Investigation Report No. 2874

File No. / ACMA2012/1220
Licensee / Prime Radio (Cairns-AM) Pty Limited
Station / 4EL (4CA) Cairns
Type of Service / Commercial radio
Name of Program / John McKenzie’s Morning Show
Date of Broadcast / 12 June 2012
Relevant Code / Commercial Radio Australia Codes of Practice 2011
Clauses 1.1(e), 1.3(a) and 5.5
Date Finalised / 26 November 2012
Decision / No breach of clause 1.1(e) (hatred, contempt or ridicule)
No breach of clause 1.3(a) (standards of decency)
No breach of clause 5.5 (response to complaint)

The complaint

The complaint centres on the use of the term ‘niggers’ in a broadcast on 4EL (4CA) on 12June 2012. The complainant also alleged that the licensee did not respond to his complaint about the matter.

The complaint has been examined against clauses 1.1(e), 1.3(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

The program

John McKenzie’s Morning Show is a talkback program.

On 12 June 2012, a caller, who will be referred to in this report as Mr M, went on air to comment on material published in a local newspaper about two members of the Queensland State parliament, who had been elected a few months earlier. Mr M said he had been ‘upset’ by the material, which, he stated, had ‘st[u]ck a knife’ into the two MPs’ backs because they had not secured funding for a Cairns CBD upgrade project. In the course of his comments, MrM said the following about the two MPs:

MR M

They’re doing a bloody good job. They’re doing the impossible, to be honest with you. And, you know, I was out in [name of one of the MPs]’s office the other day, and they’re working like niggers. They’re really, really sinking their teeth into things. But you can only do what’s left in the budget that was brought down by Anna Bligh, and there’s none left.

The entire exchange between Mr M and the presenter was eight minutes 20seconds long. The passage above was broadcast at about two minutes 52seconds after the beginning of the exchange.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

In assessing content against the code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable listener/viewer’.

Australian courts have considered an ‘ordinary, reasonable reader (or listener to viewer)’ to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person 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.[1]

The ACMA asks, what would the ‘ordinary, reasonable listener/viewer’ have understood this program to have conveyed? It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the code.

Issue 1: Contempt because of race

Relevant code clause

Proscribed Matter

1.1A licensee must not broadcast a program which in all of the circumstances:

(e)is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of ... race ...

Interpretation of clause 1.1(e) of the codes

The ACMA adopts the general approach set out below when assessing whether a broadcast breaches clause 1.1(e) of the codes.

‘Likely, in all of the circumstances’

Use of the words, ‘likely in all of the circumstances’ imposes an objective test[2] and implies a real and not remote possibility; something which is probable.[3]

‘Incite’

When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.

The Macquarie Dictionary (5th Edition) defines ‘incite’ as follows:

incite verbto urge on; stimulate or prompt to action.

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 or to establish that there was a specific intention to incite hatred, serious contempt, severe ridicule, or to prove that anyone was actually incited.[4]However, the material must include something more than the use of words that merely convey hatred, serious contempt or severe ridicule towards a person:

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[5]

Hatred, serious contempt, severe ridicule

Clause 1.1(e) of the codes contemplates a very strong reaction and sets a high test for the prohibited behaviour. It is not sufficient that the behaviour induces a moderately negative response or reaction.[6]

Complainant’s submissions

The complainant submitted that:

  • this was the first time he had heard the word ‘niggers’ allowed on radio
  • the use of the term constituted ‘racial vilification speech’:

There is no conceivable way that this word, one of most destructive and vile words in the English language, could be possibly used bya talk show caller or host especially in the context of its use on this occasion

  • the presenter ‘made no attempt to mute this comment using the provided delay equipment, and instead allowed [Mr M] to continue with this abuse’.

Finding

The licensee did not breach clause 1.1(e) of the code.

Reasons

Identification of the relevant reaction, focus and ground

Reaction: The complainant referred to ‘vilification’ and the Macquarie Dictionary (5thedition) describes the word ‘nigger’ as a derogatory term. On this basis, the ACMA regards contempt as the relevant reaction.

Focus: The Macquarie Dictionary defines ‘nigger’ as meaning:

1A black person, especially of Africa or of African descent.

2An Aborigine.

