, as we attempt to explain below, to look to social factors and current conditions affecting a group, as well as its more or less innate characteristics, to determine whether it is in fact one of ethno-religious origin. This means that the concept of an ethno-religious group is necessarily to a considerable degree contextual or, as the expert report put it, 'fluid and contextual'.

27In 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)

28In the generation that has passed since Mandla the word 'ethnic' has probably loosened even more in the usage and experience of the ordinary newspaper reader, listener to talkback radio or web surfer. In any case, although 'ethnic', as distinct from 'ethno-religious', is a word in common everyday use, Lord Fraser had regard to factors as to which expert evidence might be useful to examine whether the ordinary meaning of 'ethnic group' might apply to the subject group.

29It is also inescapable, as Lord Fraser recognized, that the actual content of words and concepts such as 'ethnic group' and 'group of ethno-religious origin' may vary with time. We would add that such content may also vary with place and the social landscape. The sociologists expressed such an idea in language apparently common in their field of discourse:

"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."

30To some extent what is here advocated is merely a somewhat florid extension of an actual social phenomenon shown by changes in ordinary meaning of the word 'ethnic'.

31Another potentially 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."

32The idea seems compelling that when an anti-vilification statute speaks of a 'group of ethno-religious origin' as an extension of the problematic concept 'race', it is not contemplating an entirely unchanging entity but a social construct or set of social constructs that is to some degree changeable, chiefly depending on the attitudes of others, including vilifiers, to those enduring aspects of the group that can fairly be said to be related to its origin. Thus 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 origin". As we have indicated, the word 'origin' operates as a stabilising influence against overmuch emphasis being placed on purely transient perceptions and attitudes. Further, the fact that it is the concept of 'race' that is being extended has a similar, colouring influence.

33The first necessary task is the identification of the group putatively vilified. That is a question of fact and will depend on what, objectively, the ordinary reasonable observer would, in all the actual circumstances, conclude was the group targeted. People, including vilifiers, in Sydney, for example may, depending on the context, use the term 'Muslims' to mean many things. These include: adherents to Islam wherever located; adherents to Islam throughout the whole world; followers of Islam in Bankstown or other parts of Sydney; people in Australia or some part of it of actual or assumed recent Middle Eastern descent and assumed to be Muslims; people of Indonesian or Malaysian descent assumed to be Muslims, or people known or assumed to be Muslims but assumed to be members of a different and inferior kind of civilisation from that of mainstream Australia - the possible 'other' more fully explained by the sociologists. Plainly, context is almost everything.

34The next question is whether the group so identified is one of ethno-religious origin. In many instances, the context will plainly indicate that no such group was being discussed. In other contexts to answer that question would require some inquiry into sociological aspects. Expert sociological evidence may clearly assist this inquiry, though it need not be determinative. In particular it cannot rewrite the statutory definition. The ultimate conclusion is of course for the Tribunal, but there is no reason for the a priori rejection or disregard of the evidence. Expert knowledge and opinion may also assist to frame or focus the inquiry in a factual sense.

35For example, the witnesses for Mr Trad cited academic literature including an article "Ethno-religious Politics in France: Jews and Muslims" by William Safran that referred to an analogous question and considerations that might have been thought useful for the disposition of this case:

"the diversity within the Jewish and Muslim categoric groups raises questions about the existence of a Muslim or Jewish community ... Nevertheless, these communities have been chosen for analysis because they are comparable; both are "ethnoreligious" categoric groups i.e. there is no clear dividing line between ethnicity and religion - the one being a cause, complement or substitute for the other; and the full membership of both communities in the French nation is often not readily accepted, because (a) they diverge from the Christian norm; (b) their presence is not deeply enough rooted, since a large proportion of their members are immigrants or descendants of immigrants and (c) their collective identities are in some measure "transnational", i.e they are strongly marked by a supplementary orientation to ethnic or religious kin in other countries, an orientation that raises the question whether these communities really "belong" in France in the same way as do more "authentically" French people."
(West European Politics (2004) Vol 27 No. 3, pages 423-451 (at 424))

36Given that the group must have a common religious origin, such matters as these (in no particular order) may be relevant to determining whether a particular group qualifies for the Act's protection:

