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Investigation Report No. 2669File No. ACMA2011/1532

Broadcaster Australian Broadcasting Corporation

Station ABW Perth

Type of Service National broadcaster

Name of Program Jandamarra’s War

Date of Broadcast 12 May 2011

Relevant Code ABC Code of Practice 2011Clauses 2.1, 2.2 and 7.7

Date Finalised 11 April 2012

Decision No breach of clause 2.1 (reasonable efforts)No breach of clause 2.2 (not materially mislead)No breach of clause 7.7 (avoid discriminatory content)

ACMA Investigation Report – Jandamarra’s War broadcast by ABW on 12/5/11

The complaintThe complaint is that the program Jandamarra’s War, broadcast by ABW on 12 May 21011, contained

sustained fabrications (some very serious) that dramatically distorted historical truths and promoted contempt of the settlers and police that was then visited upon the present population.

The complainant also has concerns about the sources used by the program.

The complaint has been investigated in relation to clauses 2.1, 2.2 and 7.7 of the ABC Code of Practice 2011.

Matters not pursuedThe ACMA has not examined complaints which were not substantively made to the ABC in the first instance, or complaints about matters not related to the ABC Code of Practice 2011.

The complainant has been advised of the detail of these matters.

The programJandamarra’s War was a 55-minute documentary that dealt with events in the Kimberley region of Western Australia in the 1880s and 1890s. It was narrated by the actor Ernie Dingo. The narrator’s introduction was as follows:

NARRATORJust before the turn of the twentieth century, with Australia on the brink of becoming a nation, one of the greatest stories of Aboriginal resistance is playing out in the colony of Western Australia. Rebel fighters from the Bunuba nation are waging guerrilla war in the Kimberley. The leader of the rebellion is a young Bunuba warrior, once exiled from his own people, raised in the ways of white men, an outcast torn between two worlds, who has risen up to stop the invasion of his country. For nearly three years, the colonial forces are powerless against him as he strikes terror in the hearts of the police and settlers. To the white man, he is an outlaw. To the Bunuba, he is jalangurru, a man of mystical power, a protector, a saviour, a freedom fighter. His name is Jandamarra.

This was followed by footage of a Bunuba elder, George Brooking, stating:

GEORGE BROOKINGThis is the story I carry. This is the story that was told to me by my old people.

The documentary used dramatisations, with actors playing Jandamarra and other individuals involved in the events. It also included narration and commentary from the historian Howard Pedersen and from Mr Brooking and three other Bunuba cultural consultants, June Oscar, Dillon Andrews and Danny Marr.

ACMA Investigation Report – Jandamarra’s War broadcast by ABW on 12/5/11 2

As depicted in the program, the sequence of events was as follows:

Jandamarra is born in Bunuba country (1873). His ‘spirit country’ takes in parts of the Napier and Oscar Ranges, and includes Yillimbirri, Lillimoolooroo and Tunnel Creek.1

First white settlers arrive with sheep (1883).

Bunuba, under the leadership of Jandamarra’s uncle Ellemarra, begin an ‘uprising’ against the settlers (1885), spearing sheep and clashing with settlers.

Jandamarra and his mother, Jinny, ‘come in’ to William Lukin’s sheep station on the Lennard River. The manager starts calling Jandamarra ‘Pigeon’. Jandamarra is taught station skills, including marksmanship and horsemanship.

Ellemarra takes Jandamarra to prepare him for initiation.

Ellemarra and Jandamarra, as a youth, are arrested for sheep-spearing and taken to Derby Jail. Jandamarra enjoys privileges as a prisoner.

After two years, Jandamarra returns to Bunuba country but is told to leave, because he had ‘never finished going through law’.

Jandamarra begins living at Lillimoolooroo Station. He ‘plays around with’ Aboriginal women, many of whom have kinship ties and skin names that are ‘not right’ for him. As a result, he is threatened with tribal punishment and ‘walk[s] away’ from traditional Bunuba life.

Jandamarra makes friends with a white stockhand, Bill Richardson.

Richardson becomes a police scout and Jandamarra rides with him as a companion (May 1894).

