Investigation Report 3100
File No. / ACMA2013/1290Licensee / Harbour Radio Pty Ltd
Station / 2GB
Type of Service / Commercial Radio
Name of Program / The Ray Hadley Morning Show
Date of Broadcast / 27 May 2013
Relevant Code / Codes 1.1(e) and 5.5 of the Commercial Radio Australia Codes of Practice and Guidelines March 2013
Date of Decision / 13 November 2013
Outcome / The Australian Communications and Media Authority concludes that the licensee, Harbour Radio Pty Ltd:
· did not breach Code 1.1(e) [proscribed matter]
· breached Code 5.5 [complaint handling]
of the Commercial Radio Australia Codes of Practice and Guidelines March 2013.
The complaint
The Australian Communications and Media Authority (the ACMA) received a complaint about 2GB’s The Ray Hadley Morning Show broadcast by the licensee of Harbour Radio Pty Ltd on 27 May 2013.
The complainant is concerned that the presenter, Mr Hadley, ‘described someone as a ‘lunatic’’ and ‘allowed a caller to describe a previous caller as a ‘lunatic’’.
The investigation has considered the licensee’s compliance with Codes 1.1(e) [proscribed matter] and 5.5 [complaint handling] of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes).
The program
The Ray Hadley Morning Show (the program) is a morning program broadcast on weekdays from 9.00 am to 12.00 pm. The program is described on 2GB’s website as follows:
The Ray Hadley Morning Show brings you the latest news, sport, traffic and weather, with hard hitting political interviews and commentary. Ray has a reputation for breaking news, and loves to hear from listeners on the open line and via email.[1]
On 27 May 2013 a caller on the program expressed his view that police car chases should be stopped for fear of injury to bystanders. When Mr Hadley disagreed with the caller, the caller called Mr Hadley an ‘idiot’, told him to ‘get lost’ and hung up. After the caller hung up, Mr Hadley:
reiterated his view on the topic and said ‘you know who the “idiot” is here, [caller’s name]’
read out emails from listeners, including emails which contained these statements:
o ‘Well done for standing up to that idiot.’
o ‘[i]t must be the full moon ... they don’t call them lunatics for nothing’.
The ACMA has reviewed the broadcast and has identified that the term ‘lunatic’ was used once only in the program, when Mr Hadley read out an email from a listener which contained the term.
A transcript of the relevant broadcast is set out at Attachment A.
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 Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ listener.
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 asks what the ‘ordinary reasonable’ listener would have understood the broadcast 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 the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether the material has breached the Codes.
Issue 1: Proscribed matter
Relevant code
Code of Practice 1: Programs unsuitable for broadcast
1.1 A 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 ... disability.
See Attachment B for the considerations used by the ACMA in assessing compliance with Code 1.1(e) of the Codes.
Complainant’s submissions
The complainant submitted to the licensee that:
On the Ray Hadley Morning show, he described someone as a ‘lunatic’ and allowed a caller to describe a previous caller as a ‘lunatic’. I believe the use of this term stigmatises people with a mental illness and contravenes section of the Codes of Practice 1.1(d) and 1.1(e) whereby certain terms should not be used when discussing people’s attributes.
Licensee’s submissions
The licensee submitted to the ACMA that:
The presenter’s incidental reference to a caller as a ‘lunatic’ does not fall within, and is not touched by, the prohibitio[n] in ... code ... 1.1(e).
Finding
The licensee did not breach Code 1.1(e) of the Codes.
Reasons
In order for a breach of Code 1.1(e) of the Codes to have occurred, the ACMA must be satisfied that the relevant comments:
1. identified a person or group of persons with an attribute referred to in Code 1.1(e) of the Codes; and
2. were, in all of the circumstances, likely to incite hatred against, serious contempt for, or severe ridicule of, the person or group of persons because of the relevant attribute
Based on its assessment of the broadcast and the complaint, the ACMA considers that the relevant person being referred to during the discussion is the caller who expressed the view that police car chases should cease.
Although the complainant is concerned that use of the term ‘lunatic’ ‘stigmatises people with a mental illness’, the ACMA considers that, in the context of the broadcast, there was insufficient connection between the term ‘lunatic’ and mental illness:
the topic of discussion was about police car chases in the context of a relevant news item that day
the term ‘lunatic’ was used with reference to a particular caller, and not to a person or group of people with a mental illness
the term was used by a listener to express his strong disagreement with a view expressed by a caller on police car chases
the ordinary, reasonable listener would not have understood the term ‘lunatic’ to be an attack or insult against people with mental illness because of their disability.
Given the broadcast did not identify a person or group of persons with a disability (relevantly, mental illness), it is not necessary for the ACMA to consider whether the comment was, in all the circumstances, likely to incite hatred against, serious contempt for, or severe ridicule of, a group or person because of disability.
Accordingly, the licensee did not breach clause 1.1(e) of the Codes.
Issue 2: Complaint handling
Relevant code
Code of Practice 5: Complaints
Advice in Writing
5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business 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 45 business days of receiving the complaint.
Unwarranted Complaints or Anonymous Material
5.8 The licensee must make every effort to resolve complaints made in accordance with this Code, except where the complaint is, in the reasonable opinion of the licensee, frivolous, vexatious or an abuse of the complaint process under the Code.
Complainant’s submission
The complainant submitted that he did not receive a response to his complaint.
