Investigation Report No. BI-125
SummaryFile no. / ACMA BI-125
Broadcaster / Australian Broadcasting Corporation
Station / ABC
Type of service / National broadcasting service (television service)
Name of program / Four Corners
Date of broadcast / 19 October 2015
Relevant code / ABC Code of Practice 2011 (revised in 2014)
Standard 7.1 [harm and offence]
Standard 7.2 [warnings]
Date finalised / 16 December 2015
Decision / No breach of standard 7.1 [harm and offence]
No breach of standard 7.2 [warnings]
Background
In November 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation about Four Corners broadcast on ABC by the Australian Broadcasting Corporation (the ABC) on 19 October 2015.
The investigation was commenced in response to a complaint that the program included coarse language that was not acceptable for prime time viewing.
The program has been assessed in accordance with standard 7.1 [harm or offence] and standard 7.2 [warnings] of the ABC Code of Practice 2011 (revised in 2014) (the Code).
The program
Four Corners is a current affairs program, described on the ABC website as:
Four Corners is Australia's premier television current affairs program.
It has been part of the national story since August 1961, exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures.
Its consistently high standards of journalism and film-making have earned international recognition and an array of Walkleys, Logies and other national awards. […] [1]
The program is usually presented on ABC at 8.30pm on Monday nights and is repeated on Tuesdays at 10.00 am and Wednesdays at midnight and on ABC News24 at 8.00am.
On 19 October 2015, the program presented a story about the relationship between Kathy Jackson, former National Secretary of the Health Services Union (HSU), and Michael Lawler, Vice President of the Fair Work Commission. It was set within the broader context of a recent Federal Court findingmade against Ms Jackson, inwhichshe was ordered to pay$1.4 million in compensation to the HSU for misappropriating funds, and pending policeinvestigations into whether they have benefited from misappropriated union funds.
The programconsisted mainly of accounts given by Ms Jackson and Mr Lawler about their relationship and current troubles.
A transcript of the program is at Attachment A.
Submissions
The complainant’s submissions are at Attachment B and the ABC’s submissions are at Attachment C.
Assessment
This investigation is based on submissions from the complainant and the ABC, as well as a copy of the broadcast. Other sources used have been identified where relevant.
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, visual imagesand any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer (or listener).
Australian courts have considered an ‘ordinary reasonable’ viewer (or 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]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.
Issue:Harm and offence
Relevant standards
7.1Content that is likely to cause harm or offence must be justified by the editorial context.
7.2Where content is likely to cause harm or offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of classification labels or other warnings or advice.
The Code requires that standards are interpreted and applied in accordance with relevant Principles, including:
The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. This involves a willingness to take risks, invent and experiment with new ideas. It can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and to fulfilling the ABC’s function to encourage and promote the musical, dramatic and other performing arts. The ABC acknowledges that a public broadcaster should never gratuitously harm or offend and accordingly any content which is likely to harm or offend must have a clear editorial purpose.
The ABC potentially reaches the whole community, so it must take into account community standards. However, the community recognises that what is and is not acceptable in ABC content largely depends upon the particular context, including the nature of the content, its target audience, and any signposting that equips audiences to make informed choices about what they see, hear or read. Applying the harm and offence standard, therefore, requires careful judgement. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.
Finding
The ABC did not breach standards 7.1 and 7.2 of the Code.
Reasons
The complaint concerns coarse language used by Mr Lawler during the broadcast. The complainant submitted that it was not appropriate for prime time viewing and that despite the warning at the beginning ‘no one was expecting the words used by Michael Lawler’.
The ABC responded to the complainant:
the introduction included a clear and unmistakeable warningabout language
strong language was presented in context and was not used gratuitously
Mr Lawler used the term in relation to himself and it was not used aggressively or as an insult
the program’s target audience is mature
given the nature of the program and the warning of extremely coarse language, the content was within the expectations of its target audience.
Standard 7.1
In assessing compliance with standard 7.1, the ACMA asks:
Does the material have the intrinsic capacity to cause harm or offence?
What factors are there moderating any harm or offence?
What is the editorial context?
Does the editorial context justify the likely harm or offence?
Does the material have the intrinsic capacity to cause harm or offence?
The program contained several instances of coarse language, specificallythe words ‘bullshit’, ‘bloody’, ‘fuck’ and ‘cunt-struck’, which were used by Mr Lawler.
