Muslims Living in Australia V Sonia Kruger & Nine Network

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Civil and Administrative Tribunal
New South Wales
Case Name: Ekermawi v Nine Network Australia Pty Limited
Medium Neutral Citation: [2019] NSWCATAD 29
Hearing Date(s): 13 November 2018
Date of Orders: 15 February 2019
Decision Date: 15 February 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr R. Dubler SC, Senior Member

A. Lowe, General Member
Decision: The application will be dismissed.
Catchwords: HUMAN RIGHTS – racial vilification – meaning of

“ethno-religious origin” – meaning of “public act” –
“capacity to incite serious hatred, ridicule or contempt”
– defence or exception of “reasonable and bona fide” –
‘’fair report’’
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 20C, 88, 89(2),

92, 94A, 93A, 93B, 93C and 102
Interpretation Act 1984 (NSW), s 34
Civil and Administrative Tribunal Act 2013 (NSW), ss
28, 29, 55 and Sch 3, cl 3(a)
Anti-Discrimination Amendment (Miscellaneous
Provisions) Act 2004 No 79 (NSW)
Race Relations Act 1976 (UK)
Race Relations Act 1971 (NZ)
Racial Discrimination Act 1975 (Cth)
Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142

Azriel v NSW Land and Housing Corporation [2006]
NSWCA 372
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005]
4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP
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NSWADT 24
Dimozantos v The Queen (No 2) [1993] HCA 52; (1993)
178 CLR 122
Director of Liquor Licensing v Kordister Pty Ltd [2011]
VSC 2007
Droga v Birch [2017] NSWADTAP 22
Ealing LBC v Race Relations Board (1972) AC 342
Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT
145
Ekermawi v Harbour Radio Pty Ltd (No 2) [2010]
NSWADT 198
Ekermawi v Harbour Radio Pty Ltd [2013] HCASL 190
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Ekermawi v Nine Network Australia Pty Ltd [2008]
NSWCATAD 112
Haider v Combined District Radio Cabs Pty Ltd t/as
Central Coast Taxis [2008] NSWADT 123
Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD)
[2011] NSWADTAP 62
Jones v Trad (2013) 86 NSWLR 241
Jones v Scully (2002) 120 FCR 243
Khan v Commissioner, Department of Corrective
Services [2002] NSWADT 131
King-Ansell v Police (1979) 2 NZLR 531
Kunhi v University of New England [2008] NSWADT
333
Mabo v The State of Queensland (No 1) (1988) 166
CLR 186
Mandla v Dowell Lee (1983) 2 AC 548
Miller v Wertheim [2002] FCAFC 156
Nyazi v Rymans Ltd (unreported, 1988 EAT/6/88
decision of the Employment Appeals Tribunal of the
UK)
Rittau v Commissioner of Police, New South Wales
Police Service [2000] NSWADT 186
Sunol v Collier (No 2) [2013] NSWCA 196
Toben v Jones (2003) 199 ALR 1
Veloskey v Karagiannakis [2002] NSWADTAP at [30]
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985)
1 NSWLR 58
Western Aboriginal Legal Service v Jones [2000]
NSWADT 102
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Texts Cited: United Nations Declaration on the Elimination of all

forms of Racial Discrimination
Category: Principal judgment
Parties: Sam Ekermawi (Applicant)

Nine Network Australia Pty Limited (First Respondent)
Sonia Kruger (Second Respondent)
Representation: Counsel:
Dr C Birch SC (Applicant)
K Eastman SC (First and Second Respondents)
Solicitors:
Kings Law Group (Applicant)
Baker McKenzie (First and Second Respondents)
File Number(s): 2018/00056061
Publication Restriction: Unrestricted
REASONS FOR DECISION

Introduction
1 The Today show is a daytime television programme produced by the Nine
Network. Ms Sonia Kruger is one of the presenters on the programme. On 18
July 2016, in the wake of a terrorist attack in Nice, France, approximately
75,000 people were viewing the show. They watched as Ms Kruger spoke with
co-presenter Ms Lisa Wilkinson about whether Australia’s borders should be
closed to Muslims. Ms Kruger said:
“Or is it actually really simple? I mean, personally, I think Andrew Bolt has a
point here, that there is a correlation between the number of people who, you
know, are Muslim in a country and the number of terrorist attacks. Now I have
a lot of very good friends who are Muslim, who are peace-loving who are
beautiful people, but there are fanatics. And does the population and the
correlation between those two things, is it having an impact? I mean, if you
look at Japan, Japan has a population of 174 million. It has a hundred
thousand people in that country who are Muslim. We never hear of terrorist
attacks in Japan. Personally I would like to see it stopped now for Australia.
Because I want to feel safe, as all of our citizens do, when they go out to
celebrate Australia Day. And I'd like to see freedom of speech and Lisa I think,
you know we're seeing journalists threatened... .”
...
‘’Lisa Wilkinson: … But just to clarify Sonia, are you saying that you would like
our borders closed to Muslims at this point?
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SK: Yes I would. I would. Because I think at this point...

LW: Which is the Donald Trump approach...
SK: I think we have something like 500,000 now in our country and I... Well
perhaps it is... but for the safely of the citizens here, I think it's important.’’
2 The day after the broadcast, Ms Kruger made some further comments on
the Today show. She repeated her view about “the correlation between the
Muslim population of certain countries and the number of subsequent terrorist
attacks”. Ms Kruger acknowledged that the views she had expressed the
previous day “may have been extreme” but said that she wanted “to make it
very clear that (she) has complete respect for people of all races and
religions”.
3 The matter which needs to be determined by the Tribunal is as follows – did Ms

Kruger’s remarks amount to “racial vilification’’ in contravention of the Anti-
Discrimination Act 1977 (NSW) (“ADA”)?
The Complaint
4 Mr Ekermawi (the Applicant) complains that the totality of the relevant
statements made by Ms Kruger (the Second Respondent) on Nine Network
Australia Pty Ltd’s (the First Respondent) Today program on 18 July 2016
racially vilified Australian Muslims. He claims both Nine Network Australia Pty
Ltd (“Nine Network”) and Ms Kruger racially vilified Australian Muslims by
broadcasting and making the statements during the television broadcast.
5 Mr Ekermawi describes himself as an Australian Muslim. He is a Muslim and

an Australian citizen. He has lived in Australia since 1960.
6 The transcript of the relevant section of the Today program of 18 and 19 July
2016, as supplied by the Nine Network, is reproduced at the end of this
Decision at Annexure 1 and 2 respectively. We note that we have also viewed
a video of the same section of the Today program of 18 and19 July 2016.
7 In his original complaint to the Anti-Discrimination Board, Mr Ekermawi

described the group he claims was racially vilified in various ways, including:
Ethnic Australian Muslims, Ethnic Muslim Australians, Ethnic-Muslims
segments of our society, Australians Ethnic-Muslims communities, Ethnic-
Muslims as a group, Muslim Australians.
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8 On 29 May 2018, the Tribunal heard an application from the Nine Network to
summarily dismiss the case without a hearing, primarily on the basis that,
however described, the group Mr Ekermawi claims was vilified is not a “race”
as defined in the ADA: Ekermawi v Nine Network Australia Pty Ltd [2018]
NSWCATAD 112. The definition of “race” in the ADA includes the term “ethno-
religious origin”. The Tribunal declined Nine Network’s application and allowed
the case to proceed to hearing.
9 The Tribunal at [14] stated that it is important to identify the subject matter of
the complaint because, unlike most applications that can be lodged with the
Tribunal, complaints alleging a breach of the ADA must be lodged first with the
President of the Anti-Discrimination Board. When the President refers a
complaint to the Tribunal under s 93A, s 93B or s 93C, it is treated as an
application in the Tribunal’s general jurisdiction: Civil and Administrative
Tribunal Act 2013 (NSW), s 28, s 29 and Sch 3, cl 3(a).
10 The Tribunal described the subject matter of the proceedings at [20]-[21] as

follows:
‘’[20] Mr Ekermawi submitted that the subject matter of his compliant includes
that:
(1) on 18 July 2016 each of the Respondents racially vilified a group
described as ethnic Muslim Australians;
(2) this had been done on a broadcast on Channel 9 through the
words spoken by Ms Kruger on the Today show;
(3) some of the words spoken by Ms Kruger were set out in the letter
of complaint, but the entire transcript was not provided;
(4) the conduct was said to be in breach of s 20C of the ADA;
(5) Ethnic Australian Muslims are said to be a “race” as defined in the
ADA.
[21] For the purposes of these proceedings, we agree with this
characterisation of the subject matter of the complaint.’’
11 The Tribunal also stated that it understood the relevant group to be “Muslims
living in Australia” and, at [18], noted that although Ms Kruger commented on
the broadcast the following day, the second broadcast is not relied on as a
separate public act in breach of the racial vilification provisions.
12 The case was allowed to proceed on the basis that Mr Ekermawi’s assertion
that Muslims living in Australia have an ethno-religious origin and “is the
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targeted group is not an untenable proposition” or so lacking in merit that the

complaint should be dismissed without a hearing (Ekermawi v Nine Network
Australia Pty Ltd [2018] NSWCATAD 112 at [4] and [24]).
13 On 12 July 2018, Mr Ekermawi filed Points of Claim. Mr Ekermawi there refers

to the racially vilified group as “Australian Nationals who profess the religion of
Islam and engage in Islamic religious and cultural practices (Australian
Muslims)”: see [2] of the Points of Claim.
14 During the full hearing, Mr Ekermawi referred to the allegedly vilified group as
“Australian Muslims”. The Nine Network and Ms Kruger referred to the group
by the term the Tribunal used in the hearing on 29 May 2018, that is, as
“Muslims living in Australia”. They objected to any different description of the
alleged ‘race’ said to be vilified. They also objected to any attempt by the
Applicant to travel beyond the previously identified sections of the broadcast of
18 July 2016. In reply, the Applicant was content to agree with this description
of the subject matter of the application.
15 It is accurate to say that in the original complaint the description of the targeted
group was "ethnic Muslim Australians". The difficulty arises because such a
description could be said to encompass either Australian citizens or nationals
who profess a belief in Islam, as described in the filed Points of Claim, or
Muslims who are living in Australia.
16 By and large, we accept it is for the Applicant to define what is the alleged
targeted group. We are inclined to think that the Applicant could have pursued
in his application before us either or both of these descriptions, provided this
was done with clarity and proper notice to the Respondents. An issue may
have arisen as to whether the remarks of Ms Kruger, which was targeting
simply the "Muslim population" in Australia, only could be referring to those
who live here, as opposed to Australian nationals who are also Muslims.
17 In the result, we do not need to consider this issue any further given that in the
submissions before us at hearing the Applicant was content to have his
application dealt with on the basis that the targeted group was "Muslims living
in Australia". In the balance of this decision sometimes we refer to "Muslim
Australians" or "ethnic Muslim Australians" or even the Muslim community in
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Australia and the like. In each case, we are still referring to "Muslims living in
Australia".
18 In the result, the Tribunal will take the subject matter of the complaint to be as
previously summarised by the Tribunal and as described above.
The Law
19 ‘Racial vilification’ is defined in section 20C (1) of the ADA:
‘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.’
20 ‘Public act’ is defined in section 20B of the ADA 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.’
21 Section 20C (2) lists the exceptions to the definition of public act. A public act
will not be unlawful if it is:
‘(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.’
22 ‘Race’ is defined in Section 4 of the ADA:
‘"race" includes colour, nationality, descent and ethnic, ethno-religious or

