Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Trad v Jones (No 7) [2014] NSWCATAD 225
• Hearing dates: 14 May 2014, 11 August 2014 and 21 August 2014
• Decision date: 19 December 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: N Hennessy LCM, Deputy President; M Bolt, General Member; Dr J Schneeweiss, General Member

Decision

1. The applicant's complaint of racial vilification against the first respondent in relation to the Schedule A broadcast is substantiated.

2. The applicant's complaint of racial vilification against the second respondent in relation to the Schedule A broadcast is substantiated.

3. The first and second respondents are to pay the applicant damages of $10,000.

4. If it has not already done so, the second respondent is to undertake a critical review of its 2005 programs and policies on the prevention of racial vilification with a view to developing and implementing revised programs and policies aimed at eliminating unlawful racial vilification.

5. The second respondent is to report to the Tribunal and Mr Trad within 6 months of the date of these reasons on the outcome of the review previously undertaken in compliance with the relevant order made by the Tribunal or the Appeal Panel or of the outcome of the review undertaken in compliance with order 4.

6. The Respondents are to pay the Applicant's costs thrown away by the adjournment of the hearing on 14 May 2014 such costs to be $15,000 or some other amount agreed between the parties. If the amount is not agreed, costs are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.

7. The Respondents' application for costs thrown away by the adjournment of the hearing on 14 May 2014 is refused.

Directions

1. Within 28 days of this decision each party is to file and serve any application for costs.

2. Within a further 14 days each party is to file and serve a response to any costs application.

3. Subject to considering any objection by either party, any application for costs is to be determined 'on the papers'.

• Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL -racial vilification - broadcast by Alan Jones on Radio 2GB relating to Lebanese men - identification of audience - perception of audience -capacity of public act to incite ordinary member of that audience to hatred, serious contempt or severe ridicule of a person - meaning and applicability of exceptions - relief - costs
• Legislation Cited: Anti-Discrimination Act 1977 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Administrative Decisions Tribunal Act 1997 (NSW); Broadcasting Services Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Racial and Religious Tolerance Act 2001 (Vic)
• Cases Cited: Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2005] VSCA 284; (2006) 15 VR 207; Eatock v Bolt (2011) 179 FCR 261; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62; Jones v Trad [2013] NSWCA 389; Kazak v John Fairfax Publications Limited [2000] NSWADT 77
• Category: Principal judgment
• Parties: Keysar Trad (Applicant); Alan Jones (First Respondent); Harbour Radio Pty Ltd (Second Respondent)
• Representation: Turner Freeman (Applicant); Baker & McKenzie (Respondents)
• File Number(s): 131126

reasons for decision

Introduction

1 In proceedings in 2009 the Tribunal found that part of Mr Trad's complaint of racial vilification under the Anti-Discrimination Act 1977 (NSW) against Alan Jones and Harbour Radio Pty Ltd had been substantiated. The part of the complaint that was substantiated related to what Mr Jones said on Radio 2GB at 9.20 am on Thursday 28 April 2005 - the so-called "Schedule A" broadcast. The Tribunal ordered certain remedies including that Mr Jones and Harbour Radio pay Mr Trad $10,000: Trad v Jones (No 3) [2009] NSWADT 318. Both parties appealed to the Appeal Panel of the Tribunal but neither was successful.

2 Mr Jones and Harbour Radio then appealed to the Court of Appeal. The Court of Appeal set aside the Tribunal's order substantiating the complaint in relation to the Schedule A broadcast and remitted that part of the complaint to the Tribunal for determination in accordance with law: Jones v Trad [2013] NSWCA 389. We will refer to that decision simply as the Court of Appeal decision. These are the Tribunal's reasons in compliance with that order.

The Schedule A broadcast

3 The Schedule A broadcast occurred on a Thursday morning in 2005 on Mr Jones' talk-back radio program. Mr Jones read a letter which he said he had received from a listener. He interposed and concluded with his own comments. The letter related to a television report on Channel Nine's, A Current Affair the previous evening showing young men at Brighton-Le-Sands and in Hickson Road near The Rocks, talking to reporters about their hotted up cars and their interactions with police. Some of the young men, who identified themselves as 'Lebs' taunted police and showed disrespect for the ANZAC tradition. Here is what Mr Jones said:

ALAN 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 program 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.

4 The reading of the letter and the comments Mr Jones made at the time comprise the Schedule A broadcast.

5 Despite Mr Jones saying, "Remember, these people announced themselves as Lebanese Muslims", the Respondents agree that no-one on the A Current Affair program referred to the Lebanese males as Muslims.

6 Mr Trad asks the Tribunal to find that the letter from which Mr Jones purported to read, was not a letter from a listener but words that Mr Jones or a member of the production team at 2GB wrote. That was not a contention which appeared in the pleadings and the Tribunal at first instance assumed, without making a specific finding, that the letter was genuine.

7 Mr Trad supports his submission that the letter was not genuine on three bases:

(1) the fact that Mr Jones repeats some parts of the material word for word, or close to word for word, the following day without directly attributing the words to a listener;

(2) Harbour Radio did not produce a copy of the letter in response to a summons; and

(3) neither Mr Jones nor anyone who had been employed by Harbour Radio at the time, gave evidence about the source of the letter.

8 The day after the Schedule A broadcast, Mr Jones was introducing Jeff Schuberg, a former Assistant Commissioner of Internal Affairs, NSW Police. In that context he repeated, word for word, some of the material from the letter he had read out the previous day. Other parts of the "letter" were repeated, but not verbatim. Mr Jones said:

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?

9 A summons was issued to Harbour Radio on 18 June 2007 to produce all letters that Mr Jones read out on that day and, in particular, the "original letter from the 'listener' to Alan Jones read out by him at 9.20 am on radio on 28 April 2005." Harbour Radio did not produce any documents in response to the summons.

10 Mr Thomas, the company secretary of Harbour Radio and the Chief Operating Officer of its ultimate parent company, Macquarie Radio Network Limited, gave evidence in relation to the failure to produce any documents in response to the summons. He stated that during the relevant period Harbour Radio did not have a practice of retaining emails for more than a "very limited" period of time. When he received the request he says he spoke to Mr Jones' production team to arrange a search of their hard-copy files and their email files. He also says he spoke to the Engineering Manager and asked him to search the systems to see if there were any email files or back-up tapes that could contain these documents. Despite their searches it was reported that these employees were not able to find any relevant emails or correspondence and none was provided to Mr Trad.

11 Mr Thomas was not employed by Harbour Radio until 2006, that is after these events had occurred. Neither Mr Jones nor any employee of Harbour Radio gave evidence about the procedures in relation to the receipt of letters or emails or in relation to the particular "letter" that Mr Jones read from. Some of the members of the production team at the time were still employed by Harbour Radio when the Tribunal first heard this matter in 2009.

12 The onus is on Mr Trad to prove that the letter was not genuine. That onus has not been discharged in this case. When reading the material for the first time, Mr Jones states that the material from which he is reading is a letter. He then apparently reads from a document which is already in writing. While he does not refer directly to the letter when he repeats some of the material the following day, he does indicate that the material comes from listeners when he says, "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?"

