Investigation Report No. BI-313

Investigation report no. BI-313

Summary

Licensee Triple M Sydney Pty Ltd

Station 2MMM

Type of service Commercial—radio

Name of program The Night Shift

Date of broadcast 13 March 2017

Date finalised 02 June 2017

Relevant code Commercial Radio Australia Codes of Practice & Guidelines 2013

Decision No breach of code 1.3(a) [offend against generally accepted standards of decency] Error: Reference source not found

Background In May 2017, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into The Night Shift (the program).

The program was broadcast on 2MMM by Triple M Sydney Pty Ltd on 13 March 2017 at 12.00 am.

The ACMA received a complaint alleging that the host and a caller used racist and ‘highly offensive’ language by using the term ‘Abo’. The ACMA has investigated the licensee’s compliance with code 1.3(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes).

The program The Night Shift is a radio talk back program broadcast on 2MMM from 12.00 am to 5.30 am weekdays. The program is described as ’Aussie radio legend Luke Bona chats to the country, taking your calls overnight, every night’.1

The complaint concerns two segments: the first segment occurring at 3.52 am and the second occurring at 4.52 am (the segments).

A transcript of the segments 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.

This investigation has taken into account the complaint (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified in this report where relevant.

Issue: Generally accepted standards of decency

Relevant code provisions

Code of practice 1: Programs unsuitable for broadcast

1 https://www.triplem.com.au/sydney/shows accessed on 1 June 2017. 2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. 2 Purpose

The purpose of this Code is to prevent the broadcast of programs which are unsuitable having regard to prevailing community standards and attitudes.

Program Content and Language, including Sex and Sexual Behaviour

1.3 (a) Program content must not offend against generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program. (b) for the purposes of determining:

(i) the audience of the relevant program; and (ii) the demographic characteristics of that audience, regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

Finding The licensee did not breach code 1.3(a) of the Codes.

Reasons Consideration of prevailing community standards and generally accepted standards of decency.

In previous investigations of compliance with the decency provision of the Codes, the ACMA has considered:

 the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive3

 the tenor or tone of the broadcast: for example, was it light-hearted or threatening, matter-of-fact or salacious4

 the language used in the broadcast: for example, was it abusive, vulgar or lewd5

3 For example, ABA Investigation 1270 (Double Dilemma broadcast on Nova 100 in 2003) and ACMA investigations 1628 (Lowies Hot 30 broadcast on 2DAY FM in 2005) and 2266 (Kyle & Jackie O Breakfast Show broadcast on 2DAY FM in 2009). 4 For example, ACMA investigations 2751 (Kyle & Jackie O Show broadcast on 2DAY FM in 2012) and 2848 (Bob Francis broadcast on 5AA in 2012). 5 For example, ACMA investigations 1628 (Lowies Hot 30 broadcast by 2DAYFM in 2005), 1717 (Saturday Football broadcast by Triple M Melbourne in 2006) and 2848 (Bob Francis broadcast on 5AA in 2012).

ACMA Investigation report—The Night Shift broadcast on 2MMM on 13 March 2017 3 of 11 Error: Reference source not found

 the attitudes conveyed: for example, did they display a contemptuous disregard for human life or suffering.6

The ACMA has indicated that material will not offend against generally accepted standards of decency simply because it has ‘shock value’, is distasteful or has the effect of making a person feel uncomfortable.7 In deciding whether a breach has occurred, the ACMA will reflect on whether material offends against generally accepted standards to the extent that it is unsuitable for broadcast.

To assess compliance in this case, the following questions are addressed:

 What would the ordinary reasonable listener have understood the material to convey?

 What are the demographic characteristics of the audience?

 In light of the above, did the material offend against any generally accepted standards of decency?

The complainant submitted the following complaint to the licensee:

Luke boner [sic] has on many occasions used a highly offensive and racist word on his show. the word in question is ABO. this is extremely offensive to my people and culture, we have fought for many years eradicating such words so that society can live as one. Luke claims to be of aboriginal decent but this does not give him permission to speak such words especially on air !!. the conversation Monday morning was that he referred to him self as a angry ABO, following that there was a caller who then referred him to him as a angry ABO, this is unacceptable, why, because he is giving the audience permission to be racist, he is telling Australia it is ok to to refer indigenous people as ABO's.