Richardson and Jandamarra arrest a group of Bunuba, including Ellemarra, for killing sheep (May 1894).

Lukin whips Ellemarra in Jandamarra’s presence.

Ellemarra escapes on the way to Derby.

Cattlemen plan to introduce cattle to the Kimberley (1894). Police are ordered to protect the herd from Bunuba attacks by capturing as many Aboriginal people as possible.

In the course of this action, Richardson and Jandamarra capture a large group of Bunuba, including Ellemarra, and march them to Lillimoolooroo Station (late October 1894).

Richardson keeps the Bunuba chained up for seven days without food.

Jandamarra is put under pressure from the Bunuba.

Jandamarra kills Richardson and frees the prisoners.

Jandamarra is joined by many other Bunuba men and women.

Jandamarra and his followers attack the cattle drive, killing two station hands, Frank Burke and Billy Gibbs.

Another station hand, Fred Edgar, sets off for Derby to raise the alarm. Jandamarra pursues him on horseback, ‘standing tall in the stirrups’ and firing at him.

A police posse from Derby attacks Jandamarra and his followers at Windjana Gorge. Ellemarra is killed and Jandamarra is wounded.

1 These locations are all situated some 100-150 km east of Derby, and north-west of Fitzroy Crossing.


Jandamarra escapes with the assistance of his mother, Jinny.

The police believe they have killed Jandamarra.

Police launch a two-and-a-half-month operation, during which ‘police record killing 27 Aboriginal people. But according to Bunuba, many more were murdered’.

Jandamarra changes strategy, abandoning open combat in favour of tactics to ‘confuse, ridicule and exhaust police patrols’. Jandamarra develops a reputation for possessing magical powers.

A new black tracker, Mingo Micki, arrives (late 1896).

A posse of troopers led by Richard Pilmer attacks a number of Bunuba people at Oscar Range. Jinny is killed.

Pilmer tracks Jandamarra away from Oscar Range. In a confrontation, according to ‘Bunuba oral tradition’, Pilmer pleads for his life and Jandamarra lets him go after shooting his hat off.

A party including Micki and Joe Blythe closes in on Jandamarra. Jandamarra falls after being shot by Micki. As Blythe approaches, Jandamarra turns and fires, shooting off Blythe’s thumb, and escapes.

Three days later, Micki finds Jandamarra hiding in a cave and shoots him dead (1897).

The program ended with the following statement from the narrator:

NARRATORToday the story of Jandamarra belongs not only to Bunuba, but to all Australians, as an enduring reminder of the price of freedom and the ongoing need for justice.

This was followed by statements from Ms Oscar, Mr Marr and Mr Andrews about the contemporary relevance of the episode, and finally this statement from Mr Brooking:

GEORGE BROOKINGThat’s what I was told. Yarr. That’s the story I keep and I haven’t forgotten.

The end-credits included the following statement:

Based on the book Jandamarra and the Bunuba Resistance written by Howard Pedersen and Banjo Woorunmurra published by Magabala Books.

Ordinary reasonable viewerIn assessing content against a code of practice, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable listener/viewer’.

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

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2

The ACMA asks, what would the ‘ordinary reasonable listener/viewer’ have understood this program to have conveyed? It considers the natural, ordinary meaning of the language,

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


context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

AssessmentThis investigation is based on submissions from the complainant and the ABC and a copy of the broadcast provided to the ACMA by the ABC.

Other sources used have been identified where relevant.

Issue 1: Accuracy

Relevant code clauses2 Accuracy

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The ABC code provides several principles in relation to the accuracy requirements. These include:

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

the type, subject and nature of the content;

the likely audience expectations of the content;

the likely impact of reliance by the audience on the accuracy of the content; and

the circumstances in which the content was made and presented.

...

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

Considerations generally applied by the ACMA in assessing whether material complained of was subject to, and/or compliant with, obligations in relation to factual accuracy are at Appendix 1 to this report.


FindingThe ABC did not breach clause 2.1 or 2.2 of the code.