13 The rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 is that where a party to proceedings fails, without adequate explanation, to call a witness whom he or she (rather than any other party) might be expected to call, and whose evidence might be expected to elucidate a factual matter that is in issue, the court or tribunal may (a) infer that this evidence would not have assisted the party who failed to call the witness and (b) draw any inference adverse to that party which is otherwise open upon the evidence and which the witness might have been expected to contradict.

14 The fact that no member of the production team gave evidence means that we can infer that their evidence would not have assisted the Respondents. We are also satisfied that the inference that the letter was not genuine was "otherwise open upon the evidence". Nevertheless, considering the evidence as a whole, we are not satisfied that the letter was concocted by Mr Jones or an employee of Harbour Radio. Repeating the words the next day but not attributing those words to a letter from a listener does not persuade us that the letter was not genuine. Similarly the fact that the letter could not be produced several years later or that neither Mr Jones nor any member of the production team gave evidence is not sufficient in our view to enable us to draw that inference.

Racial vilification provisions

15 Section 20C(1) of the Anti-Discrimination Act makes racial vilification unlawful:

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.

16 A "public act" is defined in s 20B 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

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, 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.

17 There are three exceptions in s 20C(2). Only s 20C(2)(c) is in issue:

(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.

Issues now before the Tribunal

18 The scope of the complaint was determined by the Tribunal as a preliminary issue in Trad v Jones & Harbour Radio Pty Ltd [2014] NSWCATAD 72. This Tribunal is not re-hearing the entire complaint in relation to the Schedule A broadcast. Certain matters have already been determined and do not need to be decided again. They include:

(1) that both Respondents have engaged in public acts as defined in s 20B of the Anti-Discrimination Act;

(2) that if Mr Jones has breached s 20C(1), then so has Harbour Radio; (Court of Appeal decision at [82])

(3) there is no issue of vicarious or accessory liability under s 52 or 53 of the Anti-Discrimination Act; and

(4) if the Respondents are found to have incited hatred, serious contempt or severe ridicule then that incitement is "on the ground of" race.

19 The Tribunal's first task is to decide whether Mr Jones and Harbour Radio have breached s 20C(1). In accordance with the Court of Appeal's decision at [62], when determining whether Mr Jones and Harbour Radio have breached that provision, the Tribunal must:

(1) identify the relevant audience; and

(2) consider the likely effect of the broadcast on an ordinary member (or perhaps an ordinary reasonable member) of that audience.

20 Each Respondent accepts that the letter that Mr Jones read out contains derogatory and offensive comments about Lebanese males, using words such as 'vermin' and 'mongrels' and stating that they 'hate our country' and 'simply rape, pillage and plunder a nation that's taken them in." Each Respondent also accepts that Mr Jones made comments and observations in relation to the letter but does not accept that their conduct breaches the racial vilification provisions of the Anti-Discrimination Act.

21 If the Tribunal finds that Mr Jones and Harbour Radio are in breach of s 20C(1) then, in accordance with the Court of Appeal's decision, we should consider whether Harbour Radio has established the exception in s 20C(2)(c). There may be a residual issue as to whether that exception also applies in respect of Mr Jones depending on our finding in relation to the relevant audience.

22 In summary, the Tribunal must determine the issue of liability for racial vilification by addressing the following questions:

(1) Who was the relevant audience to whom the Schedule A broadcast was directed?

(2) Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hate Lebanese males?

(3) Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hold Lebanese males in serious contempt?

(4) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act apply to the Schedule A broadcast in respect of Mr Jones?

(5) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) apply to the Schedule A broadcast in respect of Harbour Radio?

23 If the complaint is substantiated the Tribunal must also decide what relief, if any the Tribunal should give. Finally, any applications for costs must be determined.

24 The parties identified, and the Tribunal ruled on, the evidence which had been adduced before the Tribunal in 2009 and which is relevant to the issues before this Tribunal on remittal. It is that evidence that we have taken into account.

Meaning of "incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons"

25 In the Court of Appeal decision, Ward JA at [26] and [27] expressed the view that the task of construing the racial vilification provisions should be approached "with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression."

26 The concept of 'incite' or 'incitement' is the critical element of s 20C(1) of the Anti-Discrimination Act. Mr Trad bears the onus of satisfying the Tribunal that the Respondents have incited hatred, serious contempt or severe ridicule of Lebanese males.

27 In Sunol v Collier (No 2) NSWCAT 44 at [26] Bathurst CJ (with whom Allsop P and Basten JA agreed) noted that 'incite' when used in the identically worded homosexual vilification provision, has its ordinary natural meaning, being "to rouse, to stimulate, to urge, to spur on, to stir up, to animate." It is insufficient for the public act to merely convey or express hatred, serious contempt or severe ridicule. The Chief Justice also made the well-accepted observation at [29] that it is not necessary for a person in fact to be incited by the words or publication.

28 In relation to whether it is necessary to prove that the Respondents intended to incite the requisite emotion, Bathurst CJ in Sunol v Collier at [30]-[31] proceeded on the basis that intention to incite was not necessary, without finally deciding that issue. We also adopt that course.

29 The dictionary definitions of 'hatred', 'serious', 'contempt', 'severe' and 'ridicule' were set out in Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]:

"hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford);

"serious" means "important, grave" (Oxford); "weighty, important" (Macquarie);

"contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account"(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);

"severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme"(Macquarie);

"ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at"(Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie).

30 In the Court of Appeal decision, Ward JA accepted the view expressed in Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [113] that the offending words should be assessed in the context of the entire broadcast.

31 There has been a divergence of views as to whether incitement is to be assessed with the "ordinary reasonable" member of the audience in mind or whether the test is addressed to the "ordinary" member or the "reasonable" member. Ward JA did not need to decide that issue in the Court of Appeal decision and characterised the test as the "ordinary member (or perhaps an ordinary reasonable member)."

32 The view of Bathurst CJ in Sunol v Collier was that the question is to be answered by reference to the 'ordinary' member. At [34] Bathurst CJ explained his preference for that test:

[T]o determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.

33 We adopt that view.

Identification of the audience

34 The Court of Appeal's decision at [62] and [63] makes it clear that the Tribunal must make a finding of fact identifying the audience. The purpose of making such a finding is to assess whether the public act would "reach the mind" of the audience as something which encourages or incites the relevant reaction. The audience must be identified keeping that purpose in mind.

35 In many cases the audience will comprise the "general public" of newspaper readers, television watchers or internet users to whom Nettle JA referred in Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2005] VSCA 284; (2006) 15 VR 207. In other cases the audience will be more select. Nettle JA regarded listeners to talk-back radio as being in the "select" category because his Honour could conceive that a statement made in the course of a talk-back radio broadcast could amount to racial vilification when the same thing said in a more academic context may not have the required effect.

36 The Respondents submitted that since Mr Trad had failed to adduce any evidence about the audience, he had failed to discharge his burden of proof and his complaint must fail on that ground.

37 A complaint of racial vilification is not doomed to fail because an applicant does not adduce evidence identifying the relevant audience. While it is necessary to identify the audience, in most cases evidence will not be required. The identity of the audience will be obvious from the evidence relating to the public act. In this case we know, without evidence, that the audience was those people listening to Mr Jones' program at the relevant time.