national origin.’
The Issues – What must Mr Ekermawi demonstrate to succeed in his
complaint?
23 The following issues rise for determination by the Tribunal:
(i) Did the Nine Network and Ms Kruger engage in a public

act in respect of the broadcast of the Today program on
18 July 2016?
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(ii) Are Australian Muslims, or Muslims living in Australia, a

group that has an ethno-religious origin?
(iii) Did Ms Kruger’s statements made on the 18 July 2016
Today program have the capacity to incite hatred, severe
contempt or serious ridicule on the ground of ethno-
religious origin?
(iv) Were Ms Kruger’s statements a fair report of a public act?
(v) Were Ms Kruger’s statements a public act, done
reasonably and in good faith for purposes in the public
interest, including discussion or debate about the
expositions of any act or matter?
Did the Nine Network and Ms Kruger engage in a public act in respect of the
broadcast of the Today program on 18 July 2016?
Was the broadcasting of Ms Kruger’s statements by the Nine Network on the 18 July
2016 Today program a public act?
24 This is not in dispute. The Nine Network agrees that its broadcasting of Ms
Kruger’s statements was a public act within the meaning of s.20C of the ADA.
Section 20C of the ADA includes both broadcasting and telecasting in its list of
forms of communication to the public that are public acts.
Did Ms Kruger engage in a public act when she made her statements on the 18 July
2016 Today program?
25 While it is admitted that the Nine Network engaged in a public act in respect of
the broadcast of 18 July 2016, the Respondents deny that there was a
separate public act by Ms Kruger separate from the act of broadcast made by
the Nine Network. The Respondents submit that simply “making” comments is
not sufficient to engage s.20B of the ADA. Section 20B(a), the Respondents
submit, is concerned with the form of communication, not the content, for the
purpose of identifying the person who did the public act.
26 By his Points of Claim, Mr Ekermawi relies upon s.20B(a) of the ADA to claim
that Ms Kruger also engaged in a “public act”. Relevantly then, the section at
(a) defines “public act” to include any form of communication to the public,
including speaking. It is obvious that Ms Kruger during the relevant Today
program was communicating to the public by speaking on the Nine Network
program. As stated by Ward JA in the NSW Court of Appeal decision of Jones
v Trad (2013) 86 NSWLR 241 at [43]-[44]:
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“43. Section 20B(a) is in very broad terms (“any form of communication to the
public”). It makes clear that a communication to the public for the purposes of
s.20C may take one of a number of forms. Relevantly, it includes “speaking”
as well as “broadcasting”. Even if the concept of broadcasting in that section is
limited to the technical act of making the radio transmission to the public by
use of the necessary electronic equipment, whether that person be authorised
by a statutory licence or not, rather than (as I consider would be most
consistent with the ordinary usage of the word “broadcasting”) including the
conduct of someone publicly speaking by the medium of a licensed
broadcaster’s equipment, there is nothing in s.20C to suggest that there may
not, in the course of particular conduct of which complaint is made, be two
separate contraventions.
44. In the present case, Mr Jones spoke the offending words into a
microphone or other sound transmission equipment for the purpose of those
words being broadcast almost simultaneously to his radio audience. Harbour
Radio, as is conceded by it, played a different role in the technical act of
broadcasting Mr Jones’ speech by way of radio transmission. The fact that, by
reason of the technical act of making the radio transmission to the public,
Harbour Radio has engaged in a public act by making the Schedule A
broadcast, does not in my view preclude a finding that at the same time Mr
Jones was engaged in a separate public act when speaking the words for
public broadcast.”
27 The Respondents accepted the legal principles enunciated above but
contended that there was an absence of evidence that would allow the Tribunal
to find that Ms Kruger’s involvement or words spoken amounted to a form of
communication to the public by speaking. It is true that the evidence before the
Tribunal substantially involves evidence of the broadcast itself and not any
particular evidence about Ms Kruger’s role or contract for the Nine Network.
However, the Tribunal has before it the actual broadcast and it has watched
that broadcast during the hearing of the complaint. The plain inference to be
drawn from the broadcast viewed by the Tribunal is that Ms Kruger was a
presenter on the Today program engaged in a discussion or “speech” via the
equipment of the Nine Network for the purpose of those words being
broadcast, if not instantaneously at least contemporaneously during the course
of that day, to Nine Network’s free-to-air television audience.
28 Accordingly, the Tribunal finds that Ms Kruger has engaged in a public act
within the meaning of s.20C(a) of the ADA when she spoke the words the
subject of the complaint on the Today program.
29 Further, the Tribunal notes that the First Respondent in its Response admits
that it publicly broadcasted on its free-to-air channels in Australia the material
the subject of the complaint.
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Are Australian Muslims, or Muslims living in Australia, a group that has an

ethno-religious origin?
Meaning of “ethno-religious origin”
30 As previously mentioned, s.4 of the ADA defines “race” so as to include “ethno-
religious” origin. “Racial vilification” under s.20C(1) of the ADA is not satisfied
unless “race” was the reason or ground for the requisite degree of ill-feeling
being incited: Veloskey v Karagiannakis [2002] NSWADTAP at [30]; Western
Aboriginal Legal Service v Jones [2000] NSWADT 102 at [114].
31 The Respondents submit that “Muslims living in Australia” do not fall within the
definition of persons of an ethno-religious origin, and thus are not a race, for
the purpose of s.4 of the ADA. According to the Respondents, the description
of “Muslims living in Australia” is to persons who may or may not be adherents
of Islam or to persons holding certain religious beliefs rather than to an ethno-
religious origin.
32 The extent to which the racial vilification and discrimination provisions of the
ADA extend to groups such as Jews, Muslims and Sikhs remains unclear at
the current time. The expression “ethno-religious origin” was introduced into
the ADA by the Anti-Discrimination (Amendment) Bill 1994. On 4 May 1994 the
Hon. J. L. Hannaford MLC, NSW Attorney-General, in the Second Reading
Speech said:
“Section 4 of the Anti-Discrimination Act will be amended so that the existing

definition of “race” will include concepts of descent and ethno-religious origin
… The effect of the latter amendment is to clarify that ethno-religious groups,
such as Jews, Muslims and Sikhs have access to the racial vilification and
discrimination provisions of the Act. At present, it is not clear whether such
groups are covered by the racial vilification discrimination provisions, although
this would appear to be the position at common law. The amendment will
make it clear that vilification or discrimination against a person on the basis of
ethno-religious origin falls within the protections against racial discrimination
and racial vilification currently contained in the Act. The amendment is in line
with existing judicial authority from both New South Wales and overseas which
indicates that ethno-religious background is included in the legal concept of
race.”
33 By virtue of s.34 of the Interpretation Act 1984 (NSW), the Tribunal may use
this Second Reading Speech to assist in determining the meaning of the
provision, even though that speech is not determinative of the proper legal
construction of the provision. The Second Reading Speech will have a role to
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play because it can be accepted that the phrase “ethno-religious origin” does
not have a clearly received ordinary meaning, and is obscure, or potentially
ambiguous. Further, in this context the use of dictionaries is not likely to be
particularly helpful. We agree with the proposition that “the statutory concepts
of race, origin, ethnicity, ethno-religious are notoriously muddy, slippery and (to
say the least of it) imprecise”: see Jones and Harbour Radio Pty Ltd v Trad (No
2) (EOD) [2011] NSWADTAP 62 at [13]. As was pointed out in that decision, a
number of dictionaries do not recognise the term “ethno-religious”, let alone
“ethno-religious origin”: Trad (No 2) at [16].
34 We note that in Khan v Commissioner, Department of Corrective Services

[2002] NSWADT 131 the Administrative Decisions Tribunal (“ADT”) had to
consider the meaning of the term “ethno-religious” in the context of the ADA. It
stated that the Attorney-General’s Second Reading Speech and the examples
there given of Jews, Muslims and Sikhs “are not very useful aids to
interpretation”: at [18]. The Tribunal stated (at [18]-[20]):
“18. It is not even clear that Muslims, to use the words of the Attorney-
General "share a common racial, national or ethnic origin". While Muslims are
all adherents to Islam, they do not share common racial, national or ethnic
origins. There are Muslims in every continent and of many different racial and
ethnic backgrounds. It is common knowledge for example that there are South
Asian, South-East Asian, African, Middle-eastern and European communities
of Muslims. Many African-Americans, most famously Muhammed Ali, are
Muslims. No doubt within those broader groupings there are further ethnic sub-
groups which nonetheless adhere to Islam. Hence the ambiguity in referring to
Muslims as a single "ethno-religious" group. For this reason, the examples
given in the Second Reading Speech are not very useful aids to interpretation.
19. It is a fallacy to refer only to ethnicity or to religion in determining whether
or not a person belongs to an "ethno-religious" group. It is a short-hand
generic description of a complex type of cultural grouping which has ethnic,
cultural, historical and religious aspects all entwined. Better examples of what
is meant by an "ethno-religious" group than were given in the Second Reading
Speech might be, for example, Javanese Christians, Bosnian Muslims or
Northern Irish Catholics.
20. It therefore follows that, in our view, there is no very helpful extrinsic
material to which we have been referred by either party to construe the
meaning of the term. It accordingly falls to us to attempt a definition. We do so,
among other things, by taking account of the objects of the Act. In our opinion,
the term signifies a strong association between a person's or a group's
nationality or ethnicity, culture, history and his, her or its religious
beliefs and practices.”
(Emphasis original).
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35 The Tribunal is not bound by the doctrine of precedent or stare decisis to follow
earlier decisions of the Tribunal or the ADT. However, it has been the practice
of the Tribunal to follow earlier decisions to maintain confidence in the
consistent decision-making of the Tribunal: see, for example, Rittau v
Commissioner of Police, New South Wales Police Service [2000] NSWADT
186 at [60]-[62], Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC
2007 at [107].
36 There is, however, no clear line of authority as to the correct approach to the
interpretation of the term “ethno-religious … origin”. Doubt has been expressed
by the Appeal Panel of the Administrative Decisions Tribunal as to the
correctness of the interpretation given by the Administrative Decisions Tribunal
in Khan v Commissioner, Department of Corrective Services [2002] NSWADT
131 at [20] in the subsequent decision of Trad (No 2): see also Ekermawi v
Nine Network Australia Pty Ltd [2018] NSWCATADT 112 at [37]. At [19] the
Appeal Panel in Trad (No 2) stated that the inclusion of the term “ethno-
religious … origin” meant that:
”some religious groups with sufficient cultural characteristics to amount to part

of their identity were to be afforded protection as if they were of the same race
or had a common ethnic origin, even though Parliament was apparently
assuming (rightly or wrongly) that they could or might not fairly be seen simply
as groups having a common ethnic origin.”
.
37 The proposition is that, in the context of the broadcast, Muslims living in
Australia are a “race”. To rule on this proposition requires consideration of the
various different previous authorities dealing with the meaning of the term
“ethnic, ethno-religious … origin”.
38 Prior to World War II the expression “ethnic origin” appears not to have been
used in any international or domestic legal text. The concept of “ethnic origin”
was introduced in 1963 by Article 2(1) of the United Nations Declaration on the
Elimination of all forms of Racial Discrimination. It provides:
“No State, institution, group or individual shall make any discrimination

whatsoever in matters of human rights and fundamental freedoms in the
treatment of persons, groups of persons or institutions on the ground of race,
colour or ethnic origin.”
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39 In 1965, the United Nations concluded the International Convention on the

