Hussein v Nationwide News Pty Ltd

Principles to grant leave - "whether fair and just"

1. The principles which apply in considering whether to grant leave to proceed were considered by the Supreme Court in the matter of Ekermawi v Administrative Decisions Tribunal of New South Wales 2009 NSWSC 143 at 28-38. The Court identified the principles to be applied when considering whether to grant leave. Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.
2. The applicant is seeking leave to proceed so the Tribunal must determine whether it is fair and just in all the circumstances for the complaint to proceed.

The conduct

1. As noted above, the applicant is a Hazara Afghan who brought proceedings against Centrelink under the Commonwealth RDA which were heard in the Federal Circuit Court by Judge Manousaridis. The judgment was handed down on 29 May 2015. The applicant was then interviewed for an article which was published in a newspaper and online version of the Daily Telegraph, published on 5 June 2015. The published article was headlined, "Afghan migrant takes racial abuse action against Centrelink". The online article also included a series of comments left by readers of the article.
2. The content of the article was about the applicant's complaint under the RDA which arose from events which occurred at the Auburn Centrelink office. The applicant was asked to leave the Centrelink office and was banned from returning for a period. He alleged he was racially abused and that he was asked to leave on the grounds of his race. Centrelink defended the actions of staff, with staff giving evidence that the applicant had been aggressive and that he had made sexist comments against the female manager.
3. The article referred to the subject matter of the allegations before the Court. Included in the article was the headline "Afghan migrant takes racial abuse action against Centrelink". Also included was a statement, "A Hazara migrant allegedly abused a female staff member at a Centrelink office and refused to believe she could be a manager because she was not a man." It was reported that the Court was told the applicant said words to the effect of, "There is this Aussie bitch and she thinks she is a manager…". It was also reported that he denied he made comments about the manager's sex, or that he called her an "Aussie bitch". It was reported that he claimed he was told to "piss off" and "I do not want to see your ugly Asian face and get the f…out of here".
4. It was reported that the Judge found staff at the Centrelink office had not breached the RDA during the incident. It was specifically noted in the article that the Judge had commented that the applicant did have every right to feel humiliated after he was invited in error by SMS to attend the Centrelink office and then asked to leave. Included in the article was reference to the fact that in 1999 the applicant had spent six months in an immigration facility in Port Hedland in Western Australia and was among the first asylum seekers to be granted a temporary protection visa. It also notes his comments that there were issues with his Centrelink payment and that he had to keep going to another Centrelink office who were not helping him and he found it extremely frustrating.

Applicant's Submissions

1. The applicant submitted that while the respondent is entitled to report, the reporting in this instance did not amount to a "fair and accurate" reporting of the proceedings. He claims it is not fair, nor accurate and the reporting was "racially motivated" and not done in the public interest. He also claimed that his complaints against Centrelink were not recorded. He claimed that it was "all lies" that allegations against him were proven in the Federal Circuit Court. He contended that the failure to report his complaint, amounted to racial hatred and vilification.
2. He submitted that the report was neither public discussion, nor in the public interest. The reporting was solely to racially vilify him and was a misrepresentation of the judgment of the Federal Court. He submitted that the events as described in the report did not occur and the Federal Circuit Court did not find those claims proven.
3. The applicant submitted that he should not have been described in the article as an "Afghan Hazari". He submitted that he is an Australian citizen and that citizens of British, Irish and Spanish backgrounds for example, would not be described in this manner. He also submitted that the respondent failed to analyse the accuracy of the report.
4. The applicant claimed that as a consequence of the reporting, he had been spat upon in public. He had also been abused as a racist and sexist who did not deserve to live in this country. He said that comments made in the report of 5 June had been deleted by the second report, however "the damage" was already done.

Respondent's submissions

1. The respondent submitted that the applicant complains that the reporting was an unfair representation of him and also the judgment of the Court. It was submitted that the applicant has not provided evidence to support a claim of racial vilification, the reference to the fact that he was an Afghan migrant is insufficient for the test in s20C of the ADA to be met.
2. It was submitted that in order for s 20C(1) to be enlivened the relevant public act must have been committed "on the ground of the race of the person". In this instance the matter complained of was a court report which was published due to the respondent's role in ensuring justice is administered in the open relying upon the decision of of John Fairfax Publications Pty Ltd v District Court of NSW & Ors [2004] NSWCA 324 at [17] to [22]. It was submitted that the sole reason that race played a role in the report, was due to the fact that the applicant put it in issue by bringing proceedings under the Commonwealth RDA.
3. The respondent further submitted that even if it can be established that the reporting fell within the definition of racial vilification, the conduct is exempted under the provisions of s20C(2) (c). This was because the report was done reasonably and in good faith for purposes in the public interest of discussion. It was submitted that there was no evidence before the Tribunal that there was any lack of good faith. The article is clearly a news report upon legal proceedings.
4. In summary it was submitted that the report was a public act, done reasonably and in good faith for the purposes of public interest including discussion or debate about an act. It was submitted that the public interest was twofold: reporting proceedings which occurred in an Australian Court and reporting allegations concerning the conduct of employees of a Commonwealth government organisation in the course of their employment.
5. In respect of the online comments by readers, after the complaint had been received the respondent took down the comments without admission of liability. The community debate was removed after receiving notification of the complaint to the ADB.
6. It was also submitted that it was a fair report of the public act of the applicant bringing his complaint against Centrelink in the Federal Circuit Court.

