Investigation Report 2888

File No. ACMA2012/1314

Licensee Harbour Radio Pty Ltd

Station 2GB

Type of Service Commercial Radio

Name of Program The Ray Hadley Morning Show

Dates of Broadcast 25 and 26 June 2012, 13 July 2012

Relevant Code Code 2.2 of the Commercial Radio Australia Codes of Practice and Guidelines 2011

Investigation findings The licensee of 2GB, Harbour Radio Pty Ltd: breached Code 2.2(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes) in relation to the broadcast of 25 June 2012;

breached Code 2.2(b) of the Codes in relation to the broadcast of 26 June 2012;

did not breach Code 2.2(a) of the Codes in relation to the broadcast of 26 June 2012.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. The complaint On 27 September 2012 the Australian Communications and Media Authority (the ACMA) received a complaint from the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP, (referred to hereafter as either ‘the complainant’ or ’Mr Swan’) regarding two segments of the Ray Hadley Morning Show broadcast on 25 and 26 June 2012 by the licensee of 2GB, Harbour Radio Pty Limited1 (the licensee). The complainant alleged that:

On 25 June 2012, Mr Hadley made false and misleading comments about a federal government proposal to make budget savings for 2012/2013;

On 26 June 2012, Mr Hadley failed to correct the substantial error of fact of the preceding day; and

On 26 June 2012, Mr Hadley made an additional misleading statement in relation to communications made between the station and the Office of the Deputy Prime Minister and Treasurer.

The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA.2

The complaint has been investigated under Code 2.2 [accuracy] of the Codes.

The program The Ray Hadley Morning Show (the program) is a morning program broadcast on weekdays from 9.00 am to 12.00 pm. The program is described on 2GB’s website as follows:

The Ray Hadley Morning Show brings you the latest news, sport, traffic and weather, with hard hitting political interviews and commentary. Ray has a reputation for breaking news, and loves to hear from listeners on the open line and via email.3 On 25 June 2012 (Broadcast 1), Mr Hadley discussed a news article published that morning in the Daily Telegraph and conducted interviews with the journalist who wrote it and the Shadow Treasurer, the Hon Joe Hockey MP (Mr Hockey). A full transcript of the relevant segment is at Attachment A.

On 26 June 2012 (Broadcast 2) Mr Hadley referred to the matter again. A full transcript of the relevant segment is at Attachment B.

On 13 July 2012 (Broadcast 3) Mr Hadley again discussed the matter. A full transcript of the relevant segment is at Attachment C.

1 The complainant had initially complained to the licensee on 12 July 2012 and received a response from the licensee to that complaint on 10 September 2012. 2 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice. 3 http://www.2gb.com/index.php?option=com_content&task=view&id=25&Itemid=39

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 2 Background to the complaint and investigation

1. On Thursday 21 June 2012, the Clerk of the House of Representatives sent a letter (Attachment D) to the Members of the House of Representatives outlining proposed cuts to various services for 2012/13, including the ‘Hospitality for visiting school groups’ program. 2. This letter was titled ‘Department of the House of Representatives Budget Outlook and Proposed Reductions in Departmental Costs’. One of a list of items under the heading ‘Savings Proposals’ included:

Hospitality for visiting school groups – (savings of $85,000 in 2012-13 and $235,000 per annum in future years).

The hospitality program for visiting school groups will be discontinued from 1 January 2013. The hospitality program involves the provision of fruit straps and small bottles of water to visiting school children and tea and coffee to accompanying adults where a request is made at the time of booking. 3. At about noon on Friday 22 June 2012, the Clerk of the House of Representatives sent an email addressed

To all Members

Appropriations and Administration Committee

thanking committee members for their feedback and advising that ‘we will not proceed with the option of stopping the provision of hospitality to visiting school children’ (Attachment E).

4. On Sunday 24 June 2012, a journalist, Mr Steve Lewis, who was in receipt of Attachment D contacted the Minister for Finance and Deregulation, Senator the Hon Penny Wong (Ms Wong), for comment in relation to an article that he was preparing for publication in the Daily Telegraph newspaper the next morning.

5. According to the journalist4, a spokeswoman for Ms Wong advised him that ‘the savings are up to each individual agency’, and did not confirm nor deny the proposal. 6. On Monday 25 June 2012, Mr Lewis’ article was published in the Daily Telegraph (Attachment F). The article was titled ‘Taking the Lunch Money: School excursions hit by Swan budget cuts’.

7. At approximately 8.12 am on Monday 25 June 2012, Mr Swan distributed a public statement to media outlets including 2GB’s newsroom in Sydney (Attachment G).

8. The ACMA understands that the statement was also published on the Deputy Prime Minister and Treasurer Press Office website.

9. The statement, relevantly included the following:

4 See Attachment A.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 3 The story by Steve Lewis in today’s Daily Telegraph, Herald Sun, Adelaide Advertiser and Courier Mail claiming bottled water and fruit snacks for school students visiting Parliament House have been cut is completely wrong.

It is entirely incorrect to say that a single dollar of estimated $235,000 cost of the service has been cut from the House of Representatives Hospitality program.

The service has not been cut and to suggest otherwise is dishonest and grossly incorrect.

The parliamentary departments have confirmed that the program has not been cut – bottled water and fruit snacks will continue to be provided to students who visit Parliament House to learn about our political system. 10. During Broadcast 1 at approximately 10.12 am Mr Hadley interviewed Mr Lewis and discussed the matter more broadly referring, amongst other things to Attachments D, F and G. A transcript is at Attachment A.

11. During the program at approximately 11.10 am, Mr Hadley interviewed Mr Hockey in relation to the matter (see Attachment A).

12. At 11:47 am, a statement was issued by the Department of the House of Representatives, which relevantly stated:

It is correct that the provision of hospitality for visiting school groups was listed as a savings proposal, but the Department decided on Friday that it would not proceed with that proposal and the service will continue in 2012-13 (Attachment H).

13. According to the licensee, it was not made aware of Attachment E and Attachment H until after the close of the program on 25 June 2012. 14. The program concluded at 12.00 pm.

15. According to the complainant, on Monday 25 June 2012 following the conclusion of the program, a number of attempts were made by his office, the Office of the Deputy Prime Minister and Treasurer, to contact 2GB.

16. According to the complainant, at about 12.05pm, his office contacted the producer of the program to re-affirm that the broadcast contained assertions which were factually incorrect. According to the licensee, the call was received at 12.10pm5 and during this conversation, the complainant’s office agreed to send Attachment E.

17. Following this call, the producer received an email from the complainant’s office at 12.25pm, attaching Attachment E (Attachment I).

18. According to the complainant, his office again contacted the producer and followed up with another email at 1:13 pm on the afternoon of Monday 25 June 2012 asking for a return phone call (Attachment I).

19. On Tuesday 26 June 2012, the Daily Telegraph published a correction relating to the contents of Attachment F (Attachment J).

5 Licensee’s submissions received by the ACMA dated 30 January 2013.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 4 20. According to the complainant, that morning at 7:48 am, his office contacted the producer to discuss inaccuracies in Broadcast 1 and to ‘set out the need for a correction’. This was followed up with an email at 8.23 am from his office to 2GB (Attachment I). 21. Later that morning during the program (Broadcast 2), Mr Hadley referred to Attachment E and stated that ‘Finally yesterday, after the story was published, another document (Attachment H) appeared apart from the email saying there would not be a stop to the children getting their water and fruit snacks.’ Mr Hadley also said, ‘So, it’s a victory for common sense. Well done to all concerned.’ (See transcript at Attachment B).

22. On 12 July 2012, the complainant lodged a formal complaint with 2GB6. 23. On 13 July 2012, during the program (Broadcast 3), Mr Hadley referred to the Daily Telegraph article and to the complaint (see transcript at Attachment C).

Assessment The assessment of whether there has been a breach of Codes 2.2(a) and 2.2(b) of the Codes is based on: Submissions to the ACMA from both the complainant (Attachment K) and the licensee (Attachment L);

A copy of the relevant broadcasts (Broadcast 1, Broadcast 2 and Broadcast 3) provided to the ACMA by the licensee;

Other relevant sources as identified.

Relevant provisions of the Codes The relevant provision of the Commercial Radio Australia Codes of Practice and Guidelines 2011 has been extracted below: Code of Practice 2: 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; and (b) substantial errors of fact are corrected at the earliest possible opportunity.

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

‘Ordinary reasonable’ listener

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary,

6 The complaint was emailed in the first instance and the ACMA was copied in. After the ACMA contacted the complainant’s office, it was submitted formally to 2GB by letter on 12/7/12.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 5 reasonable’ listener; that is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs7.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn.

Once this test has been applied to ascertain the meaning of the material that was broadcast, it is for the ACMA to determine whether that material has breached the Codes. Issue 1: Reasonable efforts to ensure factual material is reasonably supportable as being accurate (Broadcast 1)

Finding The licensee: did not make reasonable efforts to ensure that factual material was reasonably supportable as being accurate; and

did not broadcast a correction which was adequate and appropriate in all the circumstances.

Accordingly, the ACMA finds that the licensee breached Code 2.2(a) of the Codes. Reasons Detailed reasoning for the ACMA’s finding is set out below. However, in short: reference to and reliance on current mainstream media reports in many (if not most) situations will be evidence of a licensee’s reasonable efforts to ensure that factual material is reasonably supportable as accurate; however, regard must be had to all relevant circumstances, including the availability of credible material casting doubt on the accuracy of those mainstream media reports; here, the licensee had in its possession at the time of Broadcast 1 credible material from a person in high office casting doubt on the accuracy of the mainstream media report on which it relied and by implication the material on which that report was based;

in those circumstances, further effort than was made was required to discharge the licensee’s obligation to make ‘reasonable efforts’ to ensure factual content was reasonably supportable;

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

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 6 where a substantial error of fact is corrected, that correction needs to be unequivocal. It must include a clear reference to and acknowledgment that the original statement was incorrect and an explanation of the correct position so that the listener is in no doubt about both the original error and the correct position.

Assessment

Broadcast 1 - 25 June 2012 Statement of fact or opinion

In assessing Code 2.2(a) of the Codes, the ACMA must first consider whether relevant broadcast material is factual in nature.

The ACMA has identified the relevant material as an assertion that a hospitality program for school children visiting Parliament House would be abolished.