ReasonsContext

The ABC submitted that the program was a ‘point-of-view documentary’ which presented ‘the Bunuba’s story of their resistance to white settlers and the role played by the Bunuba hero, Jandamarra’.

For the following reasons, the ACMA does not accept that ordinary reasonable viewers would necessarily have understood Jandamarra’s War to be a point-of-view documentary or a story told exclusively from a Bunuba point of view:

a point-of-view documentary is typically narrated in the first person and deals with a social or political issue of contemporary controversy;

in contrast, Jandamarra’s War had a third-person voice-over narrator and dealt with a historical matter;

Jandamarra’s War had a format typical of historical documentaries, ie a third-person voice-over narrator, ‘talking-head’ experts, reference to historical documentation from various sources and dramatised re-enactments of key events;

the narrator, Mr Dingo, did not identify himself as Bunuba; is not widely perceived to be Bunuba;3 or say that what was being presented was a Bunuba version of events—in fact, the narrator referred to the Bunuba in the third person;4

the narrator made unqualified assertions, which presented as statements of fact;

the narrator, in the conclusion of the program, described the story of Jandamarra as belonging ‘not only to the Bunuba, but to all Australians’;

Mr Brooking, the custodian of the Bunuba traditional story, was not the narrator, or even a major ‘talking-head’ contributor;

the non-Bunuba historian Howard Pedersen featured prominently in the program, commenting and occasionally narrating;5

only on one occasion did Mr Pedersen indicate that what he was narrating was Bunuba oral tradition6—there was nothing to indicate that on other occasions he was ‘telling the Bunuba story’;7 rather he was identified, and presented, as a historian, ie a person trained in, and professionally committed to, respect for objectivity and historical accuracy;

the end-credits referenced Jandamarra and the Bunuba Resistance, a work of which Mr Pedersen is a co-author;

3 For example, the Wikipedia entry for Mr Dingo describes him as originating from ‘the Yamatji people of the Murchison region’. en.wikipedia.org/wiki/Ernie_Dingo. Date accessed: 20 March 2012.

4 For example, ‘To the white man, he is an outlaw. To the Bunuba, he is jalangurru, a man of mystical power’ and ‘For the Bunuba, these ancient ranges are a place of deeply religious significance’.

5 For an example of Mr Pedersen as narrator, see ‘ “Safeguard” country’, below.6 See ‘Encounter with Pilmer’, below.7 The ABC submission included:

There is no historian interviewed other than those who viewers know are telling the Bunuba story.


the program presented material from a variety of sources apart from Bunuba oral tradition, including libraries, the archives of the West Australian newspaper and Hansard; and

Jandamarra was clearly the protagonist of the account presented; however this did not convey that the program was a ‘point-of-view’ documentary—it is common for historical documentaries to focus on the biography of a single protagonist.8

Accordingly, the ACMA considers that Jandamarra’s War would have been understood, by ordinary reasonable viewers, to be a historical documentary. It is noted in this respect that it was so perceived by the reviewers from The Australian and The Age whose reviews are cited on the ABC’s webpage for the program:9

A compelling documentary about a part of Australian history that should be known more widely. [Emphasis added]

Historical documentaries are at their best when they illuminate a little known narrative rather than merely recite a famous one. [Emphasis added]

With respect to historical documentaries, the ACMA accepts that viewers’ expectations will be different from what they would be for a news or current affairs program. However, viewers would still expect of a historical documentary that it would contain a significant amount of factual content, and that there would be some evidentiary basis to propositions that present, in the program, as factual content. In other words, viewers’ expectations would not be the same as for a fictional historical drama or for a first-person subjective treatment.

With this in mind, the ACMA has asked the following questions in relation to those aspects of the program which are the subject of complaint:

Was the material complained of ‘factual content’?

If so, what factual content did the material convey?

Would any inaccuracy in the material have ‘materially’ misled the audience, ie misled the audience about a matter of substantial import or much consequence, likely to influence the overall impression the audience would have taken from the program as a whole? 10

If so, was there any inaccuracy in the material?

If there is not enough information to determine that there was an inaccuracy, the ACMA then examined whether reasonable efforts were made to ensure that the material was accurate.