Elimination of all forms of Racial Discrimination (“CERD”). Article 1(1) of the
CERD defines “race discrimination” in the following terms:
“In this Convention, the term racial discrimination shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on any equal footing, of any human right or
fundamental freedom in the political, economic, social, cultural or any other
field of public life.”
40 The expression “ethnic origin” is not defined in the CERD.
41 In 1968 the Race Relations Act (UK) was enacted and included discrimination
on the ground of “ethnic … origins” by s.16(1). Lord Simon in Ealing LBC v
Race Relations Board (1972) AC 342 at 362 considered how the concept of
“race” is more than merely a biological or scientific concept, saying:
“Moreover, “racial” is not a term of art, either legal or, I surmise, scientific. I
apprehend that anthropologists would dispute how far the word “race” is
biologically at all relevant to the species amusingly called homo sapiens.
…
This is rubbery and elusive language … understandably when the draftsman is
dealing with so imprecise a concept as “race” in its proper sense and
endeavouring to leave no loophole for evasion.”
42 In 1971 New Zealand enacted the Race Relations Act 1971 (NZ). It was
expressed to be an act to implement the CERD. It included the concept of
“ethnic origins”. This was followed in 1975 by the Racial Discrimination Act
1975 (Cth) (“RDA”) following upon Australia’s ratification of CERD on 30
January 1975. It uses the concept of “ethnic origin” in s.9 which was also
followed in s.3(1) of the Race Relations Act 1976 (UK) (“RRA”). In 1977 New
South Wales enacted the ADA and by s.6(1), “race” included “ethnic … origin”.
Each of these pieces of legislation did not include any definition of the concept
“ethnic origin”.
43 The first significant judicial consideration of the phrase “ethnic origin” was by
the New Zealand Court of Appeal in the context of the Race Relations Act 1971
(NZ) in King-Ansell v Police (1979) 2 NZLR 531. The Court had to consider
whether Jews in New Zealand shared a common “ethnic origin”. Richardson J
said at 543:
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“…a group is identifiable in terms of its ethnic origins if it is a segment of the

population distinguished from others by a sufficient combination of shared
customs, beliefs, traditions and characteristics derived from a common or
presumed common past, even if not drawn from what in biological terms is a
common racial stock. It is that combination which gives them an historically
determined social identity in their own eyes and in the eyes of those outside
the group. They have a distinct social identity based not simply on group
cohesion and solidarity but also on their belief as to their historical
antecedents.”
44 According to Richardson J (at 542), the:
“…real test is whether the individuals or the group regard themselves and are
regarded by others in the community as having a particular historical identity in
terms of their colour or their racial, national or ethnic origins. That must be
based on a belief shared by members of the group.”
45 It is important to note the nature of the expert evidence in support of the claims
that Jews are an ethnic group. It was noted in the case of Jews in New Zealand
and worldwide that members of the Jewish people are of diverse national and
racial origins: at 534, 543. According to the expert evidence, ‟There are black
Jews, there are Asian Jews, there are European Jews. They are of vastly
different origins, that is racially″: King-Ansell v Police at 534.
46 The New Zealand Court of Appeal held that Jews in New Zealand formed a
group with common ethnic origins within the meaning of the legislation. The
passage at 543 was approved by the House of Lords in Mandla v Dowell Lee
(1983) 2 AC 548 at 564 and in several other cases such as Jones v Scully
(2002) 120 FCR 243 at [111]-[112] and Miller v Wertheim [2002] FCAFC 156 at
[14].
47 The issue in the decision of Mandla v Dowell Lee was whether or not Sikhs
formed a racial group with an “ethnic origin”. The broadest interpretation of the
concept of “ethnic origin” was provided by Lord Fraser, who referred to the
1972 supplement to the Oxford English Dictionary defining “ethnic” as
“pertaining to or having common racial, cultural, religious or linguistic
characteristics, esp. designation of racial or other group within a larger
system;…”. Lord Fraser at 562 said:
“For a group to constitute an ethnic group in the sense of the 1976 Act, it must,
in my opinion, regard itself, and be regarded by others, as a distinct
community by virtue of certain characteristics.
Some of these characteristics are essential, others are not essential, but one
or more of them will commonly be found and will help to distinguish the group
5KIPGFD[#WUV.++
from the surrounding community. The conditions which appear to me to be

essential are these: (1) a long shared history, of which the group is conscious
as distinguishing it from other groups, and the memory of which it keeps alive
(2) a cultural tradition of its own, including family and social customs and
manners, often but not necessarily associated with religious observance.
In addition to those two essential characteristics, the following characteristics
are, in my opinion, relevant: (3) either a common geographical origin, or
descent from a small number of common ancestors (4) a common language,
not necessarily peculiar to the group (5) a common literature peculiar to the
group (6) a common religion different from that of neighbouring groups or from
the general community surrounding it (7) being a minority or being in a less
predominant group within a larger community, for example a conquered
people (say, the inhabitants of England shortly after the Norman conquest)
and their conquerors might both be ethnic groups.”
48 In 1994 the Commonwealth Government introduced the Racial Hatred Bill. The
following appears at pp.2-3 of the Explanatory Memorandum:
“The terms “ethnic origin” and “race” are complementary and are intended to
be given a broad meaning.
The term “ethnic origin” has been broadly interpreted in comparable overseas
common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per
Richardson J at p.531 and Mandla v Dowell-Lee [1983] 2 AC 546 (HL) per
Lord Fraser at p.562). It is intended that Australian courts would follow the
prevailing definition of “ethnic origin” as set out in King-Ansell. The definition of
an ethnic group formulated by the Court in King-Ansell involves consideration
of one or more of the characteristics such as a shared history, separate
cultural tradition, common geographical origin or descent from common
ancestors, a common language (not necessarily peculiar to the group),
common literature peculiar to the group, or a religion different from that of
neighbouring groups or the general community surrounding the group. This
would provide the broader spaces for protection of peoples such as Sikhs,
Jews and Muslims. The term “race” would include ideas of ethnicity so
ensuring that many people of, for example, Jewish origin would be covered.
While that term connotes the idea of a common descent, it is not necessarily
limited to one nationality and would therefore extend also to other groups of
people such as Muslims.”
49 In the same year (1994) the expression “ethno-religious origin” was introduced
to the ADA. We have already set out the relevant parts of the Second Reading
Speech at [32] above.
50 The reference to the “position at common law” is not clear and is not entirely
accurate. It would appear that the Attorney-General was referring to the earlier
decisions referred to above and also referred to by the Attorney-General of the
Commonwealth dealing with NZ and UK statutes, being King-Ansell v Police
[1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell-Lee [1983] 2
AC 546 (HL) per Lord Fraser at p.562. A reasonable interpretation of the
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Attorney-General’s remarks is that the broader concepts of ethnic origin

referred to in those decisions should apply under the ADA or, if a common
religious origin is involved, those decisions can also assist in interpreting the
term ethno-religious origin: see Azriel v NSW Land and Housing Corporation
[2006] NSWCA 372 at [75].
51 Since 1994 it has frequently been accepted that Jews in Australia have “ethnic
origins or ethno-religious origins”. In Miller v Wertheim [2002] FCAFC 156 at
[14], a Full Court said, on the basis of King-Ansell, that it can readily be
accepted that Jewish people in Australia can comprise a group of people with
an ‘‘ethnic origin’’ for the purposes of the RDA.
52 Based on evidence that Jewish people see themselves as a distinct

community; that Jews are bound by common customs and beliefs; have a
common language; and share other common characteristics, Hely J found
Jewish people in Australia are a group of people with an ‘‘ethnic origin’’ for the
purposes of the RDA: see Jones v Scully [2002] 120 FCR 243 at 272, [113].
53 The Appeal Panel in Droga v Birch [2017] NSWADTAP 22 at [35] stated that
“persons who identify themselves as Jewish and see themselves as part of the
“Jewish community” constitute a race” for the purposes of the definition as set
out in s.4 of the ADA. In Azriel v NSW Land and Housing Corporation [2006]
NSWCA 372 at [75], Basten JA said:
“It has long been accepted that Jews constitute a “race” for the purposes of
this definition: see King-Ansell v Police (1979) 2 NZLR 531 based upon the
phrase “ethnic origins”. Any possible doubt on this score was removed by the
inclusion in 1994 in the ADA of the term “ethno-religious”: Parliamentary
Debates (NSW), Legislative Council, 4 May 1994, p 1827.”
54 The attempt to spread these decisions to Muslims has met with mixed success.
For example, we were referred to the decision of Nyazi v Rymans Ltd
(unreported, 1988 EAT/6/88 decision of the Employment Appeals Tribunal of
the UK). The Tribunal found that Muslims were not an ethnic group because
the Muslim faith was widespread covering many nations, colours and
languages. Further, The Tribunal held that the reason for the alleged
discrimination was on the basis of religion, not “ethnic origin’’.
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55 Similar remarks were made by the ADT in Khan v Commissioner, Department

of Corrective Services [2002] NSWADT 131, which we have already referred to
above. The approach in Khan has been applied and followed in numerous
Tribunal decisions. Many cases have failed on either the ground that there was
insufficient evidence that Muslims in Australia generally form an ethno-religious
group or, alternatively or further, that, correctly characterised, the alleged
conduct was on the ground of religious discrimination, not racial. Many of
those cases were summarised in Alchin v Rail Corporation NSW [2012]
NSWADT 142 at [43]–[46]:
43 The questions of the construction of the words "ethno-religious ... origin" in

the definition of "race" and whether "on the ground of race" includes "on the
ground of being a Muslim" have been considered in a number of cases under
the ADA. In Khan v Commissioner, Department of Corrective Services [2002]
NSWADT 131 at [20] the Tribunal held that "ethno-religious ... origin" signifies
"a strong association between a person's or a group's nationality or ethnicity,
culture, history and his, her or its religious beliefs and practices". On this basis,
the Tribunal concluded at [21] that:
"it is insufficient for the Applicant merely to assert his Muslim
faith to fall within the statutory definition [of race]".
44 In Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006]
NSWADT 89 the Tribunal accepted what had been decided in Khan and went
on to hold in relation to Mr Ahmed's claim of racial vilification in which he had
only identified being a Muslim as the relevant characteristic of vilification as
follows at [20]:
"There was no evidence of any associations, strong or
otherwise, between the Applicant's nationality, ethnicity, culture
or history on the one hand, and his religious beliefs on the
other. While there is no basis at all to doubt that his religious
convictions are strongly and honestly held, in order to base
standing for a vilification claim [under s 20C] he needs to
provide evidence upon which the Tribunal may find that he has
the characteristic of the relevant ethno-religious background
required by s 88 of the Act."
45 Likewise in Kunhi v University of New England [2008] NSWADT
333 at [4] it was held by the Tribunal that:
"Race is defined in section 4 of the AD Act to include "colour,
nationality, descent and ethnic, ethno-religious or national
origin." Ms Kunhi says she is an Australian national and a
Muslim. Ms Kunhi declined to identify her race any more
precisely. Islam is a religion, not a race or an ethno-religious
origin: Khan v Commissioner, Department of Corrective
Services & anor [2002] NSWADT 131; Toll Pty Limited trading
as Toll Express v Abdulrahman [2007] NSWADTAP 70."
46 Similar comments were made by the Tribunal in Ekermawi v Network Ten
Pty Ltd [2008] NSWADT 334 at [7] and [8]:
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"7 In response to that argument Mr Ekermawi says that the race,