There is no dispute that this assertion constituted factual material for the purposes of Code 2.2 of the Codes. The licensee has conceded that the relevant assertion was inaccurate as at the time of broadcast. Although as at 21 June 2012 there had been a proposal to abolish the hospitality program (Attachment D), by 22 June 2012 (several days prior to the broadcast) a decision had been made not to proceed with that proposal (Attachment E). Whether the licensee used reasonable efforts to ensure the content was reasonably supportable as being accurate

The question for the ACMA, in these circumstances, is whether reasonable efforts were made to ensure that the statement, though inaccurate, was nonetheless reasonably supportable as being accurate (at the time of broadcast). The licensee’s relevant submissions are included in Attachment L.

In relation to the ‘reasonable efforts’ requirement in the Codes, the licensee submits that the requirement in Code 2.2(a) that the licensee use reasonable efforts is distinguishable from an ‘absolute’ obligation to ensure accuracy, and also from the intermediate level of ‘best endeavours’.

The licensee submits that it ‘fully discharged its reasonable efforts obligation’ through the use, by the presenter and producer of the program, of the material contained in the Daily Telegraph article (Attachment F).

In this regard the licensee submitted that the ‘use of mainstream media sources provides reasonable support for factual material contained in 2GB’s broadcasts’. The licensee referred to the ACMA’s acceptance in another investigation of the use of media sources to support factual accuracy noting that, in that context, ‘the ACMA did not require, or even suggest, that any additional fact checking steps were required’. The licensee further submitted that, notwithstanding its view that it had fully discharged its obligations in relation to reasonable efforts, it had ‘further discharged’ its obligation in additional ways. The licensee pointed to the Clerk of the House of Representative’s letter (Attachment D) which was said to provide ‘reasonable support’ for the statement that the provision of the hospitality program to school children visiting Parliament House would be abolished.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 7 Additionally, at approximately 9:54 am, during the broadcast of the program but before the broadcast of Broadcast 1, the producer spoke with the journalist who had written the Daily Telegraph article. During the segment itself, at approximately 10.12 am, Mr Hadley interviewed the journalist who confirmed his assertion that the article was accurate (based on Attachment D), discussions he had had with both sides of Parliament regarding their concerns about the introduction of the changes, and discussions with the Office of the Minister for Finance and Deregulation, Senator the Hon Penny Wong.

What efforts are reasonable in a given situation will depend on all the relevant circumstances. While the relevant provision 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 ACMA accepts that, in many (if not most) situations, reference to a current mainstream media source will be indicative of reasonable efforts. However, any assessment of reasonableness must also take account of credible material that throws doubt on the accuracy of such a mainstream media source, where it is practicable and reasonable for the licensee to make use of such material.

The existence prior to broadcast of a public statement from the Office of the Deputy Prime Minister and Treasurer (Attachment G) directly contradicting the Daily Telegraph article made problematic reliance predominantly on that article and the source materials on which it was based. In such circumstances, more effort was required to discharge the licensee’s ‘reasonable efforts’ obligation. For example, the licensee could have sought to contact Mr Swan’s office, or the Clerk of the House of Representatives (or another person who might reasonably be considered a primary source). The ACMA accepts, however, the proposition that the licensee would not necessarily have had to have been successful when making such additional enquiries, as each matter can only be dealt with on its own relevant circumstances.

In relation to the licensee’s arguments about the nature, time limits and constraints of live opinion-based talk back radio programming, the ACMA recognises the realities of the live broadcasting environment. However, in this circumstance the Office of the Deputy Prime Minister and Treasurer distributed a public statement to media outlets (including the licensee) at approximately 8.12 am on 25 June 2012 which clearly alerted the licensee to the serious possibility that the media reports, on which the broadcast segments later that morning were based, might be incorrect. The program commenced at 9 am and Broadcast 1 commenced at 10.12 am, giving the licensee ample time to respond – either by:

making further effort to ensure the factual material it proposed to present was indeed accurate in light of Mr Swan’s public statement (Attachment G) directly contradicting the Daily Telegraph article (Attachment F); or

ensuring the broadcast presented the factual material as being genuinely contested. While the statement of Mr Swan was referred to (and excerpts of it were also read) on a number of occasions during the broadcast, this was only ever done in conjunction with a clear rejection of the prospect that the statement was true, so much so that the segment concluded with no reasonable prospect that the statement had any residual credibility. The licensee submitted that ‘the ACMA appears to consider only one circumstance to be relevant – namely, the contradictory media release issued by Mr Swan’. It urged the ACMA,

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 8 in assessing compliance with the obligations in Code 2.2 of the Codes, to consider the following circumstances and context:

the political subject matter of the broadcast, being the decisions of the Commonwealth executive government;

the nature of the broadcasts as expressions of political communication and debate, for the purposes of the Constitutional protection and otherwise; the credit and competence of Mr Swan having regard to his previous public statement, ‘No it’s not possible that we’re bringing in a carbon tax. That’s an hysterically inaccurate claim being made by the Coalition’;

the highly political context of the broadcast, including the substantial critical comments of Mr Hockey who is the direct political counterpart and adversary of the complainant; and

the ‘definitive statement’ made by the Clerk of the House of Representatives of 21 June 2012 (Attachment D).

The ACMA is of the view that the political subject matter and context of the broadcast do not relieve the licensee of the obligations in Code 2.2(a) of the Codes. If, and to the extent that, the licensee may be suggesting that Code 2.2(a) of the Codes may infringe the implied constitutional freedom of political communication, the ACMA does not agree. Code 2.2(a) of the Codes is reasonably appropriate and adapted to serve a legitimate end, namely the facilitation of meaningful discourse of public affairs based on factually accurate material.

The licensee appears to suggest that the fact that Mr Hadley (repeatedly during the same program) refers to an earlier statement by Mr Swan (about a separate and unrelated factual issue and which Mr Hadley submits was ‘ultimately false’) is relevant to the reasonable efforts it was required to make to ensure factual material is reasonably supportable as being accurate. The ACMA’s investigation relates to the licensee’s compliance with relevant aspects of the Codes in relation to the assertion that a hospitality program for school children visiting Parliament House had been abolished. The ACMA’s investigation does not relate to the earlier carbon tax statement referred to, and the ACMA does not accept in the circumstances of this case that a reference to an earlier unrelated statement, whether true or false, is relevant in determining whether reasonable efforts have been made in this case. The ACMA has considered the comments of Mr Hockey made during the course of the broadcast.

Mr Hockey, by reference to what he had learned from others, affirmed: The existence of the proposal; and

That a meeting was held on Wednesday 20 June 2012 at which the budget cuts were discussed. It should be noted that Mr Hockey did not claim to have any knowledge of the matter other than that which was apparent from the material that was already canvassed during the broadcast and that which he contributed about the Wednesday meeting, a meeting pre-dating the date of the proposal (Attachment D). It should also be noted that Mr Hockey made no mention of the Clerk of the House of Representative’s subsequent email (Attachment E).

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 9 The absence of ‘new information’ in an interview can imply that no new information is available. However, that implication, to the extent it arose, could only have been very weak in this case given the strength of Mr Swan’s preceding public statement (Attachment G). With respect to Attachments D and F, both documents are clearly relevant and could in many circumstances be considered reliable sources of information. However, they cannot be regarded in isolation and must be considered in conjunction with Attachment G issued before the commencement of Broadcast 1, being a statement issued by a person in high office and which clearly and unequivocally denied that there was any truth to the core assertion.

In all these circumstances, the ACMA finds that the licensee did not use reasonable efforts to ensure the statement was reasonably supportable as being accurate.

Did the licensee broadcast a correction that was adequate and appropriate in all the circumstances?

Where the requirement under Code 2.2(a) of the Codes has not been met by a licensee, Code 2.2 provides that:

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

The licensee submitted:

In the event that the ACMA forms the view that 2GB has not discharged its reasonable endeavours obligation under Code 2.2(a), 2GB relies on the segment broadcast by 2GB on 13 July 2012 that is exculpatory under the defence contained in Code 2.2(a).

The licensee also submitted:

2GB broadcast a correction of the mistaken fact on Tuesday 26 June 2012 in the opening part of the program. After referring to the Daily Telegraph article and the presenter’s reliance on the original statement of the Clerk, presenter Ray Hadley provides the following corrective statement:

Following yesterday, after the story was published another document appeared apart from the email saying that there would not be a stop to the children getting their water and fruit snacks.

In a further submission to the ACMA the licensee submitted:

In assessing whether 2GB broadcast a correction that satisfied the requirements of Code 2.2(b) and the exculpatory defence to Code 2.2(a), the ACMA has incorrectly interpreted the requirement for a correction by additionally requiring:

contrition;

apologies; and/or

remedial statements.

We agree with the ACMA’s assessment that 2GB’s broadcasts do not contain apologies or contrition.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 10 However, Code 2.2 does not require a licensee to prostrate contrition, make apologies or issue remedial statements, all of which are substantially different in nature, purpose and content from corrections of factual inaccuracies. A ‘correction’ need not be detailed or drawn out and it need not (necessarily) show contrition or include an apology, but it does need to be unequivocal, and must include a clear reference to the original statement, an acknowledgment that it was incorrect and an indication of the correct position. The opening paragraphs of the Daily Telegraph correction (Attachment J) published by the Daily Telegraph in relation to the source article for Broadcast 1 provide a useful example of an adequate and appropriate correction, albeit in a print-media context.

An assessment of the ‘adequacy and appropriateness’ of a correction must also take into account the context and consequences of the inaccuracy broadcast. Broadcast 2 - 26 June 2012

The full transcript of Broadcast 2 is at Attachment B. It was primarily focused on justifying the licensee’s conduct in broadcasting the inaccurate material. The error of the preceding day was not clearly referred to, and the broadcast would not have conveyed clearly to a listener that any such error had occurred.

For these reasons, the ACMA is not satisfied that Broadcast 2 amounted to a ‘correction’ or, if it could be construed as one, ‘a correction that [was] adequate and appropriate in all of the circumstances’. Accordingly, Broadcast 2 did not attract the exculpatory defence in Code 2.2 of the Codes. Broadcast 3 – 13 July 2012

The full transcript of Broadcast 3 is set out at Attachment C.

The licensee submitted that:

...2GB’s broadcast of certain segments on 13 July 2012 contained corrective material that was adequate and appropriate in all the circumstances and was broadcast within 30 business days of 2GB’s receipt of a complaint as required to satisfy the defence in Code 2.2. ...