The licensee submitted that:

[T]he 3:53am Comment was not made offensively or with anger towards Indigenous people, but was a comment about the announcer’s personal household. The tone was not one of incitement towards prejudice or hate, but of light-hearted self-reflection.

The 4:52am Comment was made by a caller to the Program and the announcer did not use the term “Abo” himself at this time. Although we accept that use of the word “Abo” can be highly inflammatory, in this context it was used by a caller in a non-derogatory tone in light of Luke Bona’s earlier comments in the 13 March segment.

What would the ordinary reasonable listener have understood the material to convey?

Context, subject matter and what it conveyed

The first segment commenced with Mr Luke Bona describing his experiences with the preparation of his daughter’s wedding. He expressed a degree of frustration the preparation process. The program’s producer asked him why he was angry. Mr Bona replied to the producer by referring to himself as a ‘cranky Abo’ as he ‘didn’t get enough sleep’. He remarked that his children referred to him by that term. The second segment included a caller

6 For example, ABA Investigation 1270 (Double Dilemma broadcast on Nova 100 in 2003), and ACMA investigations 2598 (Afternoons with Chris Smith broadcast on 2GB in 2011) and 2848 (Bob Francis broadcast on 5AA in 2012). 7 For example, ACMA Investigations 2123 (Sydney New Year’s Eve Broadcast on 2DAY in 2008) and 2674 and 2717 (Alan Jones Breakfast Show broadcast by 2GB in 2011). 4 to the program, Brad, greeting Mr Bona with ‘How’re you goin’, angry Abo’. At all times the use the term was directed at Mr Bona himself and not any other person of Aboriginal heritage.

As noted above, the complainant acknowledged Mr Bona’s claims to aboriginal heritage, however he did not consider that it was appropriate for Mr Bona to use the term, particularly during a broadcast.

The ACMA accepts that the term ‘Abo’, regardless of the motivation for its use, is deeply offensive to many people. However, the ACMA considers that an ordinary reasonable listener would have understood that the first comment, by Mr Bona, was meant as a light-hearted, self-deprecating response to the studio producer’s earlier question about why he was so angry. The later use of the term ‘Abo’ by the caller, Brad, would be understood as an acknowledgment of the manner in which Mr Bona expressed himself.

Language and tone

The ACMA considers that while the term can be used to denigrate Aboriginal people, the tone and context, with Mr Bona clearly referring to himself, was not threatening, abusive, vulgar or contemptuous to the extent that it was unsuitable for broadcast. The tone used by the caller was similarly non-aggressive, briefly echoing Mr Bona’s language, exclaiming ‘I like that’, then referring to him as ‘mate’, before immediately moving on to the subject matter being discussed in the segment.

What are the demographic characteristics of the audience?

The decency provision of the Codes requires that regard is had to the demographic characteristics of the audience of the relevant program. For the purposes of determining the demographic characteristics of the audience, regard must be had to the results of any official ratings surveys of the licensee’s service in the past 12 months.

Pursuant to this, the licensee has submitted the following information:

Triple M is a station that is focused on rock music, sport and comedy, appealing to a mostly male demographic aged 25-548. Night Shift is a mid-dawn program that is broadcast nationally in both metro and regional markets, and is broadly aimed at the 25-54 demographic in the 12-5.30am (AEST) time slot.

In considering compliance with code 1.3(a), one of the relevant characteristics of the audience of the program involves the likely expectations of that audience.

The ACMA considers that the audience of Night Shift would have been familiar with the at times humorous and mildly provocative style of the host and his guests, as well as the nature of the language used on the program. However, it notes that information about the audience’s age, gender and familiarity with a regular segment does not necessarily indicate the attitudes of that group to the content that ultimately went to air. Audience familiarity also does not necessarily mean that content does not offend against generally accepted standards to the degree that it is unsuitable for broadcast.

In light of the above, did the material offend against any generally accepted standards of decency?

