Araiji v Mihailuk [2011] NSWADT 282

Araiji v Mihailuk [2011] NSWADT 282

Leave was refused because, even assuming the respondent said the alleged words and that they were spoken as a public act, the alleged comments were highly unlikely to meet the threshold of incitement to hatred, serious contempt or severe ridicule required for racial vilification under the Anti-Discrimination Act 1977. The words may have been inappropriate or offensive, but conveying such a message to the applicant did not amount to inciting the required response in others.

Jurisdiction
Australia
Judgment Date
08 November 2011
Procedural Posture
Interlocutory Application for Leave to Proceed With a Racial Vilification Complaint / Application for Leave After the President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance
Outcome
Leave for the applicant's complaint of racial vilification to proceed is refused.
Legal Topics
['racial Vilification' 'leave to Proceed' 'public Act' 'incitement to Hatred, Serious Contempt or Severe Ridicule' 'complaint Declined as Lacking in Substance']
['anti Discrimination Law' 'equal Opportunity Law' 'administrative Law'] ['racial Vilification' 'leave to Proceed' 'public Act' 'incitement to Hatred, Serious Contempt or Severe Ridicule' 'complaint Declined as Lacking in Substance']

Case Brief

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Procedural Posture

Interlocutory Application for Leave to Proceed With a Racial Vilification Complaint / Application for Leave After the President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance

Legal Issues

  1. 1 ["Whether it was fair and just to grant leave for the applicant's racial vilification complaint to proceed after it had been declined by the President of the Anti-Discrimination Board." 'Whether the alleged words could constitute racial vilification under s 20C of the Anti-Discrimination Act 1977.' 'Whether the alleged communication could incite hatred towards, serious contempt for, or severe ridicule of a person or group on the ground of race.']

Ratio Decidendi

Leave was refused because, even assuming the respondent said the alleged words and that they were spoken as a public act, the alleged comments were highly unlikely to meet the threshold of incitement to hatred, serious contempt or severe ridicule required for racial vilification under the Anti-Discrimination Act 1977. The words may have been inappropriate or offensive, but conveying such a message to the applicant did not amount to inciting the required response in others.

Court Disposition

Leave for the applicant's complaint of racial vilification to proceed is refused.

Orders

  • ["Leave for the applicant's complaint of racial vilification to proceed is refused."]