Investigation Report No. 3352

Summary

File no. ACMA2015/429

Licensee Commonwealth Broadcasting Corporation Pty Ltd

Station KIIS 1065

Type of service Commercial radio

Name of program Kyle & Jackie O

Date of broadcast 15 May 2015

Relevant code Codes 1.3(a) and 9.1(a) of the Commercial Radio Australia Codes provisions of Practice and Guidelines 2013

Date finalised 14 August 2015

Decision No breach of code 1.3(a) [generally accepted standards of decency]

No breach of code 9.1(a) [treatment of participants in live hosted entertainment programs] Error: Reference source not found

Background In June 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment of the Kyle & Jackie O program, broadcast on KIIS 1065 by Commonwealth Broadcasting Corporation Pty Ltd (the licensee) on 15 May 2015. The segment was an interview conducted by Mr Kyle Sandilands with the Hon. Barnaby Joyce MP, Minister for Agriculture, on the subject of actor Mr Johnny Depp’s dogs being brought into Australia, allegedly without following quarantine procedures.

The complainant alleged that the segment:

[…] contained language and behaviour that is outside the acceptable standards and norms of robust political debate and common decency in public broadcasting.

The complainant also raised concerns about Mr Joyce not being given an ‘adequate opportunity to reasonably discuss the subject’ and the lack of a subsequent public apology.

On the latter two concerns, the ACMA notes that:

 the program does not fall within the definition of a ‘news program’ or a ‘current affairs program’ under the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes), and therefore the particular obligations under the Codes about providing reasonable opportunities to present significant viewpoints are not relevant to this matter  the ACMA has no direct power to compel a licensee to apologise, even if it finds that a licensee’s conduct breaches a code of practice.

Although the segment was not part of a current affairs program, and accordingly it is not relevant to consider the matter of whether reasonable opportunities were provided to present significant viewpoints, the ACMA notes that the licensee has submitted that after the broadcast:

[…] We offered the Minister the opportunity to go to air to enable him to fully explain his position [and] to address his concern that the interview was cut short. [We] offered the opportunity for the further interview to be pre-recorded so both parties could manage the messaging that went to air.

The program has been investigated against the following provisions of the Codes:

 code 1.3(a) [generally accepted standards of decency]  code 9.1(a) [treatment of participants in live hosted entertainment programs].

The program and segment Kyle & Jackie O is a breakfast program broadcast weekdays from 6.00 am, presented by Mr Sandilands and Ms Jackie Henderson (Jackie O). It is described on KIIS 1065’s website as follows:

Kyle & Jackie O are Sydney’s #1 with the biggest stars and the biggest prizes! Listen weekdays from 6am on KIIS 1065.1

1 http://www.kiis1065.com.au/shows/kyle-jackie-o/, accessed 17 July 2015.

2 The relevant segment was broadcast at approximately 7.45 am on 15 May 2015, and ran for approximately 5 minutes, including comments made by Mr Sandilands directly after the interview ceased. It commenced with an introduction by the two presenters explaining and commenting on a news story about Mr Depp’s dogs being brought into the country and public statements made by Mr Joyce in response.

Ms Henderson stated:

Barnaby Joyce has said that they should ‘bugger off’ back to Hollywood otherwise they will be, er, you know, put down […]

Mr Sandilands said that, while he agreed that the actor had ‘done the wrong thing’ and should have gone through the proper channels, he found it ‘quite disgraceful’ that a Government Minister said:

[…] ‘bugger off’ back to Hollywood or we’ll euthanise your dogs. It’s just too much […]

Mr Joyce was introduced and Mr Sandilands immediately asked if his comments were:

[A] little bit overboard, don’t you think? Were you grandstanding here a bit – you and Johnny Depp having a big standoff, or do you regret that choice of words?

They exchanged views before Mr Sandilands commented:

Sorry Barnaby, you might not be able to hear what I’m saying properly, but what I said was, I’m not saying that the guy didn’t do the wrong thing. I’m not saying that he shouldn’t be fined or the dogs shouldn’t be quarantined. What I’m saying is, you sound like an absolute clown telling the guy to bugger off back to Hollywood or we’ll kill his dogs. You sound like an idiot. You should have reworded your statement. Sound like a classy guy. You’re a Government Minister, not some idiot off the street mouthing off to a news camera. Have some decency.

Mr Joyce responded:

Jeez Kyle, that seems interesting coming from you, mate. You’re the number one clown on radio.

The interview then became more heated as further comments were exchanged and dialogue overlapped, before Mr Joyce said:

Have a listen to him, people. Have a listen to him. Have a listen to this fellow.

Mr Sandilands responded by saying:

Oh you’re a . Hang up on Barnaby. What a wanker. See ya later. What a loser.

At this point, at approximately 3 minutes into the segment, the interview was abruptly terminated. Mr Sandilands and Ms Henderson then briefly discussed the matter and she apparently attempted to calm him down.

Mr Sandilands then made further comments, including a reference to Mr Joyce being ‘just a gerbil of a thing’, to which Ms Henderson responded, ‘Oh. There’s no need for that’.

A transcript of the segment is at Attachment A.

ACMA Investigation Report—Kyle & Jackie O broadcast by KIIS 1065 on 15 May 2015 3 of 24 Error: Reference source not found

Submissions The complainant’s submissions are at Attachment B and the licensee’s submissions are at Attachment C.