38 The Respondents adduced further details of the audience including the number of people listening, their location, their age and their sex. That evidence is only relevant if it supports an inference that an ordinary member of that audience would or would not be likely to be incited to the requisite standard by the Schedule A broadcast. We address that issue below under the heading "Likely effect on the audience".

39 Mr Thomas gave evidence that Radio 2GB broadcast Mr Jones' program to the 'licenced area' which can be described in general terms as the Greater Sydney Metropolitan area. In 2005 the total population of the Sydney area, aged 10 years and older, was approximately 3,754,000 of which 991,000 resided in the licenced area. As well as a degree of "overspill" allowing listeners outside this area to tune in, 2GB streams over the internet providing access to listeners living outside the licenced area.

40 The Respondents adduced evidence of two audience surveys conducted by Neilson Company (Australia) Pty Ltd during the relevant period. The sample surveys were drawn from between 1750 and 2400 people over 10 years old who agreed to complete the survey. The surveys estimated that between 5.30 am and 10 am on Tuesday to Friday, an average of between 151,000 to 157,000 people listened to the program. If those figures are accurate, the survey sample size was approximately 1.1 - 1.6% of the total audience.

41 On the basis of the surveys the Respondents estimated that the average number of listeners to 2GB between 5.30 am and 10 am on a Tuesday to Friday ranged from 151,000 to 157,000. Of those listeners:

(1) between 70-75% were aged over 55 years;

(2) between 50-55% were female;

(3) between 73-78% were listening at home;

(4) between 13-17% were listening while driving; and

(5) between 6-8% were listening while at work.

42 There was no direct evidence of how often people in the audience listened to Mr Jones on Radio 2GB. We can infer, however, that most who agreed to participate in the survey would have been regular listeners.

43 We find that the audience comprised those people listening to Mr Jones' commercial talk-back radio program at 9.20 am on 28 April 2005, either on the radio or via other means such as the internet. They were approximately 151,000 to 157,000 in number and the vast majority lived in the Greater Sydney metropolitan area. We also know the approximate percentages of males and females, those over and under 55 years old and whether they were listening at home, while driving or while at work.

44 It follows from this finding that we do not accept the Respondents' submission that "an ordinary member of the audience is a woman at home over the age of 55". While more than 50% of people listening were women, more than 50% were over 55 years old and more than 50% were listening at home, we do not know the percentage of people who fell into all three categories. It may have been less than 50%. Regardless of the proportion, the effect of the publication on men, people under 55 years old and those not listening at home should not be ignored, if it can be gauged. The question to be determined is whether the Schedule A broadcast would "reach the mind" of an ordinary member of that audience as something which would encourage the requisite emotion. It is not whether it would encourage the requisite emotion in a sub-group of that audience, particular if that sub-group is not necessarily in the majority.

Likely effect on the audience

Introduction

45 Once the audience has been identified, the Tribunal's task is to determine whether the Schedule A broadcast was capable of inciting serious contempt or hatred for Lebanese males by reference to an ordinary member of the particular audience to whom the public act was directed: Sunol v Collier (No 2) [2012] NSWCA 44 at [34] and [72]; Trad v Jones (No 3) [2009] NSWADT 318 at [62].

46 The answer to that question depends on several matters including:

(1) the content and context of the broadcast;

(2) Mr Jones' standing in the community;

(3) Mr Jones' tone, style and technique; and

(4) the propensity of an ordinary member of that audience to be incited.

Schedule A broadcast and its context

47 We have set out the content of the Schedule A broadcast at [3] above. Lebanese males are described as being "idiots", "mongrels" and "hating our country and heritage". The assertion is made that these men "simply rape, pillage and plunder a nation that's taken them in." They are then described in sub-human terms as "vermin infest[ing] our shores." These words, which are highly insulting and inflammatory, portray Lebanese men in an extremely negative way suggesting that they rape and are warlike and violent. The words "vermin" also carry the inference that they are unwanted parasites. Lebanese males are a threat - a "national security problem in the making".

48 That content is not limited to Mr Jones' own words. He is also responsible for the statements read out from the letter he received from a listener. It was Mr Jones who had the ultimate choice as to which letters and emails to read out and who to speak to. There is no doubt that Mr Jones endorsed the views of the correspondent.

49 The overall context is that Mr Jones is presenting on a commercial talk-back radio station in which, we acknowledge, presenters are expected to express opinions and encourage debate, not necessarily to report objectively on the news or facilitate a discussion. The issues being discussed were of public interest.

50 The immediate context is that Mr Jones is responding to the report on A Current Affair about the behaviour of Lebanese males at Brighton-Le- Sands and Hickson Road and the police's response to that behaviour. On 16 April 2005 two men were killed in a drive-by shooting on Hickson Road near The Rocks. There had also been media reports of young men driving hotted up cars and drag racing in the area. Ten days later, and two days before the Schedule A broadcast, Mr Jones made the following comment:

It's 8 to 8. I mentioned all last week the chaos that overtook that area in Miller's Point it is, actually not The Rocks, Hickson Road a week ago last Saturday, last Friday and Saturday night. Now, the story is simple . . .As I said stop talking about drag racing, doughnuts, burnouts, hoons and blaring music. Just ask yourself what's legal and what's illegal and the police to deal with the illegal. That's all we need them to do.

51 Mr Jones then told his audience that he had sent Jessica Horton, from his newsroom, to Hickson Road the previous Friday and Saturday nights to see what had gone on. Mr Jones interviewed Ms Horton who agreed with him that there had been heavy police presence and police had been moving on any cars which had stopped in a particular zone. She also agreed with Mr Jones that "the hoons and the yahoos" got the message.

52 That evening, 26 April 2005, Channel Nine's A Current Affair hosted by Ray Martin, broadcast a report about young men driving "hotted up" cars in the areas of Brighton-Le- Sands and in Hickson Road near The Rocks. Part of the report was filmed at 10 pm on Sunday 24 April, the eve of ANZAC Day. The reporter (not the young men as Mr Jones' later suggests) said the area had been described as "Beirut by the Bay". One young man alleged that "the coppers are going hard on us". The report also showed young men taunting police with songs about pigs and pretending to observe a minute's silence for ANZAC Day. The then shadow Minister for Police, Michael Gallager, commented about the need for a police crackdown.

53 The report then focused on the shooting of two people in Hickson Road ten days earlier. According to the reporter, after many years of inaction, police were finally doing something about it. Young men described the police presence as a "random Lebo check". One young man challenged a police officer to a fight. The report then showed a clip of presenter Steve Price on Radio 2UE telling police they should fight back "one on one" and teach them a lesson. One young man then said, "From us Lebos, we ride together, we die together."

54 The following day, 27 April 2005, Mr Jones took a call from "Kay" who said she was "disgusted" and felt "sick in the stomach" by the fact that police officers had not responded when "Arabs", one of whom "could hardly speak English" insulted and threatened them.

55 Later the same morning Mr Jones told his listeners that the producers of A Current Affair had called him and told him they were "going to show the footage again on tonight's program." After some other commentary, Mr Jones says to his listeners, "Have a look at it on A Current Affair today 6.30 Channel Nine."

