Investigation Report No. 2818

Investigation Report No. 2818

Investigation Report No. 2818

File No. / ACMA2012/765
Broadcaster / Australian Broadcasting Corporation
Station & Locality / 4RN Queensland
Type of Service / National broadcaster
Name of Program / PM
Date of Broadcast / 13 April 2012
Relevant Code / Clause 2.2 of the ABC Code of practice 2011
Date Finalised / 10 July 2012
Decision / No breach of clause 2.2 (accuracy)

Background

  • The complaint concerns the program PM, broadcast on 13 April 2012 by the Australian Broadcasting Corporation (ABC).
  • PM is a radio program broadcast throughout Australia by both Radio National and ABC Local Radio. It is broadcast on weeknights and has a standard duration of 90 minutes, commencing at 5.10pm or 6.10pm respectively. It deals primarily with news and current affairs items, and is described on its website as covering “a broad spectrum of issues relevant to all sections of Australia’s geographically and culturally diverse community”.
  • On 13 April 2012, PM featured a brief segment concerning the retirement of the Australian Greens Senator Bob Brown, which had been announced that day (the Segment). A transcript of the Segment can be found at AppendixA (below).
  • During the Segment, Mr Brown was quoted as stating “The Greens are on a trajectory to become a future government, and our job isn't to make the so and sos honest - it's to replace them.” The ABC journalist who had prepared the Segment (the Reporter) then stated: “The ‘keeping them honest’ quip a reference to the [Australian Democrats Party (the Democrats)] and that party's founder, Don Chipp, who said it was the Democrats’ role to ‘keep the bastards honest’. The Democrats were once considered the third force in Australian politics too, they're now extinct.”
  • The complainant submitted that he believed that the reference to “extinct democrats” is inaccurate for a number of reasons, including that:
  • It is true that the 2007 election meant that the Australian Democrats lost all federal parliamentary representation. However to say that a party has lost parliamentary representation does not mean that a party has died out or has come to an end
  • The Australian Democrats remain a registered political party in Australia, contesting elections
  • The last Federal Election was contested by the Australian Democrats, and some 90,000 Australians indicated a first-preference vote for the Australian Democrats
  • The Australian Democrats are planning on contesting the 2013 Federal Election
  • On 8/5/12 Mr Alan Sunderland of the ABC responded to the complaint, admitting that the expression was not accurate but justifying theexpression on the grounds of context. I believe this represents a misunderstanding of 'context' in interpretation, in that although context can explain a statement, it can never make an inaccurate statement accurate.
  • In its reply to the complainant, the ABC acknowledged that the Democrats are still in existence and that “in that sense, to suggest that the entire party is extinct would indeed be an overstatement and potentially quite misleading to the audience”. It added, however, that “it is important to take the broader context of the story into account, and consider what the key topic of discussion was.” As well as being “chiefly about” Mr Brown’s retirement, the ABC submitted that “the story then examined how well the Greens would survive as the ‘third force’ in politics ... it was clearly in this context that the reporter was referring back to the Democrats’ former role, particularly in the Senate, and the way they were able to use their presence to ‘keep the bastards honest’. That was what prompted the reference to them now being ‘extinct’, and [the ABC does] believe that this context would have been well understood by any reasonable listener”.
  • This investigation has considered the ABC’s compliance with clause 2.2 of the ABC Code of Practice 2011(the Code), which reads as follows:

Standards

2.2Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

  • This assessment is based on a recording of the segment in question obtained from PM’s website,[1] submissions from the complainant and correspondence between the ABC and the complainant. Other sources have been identified where relevant.
  • The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations in clause 2.2 are set out at Appendix B.

Issue: Did the ABC present factual content in a way that would have materially misled the audience?

Finding

The ABCdid not breach clause2.2 of the Code.

