Investigation Report No. 3062

File No. ACMA2013/258

Licensee Harbour Radio Pty Limited

Station 2GB

Type of Service Commercial Radio

Name of Program Chris Smith Afternoon Show

Date of Broadcast 20 November 2012

Relevant Codes Clauses 2.2(a), and 5.5 of the Commercial Radio Australia Codes of Practice and Guidelines 2011

Date finalised 21 February 2014

Decision No breach of clause 2.2(a) [accuracy in current affairs programs] Breach of clause 5.5 [response to complaints]

ACMA Investigation Report 3062 – Chris Smith Afternoon Show broadcast by 2GB on 20 November 2012 1 Error: Reference source not found

The complaint On 20 June 2013, the ACMA decided to commence an investigation into the program, the Chris Smith Afternoon Show broadcast on 20 November 2012 by Harbour Radio Pty Limited, the licensee of 2GB Sydney (the licensee). The ACMA commenced the investigation following consideration of a complaint that the licensee broadcast the inaccurate statement that ‘95% of refugees or boat people are still on welfare 5 years after they arrive’. That complaint was made prematurely in terms of section 148(c)(i) of the Broadcasting Services Act 1992 (BSA), and so was not a valid complaint under section 148 of the BSA. However, the ACMA decided to rely on its general investigation power under section 170 of the BSA1 to investigate the licensee’s compliance with clauses 2.2(a) [accuracy in current affairs programs] and 5.5 [response to complaints] of the Commercial Radio Australia Codes of Practice 2011 (the Codes).

The program The Chris Smith Afternoon Show is an afternoon program broadcast on weekdays from 12.00 pm to 3.00 pm. The program is described on 2GB’s website as follows:

Chris Smith has built an impressive career both in Australia and abroad covering news and current affairs in radio and TV ... While still news focussed, Chris presents a lighter format covering lifestyle and entertainment.2

It is a current affairs program for the purposes of the Codes.3

On 20 November 2012, Mr Smith discussed a Greens Party proposal to grant humanitarian visas to Afghan interpreters working with Australian troops in Afghanistan. He stated:

95 per cent of people that come here as refugees or boat people end up on welfare five years later.

A transcript of the broadcast is at Attachment A.

Assessment This investigation is based on submissions from the complainant and the licensee, the initial complaint made to the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources have been identified where used. 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’ listener. Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

1 Under section 170 of the BSA, the ACMA has the power to conduct an investigation for the purpose of any of its broadcasting functions.

2 http://www.2gb.com/shows/chris-smith-afternoon-show, accessed 19 December 2013.

3 The Codes define a ‘current affairs program’ to mean: a program a substantial purpose of which is to provide interviews, analysis, commentary or discussion, including open-line discussion with listeners, about current social, economic or political issues.

2 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 affairs4.

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn. Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether or not that material has breached the Codes.

Issue 1: Accuracy

Relevant clause of the Codes News and Current Affairs Programs

2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a) factual material is reasonably supportable as being accurate;

Complainant’s submissions The complainant submitted to the licensee that:

The presenter Chris Smith stated that 95% of refugees or boat people are still on welfare 5 years after they arrive. This statistic was presented as a fact without any background or where this statistic came from. I believe that the news was not presented accurately [nor] that this is an accurate statement.

Licensee’s submissions The licensee submitted to the ACMA in a letter that:

Insofar as the complaint is concerned, the presenter makes the following statement:

The problem is that 95% of people that come here as refugees or boat people end up being on welfare five years later.

The context for this statement was a discussion regarding Afghani immigrants to Australia.

The presenter’s statement is substantiated by the following.

1. An article published by The Australian on 18 September 2012.

2. An article published by the Daily Telegraph on 5 May 2011.

A copy of this source material is reproduced below.

In our view, the media sources reproduced below substantiate the presenter’s statement.

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

The media articles relied on by the licensee are at Attachment B.

Finding The licensee did not breach clause 2.2(a) of the Codes.

