Investigation Report No. 3034
File No. / ACMA2013/738Licensee / Radio 6PR Perth Pty Ltd
Station / 6PR Perth
Type of Service / Commercial radio
Name of Program / Drive
Date of Broadcast / 13 December 2012
Relevant Legislation / Paragraph 8(1)(g) of Schedule 2 to the Broadcasting Services Act 1992
Date Finalised / 10 September 2013
Decision / No breach of paragraph 8(1)(g) of Schedule 2 to the BSA (use of broadcasting service in commission of offence)
The complaint
The complaint is that on 13 December 2012 the licensee used its broadcasting service in the commission of an offence against the Criminal Code Act 1995 (CCA 1995) and the Criminal Code Compilation Act 1913 (WA) (CCCA 1913) by broadcasting material in which the presenter of the program Drive told a caller, in relation to a call centre employee, to ‘get a whistle’ and ‘blow it in his ear and send him deaf’ (the practice).
The ACMA’s jurisdiction
The licensee has submitted that the ACMA does not have the authority to consider whether or not any person (including a commercial radio broadcaster) has committed an offence for the purpose of considering the licence condition at paragraph 8(1)(g) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA).
The licensee’s submission in this regard is at Appendix 1.
The ACMA‘s view is that, as an administrative body, the ACMA has the power to form an opinion as to whether a licensee has committed a Commonwealth, State or Territory criminal offence, for the purposes of deciding whether a licensee has breached the licence condition set out at paragraph 8(1)(g) of Schedule 2 to the BSA. The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court. The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence. The ACMA particularly notes that any formation of such an opinion by it, or reliance on that opinion for the purpose of taking further action as contemplated by the BSA, does not, and could not, amount to an adjudication of criminal guilt in the manner in which a court’s decision would operate.
The ACMA’s opinion is to be formed on the civil standard of proof, that is, to the reasonable satisfaction of the ACMA (on the balance of probabilities). However, the ACMA is mindful that formation of an opinion about the commission of an offence is a serious matter, and of the general rule that as the gravity of the consequences of a finding increase, so too does the weight of proof which should be required.
Matters not pursued
The complainant complained of similar behaviour by the licensee in broadcasts on 12 February 2010, 18 August 2010, 28 September 2010 and 16 August 2011. The complainant made his complaint to the ACMA about these broadcasts on 8 January 2013.
The ACMA asked the licensee for copies of these broadcasts. The licensee advised that, due to the passage of time,[1] it no longer held copies of the broadcasts. The ACMA then made enquiries with an independent media monitoring company. The company advised that it no longer held copies of the broadcasts either.
The ACMA decided not to pursue complaints about broadcasts for which copies were not available.
The complainant was advised of the above.
The program
Drive is broadcast weekdays on 6PR in the afternoon. The program includes talkback, news, commentary by the presenter, discussions and interviews relating to current events.
The presenter of the program on 13 December 2012 was Howard Sattler. The broadcast included the following exchange between the presenter and a caller:
Presenter: [Caller’s name and suburb]. Hi, [caller’s name].
Caller: Yeah, hello, Howard, how are you?
Presenter: Good.
Caller: I’m sorry to ring so late. Or to call so late. Umm, I just received, an hour ago, a call from a call centre about a computer. And the lady was talking, blah blah blah you know, and then a young man came on the line, you know, say, who took over. And he came on and used dirty language. And he said, ‘Oh no, you’re too old; I’ll get you a wife’; ‘No, your wife is too old’; or ‘I’ll get you two daughters’.
Presenter: Did you hang up?
Caller: Well, I did. Because I said to him, ‘Listen, the call is monitored, you know. And by the police’. And he said, ‘I don’t eff-kay,’ you know. And then we hung up, you see. It’s not the first time, it’s not the second time, it’s many many times in the past.
Presenter: Get a whistle. Get a whistle. Blow it in his ear and send him deaf, OK?
Caller: Yeah.
Presenter: Thanks, [caller’s name]; thanks for your call.
The exchange was 1:03 minutes in duration.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast. Other sources used have been identified where relevant.