In these corrective segments, the presenter Mr Hadley:

1. refers to the original error that was made by him, being that as at the time of broadcast on 25 June 2012, the government’s original decision made on 21 June 2012 that water and fruit would not be given to students visiting the Parliament House remained a standing and operative decision;

2. identifies and reads out the contents of the underlying source of substantiation for that error, being the statement dated 21 June 2012 issued by the Office of the Clerk of the House; and

3. confirms the correct position that the original decision to stop the provision of hospitality had been reversed. Mr Hadley also provides substantiation for the reversal by reading out the details of the subsequent statement issued by the Clerk of the House on 22 June 2012. Whether a broadcast amounts to a ‘correction that is adequate and appropriate in all of the circumstances’ requires an assessment of the broadcast in its entirety, including all of the

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 11 material that dealt with the topic, and not just individual excerpts. An assessment of the adequacy and appropriateness of a correction must also take into account the context and consequences of the inaccuracy broadcast. The ACMA notes that in Broadcast 3, the presenter:

advises that a formal complaint has been made against him in relation to Broadcast 1 and Broadcast 2; presents all relevant documentation inviting listeners to ‘make [their] own judgements’;

defends the assertions that were made by him in Broadcast 1; states that the Daily Telegraph should not have corrected any error because there had been no error made;

questions the timing of the receipt of the Clerk of the House of Representative’s subsequent email (Attachment E) which he claimed only emerged on the date of Broadcast 1 (25 June 2012); and

replays Mr Swan’s comments about the carbon tax, and also suggests that his history of replaying the recording was the real basis for the complaint made.

The ACMA is not satisfied that this broadcast amounts to ‘a correction that [was] adequate and appropriate in all of the circumstances’. It is very hard to discern in Broadcast 3 any acknowledgement that any error was made in Broadcast 1. Rather, it was used as a forum to justify the position taken in Broadcast 1. Indeed, it is difficult to reconcile the contents of Broadcast 3 with the submission of the licensee that it ‘unequivocally accepts’ that the assertion made in Broadcast 1 was ‘inaccurate at the time of broadcast’.

Accordingly, Broadcast 3 did not attract the exculpatory defence in Code 2.2 of the Codes.

It follows that the licensee breached Code 2.2(a) of the Codes. Issue 2: Reasonable efforts to ensure correction of substantial error of fact (Broadcast 2)

Finding The licensee did not use reasonable efforts to ensure that a substantial error of fact was corrected at the earliest possible opportunity.

Accordingly, the ACMA finds that the licensee breached Code 2.2(b) of the Codes. Reasons The complainant submitted that the licensee breached Code 2.2(b) of the Codes because Broadcast 2 failed to adequately correct the error made in Broadcast 1.

Code 2.2(b) requires that:

‘in the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that substantial errors of fact are corrected at the earliest possible opportunity’.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 12 The ACMA is of the view that the error of fact was substantial and there does not appear to be any dispute that this is so. Indeed, Broadcast 1 was premised on the alleged decision to cut a Parliamentary program that was not cut. The licensee has submitted that the producers of the program did not receive source material demonstrating the error of fact before the program on Monday 25 June 2012 concluded. At 12.25 pm that day, the licensee received a copy of the Clerk of the House of Representative’s subsequent email (Attachment E).

The licensee submits that it broadcast a correction that complied with the requirements of Code 2.2(b) of the Codes on 26 June 2012 (Broadcast 2) during the opening part of Mr Hadley’s program.

The full transcript of Broadcast 2 is at Attachment B.

Broadcast 2 occurred on the next day, in the Ray Hadley Morning Show. Accordingly, any correction of the error made in Broadcast 1 would likely have been a correction ‘at the earliest possible opportunity’, as contemplated by Code 2.2(b) of the Codes.

However, as stated above, while a correction need not be detailed or drawn out, it needs to be unequivocal, and must include a clear reference to the original statement, an acknowledgment that it was incorrect and an indication of the correct position. The ACMA does not consider that Broadcast 2 amounted to a ‘correction’ of the error. It would not have been clear to the ordinary, reasonable listener that the licensee had made an error the previous day.

Broadcast 2 itself does not demonstrate ‘reasonable efforts’ to correct, commensurate with the nature of the error made, and the ACMA has not been provided with evidence of any other such efforts made to ensure that the error was corrected at the earliest possible opportunity. Accordingly, the licensee breached Code 2.2(b) of the Codes.

Issue 3: Reasonable efforts to ensure factual material is reasonably supportable as being accurate (Broadcast 2)

Finding The licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast dated 26 June 2012. Reasons The complainant alleged that, during Broadcast 2, Mr Hadley made the following inaccurate statement:

Now we asked the Deputy Prime Minister’s office why he didn't send us a copy of that yesterday morning when we were enquiring about it. The complainant submitted that this statement was inaccurate as it wrongly suggested that the licensee had ‘made enquiries’ of the Office of the Deputy Prime Minister and Treasurer ‘yesterday morning’. In fact, no enquiries were made of his office on the morning of 25 June 2012.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 13 The licensee submitted that the statement was about enquiries made on 26 June 2012 as to why the Office of the Deputy Prime Minister and Treasurer had not sent the licensee a copy of Attachment E ‘yesterday morning’.

The statement complained of is reasonably capable of being understood either way. In those circumstances, the ACMA is not satisfied that the licensee breached Code 2.2(a) in relation to the statement broadcast.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 14 Decision

The Australian Communications and Media Authority determines for the above reasons that the licensee of 2GB, Harbour Radio Pty Ltd, in relation to the broadcast of the Ray Hadley Morning Show on 25 and 26 June 2012:

breached Code 2.2(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes) in relation to the broadcast of 25 June 2012;

breached Code 2.2(b) of the Codes in relation to the broadcast of 26 June 2012; and

did not breach Code 2.2(a) of the Codes in relation to the broadcast of 26 June 2012.

The Common Seal of the Australian Communications and Media Authority was affixed to this document in the presence of:

______

Signature of Member Signature of

______Name (please print) Name (please print)

Dated this______day of ______2013

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 15 Attachment Description

A 25 June Ray Hadley broadcast (1)

B 26 June Ray Hadley broadcast (2)

C 13 July Ray Hadley broadcast (3)

D 21 June 2012 letter from Clerk of House to Members of House of Representatives

E 22 June email from Clerk of House to Members of the Appropriations and Administration Committee.

F 25 June Daily Telegraph Article

G 25 June Mr Swan’s Statement to Media

H 25 June statement by the Department of the House of Representatives on schools hospitality

I Emails between 2GB and the Office of the Deputy Prime Minister and Treasurer dated 25 and 26 June 2012 J 26 June Daily Telegraph Correction

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 16

K Complainant’s submissions

L Licensee’s submissions

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 17 Attachment A Broadcast 1 - 25 June 2012

10:12am

HADLEY: ... By the way there’s a story on the front page of the Daily Telegraph today about school children having their bottled water and fruit snacks for school visits at Parliament House being cut. Well according to the Deputy Prime Minister who’s written this to all media outlets, “the story by Steve Lewis in today’s Daily Telegraph, Herald Sun, Adelaide Advertiser and Courier Mail, claiming bottled water and fruit snacks for school students going to Parliament House is completely wrong. It’s entirely incorrect to say that a single dollar of an estimated 235 grand cost of the services being cut from the House of Reps Hospitality Program. This service has not been cut and to suggest otherwise is dishonest and grossly inaccurate.” We’ll let Steve have his say a bit later if he’s available.

...

HADLEY: Now, I’ll be talking to the author of this article in the Daily Telegraph, the Courier Mail, the Advertiser in Adelaide, and the Herald Sun, Steve Lewis rather shortly, because, we got this correction from the Deputy Prime Minister and Treasurer Wayne Swan’s office, where he said “the story by Steve Lewis in today’s Daily Telegraph, Herald Sun, Adelaide Advertiser and Courier Mail, claiming bottled water and fruit snacks for school students going to Parliament House for visits have been cut is completely wrong. I’s entirely incorrect to say that a single dollar of the estimated $235 000 cost of the service has been cut from the House of Reps Hospitality Program. The service has not been cut and to suggest otherwise is dishonest and grossly inaccurate.” I’ll give Steve Lewis the opportunity to correct that, because it appears Mr Swan has not read what he needs to read in relation to all of this. Because Steve Lewis is quoting from a document quite clearly saying exactly what Steve Lewis reported today. And that document comes from the office of the Clerk of the House. And it says: “The Hospitality program for visiting school groups will be discontinued from 1 January 2013. The hospitality program involves the provision of fruit straps and small bottles of water for visiting school children, and tea and coffee to accompanying adults where a request is made at the time of booking.” Now as I say, and then they say “savings of $85 000 2012/13, and $235 000 in future years per annum”. In fact the national political correspondent of the News Limited organisation Steve Lewis is on the line, G’day Steve.

SL: Ray How are you?

HADLEY: Not bad. I was a bit put off by the statement coming from the Deputy Prime Minister’s Office because I read your stuff quite regularly and know that you do a fair bit of

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 18 research before you publish. And ah, I’m disappointed to see that he’s called you dishonest and grossly inaccurate, or your story that. When I find, by looking at the Office of the Clerk of the House, that it’s all there, dated the 21st of June for all to see.

SL: Yeah look a little bit of background on this is useful Ray. Ah, all government agencies were required to find 2.5% in savings for a so-called efficiency dividend announced on the main budget, you remember the budget that the Treasurer announced would return, the budget, the surplus for next year.

HADLEY: By 1.5 billion I think from memory.

SL: Sure. So all Government agencies were required to find these savings. The Department of the House of Reps, the agency that’s in charge of the parliamentary spending essentially, is required to meet that. And it’s independent of the Government, so Bernard Wright, the Clerk, the long serving and very respected Clerk, has written this letter, this 3 page letter which we put up on our website, which outlines the proposed savings. And as you say it is pretty clear that one of the savings is the schools hospitality programs. Ah, it’s also fair to say that people I’ve spoken to on both sides, who are familiar with these proposed savings, are not happy, they are not happy, and they’re not happy that everything from the gym hours in Parliament House, to the number of security attendants, to newspapers for backbench MPs, are being cut back or reduced because the Department of the House of Reps has to find savings, like every other Commonwealth Agency.

HADLEY: Well I understand that, and I’ve got the document that you’ve published on your website in front of me, and it clearly says about newspapers, “savings of $30 000 a year, provision of newspapers to backbench members on sitting days will be discontinued from 1 July this year. Newspapers and magazines will continue to be provided to office holders for Shadow Ministry, hospitality for visiting school groups, the hospitality program for visiting school groups will be discontinued from 1 January 2013...” and it goes on to say what they do, we know what they do they give drinks and fruit straps to the kids and give tea and coffee to the adults who accompany them. It’s a bit rich that the Deputy Prime Minister and Treasurer would castigate you and your organisation News Limited when in fact it’s here in black and white.