Assessment This investigation is based on submissions from the complainant and the licensee, as well as a copy of the broadcast. Other relevant sources used have been identified in the report.

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.

Australian courts have considered an ‘ordinary reasonable’ 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

In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.

Issue 1: Program Content and Language

Relevant code provision The ACMA has investigated the broadcast material against the following provision of the Codes:

Code of practice 1: Programs unsuitable for broadcast 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,

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

4 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 the decency provision [code 1.3(a)] of the Codes.

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

An object of the Broadcasting Services Act 1992 (the BSA) is the promotion of the availability of a diverse range of radio services to audiences throughout Australia3. Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material4.

The purpose of the decency provision set out in the Codes is ‘to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes’. The ACMA will therefore consider what constitute ‘generally accepted standards of decency’ in light of prevailing community standards and attitudes.

The ACMA acknowledges that standards are not hard and fast and may change over time and across sections of the community. Determining any consensus is difficult because there are many standards within the community and there will be different views on these matters. Diverse audiences in Australia will not necessarily have tastes and standards in common.

The ACMA also acknowledges that most people are likely to accept, up to a point, that material that they find coarse or offensive may not be offensive to others. In any given circumstance context will play a key part in determining what offends - or does not offend - against generally accepted standards of decency.

In previous investigations against 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 sensitive5 ˃ the tenor or tone of the broadcast: for example, was it light-hearted or threatening; matter-of-fact or salacious6 ˃ the language used in the broadcast: for example, was it abusive, vulgar or lewd7 ˃ the attitudes conveyed: for example, did they display a contemptuous disregard for human life or suffering8.

3 See paragraph 3(1)(a) of the BSA 4 See paragraph 3(1)(h) of the BSA 5 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) 6 For example, ACMA investigations 2751 (Kyle & Jackie O Show broadcast on 2DAY FM in 2012) and 2848 (Bob Francis broadcast on 5AA in 2012) 7 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) 8 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)

It can be deduced from a number of previous ACMA investigations 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 uncomfortable9. 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 inappropriate for broadcast.

The complainant submitted:

[T]here was a stream of verbal abuse, inappropriate referencing, and the lack of courtesies that would normally be afforded to a Minister of the Crown.

The licensee submitted:

[The interview] was conducted in the context of the Minister making what could be seen as inflammatory statements in public on the issue of Johnny Depp’s dogs. We expect that the Minister will have been aware of the widespread criticism of his choice of words in his public statements including his use of the term “bugger off” and his threat that Mr Depp’s dogs may be euthanized. This created strong reactions in the community and internationally.

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

˃ What would the ordinary reasonable viewer 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?

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

Given the complaint and the required assessment in light of generally accepted standards of decency, consideration is given to the context of the broadcast, the subject matter of the segment, what it conveyed, and the nature and tone of the language used.

Context, subject matter and what it conveyed

The licensee has submitted:

[…] both participants put forward strong views. While certain words used by Mr Sandilands in his criticism of Mr Joyce and his actions were colloquial and robust, we do not consider the language used was outside generally accepted standards of decency, particularly having regard to KIIS 1065’s audience […] […] the attitudes conveyed were that the Minister should not himself be threatening on the international stage while representing the people of Australia.

The ACMA accepts that the subject matter was controversial and of interest to the community. Strong views had been expressed publicly about the alleged flouting of quarantine restrictions and about the comments made by Mr Joyce in the media.

An ordinary reasonable listener would have understood from the broader context, including the framing comments and manner in which the interview was conducted, that Mr Sandilands held and expressed strong views about the public statements made by Mr Joyce, and that Mr Joyce wished to make particular points about the importance of the relevant customs regulations.

9 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)

6 The ACMA has previously noted10 that there is a culture of robust political debate and expression in Australia, including that directed from or at participants in such discourse. In this case, while the material within the broadcast did not reflect the courtesies or behaviours that many would prefer to see in public discourse, the absence of such courtesies and behaviours will not necessarily lead to a conclusion that material offends against generally accepted standards of decency.

An ordinary reasonable listener would have understood that the material conveyed that the participants in the interview held strong views that were robustly exchanged, albeit in a manner clearly disrespectful to a Minister of the Crown.

Language and tone

The complainant submitted:

[The interview] contained language and behaviour that is outside the acceptable standards and norms of robust political debate and common decency in public broadcasting.

The licensee submitted that although the broadcast contained ‘strong language’ and was ‘potentially disrespectful’, the content was not offensive or threatening, and did not fall outside the ‘boundaries of the code’.

The licensee also submitted:

The criticism […] progressed after Mr Joyce referred to Mr Sandilands as “the number one clown on radio” and “a savage little man” […]

Over the course of the interview, which became increasingly heated, a number of phrases were used by Mr Sandilands, including:

 ‘Oh shut up, Barnaby, you’re a . No, but you’re an absolute joke, Barnaby. You get five minutes on the radio… or in the news camera…’  ‘Yeah I’m going off. I’m going off because you sound like an insensitive wanker. That’s what you sound like, Barnaby. You’re a joke, you’re a disgrace.’  ‘Oh you’re a . Hang up on Barnaby. What a wanker. See ya later. What a loser.’  [after Mr Joyce was disconnected] ‘Just a… just a gerbil of a thing’.

