Investigation Report No. 2650
File No. / ACMA2011/1486Licensee / Channel Seven Sydney PtyLtd
Station / ATN Sydney
Type of Service / Commercial television broadcasting
Name of Program / Seven News
Date of Broadcast / 28 June 2011
Relevant Code / Clauses 1.9.5, 1.9.6, 4.3.1 and 4.4.1 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 17 January 2012
Decision / No breach of clause 1.9.5 [cause serious offence to the cultural sensitivities of Aboriginal and Torres Strait Islander people]
No breach of clause 1.9.6 [provoke intense dislike against a group of persons on the grounds of race]
No breach of clause 4.3.1 [fair representation of viewpoints in a news program]
No breach of clause 4.4.1 [fair and impartial presentation of news]
The complaint
On 19 August 2011 the Australian Communications and Media Authority received a complaint regarding a news item broadcast by Sydney commercial television station ATN during its evening news bulletin Seven News. The complainant alleged that the news item was deliberately divisive, misrepresented Sydney Council, disregarded the sensitivities of Australian Aborigines and was biased.
The program
Seven News is a half hourly news bulletin broadcast every night between 6.00 pm and 6.30 pm on the Seven Network.
The news item that was the subject of the complaint concerned a decision by Sydney City Council to refer to the arrival in Australia of white settlers as an ‘invasion’ rather than an ‘arrival’. The bulk of the item was taken up with an interview between the news presenter and a representative from Sydney City Council. The interview was superimposed with images of white settlers arriving in Australiaand of Australian Aborigines, as well as footage of Australia Day celebrations.
A transcript of the news item is at Attachment A.
Assessment
The investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee.
The ‘ordinary, reasonable viewer’ test
In assessing content against the Commercial Television Industry Code of Practice 2010(the Code), the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable viewer’.
Australian courts have considered an ‘ordinary, reasonable 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 the ‘ordinary, reasonable viewer’ would have understood this program to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn.
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.
Complainant’s submissions
In his complaint to the licensee the complainant alleged that:
The news presenter very strongly misrepresented Sydney Council as “trying to rewrite the history books”.
Her tone was aggressive and extremely provocative.
The news item was presented in a way that appeared to be deliberately inflammatory and divisive, and aimed at causing strong community backlash. […]
There was disregard or contempt for the sensitivities of the original Australians.
[…]
Instead of objectively reporting the use of the word invasion as it was intended – to provide a little acknowledgement of an Aboriginal perspective of European “settlement” after a little Aboriginal participation, it was heavily laden with destructive overtones and blatant negativity.
In his complaint to the ACMA the complainant alleged that:
[…] the news item was not reported in an objective, unbiased or professional manner. Subsequently many viewers would have been primed or excited to anger and to view the Sydney Council and the Aboriginal community much more negatively than they otherwise may, before the cross over to Mr McInerney. The newsreader and whoever approved her presentation going to air had no consideration for the feelings or history of the Aboriginal community, or how the issue may relate to the spirit of reconciliation.
Licensee’s submissions
In its response to the complaint the licensee wrote:
We have reviewed the material you refer to and we believe it was broadcast in accordance with our obligations under the Code. The segment was only brief, the majority of which was a conclusive description by Councillor John McInerney about the recent declaration made by Sydney Council. The bulletin was not intended to be, nor do we believe it was, inflammatory. Moreover, we wish to add that it was the subject of several news reports in various media channels at the time.
We have reviewed the report in light of your concerns and we disagree with the way in which you have interpreted the segment. It is our view that the segment in no way suggested that “the Aboriginal community is not entitled [to] even a skerrick of validation for what happened to them”. Rather, the reporter was merely asking relevant questions which would enable Mr McInerney to delve into the issue further for the report.
Issue 1: Whether the broadcast caused serious offence to the cultural sensitivities of Aboriginal and Torres Strait Islander people
Relevant code clause
Clause 1.9.5 of the Code states:
1.9A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:
[…]
1.9.5seriously offend the cultural sensitivities of Aboriginal and Torres Strait Islander people or of ethnic groups or racial groups in the Australian community;
Finding
The licensee of ATN did not breach clause 1.9.5 of the Code.