  • Where a large proportion of the members of the group are immigrants or descendants of immigrants, how deeply rooted is their presence as part of the Australian community?
  • To what extent if any are their collective identities marked by a supplementary orientation to ethnic or religious kin in other countries?
  • As a matter of fact, does any such orientation or other social characteristic of the group arouse any common questioning of whether these communities really "belong" in Australia in the same way as do more "authentically" Australian people?
  • To what extent, if any, are the group and its members associated with a language other than English?
  • Is the group a readily socially recognisable minority?
  • Do its members tend to congregate to the practical exclusion of others, 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 among group members?
  • How serious are any social as distinct from religious consequences of marrying out of the group, or of apostasy?
  • Are its members generally seen in the wider society as outsiders?
  • Are its members subject to discrimination of kinds that ordinary, unprejudiced people might, in ordinary current speech, reasonably perceive as "racial discrimination" without the observers staying to consider the precise, formal meaning of that term?
  • Have external events involving co-religionists led to widespread serious condemnation of the group as a whole?
  • Has the name given to adherents of the religion come to have overtones of cultural, social or political, and not only religious, significance?

37Of 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.

38In Khan the Tribunal appears not to have accepted the textual limitations of the statutory term to which we have referred and seems to have assumed that an ethno-religious group must have a common 'nationality or ethnicity': it spoke at [20] of the term signifying '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'. In our view this is erroneous: it will suffice if the group has a common nationality or ethnicity as well as religion, but that is not necessary. All that is necessary is, as we have explained, that the person or group have a common religious origin and other characteristics that can fairly be seen as so closely akin 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 not fairly be said that the group has an ethnic origin.

39Further, the Tribunal apparently understood that it did not have the benefit of evidence of the kinds of mischief to which the statute was likely directed 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.

40The examples given in Khan of possible ethno-religious groups namely Javanese Christians, Bosnian Muslims or Northern Irish Catholics are, with respect, at least in the absence of evidence, not especially persuasive. The examples in fact show the contextual and therefore potentially fluid nature of the concept of an ethno-religious group. Close attention is needed to the context and to sociological facts. Such matters are susceptible to demonstration by evidence, including expert evidence. Resort may also be had to the kind of approach sanctioned by s144 of the Evidence Act 1995 and briefly discussed in our first decision at [2011] NSWADTAP 19 [77] . In that regard the requirements of procedural fairness must be kept in mind.

41In the present case it cannot be said, we think, that had the Tribunal adopted a more contextual approach, informed by sociological and, apparently, developing international jurisprudential thinking on the subject, it would necessarily have come to the same view that it did about whether '"Muslims" in the present particular contexts might constitute a 'race'. Not to adopt such an approach led to not asking the right question. The Tribunal asked itself 'Are Muslims a "race" within the meaning of the Act?' There is no non-contextual answer to this question.

42In our opinion, 'ethno-religious origin' is a particular statutory concept in the nature of a neologism for the legislative task at hand and to misconstrue it is an error of law. It is nevertheless not in the categories of a technical legal term nor a term special to any scholarly or other particular field of endeavour. Language, including statutory language, is too protean to be neatly divided between ordinary and technical. If it can be divided into ordinary and other, then this phrase falls within the 'other' category.

43We 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 on this and possibly consequential questions. Another option would be to remit the option to the Tribunal for reconsideration but as the presiding Judicial Member of the relevant panel is no longer available, it will be more efficient if we deal with the matter.

Extension of the appeals to the merits generally

44We see no reason to extend either of the appeals any further than as indicated. The original events complained of are old. We feel no general disquiet about the Tribunal's findings.

Preliminary view of the facts

The targeted group

45It 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.

46It 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.

47The 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.

48The 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.

49The 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.

50The 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])

51We 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

52Even 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.

53In 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.

54In 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.

55It presently seems to us tolerably clear that the ground of the strong complaints aired in the Schedule B material was religious only.

Tentative conclusion

56For those reasons Mr Trad's appeal would ultimately fail. It would not be necessary to consider the factual questions concerning incitement.

Addendum

57We omitted to make a formal order foreshadowed in our earlier reasons and now correct the oversight.

Orders

1. The parties are to file and serve within 28 days any further written submissions (not exceeding five pages in length) as to the merits in the light of our reasons, and within 14 days after such service any reply (not exceeding two pages in length) to the opposing party's submission.

2. As to the direction of the Tribunal below 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',

the appeal of Mr Jones and Harbour Radio is extended to the merits on this point, the direction is set aside and in lieu the following direction is given:

"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."

3. The case is adjourned to a date to be fixed for further consideration should the Tribunal consider that it cannot be determined upon the basis of the written material filed, in accordance with Section 76 of the Administrative Decisions Tribunal Act 1997.

 

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Decision last updated: 21 December 2011