Investigation Report No. 2848
File No. / ACMA2012/1025Licensee / Festival City Broadcasters Pty Ltd
Station / 5AA
Type of Service / Commercial Radio
Name of Program / Bob Francis
Dates of Broadcasts / 4 and 6 June 2012
Relevant Code / Clauses 1.1(e), 1.3(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.
Decision / · No breach of clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 4 June 2012 broadcast.
· No breach of clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2011 in relation to 6 June 2012 broadcast.
· Breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to 4 June 2012 broadcast.
· Breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to 6 June 2012 broadcast.
· Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011.
The complaint
On 19 July 2012, the Australian Communications and Media Authority (the ACMA) received a complaint about material broadcast on the program, Bob Francis, by Festival City Broadcasters Pty Ltd, the licensee of 5AA (the licensee).
The complainant was concerned that certain comments made by Mr Francis in relation to asylum seekers on 4 June 2012 were ‘grotesque, inappropriate’ and ‘indefensible’; and that comments made by Mr Francis in a subsequent program (of 6 June 2012) directed at a journalist who reported on those comments, were ‘offensive’.
In relation to the complaint regarding the 6 June 2012 broadcast, the licensee questioned whether the complainant had heard the broadcast: ‘It appears that the complainant has taken the quote used in his letter from a subsequent article in [the newspaper], not from the actual broadcast. It is unclear whether the complainant ever actually heard the broadcast’.
However, clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 (the Codes) does not require that the complainant establish that he heard the broadcast in order to submit a complaint about the broadcast material. Nor is there a requirement in either the Broadcasting Services Act 1992 (the Act) or the Codes for complainants to have listened to the actual broadcast. Moreover, under sections 148 and 149 of the Act, the ACMA ‘must investigate’ all code complaints made to it:
which have first (validly) been made to the broadcaster; and
in respect of which the complainant either received no response from the broadcaster within 60 days, or received a response from the broadcaster that the complainant considers inadequate.
The licensee has submitted that the complaint in relation to the program of 6 June 2012 did not sufficiently identify the broadcast as it did not include the date of the broadcast. The ACMA does not accept this. The only relevant requirement specified in the Codes is that a complaint must adequately identify the material broadcast about which the complaint is made. The complainant did this by quoting the material broadcast about which he wished to complain. It would have been apparent that the comments quoted in the complaint were made in a Bob Francis program broadcast after 4 June 2012, and after an article appeared in The Australian newspaper (the newspaper) criticising the remarks in the program of that date.
The ACMA considers that the date of the later program would have been readily ascertainable by putting the quoted remarks to Mr Francis or his producer and asking when they were broadcast. The ACMA considers that the written complaint to the licensee adequately identified the material broadcast that was the subject of the complaint by quoting that material, and doing so in a context which made the date of broadcast of that material relatively easy for the licensee to ascertain.
The investigation has considered the licensee’s compliance with clauses 1.1(e) [proscribed matter], 1.3(a) [standards of decency] and 5.5 [complaints handing] of the Codes.
The program
Bob Francis is a talk-back, current affairs program presented by Bob Francis and broadcast on weeknights between 8:00pm and 12:00am on 5AA in Adelaide.
Broadcast of 4 June 2012
On 4 June 2012, Mr Francis made the following comment about asylum seekers who arrive in Australia by boat:
8:50pm: What’s that got to do with the bloody people jumping over the boat people? Bugger the boat people, I say. As far as I’m concerned I hope they bloody drown out there on their way over here! They’re not welcome. In my opinion, they are not welcome here.
Broadcast of 6 June 2012
On 6 June 2012, an article criticising Mr Francis’s comment was written by a female journalist and published in the newspaper. Mr Francis made the following comments about the journalist, including those quoted in the letter of complaint to the licensee:
9:55pm: Yes, this is Egyptian born, Bob Francis. I make that remark because some smart-arse, dickhead woman, [name and job title of journalist], wrote me up in the paper this morning saying, ‘Egyptian born Francis’. Why the hell you said that, you dickhead, I don’t know.
[...]
11:07pm: Can you believe that bloody bitch in [the newspaper] wrote that I was ‘Egyptian born’! What the hell that had to do with the story? I’m buggered if I know. [...] But I think she was having a go at me saying, you know, Egyptian born so he was probably an immigrant himself and why does he want the people to die from coming over, the boat people.[...] In her bum!
[...]
Also in the same program the following comments of a similar character relating to the journalist’s criticism of the broadcast on 4 June 2012 were made by Mr Francis:
9:08pm: The Egyptian born Francis? What did that have to do with the whole bloody story? Are you trying to make out that I have some Egyptian background in me and I shouldn’t have been talking about the boat people? You wanker, [name of journalist]! I don’t know who the hell you are but I’d be very prepared to give you my mobile telephone number so that whenever you grab a story like that you don’t need to go to anybody else for a comment. You can take it from me and I’ll give you the mobile number. You hear me!
[...]
11:09pm: Tell her to go to buggery for me!