Reasons Is the statement ‘factual material’? Clause 2.2(a) of the Codes applies to the presentation of factual material in current affairs programs. Accordingly, the ACMA must first determine whether the relevant material amounts to factual material or the expression of an opinion. The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment C. The ACMA notes that the talk-back format is a common feature of current affairs programs providing analysis, commentary and discussion with listeners about current social, economic or political issues. Such programs frequently approach matters from a strong viewpoint and the ACMA acknowledges that this is part of their appeal or value to listeners and in the broader context of public discourse. In this context, much of what is said on talk-back radio will be in the nature of opinion. However, care must be taken where factual material forms the basis of the opinion expressed in a current affairs broadcast. Where a current affairs talk-back program, such as the Chris Smith Afternoon Show, includes factual material, clause 2.2(a) of the Codes requires that the licensee must use reasonable efforts to ensure that it is reasonably supportable as being accurate. In this case, the relevant statement (in bold) was made in the following context: Chris Smith: The problem is that 95% of people that come here as refugees or boat people end up being on welfare five years later. In this case, we’ve got people who are prepared to translate, they’ve learnt English, they can communicate in English, they are able to be taught, and I think they stand a better chance of being a valuable member of their new country than others.

The ACMA considers that the statement is factual material as it was made unequivocally and without qualification, both the figure and the time period are specific, and the statement is capable of independent verification. In the context of the broadcast, the ACMA considers that the statement conveyed that 95 per cent of Afghan refugees or boat arrivals are in receipt of government benefits five years after they arrive. While Mr Smith refers to ‘people’ rather than Afghans specifically in the relevant statement, the ACMA considers that the ordinary reasonable listener, in the context of the broadcast as a whole, would have understood that he was referring to Afghans for the following reasons:  The topic of the broadcast was Mr Smith’s support for a Greens Party proposal to provide Afghan interpreters with humanitarian visas to acknowledge their service to Australia’s armed forces in Afghanistan.

4  Prior to the relevant statement, Mr Smith expressed his opinion that the Afghan interpreters are more worthy of humanitarian visas than other categories of Afghan migrants: …The interpreters didn’t flee. They, not only that, they’ve placed their heads on the chopping block by working for the forces such as Australia, Britain and the United States as interpreters. I think that deserves some consideration, don’t you?

 Immediately following the relevant statement and at the conclusion of the second call, Mr Smith continued to praise the worthiness of Afghan interpreters: …In this case, we’ve got people who are prepared to translate, they’ve learnt English, they can communicate in English, they are able to be taught, and I think they stand a better chance of being a valuable member of their new country than others. … … we are working with these interpreters, we know them very well, we know their families. Some of them are with us in the front line, we’ve had VC recipients fight on behalf of their safety, like these aren’t unknown people, we know that their commitment is in the right place. Did the licensee use reasonable efforts to ensure the statement was ‘reasonably supportable as being accurate’? As the ACMA considers the relevant statement is factual material, the next consideration is whether the licensee made reasonable efforts to ensure the statement was ‘reasonably supportable as being accurate’ at the time of broadcast (the reasonable efforts obligation). What efforts are ‘reasonable’ in a given situation will depend on all the relevant circumstances. While clause 2.2(a) does not impose an absolute or best efforts obligation to ensure factual material is reasonably supportable as being accurate, the material relied upon to support the accuracy of a fact should be commensurate with the nature and context of the subject matter. The licensee submits that it discharged its reasonable efforts obligation on the basis of two media sources that it cited to substantiate the statement. The licensee also relies on recent investigations5 where the ACMA accepted that, in many situations, reference to and reliance on current mainstream media will be evidence of a licensee’s reasonable efforts to ensure that factual material is reasonably supportable as accurate. The licensee particularly drew the ACMA’s attention to the two following extracts from the media sources:

For example, the employment rate of humanitarian migrants from Afghanistan was recorded at only 9 per cent – note this is not the unemployment rate – five years after settlement and nearly 94 per cent of households from Afghanistan received Centrelink payments.6

5 Investigation Reports 2540, 2597, 2614 and 2636.

6 The Daily Telegraph article, published on 5 May 2011.

The greatest unemployment rate was recorded among new arrivals from Iraq and Afghanistan, with less than one in 10 finding full-time work and 93.7 per cent of households receiving Centrelink payments.7