The Macquarie Dictionary defines coarse (when used in conjunction with language) as being ‘rude or offensive’.[3] As such, coarse language has an intrinsic capacity to cause offence.
What factors are there moderating any harm or offence?
The ACMA notes that the terms ‘bullshit’ and ‘bloody’are in common usage in contemporary Australian vernacular. Here the terms were used by Mr Lawler either as an exclamation or intensifier in response tothe reporter’s question as to whether he is attempting to cover up his own wrongdoing (‘that’s bullshit’) and as a description of his current situation (‘it’s a bloody nightmare’).
Theword ‘fuck’ was used within this context as a colloquialexclamation or intensifier. In this case, Mr Lawler used the term twice. Once when speaking with Ms Jackson about their relationship and the other in a recorded conversation with his friend and mentor, Mr David Rofe, aretired QC. The use of the word was neither aggressive nor frequent in context.
The word ‘cunt’ is, depending on the context of its usage,usually considered to be, at least,strong coarse language. It was used once when Mr Lawler conveyed how he believed the public would perceive his relationship with Ms Jackson:
I'll be characterised as that scumbag, crook, fraudster and, at the very best, somebody who's been bewitched by an evil harridan, namely Kathy; that I'm cunt-struck and that I have been utterly, um, taken in by somebody who is a serious crook.
The Macquarie Dictionary provides the following definition for the term ‘cunt-struck’:
adjective Colloquial (taboo) infatuated with a woman or women.[4]
The coarse language used by Mr Lawler in the program was not directed at another person in a way that was intended to insult or offend that person. Rather, the coarse language was used in a colloquial sense either as an exclamation or intensifier to convey his views on allegations made against him and Ms Jackson, his affection and concern for his partner and friend,and his view of his current situation.
These factors, at least to some degree, moderate against likely offence.
What is the editorial context?
In assessing editorial context for the usage of coarse language, the ACMA has considered: the nature of the program, the target audience, any signposting and the editorial purpose. These factors are set out below.
The nature of the program
As indicated by its website description, Four Corners is a current affairs program that has been ‘exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures’.[5]It has a history of presenting serious and sometimes confronting material.
The target audience
The program is targeted at an adult audience with an interest in current affairs.The material is unlikely to be of interest to children. The ACMA accepts the ABC’s submission that, ‘the program is not considered in any way suitable for children’.
Signposting
The following verbal and written warning was provided at the commencement of the program:
Viewer Advice: The following program contains extremely coarse language.
Editorial purpose
The opening statement by the presenter flagged the editorial purpose and context of the program:
KERRY O'BRIEN, PRESENTER: Tonight on Four Corners: as scrutiny intensifies and authorities close in, we take you inside the world of Kathy Jackson and Michael Lawler, the union official and the industrial tribunal vice-president in a world of trouble.
The ordinary reasonable viewer would have understood that the program intended toprovide a close examination of Ms Jackson and Mr Lawler’s relationship, their actions and motives in their respective former and current roles with the HSU and Fair Work Commission and the extent to which Mr Lawler’s judgement in a personal and work capacity may have been affected by his relationship with Ms Jackson.
Does the editorial context justify the likely harm or offence?
Mr Lawler used coarse language within the context of providing a very candid account of his relationship with Ms Jackson and response to allegations of any wrongdoing on his part.This was set within the broader context of a legitimate and serious report concerning improper use of union funds and potential conflicts of interest stemming from Mr Lawler’s position with the Fair Work Commission and his concurrent relationship with Ms Jackson.
As indicated above, the coarse language was not directed at another person in a manner that wasaggressive or intended to offend or insult that person. It was used in a way to conveyMr Lawler’s reaction to the relevant events and how he believes others would perceive his relationship with Ms Jackson.
While it was open to the ABC to edit the stronger examples of coarse language, the ACMA notes the ABC’s submission that the manner in which he responded to questions put to him was central to the nature of the story:
[…] his use of that term revealed much about Mr Lawler’s character, how he interpreted criticism of himself and the extent to which his judgement had been affected by his relationship to Ms Jackson, which was central to the very basis of the story.
The ACMA considers that the strong coarse language was not used for the purpose of causing offence and accepts the ABC’s submission that it was presented in context and was not used gratuitously.
Further, the program has a history of dealing with confronting material and provided a warning at the beginning of the segment.The ACMA also considers that it would have been within the expectations of its target audience.
Accordingly, the ACMA considers that the use of coarse language was justified by the editorial context.