On this basis, the ACMA regards the relevant focus as groups of persons (rather than an individual or individuals), the relevant groups beingblack people of Africa or African descent, and Aborigines (the relevant groups).

Ground: The complainant referred to ‘racial’ vilification. On this basis, the ACMA regards race as the relevant ground.

Likelihood of incitement

The issue for examination is whether the licensee broadcast a program which, in all of the circumstances, was likely to have incited serious contempt for the relevant groups because of their race.

The licensee broadcast a word which is derogatory of these groups of persons, but the element of incitement was not present, given that:

  • the word was not used to refer to the relevant groups, but rather used as a comparison for a different group (namely, a MP and his office staff) and
  • the statement about the MP and his office staff was intended to be positive, commending them for their hard work.

With regard to the complainant’s statement that the presenter ‘allowed [Mr M] to continue with this abuse’, the ACMA does not consider that there was anything in the subsequent material broadcast that could be regarded as abuse of the relevant groups. There were no further references to the relevant groups except for the following, which occurred some six minutes 18 seconds into the exchange:

PRESENTER

Just before you go: a comment on [name of a third State MP]. Also he’s taken on an assistant role, as Assistant Minister for Aboriginal Affairs. How’s he tracking?

MR M

He’s travelling very well. I’m surprised. I didn’t know the guy very well; I met him down here at the meeting we had in Cairns a few weeks ago, and had a talk to him, and I’m very pleased with the way he’s going.

The ACMA does not regard this reference as abusive of Aborigines.

Issue 2: Decency

Relevant code clause

Program Content and Language, including Sex and Sexual Behaviour

1.3(a)Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.

(b)For the purposes of determining:

(i)the audience of the relevant program; and

(ii)the demographic characteristics of that audience,

regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

The most recent official ratings surveys for the Cairns licence area was conducted in 2003.[7]The survey did not provide any information about the demographic characteristics of the audience of John McKenzie’s Morning Show. It showed the demographic characteristic of the licensee’s service as a whole to be concentrated in the 40+ age brackets. The licensee also provided unofficial tracking from June2012 showing the audience of the program to be concentrated in the 55+ age brackets and predominantly male.[8]

Complainant’s submissions

The complainant submitted that the term ‘niggers’ constituted ‘vile language’.

Finding

The licensee did not breach clause 1.3(a) of the code.

Reasons

Prevailing community standards

The ACMA considers that the purpose of clause 1.3(e) of the Codes is to ‘prevent the broadcast of programs that are unsuitable having regard to prevailing community attitudes’ and this requires an assessment of content against ‘generally accepted standards of decency’ in the light of broad community standards.

However, it notes that the average person may accept that some material he or she considers indecent would not be so judged by other sections of the community, and that up to a point, those other groups have a right to have such material broadcast.

Demographic characteristics of the audience of the relevant group

Clause 1.3(a) of the Codes requires the ACMA to have regard to the demographic characteristics of the audience of the relevant program. However, it does not confine the ACMA to considering only the standards prevailing within that subset of the community.

Assessment

The ACMA accepts that the term ‘nigger’ is considered racially derogatory and offensive in the current consensus of contemporary standards of decency. In that respect, the ACMA notes that the Macquarie Dictionary provides a usage note to its definition of ‘nigger’ as follows:

The use of this word is widely considered to be extremely offensive.

However, context and tone are important in determining a licensee’s compliance with clause1.3(a) of the code. In the present case, the caller’s tone did not convey aggression or contempt. The wordwas not repeated or used in a sustained attack on the relevant racial group. Nor, as outlined above, was there any surrounding material that could be considered offensive in racial terms.

The ACMA accepts that in this context term ‘work like a nigger’ was used in an outmoded sense to mean ‘work exceptionally hard’ rather than as a racial slur.

The likely audience for the program comprises mature adults, able to understand that the speaker’s purpose, in this instance, was not to make a racially offensive remark but to comment positively on the conduct of a recently-elected parliamentarian and his staff. Given this understanding, such an audience would not have had an expectation that the presenter would interject or prevent the word from going to air.

Further, although the number of complaints is not determinative, there is no evidence before the ACMA, such as a high number of complaints, to indicate that both listeners and the broader community were offended in this case.

