Investigation Report No. 3063
File no. / ACMA2013/258Licensee / Harbour Radio Pty Limited
Station / 2GB
Type of service / Commercial Radio
Name of program / RayHadley Morning Show
Date of broadcast / 21 November 2012
Relevant Codes / Clauses 2.2(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2011
Date finalised / 21 February 2014
Decision / No finding in relation to clause 2.2(a) [accuracy in current affairs programs]
Breach of clause 5.5 [response to complaints]
The complaint
On 20 June 2013, the ACMA decided to commence an investigation into the program, the Ray Hadley Morning Show, broadcast on 21 November 2012 by Harbour Radio Pty Limited, the licensee of 2GB Sydney (the licensee).
The ACMA commenced the investigation following consideration of a complaint that the licensee broadcast inaccurate and misleading statements that ‘refugees who arrive by boat are illegals’.
That complaint was made prematurely in terms of section 148(c)(i) of the Broadcasting Services Act 1992 (BSA), and so was not a valid complaint under section 148 of the BSA. However, the ACMA decided to rely on its general investigation power under section 170 of the BSA[1] to investigate the licensee’s compliance with clauses 2.2(a) [accuracy in current affairs programs] and 5.5 [response to complaints] of the Commercial Radio Australia Codes of Practice 2011 (the Codes).
The program
The Ray Hadley Morning Show 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.[2]
It is a current affairs program for the purposes of the Codes.[3]
On 21 November 2012, Mr Hadley played an extract from an interview on Sky News[4] with Amnesty International’s Australian Refugee Coordinator (the Amnesty representative), in which the Amnesty representative commented on projected estimates for asylum seeker arrivals[5] by the then Department of Immigration and Citizenship (the Department)[6].
MrHadley prefaced the interview with a comment that the number of asylum seeker arrivals in the past 12 months had exceeded the Department’s monthly estimates:
Now, let me just preview what you’re about to hear by telling you that 30,057 people have arrived on our shores since this Government came to power in 2007, illegally – illegal economic refugees.
A transcript of the broadcast is at Attachment A.
Assessment
This investigation is based on submissions from the complainant and the licensee, the initial complaint made to the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources have been identified where used.
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[7].
In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn.
Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether or not that material has breached the Codes.
Issue 1: Accuracy
Relevant clause of the Codes
News and Current Affairs Programs
2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:
(a)factual material is reasonably supportable as being accurate;
[...]
Complainant’s submissions
The complainant submitted to the licensee in an online complaint form that:
The presenter RayHadley mentioned that refugees who arrive by boat are illegals. This is both inaccurate and misleading under the Code. Under the UNHCR Section 14 The Universal Declaration of Human Rights – Article 14 ‘Everyone has the right to seek and enjoy in other countries asylum from persecution...’
[...]
It is NOT illegal to seek asylum in other countries nor is it illegal to arrive without papers. This is [an] inaccurate representation from RayHadley.
Licensee’s submissions
The licensee explained in a submission to the ACMA that:
[...]
In essence, the presenter has described person[s] arriving by boat as illegal entrants.
[...]
The Migration Act 1958 provides unequivocal substantiation for a description of non-citizens arriving without visas in Australian waters by boat as unlawful non citizens.
[...]
The Macquarie Dictionary includes the following definition of unlawful:
- not lawful; contrary to law; illegal; not sanctioned by law
Clearly the terms ‘unlawful’ and ‘illegal’ are proximate, if not identical, in meaning – both from an ordinary usage and a legal perspective.
MrHadley’s description of non-citizens arriving without visas in Australian waters by boat as illegal is expressly supported by the Migration Act.
[...]
In our view, MrHadley’s use of the description ‘illegal’ is substantiated by Commonwealth legislation.
The licensee specifically referred to sections 5, 13 and 14 of the Migration Act 1958 (the Migration Act), in its submission, and these are reproduced at Attachment B.
The licensee also explained that the reference to the figure of 30,057 arrivals in the relevant statement was sourced from a media release issued by the Hon Scott Morrison MP, the then Shadow Minister for Immigration and Citizenship. This media release sets out data for the total number of asylum seeker arrivals since November 2007, and page one of the media release is reproduced at Attachment C.
Finding
The ACMA makes no finding in relation tothe licensee’s compliance withclause 2.2(a) of the Codes.
Reasons
Clause 2.2(a) of the Codes applies to the presentation of factual material in current affairs programs. Accordingly, the ACMA must first determine whether the relevant material amounts to factual material or the expression of an opinion. The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment D.