Reasons
The complainant alleged that the presenter showed ‘disregard or contempt for the sensitivities of the original Australians’ and that ‘the newsreader and whoever approved her presentation going to air had no consideration for the feelings or history of the Aboriginal community, or how the issue may relate to the spirit of reconciliation’.
The wording of clause 1.9.5 of the Code sets a high test for prohibited material, in that it must ‘seriously offend’. It is not sufficient that a program produces a mildly negative effect. Furthermore, the effect of the material is to be assessed in relation to ‘all the circumstances’, which might include how prominently the material featured in the overall program and what other material was presented in association with it.
The ACMA is of the view that nothing in the news item reached the threshold of ‘serious offence’towards the cultural sensitivities of Aboriginal and Torres Strait Islander people. Although clause 1.9.5 proscribes the broadcasting of material that seriously offends the cultural sensitivities of Aboriginal and Torres Strait Islander people, the ACMA does not consider that mentioning the ‘arrival’ of Europeans in Australia and how this ‘arrival’ may be thought of as an ‘invasion’ by Aboriginal and Torres Strait Islander people would ‘seriously offend the cultural sensitivities of Aboriginal and Torres Strait Islander people’.
The news item concerned a decision made by Sydney Council to refer to European settlement of Australia as an ‘invasion’ in one of its documents and whether that decision would have any impact on Australian history or on Australia Day celebrations. The news item did not deal with, or refer to, the cultural practices or traditions of Aboriginal and Torres Strait Islander people. The only reference to the behaviour of Aboriginal and Torres Strait Islander people made during the broadcast was that they had made ‘sincere representations’ to Sydney Council.
In fact, during the broadcast, the Councillorwho was interviewed drew attention to the sensitivity among the Aboriginal and Torres Strait Islander communities to the issue of how the arrival of white settlers in Australia is referred to and to the idea that the Australian community as a whole may not be aware of this sensitivity.
The ACMA therefore considers that the requirements of clause 1.9.5 of the Code have been met.
Issue 2: Whether the broadcast provoked intense dislike against a group of persons on the grounds of race
Relevant code clause
Clause 1.9.6 of the Code states:
1.9A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:
[…]
1.9.6provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference;
Finding
The licensee of ATN did not breach clause 1.9.6 of the Code.
Reasons
The complainant alleged that ‘the news item was presented in a way that appeared to be […] aimed at causing strong community backlash’ and that ‘many viewers would have been primed or excited to anger and to view the Sydney Council and the Aboriginal community much more negatively than they otherwise may, before the cross over to Mr McInerney’.
For the purposes of assessing compliance with clause 1.9.6 of the Code, the ACMA is satisfied that the relevant ‘group of persons’ is Aboriginal and Torres Strait Islander people and the relevant ‘ground’ is ‘race’[2].
However, the ACMA is of the view that it is unlikely the comments made during the segment were so harsh, forceful or extreme that they would have been likely to have provoked intense dislike towards Aboriginal and Torres Strait Islander people on the grounds of race.
The presenter’s opening remarksand subsequent questions put to the representative from Sydney Council were concerned with a decision made by the Council and would not, in the opinion of the ACMA, have induced from the ‘ordinary, reasonable viewer’ a response towardsAboriginal and Torres Strait Islander people strong enough to have been captured by the wording of clause 1.9.6 of the Code.
Furthermore, the presenter’s questions regarding the implications of the Council’s decision on Australian history and on Australia Day celebrations were addressed in the Councillor’s response, particularly his reassurance that there would be ‘certainly no major change in history and nothing intended in terms of Australia Day’, further lessening any negative impact that the presenter’s opening remarks and line of questioning may have had.
The ACMA therefore considers that there has not been a breach of clause 1.9.6 of the Code.