Legislative Provisions

1. The relevant legislative provisions are set out below. 20C Racial vilification unlawful (1) 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. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
2. S 20B defines a "public act" as follows: 20B Definition of "public act" In this Division, "public act" includes: (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.

The Merits of the Complaint

1. In order to substantiate a complaint of racial vilification the applicant would need to establish the respondent breached the provisions of s 20C of the ADA.

Public Act

1. The applicant must establish that the respondent, "by a public act, incited 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". It was not in dispute that the impugned conduct, being the reported article in the paper and online versions of the Daily Telegraph was a "public act".

Did the public act incite hatred towards, serious contempt for, or severe ridicule of a person or group of people

1. In Sunol v Collier & Anor (No 2) 2012 NSWCA 44 Bathurst CJ (at [41]) (with Allsop P and Basten JA agreeing found that the word "incite" had it's ordinary natural meaning, being to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.
2. The relevant public act must be one which could encourage others to harbour such emotions Burns v Dye [2002] NSWADT 32 at 20 and Burns v Laws (no 2) [2007] NSWADT 47 at 113. It is not sufficient for the response to be disapproval. The public act must incite the requisite range of emotions as defined in s20C of the ADA. It is not necessary to prove that a person has, in fact, been incited by the public act: Veloskey v Karagiannakis [2002] NSWADTAP 18 at 25 Sunol V Collier (N02) [2012] NSWCA 44 at 29 Bathurst CJ.
3. Consideration must be given to the identification of the relevant audience to which the act was directed. In that regard, reference must be had to an ordinary member of the class to whom the public act is directed, Bathurst CJ found in Sunol v Collier (No 2). It is not necessary to prove any intention to incite any of the requisite emotions in the audience: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at 10; Burns v Dye 32 at 21. The focus is on what the respondents did and whether that act constitutes incitement.
4. A public act is unlawful, if the ordinary member of the community to which the public act is addressed, is incited to feel hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race.
5. The impugned act here was an article published in the Daily Telegraph newspaper and the online version. In order for the act to be capable of inciting the requisite emotion, the public act must reach the mind of the audience. While the target audience was not identified, the applicant has provided a copy of the initial online article with responses from readers before the comments were taken down. It is therefore arguable that the report did reach the mind of the target audience.
6. It is the applicant's contention that he was called a sexist and a racist and spat upon because of comments he was alleged to have made to the female Centrelink manager. The comments included allegedly stating, "There is this Aussie bitch and she thinks she is a manager" and "Get the man manager" as the security guard asked him to leave the office. It may be possible for the applicant to establish that the reference to the allegations made against him in the article could encourage or spur on others to harbor the requisite emotions towards him, because of the sexist and denigrating tone of the comments towards women generally.

Ground of race

1. The relevant reasons for inciting the emotions must have been "on the ground of race" which has been construed to have the same meaning as s50 of the ADA, that is a "reason which, either alone or in combination with other reasons, was the true basis for the treatment". Nicholls & Nicholls v Director-General Department of Education and Training (No2) [2009] NSWADTAP 20; Jones v Trad NSWCA [2013] NSWCA 389 (20 November 2013). He must therefore establish that the ground or reason an ordinary member of the target audience would be incited to the requisite range of emotions, either alone or in combination with other reasons was his race.
2. The article the subject of these proceedings is a report of a judgement of the Federal Circuit Court in respect of a claim of racial discrimination under the Commonwealth RDA. The catchwords to that judgement included the words, "whether applicant was required to leave Centrelink premises because of his race or ethnic origin" and also "whether alternative service arrangements were implemented because of applicant's race or ethnic origin". The Tribunal accepts therefore that the reference to the applicant as a Hazara Afghan clearly relates to the subject matter of the article and that it would not be possible to report on this without reference to his race.
3. The article describes that it was a "Hazara Migrant" and an "Afghan migrant" who had allegedly called the female manager an, "Aussie bitch". It also refers to the allegations before the Court that he, "refused to believe she could be a manager because she was not a man."
4. The causal link relates to the impact upon the target audience. The target audience has not been identified. The ordinary member of the target audience must be incited towards the requisite emotions because of the applicant's race. The intention of the respondent is not relevant. It must be a reason either alone or in combination with other reasons. It may be possible that the applicant could establish that the public act incited the requisite range of emotions on the ground of his race, because of the allegations he made comments which were sexist and insulting.