The ACMA considers that these articles are adequate to support the licensee’s claim that it used reasonable efforts to ensure the statement was reasonably supportable as being accurate at the date of broadcast. The media sources relied upon cite statistics from an April 2011 Department of Immigration and Citizenship report8 that five years after arrival in Australia, 94 per cent of Afghan refugee households received Centrelink payments and 91 per cent of the individuals were not employed. The ACMA also notes that the statistics cited in the articles refer to arrivals from Afghanistan through the humanitarian settlement program, which includes Afghans who arrived by boat and were subsequently granted protection visas. As such, the ACMA considers that the material provided by the licensee supports Mr Smith’s reference to ‘refugees or boat people’. The ACMA notes the slight variance between the figure cited by the presenter (95 per cent) and the figures cited in the media sources (94 per cent and 93.7 per cent) relied upon by the licensee. In the context of the broadcast, the ACMA considers the variance is immaterial and the figure cited by the presenter is reasonably supported by the media sources. In these circumstances, the ACMA finds that the licensee used reasonable efforts to ensure the statement was reasonably supportable as being accurate in compliance with clause 2.2(a) of the Codes.

Issue 2: Complaints handling

Relevant clauses of the Codes

Complaints 5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint. [...]

5.8 The licensee must make every effort to resolve complaints made in accordance with this Code, except where the complaint is, in the reasonable opinion of the licensee, frivolous, vexatious or an abuse of the complaint process under the Code.

7 The Australian article, published on 18 September 2012.

8 Settlement Outcomes for New Arrivals: Report on findings for the Department of Immigration and Citizenship, April 2011, Australian Survey Research Group. The full text is available at www.immi.gov.au/media/publications/research/_pdf/settlement-outcomes-new-arrivals.pdf, accessed 19 December 2013.

6 Licensee’s submissions The licensee has advised the ACMA that it received the complaint however it did not respond because:

[the complainant] is a serial complainant. [The complainant] lodged a complaint on 31/8/12 with 2GB, and then subsequently the ACMA on 21/11/12. That complaint has been the subject of an ACMA investigation in which the ACMA issued a Preliminary Investigation Report with a preliminary non-breach finding of the substantive provisions of the code.

We note that [the complainant] lodged his complaint with the ACMA on that matter on the same day that he lodged one of these further complaints with 2GB.

2GB formed the opinion, on reasonable grounds, that these latter two complaints received by 2GB are frivolous, vexatious or an abuse of the complaint process for the purpose of code 5.8.9

In response to the Preliminary Investigation Report, the licensee submitted the following:  the ACMA’s interpretation of the word ‘vexatious’ is not in accordance with the definition provided in the Vexatious Proceedings Act and its interpretation of ‘abuse of the complaint process’ is not consistent with interpretations given by the Courts  the historical conduct of a complainant is relevant to both an assessment of whether a complaint is ‘vexatious’ and (relatedly) whether a complaint constitutes ‘an abuse of the complaints process’  the complainant was a serial complainant whose complaint was: o without merit o in the context of the complainant’s history, was designed to harass or annoy the licensee  accordingly, it was reasonable for the licensee to form the view that the complaint in this investigation was vexatious and an abuse of the complaints process.

The licensee’s full submission is at Attachment D. Finding The licensee breached clause 5.5 of the Codes.

Reasons Operation of clauses 5.5 and 5.8

The ACMA does not accept the licensee’s submission that clause 5.8 provides an exception to the licensee’s obligations under clause 5.5. Clause 5.8 creates a completely separate obligation to the obligation under clause 5.5. Clause 5.5 requires, inter alia, that the licensee respond substantively to complaints within 30 business days of receipt. In contrast, clause 5.8 creates a separate obligation requiring the licensee to make every effort to resolve complaints, except where the licensee is of the reasonable opinion that the complaint is frivolous, vexatious or an abuse of the complaint

9 2GB provided joint submissions for this and a further complaint lodged by this complaint with 2GB on 21 November 2012, that is considered by the ACMA in Investigation Report 3063.

