one thing I don’t need
is any more apologies
i got sorry greetin me at my front door
you can keep yrs
i don’t know what to do wit em
they don’t open doors
or bring the sun back
they don’t make me happy
or get a mornin paper
didn’t nobody stop usin my tears to wash cars
cuz a sorry.
Ntozake Shange, for colored girls who have considered suicide/when the rainbow is enuf
The Sydney Morning Herald reports that a court has ordered that controversial Sydney broadcaster Alan Jones must apologise on-air for certain comments made in 2005 in relation to persons of Lebanese Muslim origin:
The Administrative Decisions Tribunal has ordered Jones to apologise on his 2GB radio show between 8am and 8.30am any day next week over the comments he made on-air in April 2005.
It comes two months after Jones lost a lengthy legal bid to overturn the 2009 decision, which found he incited hatred, serious contempt and severe ridicule of Lebanese Muslims.
The case was taken against him by Sydney-based Lebanese-born Muslim leader, Keysar Trad.
In its latest decision handed down on Wednesday, the tribunal rejected a submission that an apology made by Jones on December 6 was “an adequate acknowledgment of wrongdoing”.
Instead it ordered him to read out the following apology any day next week from December 17:
“On 28 April 2005 on my breakfast program on Radio 2GB, I broadcast comments about Lebanese males including Lebanese Muslims.
“The comments were made following a Channel Nine television current affairs show about the conduct of young Lebanese men in Hickson Road at the Rocks.
“The Administrative Decisions Tribunal has found that my comments incited serious contempt of Lebanese males including Lebanese Muslims.
“Those comments were in breach of the NSW Anti-Discrimination Act.
“I apologise for making those comments which I recognise were unlawful.
“I also apologise on behalf of Radio 2GB.”
The original complaint related to comments he made on April 28 about a Nine Network current affairs story reportedly showing young men of Lebanese origin taunting police.
“If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it,” Jones said.
Referring to the men as “vermin” and “mongrels”, he added: “They simply rape, pillage and plunder a nation that’s taken them in.
Jones is no stranger to the need to apologise: he recently had to apologise for comments in relation to Julia Gillard’s deceased father.
As it happens, one of the topics we considered in Remedies this semester was the notion of an apology as a legal remedy. When a court issues an ‘apology order’, a defendant can be forced to issue an apology to the plaintiff. Professor Robyn Carroll has noted:
One perspective is that the law has not role to pay because the apology is a moral act that will have no worth or value if it is offered as a legal requirement or for legal purposes. Another perspective, more instrumental in nature, is that the law has a role to play in creating opportunities for apologies to be offered that achieve some social or psychological benefit.
Readers may remember the Eatock v Bolt case, where newspaper columnist Andrew Bolt was found to have contravened s 18C of the Racial Discrimination Act 1975 (Cth) (I’ve written about it here and here). The plaintiffs sought an apology order, but Bromberg J refused to make such an order, saying at –:
There is force in the contention of HWT that an apology should not be compelled by an order of the Court because that compels a person to articulate a sentiment that is not genuinely held. An apology is one means of achieving the public vindication of those that have been injured by a contravention of s 18C. The power granted to the Court to require a respondent to redress any loss or damage is a wide power. There are other means by which public vindication may be achieved.
Public vindication is important. It will go some way to redressing the hurt felt by those injured. It will serve to restore the esteem and social standing which has been lost as a consequence of the contravention. It will serve to inform those influenced by the contravening conduct of the wrongdoing involved. It may help to negate the dissemination of racial prejudice.
Whilst I will not order HWT to apologise, in the absence of an appropriate apology, I am minded to make an order which fulfils the purposes which I have identified.
My preliminary view is that a corrective order should be made which would require HWT to publish a notice in the Herald Sun in print and online. The terms of the notice would include an introduction which referred to this proceeding and the order requiring its publication and set out the declaration made by the Court. In order to give the publication of the corrective notice a prominence and frequency commensurate with the publication of the Newspaper Articles and to facilitate it being communicated to those likely to have read the Newspaper Articles, I have in mind that the corrective order would require the publication of the notice in the Herald Sun newspaper and online, on two separate occasions in a prominent place immediately adjacent to Mr Bolt’s regular column.
It was interesting when we debated this case in class. Precisely the divide Carroll describes emerged in class discussion. Some thought it was beneficial to force people to apologise because it vindicated the rights of the wronged party; others thought a forced apology was no apology at all, and that it was unduly coercive to force people to apologise. On balance, I tend to the latter view, but then one clever student said to me, “I bet you force your kids to say sorry when they don’t mean it, don’t you?” I had to uncomfortably concede that I do, and moreover, I conceded that I’d forced my son to apologise to my daughter that very morning (argh! sprung!). However, I decided that was different because that was in the context of a close familial relationship, they are kids and I am their mother, and it’s quite different when the State forces an adult to say sorry by the coercive machinery of the law. That being said, I’m all for the law allowing more space for defendants to apologise if they want to, which has not traditionally been seen as a function of law, but which may be more common. For example, s 47J of the Wrongs Act 1958 (Vic) now provides that an apology is not evidence of tortious behaviour, meaning that a tortfeasor is far more likely to apologise for any injury to the plaintiff.