SL: Well, even more to that, yesterday I went to the office of Finance Minister Penny Wong. Penny Wong, as you know is in charge of finding the savings, and I outlined the story, and ah and her spokeswoman came back to me yesterday and said, look, in terms of setting the whole of government efficiency dividend, we require, or we’re the government requiring agency heads to prioritise the spending across the organisation with a focus on non-staffing expenditures, i.e. don’t cut staff expenditures if you can help it, and find other sorts of savings.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 19 And I put to them the schools hospitality program and newspapers and that, and they came back and said it’s up to each individual agency.

HADLEY: So this document that’s been published by Bernard Wright, the Clerk of the House, um, what will happen here? Because he’ll look like an imbecile, the Deputy Prime Minister and Treasurer, what will he go to him and say ‘well listen old mate, Bernie, you’d better delete that hospitality for visiting schools program...’

SL: I think that you’ll find what’s happened is that there’s been a flurry of phone calls and emails and that over the course of this morning.

HADLEY: Right.

SL: And I’m trying to ascertain exactly what the status of this is. Several people I spoke to yesterday were saying this is going to be very unpopular when the news breaks that there’s been ah that this program is going to be cut. And we’re predicting merry hell would break out. Well I think their prediction is right. Merry Hell has broken out.

HADLEY: I’m just trying to get a handle on this. Would the Deputy Prime Minister not be aware that you relied upon the writings of the Clerk of the House Bernard Wright for your story, I mean to go off in the manner that he’s gone off this morning in this release to all Media?

SL: Well I’m not sure about that. I’m not sure...

HADLEY: All I’m trying to establish is would he be aware that it was there in black and white before he went off like a pop gun, like a two stroke lawnmower?

SL: Yeah well look mate that’s a fair question, a question which you need to put to his office. I mean we made every endeavour yesterday after being given a copy of the letter, after being... when you read the letter it’s ah...

HADLEY: I’ve got it here in front of me.

SL:...it discusses the appropriations committee of the House of Reps, now the appropriations committee is a committee that’s in charge of overseeing expenditure, and obviously, presumably they ticked off on it, because this letter, to all members, dated June 21 last Thursday, says ‘these are the proposed reductions’ – it’s in black and white.

HADLEY: Well it says here “the department has identified savings proposals for the next financial year of the order of 550 grand, the savings proposals have been discussed with the

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 20 House Standing Committee and on the appropriations administration of the proposals, three will have the direct effect on services to members. And that’s the newspapers for the backbench members, then it says about giving the kids some fruit straps and small bottles of water saving 85 grand in 2012/13, and 235 grand per annum in future years, and it’s there!

SL: It’s there. In black and white. And as I say, clearly people on both sides are concerned that these reductions are going to come into effect. And as I say I imagine there’s been a flurry of phone calls and emails this morning, and ah, you know, we’ll see how this story develops.

HADLEY: OK well done, thank you. Steve Lewis the national political correspondent for News Limited. Well there’s only one answer to this. The place has been run by dills- the Federal Government. We’ve got an imbecilic Prime Minister who goes to another part of the world, and lectures and hectors the European countries about how to run their economy, and this is pretty strong language from the, and I’m using strong language as well, I’m happy to accommodate it, the Honourable Wayne Swan MP Deputy Prime Minister and Treasurer released by his office, headlined ‘Deputy Prime Minister and Treasurer Story in News Limited Papers Wrong’. It says that, clearly, ‘wrong’. This is the same man that said:

[Recording of Wayne Swan]: ‘No it’s not possible that we’re bringing in a carbon tax that’s an hysterically inaccurate claim being made by the Coalition’.

HADLEY: So he says “the story by Steve Lewis (who I’ve just spoken to) in today’s Daily Telegraph, Herald Sun, Adelaide Advertiser and Courier Mail, claiming bottled water and fruit snacks for school students visiting Parliament had been cut is completely wrong. It is entirely incorrect to say that a single dollar of the estimated 235 000 cost of the service has being cut from the House of Reps Hospitality Program. This service has not been cut and to suggest otherwise is dishonest and grossly inaccurate. The parliamentary departments have confirmed that the program has not been cut – bottled water and fruit snacks will continue to be provided to students who come to Parliament House. Despite this, News Limited papers have decided to run this fabrication of a story, which the Daily Telegraph put on page one.

It’s also grossly irresponsible and sloppy of the Shadow Treasurer Joe Hockey to criticise the program being cut while failing to check the facts about the program.” Well I believe that Joe Hockey, and I’ll try to find Joe Hockey if I can, relied upon exactly what we’re relying upon and what Steve Lewis relied upon. Office of the Clerk of the House, 21st of June last Thursday, all members. The department of the House of Representatives budget outlook and proposed reductions in departmental costs. Savings proposals. The department has identified savings proposals for next financial year to the order of $550 000. Members’ newspapers, the provision of newspapers to backbench members on sitting days will be discontinued from July

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 21 1 this year. Hospitality for visiting school groups, savings of 85 grand in 2012/13 and 235 grand per annum in future years the Hospitality program for visiting school groups will be discontinued from 1 January 2013. The Hospitality program involves the provision of fruit straps and small bottles of water to visiting school children and tea and coffee to accompanying adults, where a request is made at the time of booking.’ I mean, it’s there. Steve Lewis didn’t make it up, and to suggest that it’s a fabrication, well there’s only been one fabrication coming out of the mouth of the author of this article, and that’s this bloke:

[Recording of Wayne Swan] ‘no it’s not possible that we’re bringing in a carbon tax that’s an hysterically inaccurate claim being made by the Coalition’.

Well that was a lie. That was a fabrication, coming from the mouth of the Deputy Prime Minister who’s got the audacity to call Steve Lewis dishonest and grossly inaccurate. And mind you the Deputy Prime Minister is in good company:

[Recording of Julia Gillard]: ‘There will be no carbon tax under the Government I lead’

HADLEY: and then he backed it up with:

[Recording of Wayne Swan]: ‘No it’s not possible that we’re bringing in a carbon tax that’s an hysterically inaccurate claim being made by the Coalition’.

HADLEY: Two of the most dishonest politicians ever to govern this country. The Prime Minister and the Deputy Prime Minister. Without fear of contradiction.

...

11:10am

HADLEY: ... The Shadow Treasurer, Joe Hockey’s on the line. G’day Joe.

HOCKEY: G’day Ray. How are you?

HADLEY: Not bad. Are you incensed by the accusations levelled at you by the Deputy Prime Minister and Treasurer?

HOCKEY: Oh doesn't surprise me, doesn't surprise me at all.

HADLEY: I’m trying to get to the bottom of it with Steve Lewis, the author of the article. And I’ve also got, as you no doubt have seen as well, the statement from the Office of the Clerk of the House, Mr Wright. I’m just absolutely flabbergasted that someone in high office like the

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 22 Deputy Prime Minister would you know be on the attack and saying a whole range of things about News Limited and about you when in fact it’s all there in black and white ...

HOCKEY: That’s right.

HADLEY: Or they were. They’re probably not going to do it now because he’s jumping up and down about it.

HOCKEY: I don't want you to be surprised that Wayne Swan is telling a fib. Because frankly, he’s done it so often, and now’s another case...

HADLEY: No it’s a bit more dangerous than that, I’ve got to take issue with you. I mean I often, as you’d know on this program refer to:

[Recording of Wayne Swan]: “No it’s not possible we’re bringing a carbon tax, a hysterically inaccurate claim being made by the Coalition”.

HADLEY: See now that’s a lie.

HOCKEY: It is a lie and I remember it too.

HADLEY: In this particular case what concerns me more than the fact that you may think he’s lying. I don't think he’s lying I just think he’s a complete boofhead that didn't know what was happening, and he’s gone off half-cocked and sent out this media release saying, you know saying this is disgraceful, it’s dishonest, and all the other things he said, without being advised that it’s actually in black and white on a website from the office of the Clerk of the House. So it’s more dangerous to be stupid than lie I think.

HOCKEY: I think they’re equally stupid. The fact is the Committee of the Appropriations for the House which has a Liberal on it, the Whip, Nola Marino. She attended a meeting on Wednesday where they were informed they were going to cut this and then it was confirmed in a letter that went out on Thursday. Now not all members got it, but she certainly did and a number of others, including some on the Labor Party side got the letter and now once it’s appeared in the papers, Wayne Swan as you point out rightly, has just gone out there and called us all liars.

HADLEY: Just pretend for a moment that you’re in the Deputy Prime Minister’s office at around 7.30 this morning when they’re reading the front page of the Telegraph, looking at the Courier Mail and the other News Limited newspapers. And then before they send out this email, at 8.12 am, you know Swan’s saying well hang on a sec, Steve Lewis he’s got this story about the snacks, the fruit snacks and the water; that’s not right is it? And someone

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 23 says nah it’s not right. He’s just called him dishonest, and grossly inaccurate, and he said that he’s disappointed you would criticise something without checking the facts about the program. I mean the person who hasn't checked the facts here is the bloke that sent out the email at 8.12 am criticising the author and you!

HOCKEY: Well it happens regularly, Ray. This isn’t a one-off. It’s just that you’ve correctly picked up on it and, but it’s happened on a number of occasions. This is the guy that’s the Deputy Prime Minister and Treasurer of Australia. He wonders why there’s no consumer confidence or business confidence out there. He’s the one that is in charge of the Government accounts, he’s in charge of the economy how can you believe him at his word? This is the fundamental point.

HADLEY: Do you think he knew about this or he was blissfully ignorant of what had happened?

HOCKEY: Well, I can only think that he’s shooting from the hip. And in his attempt to score political points, he’s failed to check his own facts. As soon as this came to my attention I thought to myself what a stupid proposal. There’s probably, down the track, going to be some Occupational Health and Safety requirement that you have to provide bubblers to a hundred thousand school kids which will cost millions to build into Parliament House. Why not just go ahead and give them water. This is the sort of idiocy that comes out of the Government from time to time. You know, getting over the fact that it was a stupid proposal to begin with, then the Treasurer compounds it by alleging that we’ve told the lie when in fact he has, himself, he’s caught. It’s in black and white.

HADLEY: And dated the 21st June, not done after story was published, done on Thursday.

HOCKEY: Correct. That’s on the back of a meeting that Liberal and Labor MPs attended on the Wednesday where they were told it was going to happen.

[Discussion about the issue of ‘boat people’]

HADLEY: Thanks for your time.

HOCKEY: Any time.