The ACMA acknowledges that the term ‘Abo’ is, at a minimum, likely to be distasteful and have the effect of making some people feel uncomfortable while for others it will be deeply offensive. However, in respect of the use of the term in the segments, the ACMA notes that

8 GfK Metro Survey 2, 2017

the comments were not overtly derogatory or abusive. They did not convey contemptuous disregard for Aboriginal people or incite feelings of hatred. The ACMA is of the view that the comments were not made in a manner which made them unsuitable for broadcast or offended against generally accepted standards of decency.

Accordingly, the licensee did not breach code 1.3(a) of the Codes.

6 Attachment A

Transcript of The Night Shift, broadcast on 2MMM on 13 March 2017

03:52:14 am [first segment] Jess [Producer]: If your daughter Holly wanted a $10,000 dress and it’s her only wedding, I’m sure you’d help her pay for it if she couldn’t afford it. Luke Bona [Presenter]: Nuh. Jess: You would. You say that now, but you would. Luke Bona: I’d say there are two words you need to put into your vocabulary, Holly: lay by. Anthony [caller]: [laughs] You’re right. Jess: I don’t know, brides are really sassy divas and if they want something, they want something. Luke Bona: But tell me this: what about you’ve got a girl, and she’s been living with the boyfriend for four or five years…So they’ve been playing families for four and a half years, sharing a premises, a bed, right? Then all of a sudden they decide to get married, and all of a sudden this big shebang comes along, when they’ve already been living in sin for four and a half years as de-facto husband and wife…you’re kidding! Jess: What do you mean! Luke Bona: Are you with me, Anthony? No, Anthony’s not. Anthony: No, no I’m still… yeah, to a point… I’ve been living in sin for years. I get married, I get divorced, I’ve been living in sin, totally. Even when I’m married, I’m still living in sin. Luke Bona: I’m saying… Jess: What’s the problem? Why are you so angry all the time? What’s wrong? Luke Bona: I’m not. Jess: Yes, you are. Luke Bona: I’m being a cranky Abo today, because I didn’t get enough sleep. Jess: [laughs]

Luke Bona: That’s what my son and daughter call me - you cranky Abo. What I’m saying is, if you’re playing families and you’re an adult and you’ve been living in a de- facto relationship for a number of years, and you decide to get married, that’s fantastic, that’s sensational, but why should dad have to pay for it.

Jess: Well, that’s tradition, isn’t it? He doesn’t have to, but that’s tradition.

Luke Bona: Tradition was you didn’t live with someone and have sex until you got married, that was tradition.

Anthony: I never got that memo.

Luke Bona: I missed it too.

4:52:48 am [second segment] Luke Bona: G’day Brad. Brad [caller]: How’re you goin’? How’re you goin’, angry Abo? Luke Bona: Yeah, that’s it, that’s me. Brad: [Laughs] I like that. Hey mate, I wanted to tell you about my story with my wedding […]

8 Attachment B

Complaint to the licensee dated 14 March 2017:

[…] i wish to inform you of an incident i heard Monday morning on the night shift program. i have repeatedly tried to access your online complaint form but i keep getting an error code? the situation is this, Luke boner [sic] has on many occasions used a highly offensive and racist word on his show. the word in question is ABO. this is extremely offensive to my people and culture, we have fought for many years eradicating such words so that society can live as one. Luke claims to be of aboriginal decent but this does not give him permission to speak such words especially on air !!. the conversation Monday morning was that he referred to him self as a angry ABO, following that there was a caller who then referred him to him as a angry ABO, this is unacceptable, why, because he is giving the audience permission to be racist, he is telling Australia it is ok to to refer indigenous people as ABO's. i cant begin to tell you how up setting this is , i want to osculate this by informing the ACCC and ACMA. i would like Luke to make a on air apology for his actions and to explain that it is not ok to use this word and why.

Complaint to the ACMA dated 21 April 2017:

On the 13/02/2017 , time was roughly 2:30am in the morning, I was listening to the national broadcasting show on triple m ( the night shift), When Luke boner ( the host) started using the word ABO on air and making some reference about an angry ABO... I was absolutely mortified and disgusted, I am an indigenous man and all my life I have dealt with this type of racism , I couldn't believe what I was hearing , but this was only the beginning, Shortly afterwards , a listener called up and also began to use this highly offensive word. How dare he give his audience the permission to be racists, this totally unexceptable. The next morning I contact triple m ( refer email below) and put across my concerns.