Already a spirited discussion has taken place on my Facebook page about the Jones case. (I do hope the participants will come here and continue the discussion!) Unlike my class, I think we were mostly agreed that an order to apologise is inappropriate and fruitless. To me, it’s important that Jones will not genuinely believe a word of his apology. Nor is it likely to increase his or his listeners’ tolerance for young Lebanese men. Rather it is likely to increase their perception that the politically correct are attempting to police their views and suppress their freedom to discuss things which concern them, and to respond to that with anger. Moreover, we were also broadly agreed that the law should be very wary of coercing someone to say something they do not want to say. The response to this by those who favour an order to apologise might be that the apology is vindicatory for young Lebanese men, and that it will make them feel less aggrieved when they see Jones being forced to apologise. Maybe it will, but I suspect it will also fan the grievances of his supporters.
The main argument we were having on Facebook was whether Jones was at least partly responsible for fanning the flames of the Cronulla Riots with his comments later in 2005. My own opinion (as I have documented in this post here) is that Jones sailed pretty close to the wind of incitement – he read out texts and messages which suggested violence was an appropriate course towards Lebanese men in the days before the Cronulla Riots broke out. Incitement of violence is one area where I personally think the law can legitimately step in and regulate speech to prevent physical harm to others. At one point, Jones read out a text message suggesting that people who wanted to bash ‘Lebs’ and ‘Wogs’ should meet on a particular date and place, but then qualified this by saying, ‘[b]oys, don’t get down there and come at this nonsense, this will only make things worse. The police are genuinely concerned now that the SMS is going to inflame things even further and we’ll – we’re talking about vigilante retribution.’ But when a later caller tried to insert some balance into the discussion by saying that both Lebanese Muslim and Anglo-Saxon rabble rousers were equally responsible for egging each other on, the caller was told ‘[y]eah, let’s not get too carried away…we don’t have Anglo-Saxon kids out there raping women in Western Sydney. So let’s not get carried away with all this mealy-mouthed talk about there being two sides.’
What then about the ‘vermin’ and ‘mongrels’ comment for which Jones is presently being forced to apologise? It must be said that these comments have some pretty unpleasant historical echoes to my ears, and could perhaps be thought to border on incitement in the light of those echoes. Calling people vermin is a short way of saying that they are dirty and dangerous and (as befits vermin) they need to be exterminated. Hitler described the Jews as “pests”, “dangerous viruses” and “vermin” in the lead up to the Holocaust, and Hutu leaders described the Tutsi as inyenzi (cockroaches) in the lead up to the Rwandan genocide. It’s pretty hardcore stuff, even if Jones didn’t mean it to be.
That being said, I’m sure that people have less sympathy for the case in relation to the ‘vermin’ and ‘mongrels’ comment because it has been brought by Keysar Trad, a Lebanese Australian man and former advisor to Sheikh Hilally. Trad is perhaps Jones’s Lebanese Australian counterpart in terms of inflaming tension and making offensive comments. In a defamation proceeding Trad brought against 2GB a few years back (described in a post here), the trial judge decided that the defamatory imputations made by 2GB about Trad could be defended on the basis that they were truthful because:
- Trad had expressed opinions in which he had condoned the view that female victims of sexual assault and rape were to blame rather than the male perpetrators;
- Trad had defended the views of Sheikh Hillaly that child martyrdom in war was honourable and that suicide bombing was a legitimate tool;
- Trad had included links to Mein Kampf and the Protocols of Zion in his website, encouraging beliefs that Jewish people intend to take over the world, which have been a driving force for acts of violence against Jewish people;
- Trad had publically called for Hezbollah to be delisted as a terrorist organisation;
- Trad had said that homosexuals were depraved perverts who should be likened to cancer, and that the appropriate punishment for those who undertook homosexual activities was to be stoned to death;
- Trad described Anglo-Irish inhabitants of Australia as “criminal dregs” and Hindus as “cow worshippers”, generally denigrating these groups of people; and
- Trad sought to defend Sheikh Hillaly’s failure to condemn the September 11 attacks, and questioned whether Muslims were responsible for those attacks.
(The case went all the way up to the High Court: see Harbour Radio Pty Ltd v Trad  HCA 44 where Trad lost, and has now been remitted back to the New South Wales Court of Appeal for decision).
As you can see, Trad is as instrumental in inflaming tensions in the Sydney community as Jones is. I’m sure that this doesn’t help matters with this kind of a case – dare I say that Trad is a pot calling the kettle black – but that still doesn’t mean Jones’s comments are okay.
Jones’s comments have very unpleasant connotations if you follow the historical echoes. Nonetheless, I stand by my conclusion that making Jones apologise is not going to ease tensions between Lebanese Australians and Anglo-Celtic Australians, and that it is problematic to coerce people to apologise in principle and from a pragmatic point of view. I understand that the law has an important vindicatory function, but I think that a court simply saying that Jones’s comments were inappropriate is enough to vindicate the rights of those wronged by Jones’s statement. I’d rather leave more room in the law for people to apologise if they choose to do so, because to my mind, a genuine apology must be a matter of choice.
 Robyn Carroll, ‘Beyond Compensation: Apology as a Private Law Remedy’ in Jeff Berryman and Rick Bigwood (eds), The Law of Remedies: New Directions in the Common Law (Irwin Law Inc, Toronto, 2010) 323, 329.