Investigation report no. BI-194
Summary /File no. / BI-194 /
Licensee / Commercial Broadcasters Proprietary Limited /
Station / 7HOFM /
Type of service / Commercial radio /
Name of program / Breakfast with Mick and Anna /
Date of broadcast / 7 April 2016 /
Relevant code / Commercial Radio Australia Codes of Practice & Guidelines 2013 /
Date finalised / 14 July 2016 /
Decision / No breach of code 1.1 [proscribed matter] /
Background
In May 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 into a segment during Breakfast with Mick and Anna broadcast on 7HOFM by Commercial Broadcasters Propriety Limited on 7 April 2016.
The ACMA received a complaint alleging:
The behaviour and conduct of Michael Newell in his interview with Mayor Peter Coad was totally reprehensible, abusive, rude, dominating and frankly, disgusting. Michael Newell’s vocabulary and continued aggression demonstrated:
• brutality
• was entirely misleading to the listeners
• and was inciting hatred towards Mayor Coad.
The ACMA has investigated the licensee’s compliance against codes 1.1(a), (b) and (e) of the Commercial Radio Australia Codes of Practice & Guidelines 2013 (the Codes).
The program
Breakfast with Mick and Anna is a radio breakfast program broadcast from 5.30 am to 9.00 am weekdays, hosted by Mr Mick Newell and Ms Anna Dare, described as:
Home of Hobart’s best way to start the day… Mick and Anna for Breakfast deliver a daily dose of entertainment, information and a humorous and relatable, engaging style that makes you feel welcome and important. Playing Hobart’s best mix of the 80s, 90s and now.[1]
The segment included an interview between Mr Newell and Mayor of Huon Valley Council, Mr Peter Coad, about events concerning the Huon Valley Council, including a report by a board of inquiry into the Huon Valley Council.
A transcript of the segment is at Attachment A.
Assessment and submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.
Australian courts have considered an ‘ordinary reasonable’ 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.[2]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Codes.
The investigation takes into account the complaint (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified below.
Relevant code
Proscribed matter
1.1 A licensee must not broadcast a program which in all of the circumstances:
(a) is likely to incite, encourage or present for its own sake violence or brutality;
(b) simulates news or events in such a way as to mislead or alarm listeners;
[…]
(e) is likely to incite hatred against, or 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.
1.2 Nothing in sub-clause 1.1 prevents a licensee from broadcasting a program of the kind or kinds referred to in those sub-clauses if the program:
(a) is presented reasonably and in good faith for academic, artistic (including comedy or satire), religious instruction, scientific or research purposes or for any other purposes in the public interest, including discussion or debate about any act or matter.
Interpretation
Codes 1.1 (e) and 1.2 shall be interpreted according to the principles in case law that apply to the interpretation of corresponding legislation.
Finding
The licensee did not breach codes 1.1(a), (b) and (e) of the Codes.
Reasons
Code 1.1(a) Incite, encourage or present for its own sake violence or brutality
The complaint was that:
His attempt to “entrap” Mayor Coad about the “top law firm’s report” was incorrigible and bordering on criminal – it was most certainly abusive and degrading towards Mayor Coad.
[…]
Michael Newell cannot use public radio to espouse his personal views which denigrate another member of the public who is performing his services to the Community to the very best of his ability. Michael Newell displayed bullying at its worst.
The licensee submitted:
[…] Mr Newell's intense questioning in the Interview was not likely to incite or encourage any form of violence or brutality. Further the Interview did not present any violence or brutality for its own sake.
To assess compliance with code 1.1(a), the ACMA asks the following questions:
Was the broadcast likely to incite or encourage violence or brutality?
Did the broadcast present for its own sake, violence or brutality?
Was the broadcast likely to incite or encourage violence or brutality?
Incite or encourage
A broadcast will be likely to incite or encourage violence or brutality if the ordinary reasonable listener would have understood from the material that they were being urged, stimulated or prompted to commit acts of violence or brutality. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.
The audience need not be actually stimulated to violence but have understood that they were being urged to commit violence.
Violence or brutality
The Codes’ use of the terms ‘violence’ (defined as rough or injurious action or treatment)[3] and ‘brutality’ (associated with acts that are savage, cruel and inhuman)[4] contemplates serious and harmful action.
In this case, Mr Newell was critical of Mr Coad and his actions in his capacity as Mayor of Huon Valley Council. On occasions he interrupted Mr Coad and spoke over him during the interview, which some listeners may have considered to be rude or unfair.
Although the interview was at times argumentative and challenging, it was confined to issues surrounding a recent controversy. Mr Newell was questioning in his engagement with Mr Coad and adopted a strong contrarian stance in order to encourage him to explain his position. This approach is well understood in interviews with political figures.
Mr Coad was given opportunities to state his views without interruption and he was able to explain his position.
Mr Newell did not call upon anyone to commit acts of violence or brutality and the listener could not have inferred this from any words used by Mr Newell. His comments were not aggressive, extreme or inflammatory enough to be capable of invoking a reaction of violence or brutality in listeners.