Reasons

  • In determining whether the ABC has complied with clause 2.2 of the Code, the ACMA must examine the meaning conveyed by the relevant statement. This is to be assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. Courts have defined an ordinary, reasonable listener/viewer as:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener 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]

  • This assessment involves firstly looking at whether the relevant statement would have been understood by the ordinary reasonable listener as a statement of fact or an expression of opinion. Should a statement be categorised as a statement of fact, the ACMA is required, under clause 2.2, to examine whether or not the material would mislead the audience.
  • In this regard, a statement is to be evaluated in its context and the use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgement is required as to how the substantive nature of the statement would be understood by the ordinary, reasonable listener.
  • The relevant statement (in bold) was made by the reporter in the following context:

The ‘keeping them honest’ quip a reference to the Democrats and that Party's founder, Don Chipp, who said it was the Democrats role to keep the bastards honest. The Democrats were once considered the third force in Australian politics too, they're now extinct.

  • The ACMA considers that the ordinary, reasonable listener would have interpreted the phrase ‘they’re now extinct’ as fact given that the statement was made as an unqualified assertion. Accordingly, the statement is subject to the requirements outlined in clause 2.2 of the Code.
  • The ACMA must, accordingly, determine whether, in the context of the report as a whole, the reference to the Democrats being ‘extinct’ would have ‘materially’ misled the audience.
  • The ACMA notes that in accordance with the Code, clause 2.2 is to be interpreted “by reference to the likely audience expectations of the content”.
  • The first issue to determine is what the statement would have conveyed to an ordinary, reasonable listener.
  • The ACMA accepts the ABC’s submissions that the Segment dealt predominantly with the impending retirement of Mr Brown and that the Democrats were secondary to that issue. The ABC also argued that it was only in the context of a reference to the historical presence of a third political force (other than the two major parties)which served to “keep the bastards honest” that the statement was made.
  • The Macquarie Dictionary (Online) defines the word “extinct” as having come to an end”.The ACMA acknowledges that for some listeners it may not have been clear that the Reporter was making reference to the fact that the Democrats had merely lost all Parliamentary representation. Despite this, however, the ACMA considers that ordinary listeners ofPM would most likely be familiar not only with the Program’s format but also with the Australian political landscape. As such, the ACMA is of the view that ordinary, reasonable listeners of the Program would have most likely been aware of the fact that the Australian Democrats are still in existence, and that the Reporter’s comment was made solely in the context of the Democrats ceasing to be present as the third dominant force in Australian politics.
  • There is no dispute that the Democrats no longer hold any Parliamentary representation, as explicitly acknowledged by the complainant in his submissions. The ACMA is accordingly of the view that the statement would not have materially misled the ordinary, reasonable listener.
  • The ACMA is therefore of the view that the material complained about has not breachedclause 2.2 of the Code.