At several points Mr Joyce continued to engage with Mr Sandilands by using phrases such as:

 ‘You should go off, mate. You should go off. You’re just going off.’  ‘Keep going, mate … Keep going, mate ... Keep going, mate ... Good on you. Keep going, Kyle.’

While most of the language used by Mr Sandilands in the segment was not offensive or indecent within the context of a robust debate, the use of the term ‘wanker’, particularly when directed at another person, requires further consideration. The Macquarie Dictionary (6th edition) defines the word as:

Noun Colloquial (taboo) 1. Someone who masturbates.

10 See ACMA Investigations 2674 and 2717 (Alan Jones Breakfast Show broadcast by 2GB in 2011), and Investigation 3318 (A Current Affair broadcast by the Nine Network in 2014)

2. A foolish or objectionable person. 3. A self-indulgent or egotistical person11.

The ACMA accepts the licensee’s submission that the use of the word was not sexual in nature. In this case it was used consistent with the second and third definitions above.

While the ACMA has previously acknowledged that the word may be considered offensive or coarse by some members of the community12, in this case it is considered that the program’s regular listeners would understand the word is used in the ‘Australian vernacular’.

In this sense, the use of the word, while again disrespectful, does not constitute a breach of the decency provision within the context of a robust political debate on a controversial topic where apparently heated statements were made by both participants.

In relation to Mr Sandilands’s remark that Mr Joyce is ‘just a gerbil of a thing’, the licensee submitted:

This was a reference to a small mammal and nothing more. This did not include any depiction or description that was sexual in nature, nor any sexual connotation.

While the ACMA is aware of colloquial meanings that could be inferred from the comment, the lack of surrounding material supporting any such inferences renders the remark innocuous or, at worst, ambiguous. As such, the comment does not reach a level of offence that is in breach of the Codes.

The complainant also noted that the term ‘cock’ was used in the interview, however the ACMA is satisfied that this was censored from the broadcast.

In a robust interview on a subject of some political controversy, where a series of heated remarks were exchanged that escalated the tone and tenor of the language used, the phrases used by Mr Sandilands, while discourteous in terms of the conventions for political address13, were not so threatening, abusive, vulgar or contemptuous that they were not suitable for broadcast.

What are the demographic characteristics of the audience?

The decency provision of the Codes requires that regard be had to the demographic characteristics of the audience of the relevant program. Further, 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.

The licensee submitted that the program is the most popular breakfast show in Sydney:

It is estimated that approximately 100,000 listeners would have heard the Broadcast based on Survey 3, 2015.

The survey results are included at Attachment C.

The ACMA accepts that the program has broad popularity, particularly, in light of the submission from the licensee, with women aged 25 to 44 years.

11 https://www.macquariedictionary.com.au/features/word/search/?word=wanker&search_word_type=Dictionary, accessed 20 July 2015. 12 See ACMA Investigation 2132 (Sydney New Year’s Eve Broadcast on 2DAY in 2008) 13 http://www.aph.gov.au/senators_and_members/guidelines_for_contacting_senators_and_members/ how_to_address_senators_and_members, accessed 20 July 2015.

8 In considering compliance with the relevant code, one of the relevant characteristics of the audience of the program involves the likely expectations of that audience.

The licensee has submitted: The Show has been on air for ten years [and] given its dominant audience share, we make the following observations:  The audience knows what to expect – they know the Show can be irreverent […]  The huge listening numbers demonstrates [sic] that the Show is representative of the audience’s “taste and decency” […]  […] the audience is not niche but broadly representative of the community.

The licensee has also submitted that it received ‘only 15 complaints’ regarding the broadcast, and that of the 15 complaints, ‘10 indicated that they became aware of the Broadcast from a source other than KIIS 1065’. The licensee asserts that this figure, when compared with the number of likely listeners for the program, is ‘indicative that amongst the audience of the broadcast and the broader community there was very little concern regarding the content of the broadcast’.

The ACMA accepts that the audience of Kyle and Jackie O would have been familiar with the, at times, confrontational and irreverent style of the hosts, as well as the nature of the language frequently used on the program. This information, however, will not necessarily indicate the attitudes of the audience to this specific material nor will it mean that the content did not offend against generally accepted standards to the degree that it is inappropriate for broadcast.

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

The ACMA acknowledges that the interview contained some material that would be offensive to some sections of the community because:

 some of the language used was colloquial and discourteous  the interview quickly became heated and combative  the interview was terminated abruptly.

However, the ACMA makes the following observations which inform its view that the material did not breach the provision:

 given the surrounding news coverage, the subject matter was controversial and involved strongly held views  the subject matter, conduct of the interview and use of the particular colloquial language was not unsuitable for broadcast; it did not contain, for example, material that was sexually explicit or otherwise extremely sensitive, or overly vulgar in its use of language, or which conveyed contemptuous disregard for human life or suffering  Mr Sandilands’ comments, while disrespectful in terms of the conventions for political address, would be understood by listeners to be part of a robust exchange of views that escalated in tenor and tone throughout the short interview  the majority of the comments were made while Mr Joyce was still an active participant in the exchange (noting that Mr Joyce responded to a number of Mr Sandilands’s remarks)

 the material broadcast after the interview was terminated predominantly consisted of Mr Sandilands reiterating his frustration and the particular point he was trying to make to co-presenter Ms Henderson (who was, in turn, apparently attempting to calm him down and respond to certain comments made about Mr Joyce)  the program’s audience would be likely to be accustomed to and accommodating of the often confrontational style of, and colloquial language used by, the presenter, Mr Sandilands. Accordingly, the ACMA concludes that the material, in this context and as broadcast, did not breach the decency provisions of the Codes.