Public Act a Fair Report or Done Reasonably and in good faith

1. S 20C (2) provides exceptions to the prohibited unlawful conduct contained in s 20C (1). S20C 2(a) contains the exception of, a "fair report" of a public act referred to in subs (1). Additionally s20C 2(c) contains the exception of 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".
2. The respondent claimed that the public act fell within the scope of the "fair report" exception and both the applicant and the respondent made submissions in relation to the "fair report" exception. The public act the subject of this complaint is the published article. The applicant does not claim that the public act is the judgement of the Federal Court. So the exception being the "fair report" of a public act exception would not apply. To construe this otherwise would mean that it was a fair report of the published article itself.
3. The respondent also claims that the public act, falls within the scope of s20C 2(c). So if relying upon this exception, then the respondent would need to establish that the public act was, "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".
4. The respondent does rely upon this exception, claiming that the article was in the nature of a "court report" . It was submitted that this was done for the purpose of public interest and discussion. The respondent claims it was in the public interest for two reasons. The first is that the discussion of the administration of the Commonwealth organization Centrelink and the actions of staff is in the public interest. The second is that the administration of justice by the Federal Court is also in the public interest.
5. To fall within this exception the respondent would need to establish that the public act was, "done reasonably and in good faith" for the protected purpose. In Sunol v Collier Bathurst CJ found that for an impugned public act to be "reasonable" within the meaning of the equivalent provision to s20C(2) it must bear a rational relationship to the protected activity. It must not be disproportionate to what is necessary to carry it out. For the act in question to be done in good faith, it must be bona fide and for the protected purpose. Jones v Trad (at [110]).
6. The public act is the reporting of the judgement of the Federal Circuit Court in relation to the RDA complaint. It therefore bears a rational relationship to the protected activity of public discussion or debate. It must not be disproportionate to what is necessary to carry it out. The applicant submits that the article was a misrepresentation of the judgement. He claims that the article was not fair because it only reported that his claim against Centrelink failed did not provide details of his complaints in full. It also did not refer to the fact that the specific allegations he said, "there is this Aussie bitch who thinks she is a manager" was not accepted by the Judge. It failed to report that the statements he was alleged to have made were not proven.
7. The published article refers to evidence before the Court and also to findings contained in the judgement. It is not possible to report on this matter without reference to the applicant's race. The issues of the applicant's race and why he had been treated as he was by Centrelink were specifically in issue before the Federal Circuit Court because he had made a claim of race discrimination. Centrelink staff claimed the treatment was because of his conduct while in the Centrelink office. The article refers to the applicant's own personal circumstances about which he told the journalists who interviewed him. It also correctly reports that the applicant denied the allegations which were made against him. The article correctly reports that his complaint was dismissed. It also notes his comments that there were issues with his Centrelink payment and that he had to keep going to another Centrelink office who were not helping him and he found it extremely frustrating.
8. The Tribunal does not accept that the reporting was disproportionate to the task of reporting on the judgement of the Federal Circuit Court. It was the applicant's complaint under the RDA which was before the Court and it was that complaint which was dismissed. It specifically noted in the article the Judge had acknowledged that the applicant would have felt humiliated when asked to leave after being invited in error to attend the Centrelink office.
9. In relation to the judgement itself Judge Manousaridis stated that he found that the staff did not actually lie in giving their evidence. Rather he found that they were mistaken in their perception or recall of the incident. He noted that this could have possibly been because of the great tension during the incident and the stress it caused.
10. The applicant is deeply aggrieved by the published content of the article. Most particularly because it contained references to allegations made by Centrelink staff against himself, which were found by the Judge of the Federal Circuit Court not to have been proven. The article is brief and does not comprehensively analyse the judgement. It could have been far more comprehensive, but it was not. There is however no evidence that the article was not a bona fide act of reporting on the judgement of the Federal Circuit Court and the actions of Centrelink staff.

Conclusion

1. The Tribunal must adopt a 'cautious approach', especially in circumstances where the evidence has not been tested. The applicant bears the onus of establishing that leave should be granted. The Tribunal must consider whether all or part of the complaint is lacking in substance so that it would not be fair or just for it to proceed.
2. In the circumstances here, the Tribunal is not satisfied that it is fair and just for the complaint to proceed. This is because if this matter were to proceed to hearing, the Tribunal would likely find that the impugned public act falls within the class of matters which are pursuant to s20C 2(c) an exception to the unlawful conduct as defined in s20C. Leave for the applicant's complaint of racial vilification to proceed is therefore refused. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2016