which has been vilified in this case, is Islam and that just as Jews have
been said to be protected by racial vilification provisions in the Federal
jurisdiction, so adherence to Islam should also be protected. There
does indeed seem to be a disparity in the way that courts have
classified Jews as members of an ethno-religious group whereas
Muslims, who come from diverse ethnic background, have not been
characterised as a race. Nevertheless, the authorities are clear that
Islam per se is not an ethno-religious origin under the provisions of
the Anti-Discrimination Act. Those authorities include the case Khan v
Commissioner, Department of Corrective Services & anor [2002]
NSWADT 131. I adopt the reasoning of the Tribunal in that case at
paragraphs 18 to 20.
8 It is up to Parliament, if it wishes to do so, to amend the Anti-
Discrimination Act to protect religious belief from vilification. This
Tribunal cannot interpret the legislation and give it a meaning any
different from the ordinary or plain meaning of the words in the Act. For
that reason alone I would refuse to give Mr Ekermawi leave for his
complaint to go ahead because, in my view, there is little or no
prospect of him succeeding on the ground of race. ..."
and in Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT
145 at [55] (quoted in Ekermawi v Harbour Radio Pty Ltd (No
2) [2010] NSWADT 198 at [10]):
"First, vilification of Muslims does not fall within section 20C(1),
because Muslims are not a 'race' as defined in section 4 of the
Act. The reason, as the Tribunal said in Khan at [18], is that
Muslims 'do not share common racial, national or ethnic origins'
and are therefore not an ethno-religious group such as the
definition embraces. In so ruling, we follow the decisions,
commencing with Khan, that are listed above at [44]. We are
unaware of any recent authority to the contrary. It follows that
any statements broadcast by the Respondents that generated
negative feelings towards Muslims generally, or any group of
Muslims, on the ground of their being Muslims could not
amount to unlawful racial vilification."
56 On the other hand, it has been accepted that being “Middle Eastern Muslim” is
a race within the definition of “ethno-religious origin”: Haider v Combined
District Radio Cabs Pty Ltd t/as Central Coast Taxis [2008] NSWADT 123 at
[50].
57 In Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011] NSWADTAP
62, the Appeal Panel of the Administrative Decisions Tribunal appeared to take
a different approach. It firstly stated the following:
“11. We think that, despite Khan et al. the Tribunal did not correctly
appreciate the meaning of “ethno-religious ... origin” in the definition of “race”.
In our view, on the preferable view of that expression, but depending on the
context, and we stress the importance of the context, verbal abuse aimed at
people identified by the abuser as “Muslim” might indeed be abuse of them as
5KIPGFD[#WUV.++
a group of “ethno-religious origin” without the necessity to show precisely that

Muslims of some common ethnicity were targeted.
…
“13. In our view there is no simple answer to the questions raised by Mr
Trad's appeal. As the statutory concepts of race, origin, ethnicity, ethno-
religious are notoriously muddy, slippery and (to say the least of it) imprecise,
before setting out our reasoning, some examples may clarify our general
approach to the matter:
a) Consider the statement 'Muslims leave their brains behind when
they enter the mosque. They believe in ludicrous, supernatural events.
They are, if anything, even less rational than Christians and Jews'.
This abuse is clearly of a religious group only and on religious grounds.
It has nothing to do with ethnicity.
b) 'Muslim immigration should be stopped. Islam does not accept a
secular state and its attitude to women is medieval'. That is fairly
clearly calumniation on the ground of religious affiliation, even if the
group might, though we think probably not, be regarded as one of
ethno-religious origin.
c) If the insult is however: 'The Muslims here, as in Europe, are a bad
lot. They don't want to integrate with us and their first allegiance is to
their fellow Muslims, including terrorists such as Al Qaeda', that might
(depending on all the evidence) well be seen as an insult to Muslims
seen as a group of ethno-religious origin, and on the ground of that
origin.
…
15. As a matter of purely textual interpretation, the 'ethno-religious origin' of a
group must be a species or subset of, or practically synonymous with, the
religious origin of the group. If the 'ethno-religious origin' of a group were a
species or subset of, or practically synonymous with, the ethnic origin of the
group, there would be no need of the expression 'ethno-religious' in the
definition of 'race'. Words in a statute should not lightly be treated as otiose.
16. It is doubtful whether there is any received ordinary meaning of the terms
'ethno-religious' or 'ethno-religious origin'. A number of dictionaries do not
recognise the term 'ethno-religious' let alone 'ethno-religious origin'. In ordinary
usage (to the extent that there is any), the imprecise expression 'ethno-
religious origin' of a group may not have the limited meaning just indicated: it
might mean a group defined by the ethnic origin of its members which also has
a common religious background. But because such an ethnic origin would of
itself constitute that group a race within the statutory definition, that is very
unlikely to be the meaning intended by the statute.”
58 Reference was then made to the two Attorneys’-General comments in
Parliament in 1994 and 2004: [19]-[21]. The Appeal Panel then proceeded:
“25. The statutory line has been drawn, in our opinion, by requiring that there
be characteristics of the religious group that can fairly be seen as so closely
akin, having regard to the general objects and purposes of the Act, to those of
an ethnic group that it is reasonable to call the group one of ethno-religious
5KIPGFD[#WUV.++
origin, even if in current, ordinary language it would not fairly be said that the
group has an ethnic origin.
26. However inconvenient it may be for complete certainty of the law, it is
necessary, as we attempt to explain below, to look to social factors and current
conditions affecting a group, as well as its more or less innate characteristics,
to determine whether it is in fact one of ethno-religious origin. This means that
the concept of an ethno-religious group is necessarily to a considerable
degree contextual or, as the expert report put it, 'fluid and contextual'.”
59 The Appeal Panel referred to the remarks of Lord Fraser in Mandla v Dowell-
Lee at [27]. The Panel then continued as follows:
“29. It is also inescapable, as Lord Fraser recognised, that the actual content
of words and concepts such as “ethnic group” and “group of ethnic religious
origin” may vary with time. We would add that such content may also vary with
place and the social landscape. …
…
32. The idea seems compelling that when an anti-vilification statute speaks of
a “group of ethno-religious origin” as an extension of the problematic concept
“race”, it is not contemplating an unchanging entity but a social construct or set
of social constructs that is to some degree changeable, chiefly depending on
the attitudes of others, including vilifiers and those enduring aspects of the
group that can fairly be said to be related to its origin. Thus the application of
the Act may vary at a given time and under given circumstances.
Nevertheless, as Ms Eastman submitted, the starting point is not the evidence
but the proper construction of “ethno-religious origin”. As we have indicated,
the word “origin” operates as a stabilising influence against over much
emphasis being placed on purely transient perceptions and attitudes. Further,
the fact that it is the concept of “race” that is being extended has a similar,
colouring influence.
33. The first necessary task is the identification of the group putatively vilified.
That is a question of fact and will depend on what, objectively, the ordinary
reasonable observer would, in all the actual circumstances, conclude was the
group targeted. People, including vilifiers, in Sydney, for example may,
depending on the context, use the term 'Muslims' to mean many things. These
include: adherents to Islam wherever located; adherents to Islam throughout
the whole world; followers of Islam in Bankstown or other parts of Sydney;
people in Australia or some part of it of actual or assumed recent Middle
Eastern descent and assumed to be Muslims; people of Indonesian or
Malaysian descent assumed to be Muslims, or people known or assumed to
be Muslims but assumed to be members of a different and inferior kind of
civilisation from that of mainstream Australia - the possible 'other' more fully
explained by the sociologists. Plainly, context is almost everything.
34. The next question is whether the group so identified is one of ethno-
religious origin. In many instances, the context will plainly indicate that no such
group was being discussed. In other contexts to answer that question would
require some inquiry into sociological aspects. Expert sociological evidence
may clearly assist this inquiry, though it need not be determinative. In
particular it cannot rewrite the statutory definition. The ultimate conclusion is of
course for the Tribunal, but there is no reason for the a priori rejection or
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disregard of the evidence. Expert knowledge and opinion may also assist to
frame or focus the inquiry in a factual sense.
…
36. Given that the group must have a common religious origin, such matters
as these (in no particular order) may be relevant to determining whether a
particular group qualifies for the Act's protection:
• Where a large proportion of the members of the group are
immigrants or descendants of immigrants, how deeply rooted is their
presence as part of the Australian community?
• To what extent if any are their collective identities marked by a
supplementary orientation to ethnic or religious kin in other countries?
• As a matter of fact, does any such orientation or other social
characteristic of the group arouse any common questioning of whether
these communities really "belong" in Australia in the same way as do
more "authentically" Australian people?
• To what extent, if any, are the group and its members associated
with a language other than English?
• Is the group a readily socially recognisable minority?
• Do its members tend to congregate to the practical exclusion of
others, other than for formal religious observance?
• Do its beliefs and attendant customs, such as dress, food taboos,
times and manner of religious observance result in distinctive ways of
life?
• Is there a distinct intellectual or recreational culture among group
members?
• How serious are any social as distinct from religious consequences
of marrying out of the group, or of apostasy?
• Are its members generally seen in the wider society as outsiders?
• Are its members subject to discrimination of kinds that ordinary,
unprejudiced people might, in ordinary current speech, reasonably
perceive as "racial discrimination" without the observers staying to
consider the precise, formal meaning of that term?
• Have external events involving co-religionists led to widespread
serious condemnation of the group as a whole?
• Has the name given to adherents of the religion come to have
overtones of cultural, social or political, and not only religious,
significance?
…
38. In Khan the Tribunal appears not to have accepted the textual limitations
of the statutory term to which we have referred and seems to have assumed
that an ethno-religious group must have a common 'nationality or ethnicity': it
spoke at [20] of the term signifying 'a strong association between a person's or
a group's nationality or ethnicity, culture, history and his, her or its religious
beliefs and practices'. In our view this is erroneous: it will suffice if the group
has a common nationality or ethnicity as well as religion, but that is not
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necessary. All that is necessary is, as we have explained, that the person or
group have a common religious origin and other characteristics that can fairly
be seen as so closely akin to those of an ethnic group that it is reasonable to
call the group one of ethno-religious origin, even if in current, ordinary
language it would not fairly be said that the group has an ethnic origin.
…
40. The examples given in Khan of possible ethno-religious groups namely
Javanese Christians, Bosnian Muslims or Northern Irish Catholics are, with
respect, at least in the absence of evidence, not especially persuasive. The
examples in fact show the contextual and therefore potentially fluid nature of
the concept of an ethno-religious group. Close attention is needed to the
context and to sociological facts. Such matters are susceptible to
demonstration by evidence, including expert evidence. Resort may also be
had to the kind of approach sanctioned by s144 of the Evidence Act 1995 and
briefly discussed in our first decision at [2011] NSWADTAP 19 [77]. In that
regard the requirements of procedural fairness must be kept in mind.
41. In the present case it cannot be said, we think, that had the Tribunal
adopted a more contextual approach, informed by sociological and,
apparently, developing international jurisprudential thinking on the subject, it
would necessarily have come to the same view that it did about whether
'"Muslims" in the present particular contexts might constitute a 'race'. Not to
adopt such an approach led to it not asking the right question. The Tribunal
asked itself 'Are Muslims a "race" within the meaning of the Act?' There is no
non-contextual answer to this question.
42. In our opinion, 'ethno-religious origin' is a particular statutory concept in
the nature of a neologism for the legislative task at hand and to misconstrue it
is an error of law. It is nevertheless not in the categories of a technical legal
term nor a term special to any scholarly or other particular field of endeavour.
Language, including statutory language, is too protean to be neatly divided
between ordinary and technical. If it can be divided into ordinary and other,
then this phrase falls within the 'other' category.”
60 The Appeal Panel concluded that the actual material complained of would have
been understood as targeting Muslims as a religious group, not as targeting a
group with an “ethno-religious ... origin”. Accordingly, the discussion of the
meaning of “ethno-religious ... origin” is obiter and not binding on this Tribunal.
61 In 2013 the High Court considered Mr Ekermawi’s application for special leave
to appeal from a decision of the Appeal Panel to refuse an extension of time to
appeal: Ekermawi v Harbour Radio Pty Ltd [2013] HCASL 190 (3 December
2013). Mr Ekermawi raised the question of whether Muslims are a race but the
Court held that the case “does not present a suitable vehicle for the
consideration of any question of the proper construction of the Anti-
Discrimination Act 1977 (NSW)”.
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62 Apart from the strike-out application in these proceedings, we have not been
made aware of any consideration of the relationship between Khan’s case and
Jones and Harbour Radio Pty Ltd v Trad (No 2). We set out below our
understanding of the applicable legal principles concerning the meaning of
“ethnic, ethno-religious ... origin”.
63 First, the terms “ethnic, ethno-religious ... origin” are not to be given a pedantic
or unduly narrow meaning”: Mabo v The State of Queensland (No 1) (1988)
166 CLR 186, 230 (Deane J).
64 Second, the broad interpretation of ethnic origin referred to in King-Ansell v