10 Issue 2: Treatment of participants in live hosted entertainment programs

Relevant codes provision The ACMA has investigated the broadcast material against the following provision of the Codes:

Code of practice 9: Live hosted entertainment programs

Purpose

The radio industry recognises that many people in the community consider children to have a special vulnerability in the context of live hosted entertainment programs and this Code is intended to address those concerns.

9.1 Subject to Codes 9.2 to 9.3 below, a licensee must not broadcast a program which, in all of the circumstances: (a) treats participants in live hosted entertainment programs in a highly demeaning or highly exploitative manner […] Demeaning: A depiction or description, sexual in nature, which is a serious debasement of the participant. […] Exploitative: Clearly appearing to purposely debase or abuse the participant for the enjoyment of others, and lacking moral, artistic or other values. Live hosted entertainment program: a program (excluding any news program and any current affairs program) that is produced and broadcast live to air and is a hybrid program, a substantial part of which includes the following components: (a) a live host; and (b) one or more of the following:  competitions  stunts;  pranks.

[…] 9.3 The obligation on a licensee under Code 9.1 will not be taken to have been breached in relation to adults if: (a) the participant consents prior to the broadcast of the relevant content in the program; and (b) the licensee informed the participant of the character of the relevant segment to be broadcast.

Finding The licensee did not breach the provision that deals with the treatment of participants in live hosted entertainment programs [code 9.1(a)] of the Codes.

Reasons The application of the code provision for treatment of participants in live hosted entertainment programs

The ACMA considers that the Kyle & Jackie O program is correctly characterised as a live hosted entertainment program within the meaning of the Codes.

Any participant in the program is therefore afforded the protections provided by the relevant provision. For the purpose of this investigation, Mr Joyce is taken to be such a participant.

While the code provisions are framed in terms of protections for children, they also explicitly provide protections for adult participants in such programs. Broadcast material must not, in all of the circumstances, treat an adult participant in either a highly demeaning or highly exploitative manner [emphasis added].

The use of the word ‘highly’ sets a high threshold for material to be in breach, and as the ACMA has previously indicated in another context14, the word ‘highly’ contemplates an ‘extreme scenario’. It will not be enough that an adult participant is demeaned or exploited for a program to be in breach.

To assess compliance in this case, the following questions have been addressed in the first instance:

 Was the material highly demeaning to the participant in all of the circumstances?  Was the material highly exploitative to the participant in all of the circumstances?

If the answer to either question is yes, then the licensee may not have been compliant with the code provision. For a breach to be found, the participant must also not have consented to the material prior to the broadcast and must not have been informed of the character of the relevant segment.

Was the material highly demeaning to the participant in all of the circumstances?

As noted, code 9.1 defines demeaning as:

A depiction or description, sexual in nature, which is a serious debasement of the participant.

As discussed above, the term ‘wanker’, as used by Mr Sandilands in reference to Mr Joyce, is colloquial in nature and was not used with a meaning that is sexual. Further, the material as broadcast did not contain any other material of a directly sexual nature.

Accordingly, the ACMA does not consider that Mr Joyce was treated in a highly demeaning manner.

Was the material highly exploitative to the participant in all of the circumstances?

As noted, code 9.1 defines exploitative as:

Clearly appearing to purposefully debase or abuse the participant for the enjoyment of others, and lacking moral, artistic or other values.

The relevant content must, in all the circumstances, ‘clearly appear to purposefully debase or abuse the participant for the enjoyment of others’.

14 See ACMA Investigation 2850 (Fear Factor broadcast by Network Ten in 2012)

12 The Macquarie English Dictionary (6th Edition) provides the following relevant definitions:

‘debase’

1. to reduce in quality or value; adulterate. 2. to lower in rank or dignity.15

‘abuse’

1. to use wrongly or improperly; misuse: to abuse authority […] 2. to maltreat; act injuriously towards […] 3. […] 4. to speak insultingly to; revile.16

The licensee submitted:

This was an emotional subject. Other commentators had been critical of the Minister’s statements on the subject, and the Broadcast interview was also critical of the Minister’s handling of the subject matter but not threatening in any way. Both Mr Sandilands and the Minister put forward strong views. While certain words were colloquial or robust, they were not used to ‘debase or abuse’ the Minister for the enjoyment of others. Mr Sandilands was clearly upset with the Minister and his stance on the subject. The interview language progressed after Mr Joyce referred to Mr Sandilands as “the number one clown on radio” and “a savage little man”.

The ACMA is satisfied that the broadcast did not treat Mr Joyce in a highly exploitative manner. Mr Sandilands engaged with Mr Joyce on points of particular contention that were the subject of wide contemporary reportage and controversy. These points directly concerned Mr Joyce’s portfolio as the Minister for Agriculture and public statements made by him.

