Investigation Report No 2486
File No. / ACMA2010/1801Licensee / TCN Channel Nine Pty Ltd
Station / TCN
Type of Service / Commercial Television
Name of Program / Nightline
Date of Broadcast / 10 May 2010
Relevant Code / Clauses 1.9.6, 4.3.1, 4.3.2, 4.4.1 and 7.11 of the Commercial Television Industry Code of Practice 2010.
Date Finalised / 18 January 2011
Decision / No breach of clause 1.9.6 (dislike, contempt or ridicule)
No breach of clause 4.3.1 (factual accuracy)
No breach of clause 4.3.2 (public panic)
No breach of clause 4.4.1 (fairness and impartiality)
No breach of clause 7.11 (no response to complaint)
The complaint
On 24 August 2010, the Australian Communications and Media Authority received a complaint regarding the broadcast of Nightline on 10 May 2010 by the licensee of TCN, TCN Channel Nine Pty Ltd.
The complainant alleges that a news item about asylum seekers in Australia presented information unfairly and inaccurately; ‘vilified’ asylum seekers; and created public panic.
The complainant did not receive a response from the licensee and referred the matter to the ACMA for investigation.[1]
The complaint has been investigated in accordance with clauses 1.9.6 [proscribed material]; 4.3.1 [accurate presentation of factual material]; 4.3.2 [create public panic]; 4.4.1 [present news fairly and impartially]; and 7.11 [complaints handling] of the Commercial Television Industry Code of Practice 2010 (the Code).
The program
Nightline is a half-hour late news bulletin program that was broadcast weeknights by the Nine Network before it ceased to air in July 2010.[2]
The program broadcast on 10 May 2010 included a segment about a decision made by the Federal Government to house asylum seekers in a Brisbane suburban motel as a result of space restrictions at Christmas Island. The report ran for five minutes and 18 seconds and was as follows:
News presenter: There’s no secret the cramped conditions for asylum seekers on Christmas Island prompted the federal government to move groups to the mainland. But, the details have been sketchy about where some of them ended up. It turns out part of a suburban Brisbane hotel[3] has been secretly turned into an immigration detention centre.
Reporter: The [Name of motel] is a seemingly friendly retreat in the heart of suburbia. But start asking questions about what’s going on here and there’s a very unfriendly response. [Footage of motel sign followed by staff at the motel talking on a mobile phone].
Reporter: What’s all the ah, all the security here?
Male: Dunno buddy. Dunno mate.
Reporter: The truth is part of the hotel is now a de facto immigration centre. [Footage of women in traditional Muslim head covering with children at the motel]. Seventy nine men, women and children from undisclosed countries overflow from overcrowded Christmas Island, and housed in what the hotel boasts is four-star comfort. [Footage of the inside of a motel room].
Reporter: are you a security guard?
Male: Nah.
Reporter: No? Any asylum seekers here?
Male: No.
Reporter: The local community hasn’t been lied to. They just haven’t been told. [Footage of a suburban street].
Local (1): that’s probably annoyed me more than anything else.
Local (2) – yes we should’ve been informed of it.
Reporter: The hotel neighbours a playground [footage of a playground], child care centre [footage of a childcare centre sign], and dozens of homes [footage of a house].
Local (1) – not knowing who they are, what they are, and how long and what they are doing here, and also what protection there is for the neighbours with the kids and all.
Reporter: A large team of security guards keeps the asylum seekers in, and the community, out. [Footage of security guards at motel].
Motel staff: excuse me gentlemen please no cameras thank you.
Reporter: We’re responding to some concerns of local residents about what’s going on here.
Motel staff: I have nothing to say you need to go speak to the immigration department.
Reporter: Knowing the game was up, [footage of motel] the Department of Immigration was more
forthcoming insisting the family groups pose no community danger. [Footage of a family entering a van]. But the secrecy here has been seized on by the opposition.
Scott Morrison (Shadow Immigration Minister) – you don’t want to heighten community concerns,
you want to allay community concerns.
Reporter: It’s understood the hotel has a lucrative 6 month contract. [Footage of motel]
[Image of reporter live in front of motel sign]
The immigration minister is tonight leaving all comment to his department. Which in turn insists there is absolutely no danger to the local community here. However Qld police would have appreciated being kept in the loop on the detention plans. [Footage of women in traditional Muslim head covering with children at the motel].
Alex Smith, Nine News.
[...]
Assessment
The investigation is based on submissions received from the complainant and the licensee, and a DVD recording of the broadcast provided by the licensee.
Other sources used in the investigation are identified where relevant.
Ordinary reasonable viewer
In assessing whether the Code has been breached, consideration has been given to what an ‘ordinary, reasonable viewer’ would have understood the material broadcast to have conveyed. This requires consideration of the natural, ordinary meaning of the language used. The ACMA also considers the broadcast’s context, tenor, tone, inferences that may be drawn, and in the case of the presentation of factual material, any relevant omissions.
Australian Courts have considered an ‘ordinary, reasonable 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.[4]
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 Code.
Issue 1: Proscribed material
Relevant Provision
1.9 A licensee may not broadcast a program ... which is likely, in all the circumstances, to:
1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of national or ethnic origin.
Interpretation of clause 1.9.6 of the code
‘likely in all the circumstances’
Use of the words ‘likely in all the circumstances’ has in other legislative contexts, been held to impose an objective test and, in the ACMA’s view, means ‘probably’ in the sense of being more likely than not.
‘intense dislike and serious contempt’
In view of the complainant’s submissions, the delegate has assessed whether or not the program provoked or perpetuated ‘intense dislike’ or ‘serious contempt’ and applies the ordinary English meanings of those word.
