Investigation Report No. 2503
File No. / ACMA2010/2111Licensee / Harbour Radio Pty Limited
Station / 2GB Sydney
Type of Service / Commercial radio
Name of Program / Alan Jones Show
Date of Broadcast / 29 October 2009
Relevant Code / Commercial Radio Australia Codes of Practice 2004:
Clause 1.3(e)
Date Finalised / 14 December 2010
Decision / No breach of clause 1.3(e) (hatred or vilification)
The complaint
The complaint is about a discussion broadcast on 2GB on 29 October 2009 between the presenter of the program Alan Jones Show and a politician who will be referred to in this report as A:
[The presenter] and [A] said that Moslems do not disperse same as the rest of the communities where they remain in an ethnic enclave.
The writer believes that the comments made by [the presenter] are racist, incitement of hatred and denigrating to Moslem Australians.
The ACMA has investigated the broadcast against clause 1.3(e) of the Commercial Radio Australia Codes of Practice 2004 (the 2004 code).
Delay in lodging complaint
The complaint to the licensee was made on 24 August 2010, i.e., some ten months after the broadcast.
Section 148 of the Broadcasting Services Act 1992 permits a complaint to be made to the ACMA if, along with other things, the complaint to the licensee ‘was made in accordance with’ the relevant code of practice (paragraph 148(b)). Clause 5.2 of the 2004 code prescribes requirements for the making of a complaint for the purposes of that code. The complainant’s letter of complaint dated 24 August 2010 complied with each of those requirements. Hence, paragraph148(b) of the Broadcasting Services Act was satisfied.
There is no provision in the 2004 code which states that a complaint must be made within a certain period of time after the broadcast of the program complained about, in order to be a complaint made in accordance with that code. Rather, clause 5.8 merely provides that a licensee is not obliged to comply with Code of Practice 5 (which imposes requirements on licensees about the handling of complaints) in respect of a complaint made more than 30 days after the broadcast of the material on which the complaint is based.
Clause 5.8 does not prevent a licensee from responding to a complaint made outside the 30-day period, it merely relieves the licensee of the obligation to respond. The fact that a licensee chooses not to respond to such a complaint does not affect the ACMA’s powers and duties under the Broadcasting Services Act.
Under section 149 of the Broadcasting Services Act, the ACMA ‘must’ investigate the complaint, which the complainant was entitled to make to the ACMA in accordance with section148 of the Broadcasting Services Act, but need not do so if it is satisfied that the complaint is frivolous or vexatious or was not made in good faith.
In the context of section 149 of the Broadcasting Services Act, the term ‘frivolous’ refers to a complaint that is not worthy of serious attention, either because it is made for purposes of amusement or levity (and is not meant to be taken seriously), or, if made with serious intent, because the complaint deals with mere trifles, that is, it raises matters of little or no weight, worth or importance.
The term ‘vexatious’ refers to complaints made without sufficient grounds, for the purpose of causing trouble or annoyance to the subject of the complaint. In the context of section 149 of the Broadcasting Services Act, the term focuses attention on whether a complaint (albeit one about matters of substance) lacks any merit.
The term ‘good faith’ requires consideration of a person’s reason for acting, including whether the person acted honestly and for a proper purpose.
The complainant has advised that the delay in complaining to the licensee was because he has only recently become aware that religion is ‘covered’ under the co-regulatory regime administered by the ACMA.[1] This is considered plausible and in consequence the complaint is not considered to be frivolous, vexatious or made otherwise than in good faith. The investigation, accordingly, has proceeded.
Assessment
The investigation is based on a copy of the broadcast obtained from the company Media Monitors and the complainant’s submissions. Other sources are cited where relevant.
The broadcast
The Alan Jones Show is a breakfast program broadcast on weekdays from 5:30 am to 9:00am. The program regularly includes commentary by the presenter, discussions and interviews relating to current events. On 29 October 2009, the program included a 14-minute discussion with A, who is a former minister for immigration and had also recently made a presentation at a conference on population policy. The discussion began at 7:16 am and ended at 7:30 am.
The broadcast included the following passage, beginning some nine minutes 49 seconds into the discussion:
PRESENTER: You make this point – and I’m going to ask you a difficult question in a moment [slight laugh] – but you’re saying that any migration program should be in the national interest. You further say that basically all of these issues – in all of these issues, we should be taking the public with us. Right. Should we therefore be worried about the growth of the Muslim population just as people are concerned in Europe? You’re not allowed to talk about this.
A: Well, firstly I think you should be able to talk about it, Alan. It’s ridiculous if you can’t talk about any subject. And in fact what happens is that when a subject becomes politically incorrect to talk about then it ends up with a backlash. I think part of the Hanson movement back in the early 1990s was because some subjects were simply said to be off the table, they couldn’t be discussed.
PRESENTER: Right.
A: A lot of Australians wanted to discuss them. Now, whether they were right or wrong is not the point; in a democracy surely we have to be able to have a discussion.
PRESENTER: And if you go into Western Sydney, should we be worried about the population mix in these parts of Australia?
A: One of the great things about Australia traditionally is that once people have come here, yes they tended to settle in a certain area, but over a period of years, that’s the generation, then they dispersed into the rest of the community.
PRESENTER: That’s right.
A: And that has been the pattern of Australian –
PRESENTER: But those were – those were migrants based on nationality, not on religion.
A: They were. And you know my electorate in Melbourne is a classic example of that. I’ve got people from all over the world living in my electorate.