Licensee’s submission
The licensee submitted that:
As the ACMA is aware, the subject complaint is lodged by a complainant ... who is serial complainant to 2GB.
As with several of the other complaints lodged by this particular complainant, 2GB has formed the view that this complaint is frivolous and vexatious.
...
In our view, the complaints handling provisions do not apply in circumstances in which the complaint does not raise an issue under the codes. We consider that this complaint is of that nature.
Finding
The licensee breached Code 5.5 of the Codes.
Reasons
Code 5.5 requires, inter alia, that the licensee respond substantively to complaints within 30 business days of receipt. In contrast, Code 5.8 creates a separate obligation requiring the licensee to make every effort to resolve complaints, except where the licensee is of the reasonable opinion that the complaint is frivolous, vexatious or an abuse of the complaint process. The exceptions apply to the licensee’s obligation to resolve complaints in Code 5.8, not to the licensee’s obligation to respond to complaints in Code 5.5.
In other words, Code 5.5 creates an unqualified obligation on licensees to respond substantively to a complaint made in accordance with Code 5.1. Even if the licensee forms the reasonable opinion that a complaint is frivolous or vexatious, Code 5.5 still requires the licensee to respond to the complainant which, in this particular circumstance, would require the licensee to set out the opinion it has formed (i.e. that the complaint is frivolous or vexatious) and, importantly, that the complainant can refer their complaint to the ACMA if they are not satisfied with the response.
Accordingly, by failing to acknowledge receipt of the complaints and respond substantively to the complainant within the timeframe, the licensee breached Code 5.5 of the Code.
The ACMA’s view of Code 5.5 means that it does not need to determine whether the licensee could have reasonably formed the opinion that the complaints were frivolous, vexatious or an abuse of the complaints process.
Accordingly, the ACMA is of the view that the licensee breached Code 5.5 of the Codes.
Attachment A
Transcript
RH: G’Day [X]
X: How are you going mate?
RH: Good thanks [X].
X: Ah mate I think we need to have an end to these chases before some innocent person gets killed.
RH: Well you are probably a bit late [X] plenty of innocent people have been killed unfortunately in these types of – if you are talking about the motorcycle incident of this morning that you’re talking about?
X: Yes that’s right.
RH: Yes so what do you think we should do with people who are either fleeing from police because they’re in a stolen vehicle, they’ve robbed someone, what do you think we should do?
X: Mate I just don’t know, I think we should -
RH: No no no, [X, X,] I’m asking you, it’s no good you saying let’s find another way. I tell you what’s happened, we’ve already got senior police dictating to police officers when to stop chases okay, so that’s covered. If we take your advice we have what we call, [X], anarchy. That means the crooks know that no matter what they do they won’t be pursued by police. No matter what they do.
X: Was this guy a crook?
RH: I beg your pardon?
X: Was this guy a crook or just a motorist?
RH: Ah well, usually when people go away from the police on a motorbike or in a car they are getting away from them because they have a problem with police. But what you are advocating here – you’re saying no chasers, so that means if some bloke –
X: That’s for the interest of safety –
RH: Nah No, [X], some bloke attacks you or your wife, jumps in your car and drives down the street, you don’t want police to chase him, for fear that someone may be injured, is that what you’re saying to me?
X: Oh Ray I think, that’s not what happened here they said –
RH: No, no [X] let’s start from, right, you came on the program and said we’ve gotta stop these chases, that’s what you’ve said.
X: I maintain that I think they should stop them, they should find another way to –
RH: Well, well, let me get you to answer the question I just asked you. You’re out there in Western Sydney as I understand it. Tonight, at about 3 o’clock your wife and yourself are bashed and robbed by someone, who then jumps in your car –
X: That doesn’t happen –
RH: Well let’s hope not for your sake if we get your policy in. You’re bashed and robbed and then police find the car and he takes off, they know it’s your car, you’re saying don’t pursue the person who bashed and robbed you and your wife. Is that what you’re saying?
X: Ray, I think you’re an idiot, get lost.
RH: Thanks very much [X] I appreciate your call. You beat me to the punch. 13873 is the open line number 2GB.com.
...
RH: That’s the answer. For people in other parts of Australia who don’t know what it’s about, a critical incident investigation has been launched in which a motorcycle was injured in a serious crash following a police chase in Sydney’s South this morning. At 3:45am officers patrolling Southern Cross Drive at Eastlakes detected a motorcyclist driving above the speed limit. They attempted to stop the motorcycle, not a problem so far. The male driver allegedly took off northbound and was chased by police. Witnesses say the motorcycle was T-boned by another vehicle at the intersection at South Dowling Street and O’Dea Street Waterloo. The car was driving through a green light when it hit the motorcyclist trying to evade police who obviously went through a red light. Thankfully the male driver of the car was not injured but the motorcyclist was taken to St Vincent’s hospital in a stable condition and I guess by tomorrow we’ll find out why he didn’t stop when asked to by police. Just didn’t see them if [X] is to be believed. But I hope [X] next time you want the police to attend to something that might have gone wrong at your place, that you don’t want them to come there under lights and sirens. Just in case there’s an accident. So the answer to it, [X], who calls me an idiot is to have complete anarchy where no matter what you do, no matter what the circumstances according to [X], we allow people just to simply, know that the police won’t chase them. Because they can’t. Because [X] doesn’t want them to. You know who the idiot is in this one [X].