HSV7 - ACMA Investigation Report 2703

Investigation Report No. 2703

File No. ACMA2011/1764

Licensee Channel Seven Melbourne Pty Ltd

Station HSV

Type of Service Commercial Television

Name of Program Today Tonight

Date of Broadcast 23 August 2011

Relevant Code Clauses 1.9.6, 4.3.1, 4.3.2 and 4.3.10 of the Commercial Television Industry Code of Practice 2010.

Date Finalised 29 March 2012

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 4.3.10 (gratuitous emphasis)

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 The complaint On 13 October 2011, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint about a segment of the program Today Tonight broadcast on 23 August 2011 by the licensee of HSV, Channel Seven Melbourne Pty Ltd. The complainant is concerned about the segment’s portrayal of the Muslim community and alleges that the program ‘did it’s best to whip up fear, panic and paranoia in its viewers of people of the Muslim faith’. The complainant referred the matter to the ACMA for investigation.1 The complaint has been investigated in accordance with clauses 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule against a group of persons on the grounds of religion]; 4.3.1 [accurate presentation of factual content]; 4.3.2 [create public panic]; and 4.3.10 [portray group of persons in a negative light] of the Commercial Television Industry Code of Practice 2010.

The program Today Tonight is a half hour current affairs program broadcast weeknights on the Seven Network at 6:30 pm. The segment broadcast on 23 August 2011 reported on Australia’s growing Muslim population, alleging an existing ‘recruitment drive’ among Islamic leaders and the Muslim community, to ‘convert more Australians’. The segment commenced by reporting on a letter that was sent by Islamic leaders to the Muslim community in the lead up to the recent Census, encouraging members to identify themselves as Muslims. The segment continued by focussing on the topic of the growing Muslim community, and included the viewpoints of:  A, introduced in the segment as a 25 year old woman who converted to Islam aged 18;  B, introduced in the segment as the ‘leader of ‘One Law For All’’;  C, Sheikh SA, introduced as an ‘Australian grown Imam’;  D, a man who recently converted to Islam; and  E, Federal Liberal Senator CB.

A full transcript of the 5 minute and 17 second segment is set out at Attachment A.

Assessment The investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources consulted are identified where relevant.

1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in investigating complaints under codes of practice. The complainant advised the ACMA he was not satisfied with the licensee’s response.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 2 ‘Ordinary, reasonable’ viewer test 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’ viewer or viewer. 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 affairs2.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any). Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether there has been a breach of the Code.

Issue 1: Proscribed Material Relevant Code provision Clause 1.9 of the Code – Proscribed Material

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 ... religion...

Interpretation of clause 1.9.6 of the Code ‘Likely, in all the circumstances’

The phrase, ‘likely, in all the circumstances’, imposes an objective test3 and implies a real and not a remote possibility. That is, something which is probable.4 ‘Provoke or perpetuate intense dislike, serious contempt or severe ridicule’

The delegate has assessed whether ‘intense dislike’ and/or ‘serious contempt’ and/or ‘severe ridicule’ was provoked or perpetuated by the material broadcast. As the Code does not include definitions of the terms used in this provision, they have been given their ordinary English language meanings. The Macquarie Dictionary (5th edition) includes the following definitions:

Provoke verb 2. to stir up, arouse or call forth; 3. to incite or stimulate (a person etc) to action.

Perpetuate verb 1. to make perpetual; preserve from oblivion.

Intense adjective 1. existing or occurring in a high or extreme degree.

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. 3 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 [16]. 4 See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 3 Dislike verb 1. not to like; regard with displeasure or aversion.

Serious adjective1. of grave or solemn disposition or character.

Contempt noun 1. the act of scorning or despising.

Severe adjective 1. Harsh, harshly extreme

Ridicule adjective 1. words or actions intended to excite contemptuous laughter at a person or thing; derision. ‘On the grounds of’

The provocation or perpetuation of intense dislike or serious contempt towards the person or group, must occur on one or more of the grounds specified in clause 1.9.6 of the Code, including, for example, religion. There must be a causal connection, in this case, between the religion of the person or group and the feeling of intense dislike or serious contempt or severe ridicule, which is likely to be provoked or perpetuated by the broadcast.5

Complainant’s submissions The complainant submitted in his letter to the licensee dated 24 August 2011:

The [Segment] was one of the most one-sided, grotesque witch hunts I have ever seen on TV. With no discernable substance or evidence to the story, it painted Islam as an extremist, dangerous religion that we should be afraid of.

