Investigation Report No. 2784

File No. / ACMA2012/438
Broadcaster / ABC Television
Station / ABN Sydney
Type of Service / National Broadcaster
Name of Program / Raw Comedy Festival 2011
Date of Broadcast / 18 January 2012
Relevant Code / Standards 7.1 and 7.7 of the ABC Code of Practice 2011
Date Finalised / 29 June 2012
Outcome / No breach standard 7.1 of ABC Code of Practice 2011
No breach standard 7.7 of the ABC Code of Practice 2011

The complaint

On 5 March 2012, the Australian Communications and Media Authority (ACMA) received a complaint about a comment made during a comic routine on the program Raw Comedy Festival 2011 on ABC TV on 18 January 2011. The complaint is that the comment was offensive, and demeaning of people with a disability.

The complainant referred the matter to the ACMA for consideration,[1] and the complaint has been assessed in accordance with standards 7.1 and 7.7of the ABC Code of Practice 2011 (the Code).

The program

Raw Comedy Festival 2011is a competition that occurs annually during the Melbourne comedy festival, and features a cast of Australian stand up comedians and comedic performances.

The broadcast of thecompetition ran for less than 1 hour. At about 42:25 – 43:10minutes in, during an interlude between comedian performances, the host comedian, Tom Ballard, stated:

I’m not going to take up your time. I just want to tell you that I turned 21 last year right. It was a lot of fun. Big 21st birthday it was great. All the speeches went well. The idea of speeches at birthdays is quite bizarre to me. Right because at a 21st you gather all the people that are important to you, your family, your loved ones. And you gather them around you to help celebrate this important time of your life. And then you get Davo, to stand up in front of all those people, and just recount the most horrendous, shameful shit you’ve ever done. Like invites to 21st birthdays should be like, ‘Dear Grandma, you are cordially invited to hear about the time that your grandson fingered somebody with learning difficulties horaaaay.

[sombre murmur from the audience]

I haven’t done that, that’s just, an example.

Best 21st speech I ever heard was my friend Bridget’s 21st. ...

Assessment

The assessment is based on a recording of the broadcast provided by the ABC; and submissions provided by the ABC and the complainant.

‘Ordinary, reasonable’ viewer test

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’ viewer.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or 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[2].

The ACMA 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 there has been a breach of the Code.

Issue 1: Whether the content was likely to cause harm or offence and whether this was justified by the editorial context.

Relevant provision

Standard 7.1: Content that is likely to cause harm or offence must be justified by the editorial context.

Complainant’s submissions

The complainant submitted:

The MC of "Raw" said during the broadcast something to the effect of: "I find it strange how your best mate gets to give a speech at your 21st birthday party in front of all your mates and family with the aim of humiliating you. Last year, my mate said at my party 'And who could forget DAVE's efforts when he fingered a girl with learning difficulties?”
This attempt at humour constitutes ridicule of people with disabilities given the MC considered this experience of fingering the girl to be embarrassing enough for it to qualify for including in his best mate's 21st speech. The attempt at humour is foul and deeply offensive to people with disabilities, their families and anyone with a moral compass. The fact that this material was also approved and then broadcast at least twice amplifies the severity of this incident. This incident arguable (sic) is unlawful in Tasmania where there are strong disability anti vilification laws. ...
My sought outcomes of this complaint are:
1. A public formal apology to appear on the ABC website and on a suitable ABC TV program
2. ABC TV agreeing to produce a segment on the topic of disability discrimination in Australia.

ABC submissions

The ABC submitted in response to the complaint:

The ABC's requirements for harm and offence are set out in section 7 of the ABC Editorial Policies. Relevantly, standard 7.1 requires that "Content that is likely to cause harm or offense must be justified by the editorial context".