PRESENTER: But they were Italians, and they were Greeks, and they were Lebanese. And those nationalities absorbed into the Australian culture. And now we’ve got this contest.
A: Yes. And it’s happening with Asians. I’ve got a lot –
PRESENTER: It is Asians, quite.
A: I’ve got a lot of Asians as well.
PRESENTER: But this is now a religious contest. What you believe – eh?
A: Leaving aside the question of it being a particular religion, I think that to have a concentration of – ahh – one ethnic, or one particular, group that remains in an enclave for a long period of time is not good and it’s not been the way –
PRESENTER: Not at all!
A: -- in which we’ve had population growth and immigration in Australia.
PRESENTER: And this is what you’ve said. You said: ‘For a migration program to succeed, it needs to retain broad community support.’
A summary and partial transcript of the entire discussion is at Appendix 1.
Relevant code clause
Commercial Radio Australia Codes of Practice 2004[2]
Proscribed Matter
1.3 A licensee must not broadcast a program which:
(e) is likely to incite or perpetuate hatred against or vilify any person or group on the basis of age, ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability.
Interpretation of clause 1.3(e) of the Code
The ACMA adopts the general approach set out below, when assessing whether a broadcast breached clause 1.3(e) of the 2004 code.
Ordinary reasonable listener test
The ACMA considers what an ‘ordinary, reasonable listener’ would have understood the program concerned to have conveyed. Australian Courts have considered an ‘ordinary, reasonable listener’ to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[3]
‘Likely’
The word ‘likely’ has been interpreted to mean something that is a real and not a remote possibility, or something which is probable.[4] There need only be a real possibility of a program inciting or perpetuating hatred against, or vilifying, a person or group for a breach of clause 1.3(e) to have occurred.
‘Incite or perpetuate’
Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group. There is no need to establish that there was a specific intention to vilify or to prove that anyone was actually incited.[5] However, the use of words that merely convey hatred towards a person is not incitement; there must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[6]
‘Hatred’ and ‘vilify’
The 2004 code did not include definitions of the terms ‘hatred’ and ‘vilify’. When a statute or code uses a term which is not defined it is usually appropriate to apply whichever of the ordinary English language meanings of the word is most appropriate to the context in which the term is used in the statute or code. Accordingly the ACMA gives these terms their ordinary English language meanings.
The Macquarie Dictionary (5th edition) includes the following relevant definitions:
hatred the feeling of someone who hates; intense dislike; detestation.
vilify to speak evil of; defame; traduce.
In Investigation Reports 1788 and 1485, the ACMA noted that while the terms ‘hatred’ and ‘vilify’ overlap, there is more intensity in ‘hatred’.[7] The ACMA considers that clause 1.3(e) of the 2004 code presented alternatives: a program had to be not ‘likely to incite or perpetuate hatred against, or [likely] to vilify, any person or group...’ Consequently, it is sufficient for a licensee to have breached the code where its broadcast was likely to vilify a person or group on one of the specified grounds included in clause1.3(e). It is not necessary for both elements to have been present for a breach to have occurred.
‘On the basis of’
Under clause 1.3(e) of the 2004 code, the incitement to or perpetuation of hatred against, or the vilification, had to occur on at least one of the bases specified in clause 1.3(e), which include the race of a person or group and/or the religion of a person or group.
This means that there had to be a causal connection between the race and/or the religion of the person or group and the feelings of hatred or vilification which were likely to be incited by the broadcast of the program.[8]
Finding
The licensee did not breach clause 1.3(e) of the 2004 code.
Reasons
Clause 1.3(e) of the 2004 code referred to an effect on ‘any person or group’. From the complaint, it is taken that the complaint is about an effect on a group, namely Australian Muslims, [9] rather than a person.
Clause 1.3(e) also referred to a number of bases, including ethnicity, race and religion. The complainant used the term ‘racist’, however he also referred to ‘Moslems’, ie a group whose shared characteristic is religion, not race or ethnicity. It is therefore taken that the relevant clause 1.3(e) basis in the complaint is religion. This is confirmed by the complainant’s subsequent communication with the ACMA of 14 October 2010, referred to above.
Clause 1.3(e) also referred to a ‘program’. Clause 1.2 defined ‘programs’ as ‘all matter broadcast’. The relevant ‘program’ is taken to be the discussion between the presenter and A which was broadcast between 7:16 am and 7:30 am on 29 October 2009.
Accordingly, the issue for examination is whether the discussion between the presenter and A broadcast on 29October 2009 was likely to have incited or perpetuated hatred against, or vilified, Australian Muslims on the basis of their religion.
Material in the broadcast was indeed likely to have incited or perpetuated in listeners a degree of negative emotionality towards Australian Muslims. In this respect, it is noted that the presenter raised the topic of the growth of the Muslim population, using the terms ‘concerned’ and ‘worried’ in conjunction with the topic:
PRESENTER: Should we therefore be worried about the growth of the Muslim population just as people are concerned in Europe?
PRESENTER: If you go into Western Sydney, should we be worried about the population mix in these parts of Australia?
[Emphases added by the ACMA]
Further, the presenter suggested that Muslims enjoyed freedom from criticism:
PRESENTER: You’re not allowed to talk about this.
He also referred to a ‘religious contest’, implying an antagonistic relationship between Muslims and non-Muslims.
In addition, the presenter appeared to become somewhat agitated during the discussion of this topic, in contrast to his demeanour in discussing other topics during the rest of the 14-minute segment.