56 The presenter of A Current Affair, Ray Martin, promoted the show on Mr Jones' program:

I'm Ray Martin for A Current Affair. Our hoons - have authorities let them become a law unto to themselves. I've seen them threatening police with violence. What's really outrageous is they're allowed to walk away. That exclusive tonight 6.30.

57 The following day, 28 April 2005, shortly after 6 am and prior to the publication which constitutes the Schedule A broadcast, Mr Jones repeated many of the taunts and comments that the Lebanese males had made on the A Current Affair program and criticised the police's response. Mr Jones then spoke to callers including "Phil", who referred to the Lebanese males as "ultimate scumbags" and "Angie" who said that she would not go to Brighton-Le-Sands any more because it's "one big party of the Lebanese community". Mr Jones was critical of the behaviour of the Lebanese males and called on the public to "put their foot down".

58 At about 9.20 am Mr Jones broadcasts the "Schedule A" Broadcast.

59 The day after the Schedule A broadcast, Mr Jones continued his commentary including repeating some of the material in the "letter" which we have reproduced at [8] above.

Mr Jones' standing in the community

60 Mr Jones joined 2GB in 2002. He was, at the time, Sydney's most listened to radio presenter and a well-known public figure. He was a former speechwriter and senior advisor to the then Prime Minister, Mr Malcolm Fraser (who was Prime Minister from 1975 to 1983) and was a successful Australian rugby union coach. He has received a Queens' Birthday honour - an Officer of the Order of Australia -- partly for his service to the media and sports administration but also for his charitable work. He has received many awards over the years from the Australian Commercial Radio Awards.

61 Mr Jones, by his own account, received a great deal of correspondence from listeners over the period in which the report on A Current Affair was being discussed. His degree of influence is apparent from the fact that the producers of A Current Affair contacted him on 27 April 2005 and told him that they would repeat the "car hoons" report that evening.

62 Because of his high profile and status his opinions are respected and carry significant weight with his listeners.

Mr Jones' tone, style and technique

63 One of Mr Jones' techniques when reading correspondence is to interpose with his own remarks and endorse the comments of others. We agree with the analysis of the Tribunal at [172] of the decision at first instance (Trad v Jones (No 3) [2009] NSWADT 318) that this has an encouraging and stimulatory effect. Mr Jones feeds ideas to listeners who then call in and repeat back his own ideas. In the Schedule A broadcast Mr Jones has adopted the ideas and language of a listener and fed those ideas back into the discussion. The day after the Schedule A broadcast, when setting the scene prior to an interview with a former senior police officer, Mr Jones repeated the words from the letter including calling the young Lebanese men "vermin" and "mongrels" and saying that, "they hate our country", "they've got no connection to us" and "they simply rape, pillage and plunder a nation that's taken them in."

64 Mr Jones' tone and style may be described as energetic and effusive. According to the Respondents, he employs that tone and style in relation to everything he is commenting on whether it be an interview with Michael Buble or a political topic. We accept that Mr Jones generally speaks in an energetic and effusive manner but a more strident and populist style is reserved for political issues including those relating to the behaviour of Lebanese males and the police response as portrayed in the A Current Affair program.

Likely effect on the ordinary member of the audience

65 Having identified the content, the context, Mr Jones' considerable influence and some of the techniques and styles he adopts, it is necessary to consider whether the Schedule A broadcast would reach the mind of an ordinary member of the audience as something which encourages the required emotion. The propensity of the ordinary member of that particular audience to be incited is relevant if it can be gauged.

66 While the Respondents accepted that Mr Trad does not need to establish actual incitement, they made two submissions which suggest that they did not agree fully with that proposition. Firstly, the Respondents noted that Mr Trad adduced no evidence of any listener being incited. As we have said, the test is not whether a person has actually been incited. Consequently failure to adduce evidence of actual incitement is unremarkable. Secondly, the Respondents submitted that Mr Trad "must point to some evidence that the audience was likely to have the requisite response because of the Schedule A broadcast." While that is no doubt correct, the public act itself, in context, may be all the evidence that is necessary. An inference may be drawn on the basis of the content and context of the public act and the style, tone, influence and status of the speaker.

67 In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2005] VSCA 284; (2006) 15 VR 207 Nettle JA was addressing the issue of the propensity of the audience to be incited in the context of the Racial and Religious Tolerance Act 2001 (Vic). Sections 7 and 8 relate to racial and religious vilification respectively and are in similar terms to s 20C(1). Section 11 provides an exception similar to that in s 20C(2)(c). Nettle JA made the point at [16] that if conduct is to incite a reaction it must "reach the mind of the audience as something which encourages that reaction". The question of whether it has that effect will depend upon the perception of the audience. His Honour added at [18], that, "[T]he perception of a reasonable member of the class of persons to whom conduct is directed will not always be the same as the perception of the so-called ordinary reasonable reader." Nevertheless, in New South Wales, the test is not the reasonable member of the audience but rather the 'ordinary' member.

68 In Catch the Fires Ministries Inc v Islamic Council of Victoria Inc at [17], Nettle JA distinguished between a general audience, such as those reading a book or a newspaper or accessing material on the internet, and a "select" audience. In relation to a general audience, His Honour suggested that "one may need to have regard to all manner of persons who are likely to see them and absorb them." In relation to a select audience, such as a talk-back radio audience, Nettle JA suggested that the perception of members of that audience may differ from the perceptions of students or intellectuals listening to the same material in an educational context.

. . . it is conceivable that a statement made about religious beliefs in the course of a talk-back radio broadcast could run foul of s.8 of the Act while the same thing said as part of intellectual discourse within a seminary or faculty of theology would not have that effect. And examples can be multiplied.

69 In Sunol v Collier (No 2) [2012] NSWCA 44 Allsop P at [61] considered that a group of "impassioned bigots" would be more likely to be incited than a member of the general public:

The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.

70 Unsurprisingly neither party provided any direct evidence of the propensity of the particular audience to be incited.

71 Mr Trad submitted that the fact that the audience are listening to commercial talk back radio on 2GB means that they are more likely to be incited to the requisite level than an audience comprising a broader cross-section of the general public. Nettle JA speculated that that may be the case in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2005] VSCA 284; (2006) 15 VR 207. Mr Trad submitted, in the alternative, that the audience's propensity to be incited is no different from a cross-section of the general community.

72 The converse inference was put forward by the Respondents. They submitted that having regard to the fact that the audience knows that Mr Jones will discuss and have opinions about issues of the day, that they know his style is energetic and effusive and they wish to be entertained, as well as informed, an ordinary member of the audience would be less predisposed to be incited.

73 Neither party submitted that there was any basis on which we could draw an inference as to the propensity of the audience to be incited from the number of people in the audience, where they were located when listening to the broadcast, whether they listen on the radio or the internet, their sex or their age. It follows that the evidence that the Respondents adduced as to those matters does not assist the Tribunal to determine any issue in dispute.

