Investigation Report No.2435
Investigation Report No.2435
File No. / ACMA2010/1291Licensee / Radio 2UE Sydney Pty Ltd
Station / 2UE Sydney
Type of Service / Commercial Radio
Name of Program / 2UE Drive
Date of Broadcast / 5 May 2010
Relevant Code / Clause 1.1(e) of the Commercial Radio Australia Codes of Practice and Guidelines 2010
Date Finalised / 24 September 2010
Decision / No breach of clause 1.1(e) (hatred, contempt or ridicule)
The complaint
On 18 June 2010, the Australian Communications and Media Authority (the ACMA) received a complaint regarding the program 2UE Drive broadcast on 5 May 2010 by Radio 2UE Sydney Pty Ltd, the licensee of 2UE Sydney (the licensee).
The complainant is concerned that comments made by the program presenter in reference to persons detained at the Christmas Island Immigration Detention Centre would likely ‘incite and perpetuate hatred against all asylum seekers and inmates of detention centres because of their ethnicity and race’.
The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA for investigation.[1]
The complaint has been assessed against clause 1.1(e) [proscribed matter] of the Commercial Radio Australia Codes of Practice and Guidelines 2010(the Code).
The broadcast
2UE Driveis acurrent affairs talkback program broadcast on weekdays from 3.00 pm to 6.00 pm on 2UE Sydney. At the time of the complaint, the program was hosted by David Oldfield.
During the program broadcast, Mr Oldfielddiscussed the Coalition Party’s border protection policy with Michael Keenan, Shadow Minister for Justice, Customs and Border Protection.The discussion took place in the context of the then upcoming election of Government and a coinciding news headline regarding a detainee that escapedfrom the Christmas Island Immigration Detention Centre.
Mr Oldfield introduced the segment as:
Christmas Island is constantly in the news these days. Just yesterday, another boat was intercepted. Now, I know you are all numb to this but this is the 50th boat to arrive just this year. But now we hear a story of a slightly different kind. A couple of days ago, an unhappy detainee tried to escape. Or should I say, succeeded in escaping. He scaled two wire fences and wandered off into the jungle. Now we are talking about an electric fence. The bloke climbed over an electric fence. Rubber soled shoes, rubber gloves, you may ask? No. In fact, if you are wondering why he didn’t get zapped, well the fence wasn’t turned on.
Now Michael Keenan is the shadow minister for justice, customs and border protection. He’s recently returned from Christmas Island. And we’re grateful he’s been able to join us today. Michael. Good afternoon – thanks for being with us.
Mr Oldfield and Mr Keenan discussed the Government’s border protection policyand how the Coalition Party’s border protection policy wouldcurtail unauthorised arrivals:
[...]
Mr Oldfield: So no easy ride, no great voyage and of course no incentives for the queue jumpers. Just one final question for you, Michael, could you guarantee us that a coalition government will actually turn on the electric fences?
Mr Keenan:Well that won’t be a decision for me within my ministry that will be a decision for my colleague Scott Morrison, but certainly...
Mr Oldfield:We’d all be hoping that the answer could only be ‘yes’.
Mr Keenan: Well certainly we will have the resolve to address this problem. What I would like to see is no more people coming onto Christmas Island.
Mr Oldfield: Surely you’re not telling me there’s a chance you wouldn’t turn on the electric fences?
Mr Keenan: Well look I can’t speak for my colleague.
Mr Oldfield: Oh dear.
Mr Keenan: But I will say that we will have the resolve to address this problem. I’m sort of less concerned about the conditions of the detention centre than I am about stopping people from getting there in the first place.
Mr Oldfield: Well we also don’t want them getting out once they’re there. But maybe we’ll have to pin down Scott Morrison on that one. I appreciate your time.
[...]
Following the interview, Mr Oldfield made the following concluding statement before going to a commercial break:
Well I don’t know what you made of that.It’s a bit of a disaster, the whole fact that we’re getting thousands and thousands of people arriving here on these boats more and more all the time. Not forgetting, of course, the thousands that are arriving by plane but are not as obvious in their arrival. We can’t forget them. Look, at the end of that with Michael Keenan, I was horrified, and I hope you are as well. If the Coalition wants to win the next election you’d hope that they could at least undertake to flick a switch on the electric fences that supposedly keep these queue jumpers in the compound wouldn’t you? They can’t even actually commit to flicking an actual switch and turning on the electric fences. I think that’s a debacle and it is very unfortunate he wasn’t able to simply say ‘yes’. There are some very simple questions that can be asked to a politician where the answer is ‘yes’ or the answer is ‘no’. It’s not a whole lot of waffle, and excuses, and buck-passing for colleagues and everything else. He should have just said, ‘Yes, we’ll turn on the electric fences. We’ll stop them from coming. But the ones that are here we’ll make sure they can’t escape. And if they do try it, they’ll be fried!