Police [1979] 2 NZLR 531 per Richardson J at 543 and Mandla v Dowell-Lee
[1983] 2 AC 546 (HL) per Lord Fraser at 562 is applicable under the ADA and,
if a common religion different from that of neighbouring groups or the general
community surrounding the group is involved, those decisions can also assist
in interpreting the term ethno-religious origin: see Azriel v NSW Land and
Housing Corporation [2006] NSWCA 372 at [75].
65 Third, the mere fact that members of the group – such as Australian Muslims –
are of diverse national and racial origins from different parts of the world, does
not preclude the group having a common ethnic or ethno-religious origin: King-
Ansell v Police [1979] 2 NZLR 531 at 534, 543. A group will be identifiable in
terms of its ethnic origins if the evidence establishes that it is a segment of the
population distinguished from others by a sufficient combination of shared
customs, beliefs, traditions and characteristics derived from a common or
presumed common past, even if not drawn from a common racial stock. Of
importance will be whether or not the evidence establishes that the group has
an historically determined social identity in their own eyes and in the eyes of
those outside the group.
66 Fourth, it is insufficient for the Applicant merely to assert his Muslim faith to fall
within the statutory definition of race: Khan v Commissioner, Department of
Corrective Services [2002] NSWADT 131 at [21].
67 Fifth, if a common religion different from that of neighbouring groups or the

general community surrounding the group is involved, the group may have a
common ethno-religious origin if the group’s characteristics can fairly be seen
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as being so closely akin, having regard to the general objects and purposes of
the Act, to those of an ethnic group that it is reasonable to call the group one of
ethno-religious origin, even if in current, ordinary language it would not fairly be
said that the group has an ethnic origin: Jones and Harbour Radio Pty Ltd v
Trad (No 2) (EOD) [2011] NSWADTAP 62 at [25].
68 Sixth, It is possible for a person to have more than one “ethnic origin”. For
example, Jews in Germany (as has been explained) may have an ethnic origin
based in Germany or other parts of the world as well as being Jewish and
having an ethnic origin further back than the creation of the State of Germany.
Depending on the evidence, the group may be regarded as having an “ethno-
religious origin”, despite coming from different national or ethnic origins
particularly where the people identify with the shared history and customs
associated with the religious practices of the group and are viewed as having a
separate and distinct identity by other Germans or members of the State in
question: see Ealing London Borough Council v Race Relations Board
[1972] AC 342 at 365.
69 We are of the view that to the extent the statutory construction of the term
“ethno-religious origin” in Khan is inconsistent with the above principles, we
prefer the approach of the Appeal Panel in Jones and Harbour Radio Pty Ltd v
Trad (No 2) (EOD) [2011] NSWADTAP 62. The key issue is the state of the
evidence to which we now turn.
Summary of the Evidence

70 According to the Australian Bureau of Statistics 2016 Census of Population, out
of a total population of 23,401,892, 604,240 people identified themselves as
Muslims or adherents of Islam. According to the Commonwealth Human Rights
and Equal Opportunity Commission Report 2004 “while they share a common
religion, Australian Muslims are a culturally and linguistically diverse group. …
They speak a range of languages…”
71 The Respondents tendered a 2015 report by Prof Riaz Hassan from the
International Centre for Muslim and Non-Muslim Understanding published by
the University of South Australia entitled “Australian Muslims: A Democratic,
Social and Economic Profile of Muslims in Australia”. Based upon the 2011
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Australian census, it concluded that Australian Muslims come from 183

countries and were “one of the most ethnically and nationally heterogeneous
religious communities”.
72 Based upon the 2011 census, 37.6% of the Australian Muslim Population were
born in Australia. The next most significant countries of birth were as follows:
(i) Lebanon (7% of the Muslim population);

(ii) Pakistan (5.6%);
(iii) Afghanistan (5.5%);
(iv) Turkey (5.3%);
(v) Bangladesh (5%);
(vi) Iraq (3.2%);
(vii) Iran (2.7%);
(viii) Indonesia (2.6%);
(ix) India (2.1%);
(x) Saudi Arabia (1.8%).
73 Based on the 2011 Australian census, the largest proportion of Australian
Muslims (41.9%) were of North African and Middle Eastern origin, followed by
South and Central Asia (25%); 10% were European; and 4% were of Saharan
African origin. The study concluded: “contrary to the general belief that most
Arabs are Muslim, the census ancestry data showed that only 43% of Arabs
are Muslims. Also, whilst almost 40% of the world’s Muslims live in South and
Central Asia, the large majority of the people in those regions are non-Muslim”.
74 As part of the 2011 Australian census, participants were asked to nominate

their national identity. 74.1% of Australian Muslims chose "Australian"
compared with 84.9% of all Australians. It was noted that some of these
Muslims would have arrived in Australia recently.
75 The 2015 study, however, reported on the way in which Muslims since the ‟9-
11″ terrorist attack were treated as a “single community” and one which was
regarded as “suspect” and subject to stereotyping and prejudice. There was a
reporting of the way in which there was assumed to be an association between
this community and terrorism, or that all members of this “Muslim community”
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were tarnished as potential terrorists or sympathisers of terrorism and grouped

together based upon their practices and looks. The study concluded that:
“In the labour market Muslim Australians face discrimination … Despite their
high levels of education they are less likely to work in the professions. All
these indicators suggest that a significant proportion of Muslim Australians
occupy a relatively marginal position in Australian society socially and
economically.”
Affidavit of S M Ekemawi dated 21 September 2018
76 This is the affidavit of the Applicant. The numbers in square brackets refer to
the paragraphs of the affidavit.
77 The Applicant states he was born in a Muslim family in Jerusalem when it was
under the control of the British Mandate ([2] and [3]). After family misfortunes,
he arrived in Australia at the age of 15. He socialised with other Muslim
children, with people of other faiths, and sought to learn English ([4], [5] and
[6]). He joined the Australian army at 21 and developed relationships of
friendship with people form different backgrounds and religions ([8]). He
become an Australian citizen in 1967 ([11]).
78 He states that, on 18 July 2016, he watched the Today Show with Sonia
Kruger on the Nine Network ([14]). He then repeats the conversation which
happened on air between Ms Kruger and Mr Wilkinson which we have annexed
with the letter A ([15]).
79 He states that, upon hearing those remarks, he anticipated and feared that Mr
Kruger’s words would legitimise and increase hate speech, and result in an
increase of criticism and acts of abuse towards Muslims in Australia ([17]). He
states that after hearing those remarks he “anticipated and observed that my
children's lives as Australian Muslims became more difficult” ([18]).
80 He states that he is aware that her daughter in law had a fallout with one of her
friends in the aftermaths of Mr Kruger’s remarks; and states that the argument
made her daughter in law feel that the level of respect and value that her friend
held towards her had diminished ([19]).
81 He then states that there are six articles of belief that he holds as a Muslim
([20]). He sets out the five pillars of Islam which all Muslims must obey ([21])
and he lists some of the occasions, such as Ramadan, that Muslims observe
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worldwide ([24]). He states that the key beliefs and festivals that are identified
above provide the Muslim community in Australia with a shared identity ([26]).
He states that due to the requirement of having to pray in Arabic, it is common
practice for Australian Muslims to enrol their children in Arabic school ([27]).
82 He then states that Australian Muslims celebrate and mark the occasions
mentioned above in a way that is distinguishable from other countries ([28]),
but that they also celebrate occasions that are typical to the Australian culture
([29]). He states that Australian Muslims approach to Islam is shaped by their
shared cultural values and upbringing as Australians, and this makes the
Australian Muslim community very different from other Muslim communities
around the world ([30]).
83 The Applicant sets out the occasions in which he interacts with the Australian
Muslim community: attending mosques around Sydney; having a wide circle of
Muslim friends; interacting with his children’s Muslim friends; attending
activities and conferences held by Australian Muslim organisations; being
involved in a number of racial vilification proceedings over the years ([30]).
84 He states that in this affidavit, when he refers to the practice of Islam by