The ACMA is satisfied that, the content did not breach clause 1.3 (a) of the Codes.

Issue 3: Response to complaint

Relevant code clause

Advice in Writing

5.5Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45business days of receiving the complaint.

Complainant’s submissions

The complainant submitted that he had not received a response to his complaint, which he had sent to the licensee by fax and by mail.

Licensee’s submissions

The licensee submitted that:

  • it sent a response to the complaint on 25 June 2012
  • it sent the response by fax to a number that appeared in the footer of the complaint
  • the complainant had faxed the licensee correspondence from this number in the past, the most recent occasion being on 21 March 2011
  • it is unable to verify that the fax was sent correctly
  • it did not receive the complaint by mail.

The licensee has provideda copy of its purported response of 25 June 2012.

Further information and submission from complainant

In response to enquiries from the ACMA, the complainant further advised:

  • the number in the footer of the complaint has not been his fax number for some time
  • it appeared in the footer because he was using ‘old computer stationery’
  • the complaint had been sent to the licensee via a ‘fax via email’ commercial service from a different number
  • he does not have any evidence that he sent the complaint by mail, such as a registered mail record.

The complainant submitted that:

  • the station was given the complainant’s postal address at the time the complaint was made,[9] and had a duty to write to him
  • 4EL (4CA) has ‘previously played this “complaint handling” game’ – in this respect the complainant referred to the outcomes of ACMA investigations 1404 and 1789.

Finding

The licensee did not breachclause 5.5 of the code.

Reasons

On the basis of the information provided, it appears that the licensee responded to the complaint but the complainant did not receive the response because it was sent to an out-of-date fax number. The licensee had, however, no reason to believe that the fax number was out-of-date when it sent the response.

The licensee would be well-advised, for the future, to make, check and keep a transmission record for any response to a complaint which it sends by fax.

With respect to the complainant’s submissions:

‘Duty to write’: Clause 5.5 of the code requires licensees to respond ‘in writing’ – that is, in written form as distinct from, say, a telephone call or personal encounter. Clause 5.5does not, however, specify that the response must be sent by mail.

The complainant has submitted that he sent the complaint by mail (although, as noted, the licensee states that it did not receive it by mail). However, the complainant also sent it by fax. The fact that the licensee elected to respond by fax does not raise issues of compliance with the code.

Station’s record: Investigation 1404, finalised on 20 December 2004, found that the licensee of 4EL (4CA)[10] had breached the relevant code[11] by not responding to a complaint within the required time limit, and not advising the complainant that he might refer the matter to the regulator[12] if not satisfied with the licensee’s response.

Investigation 1789, finalised on 23 April 2007, found that the licensee of 4EL (4CA)[13] had breached the relevant code[14] because its response to the complainant was not substantive and did not advise the complainant that it might refer the matter to the ACMA if not satisfied with the licensee’s response.

The ACMA does not consider that this record is sufficiently recent to show a pattern of non-compliance, such that there would be cause to doubt the licensee’s word in this case. Both of these investigations were conducted some years ago. The ACMA also notes that the current licensee was not involved in the conduct that gave rise to the breaches.

ACMA Investigation Report 2874 – John McKenzie’s Morning Show broadcast by 4EL (4CA) on 12/6/12 1

[1]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).

[2]Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at p.12.

[3]Re Vulcan Australian Pty Ltd v Controller-General of Customs (1994) 34 ALD 773 at p.778-779.

[4]Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23-29].

[5]Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].

[6] The ACMA has set out this test before in relation to the consideration of these elements of the Codes. See for example, Investigation Report No.2751 – published 27 March 2012.

[7] Licensee to the ACMA, 19 October 2012.

[8] Licensee to the ACMA, 25 October 2012.

[9] The footer of the complaint to the licensee contained a postal address as well as a fax number.

[10] The licensee was, at that time, AMI Radio Pty Ltd.

[11] The relevant code at that time was the Commercial Radio Australia Codes of Practice 2001.

[12] The regulator at the time was the ACMA’s predecessor, the Australian Broadcasting Authority.

[13] The licensee was, at that time, Elmie Investments Pty Ltd.

[14] The relevant code at that time was the Commercial Radio Australia Codes of Practice 2004.