HADLEY: Shadow Treasurer Joe Hockey. We started talking about this story on the front page of the Daily Telegraph written by Steve Lewis, and then denied by the Deputy Prime Minister, where Steve had written a story saying that there would be cutbacks that would include bottled water and fruit snacks for children going to Parliament House would be cut, well Wayne Swan says that’s completely wrong. The service has not been cut and to suggest

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 24 otherwise is dishonest and grossly inaccurate. Then it went into Joe Hockey who was involved in the story as well. And then we go to the 21st June 2012, the office of the Clerk of the House, Mr Wright, has documented all of this, including hospitality for visiting school groups. “Savings proposals, savings of 85 grand in 2013 and $235 000 per annum in future years. The Hospitality program for visiting school groups will be discontinued from the 1st of January next year. The hospitality program involves the provision of fruit straps and small bottles of water for visiting school children, and tea and coffee to accompanying adults where a request is made at the time of booking.” And Wayne Swan looks like a bigger dope than he’s ever looked before which is hard because he looked like a big dope on many, many occasions.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 25 Attachment B

Broadcast 2 - 26 June 2012 HADLEY : Yesterday the Deputy Premier [sic], Wayne Swan accused the Daily Telegraph of a whole raft of things out of their front page story about students visiting Parliament being deprived of water and fruit snacks. We investigated the matter as you would expect, we did. We cited a document from Parliament House dated last Thursday confirming the story. Wayne Swan sent us a media release yesterday morning denying the story and saying it had no foundation in fact. Well, we relied on the fact that we had the document from Thursday and so did Steve Lewis who authored the story. Now the Deputy Prime Minister’s office is saying there was an email sent to a select few people last Friday saying the proposal would not go ahead. Now we asked the Deputy Prime Minister’s office why he didn't send us a copy of that yesterday morning when we were enquiring about it. And when I say it was sent to a select few last Friday saying the proposal would not go ahead, it’s apparent now the Deputy Prime Minister was not one of the select few because he didn't have a copy of it. He says he didn't know about it, but he didn't refer to the email in yesterday’s denials.

Finally yesterday, after the story was published another document appeared apart from the email saying there would not be a stop to the children getting their water and fruit snacks.

So it’s a victory for common sense. Well done to all concerned.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 26 Attachment C

Broadcast 3 - 13 July 2012 You might have read a story today in the Daily Telegraph and online that the Deputy Prime Minister of Australia Wayne Swan, has seen fit to lodge an official complaint with the body that controls the licensing of radio and TV stations in Australia, ACMA – the Australian Communications and Media Authority. They’ve received a complaint from Wayne Swan in person, about me. I don’t think this has ever happened before, and probably has more to do with the fact that I continually play the lie Wayne Swan was responsible for prior to the 2010 election concerning the Carbon Tax. In any case, the complaint is about the story that surfaced, some time ago, a few weeks ago, that water and fruit would not be given to students visiting Parliament house. That stupid decision, which was made on June 21, by the Clerk of the Parliament, was reversed. And as I said having reported the story via Steven Lewis’s article in the Daily Telegraph on that Monday, and a rebuttal, from the Deputy Prime Minister. As I said it was a victory for common sense. In any case, I’ll take you through what happened in chapter and verse shortly, and you can make your own judgements on the Deputy Prime Minister Wayne Swan. As I’ve said today in the Daily Telegraph, he and the Government are attempting to stifle debate in newspapers. We may as well be in North Korea. Now he’s gone to Big Brother, to have a whinge about me. We’ll defend it vigorously because I’m quite happy with what I did. I reported the facts as known to me, and as known to the Deputy Prime Minister. I read not once but twice, his denial of the story. I then interviewed Joe Hockey, I was in receipt as I am today of a statement and a document from the appropriate people at the Parliament House, the Clerk of Parliament. Not until after I came off the air on Monday did the Deputy Prime Minister give me a document which reversed that decision. And the reason he didn’t give it to me is because he didn’t have it until about 12.25 on the Monday. So he wants me to report something that he didn’t know, on the Monday. Otherwise he would have put that in his statement that I read not once, but twice. Anyway, I’ll deal with that. Now, Wayne Swan, at 27 ½ minutes past nine.

“I write to lodge a formal complaint under the Commercial Radio Codes of Practice in relation to comments by Mr Ray Hadley on radio station 2GB Monday 25 June and his failure to correct substantial errors of fact.

At 11:10 am on the 25th of June, the following exchange took place between Mr Hadley and Joe Hockey.”

And then it details the discussion about Steve Lewis’ article about the fact that there had been a decision taken not to give water and fruit to visiting school students. It goes on for a fair while. Then he goes on to say that it was based on an article by Steven Lewis in the Telegraph, which it was, but I made my own inquiries, and in fact I had the document by the time I went to air, which I’ll share with you in a moment or two, that came from the office of the Clerk of the House of Parliament, OK. He then goes on to say that there was a correction published in the Daily Telegraph the next day.

He also says that I didn’t give him the benefit of talking to his office on the Monday. Well, in fact, this was received in my office on the Monday at 12 am [sic]. I stated this at around 15 minutes past 9, and again at 10.12 on the Monday morning. And I’ve said, “I’ve received a note from the Deputy Prime Minister’s office, which says this:

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 27 “The story by Steve Lewis in today's Daily Telegraph, the Herald Sun, Adelaide Advertiser and Courier Mail claiming bottled water and fruit snacks for school students visiting Parliament House have been cut is completely wrong.

It is entirely incorrect to say that a single dollar of estimated $235,000 in cost of the service has been cut from the House of Reps hospitality program.

This service has not been cut and to suggest otherwise is dishonest and grossly inaccurate.

The parliamentary departments have confirmed that the program has not been cut - bottled water and fruit snacks will continue to be provided to students who visit Parliament House to learn about our political system.

Despite this, News Limited papers have decided to run this fabrication including The Daily Telegraph.

It is also grossly irresponsible and sloppy of Joe Hockey to criticise the program being cut while failing to check the facts of the program.”

Now, I read that at as such at quarter past 9 on the Monday morning, and at 12 minutes past 10 I read it again.

However, after I read that, I read this. And I’ll read it again now. It comes from the Clerk of Parliament. And it talks about additional savings. And this particular document, signed by Mr Bernard Wright, the Clerk of the House, says: “All members’ 21st of June. ‘The purpose of this note is to brief you on the budget outlook for the Department of the House of Reps and to advise you of areas which it’s proposed to make savings for 2012/2013.” And then he goes through the background of the Department’s budgetary position. So, this was on the Thursday before the Monday. And he said this:

“Hospitality for visiting school groups – (savings of $85,000 in 2012-13 and $235,000 per annum and in future years)”.

So it’s not made up. This is signed by the Clerk of Parliament.

“The hospitality program for visiting school groups will be discontinued from 1 January 2013.”

Not ‘might be’, ‘will be’ discontinued.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 28 “The hospitality program involves the provision of fruit straps and small bottles of water for visiting school children, and tea and coffee to accompanying adults where a request is made at the time of the booking.”

So it’s not ‘might be’, ‘could be’, it says quite clearly signed by Bernard Wright, on the Thursday, “The Hospitality program for visiting school groups will be discontinued from 1 January 2013. The hospitality program involves the provision of fruit straps and small bottles of water to visiting school children, and tea and coffee to accompanying adults where a request is made at the time of booking”.

I spoke to Steve Lewis about that. He informed me that he tried to talk to Penny Wong, the Finance Minister on the Sunday night before the story was published. She would neither confirm nor deny the story that he wrote. So he checked his sources, so did we, we went to air with that, on the Monday. But I did read on two separate occasions the denial of the Treasurer and Deputy Prime Minister.

Now, we went off air at 12.00 on the Monday, this was sent to my office at 12.25 on the Monday. I’m not on air. And this came from again Bernard Wright. It said:

“My thanks to Members of the Committee for their interest in and feedback concerning the Department’s funding outlook and savings options discussed on Wednesday of last week. I’m contacting you to say, [now don’t forget that there were a whole range of cost savings, but this is the only one that Bernard Wright has addressed. And this email came into my possession at 12.25 on the Monday after I was off air] I’m contacting you to say that the Department’s executive has met this morning and decided that we will not proceed at this stage with the option of stopping the provision of hospitality to visiting school children. The decision will enable the matter to be reviewed thoroughly, and we will report to the committee on this matter further”.

So, that came when I went off air. So when I came back to air on Tuesday, I came on air, and again I referred to the document I referred to earlier, and then, the document I’ve just to referred to there. Which, mysteriously, refers to only one cost cutting measure, not all of them, and I said this:

“Yesterday the Deputy Prime Minister, Wayne Swan accused the Daily Telegraph of a raft of things out of their front page story about the students visiting Parliament being deprived of water and fruit snacks. We investigated the matter as you would expect, yes we did. We cited a document from Parliament House dated last Thursday confirming the story [that’s the document from the Clerk of the Parliament that I referred to earlier] we cited that document from Parliament, dated last Thursday. Wayne Swan sent a media release yesterday morning denying the

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 29 story and saying it had no foundation in fact [and we read that on 2 separate occasions on air on the Monday].

Well, we relied on the fact that we had the document from Thursday and so did Steve Lewis the author of the article in the Telegraph. Now the Deputy Prime Minister’s office is saying there was an email sent to a select few people last Friday saying the proposal would not go ahead. We asked the Deputy Prime Minister, on the Tuesday, why he didn't send us a copy of that document, on the Monday, when we were actually talking about it. And when I say it was sent to a select few last Friday [I said at the time] it’s apparent the Deputy Prime Minister was not one of the select few because on the Monday he didn't know about it.”

He sent it to us as 12.25 after came off air. So when we were talking about it all morning and talking to Steve Lewis and Joe Hockey, not one word about the Clerk of the Parliament changing his mind mysteriously.

Now, I concluded my comments on the Tuesday by saying “it’s a victory for common sense. Well done to all concerned.” Now, Mr Swan is a bully. Mr Swan, as I’ve said before, is a liar.

[Recording of Wayne Swan]: “No it’s not possible that we’re bringing in a carbon tax. That is an hysterically inaccurate claim being made by the Coalition”. He can complain to ACMA, I’ll defend myself vigorously. And I might be in possession of a few more documents before I come off air that may add further light to exactly how this document did appear from the Clerk of the House to decide the funding option there’d been a change of plan. Now in the document I have from the Thursday: “Savings proposals: Members’ newspapers; Hospitality for visiting school groups; Cease hard copy provision of routine Chamber documents.” And then “Additional Measures”. And there were one, two, three, four, five, six, seven of them. So, in total, seven, eight, nine, ten, eleven savings proposals. Isn’t it mysterious that the only one, the only one, that Mr Wright decided to recant on, was the one that had the Deputy Prime Minister jumping up and down on the one spot. Like he was playing leap frog. The only one that would not proceed was the stopping of the provision of hospitality for visiting school children after Steve Lewis’s story was published and Penny Wong was phoned on the Sunday night. Now, this Government would be better off in North Korea than in Australia. They’re trying to stifle debate, they’re attacking the print media, and thankfully the print media, with the exception of the Sydney Morning Herald, who have got no backbone, are standing up to them. The electronic media is also under surveillance. Big Brother’s watching and listening. Wayne Swan you’ll be flat out holding on to your seat in Queensland next year, let alone being Deputy Prime Minister and Treasurer. And I’ll tell you something: When you go, I’ll be standing and cheering.