[...]

This disgraceful piece of TV appeared to do everything possible to ferment fear, ignorance and hatred among viewers. It sought to divide society and portray a single, malevolent voice to a billion-person strong religion.

It threw words like ‘extremist’, ‘Islamist’ and ‘Sharia law’ into the mix without any thought as to context or appropriate usage.

It bizarrely portrayed a simple letter asking for Muslims to ensure that they are properly counted and that their voices are heard in the [C]ensus as some sort of evil takeover.

[...]

Licensee’s submissions The licensee submitted in its letter to the complainant dated 29 September 2011:

The report you refer to concerned recent actions by the Australian New Muslim Association which were undertaken in an effort to obtain greater numbers for their group. The reason for gathering more followers was ultimately to gain more power in the Australian political system. To substantiate this point, several excerpts from a letter which the Association disseminated to Muslim followers were presented in the report, one of which stated ‘democracy is just a numbers game’ and another which explained why it was important to correctly indicate their religion on the census survey because ‘this will help determine our representation in politics at a Federal and State level as well as how the governments (Federal and State) funds are spent...’.

5 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23].

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 4 [...]

Although the Code does not require current affairs programs, like Today Tonight, to present material impartially (as is required for news programs), therefore allowing such programs to take a particular stance on matters that are discussed, on this occasion Seven’s reporter presented both sides of the topic reported on. Indeed, the viewpoints of several Muslim followers and a Muslim leader were included in the report to explain why the letter was sent and discussing why they were faithful followers. The more critical viewpoints of [E] and rights activist, [B] were also presented in the report to discuss some more general, but topical issues that have been present in the media recently, including the possibility of introducing Sharia law into Australian law.

We acknowledge the comments you have made in relation to the implications you drew from the report. However, we respectfully disagree as we consider the report included positive information about the Muslim religion and went so far as dismissing certain false perceptions about Muslim customs.

...

[...]

Finding The licensee did not breach clause 1.9.6 of the Code for the broadcast of Today Tonight on 23 August 2011.

Reasons The Code requires that the licensee not broadcast a program which is likely in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or a group of persons on specified grounds.6 The definitions set out above indicate that the Code contemplates a very strong reaction and a high test from the prohibited behaviours. It is not sufficient that the behaviour induces a mild or negative response. The topic presented is sensitive and consequently deserving of careful and considered treatment. The ordinary reasonable viewer would have observed that two of the interviewees (B and E), and the Today Tonight presenter and reporter, held negative views in relation to a growing Muslim population, and the complainant’s concern in this regard is acknowledged. In particular, the following language aspects are noted:

 The headings ‘The Big Drive’ and ‘Converting Australia’;

 Presenter: But leaders want more people and more power;

 ...the recruitment drive to convert more Australians;

6 There is no dispute that the relevant group of persons is Muslim people, and the relevant ground is religion.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 5  To further their political aims pointing out democracy is just a numbers game;

 Reporter: As I filmed him he talked about love and acceptance. Imagine my shock then when I viewed his many sermons at Lakemba, Australia’s largest Mosque. Here for example is how a wife should behave...;

 B: It’s clearly a mistake to allow for Sharia law to be implemented in this country;

 [Racists and Islamists] are both misogynists, they’re homophobic, they both excuse and use violence in order to promote their aim;

 E: Illegal plurality;

 When are we going to say ‘enough is enough’?

[emphasis added by the ACMA]

However, given the high test for the prohibited behaviour set out in the clause, the ACMA considers that it is unlikely that the material, in all the circumstances, was capable of eliciting the requisite intensity of response required by clause 1.9.6 of the Code. In so stating, it is noted that the Code does not prohibit current affairs programs from taking a critical stance on topics being reported on. For there to be a breach of this clause, it has to be established that there is a real possibility that the broadcast stimulated passionate dislike, scorn or derision towards the group concerned. In this particular segment, there were no words expressing intense dislike, serious contempt, or severe ridicule, of Muslim people because of their religion. While there were evident negative perceptions presented, the language overall used to convey them was mild for the purposes of the Code. There were also a number of viewpoints presented which served to mitigate the tone:

 A: My husband takes care of me in every aspect of my life, if I choose not to work he’s obligated to financially support me;

 A: [Islam is] completely the opposite to what the Media portrays;

 C: We believe as Muslims every baby is born a Muslim.