74 We are not, in these proceedings, determining whether incitement was "on the ground of race". The Tribunal's finding that any incitement was "on the ground of race" was not affected on appeal. It follows that the Respondents' submission that an ordinary member of the relevant audience would have understood the Schedule A broadcast to refer, not to Lebanese males generally, but to a smaller group of young Lebanese who featured in the A Current Affair program, is irrelevant. That assertion, even if accepted, does not affect the question of whether the audience was incited to hatred or serious contempt.

75 The Schedule A broadcast used contemptuous and hateful language including words like "mongrels" and "vermin." Mr Jones stated that Lebanese males "rape, pillage and plunder." He portrayed Lebanese males as criminals and, as not only ungrateful, but as posing a threat to the Australian community. Mr Jones is one of the most powerful and influential radio presenters in Australia. It can be inferred that an ordinary member of his audience respected and tended to agree with his views. The propensity for them to be incited was, if anything, greater than that of a member of the general public.

76 The words, in context, urged or stimulated listeners to hatred or, at least, serious contempt of Lebanese males. In our view, there can be no doubt that it would have reached the mind of the audience as something which had that effect.

Applicability of public interest exception to Mr Jones and Harbour Radio

Background

77 Section 20C(2)(c) provides that "[N]othing in this section renders unlawful 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". The Respondents did not appeal against the Tribunal's finding that Mr Jones had not made out the "public interest" exception in s 20C(2)(c). But they did appeal on the ground that the Tribunal had been in error in failing to consider the application of that exception to Mr Jones and Harbour Radio separately. The Court of Appeal upheld that ground of appeal and one of our tasks is to determine whether Harbour Radio has made out that exception.

78 Despite the Court of Appeal's findings the Respondents submitted that our finding as to the relevant audience may lead us to have a different view of the applicability of the exception in relation to Mr Jones from that reached by the original Tribunal. Generally a party cannot raise a new matter of law for the first time on remittal. The Respondents should have made this point on appeal. Nevertheless, the Tribunal will consider whether or not its finding about the relevant audience affects the operation of s 20C(2)(c) in relation to Mr Jones.

Legal principles

79 There is no dispute that the purpose of the Schedule A broadcast was the discussion and debate about a matter of public interest namely response of police to drag racing and other anti-social behaviour in Brighton-Le-Sands and Hickson Road near The Rocks. The issue is whether the public act was "done reasonably and in good faith". The onus lies on Harbour Radio (and Mr Jones) to satisfy the Tribunal that the conduct was done "reasonably and in good faith": Anti-Discrimination Act, s104; Burns v Laws [2008] NSWADTAP 32 at [29].

80 The two elements of reasonableness and good faith must be addressed separately. Whether or not the conduct was done reasonably is to be assessed objectively. The publication must bear "a rational relationship to the protected activity and [not be] disproportionate to what is necessary to carry it out": Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [79] FrenchJ; Sunol v Collier (No 2) [2012] NSWCA 44 at [41].

81 The identification of the audience is relevant when considering whether the act was done "reasonably". The Respondents relied on the following passage from Bromberg J in Eatock v Bolt (2011) 179 FCR 261 which mentions "audience" as a relevant consideration when considering whether an act is done reasonably:

Considerations which may have a bearing on whether an act is done reasonably include 'time, place, audience, and whether or not gratuitously insulting or offensive matters, irrelevant to the question of public interest under discussion, have been included: Eatock v Bolt (2011) 197 FCR 261 at 340 [341].

82 The Respondents submitted that the reference to the audience in this passage is significant. But it should be borne in mind that this quotation is a summary of what Bromberg J understood French J to be stating in Bropho at [79] to [82]. It is instructive to set out in full what French J had to say about the relevance of a particular audience in the context of the equivalent exception in the Racial Discrimination Act 1975 (Cth). After noting that an act would be done reasonably in relation to publications on events or matters of public interest if it bears a rational relationship to those purposes, his Honour used an example which is relevant to these proceedings at [81]:

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'.

83 There is some disagreement as to whether "good faith" should be assessed both subjectively and objectively or just subjectively. French J, as he then was, preferred the combined approach in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [101]. Bathurst CJ preferred the subjective approach in Sunol v Collier at [41]. His Honour adopted the view of the Victorian Court of Appeal in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 at [92] where Nettle JA stated that:

. . . the requirement that conduct has been engaged in bona fide for a genuine religious purpose within the meaning of s 11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose.

84 As we are bound by the authority of the NSW Court of Appeal, we adopt the subjective test in relation to good faith.

85 The test was explained in the following terms in Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 at [122]:

If a statement or comment is made in "good faith" that would appear to be the converse of acting with malice. "Good faith" appears to imply the absence of "spite, ill-will or other improper motive". As with malice, "good faith" appears to be a state of mind and the crucial factor in determining the presence of "good faith" would seem to be "whether the commentator honestly believed in the truth of what he or she said".

Evidence in support of exception

86 Relevant material includes the content of the offensive material, any evidence given by the Respondent as to the circumstances, reasons and motives for the public act and the context of the publication including any pattern of conduct by the publisher of the statements.

87 The evidence that Harbour Radio put forward in support of this exception included written policies and codes of practice in relation to racial vilification and procedures for monitoring the broadcast such as the 'dump button'. Mr Trad highlighted the contractual relationship between Mr Jones and Harbour Radio as evidence that Harbour Radio had virtually no control over the content of Mr Jones' program.

Policies and codes of conduct

88 Harbour Radio is the holder of a Broadcasting Services Bands Licence (BSA Licence) issued under the Broadcasting Services Act 1992 (Cth). The licence authorises Harbour Radio to provide a Commercial Radio Broadcasting Service in the Sydney region. The relationship between Harbour Radio and Mr Jones is regulated by a Revised Services Agreement under which Belford Productions Pty Limited agreed to provide Mr Jones' services to Harbour Radio and, in particular, to produce for Harbour Radio a live breakfast radio program between the hours of 5.30 am and 10 am each weekday. Mr Jones provides his services in a similar way to that of an independent contractor. He is not an employee of Harbour Radio.

89 The Broadcasting Services Bands Licence provides for a scheme of regulation comprising a combination of co-regulation (the Commercial Radio Code of Practice supervised by the Australian Communications and Media Authority) and a system of statutory standard licence conditions.

90 Mr Thomas said that Harbour Radio was aware of its obligations with respect to racial vilification and compliance with the Commercial Code of Conduct.

91 Macquarie Radio Network on -air guidelines state that "Racial vilification is against the law and will not be tolerated by the Macquarie Radio Network under any circumstances." The Federation of Australian Radio Broadcasters Limited has also published a Code of Practice which prohibits publications which "are likely to incite hatred against, or gratuitously vilify, any person or group on the basis of ethnicity, nationality, race . . ."

92 On 26 April 2005 at about 8.50 am, a male voice made the following announcement on Radio 2GB:

This station endorses the Commercial Radio Codes of Practice which have been registered by the Australian Broadcasting Authority. The codes relate to taste and decency, accuracy and fairness in news and current affairs, advertising Australian music content and complaint handling.

93 The announcer went on to tell listeners how they could obtain copies of the codes and how they could make a complaint.