APPENDIX A – TRANSCRIPT OF THE SEGMENT, PM, 13 APRIL 2012

Presenter: It came from out of the blue. Bob Brown announced earlier today that he'd quit as leader of the Greens and leave the Senate in June.It marks the end of a 16-year federal political career and 30 years in public life.Senator Brown says he's been thinking about retiring since the last election in 2010, but that he made up his mind only recently while overseas.One of the reasons for leaving now, he says, is to allow for party renewal.And the party has wasted no time on that. Christine Milne is the party's new leader, Adam Bandt her deputy.Chief political correspondent, Reporter.
Reporter: Friday the 13th, not a day for superstition in Bob Brown's books, but the right day to stand aside to allow for renewal within the Greens.
Bob Brown: I'm of course very sad to go, but also happy to make way for the depth of talent that there is in the Greens parliamentary party. We're the centre of innovation in this Parliament.
Reporter: Senator Brown says he's been thinking about retirement since the last election, and that he recently decided "the time had come" at a Greens conference in Senegal.But it doesn't mean the 67-year-old will quit campaigning for the environment.
Bob Brown: I will be a Green until the day I die, if not for a long time after that.
Reporter: And as to a farewell valedictory speech in the Senate to talk about the highs and lows of his 16-years in the chamber, forget it, he says. That's not his style.
Bob Brown: You know I think there's too much cant involved in such things. I think a little bit more earnest honesty in parliamentary ranks would be a good thing.
Reporter: He was the first openly gay member of Federal Parliament and the first openly gay leader of an Australian political party. When he first joined the Senate in 1996, he was a lone senator. But He leaves the party now with nine Green senators, one member in the house of Reps and 1.7 million Australians voting for them in 2010. Some insiders worry about the party's electoral prospects without Bob Brown at the helm. But he says it's too early to write off the Greens.
Bob Brown: The Greens are on a trajectory to become a future government, and our job isn't to make the so and so's honest. It's to replace them. But that said, we're well versed in the every time there's a change of leadership with the Greens that's the end of them or we've plateaued or whatever. We continue to build.
Reporter: The ‘keeping them honest’ quip, a reference to the Democrats and that Party's founder, Don Chipp, who said it was the Democrats role to keep the bastards honest. The Democrats were once considered the third force in Australian politics too, they're now extinct. The Opposition leader, Tony Abbott thinks the Greens might have a hard time surviving too beyond Bob Brown.
Tony Abbott: I think he's had a role in respect of the Greens, a little bit like that of Don Chipp in respect of the Australian Democrats, and I think these will be turbulent times for the Greens.
Reporter: There won't be a change in the deal negotiated with the Prime Minister to form a minority government, as Senator Milne co-signed the agreement as deputy.The Prime Minister, Julia Gillard.
Julie Gillard: Clearly I don't see eye to eye with Senator Brown on a range of issues, but you'd have to say he's lived a life in Australian politics, an interesting life, a life starting with his environmental activism around the Franklin Dam and leading him all the way to the Senate and to leadership of a political party that he created; the Australian Greens.
Reporter: Now that Senator Milne is the party's new leader, she says she'll concentrate on forming and enhancing relationships with rural Australia, and progressive businesses.
Christine Milne: If ever the Greens were needed in Australian politics, in public life, in redefining the debate in Australia, it's now.We are currently seeing the biggest assault on the environment in Australia we've seen in a very long time. Not just because of climate change but because of the rapaciousness of the mining industry and the willingness of both the Liberal and Labor parties in Australia to cave in.
Reporter: Scott Ludlam, Sarah Hanson-Young and Adam Bandt nominated for the deputy's job. Mr Bandt was the successful candidate.
Adam Bandt: Well it's been a pretty big day. Didn't have any inkling that that was coming but it's been a bit of a whirlwind. But I reckon now we've got a pretty good team of Christine Milne and myself representing the bush and the city going into the next election.
Reporter: Senator Brown leaves Parliament before July the first, the day the carbon tax starts, a tax now reviled by so many.
Bob Brown: When it comes to July the first, I'm going to enjoy that as a citizen. It's a monumental breakthrough for this nation and for the world.
Reporter: And Mr Brown's partner, Paul Thomas, has the date circled on his calendar too.
Paul Thomas: But I'm looking forward to testing Bob's athleticism in some of the mountains of Tasmania. I'm also looking forward to him perhaps sharing a greater load of the household tasks (inaudible).
Bob Brown: Here comes the washing up.
(Laughter)
Paul Thomas: And also just having time to share as a couple.
Reporter: The party is yet to choose a replacement for Bob Brown's Tasmanian Senate spot.
Presenter: Chief political correspondent [Reporter].

APPENDIX B: CONSIDERATIONS WHICH THE ACMA HAS REGARD TO IN ASSESSING THE ABC’S COMPLIANCE WITH CLAUSE 2.2 OF THE ABC CODE OF PRACTICE 2011

Assessment of Factual accuracy

In determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

  • The assessment of factual accuracy is determined in the context of the segment in its entirety.
  • The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. A definition of the ordinary, reasonable listener/viewer is available at page 2 of this report.
  • The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.
  • The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.

In that regard, the relevant statement must be evaluated in its context , i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

  • Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.
  • While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that might amount to a breach of the clause.
  • In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.
  • The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.
  • Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion

ACMA Investigation Report 2818 – PM – Radio National –13 April 2012

[1]

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