 D: It’s a bit like buying a new pair of shoes when you first start out, you know it feels a bit strange when you put them on but you get used to it, you wear them in.

Taking into account the above factors and having regard to the broadcast as a whole, the ACMA is not satisfied that the broadcast was strong enough to provoke or perpetuate intense dislike, serious contempt or severe ridicule against Muslim people on the grounds of religion.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 6 Issue 2: Accurate presentation of factual content and fair representation of viewpoints Relevant Code provision

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must present 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.

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately are set out at Attachment B.

Complainant’s submissions The complainant submitted in his letter to the licensee dated 24 August 2011:

With no discernable substance or evidence to the story, it painted Islam as an extremist, dangerous religion that we should be afraid of.

The complainant’s submissions to the ACMA relevant to clause 4.3.1 of the Code include:

1. The presenter ... opens by saying that Muslims (in general, not just one grouping within the religion) want ‘more people and more power’. This is unsubstantiated.

...

2. ... [reporter] seems to get his figures mixed up. He says that Muslim numbers have ‘doubled’ to 800,000. However, later in the report, [reporter] says that the last census in 2006 showed Muslim numbers at 345,000 and that ‘Islamic leaders’ believe this figure could be as high as 600,000. ...Basic facts being muddled and a breach of code provision 4.3.1 in my view.

...

3. The viewer is then confronted by several different grabbed quotes from various talking heads, including one from [B], who says that it is ‘clearly a mistake for Sharia Law to be implemented in Australia’. ... [E] then says that ‘Australians have every right to be worried’. Excuse me? What? Worried about what? Who mentioned Sharia Law? Certainly not the ANMA’s letter, which makes no mention of a recruitment drive or changing the laws of Australia. Also, what relevance does a UK-based campaigner have to the filling of census forms in Australia, other than to be used as a talking head to fabricate a disturbing Muslim agenda?

4. In its bid to find the secretive den where Muslims are brainwashing poor Aussie kids, they show ... a Greek Orthodox Church. The cross on top of the church is clearly visible 48 seconds into the piece.

...

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 7 5. We then see selected highly-edited pieces of a speech by a single Muslim, [C] . His views are portrayed as those that all Muslims hold, again as part of a secret agenda to implement Sharia Law.

...

6. In a particularly morally bankrupt and deceitful moment, [the reporter] attempts to shake the hand of a young Muslim woman, who has to explain that she doesn’t shake hands. ...This act was symptomatic of a sustained assault on the Muslim faith, distorting facts to fit a non- existent premise that Sharia Law is somehow set to be imposed on Australia. There was no evidence produced to support this and quotes were taken out of context to whip up artificial outrage. Simple facts and figures were woefully wrong.

Licensee’s submissions The licensee submitted in its letter to the complainant dated 29 September 2011:

[...]

In addition, it was fair and accurate to state that the Australian New Muslim Association were concerned that the last census did not accurately reflect the true number of Muslim followers in Australia, and in doing so it was not the intention of the report to, nor do we believe it did, suggest that it was sinister form them to request that Muslim followers correctly complete their Census forms.

We can assure you that the Network had no intention to, nor does it believe it did, discriminate or condone intolerance against those of the Muslim faith in any way. On the contrary, we believe a number of supportive viewpoints included in the report highlighted the fallacies about Muslim customs. With regard to the opposing viewpoints presented in the report, we have reviewed the material and are confident that each of these viewpoints was represented as an opinion, rather than a statement of fact. This was elucidated by the reporter’s use of ‘[he/she] thinks’ or ‘[he/she] says’ when describing the individuals’ views.

[...]

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 8 Finding The licensee did not breach clause 4.3.1 of the Code for the presentation of factual material and the representation of viewpoints in the broadcast of Today Tonight on 23 August 2011.

Reasons Accuracy The accuracy requirements under clause 4.3.1 of the Code apply to factual material. Statement 1 The complainant submitted the following:

The presenter ... opens by saying that Muslims (in general, not just one grouping within the religion) want ‘more people and more power’. This is unsubstantiated.

