Investigation Report No. 3324
SummaryFile no. / ACMA2015/142
Licensee / Peedac Pty Ltd
Station / 6NME – Noongar Radio
Type of service / Community Radio
Name of program / Unna You Fullas
Date of broadcast / 16 December 2014
Relevant code / Code 3.3 of the Community Radio Broadcasting Codes of Practice 2008
Code 7.3(c) of the Community Radio Broadcasting Codes of Practice 2008
Investigation conclusion
The Australian Communications and Media Authority concludes that Peedac Pty Ltd:
did not breach Code 3.3 [stereotype, incite, vilify or perpetuate hatred against a group on the basis of ethnicity or race]
breached Code 7.3(c) [respond in writing to complaint within 60 days]
of the Community Radio Broadcasting Codes of Practice 2008.
Background
In March 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint received on 23 February 2015 about the broadcast of Unna You Fellas by the licensee of 6NME, Peedac Pty Ltd.
The complainant alleged that, at approximately 7.15am on 16 December 2014, the licensee broadcast a program which included racist comments. In addition, the complainant stated that the licensee did not provide him with a response to his complaint, which he had lodged on 16 December 2014.
The program has been assessed in accordance with Code 3.3 of the Community Radio Broadcasting Codes of Practice 2008.
The licensee’s handling of the complaint has been assessed in accordance with Code 7.3(c) of the Community Radio Broadcasting Codes of Practice 2008.
The program
Unna You Fellas is a segment of the Big Noongar Brekkyprogram, broadcast on 6NME between 7.00am and 9.00am, Monday to Friday.[1]
A transcript of the segmentis at Attachment A.
The service
6NME commenced providing a licensed community radio broadcasting service in August 2009, representing the Aboriginal community interest in the Perth RA1 licence area in Western Australia. The current licence is due to expire on 21 January 2018.
Submissions
The complainant’s submissions are at Attachment B and the licensee’s submissions are at Attachment C.
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.
In assessing content against the Community Radio Broadcasting Codes of Practice 2008 (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’ listener 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, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).
Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.
Issue 1: Did the licensee broadcast material that was likely to stereotype, incite, vilify or perpetuate hatred against a group on the basis of ethnicity or race?
Relevant Codes provision
The ACMA has investigated the broadcast material against the following provision of the Codes:
3.3We will not broadcast material that is likely to stereotype, incite, vilify, or perpetuate hatred against, or attempt to demean any person or group, on the basis of ethnicity, nationality, race, language, gender, sexuality, religion, age, physical or mental ability, occupation, cultural belief or political affiliation. The requirement is not intended to prevent the broadcast of material which is factual, or the expression of genuinely held opinion in a news or current affairs program or in the legitimate context of a humorous, satirical or dramatic work.
Finding
The licenseedid not breach code 3.3 of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
For there to be a causal link between a relevant attribute (ethnicity or race) and the action complained of (stereotyped, incited, vilified, or perpetuated hatred against), a group must be identifiable. While identification can be achieved either explicitly or implicitly, the identity of the group should be clear to the ordinary, reasonable listener. The complainant was of the view that “every other Australian that isn’t Aboriginal” is identifiable as a group.
A review of the broadcast shows that there is no explicit identification of a group other than “our people” or “Aboriginal people”. In the context of the discussion, these explicit references were being made to the Noongar people specifically or Aboriginal Australians more generally. Explicit identification of Aboriginal people in the broadcast is made in the context of references to “the tragedies and massacres and disparities of our people since colonisation”.
The identification of non-Aboriginal Australians is implicit in the broadcast. In the context of the discussion, the implicit identification of non-Aboriginal Australians was made through references to “colours” as well as in statements such as “the trauma that Australians are experiencing now, but think about the trauma our own people have had for the past 200 years”. However, the term ‘non-Aboriginal Australians’ only has meaning in contradistinction to ‘Aboriginal Australians’. To the extent that it can be thought of as a group, ‘non-Aboriginal Australians’ consists of a poly-ethnic mix of communities, who may have been associated with the processes of colonisation, but is arguably too amorphous to be subject to the action complained of.
If a group were to be sufficiently identifiable, the ACMA also considers whether ordinary, reasonable listeners would have understood that they were being urged, stimulated or encouraged to share or maintain feelings of hatred against the group on the basis of their relevant attribute.
Conduct that merely conveys a person’s own feelings of hatred will not be enough to incite or provoke those same feelings in ordinary, reasonable listeners:
There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[3]
In this case, none of the presenters in the segment used inflammatory language to express hatred towards non-Aboriginal Australians on the basis of their ethnicity or race. To the extent the segment contained implicit references to non-Aboriginal Australians, they were mild in tone and not so aggressive, strong, intense or inflammatory to have been considered likely to have stereotyped, incited, vilified, or perpetuated hatred against, or attempted to demean non-Aboriginal Australians on the basis of their ethnicity or race.
The segment contained no explicit terms of condemnation or engagement with ordinary, reasonable listeners that would have been understood as urging, stimulating or encouraging them to share feelings of hatred against non-Aboriginal Australians on the basis of their non-Australian ethnicity or race. It is noted that the discussion was of a topic of the day that affected all Australians, broadcast on a station that represents the Aboriginal community interest, where ordinary, reasonable listeners could expect to hear explicit references to “our people” and “Aboriginal people”.
