Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62

Jones and Harbour Radio Pty Limited v Trad (No 2) (EOD) [2011] NSWADTAP 62

The Appeal Panel held that the Tribunal below misconstrued 'ethno-religious origin' in the statutory definition of race, and that context and sociological evidence must be considered to determine whether a reference to 'Muslims' in the broadcasts could fall within the concept of 'race'. However, the Panel was not satisfied on the facts that the broadcasts targeted a group understood as having ethno-religious origin, nor that any vilification was on the ground of such origin rather than religion, so the appeal would ultimately fail on the merits.

Parties
Appellant/cross Respondent: Alan Jones; Appellant/cross Respondent: Harbour Radio Pty Limited; Respondent/cross Appellant: Keysar Trad
Jurisdiction
Australia
Judgment Date
21 December 2011
Procedural Posture
Appeal / Internal Appeal Panel Decision Following Prior Judgment and Further Submissions Invited
Outcome
Appeal allowed in part for extension to merits on a specific point; order set aside and variation made; otherwise, the appeal would fail on the merits
Legal Topics
Racial Vilification, Ethno Religious Origin, Definition of 'race' Under Anti Discrimination Law, Interpretation of 'muslim' as Falling Within Statutory Race Concept, Use of Expert Sociological Evidence
Anti Discrimination Law Racial Vilification Ethno Religious Origin Definition of 'race' Under Anti Discrimination Law Interpretation of 'muslim' as Falling Within Statutory Race Concept Use of Expert Sociological Evidence

Case Brief

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Parties

Alan Jones

Appellant/cross Respondent

Harbour Radio Pty Limited

Appellant/cross Respondent

Keysar Trad

Respondent/cross Appellant

Procedural Posture

Appeal / Internal Appeal Panel Decision Following Prior Judgment and Further Submissions Invited

Legal Issues

  1. 1 Whether 'Muslim' can be considered a group of 'ethno-religious origin' within the meaning of 'race' under the Anti-Discrimination Act
  2. 2 Whether the Administrative Decisions Tribunal's failure to accept expert sociological evidence regarding 'race' was a legal error

Ratio Decidendi

The Appeal Panel held that the Tribunal below misconstrued 'ethno-religious origin' in the statutory definition of race, and that context and sociological evidence must be considered to determine whether a reference to 'Muslims' in the broadcasts could fall within the concept of 'race'. However, the Panel was not satisfied on the facts that the broadcasts targeted a group understood as having ethno-religious origin, nor that any vilification was on the ground of such origin rather than religion, so the appeal would ultimately fail on the merits.

Court Disposition

Appeal allowed in part for extension to merits on a specific point; order set aside and variation made; otherwise, the appeal would fail on the merits

Orders

  • The parties are to file and serve any further written submissions within 28 days, and replies within 14 days thereafter.
  • The previous Tribunal direction is set aside and replaced with: '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.'