Issue 3: Whether the broadcast represented viewpoints fairly
Relevant code clause
Clause 4.3.1 of the Code states:
4.3In broadcasting news and current affairs programs, licensees:
4.3.1must broadcast factual material accurately and represent viewpoints fairly, havingregard to the circumstances at the time of preparing and broadcasting theprogram;
4.3.1.1An assessment of whether the factual material is accurate is to bedetermined in the context of the segment in its entirety.
Finding
The licensee of ATN did not breach clause 4.3.1 of the Code.
Reasons
The complainant has alleged that the presenter ‘misrepresented Sydney Council as “trying to rewrite the history books”.’
However, the presenter’s opening statement that ‘Australian history could be rewritten after Sydney City Council declared the arrival of white settlers was an invasion rather than an arrival’ was immediately followed by an interview with a representative from Sydney Council, who was then allowed to presentthe Council’s viewpoint regarding the decision. The Councillor presented Sydney Council’s position at length and uninterrupted, and stated that there would be ‘certainly no major change in history and nothing intended in terms of Australia Day’. Taking the segment as a whole, the ‘ordinary, reasonable viewer’ would have been able to gain a clear idea regarding the Council’s decision, the reasons for the decision and the implications of the decision.
The ACMA therefore considers that the requirements of clause 4.3.1 of the Code have been met.
Issue 4: Whether the broadcast presented news fairly and impartially
Relevant code clause
Clause 4.4.1 of the Code states:
4.4In broadcasting news programs (including news flashes) licensees:
4.4.1must present news fairly and impartially;
Finding
The licensee of ATN did not breach clause 4.4.1 of the Code.
Reasons
Matters that could lead to a consideration that news has not been presented fairly or impartially may include an unfair selection of material from the range of material available, an undue emphasis on certain material, or the unfair juxtaposition of material taken out of context.
The nature of news reporting requires reporters and presenters to be questioning and at times sceptical in their analysis of the issues being reported on. However, while probing and challenging questions may be used to explore an issue, programs must demonstrate a willingness to include alternative perspectives without prejudgement.
For reasons similar to those outlined above in the assessment of compliance with clause 4.3.1 of the Code, the ACMA is of the view that the segment presented news fairly and impartially. Although posing a question regarding the implications of Sydney Council’s decision with respect to Australian history and Australia Day celebrations, the representative from Sydney Council was then allowed to clearly enunciate and clarify the Council’s position and to explain what, if any, implications would follow from the Council’s decision. Furthermore, the presenter made no comments, unfavourably or otherwise, on the Councillor’s response to her questions.
The ACMA therefore considers that the requirements of clause 4.4.1 of the Code have been met.
Attachment A
Transcript of news item
Presenter (P): Australian history could be rewritten after Sydney City Council declared thearrival of white settlers was an invasion rather than an arrival. For more on this we’re joined by Councillor John McInerney from Sydney Council. Good afternoon to you John. How was this decision made?
Councillor (C): It was made by Council last night after quite sincere representations from Aboriginal and Torres Strait Islander people and of course the City of Sydney has a high proportion relative to other cities of indigenous people in our municipality.
P: So what does this mean for Australian history? Are you suggesting we stop celebrating things like Australia Day?
C: Oh, absolutely not! No, no, effectively it’s just the insertion of the word ‘invasion’ in a preamble to our 2030 plan. In a very minor way it’s an attempt really, at this stage,not to cause disruption amongst our Aboriginal and Torres Strait communities. It’s really just a recognition of their sensitivity to this issue, which a lot of Australians are not quite aware of, but we are aware of, and we feel, with a very minor change to our preamble to our 2030 plan we can accommodate their sensitivity. But certainly no major change in history and nothing intended in terms of Australia Day. This is really just,I think, a very minor community-related matter that the Council has accommodated.
P: Ok, we’re going to have to leave it there. Councillor John McInerney, thank you for your time today.
C: You’re welcome.
ACMA Investigation Report – Seven News broadcast by ATN on 28 June 20111
[1]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).
[2]Sydney Council is not a ‘group of persons’that is covered by clause 1.9.6 of the Code.