Relevant legislation
Schedule 2—Standard conditions
8 Standard conditions of commercial radio broadcasting licences
(1)Each commercial radio broadcasting licence is subject to the following conditions:
(g)the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory.
Complainant’s submissions
The complainant submitted that the licensee used its broadcasting service in the commission of the offence of incitement, which is an offence under both WA and Commonwealth law, by:
- urging another person to commit a Commonwealth offence, that is, to use a telecommunications network for the purpose of committing a serious offence, namely assault occasioning bodily harm (section 11.4 of the CCA 1995); and
- inciting another to the unlawful doing of an act which causes bodily harm, the unlawful assault of another, and/or assault occasioning bodily harm (section 553 of the CCCA 1913).
The relevant provisions are set out at Appendix 2.
Further information from the complainant
During the course of the investigation, the complainant referred the ACMA to the following material:
- a 2012 news report about a woman found guilty of bodily harm in a German court because she had caused a call centre employee hearing problems and tinnitus by engaging in the practice;
- entries in website forums about cases where hearing had been damaged by the practice;
- websites with articles that refer to the relationship between the practice and acoustic shock injury, namely and
Licensee’s submissions
The licensee’s submissions included:
Neither Mr Sattler nor 6PR have caused bodily harm to any person. For any crime to have been committed, both a physical element (actus reus) and a mental element (mens rea) must be proven beyond reasonable doubt. Clearly there is no actus reus in respect of the provision as no-one has been harmed. Similarly, there is no mens rea, as Mr Sattler did not intend to harm any person. Mr Sattler’s comments during the broadcast (about blowing a whistle into a telephone) were not intended to be taken seriously, nor were they taken seriously by 6PR’s listeners. This was a spontaneous remark from Mr Sattler to demonstrate his frustration at the tenacity of undesirable telemarketers. While these comments are not illegal, 6PR nevertheless appreciates that this is not an appropriate way of dealing with telemarketers; therefore, we have discussed this with Mr Sattler.
The licensee’s submissions are at Appendix 3.
Agency information
As the regulator for the telecommunications industry as well as the broadcasting industry, the ACMA is aware that:
- The current mandatory Australian standard for telecommunications equipment is AS/ACIF S004 developed by the Communications Alliance.[2] The standard is supplemented by the Communications Alliance’s G616 Guideline on acoustic safety for telephone equipment.[3] The Guideline offers assistance to organisations that have staff who use telephone equipment for extended periods of time such as call centres.
- Devices that comply with limits specified in the standard provide some protection against acoustic shock when compared with devices that do not meet this standard. (For example headsets with particular specifications provide more protection against adverse affects than headsets that do not meet particular specifications.)
- Adoption of the standard does not guarantee to protect call centre operators entirely from acoustic shock.
- Call centre operators may not be located in Australia in which case they may not be afforded the protections of the mandatory Australian standard.
- High levels of sound can cause acoustic shock but it is not the only factor; the unexpectedness of the sound can be as important as its volume in causing an adverse event.
- The CA G616 guideline defines ‘acoustic shock’ as:
Any temporary or permanent disturbance of the functioning of the ear, or of the nervous system, which may be caused to the user of a telephone earphone by a sudden sharp rise in the acoustic pressure produced by it. (ITU-T and ETSI definition).
Finding
The licensee did not breach paragraph 8(1)(g) of Schedule 2 to the BSA.
Reasons
As explained under ‘Agency information’, the ACMA is aware that the practice can cause bodily harm, in the form of acoustic shock.
To establish an offence of incitement under either the CCA 1995 or the CCCA 1913, the ACMA must be reasonably satisfied (that is, on the balance of probabilities) that the presenter:
- did, as a matter of fact, ‘urge’/’incite’ the commission of an offence; and
- intended that the offence actually be committed.[4]
The ‘offences’ of potential relevance identified by the complainant in this case are:
- the Commonwealth offence of using a telecommunications network to commit a serious offence[5] (relevantly, assault occasioning harm);[6]
- the Western Australian offences of:
- unlawfully causing bodily harm;[7]
- common assault;[8]
- unlawful assault occasioning bodily harm.[9]
The ACMA notes that:
- in order to establish that urging/incitement has taken place, it is not necessary to demonstrate that the action urged/incited has actually been carried out; and
- the presenter’s use of exhortative words like ‘get ...’, ‘blow ...’, ‘send ...deaf’ are suggestive of urging/incitement.