ACMA Investigation Report 3062 – Chris Smith Afternoon Show broadcast by 2GB on 20 November 2012 7 Error: Reference source not found process. The exceptions apply to the licensee’s obligation to resolve complaints in clause 5.8, not to the licensee’s obligation to respond to complaints in clause 5.5. In other words, clause 5.5 creates an unqualified obligation on licensees to respond substantively to a complaint made in accordance with clause 5.1. Even if the licensee forms the reasonable opinion that a complaint is frivolous or vexatious, clause 5.5 still requires the licensee to respond to the complainant which, in this particular circumstance, would require the licensee to set out the opinion it has formed (i.e. that the complaint is frivolous or vexatious) and, importantly, that the complainant can refer their complaint to the ACMA if not satisfied with the licensee’s response. Accordingly, by failing to acknowledge receipt of the complaint and respond substantively to the complainant within the timeframe, the licensee breached clause 5.5 of the Codes. Frivolous, vexatious or an abuse of process The ACMA’s view of clause 5.5 means that it does not need to determine whether the licensee could have reasonably formed the opinion that the complaint was frivolous, vexatious or an abuse of the complaints process. However, given the licensee’s submissions on the subject, the ACMA has given the matter careful consideration. In earlier decisions, the ACMA has reflected on the meanings of the relevant terms. Frivolous refers to a complaint that is not worthy of serious attention, either because it is made for purposes of amusement or levity (and is not meant to be taken seriously) or, if made with serious intent, because the complaint deals with mere trifles (i.e. it raises matters of little or no weight, worth or importance). Vexatious refers to complaints made without sufficient grounds, for the purpose of causing trouble or annoyance to the subject of the complaint. The term ‘abuse of process’ refers to pursuing a complaint for an improper or ulterior purpose. In its submissions, the licensee referred to the complainant as a ‘serial complainant’, suggesting that lodgement of a series of complaints by a single complainant necessarily means that the complaints could reasonably be considered to be frivolous, vexatious or an abuse of the complaints process under the Codes. However, clause 5.8 requires an assessment of the particular complaint rather than the complainant’s history. While the number of complaints can be relevant, the mere fact that a complainant has made previous complaints, whether or not these relate to a similar subject matter, does not of itself make the most recent complaint frivolous, vexatious, or an abuse of the complaints process. In this matter, the complaint was made with serious intent and raised an issue that could not reasonably be dismissed as trifling or of no importance. Rather, the issue complained of related to a Code matter of substance. Notwithstanding the investigation finding of no breach of clause 2.2(a), the ACMA does not consider that there was any basis upon which the licensee could reasonably form the opinion that this complaint was ‘frivolous’. Nor, having had regard to the history of correspondence from the complainant, does the ACMA consider that there was a basis upon which the licensee could reasonably conclude that the complaint was made only to cause annoyance. Lastly, the ACMA does not consider that there was any basis upon which the licensee could have reasonably formed the view that this complaint was made solely for the reasons outlined by the licensee or for any other improper or ulterior purpose, and that therefore the complaint was an abuse of the complaints process under the Codes.

8 The ACMA’s finding is that the licensee has breached clause 5.5 of the Codes by not responding to the complaint made by the complainant on 20 November 2012.