Some of the language used by Mr Sandilands, specifically the term ‘wanker’ directed at Mr Joyce, is insulting and therefore constitutes a level of abuse. However, this level of abuse, when used within the context of a robust political discussion about strongly held views, where both participants made heated statements, does not reach the level of the test for being highly exploitative as contemplated within the relevant provision.

Further, given that the material involved a robust exchange of strongly expressed views within a matter of contemporary political debate that directly concerned Mr Joyce and his public statements, the ACMA considers that there is little likelihood of risk to the standing of Mr Joyce as a consequence of the broadcast.

In light of the material broadcast, it was not apparent, nor would an ordinary reasonable listener have understood, that Mr Sandilands set out to purposefully debase or abuse Mr Joyce for the enjoyment of others. The licensee has submitted:

[T]he content in question was not purposefully broadcast for the enjoyment of others as it arose from an emotional discussion of the topic in question.

As the material did not meet the relevant tests for being highly exploitative and did not appear to purposefully debase or abuse Mr Joyce for the enjoyment of others, it is not necessary to consider any moral, artistic or other values of the segment. Nor is it necessary to consider the issue of consent and information provided to the participant prior to the broadcast.

15 https://www.macquariedictionary.com.au/features/word/search/?word=debase&search_word_type=Dictionary, accessed 20 July 2015 16 https://www.macquariedictionary.com.au/features/word/search/?word=abuse&search_word_type=Dictionary, accessed 20 July 2015

Accordingly, the ACMA concludes that the material, in this context and as broadcast, did not breach the provisions relevant to the treatment of participants in live hosted entertainment programs within the Codes.

14 Attachment A Transcript of Kyle & Jackie O interview with the Hon. Barnaby Joyce MP, broadcast on KIIS 1065 on 15 May 2015

Jackie O: Ah Brooklyn, obviously everything in news today has been about these ah… terriers of Johnny Depp’s – Pistol and Boo – and ah… Barnaby Joyce has said that they should bugger off back to Hollywood otherwise they will be – you know – put down. And ah…

Kyle: Which I thought was disgraceful. Really. I thought as a Government Minister that’s quite disgraceful. Like, you know, I’m not saying the guy – he’s done the wrong thing – Johnny Depp, his people – whatever it is. They should have declared it. They should have gone through the proper channels. They should have got them quarantined. But we just sound like a bunch of hillbilly redneck losers saying ‘bugger off back to Hollywood or we’ll euthanise your dogs’. It’s just too much.

Jackie O: Well tell that to Barnaby Joyce.

Kyle: Barnaby Joyce, he’s on the phone now – hello?

B Joyce: Kyle, how are you, mate?

Kyle: Good. Ah, a little bit overboard, don’t you think? Were you grandstanding here a bit – you and Johnny Depp having a big standoff, or do you regret that choice of words?

B Joyce: No, I don’t Kyle. That’s the law. It’s no different for Mr Depp than it is…

Kyle: Yeah, but why do you have to sound like such a hero on air, making out like you’re going to kill someone’s dogs? A lot of dog lovers will be just hating your guts right now.

B Joyce: That’s fair enough, Kyle. They can do that.

Kyle: What?

B Joyce: Kyle, that’s the law, mate. That’s how it works.

Kyle: What, the law is you’ve got to act like an idiot and tell everyone you’re going to kill someone’s dogs? Is that the law, is it?

B Joyce: Well Kyle, if we ended up with rabies in this country, Kyle, you’d have all your listeners completely up in arms. If we had leishmania come into this country your listeners would be up in arms. If we had leptospirosis come in… These diseases, Kyle, are next door, mate. They’re not 1000 miles away, and they’re definitely in the United States. We have laws…

Kyle: Sorry Barnaby, you might not be able to hear what I’m saying properly, but what I said was, I’m not saying that the guy didn’t do the wrong thing. I’m not saying that he shouldn’t be fined or the dogs shouldn’t be quarantined. What I’m saying is, you sound like an absolute clown telling the guy to bugger off back to Hollywood or we’ll kill his dogs. You sound like an idiot. You should have reworded your statement. Sound like a classy guy. You’re a

Government Minister, not some idiot off the street mouthing off to a news camera. Have some decency.

B Joyce: Jeez Kyle, that seems interesting coming from you, mate. You’re the number one clown on radio.

Kyle: Oh shut up, Barnaby, you’re a . No, but you’re an absolute joke, Barnaby. You get five minutes on the radio… or in the news camera…

B Joyce: You should go off, mate. You should go off. You’re just going off.

Kyle: Yeah I’m going off. I’m going off because you sound like an insensitive wanker. That’s what you sound like, Barnaby. You’re a joke. You’re a disgrace.

B Joyce: Keep going, mate. Keep going on, mate. Keep going, mate. Good on you. Keep going, Kyle.

Kyle: And you should… you should retract your statement and reword it properly. Have you gone red yet, Barnaby? Have you gone all red? Are you all embarrassed about yourself?

Jackie O: All right. We don’t need to… we don’t need it to get so heated.

B Joyce: You’re a savage little man, aren’t you? You’re a savage little man.