The introduction states:

No one knows there’s strength in numbers like Australia’s growing Muslim population. It’s estimated the recent census will find Muslim numbers have doubled to about 800,000. But leaders want more people and more power. A recent letter to the faithful declared “democracy is just a numbers game.” So tonight in this exclusive report [Reporter] uncovers the recruitment drive to convert more Australians.

The introduction specifically refers to ‘leaders’ and the ACMA does not agree that the report opens with a statement that Muslims in general want ‘more people and more power’. Accordingly, it is not necessary to further consider this statement against clause 4.3.1 of the Code. Statement 2 The complainant submitted:

... [Reporter] seems to get his figures mixed up. He says that Muslim numbers have ‘doubled’ to 800,000. However, later in the report, reporter [Reporter] says that the last census in 2006 showed Muslim numbers at 345,000 and that ‘Islamic leaders’ believe this figure could be as high as 600,000. ...Basic facts being muddled and a breach of code provision 4.3.1 in my view.

The ACMA has identified the following statement relevant to this complaint:

It’s estimated the recent census will find Muslim numbers have doubled to about 800,000.

And later in the report:

The last Census in 2006 showed 345,000 Muslims in Australia. That figure could have been as high as 600,000.

The ACMA understands the complainant’s concern to be that it was not accurate to state that the number ‘600,000’ had doubled (when the recent Census is expected to show 800,000). The reporter has stated that the recent Census is likely to show a number of 800,000. The reporter infers that this is double what the last Census showed, and not what the figure ‘could have been’. As stated in the segment, the last Census showed 345,000, double of which is

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 9 690,000. While it is noted that on a precise calculation, 800,000 is more than double the 345,000, the ACMA considers nevertheless that it was not inaccurate to state that it had doubled. The point of the statement was to emphasise the large growth in numbers of the Muslim community, and the ordinary reasonable viewer, in the context of the segment in its entirety, would not have been significantly misled by the over-estimation. Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to accuracy of this statement. Statement 3 The complainant submitted:

The viewer is then confronted by several different grabbed quotes from various talking heads, including one from [B], who says that it is ‘clearly a mistake for Sharia Law to be implemented in Australia’. [E] then says that ‘Australians have every right to be worried’.

The complainant is concerned that the report infers that there is an intention to introduce Sharia Law, and has questioned, in its submissions, the relevance and veracity of this. The licensee submitted:

...The more critical viewpoints of [E] and [B] were presented in the report to discuss some more general, but topical issues that have been present in the media recently, including the possibility of introducing Sharia law into Australian law.

The ACMA considers the ordinary, reasonable viewer would have understood that the inclusion of this viewpoint was to demonstrate what might happen, should the Muslim population grow. The ACMA is satisfied that the interviewee was in a position to opine on this because of her involvement in the UK with Sharia law. Further, as outlined at Attachment B, statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion. The ACMA is satisfied that the presentation of B’s comments amounted to a statement of opinion. Accordingly, it is not subject to the accuracy requirements under clause 4.3.1 of the Code. Statement 4 At about 48 seconds into the broadcast, the reporter stated:

In a community centre in the suburbs, the Australian New Muslim Association gather to celebrate the newest citizens of the nation of Islam.

During this statement, footage was shown of a building which the ACMA considers an ordinary reasonable viewer could have understood to be the ‘community centre’ referred to in the statement. The complainant has alleged that the building in the footage was a Greek Orthodox Church, evidenced by a cross on top of the building. The ACMA sought the licensee’s submissions in relation to this footage. The licensee submitted:

We acknowledge the church depicted in the image is a Greek Orthodox Church. The voiceover accompanying this image says “In a community centre in the suburbs...”. The image was in fact filmed from the front entrance of the community centre referred to in the voiceover, which is located at 2 Redman Parade, Belmore. The image was included to show

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 10 the surrounding ‘suburbs’ in which the community centre was located and which are expressly referred to in the voiceover. Seven submits that the ordinary reasonable viewer would not understand the image to be the ‘community centre’ referred to in the report, as the religious cross on the church’s roof was clearly visible. The image was shown only fleetingly for approximately 2 seconds within the 5 minute report and we consider it highly artificial to conclude that such a brief depiction would lead viewers to make a literal connection between the Christian church, which was not named in any way or expressly referred to in any way, and the matters regarding Muslims’ responses to the Census. Moreover, it seems highly unlikely that a building that is clearly a Christian church would be hosting a Muslim gathering. ...