Australian Muslims or to the Australian Muslim community, “what I mean by
this is that these are conclusions that I have formed as a consequence of my
participation in, and knowledge of the Australian Muslim community arising
from the matters above” ([33]).
85 The Applicant describes how Australian Muslims celebrate Ramadan ([34]),

and what they do on Eid days ([35]). With respect to the latter, he states that
“Even though Eid is a world-wide celebration, very few Muslims in the world
celebrate in the same fashion as we do. Traditionally Muslims around the world
attend the mosque and visit family and friends to celebrate Eid, however, in
Australia the celebration includes a carnival affair” ([36]).
86 He also observes that Australian Muslims engage in the spirit of Christmas as

well, including by way of giving gifts and, for some families, setting up
Christmas trees ([37]).
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87 He also states that there are celebrations typical to Australia that Australian
Muslims attend as part of the Australian community ([38]), such as Australia
Day, which many Muslim families celebrate by attending Halal barbecues on
parks and on beaches ([39] – [40]). He explains that he raised his children to
be Australian Muslims, explaining to them that they are Australian and have to
be proud of being so ([41]-[42]).
88 The Applicant goes on to observe that Australian Muslims have a number of

unique approaches to life that distinguishes them from other Muslims around
the world ([43]), including: the sports that they follow and play such as Rugby
League and Australian Football; joining organisations such as Surf Lifesavers
and Scouts; the fact that they developed a wide range of specialty clothing into
the Australian fashion market; by naming children with names of Judeo-
Christian origins, which the Applicant says would be very unusual in many
other Muslim communities ([44] [47]).
89 The Applicant then sets out the difference between Australian Muslims’
approach to Islam as compared to other Muslim communities around the world,
by providing the following examples: difference with respect to the treatment of
women; lack of distinction between Sunni and Shia Muslims; lack of
importance of ethnic origin of any particular Australian Muslim, in the sense
that a Muslim is seen as such regardless of what country he or she comes
from; lack of importance of whether a Muslim is devout or not practicing; lack of
ban on pre-marital relationships by referring to the ‘faitha’ (that is, a Chapter in
the Quran which sets out the practice of the families of the couples to meet
before a marriage) which would be considered unusual in may other countries
around the world; lack of stigma for divorced couples; lack of stigma toward
Apostasy ([48] – [55]).
90 The Applicant states that what he is claiming can be seen by a way of a single
example: if one of his children, who have all been raised as Muslims, were to
relocate to another country such as Saudi Arabia, he or she would experience
a significant culture shock ([57]).
91 The Applicant states that he has travelled extensively to other Muslim

countries, and “My observation is that the majority of Australian Muslims lead
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their life in accordance with what might be called a fusion between traditional
Anglo Australian culture and law on the one hand, and Islamic religion and
cultural practices on the other. I consider myself to be an Australian Muslim,
practicing customs which are distinguishable from both other Muslims around
the world and the wider Australian community.” ([59])
92 The Applicant concludes saying that “Over the 50 or so years I have lived in
Australia, I have observed that Australian Muslims generally live their life in a
way that is a hybrid between Islamic and Australian culture, while at the same
time being distinguishable from both” ([61]).
Conclusion
93 The Respondents objected to paragraphs 20 – 61 of the Applicant’s affidavit.
The Respondents were agreeable to the Tribunal dealing with the admissibility
and particularly the weight to be given to the Applicant's affidavit in our final
deliberations. We accept the Respondents’ submission that for a finding of
racial vilification we need to be persuaded generally to the Briginshaw standard
by evidence which can provide a comfortable level of satisfaction, fairly and
properly arrived at, commensurate with the gravity of the charge: Clark v
Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63 at [73]-[98]; Burns v Nine
Network Australia Pty Ltd [2011] NSWADTAP 25 at [16]-[37].
94 ln evidence, the Applicant agreed that he had not held any representative
position with respect to the Muslim community. He has not been a religious
leader. He is not a religious scholar. . The opinions expressed in the affidavit
are generalised and unsubstantiated. The Applicant holds no relevant
qualifications to express any expert opinion relevant to the identification of
Australian Muslims as an 'ethno-religious' origin or the practices of Muslims
worldwide. We note the Tribunal in Khan v Commissioner, Department of
Corrective Services & Anor (EOD) [20011 NSWADTAP 1 at [41] has previously
stated, ‘’the Tribunal should have before it some expert evidence as to whether
or not the appellant's adherence to the Muslim faith accords with the meaning
of ‘ethno- religious origin’."
95 The Applicant makes generalised assertions, unsupported by any relevant or

reliable sources, about the ‘unique’ common practice or culture of Australian
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Muslims compared with other Muslim countries which are not identified, other
than Saudi Arabia. To the extent his assertions are based on what he has been
told by his circle of Muslim friends and acquaintances, it is hearsay.
96 In the result, we conclude that the Applicant’s general statements of opinion as

to the following, to be of little or no weight:
 The common practices or culture of the alleged ‘community of Australian

Muslims’ as a whole;
 That such common practices or culture are unique which distinguishes the
alleged ‘community of Australian Muslims’ from other Muslims around the
world;
 That the identified key beliefs and festivals provide the alleged ‘community of
Australian Muslims’ with a shared identity or sense of being a distinct
homogeneous community regardless of the ethnic origin or religious sect they
come from;
 That Australian Muslims consider themselves all part of the worldwide Muslim
community.
97 On the other hand, we accept the Applicant, based on personal observation,
can give evidence about the common practices of the Muslims in Sydney with
whom he interacts, such as:
 the enrolling of their children in Arabic school;

 the celebration of Ramadan and Eid;
 attendance at mosque for Friday prayers, including by Muslims of different
origins;
 English as the common language;
 the recitation of the Qur’an and prayers in Arabic;
 the wearing of traditional clothes, such as dashas and hijabs by ‘many’;
 eating certain foods, such as halal meat, kebabs and flatbreads; and
 participating in Australian cultural activities.
98 There is an absence of reliable evidence, however, as to whether the above
common practices exist throughout the Muslim population in Australia and
beyond Sydney.
99 As explained above, the fact that Australian Muslims have many ethnic origins
and many nationalities and have migrated to Australia from many different
parts of the world does not prevent the group having a common ‘ethno-
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religious origin’. Of importance will be whether or not the evidence establishes

that the people in the group identify with the shared history and customs
associated with the religious practices of the group so that they regard
themselves as being one ‘community’ and whether those outside the group
view them as having a separate and distinct identity.
100 There is evidence that since the ‟9-11″ terrorist attack Australian Muslims are
treated as a “single community” which is regarded as “suspect” as potential
terrorists or sympathisers of terrorism and they are grouped together based
upon their practices and looks. Indeed, as we explain below, Ms Kruger’s
comments treated Australian Muslims as a “single community” which was a
threat to the broader community’s safety, simply by virtue of its size.
101 On the other hand, there is no objective evidence that would allow the Tribunal
to be comfortably satisfied that Muslims living in Australia regard themselves
as being a distinct community irrespective of their different ethnic origins,
religious traditions (conservative or liberal, Sunni or Shia), place of birth or how
long they have lived in Australia.
102 In conclusion, the evidence does not support a finding that Muslims living in
Australia are a ‘race’ by reason of a common ethnic or ethno-religious origin.
Section 20C is therefore not engaged and the application is to be dismissed.
The result on this point, however, might have been different had there been
different or additional, objective evidence.
103 In case we are wrong in this conclusion, we set out our findings on the
remaining issues in the case.
Did Ms Kruger’s statements incite hatred, severe contempt or serious ridicule

on the grounds of membership of an ethno-religious group?
Parties’ submissions
104 The Applicant first submitted that Ms Kruger’s comments were directed at the
Muslim community, rather than at the religious doctrines associated with Islam.
105 The Applicant contended that Ms Kruger’s comments were not a clinical
discussion as to whether particular ethno-religious groups within Australia have
a higher statistical likelihood to generate offenders in regards to certain types
of crime; rather, her comments were singling out the Australian Muslim
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community as a source of terrorists. The Applicant contended that connecting a

particular community within an increased incidence of a crime such as
terrorism is capable of inciting hatred or serious contempt towards the group or
members of the group.
106 With respect to the audience, the Applicant submitted that a TV channel must
be found to have been directing its broadcast to the public at large, and thus
that the question of incitement should be determined by its likely effect on the
ordinary members of that public.
107 The Respondents submitted, first, that the Applicant must adduce evidence
about the audience, as without it, the Tribunal cannot make any assessment of
whether an ordinary member of the particular audience may have been incited
to the standard required. The Respondents submitted that on the available
evidence it is not open to the Tribunal to find that the audience would be the
public at large.
108 The Respondents submitted that the Applicant failed to identify which specific
words spoken by Ms Kruger were capable of inciting an ordinary member of
the audience, but rather that the Applicant relies on mere imputations.
109 Furthermore, the Respondents submitted that the Applicant did not adduce any
evidence that the audience was likely to be incited or was in fact incited. The
Respondents also submitted that the Applicant failed to specify whether Ms
Kruger’s words incited the audience members to hate Muslims living in
Australia or hold them in serious contempt.
110 The Respondents also submitted that in the context in which Ms Kruger’s
words were spoken (a debate on immigration and its connection to terrorism),
nothing can support the finding that those words had the effect of inciting
hatred or serious contempt; and that the Applicant cannot point to any express
words said by Ms Kruger that makes a causal nexus between her words and
Muslims living in Australia.
111 The Applicant replied that the fact that the actual audience of the broadcast is a
mass audience measured in hundreds of thousands of people can be
established before the Tribunal. The Applicant also submitted that where one's
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audience is a significant portion of the public, and likely to be people with many
different characteristics and views, any identification as to whether the public
act was capable of inciting the relevant reactions will almost inevitably need to
be resolved by asking whether or not it would have that effect upon an ordinary
member of the Australian community.
112 The Applicant also contended that he is not relying on imputations, but is just
seeking to demonstrate the meaning conveyed by Ms Kruger’s words.
Relevant legal principles

113 The general principles regarding the interpretation of the word ‘incite’ have
been explained by Bathurst CJ in Sunol v Collier No. 2 [2013] NSWCA 196 at
[41]:
…
“(a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to
animate and covers conduct involving commands, requests, proposals, actions
or encouragement.
(b) It is not necessary for a contravention that a person actually be incited.
(c) It is not sufficient that the speech, conduct, or publication concerned
conveys hatred towards, serious contempt for, or serious ridicule of
homosexuals; it must be capable of inciting such emotions in an ordinary
member of the class to whom it is directed.
(d) It is not necessary to establish an intention to incite.”
…
114 With respect to the audience, His Honour held at [33] that the question of
incitement has to be decided by reference to an ordinary member of the class
to which the incitement is directed, rather than a reasonable member.
115 In the matter of Jones v Trad [2013] NSWCA 389 at [56], Ward JA affirmed that
the test to determine whether a public act had the capacity to incite the
requisite emotion was an objective one (citing Burns v Laws (No 2) [2007]
NSWADT 47 at [111]) and that it was not necessary to prove that any particular
person was, in fact, so incited (at [160]) (citing Burns v Laws at [93]-
[113]; Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122 at
131). It was necessary, however to identify the “audience” to the act of
vilification for the purpose of determining objectively whether an ordinary
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member of that audience would be likely to be incited to have serious contempt

for the person the subject of the behaviour complained of.
Relevant audience
116 The Tribunal has before it survey evidence of the likely audience of the
broadcast in question. Whilst not completely accurate, of course, this evidence
suggests an audience in New South Wales of between 70,000 and 80,000
people consisting of a broad cross-section of the community, but with a
possible slight overrepresentation of females and persons who are not in
employment.
117 In the result, on the basis of this evidence, we broadly accept that the relevant
audience in many respects resembles the population at large.
“On the ground of”

118 The Applicant bears the onus of proving that the relevant public act (being the
statements in question) incited or is likely to incite hatred/serious contempt of
the persons in question “on the ground of” race, or more particularly in this
case “ethno-religious origin”. The expression “on the ground of” requires a
causal connection between the public acts in question and the hatred/serious
contempt of the group in question.
119 The relevant race / ethno-religious origin must be one of the real, genuine or
true reasons for the incitement: see Jones v Trad [2013] NSWCA 389 at [98].
120 Ms Kruger made no reference to the Muslim religion, as such, or to any

particular portion of the Muslim community being adherents to any particular
form of ‘radical’ Islam. She suggested it was ‘actually really simple’ – ‘that there
is a correlation between the number of people who, you know, are Muslim in a
country and the number of terrorist attacks’. With the Muslim population in
Australia ‘being something like 500,000’ ‘for the safely of the citizens here’, she
stated there should be a ban on any additional Muslim migration.
121 In other words, Ms Kruger was stating, in effect, that the Australian Muslim
community as a whole was a threat to the safely of the citizens of Australia.
She did not say a particular brand or brands of Islam breeds terrorism. Her
concern was about the size of the Muslim community as a whole irrespective of
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the nature of the membership of that community. A type of stereotyping was

being made in which there was assumed to be an association between this
community and terrorism, or that all members of this “Muslim community” were
tarnished as potential terrorists or sympathisers of terrorism
122 Accordingly, the attack was on the Muslim Australian community and Muslim
culture as a whole, not the observance of the religion as such. The total effect
of the statements fits within the third of the categories listed by the Appeal
Panel in Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD) [2011]
NSWADTAP 62 at [13].
123 In conclusion, if Australian Muslims have a common ‘ethno-religious origin’,

then, in our view, Ms Kruger’s remarks were an insult to, or an attack on, such
Muslims seen as a group of ethno-religious origin, and on the ground of that
origin.
Capacity to incite hatred or serious contempt