Kyle: No no, I’m not even a little man. I’m six foot one, Barnaby. Wake up to yourself. People don’t like people talking about animals like that.

B Joyce: Have a listen to him, people. Have a listen to him. Have a listen to this fellow.

Kyle: Oh you’re a . Hang up on Barnaby. What a wanker. See ya later. What a loser.

Jackie O: Well we haven’t had an interview like that for a while. Well that was heated.

Kyle: What a loser. What a joke! ‘Oh you’re a funny little man.’

Jackie O: I didn’t expect it to get that heated.

Kyle: What an idiot. The guy’s a fool.

Jackie O: You… I get, yes, and your point was clear. That he was not…

Kyle: Yes, Barnaby just wanted… had all his little words down… he’d written them all down – all the diseases that could come. That’s not my point.

Jackie O: No, I know. And that’s the thing…

Kyle: My point was he sounds like an idiot saying to someone, ‘bugger off back to Hollywood or we’ll kill your dogs’. That’s not cool, Barnaby. I’m not arguing the point – the reason that you want the situation looked into. Justified. Sounding like a little ponce on there, who thinks he’s greater than the rest of us is not what I want.

Jackie O: Settle down. I know you’re getting very, very angry.

16 Kyle: What’s wrong with you? Jackie, I’m very annoyed with the guy.

Jackie O: I know, I know. But…

Kyle: You’re not annoyed with the guy?

Jackie O: Oh yeah, I think his choice of words was wrong – ‘bugger off to Hollywood or, you know, we’ll put your dogs down’ – I agree is the wrong way to put it.

Kyle: Should just feel like an idiot.

Jackie O: I feel it’s really hit a nerve with you more so than I think it has with me. I think you’re very riled up about it.

Kyle: Alright, well when my nerves hit I’ve noticed that it’s like you’ve had a half a packet of Valium. And I understand you have to do that – it’s a balancing act.

Jackie O: Yeah totally. I go the other way. It’s like a set of scales. [Laughs] Well, Barnaby won’t be back on the show again. I can guarantee that.

Kyle: Well Barnaby, I just can’t… Like the guy – just an idiot.

Jackie O: Anyway. Anyway. We’re going to…

Kyle: Just a… just a gerbil of a thing.

Jackie O: Oh. There’s no need for that.

Kyle: Yes, there - that’s what I do. When I get pissed off that’s how I speak. Too bad.

Jackie O: Well we’re going to do the pop quiz a little bit later. Let me tell you the answer to question number two in today’s pop quiz is America. I’m trying to move on. Um and we’re going to do…

Kyle: No one’s listening to what you’re saying. Everyone’s too busy laughing.

Jackie O: And we’re going to do a round of ‘I want you back’ coming up next.

Kyle: Plus Shaggy! On the air in an hour here at KIIS. This is Zedd and Selena Gomez now. Morning everyone. ‘Oh g’day, I’m Barnaby Joyce! I’m gonna kill your dogs!’

[Music]

Attachment B Complainant’s submissions

Letter to licensee dated 15 May 2015

I write to register a formal complaint […] following the verbal abuse and profanities the Minister was subjected to today (15 May, 2015) by KIIS-106.5 FM radio broadcaster, Mr Kyle Sandilands. The interview conducted by Mr Sandilands contained language and behaviour that is outside the acceptable standards and norms of robust political debate and common decency in public broadcasting.

Mr Joyce was […] immediately subjected to a stream of invective, which included Mr Sandilands describing Mr Joyce variously as: “a cock” and a “wanker”. Mr Joyce was also called “a loser”, “an idiot”, “a fool”, “a disgrace”, “an absolute joke” and “a ponce”. After hanging up on Mr Joyce, Mr Sandilands described Mr Joyce as a “gerbil of a thing”, a phrase which has extremely ugly connotations.

On the basis that Mr Joyce was not given an adequate opportunity to reasonably discuss the subject for which he was invited on the program, that there was a stream of verbal abuse, inappropriate referencing, and the lack of courtesies that would normally be afforded to a Minister of the Crown, I am writing to request you review the matter and consider whether a public apology is warranted.

18 Attachment C Licensee’s submissions

Letter to complainant dated 2 June 2015

We have reviewed with our senior management and content teams, the audio of the segment to which you refer with regard to our obligations as a broadcaster, including under the Commercial Radio Codes of Practice (Code).

As you will be aware, Mr Joyce's public stance on the issue of Johnny Depp's dogs created strong reactions in the community and internationally. We expect Mr Joyce will also have been aware of the widespread criticism of his choice of words in his public statements including his using the term "bugger off" and his threat that Mr Depp's dogs may be euthanized.

It is in this context that Mr Joyce agreed to appear on KllS1065.

In the radio segment in question, Mr Sandilands commented on Mr Joyce's choice of words in his earlier public statements. During the course of the exchange Mr Joyce referred to Mr Sandilands as "the number one clown on radio" and "a savage little man".

We acknowledge that the interview conducted dealt with an emotional topic, and that both participants put forward strong views. While certain words used by Mr Sandilands in his criticism of Mr Joyce and his actions were colloquial and robust, we do not consider the language used is outside generally accepted standards of decency particularly having regard to KllS1065's primary audience targets, and the demographic profile of that audience.