In addition, the reporter’s first piece to camera after the image was shown was filmed outside the community centre entrance where ‘Senior Citizens Centre’ was visible above the doorway. ... This identifying image supports Seven’s view that viewers would not understand the image to be the community centre referred to in the report.

...

The subject of the voiceover statement is a ‘community centre’:

‘In a community centre in the suburbs...’.

The accompanying image predominantly depicts a Greek Orthodox Church, together with the roofs of two houses at the bottom of the screen. In the context of a segment dealing with religion as a subject matter, the ACMA does not consider that it would have been clear to an ordinary, reasonable viewer, that the image of the church was not the location at which the groups had gathered. It was also not obvious that the footage was being filmed from the actual community centre mentioned in the voiceover, notwithstanding the subsequent images depicting the entrance of the relevant building. Nevertheless, having regard to the circumstances at the time of preparing and broadcasting the program, the ACMA accepts that it was not the intention of the licensee to draw attention to the Greek Orthodox Church, but rather show the surrounding suburb of the relevant community centre. In the context of the segment as whole, and noting that the image was brief relative to the entire segment, the ACMA does not consider that the placement of this footage was significantly misleading such as to amount to a breach of the Code. Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to the presentation of this image. Clause 4.3.1 - Fair representation of viewpoints Clause 4.3.1 of the Code requires the fair representation of viewpoints (having regard to the circumstances at the time of preparing and broadcasting the program). The complainant submitted:

We then see selected highly-edited pieces of a speech by a single Muslim, [C]Sheikh . His views are portrayed as those that all Muslims hold, again as part of a secret agenda to implement Sharia Law.

There is no evidence before the ACMA to suggest that the viewpoint being expressed in the segment was edited out of context, or was not the entire viewpoint that the interviewee had

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 11 intended to present, or that it was not fairly represented. The ACMA makes the same finding for the remaining viewpoints expressed in the segment. The ACMA has dealt separately with the representation of the letter, and hence the viewpoint of Islam leaders, below. The letter The ACMA has assessed the broadcast’s representation of the letter sent by Islamic leaders in the lead up to the recent Census (an excerpt of which was shown in the broadcast). The ACMA sought a copy of the letter referred to in its entirety, which is set out at Attachment C. Having reviewed the letter, it is clear the purpose of the letter is to encourage the Islamic community to correctly identify themselves as Muslim in filling out the Census form. The ACMA does not consider that the excerpt shown in the segment, and the segment’s coverage of the letter, was edited out of context. Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation t the presentation of this letter.

Issue 3: create public panic Relevant Code provision

4.3.2: In broadcasting news and current affairs programs, licensees must not present material in a manner that creates public panic

Complainant’s submissions The complainant submitted in his letter to the licensee dated 24 August 2011:

The piece was one of the most one-sided, grotesque witch hunts I have ever seen on TV. With no discernable substance or evidence to the story, it painted Islam as an extremist, dangerous religion that we should be afraid of.

The complainant submitted to the ACMA:

I believe the segment has ... broken several of the provisions [including] the creation of public panic.

[...]

This is a clear breach of code 4.3.2, which forbids material aimed at causing public panic. We’ve gone from census form ticking to Today Tonight sourcing someone on the other side of the world who believes that Muslims want to subvert the Australian legal system, in just a minute of TV. Disgraceful.

[...]

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 12 The viewer is left in no doubt that Muslims are to be feared, that they aren’t a proper part of society and that they all hold the same agenda – to implement ‘their way of life’, whatever that is.

[...]

The whole piece was a complete beat-up aimed to create fear and division within society.

[...]

Licensee’s submissions The licensee did not make specific submissions in relation to this aspect of the complaint.

Finding The licensee did not breach clause 4.3.2 of the Code for the broadcast of Today Tonight on 23 August 2011.

Reasons The intention of clause 4.3.2 is to prohibit licensees from presenting material that would cause terror and panic in the general population. As outlined above, the segment contained negative and even sensationalist language. However, the ACMA considers the test in determining whether material creates public panic is a high one. Whilst it is considered that some of the allegations may have been alarming to some viewers, they were not, when viewed in the context of the overall presentation of the program, presented in a manner that would reasonably have created public panic. The ACMA notes that no other complaints were received regarding the broadcast being in contravention of the Code. Had this issue created public panic it would be reasonable to expect the licensee would have received several complaints. Furthermore the inclusion of alternative viewpoints is considered to have provided an alternative and less alarming opinion than the view presented by the reporter and interviewees B and E. Accordingly, the licensee did not breach clause 4.3.2 of the Code.