Attachment A

Transcript – Chris Smith Afternoon Show – 20 November 2012 Chris Smith: ... The other point that I wanted to raise with Barnaby, and I may be able to get you to see or basically to gauge what your thoughts are, the Australian Greens are trying to get major party support today for a visa program to resettle Afghan interpreters and support staff who worked alongside Australian troops. Now I don’t have too much respect for the Greens party at all because I think they’ve got well and truly away from what their mission statement and the reason for their existence was. However, I think this has legs. If you think about the 600 Afghans and their families who’ve gone to work for Australians and done the right thing by our country and the Allies and the danger they therefore put themselves in when we leave I think we’ve got to come to their aid. And that to me is really the definition of what humanitarian visas should be all about, protecting those in particular who have protected us. You may have a view on that - 131873 is the telephone number, it’s twelve to one, I’ll take your calls straight after a break. ... Chris Smith: ... 131873 the telephone number. A couple of emails through on these interpreters, Errol writes from Wyoming “Yes we should bring back those Afghans Chris who worked for us, unlike Whitlam who left our Vietnamese staff to the mercy of North Vietnam at the end of the war.” And he cites a source on that, I think there’s probably a decent argument Errol, thank you mate. Ros writes “Love your show listen at work via the internet” – don’t get caught Ros – “I agree that these Afghani support staff should be given protection however it should be done in a way that would protect their identity. A special visa may in some way be used to identify them and put them in danger in Australia”. You see the other point about the Afghans that we take from leaky boats, and many of these Afghans have been found to be legitimate refugees because of the time at which they fled places like Kabul when fighting against the Taliban was at its worst. But see the problem is you take an interpreter, they have remained in the country to do their bit for their fellow countrymen to get their country back in working order and others have fled. The interpreters didn’t flee. They, not only that, they’ve placed their heads on the chopping block by working for the forces such as Australia, Britain and the United States as interpreters. I think that deserves some consideration, don’t you? 131873. Caller 1, hi. Caller 1: A, a really hard and you know difficult to assess subject this. I, I remember what happened to the Vietnamese crew. The only problem is mate I’m a bit like Steph, if it’s got the Greens anywhere near it I’m, I’m very doubtful about its use and intent ... Chris Smith: Ah, I’m normally with you, but I’ve also heard Scott Morrison’s argument and to be perfectly honest this has been a policy that hasn’t belonged to Sarah Hansen-Young, although she seems to be taking ownership of it today. Caller 1: Well mate you know that’s another problem, I’m an Australian and I’m a bit like you, I’ve probably seen more sleeps than I’m going to have. And I see these inexperienced and foolish young people trying to run our nation. You know, what are people thinking about when they put the likes of Sarah Hansen-Young into Parliament. Chris Smith: It takes a long time to build a nation, ah it doesn’t take very long to pull it down.

10 Caller 1: Yeah. Chris Smith: ... and I think that’s what we’ve been doing Caller 1: Yeah, that’s what we’ve got to worry about here mate. Look, the good times are rapidly coming to an end. We need to look after us first and foremost. Sorry about the rest of the world mate, but charity starts at home. Chris Smith: Alright Caller 1. Twenty-six minutes after 1 o’clock. Caller 2, hi. Caller 2: Hi mate, how’re you going? Chris Smith: Good, thank you. Caller 2: Mm, yeah, with, I’m, I’m 50/50 on that one. I’m, you know, what about all the other blokes that, that fought on our side, they don’t get in there. Chris Smith: How do you mean, that have what? Caller 2: All the Afghani blokes that have fought on our side they’re not getting, but ... Chris Smith: But they have made a voluntary decision to fight for their country, and they can protect themselves because of the forces that they are now part of. Caller 2: And well, if you bring these blokes, do you bring the rest of their family as well? Chris Smith: Ah, you know ... Caller 2: You know, this is the extended family thing. Chris Smith: Yeah, yeah, yeah and, and where does it stop? Caller 2: You know like, well, does it, and does it ... Chris Smith: You know the difference is Caller 2, you know why I’m not so shaky on what may eventuate out of this, it’s because these people have skill, and you know ... Caller 2: What skill? Chris Smith: ... what we need? We need people with skill being brought ... Caller 2: What skill? Chris Smith: ... over as part of our humanitarian visa program and our refugee program. Caller 2: What skill? Chris Smith: The problem is that ... Caller 2: They can speak English? Chris Smith: The problem is that 95% of people that come here as refugees or boat people end up being on welfare five years later. In this case, we’ve got people who are prepared to translate, they’ve learnt English, they can communicate in English, they are able to be taught, and I think they stand a better chance of being a valuable member of their new country than others. Caller 2: Yep quite possibly. But, I’m not sure why the Government is actually bringing them here, like um to protect them is it? Chris Smith: Yeah, and some members of the Taliban have already ... Caller 2: If we’re going to do that, we’re going to have to bring half the country here. Chris Smith: Well there are some who are more worthy of it than others Caller 2, well, and it’s a decision that needs to be made.