Monitoring procedures

94 Harbour Radio claims that it has a number of systems in place to monitor and review the content of the program to ensure, among other things, that it complies with those policies. Firstly, callers are "vetted' by a trained telephonist who asks what the person wants to discuss. One purpose of this question is to screen any "extreme or unmanageable callers". The presenter then decides who to speak to. The caller's details are displayed on a computer screen. This mechanism provides an opportunity to ensure that callers who express racist views are not put to air but it does not give Harbour Radio final control over the content of the program.

95 Another mechanism to address the risks of taking calls from the public on a live radio broadcast is the option to "dump" a call. Talk-back programs are broadcast with a seven second delay. Either the presenter or, if one is assigned, the panel operator, can hit the button to cut off a caller. While an employee of Harbour Radio could theoretically use the dump button if a caller is using language that is racially vilifying, there was no evidence that an employee has ever used that mechanism to avoid Mr Jones' comments or comments from his listeners going to air.

96 There was no evidence of monitoring procedures in relation to the circumstances where a letter or email is selected to be read on air.

Training of Mr Jones

97 To procure the compliance of its presenters with the relevant provisions of the Broadcasting Services Bands Licence, Harbour Radio said that it provides regular training to all presenters and production teams. In August 2004, eight months before the Schedule A broadcast, Mr Thomas gave evidence that Mr Jones attended training organised by Harbour Radio's Compliance Committee. Mr Thomas said that the training covered the "offence of racial vilification". This evidence is very general and does not satisfy us that Mr Jones has received professional training in relation to what does and does not amount to racial vilification.

Degree of control over the content of Mr Jones' program

98 Mr Jones provided his services to Harbour Radio through his company, Belford Productions Pty Ltd. The contractual arrangements between Harbour Radio and Belford Productions Pty Ltd are contained in the Revised Service Agreement which was a confidential exhibit.

99 Mr Trad submitted that the Revised Services Agreement is instructive because it demonstrates the obligations that Harbour Radio had to promote Mr Jones and his program. Harbour Radio had little or no control over the content of the program. Despite the establishment of an Editorial Review Committee, we are satisfied, particularly on the basis of clauses 4, 5 and 6, that Belford and Mr Jones were to have complete discretion and independence as to the content of the program: Jones v Trad [2013] NSWCA 389 at [162].

Consideration

100 From an objective point of view was it 'reasonable' for Harbour Radio (and Mr Jones) to broadcast the material in Schedule A? The broadcast occurred on early morning talk back radio in the context of the material reported on A Current Affair. We have identified the audience at [43] above. The broadcast was gratuitously insulting and offensive to Lebanese males. The opinion expressed that they are "mongrels" and "vermin" that "infest our shores" and that they "simply rape, pillage and plunder a nation that's taken them in" is irrelevant to any public interest purpose under consideration. It is simply not reasonable to malign and denigrate Lebanese males in general in the context of discussing a particular incident involving a small ground of young Lebanese men.

101 Apart from adopting relevant policies, alerting Mr Jones to the existence of those policies and providing some 'training', there is no evidence that Harbour Radio had any procedure for prohibiting, monitoring or vetting correspondence that Mr Jones read out on air. As the broadcast was not done "reasonably" by either Respondent, it is not strictly necessary to consider whether it was done in good faith, but we will address that issue briefly.

102 The Respondents submitted that there was no evidence of 'bad faith', 'malice' or 'improper purpose' on the part of Harbour Radio and that its conduct manifested an honest and conscientious endeavour to have regard to and minimise any potential harm that may have been inflicted. According to Harbour Radio, it exercised a level of prudence, caution and diligence which ensured that due care was taken to avoid or minimise the consequences of any offensive statements or comments by Mr Jones. In its view, the contractual arrangements between Mr Jones' company Belford Productions Pty Limited do not affect that conclusion.

103 Mr Trad submitted that because of the contractual arrangements between Mr Jones and Harbour Radio, and the absence of any evidence of good faith on the part of Harbour Radio, there is an insufficient basis for the "public interest" exception to apply.

104 There was no requirement for Mr Jones to confer with or obtain approval from Harbour Radio about the content of the program. Mr Jones had complete discretion and independence as to the content of the program. Harbour Radio did not use the dump button in relation to the Schedule A broadcast, nor did it convene the Editorial Review Committee to assess or review that broadcast.

105 These omissions preclude a positive finding of good faith because good faith implies that the person has considered the content. Harbour Radio did not consider the content so the Tribunal cannot be satisfied that it acted in good faith.

106 It follows that the complaints of racial vilification against Mr Jones and Harbour Radio are substantiated.

Relief

Relief sought

107 The relief which the Tribunal may order if a complaint is substantiated is listed in s 108 of the Anti-Discrimination Act. The relief which Mr Trad claimed was as follows:

(1) that the Respondents are to pay the Applicant damages (but not aggravated damages) in the sum of $40,000 for which they are jointly and severally liable;

(2) an order enjoining the respondents from continuing or repeating any conduct rendered unlawful by the Anti-Discrimination Act;

(3) within 6 months of the date of these orders the second respondent is to conduct a review in accordance with [245] of the Tribunal's reasons at first instance or furnish proof that it has already done so.

108 The final order accords with Order 2 of the Appeal Panel's orders in Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 62.

109 Relief by way of a public and private apology is no longer sought as the Respondents have apologised pursuant to orders made by the original Tribunal. Mr Trad acknowledged that he has not complied with the Court of Appeal's order to repay the $10,000 awarded by the Tribunal at first instance.

Damages

110 The Tribunal has power to award damages "by way of compensation for any loss or damage suffered by reason of the respondent's conduct": Anti-Discrimination Act, s 108(2)(a). At the time of the broadcast the maximum amount of damages that could be awarded under this provision was $40,000. Mr Trad claims damages of $40,000 for hurt humiliation and distress.

111 Mr Trad is a Lebanese man. At the date of the broadcast he was head of the Lebanese Muslim Association. The evidence that he gave as to the effect on him relates to both the Schedule A and the Schedule B broadcasts. The Schedule B broadcast was directed, to a great extent, to him personally whereas the Schedule A broadcast was not. His statement of 1 July 2008 says, in part:

I thought that the effect of the first respondent's inflammatory comments in the broadcasts was to express and encourage hatred and division in the community and especially hatred towards me, my family, the Muslim community and the people who attended the Mosque at Lakemba.

I was fearful for the personal safety for myself, my family and Muslim community members, especially the women in the Muslim community.

. . .

The whole broadcasts I felt would lead to an escalation in the frequency and gravity of hate attacks against Muslims in Sydney and would lead to the mistreatment of my children at school and in public and that this might reduce their employability.

112 We also take into account his oral evidence as summarised by the Tribunal at first instance at [239]:

239 Mr Trad said that he couldn't believe that "public discourse had descended to such a level of calling human beings vermin ... rapists and pillagers...that they a security problem in the making". He claims that he "felt terrible" on hearing the Schedule A broadcast. We accept that claim. It is plain from his evidence that it was not only the Schedule A broadcast which caused Mr Trad distress, however this does not detract from the fact that he was also distressed by that broadcast.

240 There is no evidence that Mr Trad required medical treatment or counselling as a result of hearing or learning of the offending broadcasts and nor is this asserted. It is apparent from his evidence that he is a reasonably resilient character. Nonetheless we accept his claim that he was distressed by the offending material and anxious for the ramifications it might have for members of his family and community.