The ACMA notes that the talk-back format is a common feature of current affairs programs providing analysis, commentary and discussion with listeners about current social, economic or political issues. Such programs frequently approach matters from a strong viewpoint and the ACMA acknowledges that this is part of their appeal or value to listeners and in the broader context of public discourse.
In this context, much of what is said on talk-back radio will be in the nature of opinion. However, care must be taken where factual material forms the basis of the opinion expressed in a current affairs broadcast.
Where a current affairs talk-back program, such as the Ray Hadley Morning Show, includes factual material, clause 2.2(a) of the Codes requires that the licensee must use reasonable efforts to ensure that it is reasonably supportable as being accurate.
The ACMA is satisfied that the statement is factual material as it was made unequivocally, in the context of a discussion that included reference to specific figures and timeframes, and is capable of independent verification.
As factual material, the ACMA’s next consideration is whether or not reasonable efforts were made to ensure that the statement– which included two separate references to ‘illegal’ –was ‘reasonably supportable as being accurate’ at the time of broadcast.
What efforts are reasonable in a given situation will depend on all the relevant circumstances. Clause 2.2(a) does not impose an absolute or best efforts obligation to ensure factual material is reasonably supportable as being accurate, however the material relied upon to support the accuracy of a fact should be commensurate with the nature and context of the subject matter.
Use of ‘illegal’ with respect to asylum seekers generally
Potential to mislead
At the outset, the ACMA notes that the use of ‘illegal’ with reference to asylum seekers has the potential to be misleading. It may, depending on the context in which it is used, give listeners the false impression that asylum seekers have committed a crime by coming to Australia or that their presence in Australia is illegal, or even that their claim for asylum lacks validity.
As explained below, it is not illegal for a person to seek asylum in Australia.Australia is a signatory to the Refugee Convention,[8] and the Refugee Convention permits a person arriving in the territory of a signatory nation without authorisation to nonetheless seek asylum in certain specified circumstances.[9]
The ACMA is aware that a number of prominent publications caution against using the term ‘illegal’ in reference to asylum seekers. These publications include advisory guidelines issued by the Australian Press Council (the APC)[10] and a research paper from the Department of Parliamentary Services[11], which both caution against the use of ‘illegal’ as it may, in some contexts, imply a criminal offence.
In addition, the United Nations High Commissioner for Refugees does not use or encourage the use of the term ‘illegal’ in relation to asylum seekers, and the then Department of Immigration and Citizenship[12], at the date of broadcast, used the terms ‘irregular maritime arrivals’ and ‘unauthorised maritime arrivals’ in its publicly available information.[13]
The Migration Act
Under the Migration Act, persons who arrive in Australia without a visa are ‘unlawful non-citizens’ until such time as a visa is granted, whether the entry into Australia is for asylum reasons or otherwise.
Subsection 14(1) of the Migration Act defines ‘unlawful non-citizen’:
A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
Also, section 42 of the Migration Act provides that, subject to certain limited exceptions, ‘a non-citizen must not travel to Australia without a visa that is in effect’. As a result, it is contrary to section 42 of the Migration Act for a non-citizen to come to Australia without a valid visa.
The operation of the Migration Act means that the entry of non-citizens into Australia without a visa is not legally authorised.
Common usage
Theon-line Macquarie Dictionary defines:
‘illegal’ as ‘not legal; unauthorised’
‘unlawful’ as ‘not lawful; contrary to law; illegal; not sanctioned by law’ [emphasis added].[14]
While the ACMA notes that the Migration Act uses the term ‘unlawful’, the dictionary definitions indicate that ‘illegal’ and ‘unlawful’ are proximate in meaning and can be used interchangeably, and that ‘illegal’ does not necessarily impute criminality but can, depending on the context, also mean the absence of authorisation.
The on-line Macquarie Dictionary cites the term ‘illegal immigrant’ under its entry for ‘illegal’ as an example of colloquial Australian usage.
The ACMA notes that this suggests that the use of ‘illegal’ with respect to unauthorised immigrants has entered the Australian vernacular.
Although the on-line Macquarie Dictionary cites ‘illegal immigrant’ as an example of colloquial usage, it is not interchangeable with phrases such as ‘illegal boat people’ or ‘illegal’ asylum seekers. In particular, ‘illegal immigrant’ is broader in meaning and includes people who enter Australia lawfully (that is, with a visa) but overstay their visa:
an immigrant to a country who is deemed to be illegal because they have arrived without prior authority from the government of that country, as in the form of a visa, or because they have stayed beyond the time allowed by their visa.[15]
Refugee Convention
The Refugee Convention is ‘the key legal document in defining who is a refugee, their rights and the legal obligations of states’[16] and specifically refers to the ‘illegal entry’ of refugees who enter a territory without authorisation.