Caller 2: Well I’m, I’m not sure we can make that decision because we don’t really know, we haven’t been there, and ... Chris Smith: Well, yes we have. We, we have got, hang on a minute, we are working with these interpreters, we know them very well, we know their families. Some of them are with us in the front line, we’ve had VC recipients fight on behalf of their safety, like these aren’t unknown people, we know that their commitment is in the right place. Caller 2: Well I could, I can accept that on the way you put it that way. Righteo, mate. Chris Smith: Alright, Caller 2. Thank you. 131873 is the telephone number. Now tomorrow is thank a paramedic day across NSW ...

12 Attachment B End the boatpeople-Centrelink cycle  From: The Australian http://www.theaustralian.com.au/opinion/columnists/end-the- boatpeople-centrelink-cycle/story-fnbkvnk7-1226476061727  September 18, 2012 The report, Settlement Outcomes of New Arrivals: Report of findings, was released last year by the department. The report's bland title is a give-away - vacuous, alliterative titles for government reports are virtually de rigueur these days. (Think: Smarter Manufacturing for a Smarter Australia.) The results on settlement outcomes are ugly.

Using the Longitudinal Survey of Immigrants to Australia, the research describes the position of the three key groups of migrants five years after settlement: skilled, family and humanitarian.

In keeping with the findings of previous research, it is absolutely clear that refugees fare very badly in terms of employment and financial self-sufficiency. And note that this study was conducted during a period of low overall unemployment.

For example, the employment rate of humanitarian migrants from Afghanistan was recorded at only 9 per cent - note this is not the unemployment rate - five years after settlement and nearly 94 per cent of households from Afghanistan received Centrelink payments.

According to the report, "Afghans have a different settlement experience compared with most other cultural groups, such as having poorer English skills and lower qualifications levels. Yet they are more likely to borrow money, obtain mortgages and experience difficulties in paying them."

Those from Iraq did little better, with 12 per cent employed and 93 per cent of households in receipt of Centrelink payments. Interestingly, those who did best in the humanitarian group were from Central and West African countries such as Sierra Leone.

Note that these refugees are the least likely to have arrived by boat.

A world of long-term welfare for refugees  From: The Daily Telegraph http://www.dailytelegraph.com.au/archive/national-old/a- world-of-long-term-welfare-for-refugees/story-e6freuzr-1226050094427  May 05, 2011 MORE than 60 per cent of refugees to Australia have failed to get a job after five years, according to a damning Federal Government report into the humanitarian settlement program. And 83 per cent of those households now rely on welfare payments for income. The greatest unemployment rate was recorded among new arrivals from Iraq and Afghanistan, with less than one in 10 finding full-time work and 93.7 per cent of households receiving Centrelink payments.

The statistics are contained in a Department of Immigration and Citizenship report released last Friday under the cover of the royal wedding. It is the first investigation into settlement of refugees in more than a decade. And more than 60 per cent of refugees have failed to get a job after five years, according to a damning Federal Government report into the humanitarian settlement program. A total of 83 per cent of refugee households now rely on welfare payments for income The greatest unemployment rate was recorded among new arrivals from Iraq and Afghanistan, with less than one in 10 able to find full time work and 93.7 of households receiving Centrelink payments. The statistics are contained in a Department of Immigration and Citizenship report. Those not considered "employed" after five years, were unemployed, retired, studying full time, engaged in caring duties, doing voluntary work or trying to start a business for which they had yet to receive income. More than 60 per cent of those without jobs had a poor command of English. The study of more than 8500 humanitarian entrants found that of those that came from Afghanistan or Iraq, about 93 per cent relied on welfare payments including unemployment benefits, youth allowance, Austudy or the child care rebate.

14 Attachment C Considerations to which the ACMA has regard in assessing whether or not broadcast material is factual in character

 The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.  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 listener/viewer.  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 listener/viewer, and the form of words introducing the relevant statement is not conclusive.  Factual material will usually be specific, unequivocal and capable of independent verification.  Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.  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.