[logo]

I’ve got more documents coming into me about Wayne Swan and this decision to reverse the earlier decision by the Clerk of the Parliament relating to water and fruit straps for children, and I’ll bring that to you after the news. Ah, [name of listener 1] says ...‘Tribunals and determinations may come and go, but no way could any of them decide

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 30 that Wayne Swan is not a boofhead. As Julia would say about other matters, “the science is in”’.

[Name of listener 2] says ”I listen to you daily, heard your original show, regarding the fruit and drinks for school children I fully support your stand you did nothing wrong you read out the correction. You are completely correct in your statement that Swan is a bully. You need to add the Government is as well. Silencing those in dissent by new regulations and rules is their new MO. Freedom of speech, we deserve it.” Keep up the great work. Thank you [listener 2].

Now, you wouldn’t believe what happens when stories appear in newspapers. A couple of documents have fallen off the back of the truck straight into my arms relating to this nonsense, that Mr Swan is going to ACMA concerning me. The Australian Communications and Media Authority. Now, we’ve already established that on the 21st of June, a document was published by Bernard Wright, the Clerk of the House, where he said:

“The hospitality program for visiting school groups will be discounted [sic] from 1 January 2013”..

Not ‘maybe’, ‘will be’ discontinued.

“The hospitality program involves the provision of fruit straps and small bottles of water to visiting school children”.

But it’s gone, finished.

Then, that was sent out to, I think 23 MPs. 23 MPs that particular document, on the 21st of June. And there was a whole range of savings, ah ’Members’ newspapers, ‘Cease hard copy provision of routine Chamber documents’, ‘Additional Measures’, ‘Cease centralising advertising with The Australian and offsetting some staff expenditure, holding the Inter Parliamentary Study Program visiting Parliamentary staff every two years instead of annually.” So, a whole range of things. So mysteriously going to nine MPs the next day being the 22nd of June was a thing that says:

“I’m now contacting you to say that the Department’s executive has met this morning and decided we will not proceed at this stage with the option of stopping the provision of hospitality to visiting school children.”

Well you wouldn’t believe it. Off the back of a truck comes another document that was sent to an MP.

”Saving measures 2012, 2013” dated as I understand it the 26th, which would have been the Tuesday. The day after Steve Lewis’s story.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 31 Savings Measures. Chamber and Federation Chamber and Table Office. No cost. Printing savings. Cease central printing. $40,000 in savings. $40,460, Wayne will be very upset I’ve got this document.

Committees – Director Committee Support suspend after this calendar year and amalgamate with Director Clerk’s office $72,813 saving . Internal community relations. Advertising in The Australian reduced to monthly advertisements, $63,800. Incoming delegations, reduced expenditure on incoming official and unofficial delegations, $115,000. Don’t forget this is the day after Wayne Swan said, no no, you’re wrong, this is not happening. Inter-Parliamentary Study Program held every second year not held in 2012/13, $53,000 save. About the House magazine, reduce the cost of About the House magazine $48,000. Salary component for Pacific Parliamentary Partnership Program, saving $24,000. Newspapers for members. Cease provision to backbench Members - $30,200. Reduced rosters, $36,000. Potential savings $483,000. Second tier savings options. Remember this is published on the Tuesday. Distribution of PPS to manage by DHR within existing DHR staffing levels. And they go down through, About the House Magazine. Transition to an online version. Members’ Services and Corporate Support. Number 15 – guess what it says. “Hospitality for school children. Undertake a review, by PEO advisory committee.” So, this is on the Tuesday. So, on the Thursday, it’s gone. On the Friday, it’s back. On the Tuesday, it’s reviewed, not gone. And then mysteriously on the Wednesday, there’s another document, almost identical to the original document from the 6 days previous, the Thursday, which is, to all Members this time, “Department of the House of Representative – Budget Outlook.” And it goes through exactly the same things I told you about: Savings proposal, Members’ newspapers, Cease hard copy provision of routine chamber documents, saving $40,000 per annum.” And guess what’s missing? You guessed it. “The hospitality program for visiting school children will be discounted[sic] from 1 Jan 2013. The hospitality program involves the provision of fruit straps and small bottles of water.” So by the Wednesday, here’s the sequence of events Wayne, and I’ll talk slow so you can keep up with it.

Thursday: it’s gone.

Friday: an email goes out to 9 Members of Parliament, headed by Joel Fitzgibbon. Jill Hall, Ewen Jones, Craig Kelly, Nola Marino, Chris Paterson, Bruce Scott, Peter Slipper, Kelvin Thomson, Karen Ruffle. No, it’s back.

On the Tuesday, well, it’s not quite back, but it’s under review. It’s under review on the Tuesday. “Hospitality for school children – undertake a review by the PEO Advisory Committee”.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 32 Then by the Wednesday, 6 days later from when it was originally gone, it’s gone again, but this time it’s not gone, it’s off the paper, that again has been signed by Bernard Wright the Clerk of the House.

And he wants to take me to ACMA. It’s good to have your company. We’ve had a response from the ah Deputy Prime Minister’s office to a number of questions we asked him in relation to those documents I’ve tabled here today.

He said:

“On Thursday June 21, the Clerk of the Department of the House of Representative circulated a proposal for savings measures.” The term “proposal” is in the document ... Yes, he says “saving proposals”. But let me just take you to that document, read earlier this morning, he says.

”Savings proposals. The department has identified savings proposals for next financial year, the savings proposals have been discussed with the house of standing committee on appropriations and administrations, of the proposals, three will have a direct affect on services to members, these are: The hospitality program for visiting school groups WILL. Not might be, not could be, WILL [emphasis added] be discontinued from 1 January 2013”. Will be discontinued.

He says “on Friday the Clerk circulated an email saying the funding of the program would continue. No decision was ever made to move the program, so therefore, no decision was reversed”.

Well, I’m sorry, Deputy Prime Minister, based, as I’ve said to you before, if you’d told me it was raining I’d have to go outside and check based on this:

[Recording of Wayne Swan]: “No it’s not possible that we’re bringing in a carbon tax, that’s an hysterically inaccurate claim being made by the Coalition”.

He says “no decision was ever made to remove the program”. It clearly says in this document ”The Hospitality program for visiting school groups will be discontinued from 1 January 2013”’ Take your head out of your backside and read it again. ‘The hospitality program for visiting school groups will be discontinued. WILL be. Not might be, not could be, not ‘we’re thinking about it’. WILL be discontinued.

He went on to say “on Monday the Daily Telegraph in the story the program had been cut, this was the first time the Treasurer was made aware of the issue.” First time you’re made aware of the issue. That’s good, I’m glad you admitted that, because that means, on the

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 33 Monday, seeing you weren’t aware of the issue, you could not have told us about the reversal from the Friday. That you’ve relied upon, in your complaint about ACMA concerning me.

On Tuesday the Daily Telegraph wrote a follow up story saying that it was incorrect. Well I can’t control what the Daily Telegraph does, I think the Daily Telegraph were right in the first place and I don’t think they should have been apologising. Did you ring anyone at the Daily Telegraph Deputy Prime Minister? Did you ring someone? And complain bitterly? Did you abuse someone on the phone about the story? Did you demand that it be retracted? Simple question. The answer would be, “yes I did” or ”no I didn’t” I suspect. The word ”bully” springs to mind.

...

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 34 Attachment D

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 35

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 36

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 37 Attachment E

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 38 Attachment F

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 39 Attachment G

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 40 Attachment H

From: News (REPS) Sent: Monday, 25 June 2012 11:47 AM Subject: Statement by Department of the House of Representatives on schools hospitality

######################################### House of Representatives - Email alert service #########################################

Monday 25 June 2012

SCHOOLS HOSPITALITY

The Department of the House of Representatives briefed the House of Representatives Appropriations and Administration Committee on the budget outlook for the department last week.

It is correct that the provision of hospitality for visiting school groups was listed as a savings proposal, but the Department decided on Friday that it would not proceed with that proposal and the service will continue in 2012-13.

Issued by:

Andrew Dawson, media manager, International & Community Relations Office, Parliament of Australia Tel: (02) 6277 2063 wk, 0401 143 724 mob.

Join us on Twitter to keep up to date on a wide variety of topics and news from the House. Follow us at http://twitter.com/AboutTheHouse

Have you got About the House magazine yet?

Visit: http://www.aph.gov.au/ath

To unsubscribe from the House of Representatives email alert service, please send an email with "unsubscribe from email alert service" in the header to [email protected]

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 41 Attachment I

From: Liddell, Ryan Sent: Monday, 25 June 2012 12:25 PM To: 'mthompson@2gb.com' Subject: FW: School kids program [SEC=UNCLASSIFIED]

Michael

As mentioned, copy of the email that went to the Govt and Opposition on Friday saying there would be not cuts to the water and fruit snacks program for children who visit Parliament House. Despite the fact the Opposition was informed the program would not be cut, Mr Hockey decided to comment in today’s article saying the program being cut was “pathetic”.

Hence why the strong statement was sent this morning.

Cheers Ryan

Ryan Liddell | Media Adviser Office of the Deputy Prime Minister and Treasurer | Commonwealth of Australia Phone: +61 2 6277 7340 | Mobile: +61 427 225 763 | Fax: +61 2 6273 3420 [email protected]| www.treasurer.gov.au

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 42

From: Liddell, Ryan Sent: Monday, 25 June 2012 1:13 PM To: '[email protected]' Subject: RE: School kids program [SEC=UNCLASSIFIED]

Michael – I’ve heard the whole interview now. Can you please call me when you have a moment? Thanks Ryan

Ryan Liddell | Media Adviser Office of the Deputy Prime Minister and Treasurer | Commonwealth of Australia Phone: +61 2 6277 7340 | Mobile: +61 427 225 763 | Fax: +61 2 6273 3420 [email protected]| www.treasurer.gov.au

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 43 From: Liddell, Ryan Sent: Tuesday, 26 June 2012 8:23 AM To: '[email protected]' Subject: Note about Daily Telegraph story [SEC=UNCLASSIFIED]

Michael

As mentioned to you yesterday and this morning, the story on the front page of yesterday’s Daily Telegraph was completely incorrect (acknowledged on p5 of today’s Tele).