Relevant extracts from the broadcasts are at Attachment A.
Assessment
The assessment is based on:
a recording of the broadcasts provided to the ACMA by the licensee;
the complainant’s submission (Attachment B);
the licensee’s submission (Attachment C); and
publicly available information, the source of which is identified where relevant.
Ordinary, reasonable listener
In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable listener’. That is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.
Australian courts have considered an ‘ordinary, reasonable' reader (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[1].
The ACMA 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 Codes.
Issue 1: Proscribed matter
Relevant Clause of the Codes
Clause 1.1(e) of the Codes relevantly provides:
Proscribed matter
1.1 A licensee must not broadcast a program which, in all of the circumstances:
[...]
1.1 (e) is likely to incite hatred against, serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.
The principles applied by the ACMA in assessing content against the obligation in clause 1.1(e) of the Codes are set out at Attachment D.
Finding
In relation to the broadcast of 4 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.
In relation to the broadcast of 6 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.
Reasons
In order for a breach of clause 1.1(e) of the Codes to have occurred, the ACMA must be satisfied that Mr Francis’s comments:
1. identified a person or group of persons with an attribute referred to in clause 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.
Broadcast of 4 June 2012
Relevant person or group of persons
The ACMA is satisfied that Mr Francis’s comments were intended to refer to a group of persons, namely, people who arrive in Australia by boat seeking asylum.
Relevant attribute
The ACMA notes that the potential relevant attributes of this group for the purposes of clause 1.1(e) of the Codes include ethnicity, nationality and race. The persons were not identified as being of any particular nationality, race or ethnic group. However, the ordinary, reasonable listener would understand ‘boat people’ to refer to people of several nationalities, races or ethnic origins who commonly arrive in Australia by boat seeking asylum.
However, although Mr Francis referred to ‘boat people’ it is not clear that his negative comments were made on the basis of any shared attribute of ethnicity, nationality or race for the purposes of the clause. Rather, considered in context, his comments appear to be made because of a shared ‘action’ by the group - namely undertaking travel to Australia by boat in order to seek asylum.
Accordingly, in relation to the broadcast of 4 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.
Broadcast of 6 June 2012
Relevant person or group of persons
The ACMA is satisfied that Mr Francis’s comments were intended to refer to a specific journalist who had written a news piece about Mr Francis’s comment regarding asylum seekers. Mr Francis identified the journalist by name, job title and employer on four separate occasions.
Relevant attribute
The ACMA has reviewed the entire program of 6 June 2012, including the comments identified by the complainant and comments of a similar character arising from the program of 4 June 2012. Mr Francis made the following remarks regarding the journalist, including those identified in the complaint:
You wanker, [name of journalist].
Some smart-arse, dickhead woman, [name of journalist], South Australian political reporter for [the newspaper], wrote me up in the paper this morning [...].
Why the hell you said that, you dickhead, I don’t know.
Can you believe that bloody bitch in [the newspaper] [...].
In her bum.
Well, tell her to go to buggery for me!
The ACMA notes that the potential relevant attribute for the purposes of clause 1.1(e) of the Codes is gender.
While the ACMA considers the words used by Mr Francis to be very coarse and demeaning, the ACMA does not consider that he placed an undue emphasis on female gender-specific words.
In the context of the program of 6 June 2012 as a whole, the ACMA does not consider that Mr Francis’s negative comments were made on the basis of the journalist’s gender, for the purposes of clause 1.1(e) of the Codes.
Accordingly, in relation to the broadcast of 6 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.
Issue 2: Generally accepted standards of decency
Relevant Clause of the Codes
Program Content and Language, including Sex and Sexual Behaviour
1.3 (a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.
1.3 (b) For the purposes of determining:
(i) the audience of the relevant program; and
(ii) the demographic characteristics of that audience,
regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).
Finding
In relation to the broadcast of 4 June 2012, the ACMA finds that the licensee breached clause 1.3(a) of the Codes.
In relation to the broadcast of 6 June 2012, the ACMA finds that the licensee breached clause 1.3(a) of the Codes.
Reasons
Generally accepted standards of decency
Clause 1.3(a) requires the ACMA to consider the meaning of the phrase ‘generally accepted standards of decency’.
The objects of the Broadcasting Services Act 1992 (the BSA) include the promotion of the availability of a diverse range of radio services to audiences throughout Australia[2]. Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.
Diverse audiences in Australia will not have everyday tastes and standards in common. Members of the community may accept that some material that they find coarse or offensive would not be similarly judged by others. People tend to accept, up to a point, the right of others to have such material broadcast during programs to which they listen.
The ACMA considers that the term ‘generally accepted standards of decency’ refers to the current consensus of recognised present day standards of propriety. Such standards are not hard and fast either over time or across all sections of the community. Determining the current consensus of recognised present day standards of propriety is not an easy task. In this regard some guidance is provided by the courts which have said when considering whether material is indecent, regard should be had to a ‘multicultural, partly secular and largely tolerant if not permissive society’[3].