Attachment D Licensee’s response to Preliminary Investigation Report

Harbour Radio makes no submission in relation to the ACMA’s findings on clause 2.2(a) of the Code in the PIRs.

However, in relation to the ACMA’s findings on clause 5.8 of the Code, Harbour Radio has previously made submissions in relation to clause 5.8 of the Code in investigations numbered 2888, 2773, 2947 and 2926. Harbour Radio relies on these previous submissions and, without limitation, makes the following further comments:

In the PIRs [Preliminary Investigation Reports], the ACMA has provided some explanation of its interpretation of the meaning of the words “frivolous”, “vexatious” or “abuse of the complaints process”. There is no doubt that these phrases are terms of art drawn from legal usage and should be interpreted accordingly.

Harbour Radio makes no submission in relation to the ACMA’s interpretation of “frivolous”.

However, the ACMA’s interpretation of the word “vexatious” is, in Harbour Radio’s respectful submission, incomplete. In PIR No. 3062, the ACMA states:

Vexatious refers to complaints made without sufficient grounds, for the purpose of causing trouble or annoyance to the subject of the complainant.

The ACMA further states:

Clause 5.8 requires an assessment of a particular complaint rather than the complainant’s history.

Harbour Radio does not agree that the term “vexatious” should exclude an assessment of the complainant’s history of complaining. On the contrary, and by way of example, the Vexatious Proceedings Act 2008 (NSW) and its predecessor, s84 of the Supreme Court Act 1970 (NSW) (now repealed) both had an element of a complainant’s history as a prerequisite for obtaining an order that an individual is a vexatious litigant. For instance s8(1) of the Vexatious Proceedings Act requires that the proceedings must have been instituted or conducted “frequently”. S84 of the Supreme Court Act required that proceedings be instituted “habitually and persistently”.

Furthermore, in the Vexatious Proceedings Act, “Vexatious Proceedings” are defined as:

 Proceedings that are an abuse of the process of a court or tribunal;

 Proceedings that are instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

 Proceedings without reasonable ground; or

 Proceedings that are conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. (s6)

Proceedings “instituted to harass or annoy”, as defined in s8(1)(b) must, by definition, incorporate the historical repetitive conduct of the complainant. The Macquarie Dictionary defines “harass” as follows:

1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

16 2. to disturb persistently; torment.

“Harassment” clearly incorporates an element of historical behaviour and, in Harbour Radio’s respectful submission, the definition of “vexatious” should not be restricted so as to exclude historical behaviour of the complainant from the licensee’s considerations.

Harbour Radio does not agree that the interpretation of the phrase “abuse of the complaint process” should be restricted to pursuing a complaint for an ulterior or improper purpose. As stated by the High Court of Australia in Batistatos v Roads and Traffic Authority(2006) 226 CLR 256,

What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues...

[citing Ridgeway v the Queen] Abuse of process cannot be restricted to ‘defined and closed categories’ ... That is not to say that the concept of “abuse of process” is at large, or indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. [emphasis added]

It is clear that “abuse of process” is a phrase which should be interpreted to extend beyond the intention of the complainant to include complaints that are objectively “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. It follows that the ACMA’s interpretation of this phrase is deficient, in that it inconsistent with interpretations given by the Courts.

Again, the use of the word “harassment” indicates an element of historical behaviour which should be taken into account by the ACMA in its interpretation of the phrase “abuse of the complaints process”.

It is clear from the above submissions that historical conduct of the complainant is relevant to both an assessment of whether a complaint is “vexatious” and (relatedly) whether a complaint constitutes “an abuse of the complaints process”.

Harbour Radio submits that the complainant in investigations 3062 and 3063 was a serial complainant whose complaints were:

 Without merit (as demonstrated by the ACMA’s findings concerning clause 2.2(a) of the Code); and  In the context of the complainant’s historical conduct, designed to harass or annoy Harbour Radio.

Harbour Radio submits that it was reasonable for it to form the view that the complaints in investigation 3062 and 3063, in that context, were vexatious and an abuse of the complaints process.

ACMA Investigation Report 3062 – Chris Smith Afternoon Show broadcast by 2GB on 20 November 2012 17