Attached is the email that was sent by the Department of House of Reps on Friday (to Govt and Opposition MPs). If the story had been checked by the Telegraph with the Department before publication (as the journalist was advised to do), he would’ve been told the Department would not be making any changes to the program for school kids.

As mentioned, this email was sent to Opposition MPs on Friday. Mr Hockey was on Ray’s program yesterday saying the Treasurer should check his facts. He did. Mr Hockey should check the facts behind a story before being so irresponsible and causing unnecessary alarm about a story he’s been informed is untrue.

Given the criticisms that were levelled at the Treasurer yesterday for not checking facts (when he was proven to be correct), can you please let me know how you plan on setting the record straight for your listeners and their kids?

I note that we weren’t called by you yesterday to check the veracity of the story.

Sincerely, Ryan

Ryan Liddell | Media Adviser Office of the Deputy Prime Minister and Treasurer | Commonwealth of Australia Phone: +61 2 6277 7340 | Mobile: +61 427 225 763 | Fax: +61 2 6273 3420 [email protected]| www.treasurer.gov.au

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 44 Attachment J

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 45 Attachment K

Complainant’s submissions

The complainant’s submissions include the following:

…

I write to lodge a formal complaint under the Commercial Radio Codes of Practice (the Codes) in relation to comments by Mr Ray Hadley’s broadcast on 2GB on Monday 25 June 2012 and 2GB’s failure to correct substantial errors of fact. The circumstances and comments giving rise to the complaint are as follows:

1. At approximately 11.10 am on Monday 25 June 2012, the following exchange took place between Mr Hadley and Shadow Treasurer Joe Hockey relating to a report published on the same day on page 1 of the Daily Telegraph [extract of transcript]

2. The report in the Daily Telegraph on which this exchange was based is as follows [extract of article]

3. This report was the subject of a correction published by the Daily Telegraph on Tuesday 26 June (page 5) [extract of correction]

4. Prior to the exchange between Mr Hadley and Mr Hockey on 25 July, the following statement refuting the Daily Telegraph report was distributed widely to media outlets by my office at approximately 8.12 am, including 2GB’s newsroom in Sydney [email address and extract of statement/release from the Office of Wayne Swan]

5. Despite the above statement, no attempt was made by Mr Hadley’s program to contact my office to verify the basis of the assertions made by Mr Hadley prior to their broadcast on 25 July.

6. After the broadcast of the exchange excerpted in Paragraph 1, my office contacted a [Program producer]from Mr Hadley’s program at approximately 12.05pm to re-affirm that the report in the Telegraph was incorrect and to inform Mr Hadley’s program that the exchange excerpted in Paragraph 1 contained numerous assertions which were factually incorrect. My office sent by email to [the producer] a copy of an email from the Clerk of the Department of the House of Representatives which expressly disproved the assertions in the Daily Telegraph report and the subsequent exchange between Mr Hadley and Mr Hockey excerpted in Paragraph 1 above.

...8. My office contacted [the producer] of Mr Hadley’s program again later in the afternoon of Monday 25 June asking that [the Program producer] return the call to discuss the incorrect assertions made. My office followed this phone call up with another email .... The phone call or email was not responded to.

9. On Tuesday 26 June my office again contacted [the producer] of Mr Hadley’s program to point out the incorrect assertions and set out the need for a correction.

10. On Tuesday 26 June the following comments from Mr Hadley were broadcast in relation to the matters which were the basis of his exchange with Mr Hockey the previous day.

......

12. In addition to the incorrect assertions and the failure to correct substantial errors of fact, it should be noted that the assertion [in Paragraph10 above] that ‘we asked the Deputy Prime Minister’s office

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 46 why he didn't send us a copy of that yesterday morning when we were enquiring about it’ is incorrect. At no point did Mr Hadley’s program make any enquiries with my office before Mr Hadley made the comments referred to in Paragraph 1.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 47 Attachment L

Licensee’s response to the complainant dated 10 September 2012

...

As you know, the segments relate to the following documents, listed chronologically below.

1. Letter dated 21 June from the Clerk of the House of Representatives to the members of the House Standing Committee on Appropriations and Administration indicating a change of plan in relation to funding options, including the following statement:

Hospitality for visiting school groups - - (savings of $85,000 in 2012-13 and $235,000 per annum in future years.

2. Letter dated 22 June 2012 from the Clerk of the House of Representatives to the members of the House Standing Committee on Appropriations and Administration indicating a change of plan in relation to funding options, including the following statement:

I am contacting you now to say that the Department’s executive has met this morning and decided that we will not proceed at this stage with the option of stopping the provision of hospitality to visiting schoolchildren.

3. Article published in the Daily Telegraph on 25 June 2012 containing the following opening statement:

Children visiting federal parliament will be deprived of free bottled water and fruit treats as Treasurer Wayne Swan plays Grinch to school groups.

4. Media statement released by your office on 25 June 2012 following the publication of the Daily Telegraph article but before the commencement of Mr Hadley’s broadcast on that day, and containing the following statements:

The story by [the journalist] in today’s Daily Telegraph, Herald Sun, Adelaide Advertiser and Courier Mail claiming bottled water and fruit snacks for school students visiting Parliament House have been cut is completely wrong.

5. Statement issued on 25 June 2012 by the Department of the House of Representatives and received by 2GB after the close of the Program containing the following statement:

It is correct that the provision of hospitality for visiting school groups was listed as a savings proposal, but the Department decided on Friday that it would not proceed with that proposal and the service will continue in 2012-13.

...

The first Segment concerns documents [numbered] 1, 3 and 4 [above] and makes no reference to document 2 or 5. I am assured that neither Mr Hadley nor his production team was aware of document 2 until after the close of the Program broadcast on 25 June 2012 and, of course, document 5 was not released to 2GB until after the close of the Program.

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 48 The documentary context of the comments made by both Hon Joe Hockey MP and Mr Hadley in the first Segment is difficult to comprehend in the absence of the presentation of the actual documents. However, an attentive listener may be able to discern the following two factual assertions arising out of the conversation between the Hon Hockey MP and MR Hadley.

that the provision of fruit snacks to school kids visiting parliament house would be abolished.

that the contents of documents 3 and 4 are inconsistent and that, to resolve that inconsistency, document 3 is to be preferred as correct and document 4 is to be treated as incorrect.

With the subsequent revelation of documents 2 and 5, we unequivocally accept that both these facts were inaccurate at the time of broadcast.

In the context of the presentation of current affairs programs, the obligation on the licensee is to use reasonable efforts to ensure that factual material is reasonably supportable as being accurate (Code 2.2(a)). While the Codes impose an absolute obligation of accuracy in relation to the presentation of news, the obligation relating to current affairs programming are [sic] of a much lesser standard, being based on the double reasonable standard. Within the radio industry, it is recognised that while journalistic standards are applied in the course of production of news bulletins, a lesser standard applies to current affairs programming having regard to the predominantly comment and opinion based nature of that programming. This distinction is reflected in Code 2.2 through repeated use of the reasonable qualification.

In our view, at the time of broadcast, the facts identified above were reasonably supportable as accurate having regard to documents 1 and 3, and also the comments of the Hon Joe Hockey MP.

With the subsequent revelation that both of these facts were inaccurate, we suggest that both of these factual inaccuracies was [sic] corrected by Ray Hadley in his broadcast in Segment 2 on the following day. In relation to both of the inaccurate factual statements contained in the first Segment, we suggest that Mr Hadley’s following statements contained in Segment 2 correct the inaccuracy of those statements:

Following yesterday, after the story was published another document appeared apart from the email saying there would not be a stop to the children getting their water and fruit snacks. So it’s a victory for common sense. Well done to all concerned.

We do apologise for the factual inaccuracies contained in the first Segment broadcast by 2GB. I can personally assure you that the inaccuracy was not deliberate or malicious, but arose out of an incomplete understanding of all the facts at the time of broadcast.

... Licensee’s submissions to the ACMA dated 16 November 2012

...

1. Reasonable efforts obligation

...

The requirement under Code 2.2(a) is a requirement on the licensee to use reasonable efforts. There is no absolute requirement to ensure that every fact that is broadcast by the licensee is accurate in all respects.

In considering the comparative strength and therefore the scope of a licensee’s obligation under Code 2.2(a), reasonable efforts is located at the lowest end of the spectrum. The reasonable efforts standard

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 49 is distinguishable from absolute obligations to ensure outcomes (used in Codes 1.1, 2.1 and 2.3) and the intermediate level of best endeavours (used in Code 5.5). The Codes use these three different levels of obligation, which are all concepts that are recognised by and imported from the common law.

As you may already be aware, the common law recognises that the reasonable efforts standard is a significantly lower standard than best efforts, and that in either case, the obligation to use reasonable or best efforts can be discharged without achieving the desired outcome.

In relation to the relevant statement, 2GB fully discharged its reasonable efforts obligation through the use, by the presenter and producer of the program, of material contained in the article by Steve Lewis published in the Daily Telegraph on Monday 25 June 2012. ...

On the assumption that was made at the time that the information contained in that article was correct, that information clearly supports the broadcast statement.

The use of mainstream media sources provides reasonable support for factual material contained in 2GB’s broadcasts. In the context of a recent investigation by the ACMA ...2GB conducted a review of the fact checking processes that are systematically applied by the producers of its various programs. We reported to the ACMA that, across 2GB’s Breakfast, Morning, Afternoon and Drive programs, the presenters and producers rely on factual information published in other media to achieve compliance with Code 2.2(a).

In the course of that investigation, the ACMA did not require, or even suggest, that any additional fact checking steps were required in circumstances in which 2GB presenters use media sources to establish the accuracy of factual material. Accordingly, it is reasonable for 2GB to rely on media sources to support the accuracy of factual material contained in its broadcasts.

While in our view 2GB’s reasonable efforts obligation was fully discharged by its reliance on the 25 June article published in the Daily Telegraph, in these particular circumstances, 2GB further discharged the obligation in the following additional and separately sufficient ways.

(1) 2GB’s broadcast of the statement was reasonably supportable on the basis of the statement dated 21 June 2012 of the Office of the Clerk of the House to All Members titled Department of the House of Representatives Budge Outlook and Proposed Reductions in Departmental Costs. Relevantly, that statement includes the following paragraph:

Hospitality for visiting school groups – (savings of $85,000 in 2012-13 and $235,000 per annum in future years)

The hospitality program for visiting school groups will be discontinued from 1 January 2013. The hospitality program involves the provision of fruit straps and small bottles of water to visiting school children and tea and coffee accompanying adults where a request is made at the time of booking.

This statement provides reasonable support for the statement that the provision of the hospitality program to school children visiting parliament house would be abolished.

