Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19

Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19

Alan Jones could engage in a public act by presenting material for immediate radio broadcast, even though Harbour Radio held the broadcasting licence. The Tribunal did not commit material legal error in applying an objective test to the Schedule A broadcast, identifying the relevant talkback audience, finding that race need only be a real or genuine reason rather than the sole reason, rejecting bias allegations, awarding modest damages to Trad, and directing apology-related relief. Although the Tribunal failed to consider Harbour Radio's defences separately and made an unwarranted inference about vigilante action, those errors did not justify disturbing the Schedule A outcome because...

Jurisdiction
Australia
Judgment Date
27 April 2011
Procedural Posture
Internal Appeal and Cross Appeal in Racial Vilification Proceedings Under the Anti Discrimination Act / Appeal Panel Principal Judgment; Further Submissions Directed and Case Adjourned
Outcome
Proceedings adjourned; written submissions directed on whether to depart from Khan and whether to extend the appeals to the merits.
Legal Topics
['racial Vilification' 'meaning of Race and Ethno Religious Origin' 'public Act by Radio Broadcast' 'fair Report Defence' 'reasonable and Good Faith Public Interest Discussion Defence' 'objective Test for Incitement' 'damages and Remedial Orders']
['anti Discrimination Law' 'administrative Law' 'media Law'] ['racial Vilification' 'meaning of Race and Ethno Religious Origin' 'public Act by Radio Broadcast' 'fair Report Defence' 'reasonable and Good Faith Public Interest Discussion Defence' 'objective Test for Incitement' 'damages and Remedial Orders']

Case Brief

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Procedural Posture

Internal Appeal and Cross Appeal in Racial Vilification Proceedings Under the Anti Discrimination Act / Appeal Panel Principal Judgment; Further Submissions Directed and Case Adjourned

Legal Issues

  1. 1 ['Whether Alan Jones engaged in a public act when Harbour Radio was the licensed broadcaster and controlled the transmission equipment.' 'Whether the Tribunal was required to distinguish between the public acts and available defences of Alan Jones and Harbour Radio.' 'Whether reference to 29 April 2005 material in deciding the Schedule A complaint was procedurally unfair.' 'Whether the Tribunal failed to consider the complained-of material objectively and impermissibly used contextual material to inquire into subjective state of mind.' 'Whether the Tribunal erred by failing to identify the audience to whom the material was directed.' 'Whether s 20C(1) is satisfied if race was a real reason rather than the sole reason for the public act.' 'Whether findings about incitement, tone, opinion leadership, vigilante action and terrorism were unsupported by evidence or irrelevant.' 'Whether unwarranted findings manifested actual or ostensible bias.' "Whether Harbour Radio's defences were separately considered." 'Whether the Tribunal misconstrued fair report in s 20C(2)(a).' 'Whether the Tribunal misapplied good faith under s 20C(2)(c).' 'Whether the Tribunal erred in awarding damages to Keysar Trad.' "Whether the Tribunal erred in directing an apology and a review of Harbour Radio's policies and practices." 'Whether the term Muslim could fall within ethno-religious origin in the s 4 definition of race.' 'Whether failure to accept sociological evidence about modern concepts of race and the position of Lebanese and other Muslims in Sydney society was legal error.']

Ratio Decidendi

Alan Jones could engage in a public act by presenting material for immediate radio broadcast, even though Harbour Radio held the broadcasting licence. The Tribunal did not commit material legal error in applying an objective test to the Schedule A broadcast, identifying the relevant talkback audience, finding that race need only be a real or genuine reason rather than the sole reason, rejecting bias allegations, awarding modest damages to Trad, and directing apology-related relief. Although the Tribunal failed to consider Harbour Radio's defences separately and made an unwarranted inference about vigilante action, those errors did not justify disturbing the Schedule A outcome because...

Court Disposition

Proceedings adjourned; written submissions directed on whether to depart from Khan and whether to extend the appeals to the merits.

Orders

  • ["The parties are to file and serve within 14 days any written submissions (not exceeding 12 pages in length) as to whether the Appeal Panel should depart from the reasoning expressed in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209 and within 21 days any reply (not exceeding three pages...