KllS1065 employs an experienced Content Adviser who was monitoring the interview as it took place. This employee took the decision that one of the words used by Mr Sandilands ("cock") was not appropriate, and this word was censored from the broadcast, and as such, was not heard by the audience.

We are well aware of our obligations as commercial broadcasters in relation to taste and decency and we do not believe we have breached any Code of Practice by broadcasting the content you have mentioned

Immediate Actions

Notwithstanding the above, I can confirm that having regard to your office's concerns expressed on the morning of the interview, KllS1065 took the following actions that day:

• The interview was not rebroadcast at any time during the day; and

• The interview was not promoted on any ARN or KllS1065's digital channels (web, mobile, social).

Submission to the ACMA dated 29 June 2015

Context of the Broadcast

The interview included in the Broadcast was conducted in the context of the Minister making what could be seen as inflammatory statements in public on the issue of Johnny Depp’s dogs. We expect the Minister will have been aware of the widespread criticism of his choice of words in his public statements, including his using the term “bugger off” and his threat that Mr Depp’s dogs may be euthanized. This did, and continues to create strong reactions in the community and internationally.

Before the Broadcast the Minister had already been subject to difficult interviews on the subject matter, including on the television current affairs program The Project the evening before (we can provide a link if required). Given this, and the widely known irreverent style of Mr Sandilands, we submit that the Minister and listeners would have expected that the interview would have been potentially confrontational.

The Broadcast

We believe that the language used in the Broadcast, while strong, was not outside the boundaries of generally accepted standards of decency, particularly having regard to the broadcast’s demographic (refer below).

In relation to the common factors relevant to decency as identified by the ACMA in previous investigation reports and the ACMA’s recently released paper titled Decency Classification and Harm and Offence (the Investigation Paper) we submit:

 The subject matter – the subject matter of the Broadcast was not offensive;

 Tenor and tone of the broadcast – while this was an emotional subject, the interview was critical of the Minister’s handling of the subject matter and not threatening in any way;

 Language – both participants put forward strong views. While certain words used by Mr Sandilands in his criticism of Mr Joyce and his actions were colloquial and robust, we do not consider the language used was outside generally accepted standards of decency particularly having regard to KIIS1065’s audience.

 We note that in the first instance, the criticism was of Mr Joyce’s comments about Mr Depp’s dogs, however progressed after Mr Joyce referred to Mr Sandilands as “the number one clown on radio” and “a savage little man”.

 KIIS1065 employs an experienced Content Advisor who was monitoring the interview as it took place. The employee took the decision that one of the words used by Mr Sandilands (“cock”) was not appropriate, and this word was censored from the broadcast, and as such, was not heard by the audience.

 The attitudes conveyed – the attitudes conveyed were that the Minister should not himself be threatening on the international stage while representing the people of Australia. We do not consider this could be interpreted as in conflict with the Code.

20 While statements made about the Minister in the Broadcast were potentially disrespectful, we submit that they were not outside the boundaries of the Code. We note that in Investigation Report 2674 and 2717 issued by the ACMA and in the Investigation Paper the ACMA noted the following in respect of disrespectful comments made on the Alan Jones breakfast show about holders of public office:

“A number of these statements are very disrespectful to the Prime Minister and others in public office. However, as noted above, none of the statements would be taken literally…

The references are not the type or of a level that could be said to breach the Codes. Strongly and colloquially expressed views are a common feature of Australian political discourse generally and the discourse of politicians themselves.”

We submit that this is particularly relevant in the case of the Minister having regard to his own use of colloquial expressions in the public arena as referenced above.

Kyle and Jackie O demographic

The Show is the most popular breakfast show in Sydney [ratings survey results provided to the ACMA].

It is estimated that approximately [figure supplied to the ACMA] listeners would have heard the Broadcast based on Survey 3, 2015. This and further details of recent surveys are attached as an Annexure to this letter.

The Show has been on air for ten years and has been the strongest FM breakfast show in Sydney for all but the first year. As such, and given its dominant audience share, we make the following observations:

 The audience knows what to expect – they know the Show can be irreverent, as it has been over its long reign as the most popular show in Sydney

 The huge listening numbers demonstrates that the Show is representative of the audience’s “taste and decency” – the audience has had a long time to decide it’s not for them and switch off if they thought otherwise.

 The Show has the largest cumulative audience in Sydney – the audience is not niche but broadly representative of the community.

Other Complaints Received

KIIS1065 received a total of only 15 complaints from an estimated listener audience of [figures provided to the ACMA]. Of the 15 complaints, 10 indicated that they became aware of the Broadcast from a source other than KIIS 1065. We submit that 5 direct complaints from an estimated listener audience of [figure provided to the ACMA] is an extremely low number. 10 complaints received from the additional wide media coverage is also an extremely low number. The small number of complaints is, we submit, indicative that amongst the audience of the Broadcast and the broader community there was very little concern regarding the content of the Broadcast.