Issue 2: Did the licensee respond in writing to the complaint within 60 days of receipt?
Relevant Codes provision
The ACMA has investigated the matter against the following provision of the Codes:
7.3(c) We will ensure that complaints will be responded to in writing within 60 days of receipt, as required by the Act […]
Finding
The licensee breached code 7.3(c) of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
The licensee has acknowledged that it did not respond in writing to the complaint within 60 days of receipt.
Attachment A
Transcript of Unna You Fellas broadcast by 6NME at 7.05am on16 December 2014
MALE PRESENTER 1: Aliwa. Good morning (indistinct) city (indistinct)
KATHY: Good morning, good morning.
MALE PRESENTER 1: (indistinct)
MALE PRESENTER 2: Good morning.
MALE PRESENTER 1: Jimbo and Kathy.
KATHY: Hello.
MALE PRESENTER 2: Unna You Fellas - - -
MALE PRESENTER 1: Unna You Fellas.
MALE PRESENTER 2: - - - the program. Noongar Radio, 100.9FM, and digital Noongar Radio it is.
MALE PRESENTER 1: We're talking colours today.
MALE PRESENTER 2: Colours?
MALE PRESENTER 1: Colours, yeah.
MALE PRESENTER 2: Colours.
KATHY: Cool.
MALE PRESENTER 1: Red, white and blue.
MALE PRESENTER 2: Red, white and blue?
MALE PRESENTER 1: Black, red and yellow.
KATHY: Red, black and yellow.
MALE PRESENTER 2: Isn't ours green and gold, and red, black and yellow?
MALE PRESENTER 1: Well, let's talk about green and gold, because Australia's probably stunned a little now under the circumstances that have evolved in the last 24 hours.
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: And people are traumatised.
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: And that's a fair cop. It's a fair cop. People are traumatised because of - - -
MALE PRESENTER 2: Yes.
MALE PRESENTER 1: - - - this little terrorism that's occurred with someone who's probably had a mental illness - - -
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: - - - and a history of sexual abuse.
MALE PRESENTER 2: We're certainly going to hear a lot more about the type of person as they look into this event. The prime minister called it an incident, but it's certainly a big event in Australian history. Incredible stuff. How would you be, you know, just going into your local store for a coffee and you get involved in this?
KATHY: Yes.
MALE PRESENTER 1: There's some fairly incriminating stuff that's coming to hand too, you know. I mean, a magistrate put him on bail - - -
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: - - - because the magistrate believed him that ASIO was setting him up.
MALE PRESENTER 2: Mm.
KATHY: Wow.
MALE PRESENTER 1: He said he's being setting up, so therefore he's out on bail. So there would be certain magistrates now will be thinking, "Well, how and why did I do this?"
MALE PRESENTER 2: Yeah, but that's - - -
MALE PRESENTER 1: You can't allow this person to - - -
MALE PRESENTER 2: Don’t they react to what's presented in front of them?
MALE PRESENTER 1: They do, they do. So I think there's going to be implications because of that. But I think my point is too, let's not get too carried away with the trauma that Australians are experiencing now, but think about the trauma our own people have had for the past 200 years - - -
MALE PRESENTER 2: Yes.
MALE PRESENTER 1: - - - and what might come of this as far as compensation, as far as - a couple of people have been killed, sadly.
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: There are people that have been very traumatised, not just people that were physically involved and sitting in the room with this madman, but everybody who's listened to it and seen it on the news unfold would also be traumatised by it, and I would imagine there would be people from a whole range of different backgrounds who would be seeking some consolation and talking it out with people. You know, debrief is very important.
MALE PRESENTER 2: Are you heading to a point where you're suggesting that terrorism has arrived on our doorstep, but in actual fact - - -
MALE PRESENTER 1: It's been here for 200 years.
MALE PRESENTER 2: - - - terrorism has been here for 200 years.
MALE PRESENTER 1: Yeah, I guess that's my point.
MALE PRESENTER 2: Those - - -
MALE PRESENTER 1: That's why I'm thinking, you know - - -
MALE PRESENTER 2: The boat people came along.
MALE PRESENTER 1: - - - a lot of Aboriginal people (indistinct)
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: Look, a lot of Aboriginal people - let's face it, a lot of our mob would've watched the news this morning.
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: A lot of people would've been glued to the set last night, thinking, oh, my god, how is this happening, and forgetting our past, forgetting the trauma that our parents and grandparents have lived with for so long, and it's been with us for so long. So let's not forget that, and I'm reminded of the book by Bruce Elder, Blood on the Wattle, which talks about the tragedies and massacres and disparities of our people since colonisation. I'm reminded that there were only 1500 Noongars in the early part of last century after several sad baits of influenza, apparently. So 4,500 people apparently died of influenza. You have to ask the question, did our people die of influenza - - -
MALE PRESENTER 2: Okay.
MALE PRESENTER 1: - - - or was there terrorism around the place then? That's an interesting thing to think about, isn't it?