During an interlude between contestants' routines, Tom Ballard performed a brief comedic 'bit' on the tradition of 21st birthday speeches. After explaining to the audience that he had just celebrated his own birthday, Mr Ballard indicated that:
"The idea of speeches at a 21st is quite bizarre to me, because ... you gather all the people who are really important in your life... and you get them to help you celebrate this important time in your life, and then you get Davo to stand up in front of all those people, and just recount the most horrendous shameful shit you've ever done. Invites to a 21st should read, Dear Grandma, you're cordially invited to hear about the time your grandson fingered someone with learning difficulties..."
...[O]n review, we do not believe it ridiculed those with learning difficulties; the target of the joke was the embarrassing nature of birthday speeches. Notwithstanding this, we agree that some viewers may have found the comments offensive. As a result, we have considered whether the possible offence caused by this statement was mitigated by its context. On review, we are satisfied that it was. This statement was made within a clearly defined comedy routine performed by the host of Raw Comedy 2011; a broadcast which presents the grand final of Australia's largest open mic [sic] comedy competition. The target audience would, we believe, reasonably anticipate some of the 'raw' comedy contained during the broadcast to take risks, on occasion pushing the boundaries of good taste. We are satisfied the program was in keeping with standard 7.1.

In a further submission to the ACMA on 8 June 2012, the ABC said:

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

[...]

The ABC agrees that this program included material which was likely to cause offence to some viewers. We do not consider it likely that the program would harm viewers.

The title - Raw Comedy - signalled to viewers that the comedy on offer here would be "crude in quality or character; not tempered or refined by art or taste" (Macquarie Dictionary).The program presented the highlights of the Melbourne International Comedy Festival's 'Raw Comedy' competition, described as "Australia's biggest and most prestigious open mic comedy competition" ( A number of talented young comedians were showcased in the program, appearing before a live audience. As well as the contestants themselves, the program included comedic pieces from the two hosts, Hannah Gadsby and Tom Ballard, both of whom are also established comedians and likely to be familiar to the target audience of this program. As is the case with live, stand-up comedy, the content for viewers was somewhat unpredictable and challenging and occasionally pushed boundaries of good taste.

Thus, the editorial context was the final event in an established competition to find Australia's most talented stand up comedians, hosted by comedians and presented to a live audience. In our view, this editorial context provides a general justification for comedic content that may cause offence. In relation to the specific context of the remark that offended Mr Eggleston, this occurred in a piece by host Tom Ballard who was making fun of the tradition of 21st birthday speeches and the practice of using such occasions to point out a person’s most shameful or embarrassing acts in front of gathered family and friends. The focus of the humour was 21st birthday speeches; it was not people with a learning disability. This short piece by Tom Ballard contained a number of references which may have offended some viewers, such as the story recounted at his friend Bridget’s 21st birthday about embarrassing events on a camping trip. All of this material was presented in the clear editorial context of a stand-up comedy piece about 21st birthday speeches, within a program labelled ‘Raw Comedy’.

We note that appropriate steps were taken to mitigate the possibility of causing offence by classifying the program as M, suitable only for mature audiences, and providing consumer advice warning of coarse language, sexual references and material that may offend some viewers. The program was scheduled in a late evening timeslot appropriate to attract an adult audience. This is in keeping with the principles of clause 7: "Consideration of the nature of the target audience for particular content is part of assessing harm and offence in context, as is any signposting that equips audiences to make informed choices about what they see, hear or read."

Finding

The ABC did not breach standard 7.1 of the Code.

Reasons

The ACMA finds that the content, although very fleeting and unsustained in nature, was likely to cause offence given the sensitivity of the subject matter.

However, the ABC has not breached the code due to the fact that, on balance, the content was justified by the editorial context.The ABC code highlights the significance of context notingthat coarse language, disturbing images or unconventional situations may form a legitimate part of a humorous, satirical or other artistic work. Also significant, is consideration of the nature of the target audience as is any signposting that equips audiences to make informed choices about what they see, hear or read. The editorial context here was a comedy festival and, more particularly, comments made during a live stand-up performance during that festival. The ABC relevantly submitted that ‘the target audience would, we believe, reasonably anticipate some of the ‘raw’ comedy contained during the broadcast to take risks, on occasion pushing the boundaries of good taste’.The ACMA notes that the material classified M for viewing by mature audiences, and was preceded with a warning that the program contains material that may offend some viewers

The ACMA also makes the following observations about the content itself:

  • The reference concerned was very brief and fleeting and the theme not sustained or developed in any way;
  • It is apparent from the broadcast that the comedian, in realising the offence caused, attempted to move from the topic;
  • The key focus of was the awkward nature of speeches at 21st birthdays, and the person about whom the speech was made;
  • The tone of the program, and the skit, was intended to be light-hearted.