(2) The producer of the Morning Program spoke with the author of the Daily Telegraph article, Mr Steve Lewis, at approximately 9:54 am before the broadcast of the program. In the segment broadcast by 2GB at approximately 10:12 am, the presenter Mr Hadley interviews the author of the article ... who confirms the accuracy of the statement based on three sources:

The statement of the Office of the Clerk of the House ...

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 50 Discussions that he has had with both sides [of Parliament] regarding their concerns about the introduction of the changes; and

Discussions with the Office of the Finance Minister, Penny Wong.

Steve Lewis’s on air confirmation of the factual accuracy of his article and his substantiation by reference to his own inquiries provide 2GB with reasonable support for the statement.

In the event that the ACMA forms the view that 2GB has not discharged its reasonable endeavours obligation under Code 2.2(a), 2GB relies on the segment broadcast by 2GB on 13 July 2012 to invoke the exculpatory clause of Code 2.2 that applies in circumstances in which a licensee receives a complaint.

The Deputy Prime Minister and Treasurer lodged a complaint with 2GB on 12 July 2012 and 2GB broadcast a segment on 13 July 2012 that is exculpatory under the defence contained in Code 2.2(a). ...

2. Correction obligation.

Code 2.2(b) requires the licensee to use reasonable efforts to ensure that substantial errors of fact are corrected at the earliest opportunity.

Our internal inquiries reveal that the producers of the Ray Hadley program did not receive confirmation of the inaccuracy of the statement until after the close of the program on Monday 25 June 2012. Specifically, at 12:25 pm, 2GB received from the Media Adviser to the Deputy Prime Minister and Treasurer a copy of an email of correction that was circulated by the Clerk of the House to Members of the Appropriations and Administration Committee on Friday 22 June 2012...

I am assured that neither Mr Hadley nor the producers of his program were aware of the existence or the contents of that correction until that time. It was not until that time that 2GB became aware that the original statement of the Clerk was no longer accurate, but had been superseded by the later statement made on Friday 22 June 2012.

2GB broadcast a correction of this mistaken fact on Tuesday 26 June 2012 in the opening part of the program. After referring to the Daily Telegraph article and the presenter’s reliance on the original statement of the Clerk, presenter Ray Hadley provides the following corrective statement:

Following yesterday, after the story was published another document appeared apart from the email saying that there would not be a stop to the children getting their water and fruit snacks.

3. Inquiries of the Deputy Prime Minister’s office.

The ACMA has referred to the following statement made by the presenter during the broadcast of the correction statement on Tuesday 26 June 2012:

Now we asked the Deputy Prime Minister’s office why he didn’t send us a copy of that yesterday morning, when we were enquiring about it.

This statement refers to a discussion that occurred on Tuesday 26 June 2012 at approximately 7:48 am between the program’s executive producer ... and ...the Media Adviser to the Office of the Deputy Prime Minister and Treasurer.

[Program producer] recalls that, during that conversation, he made inquiries of [Media Adviser] as to the reasons for the delay in releasing the Clerk’s later email – in particular, why the Clerk’s later email had not been provided on the morning of Monday 25 June 2012. As mentioned above, 2GB did not receive the Clerk’s later email until the afternoon of Monday 25 June 2012, by which time the program had

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 51 ended. [Program executive] made a contemporaneous note of that phone call and we have no reason to believe that his recollection of his discussion with [Media Adviser] is inaccurate. On the basis that [Program producer’s] recollection is correct, the following statement is accurate:

Now we asked the Deputy Prime Minister’s office why he didn’t send us a copy of that yesterday morning, when we were enquiring about it.

The statement above should be interpreted in the context of the segment in which it was broadcast. The segment opens with the following:

Yesterday the Deputy Premier, Wayne Swan accused the Daily Telegraph of a raft of things out of their front page story about students visiting parliament being deprived of water and fruit snacks. We investigated the matter as you would expect, we did.

The underlined words marked in the offending statement do not refer to enquiries made of the Office of the Deputy Prime Minister and Treasurer, but rather to the investigations that were conducted more generally by the presenter and the producer in relation to the issue during the course of the morning of Monday 25 June 2012.

Considered in the context of the entire segment, the presenter’s statement is better interpreted to mean the following:

Yesterday morning, we were investigating the issue.

Why didn’t the Office release the Clerk’s later statement during the morning? [rather than after the program had ended].

...

Licensee’s submissions to the ACMA dated 17 December 2012

...

In our submission, if the ACMA forms the preliminary view that the broadcast of any material contained in the relevant segment on 25 June is in breach of Code 2.2(a), 2GB’s broadcast of certain segments on 13 July 2012 contained corrective material that was adequate and appropriate in all the circumstances and was broadcast within 30 business days of 2GB’s receipt of a complaint as required to satisfy the defence in Code 2.2. ...

In these corrective segments, the presenter Mr Hadley:

1. Refers to the original error that was made by him, being that as at the time of broadcast on 25 June 2012, the government’s original decision made on 21 June 2012 that water and fruit would not be given to students visiting the Parliament House remained a standing and operative decision;

2. Identifies and reads out the contents of the underlying source of substantiation for that error, being the statement dated 21 June 2012 issued by the Office of the Clerk of the House; and

3. Confirms the correct position that the original decision to stop the provision of Hospitality had been reversed. Mr Hadley also provides substantiation for the reversal by reading out the details of the subsequent statement issued by the Clerk of the House on 22 June 2012.

We note that the segments broadcast on 13 July 2012 not only provide the basis for the operation of the defence under Code 2.2, but also provide useful details of the chronology of events leading up to and on

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 52 the days of the subject broadcasts on 25 and 26 June 2012. The information in these segments may be useful to the ACMA in the conduct of its preliminary review in assessing the application of Codes 2.2(a) and (b). Licensee’s submissions to the ACMA dated 30 January 2013

The licensee provided the following submissions in response to an earlier version of the investigation report:

...

No consideration of the political circumstances and context

The ACMA has suggested that all elements of Code 2.2 are assessed having regard to the relevant circumstances and to the context.

However, most relevantly, the ACMA does not consider any of the following circumstances and context in the PIR [Preliminary Investigation Report]:

The political subject matter of the broadcast, being the decisions of the Commonwealth executive government.

The highly political context of the broadcast, including the substantial critical comments of the Shadow Treasurer Joe Hockey who is the direct political counterpart and adversary of ... Mr Swan.

The credit and competence of the Deputy Prime Minister and Treasurer, Mr Wayne Swan, having regard in particular to his previous public statement that:

“No it’s not possible that we’re bringing in a carbon tax. That’s an hysterically inaccurate claim being made by the Coalition.”

Reasonable efforts: ACMA’s tests

In forming its view of a breach of Code 2.2(a), the ACMA adopts the following tests:

Reasonable efforts will depend on all the relevant circumstances; and

The material that 2GB relied on should be commensurate with the nature and gravity of the subject.

The relevant circumstances

The ACMA does not articulate the method by which relevant circumstances are to be identified and prioritised, and irrelevant circumstances identified and disregarded.

In any case, the ACMA appears to consider only one circumstance to be relevant – namely, the contradictory media release issued by Mr Swan.

The ACMA does not appear to take any other circumstances into account, including the following very relevant circumstances.

1. That the primary issue of Broadcast 1 is the credit and competence of the Deputy Prime Minister and Treasurer having regard to his significant and ultimately false public statement that:

“No it’s not possible that we’re bringing in a carbon tax. That’s an hysterically inaccurate claim being made by the Coalition.”

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 53 The ACMA entirely ignores that this statement – made by the complainant himself – provides the context for, and is a key issue in discussion during, Broadcast 1.

The contents of Broadcast 1 clearly put the credit and competence of the Deputy Prime Minister and Treasurer in issue – a circumstances that is ignored by the ACMA.

We observe that the ACMA has not disputed or questioned in any way the serious allegation made by both the presenter and the Shadow Treasurer that this statement is a lie. Neither the ACMA nor the Deputy Prime Minister and Treasurer have contested or challenged this allegation, and so presumably accept its accuracy.

2. That the Office of the Clerk of the House issued a document containing the following definitive statement:

The hospitality program for visiting school groups will be discontinued from 1 January 2013.

3. The comments of the complainant’s political oppositional counterpart, the Shadow Treasurer, during the course of 2GB’s broadcast on 25 June 2012.

Commensurate material

The ACMA does not indicate why the document issued by the Office of the Clerk of the House or the comments made by the Shadow Treasurer or the other material relied on by the presenter are not commensurate with the nature and gravity of the subject.

In our view, a formal written statement issued by an officer of Parliament as well as the statements of a member of Parliament are materials which are clearly commensurate. Code 2.2(a) requires only that factual material is reasonably supportable as accurate. Each of these two sources provides separate reasonable support for the relevant factual material.

The ACMA appears to construe Code 2.2(a) to require a broadcaster of current affairs programs to investigate a contradictory source. However, there is no such obligation arising out of Code 2.2(a), either expressly or impliedly.

We suggest that the ACMA is applying a ‘best endeavours’ journalistic standard that may be applicable to journalists in the context of news programming. The journalist standard is a much higher standard and exceeds the current affairs standards under Code 2.2. It would appear that the ACMA considers that 2GB should have sought to contact Mr Swan’s office because it was possible for 2GB to do so. This reflects a hindsight perspective that ignores the nature, time limits and constraints of live, opinion-based talk radio programming and instead reflects a pre-produced news reporting standard.

The ACMA’s approach to Code 2.2(a) is antithetical to regulatory arrangements that are stable and predictable.

...

Corrections: the requirement for contrition; remedial statements and apologies

In assessing whether 2GB broadcast a correction that satisfied the requirements of Code 2.2(b) and the exculpatory defence to Code 2.2(a), the ACMA has incorrectly interpreted the requirement for a correction by additionally requiring:

Contrition;

Apologies; and/or

ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 54 Remedial statements.

We agree with the ACMA’s assessment that 2GB’s broadcasts do not contain apologies or contrition.

However, Code 2.2 does not require a licensee to prostrate contrition, make apologies or issue remedial statements, all of which are substantially different in nature, purpose and content from corrections of factual inaccuracies.

The effect of the PIR is that the ACMA, itself an arm of the Commonwealth Government, would require 2GB to apologise and prostrate contrition to a member of the Commonwealth Government in order to comply with the correction requirements of Code 2.2.

We consider that such a requirement sits uncomfortably with both the Constitutional freedom and Australian custom and expectation for a free and independent media.

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ACMA Investigation Report – Ray Hadley Morning Show broadcast by 2GB on 25 & 26 June 2012; 13 July 2012. 55