In an important decision on religion and free speech in NSW, the NSW Civil and Administrative Tribunal has ruled today in Ekermawi v Nine Network Australia Pty Limited [2019] NSWCATAD 29 (15 Feb 2019) that it is not a breach of the law in NSW to make offensive comments about a religion. However, the case involved some difficult issues of law, and while the outcome seems correct, it may foreshadow a restrictive approach to free speech in other cases in the future. The case involved a high profile television personality, Ms Sonia Kruger. On a popular morning television program Ms Kruger said that she agreed with some concerns expressed by another media commentator, Andrew Bolt, about Islam, following a terrorist attack in Nice on Bastille Day, 2016. Ms Kruger said, among other things:

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? 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.

Mr Ekermawi, as a Muslim, was upset by these remarks, and sued both Channel Nine and Ms Kruger for a breach of s 20C of the NSW Anti-Discrimination Act 1977. This provides:

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.

The first question the Tribunal had to answer was whether making statement about Islam, or “Muslims in Australia” in general, was the making of a statement “on the ground of race”. If that were satisfied, then there would have been further questions as to whether what was said incited “hatred towards, serious contempt for, or severe ridicule of” Muslims, and then whether or not any of the exceptions in s 20C(2) applied.

1. Is Islam a “race”?

In discussing this issue, the Tribunal noted that the definition of “race” in the ADA includes the concept of “ethno-religious” origin. This seems to have been introduced to include into the legislation groups where there may be a strong cultural and historic connection, but they might not all be strictly of the same genetic “race”. The most obvious examples are Jewish and Sikh groups. But does this include Muslims, who are a very diverse group united mainly by their commitment to the Qur’an and the doctrines of Islam? The tribunal examined previous decisions on the issue very carefully. They said they did not agree with a prior decision in Khan v Commissioner, Department of Corrective Services[2002] NSWADT 131, which had clearly ruled that Islam in general was not a “race”. They said that they preferred a more recent decision of the Appeal Tribunal in Jones and Harbour Radio Pty Ltd v Trad (No 2) (EOD)[2011] NSWADTAP 62, which took a broader view of the question (see the discussion in Ekermawi at paras [59]-[60]). Nevertheless, even taking this broader approach, the Tribunal ruled that insufficient evidence had been presented by Mr Ekermawi (who had mainly spoken of his own views and life experience) for them to be able to conclude that as a matter of law Muslims were an “ethno-religious group” within the meaning of the Act. On this point they concluded:

[101] [T]here 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. (emphasis added)

Note the emphasised words at the end of para [102], however- the Tribunal virtually invites a future litigant to present detailed evidence which might change the finding here. While the finding that Islam was not a “race” was sufficient to dispose of this litigation (there being no law in NSW preventing “religious vilification” as such), the Tribunal went on to make comments about the other elements of the claim (perhaps on the basis that there might be a successful appeal against the first finding.) I will comment on these briefly.

2. Were the comments “vilification”?

If Islam had been a religion, were Ms Kruger’s comments such as to “incite hatred towards, serious contempt for, or severe ridicule of” Muslims? The Tribunal noted at [124] 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

However, despite the generally calm tone of the comments, the Tribunal concluded that the implications of what was said were that some members of the community were a threat. They noted at [126] 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

and then said at [127] that “such feelings or emotions would be encouraged or incited amongst ordinary members of the Australian population by Ms Kruger’s remarks”. Hence they concluded at [128] that Ms Kruger’s comments “would likely encourage hatred towards, or serious contempt for, Australian Muslims by ordinary members of the Australian population”.

3. Were any exceptions in s 20C(2) applicable?

The second paragraph of s 20C contains “exceptions to the general prohibition contained in s.20C(1)” – para [129]. The one given most consideration was the exception contain in para 20C(2), allowing discussion of matters of “public interest”, but which is qualified by the requirement that the statement be made “reasonably and in good faith”. The Tribunal conceded that the matter was one of public interest, and that Ms Kruger was not shown to have borne particular malice or ill-will to the Muslim community, and hence that her statement was in “good faith”- see [147]. But it found that it was not “reasonable”. They said that her comments that the sheer size of the Muslim population alone created a threat, were not logical. They said at [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.

In other words, because Ms Kruger’s remarks were not, as the Tribunal saw it, correct or soundly reasoned, they were “unreasonable”. Ms Kruger’s words “amounted to a stereotypical attack on all Muslims in Australia”. They made it clear that they would have found against her and Channel Nine were it not for the fact that Islam was not a “race”.