Submission to the ACMA dated 14 July 2015

Code of Practice 9: Live Hosted Entertainment Programs

The Purpose of Code 9 is stated as:

“The radio industry recognises that many people in the community consider children to have special vulnerability in the context of live hosted programs and this Code is intended to address those concerns”

Code 9.1(a) states:

“Subject to Codes 9.2 to 9.3 below, a licensee must not broadcast a program which, in all of the circumstances: (a) treats participants in live hosted entertainment programs in a highly demeaning or highly exploitative manner; …”

Code 9.3 is relevant to the extent that it provides clarification as to relevance to adults:

“The obligation on a licensee under Code 9.1 will not be taken to have been breached in relation to adults if: (a) The participant consents prior to the broadcast of the relevant content in the program; and (b) The licensee informed the participant of the character of the relevant segment to be broadcast”

Analysis of the Broadcast – Code 9.1(a)

The primary purpose of Code 9 is to recognise the vulnerability of children in a live hosted broadcast. We accept that Code 9.1(a) does apply in relation to adults but note that it imposes a significantly higher threshold than that applicable to children under Code 9.1(b).

For the program to have breached Code 9.1(a), it would be necessary to determine that ‘in all of the circumstances’ the Minister was treated in a “highly” demeaning or “highly” exploitative manner.

The ACMA stated in its Investigation Report 2850 (in relation to similar wording in the Commercial Television Industry Code of Practice 2010) that ‘use of the word “highly” indicates that the Code contemplates an extreme scenario and sets a strong test for the prohibited program material”. We submit that the same interpretation should be applied to Code 9.1(a).

Demeaning is defined in the Code as “a depiction or description, sexual in nature, which is a serious debasement of the participant”. We contend that this was not the case. The language used in the Broadcast, while strong, was not sexual, nor were there any sexual references.

We are not aware of any complaint being raised in relation to the Broadcast being sexual in nature by [the complainant] and no such complaints were received by ARN in relation to the Broadcast. In our view the only word included in the Broadcast that could be used in any sexual context is “wanker” and this expression in the context of the Broadcast was clearly used in the colloquial and broadly accepted sense. In any event, the use of such a common colloquial expression could not be considered a “serious debasement” of the Minister as required by the Code.

22 We note that in the ACMA investigation report 2132 (2009) it was stated in relation to the words “wanker”, “cock” and “cockhead” that;

“The delegate acknowledges these words may be considered offensive by some individual members of the community. The delegate however, considers 2DAY’s [in reference to the then broadcaster of the Kyle and Jackie O Show at the time] regular weekday listeners would understand these words are widely used in the ‘Australian vernacular’, and are, by general community standards, considered mild or moderate colloquialisms.”

We also note that the word gerbil was used in the Broadcast. This was a reference to a small mammal and nothing more. This did not include any depiction or description that was sexual in nature, nor any sexual connotation.

Exploitative is defined as “clearly appearing to purposefully debase or abuse the participant for the enjoyment of others, and lacking moral, artistic or other values”. Again, we contend this was not the case. This was an emotional subject. Other commentators had been critical of the Minister’s statements on the subject, and the Broadcast interview was also critical of the Minister’s handling of the subject matter but not threatening in any way. Both Mr Sandilands and the Minister put forward strong views. While certain words used by Mr Sandilands in his criticism of Mr Joyce and his actions were colloquial and robust, they were not used to “debase of abuse” the Minister for the enjoyment of others. Mr Sandilands was clearly upset with the Minister and his stance on the subject. The interview language progressed after Mr Joyce referred to Mr Sandilands as “the number one clown on radio” and “a savage little man”.

To the extent, if any, that the ACMA considers that expressions used in the Broadcast could be interpreted as debasing or abusing the Minister, we submit that these could not be interpreted as being “highly exploitative” as required by the Code. Further, the content in question was not purposefully broadcast for the enjoyment of others as it arose from an emotional discussion of the topic in question.

Mr Sandilands’ position was based on the strong belief that the Minister should not have adopted the stance and choice of words he did in relation to Mr Depp’s dogs. The Broadcast therefore was not lacking “moral, artistic or other values” as would be required for it to be in breach of Code 9.1(a).

In the ACMA investigation report 2928, when finding that a broadcast was in breach of Code 9.1(a), the ACMA noted in relation to the serious nature of the relevant broadcast that; a) the future employment of the individual concerned could have been put in jeopardy; and b) that the broadcast would have made them feel foolish and gullible.

The Broadcast in our view could have no comparable implications for the Minister. The implications for the Minister. The implications of the Broadcast must be distinguished from the damage to the reputation of the Minister arising from his own actions in relation to Mr Depp’s dogs.

It is an overall requirement of Code 9 that the Broadcast be considered “in all the circumstances”. We submit that such circumstances include the context outlined above with regard to the Minister’s actions and awareness of Mr Sandilands’ style.

Given the above, we submit that the Broadcast was not in breach of Code 9.1(a).

Analysis of the Broadcast – Code 9.3

Notwithstanding the above, we note that Code 9.3 states “The obligation on a licensee under Code 9.1 will not be taken to have been breached in relation to adults if:

(a) the participant consents prior to broadcast of the relevant content in the program; and (b) the licensee informed the participant of the character of the relevant segment to be broadcast”

We submit that:

1. The Minister consented to a live broadcast interview on the subject; and

2. Before the Broadcast, the Minister had already been subject to difficult interviews on the subject matter. Given this, and the widely known irreverent style of Mr Sandilands, we submit that the Minister and listeners would have expected that the interview would have been potentially confrontational.

Given this, ARN submits that Code 9.1 would not apply to the Broadcast.