124 The Tribunal has before it the actual broadcast and it has watched that
broadcast during the hearing of the complaint. We agree with the Respondents’
submission that Ms Kruger’s tone was calm and measured. She did use the
term “fanatics” and made it clear she did not think every Muslim in Australia or
overseas was a fanatic. She did say some of her best friends were peace-
loving Muslims.
125 On the other hand, her comments were presented as part of a serious and
earnest debate on an issue of topical importance. We note the evidence before
the Tribunal is that some members of the Australian population already regard
Australian Muslims as “suspect”, where there is assumed to be an association
between this community and terrorism, or that all members of this “Muslim
community” are tarnished as potential terrorists or sympathisers of terrorism.
126 As a result, the evidence before the Tribunal is that Muslim Australians face
discrimination in the labour market. This suggests that some ordinary members
of the Australian population already harbour feelings of hatred towards, or
serious contempt for, Australian Muslims as a whole by reason of the
assumption that they are potential terrorists or sympathisers of terrorism.
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127 In our view, such feelings or emotions would be encouraged or incited amongst
ordinary members of the Australian population by Ms Kruger’s remarks. In
particular, we refer to her remarks that all Muslim migration should be stopped
now "because I want to feel safe, as all of our citizens do, when they go out to
celebrate Australia Day" and ‘’ for the safely of the citizens here’’. As stated,
her concern was about the size of the Australian Muslim community as a whole
irrespective of the nature of the membership of that community. Ms Kruger’s
co-host Mr David Campbell, we note, expressed the view that "this [comment]
breeds hate’’.
128 In our view, such remarks would likely encourage hatred towards, or serious
contempt for, Australian Muslims by ordinary members of the Australian
population.
Were Ms Kruger’s statements a fair report of a public act?

129 The Respondents pleaded and relied upon the ground that what was broadcast
was either a fair report of a public act pursuant to s.20C(2)(a) or a public act
done reasonably in good faith within the meaning of s.20C(2)(c). It should be
noted that the matters in s.20C(2) are not defences in the strict sense, namely,
matters which the Respondents must prove. Rather, they operate as
exceptions to the general prohibition contained in s.20C(1): see Jones v Trad
(2013) 86 NSWLR 241 at 252 [105] per Ward JA.
130 It was the Respondents’ contention in paragraph 15(b)(i) of their Points of
Defence that the broadcasts were a fair report of media reports about the Nice
terrorist attack. The Respondents submitted that:
 Ms Kruger was providing a fair and accurate report of the article by Mr Andrew
Bolt, which was the focus of the Mixed Grill segment;
 Ms Kruger’s views were expressed in the context of an accurate report of the
comments made by Mr Bolt;
 the fact that Mr Kruger was expressing agreement with Mr Bolt’s views does
not detract from the fact that the segment was fairly reporting the article.
131 The Applicant submitted that the words spoken by Ms Kruger did not purport to
be a report of what was said by Mr Bolt in the article, rather, the latter was
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merely a departure point for the expression of views personally held by Ms

Kruger.
Applicable law
132 Ward JA, in Jones v Trad (2013) 86 NSWLR 241 at [105] (Emmett and
Gleeson JJA agreeing), stated subsection 20C(2) sets out exceptions to the
prohibition in subsection (1), and not defences. Her Honour also stated (at
[27]):
Like his Honour in Sunol v Collier, albeit in respect of different provisions, I

consider that the task of construing the racial vilification provisions is one to be
approached with conservatism, recognising the high value placed by the
common law, and by the legislature, on freedom of expression (at [59]).
133 In Ekermawi v Jones (No 3) [2014] NSWCATAD 58, the Tribunal stated that:
what must be fair is the report of a public act (at [56]) and a reporter, when
reporting a public act, is free to add his or her own opinion as long as the
opinion itself is not vilifying (at [56]). The Tribunal also stated that defamation
law can provide a useful guide in determining the meaning of the exceptions
under the Anti Discrimination Act (at [54]).
134 Section 24 of the Defamation Act 1974 (NSW) established the defence of a
“fair protected report”. In Waterhouse v Broadcasting Station 2GB Pty Ltd
(1985) 1 NSWLR 58 Hunt J stated (at 63A) that “to be a fair report the matter
complained of must with substantial accuracy express what took place in that
part of the proceedings of which it purports to be a report”.
Conclusion
135 It can be accepted that the Mixed Grill segment in question involved the
discussion about Mr Bolt’s article. The question is whether Ms Kruger’s
comments could be said to represent a fair report of that article, or did it go
beyond that? The Applicant’s contention was that Ms Kruger used Mr Bolt’s
article as a launching pad for her own views which she expressed. The
Respondents’ contention was that this characterisation does not accord with a
proper analysis of the Mixed Grill segment in question.
136 Overall, Ms Kruger did more than simply provide a fair report of Mr Bolt’s
article. She provided commentary to the effect that not only did Mr Andrew Bolt
have “a point here”, but that there was a correlation between the number of
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people who are Muslim in the country and the number of terrorist attacks. She
expressed the view in respect of Muslim immigration that she “would like to see
it stop now for Australia. Because I want to feel safe, as all of our citizens do,
when they go out to celebrate Australia Day.” Next, she expressed the view
that she would like to see Australian borders closed to Muslims at this point,
given that Australia has something like 500,000 now in our country and that “for
the safety of the citizens here, I think it’s important”.
137 Overall, as further explained in the section below this goes beyond simply a fair
report of Andrew Bolt’s article. She provided her own views and commentary
on the issues and these additions were not just opinion, they were vilifying
remarks in their own right.
138 Accordingly, the exception based on s.20C(2)(a), in our view, is not made out
Were Ms Kruger’s statements public act, done reasonably and in good faith for
purposes in the public interest, including discussion or debate about an
exposition of any act or matter?
139 The Respondents sought to rely upon the terms of s.20C(2)(c) of the ADA
which is in the following terms:
“(2) Nothing in this section renders unlawful:

…
(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 an exposition of
any act or matter.”
140 The Respondents contended that the Mixed Grill segment discussed the matter
in the context of the opinions expressed by Mr Bolt in his article on the same
day. The format was a debate with different opinions and views being
discussed and that account should be taken of the duration, tone and nature of
the debate. It was submitted that the language was measured and Ms Kruger’s
tone and words were not pernicious. It was contended there was nothing done
in the form, context or content of the segments that was unreasonable or
evidenced bad faith.
141 It was said that the context of the discussion was morning television. The
debate was broadcast in New South Wales at a time of day when many people
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in paid employment would be attending work. The segment was not presented
as “news”. It was not a journalistic discussion or akin to a news report.
142 The Applicant’s submission was that there was no evidence cited in support of
the various contentions made regarding the size of the Muslim community in
Australia being a threat to national security. The Applicant pointed out that Ms
Kruger herself defined her views as being “extreme”. The Applicant submitted
that the extreme nature of the statements made by Ms Kruger, without having
any evidence in support, show that it was not something done “reasonably” in
the nature of a discussion on a matter of public interest.
143 In response, the Respondents contended that it was not necessary to cite
evidence or statistical support for a proposition before a broadcast could be
said to be done “reasonably”. The Respondents contended that there was no
authority that supported such a position.
144 Rather, the Respondents referred to case law to the effect that in judging
whether or not there was racial vilification, there should be value placed on the
principle of freedom of expression - see Allsop P in Sunol v Collier (No 2) at
[59] and [60] and Burns v Laws (EOD) [2008] NSWADTAP 32 at [28]-[29].
Relevant legal principles

145 In Sunol v Collier, Bathurst CJ at [41] said that for a public act to be reasonable
within the meaning of this exception it must bear a rational relationship to the
protected activity and not be disproportionate to what is necessary to carry it
out. To be done in good faith, the public act must be engaged in bona fide and
for the protected purpose. His Honour added that reasonableness is to be
assessed objectively (at [35]); while good faith involves no more than a broad
subjective assessment of the defendant’s intentions (at [37]).
146 In Burns v Laws (EOD) [2008] NSWADTAP 32 the Appeal Panel said at [29]:
“29. As to the exception itself, the following statements have broad, though
not universal, support:
(i) The onus lies on the respondent to satisfy the tribunal of fact that
the conduct was done 'reasonably and in good faith' (in NSW, s 104 of
the ADA is relied upon).
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(ii) The inquiry as to whether the conduct was 'done reasonably and
in good faith' is not confined to evidence relating to the 'doing' of the
act (the method), but extends to the contents (the message).
(iii) ln forming a view as to whether the conduct was done reasonably
and in good faith, relevant material includes the content of the
offensive material (in this case the broadcast), any evidence given by
the respondent as to the circumstances, reasons and motives for the
publication, any inferences that may reasonably be drawn from the
material itself in respect of these matters, the context of the publication
including any pattern of conduct by the publisher of the statements.
(iv) While the expression 'done reasonably and in good faith' may be
regarded, broadly speaking, as a composite one, it contains two
elements or requirements, to be addressed separately.
(v) Whether the conduct was done reasonably is to be assessed in
an objective manner.
(vi) Good faith is not established if the respondent acted in bad faith,
out of malice or for an improper purpose.
(vii) Ultimate judgments as to such matters as 'reasonableness' and
'good faith' are ones of fact.”
Consideration
147 Broadly, the Tribunal accepts that the purpose of the discussion in question
was to have a debate about the size of the Australian Muslim population, the
levels of Muslim migration and whether an increase in the level of either
increases the likelihood of future terrorist attacks in Australia. Further, the
Tribunal accepts that to have a public discussion on such matters was in the
public interest. Finally we accept the Respondents were acting in good faith
without malice and not for an improper purpose.
148 However, we cannot accept that the remarks of Ms Kruger were “reasonable”.
She expressed the view that the size of Australia’s Muslim population meant
there should be no further Muslim migration irrespective of any other matter.
This appears to be unsupported by any evidence or material placed before the
Tribunal.
149 The principal difficulty we have with Ms Kruger’s comments is that she
suggests that 500,000 “Australian Muslims” is too many and that, in and of
itself, such a number of Muslims living in Australia poses a safety threat to
persons in Australia. Consistently with this proposition, Ms Kruger concludes
that all Muslim migration should be stopped because any addition to the
number of Muslims in Australia increases the risk of terrorist attacks.
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150 Thereby, Ms Kruger goes further than Mr Andrew Bolt, who accepts in his
article that “truly, the number of Muslims in the country does not tell the full
story”. Mr Andrew Bolt points out that Germany, whilst having possibly more
Muslims than France, may have escaped the same level of terrorism as France
“perhaps because many of its Muslims came from Turkey, more westernised
than the North African countries’’ which are the source of most Muslims in
France.
151 Accordingly, the point of Mr Andrew Bolt’s article is that it is the form of the
Muslim migration, not the mere fact of Muslim migration, which is of particular
importance. It is, as he put it, the “open door” policy of Muslim migration that
may contribute to terrorist attacks. Ultimately, Ms Kruger, on the other hand,
was putting forward a stereotype in suggesting that it was the size of the
Muslim population in Australia per se which leads to terrorist attacks.
152 In our view, Ms Kruger could have expressed her comments in a more
measured manner to avoid a finding of vilification. For example, she could have
referred to the need for Australia to engage in greater security checking of
people wishing to migrate to Australia who may happen to be Muslims and the
need to prevent a drift towards radicalisation amongst Muslims currently in
Australia, rather than simply stating that 500,000 Muslims represents an
unacceptable safety risk which justifies stopping all Muslim migration.
153 It may have been possible for either of the other commentators – Ms Lisa
Wilkinson or Mr David Campbell – to make this comment and then seek to
have Ms Kruger agree with that. This also would have likely prevented the
broadcast amounting to the vilification of Muslims in Australia. Unfortunately,
while Mr Campbell appeared to disagree with Ms Kruger, Ms Kruger’s public
remarks were still preserved and amounted to a stereotypical attack on all
Muslims in Australia.
Relief
154 The Applicant by his Points of Claim filed 12 July 2018 did not seek any relief
by way of formal orders. In his Outline of Argument he sought merely a finding
of contravention. He also sought in his Outline of Argument an order that the
Respondents “issue an apology”.
5KIPGFD[#WUV.++
155 The Respondents submitted that an apology – private or public – would not be
an appropriate remedy, including for the following reasons:
(a) the Applicant was not named personally in the segment or