Issue 2: Whether the content involved the use of stereotypes or discriminatory content and whether it could reasonably be interpreted as condoning or encouraging prejudice.

Relevant provision

Standard 7.7: Avoid the unjustified use of stereotypes or discriminatory content that could reasonably be interpreted as condoning or encouraging prejudice.

Complainant’s submissions

See above.

ABC submissions

The ABC submitted in response to the complaint:

As you have also raised concerns that the program vilified those with disabilities, Audience & Consumer Affairs have reviewed the program against standard 7.7, which requires that content should "Avoid the unjustified use of stereotypes or discriminatory content that could reasonably be interpreted as condoning or encouraging prejudice". As indicated above, we do not believe the target of the joke was those with disabilities, and as a result do not believe that the program would reasonably encourage or condone prejudice towards those who have disabilities.

The ABC submitted to the ACMA on 8 June 2012:

7.7 Avoid the unjustified use of stereotypes or discriminatory content that could reasonably be interpreted as condoning or encouraging prejudice.

Given the context in which the comments were made, we do not consider that a reasonable viewer would understand them to condone or encourage prejudice. As set out above, the target of the comedy in this instance was the embarrassing nature of 21st birthday speeches; the target was not people who experience learning difficulties. While we certainly accept that the comments could cause offence, we do not agree that they would have prompted a viewer to think poorly of people with learning difficulties and nor do we agree that they would encourage prejudice towards people with learning difficulties. If anything, the reaction of the live audience suggested that the remark could prompt people to feel less positively towards Tom Ballard himself, and he quickly countered with ‘I haven’t done that … That’s just an example’, to laughs from the audience.

In our view, the content fell well short of what would be required in a comedy program to amount to a breach of this standard; a reasonable viewer would consider the joke in the context it was made and would understand its target. A reasonable viewer would not interpret it as condoning or encouraging prejudice towards people with learning difficulties. In this regard, we refer to our comments above about the editorial context in which the remark was made, as well as the more general statements made in the Note on Interpretation at part 1 of the Code. This Note makes clear that the standards "are to be interpreted and applied with due regard for the nature of the content under consideration … in ways that … do not unduly constrain journalistic enquiry or artistic expression".

Finding

The ABC did not breach Standard 7.7 of the Code.

Reasons

The standard prescribes the ABC to avoid the unjustified use of stereotypes or discriminatory content that could reasonably be interpreted as condoning or encouraging prejudice.

For there to be a breach of Standard 7.7 it must be established that:

  • There was unjustified use of stereotype or discriminatory content
  • Such content could reasonably be interpreted as condoning or encouraging prejudice.

While the focus of the joke was not people with disabilities, the result was likely to cause offenseto people with disabilities and wasinvery poor taste.

However, the finding under Standard 7.1 may similarly apply in Standard 7.7 in that the use of the content was not unjustified given the satirical context within which it was presented. On the whole, taking account the context in which the comments were made, the light-hearted tone of the comments, the intended target of the humour, and the fleeting nature of the comment made, the ACMA is not satisfied that the content could reasonably be interpreted as condoning or encouraging prejudice.

While very offensive, on balance, the ACMA is not satisfied that the content could amount to a breach of the Code.

Accordingly, the ABC did not breach standard 7.7 of the Code.

ACMA Investigation Report – Raw Comedy Festival 2011 broadcast by ABN Sydney on 18/1/12 1

[1]Section 151 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under ABC codes of practice.

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