KATHY: I was glued watching it, thinking, what is happening here, but I also think, you know, over in those eastern countries this happens all the time.
MALE PRESENTER 1: And I see a man of colour was dragged out. He wasn't dragged out. He fell over. He was consumed with trauma and grief - - -
KATHY: Yeah.
MALE PRESENTER 1: - - - after he was set free, and I would imagine that he would've experienced that before. I'm, you know, making assumptions here, because I saw his skin colouring and maybe that he has - you know, he looked, I guess, Indian or Pakistani, maybe, I don't know, but anyway, let's not make assumptions, and let's not let it get under your skin, hey.
KATHY: Good idea.
MALE PRESENTER 1: Well - - -
MALE PRESENTER 2: Yeah.
MALE PRESENTER 1: - - - not at this point.
MALE PRESENTER 2: But also, I don't know - yeah, I'm not so sure about tying that into the last 200 years thing, you know. I mean, that's like taking advantage of a situation, you know. Prime ministers do that, you know. Our prime minister, Tony Abbott, will be sort of enjoying the response to what he and the government did and all that sort of stuff at the moment and his approval rating will go up a bit.
MALE PRESENTER 1: Mm.
MALE PRESENTER 2: Yeah, but anyway - - -
MALE PRESENTER 1: Yeah. Yeah, another side to it. It's a bit like Anzac, isn't it? But we won't go there because you agreed with that when we talked about that subject. Let's hear a dance song.
SECTION OF BROADCAST CONCLUDE
Attachment B
Complainant’s submissions to the licensee
As a listener to your radio station, I am deeply disappointed and disgusted at the comments broadcast this morning 16/12/14 at 7.15am regarding the hostage outcome in Sydney.
It was commented that “It is sad that two people were killed but this sort of thing has been happening to us for over 200 years”
What sort of comment is that, to be broadcast out across the airwaves.
I am appalled that you employ people that could say things like that, full stop!!
I have always been supportive of aboriginal rights and reconciliation, and up until this morning supported them 100% … Not now.
I feel insulted and disgusted that I, and every other Australian who isn’t Aboriginal, has been portrayed as terrorists against the Aboriginal race.
I thought that this country is trying to move forward as one, but it seems that if this is the opinion of your staff, then they aren’t interested in trying to heal old wounds.
Being in the public spot light like they are, they should learn to keep their opinions to themselves on something as delicate as this and not broadcast it.
I for one expect a full apology and will not be listening to your radio station until I do.
Furthermore, if I don’t receive a response from your department within 60 days I will be lodging a complaint with the Australian Communications and Media Authority.
Complainant’s submissions to the ACMA
On the day of the Martin Place siege, the announcers of this radio station made completely inappropriate remarks regarding the deaths of the hostages and what the aborigines have had happened [sic] to them in the past. Please find email that I sent to the radio station on the morning of the day in question.
Attachment C
Licensee’s submissions
In reading the transcript and having listened to the audio I draw a conclusion that it'sunderstandable the complainant became upset by a conversation on Noongar Radio 16December 2014. I also acknowledge I should have responded to this written complaint within the 60 day time limit.
Broadcasters on the day became involved in a conversation about the Lindt Café hostagesiege. We were expressing views and Broadcaster One tied the conversation into contacthistory of Noongar people and non - Aboriginal Australians. I believe this is the basis for thecomplaint from <the complainant>.
The view expressed by Broadcaster One is his genuinely held belief as he is an advocate forthe stolen generation of forced removal of Aboriginal children. He works with stolengeneration people daily in a repatriation advocacy role and so their plight is foremost in hismind. Broadcaster One was making a point which is genuinely believed by him and the majorityof our primary listeners that Aboriginal people have been dealing with terrorism in over 200 years ofhistory. I do not believe it was meant to offend.
Noongar Radio is an Aboriginal radio station and broadcasters from time to time express aview that is Aboriginal centric which may well offend the casual listener. The viewsbroadcast on this broadcast service is a forum for discussion of issues from our perspective.Noongar Radio is in many ways the voice for Aboriginal people in Perth yet at the same timewe recognize we have a large listening audience made up of people from many backgroundsincluding those overseas and our aims have always been to be inclusive rather thanexcluding. Inexperienced broadcasters may concentrate on one section of the listeners at the expense of the total audience.
Noongar Radio welcomes several current broadcasters and volunteers from a whiteAustralian background. My attitude is if a member of the public wants to volunteer theirtime and are experienced broadcasters we welcome them into this family. We needlisteners like the complainant to stay with us and to listen and to understand our issues and theneed for our own radio licence in which to broadcast. This is the first complaint of this typewe have had to deal with.
By way of responding to the second part of this complaint in relation to Code 7.3 c is a misjudgementon my part as Station Manager. Correct procedure of responding to any complaints in writing werenot followed on this occasion but will be in future.
ACMA Investigation Report—Unna You Fellas broadcast by 6NME on 16 December 2014
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[1] accessed on 30 April 2015.
[2]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.
[3]Trad v Jones & anor(No 3) [2009] NSWADT 318 at [61].