referred to in any way;
(b) there was no damage to the Applicant’s reputation; and
(c) any apology is likely to have somewhat limited utility as the acts
complained of took place over two years ago.
156 The Tribunal accepts that orders under the ADA are designed not as
punishment or sanction, but to remedy the effect of the Respondents’ conduct:
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [3].
Broadly, we accept that in the particular circumstances of this case an apology
would not significantly remedy the effect of the Respondents’ conduct.
157 However, we need not consider this question further in light of our conclusion
as to whether the evidence establishes that Muslims living in Australia have a
common ethno-religious origin. Apart from that issue, we would have found that
both of the Respondents engaged in racial vilification of the Australian Muslim
community, being Muslims living in Australia, in breach of s.20C of the ADA.
Orders
(1) The application will be dismissed.
**********
Annexure 1 – transcript of the 18 July 2016 broadcast
Transcript: Today
LW: Welcome back to the show. Does the number of migrants and refugees
allowed into a country increase its risk of terror attacks? News Corp columnist
Andrew Bolt certainly believes so, saying Muslim migration in France has
opened the door to terror. It's time now for Mixed Grill with Sonia Kruger and
David Campbell. Good morning to you guys. David, I'll start with you. Is he
right?
[Graphic: "The Mixed Grill. Muslim Migration, Do more migrants increase the
risk of terror attacks?"]
5KIPGFD[#WUV.++
DC: Ah, in what I, I read this article, and I'm not the biggest Andrew Bolt fan
and that's fine he's allowed to have his opinion. But I was interested about this
because Sonia and I were talking about it, you know, before we came on set.
So I thought well let me try and find a counter to his argument and I just went
onto Google, and the French international press actually give you a much
clearer argument. It's not just immigration. And what he's trying to do is make
us shut our borders. He wants an immigration change in this country and he's
saying look at this horrible example, this is what we shouldn't be doing. But
really, you know the bombing in Syria, it started with banning the burka, you're
starting, in 2004 in schools, then in 2010, you know, then it goes to airstrikes
on ISIS, you know, which they're doing. There's a lot of counter-terrorism
they're doing in North Africa and central Africa, this is very dense and very
complicated. And it's not just about shutting borders, it's about when you have
people in your borders how do you treat them?
SK: Or is it actually really simple? I mean, personally, I think Andrew Bolt has a
point here, that there is a correlation between the number of people who, you
know, are Muslim in a country and the number of terrorist attacks. Now I have
a lot of very good friends who are Muslim, who are peace-loving who are
beautiful people, but there are fanatics. And does the population and the
correlation between those two things, is it having an impact? I mean, if you look
at Japan, Japan has a population of 174 million. It has a hundred thousand
people in that country who are Muslim. We never hear of terrorist attacks in
Japan. Personally I would like to see it stopped now for Australia. Because I
want to feel safe, as all of our citizens do, when they go out to celebrate
Australia Day. And I'd like to see freedom of speech and Lisa I think, you know
we're seeing journalists threatened...
DC: I'd like to see freedom of religion as well. As well as freedom of speech.
They both go hand in hand...
SK: But who.. .We're not saying there's no freedom of religion.
DC: Well if you start doing things...
SK: We're talking about immigration, David.
5KIPGFD[#WUV.++
DC: We are but, this breeds hate. This sort of article breeds hate. When you
have someone like Pauline Hanson [inaudible]...
SK: But so you're not allowed to talk about it? You're just not allowed to talk
about it? You're not allowed to discuss it?
DC: Yes you are allowed to talk about it, and you're allowed to celebrate and
worship whatever you want and whatever you don't want...
SK: Well I would venture that if you spoke to the parents of those children killed
in Nice then they would be of the same opinion.
LW: Well in fact, in fact, the very first person who was killed, mown down in
truck...
SK: Was a Muslim woman...
LW: ... was a Muslim woman.
SK: Yes.
LW: Yes, so you know it's killing Muslims, I mean it's...
SK: Muslims. Good Muslim people. Yes that's exactly right.
LW: I mean it's indiscriminate. But just to clarify Sonia, are you saying that you
would like our borders closed to Muslims at this point?
SK: Yes I would. I would. Because I think at this point...
LW: Which is the Donald Trump approach...
SK: I think we have something like 500,000 now in our country and I... Well
perhaps it is... but for the safely of the citizens here, I think it's important.
LW: OK. Alright, we'd love to know your thoughts, let us know on Facebook,
email or Twitter.
Annexure 2 – transcript of the 19 July 2016 broadcast
S J: ... Good morning to David and Sonia.
DC: Morning Sylvia
5KIPGFD[#WUV.++
SK: Morning, thank you very much Sylvia. Now before we start the show I'd just
like to say a few things about what happened yesterday on the Today Show.
The discussion we had was centred around a newspaper article which
referenced the correlation between the Muslim population of certain countries
and the number of subsequent terrorist attacks. I felt the article made some
relevant points.
We've witnessed too many atrocities committed in the name of terrorism and
last week's attack on innocent men, women and children in Nice left me in utter
disbelief. I saw the image of a baby covered in a plastic sheet with a doll lying
beside her and it rocked me to the very core. I imagine what that must have
been like for the people of Nice, for the friends and families of the lost and the
thought that it could happen here terrifies me.
This type of attack affects people from all walks of life. And I want to make it
very clear that I have complete respect for people of all races and religions. I
acknowledge my views yesterday may have been extreme. The reaction
overnight in the papers, online and via social media demonstrates that there
are a myriad of opinions in Australia, which I fully appreciate. It is a hugely
complex and sensitive issue, it's an issue with no simple answer and it's an
issue that cannot be fully discussed in a short televised segment. Is there a
solution? I don't know. We elect politicians to make those calls, they analyse
and then they decide and we hope they get it right.
It's a privilege to live in a country such as Australia which embraces a

multicultural society, but there is no simple answer here. And if we are to find a
solution to the situation, at the very least we need to be able to discuss it.
DC: Well said. Alright, let's move on...
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

Muslims Living in Australia V Sonia Kruger & Nine Network

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Muslims Living in Australia V Sonia Kruger & Nine Network

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Civil and Administrative Tribunal

New South Wales

Case Name: Ekermawi v Nine Network Australia Pty Limited

Medium Neutral Citation: [2019] NSWCATAD 29

Hearing Date(s): 13 November 2018

Date of Orders: 15 February 2019

Decision Date: 15 February 2019

Jurisdiction: Administrative and Equal Opportunity Division

Before: Dr R. Dubler SC, Senior Member

Decision: The application will be dismissed.

Catchwords: HUMAN RIGHTS – racial vilification – meaning of

Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 20C, 88, 89(2),

Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142

Texts Cited: United Nations Declaration on the Elimination of all

Category: Principal judgment

Parties: Sam Ekermawi (Applicant)

File Number(s): 2018/00056061

Publication Restriction: Unrestricted

REASONS FOR DECISION

SK: Yes I would. I would. Because I think at this point...

3 The matter which needs to be determined by the Tribunal is as follows – did Ms

5 Mr Ekermawi describes himself as an Australian Muslim. He is a Muslim and

7 In his original complaint to the Anti-Discrimination Board, Mr Ekermawi

10 The Tribunal described the subject matter of the proceedings at [20]-[21] as

targeted group is not an untenable proposition” or so lacking in merit that the

13 On 12 July 2018, Mr Ekermawi filed Points of Claim. Mr Ekermawi there refers

‘(a) any form of communication to the public, including speaking, writing,

‘(a) a fair report of a public act referred to in subsection (1), or

‘"race" includes colour, nationality, descent and ethnic, ethno-religious or

(i) Did the Nine Network and Ms Kruger engage in a public

(ii) Are Australian Muslims, or Muslims living in Australia, a

Are Australian Muslims, or Muslims living in Australia, a group that has an

“Section 4 of the Anti-Discrimination Act will be amended so that the existing

34 We note that in Khan v Commissioner, Department of Corrective Services

”some religious groups with sufficient cultural characteristics to amount to part

“No State, institution, group or individual shall make any discrimination

39 In 1965, the United Nations concluded the International Convention on the

“…a group is identifiable in terms of its ethnic origins if it is a segment of the

from the surrounding community. The conditions which appear to me to be

Attorney-General’s remarks is that the broader concepts of ethnic origin

52 Based on evidence that Jewish people see themselves as a distinct

55 Similar remarks were made by the ADT in Khan v Commissioner, Department

43 The questions of the construction of the words "ethno-religious ... origin" in

"7 In response to that argument Mr Ekermawi says that the race,

a group of “ethno-religious origin” without the necessity to show precisely that

64 Second, the broad interpretation of ethnic origin referred to in King-Ansell v

67 Fifth, if a common religion different from that of neighbouring groups or the

Summary of the Evidence

Australian census, it concluded that Australian Muslims come from 183

(i) Lebanon (7% of the Muslim population);

74 As part of the 2011 Australian census, participants were asked to nominate

were tarnished as potential terrorists or sympathisers of terrorism and grouped

84 He states that in this affidavit, when he refers to the practice of Islam by

85 The Applicant describes how Australian Muslims celebrate Ramadan ([34]),

86 He also observes that Australian Muslims engage in the spirit of Christmas as

88 The Applicant goes on to observe that Australian Muslims have a number of

91 The Applicant states that he has travelled extensively to other Muslim

95 The Applicant makes generalised assertions, unsupported by any relevant or

96 In the result, we conclude that the Applicant’s general statements of opinion as

 The common practices or culture of the alleged ‘community of Australian

 the enrolling of their children in Arabic school;

religious origin’. Of importance will be whether or not the evidence establishes

Did Ms Kruger’s statements incite hatred, severe contempt or serious ridicule

community as a source of terrorists. The Applicant contended that connecting a

Relevant legal principles