Issue 4: Did the broadcast portray Muslim people in a negative light by placing gratuitous emphasis on religion?

Relevant Code provision

Clause 4.3.10 of the Code 4.3 In broadcasting news and current affairs programs, licensees: […] 4.3.10 must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference. Nevertheless, where it is in the public interest, licensees may report events and broadcast comments in which such matters are raised.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 13 Complainant’s submissions The complainant submitted to the licensee:

...

... I consider this piece to in clear breach of ...clause 4.3.10 [of the Code].

Licensee’s submissions The licensee submitted to the complainant:

In addition, it was fair and accurate to state that the Australian New Muslim Association were concerned that the last census did not accurately reflect the true number of Muslim followers in Australia, and in doing so it was not the intention of the report to, nor do we believe it did, suggest that it was sinister from them to request that Muslim followers correctly complete their census forms.

[...]

Finding

The licensee did not breach clause 4.3.10 of the Code in relation to the broadcast of Today Tonight on 23 October 2011.

Reasons Clause 4.3.10 establishes a two-part test to determine whether material broadcast is in breach. First, it must be established that the licensee portrayed a person or group of persons in a negative light by placing gratuitous emphasis on, for example, religion. If this is established then the next question is whether the content was broadcast in the public interest.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 14 The test in clause 4.3.10 is an objective test under which the material is judged from the perspective of an ordinary, reasonable viewer. In applying the first part of the test in clause 4.3.10 of the Code, the ACMA has assessed whether the broadcast portrayed Muslim people in a negative light, and if so, whether that negative portrayal was a result of the program placing gratuitous emphasis on religion. In making this assessment, the ACMA has had regard to the statements made throughout the broadcast by the presenter, reporter and interviewees. From the issues already explored above, the ACMA has found that, in this instance, the ordinary reasonable viewer would likely have perceived a negative portrayal of Muslim people. It is also acknowledged that the complainant was personally offended by the material broadcast. Notably, the segment contained the headings ‘The Big Drive’ and ‘Converting Australia’, and other negative inferences were made and viewpoints presented, for example:

 ‘It’s clearly a mistake to allow for Sharia law to be implemented in this country’;

 ‘Demanding separate rights and rules for people is racism, not the other way around’;

 ‘Imagine my shock when I viewed his many sermons at Lakemba’;

However, the ACMA is not satisfied that any negative portrayal was a result of the program placing gratuitous emphasis on religion. In coming to this conclusion the ACMA has considered the ordinary English language meaning of the word ‘gratuitous’, as defined in the Macquarie English Dictionary (Fourth Edition): gratuitous adjective 2. being without reason, cause, or justification: a gratuitous insult.

The segment’s topic, on the whole, related to the growing Muslim population in Australia, and was not solely about the letter sent to the Islamic community in the lead up to the 2011 Census. In this context, it is considered that referring to religion and Muslim people during the broadcast is justified. The views of the interviewees, presenter and reporter, were relevant to the issue reported and could not be conveyed without some reference to religion. Accordingly, the licensee did not breach clause 4.3.10 of the Code and it is not necessary to consider whether the material was broadcast in the public interest.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 15 Attachment A

Today Tonight – HSV – Milman – 2703

5 minutes and 17 seconds.

Heading: The Big Drive

Presenter: No one knows there’s strength in numbers like Australia’s growing Muslim population. It’s estimated the recent census will find Muslim numbers have doubled to about 800,000. But leaders want more people and more power. A recent letter to the faithful declared “democracy is just a numbers game.” So tonight in this exclusive report [Reporter] uncovers the recruitment drive to convert more Australians.

A: I read for about three years when I was in High School then decided to embrace Islam when I was 18.

Reporter: Did you influence her to do this?

Mum: No it was certainly her choice.

B: It’s clearly a mistake to allow for Sharia law to be implemented in this country.

C: We believe as Muslims every baby is born a Muslim.

D: First my parents were quite astounded. A little bit shocked perhaps.

E: I think Australians have every right to be worried about his.