Article 31 of the Refugee Convention provides:
- The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
[...]
While the Codes do not contain guidelines on the portrayal of asylum seekers, the ACMAconsiders licensees should exercise care when broadcasting factual material about this complex and sensitive topic.
Use of ‘illegal’ in the broadcast
MrHadley’s reference to asylum seekers arrivals as ‘illegal’ (in bold) was made in the following context:
Ray Hadley: Well, [Amnesty representative], I’ve been waiting to do this for a little while and seeing you stuck your head up yesterday by going to Nauru, I thought I’d do it. We go back in time to last year, in fact we go back to the 14th of October which I think was a Friday. Between 7.36 and 7.37, [Amnesty representative] from Amnesty International appeared with [Sky News reporter] on Sky News. Now, let me just preview what you’re about to hear by telling you that 30,057 people have arrived on our shores since this Government came to power in 2007, illegally – illegal economic refugees. However, the vast majority of them have arrived in the last 10 and a half months. 15,000 or more have arrived since January 1 up until today November 21 – 15,000.
In the broadcast, Mr Hadley used variants of ‘illegal’ on two occasions: once in reference to the specific number of asylum seeker arrivals since 2007, and once before the term ‘economic refugees’. The ACMA considers that these two separate uses could potentially convey different meanings to an ordinary, reasonable listener.
‘Illegal’ with reference to the number of asylum seeker arrivals
The ACMA considers that the statement ‘30,057 people have arrived on our shores since this Government came to power in 2007, illegally’would have conveyed to an ordinary, reasonable listener that 30,057 persons arrived in Australia illegally – that is, without lawful authorisation – since the Government came to power in 2007.
In this instance, the ACMA considers that ‘illegal’ was usedto describe the circumstances of asylum seekers' arrival without authorisation and was clearly a comment on the lawfulness of their arrival in Australia.
‘Illegal’ with reference to ‘economic refugees’
The ACMA considers that the broadcast was also capable of conveying information about the validity of the asylum seekers’ claims for asylum, due to the inclusion of the term ‘economic refugee’.
In this regard, the ACMA notes that ‘economic refugee’ is a colloquial term, not a ground for obtaining refugee status[17]. It is used colloquially to undermine the validity of an asylum seeker’s claim for asylum and is defined in the on-line Macquarie Dictionary as:
someone who flees their own country and tries to gain residency in another country because they seek better living conditions, rather than because they have suffered persecution or the effects of war.[18]
The ACMA also makes these observations about the use of ‘illegal’ with reference to ‘economic refugees’ in the context of the broadcast:
The overall subject matter of the broadcast was the number of asylum seeker arrivals in Australia, and the difference between the Government’s projected figures and the actual number of arrivals.
While the reference to ‘illegal economic refugees’ could be interpreted as a statement regarding the legitimacy of claims for asylum (including in relation to some people whose claims would have been successful), there was no subsequent detailed discussion about the legitimacy of their claims for asylum – neither Mr Hadley nor the Amnesty representative discussed the broader topic of why people seek asylum or the validity of their particular claims for asylum.
Conclusion
The complainant submitted that the use of ‘illegal’ in the broadcast was factually inaccurate because ‘it is NOT illegal to seek asylum in other countries nor is it illegal to arrive without papers’.
The licensee submitted that it discharged its reasonable efforts obligation with respect to clause 2.2(a) of the Codes, by relying onthe Migration Act and the Macquarie Dictionary.
Having regard to the Migration Act, the Refugee Convention and common usage,where an ordinary, reasonable listener would understand ‘illegal’as describing the circumstances of an asylum seeker’s arrival without authorisation, the use of the term ‘illegal’ is reasonably supportable.
However,if an ordinary, reasonable listener would understand ‘illegal’ as describing a person’s ability to seek asylum orthe validity of their claim for asylum, the ACMA considers that the term would not be reasonably supportable as accurate.
In the case of the broadcast, the inclusion of ‘illegal’ with reference to ‘economic refugees’ increased the potential of the broadcast to be misleading. The meaning conveyed by the broadcast was ambiguous due to the two separate uses of ‘illegal’, one in reference to the arrival of asylum seekers, and one in reference to ‘economic refugees’.
Given the lack of clarity over the meaning conveyed by ‘illegal’ in the context of the broadcast, and the pre-existing public debate about the use of terminology regarding asylum seekers, the ACMA makes no finding with respect to the licensee’s compliance with clause 2.2(a) of the Codeson this occasion. Nevertheless, the ACMA considers that the term ‘illegal’ with reference to asylum seekers should be used only with great care, due to its dependence on context.
Issue 2: Complaints handling
Relevant clauses of the Codes
Complaints
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.
[...]
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.