113 Mr Trad submitted that the Tribunal should award a higher amount than the $10,000 awarded by the Tribunal at first instance on the basis of the principles enunciated by the Federal Court in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at 95]. In that case the Federal Court set aside a damages award of $18,000 for sex discrimination and sexual harassment on the basis that the award was manifestly inadequate and did not reflect 'general standards prevailing in the community'. The Federal Court substituted an award of $130,000.

114 The Respondents submitted that that case is distinguishable because in 2005 there was a cap on damages under the Anti-Discrimination Act of $40,000 and Mr Trad did not provide evidence of prevailing community standards.

115 Evidence of prevailing community standards in not necessary, nor does the fact that there is a cap on damages mean that the maximum amount should not be awarded if there is sufficient loss or damage suffered.

116 Mr Trad was a leader of the Lebanese Muslim community and was entitled to make the complaint: Anti-Discrimination Act, s 88(a). The effect of the broadcast on him was not a matter of him being targeted personally but because of his membership of the Lebanese community. Given that the evidence reflects a relatively mild level of loss and damage, a low award of $10,000 is appropriate.

Enjoining from continuing or repeating the conduct

117 The Anti-Discrimination Act provides, in s 108(2)(e), that, "in respect of a vilification complaint" the Tribunal may order "the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination." Pursuant to that provision, the Tribunal at first instance made the following order:

Within six months of the date of these orders the second respondent is to conduct a review in accordance with [245] of the these Reasons.

118 At paragraphs [244] and [245], the Tribunal made the following observations:

244 We see little value in making a general order that each respondent 'refrain from future acts of racial vilification'. Such order would do little more than state that the respondents must comply with the law -- a self evident proposition.

245 In our view it would be of greater 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.

119 The Appeal Panel varied that order so that if Harbour Radio had already undertaken the review and furnished proof that it had done so, it was not required to carry out a further review: Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62.

120 At [140] the Court of Appeal held that:

. . .the review order in the present case was sufficiently connected to the conduct the subject matter of the complaint . . . notwithstanding the lapse of time between the offending conduct and the time at which the review order was to operate, to bring the order within what were conceded to be the broad powers available to the Tribunal.

121 The Court of Appeal concluded at [141] that the Respondents had not made out their ground of appeal in relation to this order.

122 Mr Trad submits that this order should be made again. The Respondents submits that Mr Trad should have led evidence that there is not adequate training in relation to the existing policies.

123 The order made by the Tribunal, as varied by the Appeal Panel, was within its power to make. No evidence is needed in relation to existing policies or training because, regardless of certain policies having been in place and certain training having been provided, both Mr Jones and Harbour Radio have breached the racial vilification provisions of the Anti-Discrimination Act. A review of policies including policies relating to training is appropriate. We make the following orders - order 3 and 4:

If it has not already done so, the second respondent is to undertake a critical review of its 2005 programs and policies on the prevention of racial vilification with a view to developing and implementing revised programs and policies aimed at eliminating unlawful racial vilification.

The second respondent is to report to the Tribunal and Mr Trad within 6 months of the date of these reasons on the outcome of the review previously undertaken in compliance with the relevant order made by the Tribunal or the Appeal Panel or of the outcome of the review undertaken in compliance with order 4.

Application for costs of 14 May 2014 hearing

Background

124 Mr Trad has applied for his costs in relation to a hearing on 14 May 2014 in the sum of $39,600.00. The Respondents also applied for costs thrown away for that day.

125 These proceedings were remitted to the Administrative Decisions Tribunal in 2013, before that Tribunal was abolished and became part of the NSW Civil and Administrative Tribunal. The transitional provisions in relation to proceedings that were pending but unheard prior to 1 January 2014 provided that the Civil and Administrative Tribunal may exercise all the functions the abolished Tribunal had immediately before its abolition. The legislative provisions that applied at that time, continue to apply: Civil and Administrative Tribunal Act 2013 (NSW) Sch1, cl 6 and 7. That means that the power of the Tribunal to award costs is governed by s 88 of the Administrative Decisions Tribunal Act 1997 (NSW).

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs .

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

126 Both parties submitted that the other party had unnecessarily disadvantaged them by causing an adjournment and had unreasonably prolonged the time taken to complete the proceedings: s 88(1A)(a)(iv) and s 88(1A)(b). Mr Trad also submitted that the Respondents had failed to facilitate the just, quick and cheap resolution of the real issues in dispute. That provision was not in the Administrative Decisions Tribunal Act 1997 (NSW) at the relevant time so it is not applicable.

Findings

127 The Court of Appeal handed down its decision on 20 November 2013 and the Tribunal listed the matter for a case conference on 21 January 2014. At that time the Respondents proposed that they draft the questions that the Tribunal would need to address on remittal and that the Applicant respond to those draft questions. The Tribunal agreed with that course and gave directions accordingly.

128 The questions that the Respondents drafted, and which the Tribunal has determined in these reasons, are essentially those listed at [22] above.

(1) Who was the relevant audience to whom the Schedule A broadcast was directed?

(2) Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hate Lebanese males?

(3) Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hold Lebanese males in serious contempt?

(4) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) apply to the Schedule A broadcast in respect of the First Respondent?

(5) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) apply to the Schedule A broadcast in respect of the Second Respondent?

129 At a second case conference on 10 March 2014 Mr Trad's solicitor advised the Tribunal that his client objected to Question 4 of the draft questions because it is not a question that arises from the remittal of the matter by the Court of Appeal. The Tribunal directed that the Respondents provide brief submissions in relation to the relevance of Question 4 by 26 March 2014 and that the relevance of that question be determined by the Tribunal at the commencement of the hearing. Both parties agreed with the Tribunal's estimate that half a day would be sufficient time to hear submissions on the matters that were identified in the draft questions and the hearing was listed for half a day on 14 May 2014.

130 The Respondents filed a submission in relation to Question 4 on 31 March 2014 stating that a re-consideration of the exception in s 20C(2)(c) as it applied to Mr Jones, may be necessary depending on the Tribunal's finding about the identity of the relevant audience. In a footnote to that sentence, the Respondents wrote "[I]n any event, a remittal is not limited solely to the successful grounds of appeal (ie those points of law which were made out): Kaluza v Repatriation Commission [2011] FCAFC 97 at [37], [41]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [38]-[39].

131 This footnote does not constitute notice to Mr Trad that it was the Respondents' contention that the scope of the appeal went beyond that raised in the five draft questions. It was merely a footnote to a proposition about the relevance of Question 4. Apart from the question of the relevant relief that should be granted if the complaint was substantiated, the five questions were the questions that the Tribunal has addressed.

132 Both parties filed written submissions on 2 April 2014. Those submissions were limited to the draft questions.

133 On 13 May 2014, the day before the hearing, the Respondents wrote to Mr Trad's lawyers requesting that by 4 pm that day they identify the parts of the pleadings and evidence that Mr Trad would be relying on at the hearing. The Respondents identified the evidence on which they proposed to rely and asked for any objection to that evidence to be provided by 4 pm. Mr Trad's lawyers did not comply with either request.