The Macquarie Dictionary (5th Edition) includes the following relevant definitions:
Intense adjective 2. acute, strong or vehement as sensations, feelings or emotions
Dislike verb 1. not to like; regard with displeasure or aversion
Serious adjective 2. of grave aspect
Contempt noun 1. the act of scorning or despising
‘on the grounds of’
The phrase ‘on the grounds of’ is interpreted as requiring that there be an identifiable causal link between the prohibited ground and the action complained of. The ACMA notes that there is a great deal of judicial interpretation in relation to the words, ‘on the grounds of’ in the context of discrimination law.
Neave J, in the Victorian Court of Appeal Case, Catch the Fires Ministry & Ors v Islamic Council of Victoria Inc[5] said:
There must be a causal connection between the race of the person or group of persons concerned and the feelings of hatred, serious contempt or severe ridicule which are incited by the public act...the grounds on which the public act was performed is not relevant, it is the ground on which the reader was incited to hatred etc which is relevant.
Complainant’s submissions
The complainant submitted:
The report that asylum seekers were being housed in the motel, and that it was of concern because the motel was close to a school and a childcare centre. It was the way news services would report on the whereabouts of a sex offender ... There were even stills of a school and the sign of a childcare centre, for extra impact. Why would you assume asylum seekers are a danger to kids? There is absolutely no factual basis for this, and it is clearly vilifying.
[...]
This type of report is not only inaccurate in implying that asylum seekers are a danger to children, but also vilifying. It will only serve to contribute to Australia’s increasing intolerance, xenophobia, and racially-motivated violence.
Finding
The licensee did not breach clause 1.9.6 of the Code in relation to the broadcast of Nightline on 10 May 2010.
Reasons
The complainant alleges that the report ‘vilified’ asylum seekers.
However, the Code requires that the licensee not broadcast a program which is likely in all of the circumstances to provoke or perpetuate intense dislike or serious contempt against a person or a group of persons on specified grounds (age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference).
While it is common cause that asylum seekers are people who have applied for asylum in a country that it is not their own, the report does not specifically identify the national or ethnic origin of the group but refers to ‘men, women and children from undisclosed countries’. The delegate is not satisfied that there was a reference either visually or verbally to the national or ethnic origin of the asylum seekers featured in the footage accompanying the commentary.
However, the report includes visual footage, on at least two occasions, of women wearing, what the ordinary reasonable viewer would identify as traditional Muslim head coverings. Accordingly, the relevant ground in this instance is considered to be religion.
The choice of language employed is, at times, evocative and negative in tone. The following examples are noted:
· ‘But start asking questions about what’s going on here and there’s a very unfriendly response.’
· ‘The hotel neighbours a playground, child care centre, and dozens of homes.’
Local (1) – not knowing who they are, what they are, and how long and what they are doing here, and also what protection there is for the neighbours with the kids and all.
Given this, there was an implication that the situation may pose some sort of threat to the surrounding community, including children. The complainant’s concerns in this regard are noted.
However, having reviewed the broadcast in its entirety any negative reactions evoked were not sustained, explicit or strong enough to elicit the high threshold response required by the Code. The dictionary definitions of dislike and contempt as set out above together with the accompanying adjectives indicate that the code contemplates a very strong reaction. It is not sufficient that the behaviour induces a mild or moderate response.
The key elements of the report included a decision by the Government to house asylum seekers in a motel in Brisbane suburbia, and its failure to communicate this to the community and general public. The essence of the report was the unusual nature of the decision made by the government and the way in which it was executed.
There were no expressions of displeasure, aversion, scorn or derision in the segment, and there was not a call to action or persuasion to share a view that is highly inflammatory of the group of asylum seekers on the basis of their religion or on any other of the specified grounds.
In addition, the report included the viewpoint of the Department of Immigration which served to dilute the negative tone arising from the content broadcast.
Issue 2: Factual Accuracy
Relevant Provision
4.3.1 In broadcasting news and current affairs programs licensees must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.
Fair representation of viewpoints
Clause 4.3.1 of the Code obliges the accurate presentation of factual material and the fair representation of viewpoints.
In relation to the latter element, the segment included several viewpoints. However, the ACMA has not been provided with any information to suggest that these viewpoints were not fairly represented in the broadcast. Accordingly, an examination of the program’s compliance with clause 4.3.1, insofar as it relates to the obligation to represent viewpoints fairly, has not been pursued further.
Considerations
The ACMA applies specific considerations in determining whether or not a statement complained of was subject to and/or compliant with the licensee’s obligation to present factual material accurately, having regard to the circumstances at the time of preparing and broadcasting the program. These are set out at Attachment A and referred to in the investigation report where relevant.
Complainant’s submissions
The complainant submitted the following which raises issues of accuracy under the Code:
· ‘...There is absolutely no factual basis for [assuming asylum seekers are a danger to kids] ...’
· ‘This type of report is ... inaccurate in implying that asylum seekers are a danger to children...’
Finding
The licensee did not breach clauses 4.3.1 of the Code for the broadcast of Nightline on 10 May 2010.
Reasons
The complainant’s key concern in relation to compliance with clause 4.3.1 of the Code is that the news segment ‘inaccurately implied that asylum seekers are a danger to children’. The report included an inference to the effect that the housing of asylum seekers in proximity to residential areas may be dangerous for the residents of those areas. In this regard, the following excerpt (reporter and interviewee comments) is noted.
Reporter: The hotel neighbours a playground [footage of a playground], child care centre, and dozens of homes.
Local (1) – not knowing who they are, what they are, and how long and what they are doing here, and also what protection there is for the neighbours with the kids and all.