Implications

I have noted in a previous paper that religious free speech in Australia can be under threat from laws forbidding “religious vilification”. Not every Australian jurisdiction forbids comment on religious issues of this sort, though such laws are in place (in differing forms) in Victoria, Queensland and Tasmania, and now (introduced after I wrote the linked paper) in the ACT – see s 67A(1)(f) of the Discrimination Act 1991 (ACT). Most laws forbid the incitement of hatred or serious contempt or ridicule. The Tasmanian law, however, prohibits in s 17 of the Anti-Discrimination Act 1998 (Tas) language which “offends, humiliates, intimidates, insults or ridicules” someone on the basis of religion, which is a very low bar indeed (and, I argue in my paper, probably unconstitutional). In the past there might have been a possibility that a claim could have been brought against Ms Kruger against one of these provisions from outside NSW. But the decision of the High Court of Australia in Burns v Corbett [2018] HCA 15 (noted previously on this blog) means that actions cannot be brought in a tribunal of one State against a person residing in another State. (It is not entirely clear whether this rule would prevent an action being brought in the ACT, which as a Territory is subject to different constitutional principles to the States. There are few decisions under s 67A of the ACT law; one of them, Bottril v Sunol [2017] ACAT 81 (9 October 2017), concludes that such a claim may be brought in the Territory, but the circumstances of that decision, in my view, mean that the ACT Tribunal’s decision may be in doubt. Certainly the matter has not yet been before a superior court.) However, the reasoning of the NSW Tribunal in Ekermawi, on the issues raised by the exceptions to s 20C, is a matter for some concern. Even accepting that a statement that a number of members of the Muslim community are guilty of terrorism is sufficient to incite hatred or serious contempt, it seems to me that the Tribunal’s approach to the word “reasonable” in the exception provision in para 20C(2)(c) is misguided. (And worthy of note, since similar provisions are present in other laws around Australia which do prohibit religious vilification.) The value of free speech is such an important consideration, it seems hard to imagine that in providing this broad exception Parliament intended courts and tribunals to make their own determination as to whether a comment was “correct”, before it could be held to be one made “reasonably and in good faith”. For one thing, the word “reasonably” in that expression is an adverb, applying to the “doing” of the act, not an adjective qualifying the content of what was said. The Tribunal itself cited important earlier authority on the point at [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]). (emphasis added)

Again, the statement that what has been done must have a “rational relationship” to the protected activity, seems to point merely to the need to be able to identify an aim that the speaker was trying to achieve, and that what was said was directed at that aim, rather than being completely random or gratuitously insulting. Where it was conceded that what was underway was a discussion on a topic of broad public interest (terrorism), then a comment that a group of persons in the community were creating a risk was, it seems to me, rationally related to discussion of that topic. I stress that the comment need not have been correct. Indeed, if it is relevant, my own view is that a policy of restricting Muslim immigration to Australia would be a bad one, and should not be implemented. But it seems quite clear that, agree with them or not, Ms Kruger’s remarks were a good faith attempt to discuss that issue in a way that was logically connected with the issue. If her remarks are harmful, then the best way to deal with them is to openly point out where her logic is faulty and why she is wrong, as indeed Ms Kruger’s fellow panel members attempted to do. But for the law to make it impossible for such issues to be discussed in public, will only convince those who share her views that there must be something to hide, and indeed are likely to make more people come to share those views! (Sadly, a similar approach to the issue of “reasonableness” in a related defence in Tasmania was taken in the decision of Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 (4 October 2018) at [93]-[94], which, like Bottrill noted above, was a case of a self-represented litigant where I think more could have been said about the application of the defence.) I don’t think all hateful comments should always be permitted. A gratuitously insulting remark designed to inspire deep hatred or violence should legitimately be restricted by the law. But it seems to me that the legislation here should, and does in fact, allow a comment made in good faith on a matter of wide public interest, where there is a logical connection with that topic, to be expressed and debated, even if it will offend or upset. In such cases the best disinfectant for the disease will be the light of reason showing why the remarks are wrong, if that is the case. The failure of this claim was, in the end, based on the simple fact that NSW law does not limit free speech by virtue of a “vilification” law on the topic of religion. In my view, while it is possible to have a reasonable law on the topic targeting the worst examples of speech directed at believers, on balance the case demonstrates the wisdom of not having such a prohibition in this State. Full and frank discussion of religious issues is a better way to expose problems than a law which may, even unintentionally, have a serious chilling effect on such conversations.