Following the break a caller was put on-air and the following exchange between the caller and Mr Oldfield took place:
Mr Oldfield: Welcome.
Caller 1: Well David, I’m not very happy about the way you spoke about those human beings that the electric fence should be turned on and they fry.
Mr Oldfield:You talking about the queue jumpers on Christmas Island?
Caller 1: Listen these are human beings. I know they shouldn’t be coming over in boats and things like that, and I’m not happy that they are. But I wouldn’t want anybody being fried. Like you were saying, I don’t know what you’re on the radio for.
Mr Oldfield:Or be BBQ’d.
Caller 1: I mean you should stay over in bloody 2GB. That’s the kind of place that’s always rubbishing everybody.
Mr Oldfield:Everyone has a view.
Caller 1: They might, but you’re not for 2UE mate. I’m telling you you’re bad.
Mr Oldfield:Well, I guess we’ll find out that in the long term.
Caller 1: You’re bad.
[End of call]
Mr Oldfield made the following comments subsequent to Caller 1:
Thank you for that. I’ve been called much worse things, I must say. Now of course, the concept of frying relates to an electric fence, no one is seriously suggesting we whack them in a frying pan and sort of, you know, batter them up or anything like that. They wouldn’t taste very good anyway would they? But you know, everyone does have a view, and I’m not here to be agreed with. And I don’t mind being called bad or anything else - some people will think that, some people won’t. Others would be cheering and saying ‘whack them on the BBQ!’ I mean for goodness sakes, these people are coming here in ever-increasing numbers. The government does nothing about it and forget about the idea that they are fleeing tyranny and everything else. It is quite a common practice, for example, in Afghanistan to go along and pay US$1500 as I said, to a corrupt official. And you can find a few of them in Kabul. And you get a visaand you jump on an Aeroplane you know a jetliner, and you fly out of Afghanistan. You do a bit of duty free shopping in Hong Kong or Singapore on the way through, land in Jakarta, make your way south, and pay $15,000 to $20,000 to get on a boat and head towards Christmas Island. These are not people fleeing the Nazis in the World War II. These are not people with their worldly possessions bundled on their heads trying to cross the Swiss border. This is not what’s taking place. These are modern day country shoppers. Yes, there’ll be a few genuine refugees amongst them. But they are generally modern day country shoppers. A true refugee flees to the point of safety. They don’t travel thousands and thousands of miles on boats, on international aircrafts, stopping for shopping, and all of that, to get to Australia. So don’t pay them too much sympathy where this is concerned. And if you don’t like terms like ‘fry’ in relation to electric fences, well of course you can ring up and complain. As I say, I’m not here to be agreed with.
I will however of course state my view because that’s why I’m here. And I’m also here to facilitate you stating your views. And you are more than welcome to ring up and say, as she did.
[...]
Later in the program, another two listeners were put on-air who were supportive of Mr Oldfield’s views.
A full transcript of the segment, including the interview, comments and telephone calls, is set out at Attachment A.
Assessment
The assessment is based on:
a copy of the broadcast, provided to the ACMA by the licensee;
submissions from the complainant and the licensee; and
publicly available information, the source of which are identified where relevant.
Issue 1: was the programlikely to incite hatred against any group of persons because of ethnicity or nationality
Relevant provision of the Code
Clause 1.1(e) of the Codes states:
Proscribed Matter
1.1A licensee must not broadcast a program which, in all of the circumstances:
[...]
(e)is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.
Interpretation of clause 1.1(e) of the Code
The ACMA adopts the general approach set out below, when assessing whether a broadcast breaches clause 1.1(e) of the Code.
Ordinary reasonable listener test
In assessing the Code, the ACMA considers what an ‘ordinary reasonable listener’ would have understood the broadcast to have conveyed. Australian Courts have considered an ‘ordinary, reasonable listener’ to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[2]
‘Likely, in all of the circumstances’
Use of the words, ‘likely in all of the circumstances’ imposes an objective test[3]and implies a real and not remote possibility; something which is probable.[4]
‘Incite hatred’
When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.
The Macquarie Dictionary (fourth edition) includes the following definitions:
inciteverb to urge on; stimulate or prompt to action.
hatred nounthe feeling of someone who hates; intense dislike; detestation.
Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group. There is no need to establish that there was a specific intention to incite hatred or to prove that anyone was actually incited.[5] However, the use of words that merely convey hatred towards a person, is not incitement. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[6]
The Code contemplates a very strong reaction and sets a high test for the prohibited behaviour. It is not sufficient that the behaviour induces a moderately negative response or reaction.[7]
‘Because of’
The incitement to hatred against must occur on a basis specified in clause 1.1(e), including nationality or ethnicity of the person or group of persons.
This means there must be a causal connection between the nationality or ethnicity of the person or group of persons and the feelings of hatred that are likely to be incited by the public act, that is, the broadcast.[8]
Complainant’s submission
The complainant submitted:
David was trying to coerce Shadow Minster Michael Keenan to say that the electric fence above the detention centre on Christmas Island will be ‘turned on when they win the next Federal election’. David was building up his case about the excellent facilities that exist on Christmas Island for detainees compared to the poor living conditions for the workers on the island. [...]
David was referring to the escape of a detainee on Christmas Island due to the fact that the fence surrounding the detention centre did not have the electrified fence activated.David told the Shadow Minister thatthe Liberalgovernment would win the next Federal election. David wantedthe Ministerto say that the switch would be turned back on as soon as the election was over. He kept repeating that phrase and in fact said that ‘any detainee who wanted to climb the fence should be fried and frizzled’. The Shadow Minister could not give his guarantee that 'the switch would be turned on' saying that it would be a decision made by members of his party when and if they won office -in a policy dealing with asylum seekers. David became quite upset with this response and stated verbally his feelings of frustration. The call was terminated by David.
I feel that David did contravene [clause[1.1(e)] of the Codes] in respect of vilification[9] and his intention was to incite and perpetuate hatred against all asylum seekers and inmates of detention centres because of their ethnicity and race. [...]
Licensee’s submission
In the licensee’s response to the complainant dated 13 May 2010, the licensee stated:
[...]
Radio 2UE management deemed Mr Oldfield's comments to be unacceptable and distasteful and as a consequence he was suspended from broadcasting on the radio station for a time. Radio 2UE has made clear to Mr Oldfield the inappropriateness of these comments.
I have listened carefully to the broadcast and considered section [1.1(e) of [ the Codes] provides that a licensee must not broadcast a program which is "likely to incite or perpetuate hatred against or vilify any person or group on the basis of age, ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability". This test in the Code sets a high threshold for the likely effect of prohibited behaviour: that is that comments must induce a strong reaction of contempt or ridicule against a group of people to be regarded as a breach under section [1.1(e)].
In this broadcast, I do not believe that Mr Oldfield's comments did this. Rather, Ibelieve his inappropriate comments were more of a poor reflection on himself than onasylum seekers. I do not believe that listeners would feel such strong emotions ashatred or contempt for asylum seekers as a result of this broadcast.
Accordingly, it is my view that the broadcast was unacceptable but that it did notbreach [the Codes]. [...]
Finding
In broadcasting 2UE Drive on 5 May 2010, the licensee did not breach clause 1.1(e) of the Code.
Reasons
Relevant person or group of persons
The segment discussed theCoalition Party’s border protection policy, as well as the escape of a detainee from the Christmas Island Immigration Detention Centre.
The delegate is satisfied that Mr Oldfield’sstatements were intended to be in reference topeople of ethnic and national origin, who arrive in Australia without authorisation seeking asylum.
Relevant ground
The complainant has identified ‘ethnicity and race’ as the relevant grounds of hatred. The delegate notes that the individuals or groups of persons discussed were not identified in the commentary as being of any particular nationality or ethnic group. However, pertinent to the topic under discussion were peopleof ethnic and national origin who are seeking asylum in Australia.
On the basis of the complaint coupled with the broader topic of discussion, the delegate is of the view that the relevant grounds for consideration in this investigation are nationality or ethnicity.
Incite hatred
Clause 1.1(e) of the Code prohibits licensees from broadcasting programs which, ‘in all of the circumstances, is likely to incite hatred against [...] a group of persons because of nationality or ethnicity’.
Merely engaging in conduct that conveys hatred does not amount to a breach of clause 1.1(e) of the Codes. There must be something in the conduct and its manner or circumstances that render it capable of inciting the requisite degree of ill-feeling in another person.[10]
The prohibition contained in clause 1.1(e) must be balanced with freedom of speech and expression. The Appeal Panel of the Administrative Decisions Tribunal (ADT) in Burns v Laws[11]noted that freedom of speech and expression is not limited to what might be called polite, decent or tasteful expression but is freedom which embraces offensive, rude, hostile, derogatory and angry speech or expression, and speech or expression that is tasteless, insensitive and undignified.