The decision reflects the Anti-Discrimination Act 1977 (NSW) [ADA], part of the suite of national and state/territory law that seeks to inhibit ethno-religious vilification, for example action under the Racial Discrimination Act 1975 (Cth) [RDA] against antisemitic hatespeech, evident in Toben v Jones [2003] FCAFC 137 and Jones v Scully [2002] FCA 1080. (Restrictions on vilification were found to be consistent with the implied right of political communication under the national constitution.)
David Marr in today's SMH comments that -
Though a good deal less than a day's pay for Alan Jones, the $10,000 he and 2GB were ordered to pay last week for vilifying Lebanese in Australia is the first punishment inflicted on either the talkback king or his station for attacks on Lebanese Muslims that reached their depths in the days before the Cronulla riots in the summer of 2005. ...Marr notes that -
Trad's brawls with 2GB and Jones over nearly five years have seen his own reputation shredded in the NSW Supreme Court and Jones dogged by investigations and hearings, all strenuously defended by 2GB. These aren't over but at this point the scorecard reads: one devastating loss for Trad in the courts and two losses for Jones before tribunals. The legal fees paid by 2GB must now run into millions.
What's different this time is the political silence. When the Australian Communications and Media Authority ruled Jones broadcast material in the days before the Cronulla riots "likely to encourage violence or brutality", the prime minister, John Howard, leapt to the defence: "I don't think he's a person who encourages prejudice in the Australian community, not for one moment, but he is a person who articulates what a lot of people think".
But last week's decision by the NSW tribunal seems to have brought no high-powered supporters out of the woodwork. Perhaps they are busy with Christmas but the silence has been telling. Indeed, the decision has been only briefly reported but it's quite a tale, and the tribunal's 64-page critique of the broadcaster's methods looks destined to become prescribed reading for lawyers, students and anyone wanting to know how talkback radio works to excite its audience.
In the immediate aftermath of the riot, Trad himself came under attack from 2GB's Jason Morrison. Trad had attacked the role of the media at a public meeting and next day on air, Morrison called him "a disgraceful and dangerous individual who incited violence, hatred and racism" and went on to accuse Trad of being "responsible for more misinformation about the Islamic community ... than any other person".Trad had lodged a complaint with the NSW Anti–Discrimination Board in April 2005, alleging that Jones racially vilified him and "the entire Australian Muslim community and the entire Lebanese community" during broadcasts over several days. Jones has attracted criticism over the 'cash for comment' affair (ie money secretly paid to influence editorial opinion) - squibbed by the national regulator - plagiarism and his involvement in politics, highlighted in works such as Jonestown: The Power and The Myth of Alan Jones (Sydney: Allen & Unwin 2007) by Chris Masters and Cash For Comment: The Seduction of Journo Culture (Sydney: Pluto Press Australia 2000) by Rob Johnson.
Trad sued the station. In July this year Justice Peter McClellan of the NSW Supreme Court delivered a withering judgment that analysed in detail Trad's role as a spokesman for the Lebanese community and for Hilali. McClellan declared most of Morrison's criticisms of Trad were substantially true.
The judge accepted Trad was, indeed, a "disgraceful individual" because he "encourages others to support attitudes repugnant to the Australian community or encourages violence against women, homosexuals or various ethnic groups and supports child suicide bombers and acts of terror or when given the opportunity fails to condemn these views ..."
Trad alleged that broadcast conveyed imputations that members of those communities -
are "despicable people", "unsuitable immigrants" and are "not suitable citizens for Australia"; that they "do not and cannot assimilate"; that they "behave in a manner similar to a badly behaved conquering army during war time"; that they are "prone to commit sexual assaults"; that they are "violent"; that they "violently take what they can from Australia"; that they are "obnoxious persons"; that the group is "akin to disgusting insects or small animals, such as rats or rodents"; that members of the group are "not human"; that they are "parasites", "have overrun the country", are destructive and "have invaded Australia"; that they are "unreliable citizens or residents" and are "an internal danger to the security of the country".The Tribunal noted Jones' statement during one of those broadcasts that -
If ever there was a clear example that Lebanese males in their vast numbers not only hate our country but our heritage, this was it. They've got no connection to us. They simply rape, pillage and plunder a nation that's taken them in. No one who's written to me could believe what they saw. Without exception, you asked what did we do as a nation to have this vermin infect us like this. And what about the sacrifices of our war dead, made for this country to make it what it is today, and to have these mongrels laugh at them on national television?Unsurprisingly, the Tribunal characterised that as "reckless hyperbole calculated to agitate and excite his audience", commenting that Jones "stimulates, urges and agitates his listeners and correspondents with his emotive editorials and, unsurprisingly, often receives as feedback highly inflamed and inflammatory comment more or less echoing his provocative commentary". It commented that -
Having listened to the broadcasts and having read the transcripts, the overwhelming impression Mr Jones's broadcasts left was that much of his material was imprudent, incautious, inflammatory and motivated by prejudice against those whom he apparently believed to be a threat to a culture to which he is very much attached. ...The Tribunal concluded that -
His comments about "Lebanese males in their vast numbers" hating Australia and raping, pillaging and plundering the country, about a "national security" crisis, and about the undermining of Australian culture by "vermin" were reckless hyperbole calculated to agitate and excite his audience without providing them with much in the way of solid information.
The respondents in our view have not discharged the onus of establishing that Schedule A broadcast was either reasonable or made in good faith. Accordingly the defence contained in s 20C(2)(c) in not available.
Rather than dispassionately analysing the evidence and commenting on it, Mr Jones appears to have been induced or stimulated by his own preconceptions to place highly exaggerated and distorted interpretations on the few objective facts apparently known to him ...It is difficult to imagine circumstances in which it is reasonable for a commentator in a society ruled by law either directly or indirectly to endorse, or imply endorsement of, violent solutions to social issues or problems.Jones' comments "could only be regarded as an incitement to listeners to hate and hold the Lebanese Muslim community and Lebanese males in serious contempt".