The ACMA considers that, while the presenter’s broadcast statements may reasonably be taken to have urged/incited the commission of an offence, the ACMA is not satisfied that the presenter intended that any of the offences actually be committed. The ACMA notes in this regard that the mention of the practice in the broadcast was brief, not repeated, and was said in a spontaneous manner; this would be at variance with an intention that the caller actually engage in the practice. In that regard, the ACMA’s accepts the licensee’s submission that Mr Sattler’s comments ‘were not intended to be taken seriously’.
The ACMA welcomes the fact that the licensee discussed the matter with Mr Sattler.
The ACMA considers that, as the presenter’s statements could not be considered to constitute an offence of incitement under the CCA 1995 or the CCCA 1913, the licensee did not use its broadcasting service in the commission of a criminal offence by broadcasting the comments. Accordingly, the licensee did not breach paragraph 8(1)(g) of Schedule 2 to the BSA.
APPENDIX 1
Licensee’s submission – the ACMA’s jurisdiction
APPENDIX 2
Relevant provisions
Criminal Code Act 1995 (Cth)
Schedule
11.4 Incitement
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if committing the offence incited is impossible.
(4)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A)Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5)It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
(a)if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or
(b)if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
(c)if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
(d)if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e)if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
473.1 Definitions
In this Part:
(...)
serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment:
(a)for life; or
(b)for a period of 5 or more years.
474.14 Using a telecommunications network with intention to commit a serious offence
(1)A person is guilty of an offence if:
(a)the person:
(i) connects equipment to a telecommunications network; and
(ii)intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and
(b)the offence is:
(i)a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii)a serious offence against a foreign law.
(2)A person is guilty of an offence if:
(a)the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and
(b)the offence is:
(i)a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii)a serious offence against a foreign law.
(3)A person who is guilty of an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.
(4)Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note:For absolute liability, see section 6.2.
(5)A person may be found guilty of an offence against subsection (1) or (2) even if committing the serious offence is impossible.
(6)It is not an offence to attempt to commit an offence against subsection (1) or (2).
Criminal Code Compilation Act 1913 (WA)
Schedule
222.Term used: assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
223.Assaults unlawful
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
(...)
304.Acts or omissions causing bodily harm or danger
(1)If a person omits to do any act that it is the person’s duty to do, or unlawfully does any act, as a result of which —
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
(2)If a person, with an intent to harm, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
(3)For the purposes of subsection (2) an intent to harm is an intent to —
(a)unlawfully cause bodily harm to any person; or
(b)unlawfully endanger the life, health or safety of, any person; or
(c)induce any person to deliver property to another person; or
(d)gain a benefit, pecuniary or otherwise, for any person; or
(e)cause a detriment, pecuniary or otherwise, to any person; or
(f)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(g)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
(...)
313.Common assaults
(1)Any person who unlawfully assaults another is guilty of a simple offence and is liable —
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 3 years and a fine of $36 000; or
(b)in any other case, to imprisonment for 18 months and a fine of $18 000.
(2)A prosecution for an offence under subsection (1) may be commenced at any time.
317.Assaults occasioning bodily harm
(1)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable —
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years.
Alternative offence: s. 313.
Summary conviction penalty:
(a)in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or
(b)in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.
(...)
553.Incitement to commit indictable offences
(1)Any person who, intending that an indictable offence (the principal offence) be committed, incites another person to commit the principal offence, is guilty of a crime.
(2)A person guilty of a crime under subsection (1) is liable —
(a)if the principal offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;
(b)in any other case — to half of the penalty with which the principal offence is punishable on indictment.
Summary conviction penalty: for an offence where the principal offence may be dealt with summarily, the lesser of —
(a)the penalty with which the principal offence is punishable on summary conviction; or
(b)the penalty that is half of the penalty with which the principal offence is punishable on indictment.
(3)The summary conviction penalty in subsection (2) does not apply to an offence to which section 426 applies.