Reporter: In a community centre in the suburbs. The Australian New Muslim Association gather to celebrate the newest citizens of the nation of Islam.

[ ]

The turnout tonight about 50 Muslims. Some newly converted to Islam. The last Census in 2006 showed 345,000 Muslims in Australia. That figure could have been as high as 600,000. The reason is, they believe, many Muslims didn’t tick off the box for fear of some kind of retribution. Well this time around, the Census just gone, they wanted to make sure that every Muslim was counted for a very good reason and here’s how they did it.

In the lead up to the recent Census, Islam leaders sent out this letter. “This will help determine our representation in politics at a Federal and State level as well as how the governments’ (Federal and States) funds are spent...”

Calling on Muslims to tick their box on the Census form, to further their political aims pointing out democracy is just a numbers game.

“As you would all appreciate, in a democracy, it is a numbers game.”

B: I see huge numbers of parallels between what’s happening in Britain, and what’s happening here.

Reporter: [B] fled Iran with her family when she was just 13 to escape the Islamic regime. She now runs a group named ‘One Law For All’, dedicated to stamping out Sharia law in Britain and here.

B: In fact, it’s demanding citizenship rights and equality. Demanding separate rights and rules for people is racism, not the other way around.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 16 Reporter: 25 year old [A] grew up a typical Australian Christian. She then decided to become a Muslim after leaving school. She’s now married.

A: My husband takes care of me in every aspect of my life, if I choose not to work he’s obligated to financially support me.

Reporter: [D] was born [former name], before he realised he was being called to worship Allah.

D: It’s a bit like buying a new pair of shoes when you first start out, you know it feels a bit strange when you put them on but you get used to it, you wear them in.

Reporter: [C] is one of Australian’s first home grown Imams. He says you don’t convert to Islam, you revert to Islam.

C: And the word Muslim in Islam, Arabic, means submission and surrender. And the submission and surrender is to the will of God. The will of the creator. And this is where our beloved Prophet Mohammed peace be upon Him, he says that one of his traditions, that every baby that’s born is born a Muslim. Then the parents of that baby will change his or her religion to whatever faith the parents are following.

Reporter: As I filmed him he talked about love and acceptance. Imagine my shock then when I viewed his many sermons at Lakemba, Australia’s largest Mosque. Here for example is how a wife should behave:

D: If you say ‘I want you to do this’, she does it. When you make an oath, by Allah, I want you to, she fulfils the oath. And if you order her, she obeys you.

Reporter: Plenty more, here [E] explains all Muslim women should cover themselves.

D: When you hear a verse like this from your Lord commanding you to wear the hijab, you say ... ‘We heard and we obeyed.’.

Reporter: [B] argues too many Islamists pretend to be moderates, with the real focus on grabbing political power. She says racists are no better.

B: They’re very similar if you look at both of them. They’re both misogynists, they’re homophobic, they both excuse and use violence in order to promote their aim.

E: We need to say enough is enough.

Reporter: [E] has long argued that Islamic courts and politics have no place in a democracy.

E: The Australian Federation of Islamic Council called for illegal plurality. Have groups like Hizb ut- Tahrir, which have been banned in so many countries around the world, having their national congress here in Australia. I mean when are we going to say ‘hey what’s going on, and why are we allowing this to happen?

Reporter: Back at the Iftar celebration for new Muslims. The mood is optimistic, despite what they say are too often false perceptions about Muslims, their customs, and in particular, the rights denied women.

A: It’s completely the opposite to what the Media portrays.

Reporter: Thank you very much for talking to us.

A: Thank you. Ah, we don’t shake hands sorry.

Reporter: Oh sorry, of course. I did know that

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 17 Presenter: That’s [Reporter] reporting.

Heading: Converting Australia

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ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 18 Attachment B

The following principles are applied by the ACMA in assessing content against the obligation in clause 4.3.1 of the Code:

 The ACMA must assess whether the relevant statement would have been understood by the ordinary, reasonable viewer as a statement of fact or an expression of opinion.

 The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.

o In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable viewer.

o The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable viewer, and the form of words introducing the relevant statement is not conclusive.

 Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgmental or contestable kind.

 In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter to present factual material accurately which ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

 While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material presented is not presented accurately, that would amount to a breach of the clause.

 The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

 Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 19 Attachment C

ACMA Investigation Report – Today Tonight broadcast by HSV on 23/8/11 20