134 At the hearing on 14 May 2014 the Respondents' senior counsel submitted that neither the scope of the appeal nor the evidence on which Mr Trad intended to rely had been identified adequately. The Respondents contended, for the first time, that the Tribunal was required to re-assess each aspect of the complaint including whether the broadcast was a public act and the applicability of the 'fair report' exception in s 20C(2)(a). It took senior counsel almost an hour to make those submissions.

135 Mr Trad's senior counsel stated that the Respondents' submission took her by surprise because she had not been put on notice until the day before the hearing that the scope of the appeal went beyond the five questions that the Respondents had identified. Mr Trad's senior counsel suggested that, given the Respondents' submissions, the Tribunal make a preliminary decision in relation to the scope of the complaint on remittal. The Respondents submitted that the matter should proceed because they were ready to put their case.

136 The Tribunal vacated the remainder of the hearing date, advised that it would reserve its decision on the scope of the remittal hearing and set the remittal hearing down for 11 August 2014.

137 The Tribunal handed down its decision - Trad v Jones & Harbour Radio Pty Ltd [2014] NSWCATAD 72 - on 3 June 2014 (incorrectly recorded as 3 May 2014 in the decision). At [23] and [24] we came to the following conclusions:

We accept the Applicant's submission that they cannot be expected to respond to such a significant issue as the scope of the remittal when they were not on notice of that issue until the day before the hearing. The Applicant was not effectively on notice that there was any dispute about the scope of the remittal apart from the dispute as to the relevance of Question 4. This finding is relevant to any determination of an application for costs.

It follows that the Respondents' case, until the day of the hearing, was that the scope of the remittal was as formulated in the draft questions set out at [16]. Having now submitted that the scope is broader, we must determine that issue. Both parties were content for the Tribunal to determine the issue on the basis of their oral submissions.

138 The Tribunal rejected the Respondents' submission that the terms of the remittal are unqualified except that the remittal only relates to the Schedule A broadcasts. In particular, we did not accept the Respondents' submission that "the matters identified in the questions themselves are plainly not the entirety of the matters in respect of which the Tribunal must exercise its jurisdiction in order to determine whether the Schedule A complaint should be substantiated or dismissed." Nor did we accept that the Respondents made that point at either of the Directions Hearings or in a footnote to their written submissions dated 31 March 2014.

139 We also rejected the submission that because there is no explicit direction from the Court of Appeal as to how the matter is to be dealt with, the remittal is not limited to particular grounds. We concluded at [37] that ". . . the scope of the appeal was accurately summarised by the Respondents in the five Draft Questions".

140 In relation to the identification of the evidence, the Tribunal came to the following conclusion at [38]:

There is no dispute that the Tribunal is not re-hearing this matter. The evidence on which the Tribunal is to rely is the same evidence as was before the Tribunal at first instance. The Respondent saw merit in the Applicant identifying the evidence on which it intends to rely in advance of the hearing. Although neither the Tribunal, nor the parties, had raised that matter as an issue at either of the two directions hearings in January or February 2014, now that the hearing has been delayed, it is opportune to make directions in relation to the identification of evidence.

The Respondents' application

141 In its costs application, the Respondents made written submissions as to the relevant legal principles that apply when a matter is remitted. Those principles were applied or distinguished in the Tribunal's decision on the scope of the remittal: Trad v Jones & Harbour Radio Pty Ltd [2014] NSWCATAD 72. The Respondents' submissions as to the scope of the remittal were not accepted.

142 We do not accept the Respondents' submission that Mr Trad's failure to respond to the letter written the day before the hearing "demonstrates the Applicant was simply not prepared to proceed to present his case at the hearing on 14 May 2014." It should not have been a lengthy or contentious matter for each party to identify the relevant evidence at the commencement of the hearing. The suggestion by Mr Trad's senior counsel on 14 May 2014 that the Tribunal should direct the parties to identify the evidence on which they intend to rely is not "telling" as the Respondent suggests. Mr Trad was simply not on notice that there would be any need to do so on a formal basis prior to the Respondents' 13 May 2014 letter.

143 If the Respondents took the view that the scope of the remittal went beyond the five draft questions they formulated, that view should have been expressed at the first or second case conference. It does not matter whether the Respondents were ready to argue the case fully at the hearing on 14 May 2014. The fact is that, as a matter of procedural fairness, the matter could not have been heard that day because the Respondents had submitted for the first time that the scope of the complaint was not confined to the five Draft Questions.

144 The Respondents' application for costs is refused because Mr Trad did not cause the adjournment or unreasonably prolong the time taken to complete the proceedings.

Mr Trad's application

145 We accept the evidence from Mr Goldberg, Mr Trad's solicitor, that the Respondents changed their approach in relation to the scope of the remittal hearing the day before the hearing. The purpose of the case conferences on 21 January 2014 and 10 March 2014 was to identify the scope of the remittal, make directions and list the matter for hearing. The Tribunal allowed the Respondents to put their position first by directing them to identify the questions to be answered on remittal. That was the opportunity for the Respondents to make the submissions that there should be the kind of re-hearing advocated at the hearing on 14 May 2014 and to identify the evidence which they contended the Tribunal should take into account had they considered that necessary.

146 The Respondents did not object to the matter being listed for a half day hearing on the basis that the scope of the appeal was limited to the five questions they had formulated. By failing to put Mr Trad on notice that the scope of the appeal went beyond the five questions they had identified until the day before the hearing, the Respondents have unnecessarily disadvantaged Mr Trad by causing an adjournment and unreasonably prolonged the time taken to complete the proceedings: Administrative Decisions Tribunal Act, s 88(1A)(a)(iv) and s 88(1A)(b).

Amount of costs

147 The Tribunal may determine to what extent costs are to be paid and order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. In his affidavit sworn on 22 May 2014 Mr Goldberg estimated that the costs thrown away by the vacation of the hearing date on 14 May 2014 were $39,600 broken down into senior counsel's fees and solicitor's costs. One claim was for the costs of preparing the written submissions for the hearing. That is not a cost thrown away by the adjournment because those submissions were necessary for the hearing whether the date was vacated or not.

148 In our view the costs thrown away are the brief on hearing fee for 14 May 2014 (estimated at $6,600) and the cost of preparing the costs submission (estimated at $3,300). The solicitor's costs thrown away do not include the costs of attending the directions hearings but they do include the costs of reviewing the correspondence from the Respondents and preparing for the 14 May 2014 hearing including the preparation of the affidavit of 22 May 2014 and reviewing the costs submission. It is not possible for us to accurately estimate the amount of those costs but it appears to be in the vicinity of $15,000. We make the following order:

The Respondents are to pay the Applicant's costs thrown away by the adjournment of the hearing on 14 May 2014 such costs to be $15,000 or some other amount agreed between the parties. If the amount is not agreed, costs are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.

Costs of these proceedings

149 Each party foreshadowed that it may wish to apply for costs in relation to the hearings on 11 August and 21 August 2014. We make the following directions:

(1) Within 28 days of this decision each party to file and serve any application for costs.

(2) Within a further 14 days each party to file and serve a response to any costs application.

(3) Subject to considering any objection by either party, any application for costs is to be determined 'on the papers'.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 19 December 2014