The ordinary reasonable viewer would not have been likely to interpret Mr Newell’s language, tone and approach as urging, prompting or stimulating violence or brutality against Mr Coad or any other person.
Did the broadcast present for its own sake, violence or brutality?
There were no explicit references to acts of violence or brutality in the interview or terms that could have been inferred as conveying violence or brutality.
The ACMA has previously noted[5] that there is a culture of robust political debate and expression in Australia, including that directed from or at participants in such discourse. In a robust interview on an important local government matter, both Mr Newell and Mr Coad expressed divergent views in a series of spirited exchanges. Violence or brutality did not feature in the program.
The ACMA considers that, in all of the circumstances, the segment was not likely to have incited, encouraged or presented for its own sake, violence or brutality.
Accordingly, the licensee did not breach code 1.1(a) of the Codes.
Code 1.1(b) Simulate news and events in such a way as to mislead or alarm listeners
The complainant submitted:
The “supposed random” interviews “supposedly conducted on Main Street” was radio broadcasting at its worst. There is no credibility that can be attached to these highly edited sound bites and any suggestion by Michael Newell that these comments are in any way representative of the Huon Valley Community is totally disingenuous – if not corruptible behaviour.
The licensee submitted:
[…] the Interview did not simulate news or events in such a way as to mislead or alarm listeners. The ordinary meaning of "simulate" is to pretend, appear to be or act as something. By contrast the topics that Mr Newell was addressing in the Interview are real issues currently playing out in local government in the Huon Valley.
To assess compliance with code 1.1(b), the ACMA asks:
Did the segment simulate news or events in a way that would mislead or alarm listeners?
The Macquarie Dictionary defines ‘simulate’ as follows:
1. to make a pretence of.
2. to assume or have the appearance of.[6]
There is nothing in the broadcast to indicate that the interview with Mr Coad was simulated, manipulated or presented as anything other than a pre-recorded interview between Mr Newell and Mr Coad in which Mr Newell questioned Mr Coad about issues at the Council. It is not disputed that the topics covered were matters of current debate in the local community.
During the interview, Mr Newell mentioned that he recently had conversations with people in Main Street, Huonville about the performance of the Huon Valley Council.
The segment broadcast on 7 April 2016 did not contain interviews with anyone other than Mr Coad nor did it use excerpts or sound bites of conversations with people that Mr Newell mentioned he had spoken with on Main Street. The licensee advised the ACMA that the additional material to which the complaint refers was broadcast on other dates.
The ACMA has reviewed Vox pop interviews broadcast on 4 April 2016. The comments related to the performance of the Council rather than a pretend event. There is no evidence that this material was simulated.
Further, the interviews did not contain language that would have misled or alarmed listeners in the sense contemplated by the Codes.
Accordingly, the licensee did not breach code 1.1(b) of the Codes.
Code 1.1(e) Incite hatred, serious contempt or severe ridicule
The complaint is that:
The entire “set up” of interview process was entirely questionable and evidently choreographed as an attempt to discredit Mayor Coad […].
[…]
Michael Newell has no public mandate whatsoever to suggest, let alone “demand” that Mayor Peter Coad step down from his role as the Huon Valley Mayor.
The licensee submitted:
[…] at no point in the Interview did Mr Newell touch on age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability. We therefore submit that the Interview was not likely to incite hatred, serious contempt or severe ridicule of Mayor Coad or any other person on those grounds. We submit further that Mr Newell's conduct in the Interview was not likely to incite hatred, serious contempt or severe ridicule of Mayor Coad or any other person on any other grounds.
To assess compliance with code 1.1(e) the following questions were addressed:
Did the program identify a person or group of persons on a relevant basis?
Was the program likely to incite hatred against, serious contempt for, or severe ridicule of that person or group of persons on that basis?
Did the program identify a person or group of persons on a relevant basis?
To assess compliance with code 1.1(e), the ACMA first asks whether the segment identified a person or group of persons on the basis of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.
Mr Coad was criticised in the interview for his actions in his role as Mayor of the Huon Valley. These criticisms were made on the basis of his professional conduct as an elected member of the Council, and were unrelated to his age, ethnicity, nationality or other relevant basis under the code.
For a breach of the Codes to occur, incitement to hatred, serious contempt or severe ridicule must occur on a basis specified in code 1.1(e). A person’s professional performance is not a relevant basis for the purpose of code 1.1(e).
As the broadcast material does not satisfy the test of identifying a person or group on a relevant basis, it is not necessary to consider whether the material was likely to have incited hatred, serious contempt or severe ridicule of a person or group on that basis.
As noted above, the interview was at times argumentative and challenging and it covered a recent controversy in the Council. It did not include language that was likely to incite hatred against, serious contempt for, or severe ridicule of Mr Coad on any basis.
Accordingly, the licensee did not breach code 1.1(e) of the Codes.
Attachment A
Transcript of Breakfast with Mick and Anna, broadcast by 7HOFM on 7 April 2016
Mick: It’s Mick and Anna on 7HOFM and we are lucky enough, we have finally tracked him down, good morning Huon Valley Mayor, Peter Coad.
Mayor: Good morning Mike, how are you going?