Attachment C

Licensee submission to the ACMA dated 17 May 2017:

(a) Subject matter or themes dealt with:

 13 March Segment: This segment contained a discussion about the rising average cost of weddings. Listeners called the Program with stories regarding the costs of their own weddings, and views on who should pay for particularly expensive items such as wedding dresses. The announcer Luke Bona, suggested that if his daughter ever asked him to help pay for a $10,000 wedding dress, he would not assist her as he believed the notional cost to be excessive. It was in this context that at 3:53am, Luke Bona stated “I’m being a cranky Abo” (3:53am Comment). He went on to briefly explain that he had not had enough sleep and that “that’s what [his] son and daughter call [him]”. We submit that the announcer did not offend generally accepted standards of decency as he did not express any views about Aboriginal peoples generally or actively encourage listeners to use the term that he used to describe himself.

At 4:52am of the 13 March Segment, the announcer received a call from a listener called Brad who opened the call with “How you going Angry Abo?” (4:52am Comment). Luke Bona responded briefly with “Yeah, that’s it, that’s me” and the discussion continued quickly back to the topic of exorbitant wedding costs.

(b) Tenor or tone of the broadcast:

 13 March Segment: The 3:53am Comment during the 13 March Segment was said as a brief comment by the announcer as a way of explaining his own attitudes towards the cost of weddings. The tone was one of amusement and self-reflection by Luke Bona as he explained that in his own personal household his family refer to him as a “cranky Abo”. We submit that the 3:53am Comment was not made offensively or with anger towards Indigenous people, but was a comment about the announcer’s personal household. The tone was not one of incitement towards prejudice or hate, but of light- hearted self-reflection.

The 4:52am Comment was made by a caller to the Program and the announcer did not use the term “Abo” himself at this time. Although we accept that use of the word “Abo” can be highly inflammatory, in this context it was used by a caller in a non-derogatory tone in light of Luke Bona’s earlier comments in the 13 March Segment. We acknowledge that Luke Bona did not publicly disapprove of the caller’s use of the word “Abo”, nor reprimand him on-air. However, we submit that Luke Bona did not encourage further use of the term “angry Abo” or further perpetuate any derogatory terminology.

(c) Language used in the broadcast:

 13 March Segment: We acknowledge that the announcer used the term “Abo” to describe himself during the 3:53am Comment, and that a listener (not Luke Bona himself) used the term “Abo” during the 4:52am Comment when calling the Program. We further acknowledge that this term can be perceived as derogatory or as a racial slur.

10 However, we submit that the use of the term was made in a personalised self- deprecating way, not in a prejudicial or inflammatory manner towards all Aboriginal peoples.

(d) Attitudes conveyed:

 13 March Segment: In the 3:53am Comment Luke Bona did not convey particular attitudes per se, but merely described himself as a “cranky Abo” and acknowledged that that is how his own children sometimes refer to him. He did not opine or convey any attitudes towards Indigenous people or even his own Aboriginal heritage. Similarly, in the 4:52am Comment, it is our submission that Luke Bona did not submit or convey any specific attitudes towards the use of the word “Abo” or Aboriginal peoples more generally.

We submit that the ordinary, reasonable listener would not have had their general standards of decency offended by the comments made during the 13 March Segment […]. The announcer simply expressed his personal opinions about the use of the term within his own family and friends and in the context of the Australian Senate debate. Announcer Luke Bona made this clear when he referred to his own Aboriginal heritage and feelings towards being called an “Abo” by his son and daughter, and his co-worker in the past.

However, despite Luke Bona’s personal feelings towards the term, we acknowledge that the term is derogatory to Aboriginal peoples and is not appropriate either in a radio broadcast or in more general terms. We have therefore counselled Luke Bona not to use the term on air.

Whilst we accept that the term “Abo” is offensive to Aboriginal people, in the context that our announcer used it (in a discussion about his own Aboriginality and […]), we do not believe that Luke Bona intended to offend the general standards of decency of his listeners or the wider public, or provoke discrimination towards Aboriginal peoples.

ACMA Investigation report—The Night Shift broadcast on 2MMM on 13 March 2017 11 of 11