Standard 7.2
The Code states that part of assessing harm and offence in context is looking to any signposting that equips the audience to make informed choices about what they see, hear or read.
As noted above, the following verbal and written warning was provided at the commencement of the program:
Viewer Advice: The following program contains extremely coarse language.
The ACMA is therefore satisfied that, through the use of this warning, the ABC made reasonable efforts to provide information about the nature of the content.
Accordingly, the ABC did not breach standards 7.1 and 7.2of the Code.
Attachment A
Transcript as provided on the ABC website[6]
19 October 2015 - Jackson and Lawler: Inside the Eye of the Storm
Viewer Advice: The following program contains extremely coarse language.
KERRY O'BRIEN, PRESENTER: Tonight on Four Corners: as scrutiny intensifies and authorities close in, we take you inside the world of Kathy Jackson and Michael Lawler, the union official and the industrial tribunal vice-president in a world of trouble.
POLICE OFFICER: Michael and Kathy, this is Inspector William. He's also from the Wollongong Local Area Command. Mr William will go up to the shipping container, where a search of this shipping container will start with another search team.
(Footage of Kathy Jackson reading newspaper article about herself and Michael Lawler)
KATHY JACKSON, NATIONAL SECRETARY, HSU, 2008-2015: It says, "Police raids coincide with preparation for an ABC Four Corners program. Blah-blah-blah. The story of their troubled lives."
(Michael Lawler brings Kathy Jackson a cup of tea. He kisses her on the forehead)
MICHAEL LAWLER, VICE-PRESIDENT, FAIR WORK COMMISSION: Here we are, sweetheart.
KATHY JACKSON: Oh, thank you.
CARO MELDRUM-HANNA, REPORTER (to Kathy Jackson and Michael Lawler): Is it possible that perhaps you have lost perspective? You've been caught up in a conspiracy theory or created one in an attempt to cover up your own wrongdoing?
(Kathy Jackson snorts contemptuously)
MICHAEL LAWLER: That's bullshit.
KERRY O'BRIEN: Kathy Jackson is the former union boss who went from the hero who blew the whistle on corruption to the pariah who herself illegally spent more than $1 million of union funds to fuel a lavish lifestyle and is now the subject of a major police investigation.
Jackson's partner, Michael Lawler, is the quasi-judicial officer ruling on major industrial disputes who is now facing allegations that he benefited from her illegal spending and rorted his sick leave while working on her court room defence.
They have now given extraordinary access to reporter Caro Meldrum-Hanna to give startling and at times bizarre accounts of how they came to be in the mess they're in: accounts that raise new and serious questions about their conduct.
Lawler has never spoken publicly before about their predicament. In candid moments he reveals, amongst other things, that he secretly taped conversations with his boss, the president of the Fair Work Commission.
Tonight we take you into the eye of their storm.
(Excerpt from Michael Lawler's video diary, 24 July 2014)
MICHAEL LAWLER: Hello. Ah, my name's Michael Lawler. Er, you don't normally hear from somebody like me. I hold a quasi-judicial office in an organisation called the Fair Work Commission.
I am going to make some allegations that are properly described as sensational.
CARO MELDRUM-HANNA, REPORTER (voiceover): This is the secret video diary of a desperate man.
MICHAEL LAWLER: There are strong conventions against judges or quasi-judicial officers making public comment on matters of public controversy. I have been involved in matters of public controversy these last several years and I have refrained from making public comment.
But having weighed the matter carefully, I can see that it is my duty to make this statement.
(Excerpt ends)
CARO MELDRUM-HANNA: Michael Lawler is vice-president of the Fair Work Commission, the tribunal responsible for industrial relations and workplace rights across Australia. He holds one of the most powerful offices in the land.
He's also a man under enormous pressure.
MICHAEL LAWLER: Everybody's got a breaking point and I've certainly been close to mine. It took quite a long time to get there but, um, I've certainly been close to mine.
CARO MELDRUM-HANNA: Michael Lawler's troubles began eight years ago, when he met and fell in love with the woman who's ended up almost destroying them both.
(Excerpt from Michael Lawler's video diary, 24 July 2014)
MICHAEL LAWLER: In 2008 a significant accident occurred in my life - and by accident, I don't mean a mistake: by accident, I mean something coincidental. I met and formed a relationship with Katherine Jackson, the national secretary of the Health Services Union.
(Excerpt ends)
CARO MELDRUM-HANNA: Do you think that your love for Kathy will ultimately be your downfall?