Population of Bunuba country before white colonisation

The relevant material was the following statement by the narrator, made near the beginning of the program, while the screen showed an aerial track over scrubby trees and a rocky outcrop:

NARRATORThis is fertile Bunuba country. Bunuba people have called it home for more than 40,000 years. Before the white settlers arrived to colonise this region of the Kimberley, the population is around 10,000 people.

8 The ABC submitted that the title, Jandamarra’s War, reinforced ‘the perspective from which this story will be told’ and that the contributions from the Bunuba commentarists, articulating Jandamarra’s thoughts and feelings at key points of the account, ‘clearly signalled to audiences’ that the story was being told from the Bunuba perspective.

9 www.abc.net.au/tv/programs/jandamarraswar.htm. Accessed 26 March 2012.10 See Macquarie Dictionary (5th edition), meanings 13 and 14 of ‘material’.


http://www.abc.net.au/tv/programs/jandamarraswar.htm

The complainant submitted:

Inspector Lawrence reported the east side of the Fitzroy River (Bunuba Country) had 400 employed on stations and 300 wild Aborigines. Presume these numbers relate to men and therefore the number can be extrapolated out to possibly 1500.

This claim of 10,000 has no relationship to actual numbers.

It is an oblique claim that the Whites killed them all leaving only the small number.

In response to a request from the ACMA, the complainant advised that Inspector Lawrence’s estimates date from 1895.

The first issues for assessment are whether the material was ‘factual content’, and if so, what it conveyed. In the ACMA’s view, an ordinary, reasonable viewer would have understood the statement broadcast to be factual content, and to have conveyed that the population of Bunuba country was around 10,000 before white colonisation, ie before 1883.

The next issue is whether an inaccuracy in factual content about the population of Bunuba country before white colonisation would have ‘materially’ misled the audience. The ACMA considers that the matter was not material. The program did not include Lawrence’s 1895 estimate of the Bunuba population, or indeed any estimate at all for the Bunuba population after the advent of white colonisation. Accordingly, ordinary reasonable viewers would not have reached the conclusion that ‘the Whites had killed them all’ leaving only a small number.

That said, on the information provided by the ABC, the estimate of 10,000 Bunuba before white colonisation was based either on Elkin’s estimate for the entire Kimberley before white colonisation, or on Howard Pedersen’s maximum estimate for the Kimberley divided by three on the basis that Bunuba country was a fertile region which would have supported a relatively large number of people. This, in the ACMA’s view, does not provide a solid foundation for the categorical assertion made in the broadcast.

‘Safeguard’ country

The relevant material was the following, which referred to the period beginning 1885:

JUNE OSCARAs the herds grew, people started to see the destruction of country, of waterholes, of the disrespect for important places.

HOWARD PEDERSENThe Bunuba reacted as though they can only react, which is to safeguard those places, and to chase those sheep away, and to spear those sheep.

Later there is further material, in relation to 1893:

NARRATORBy late 1893, the colonial world is tightening its grip on the Bunuba. The Bunuba fight back, harassing and spearing stock.

The complainant submitted that the notion that the Bunuba had killed livestock to safeguard their land was:

Hardly likely – first they killed them for food and then in a blood lust.


The ABC submitted:

The [material relating to 1885] is not factual content … The statements by June Oscar and Howard Pedersen refer to the motivation of the Bunuba people as to why they killed livestock in the early stages of white settlement. Motivation is not a verifiable fact. As such, it is opinion or analysis and is not factual content.

The ACMA considers that, from the point of view of an ordinary, reasonable viewer, the material presented as factual content because it comprised unqualified assertions. Further, while not spoken by the narrator, the material served to advance the narrative, rather than comment on it: this was how the program presented the information that country and waterholes were destroyed, important places disrespected, and the Bunuba chasing away and spearing sheep. The account of the Bunubas’ motivation (ie that they were reacting to ecological destruction and disrespect for important places, and acting to ‘safeguard’ country) was so intrinsically bound up with the other information presented in this material that it, too, would have been understood by an ordinary, reasonable viewer as factual content. That is, such a viewer would have understood that the program conveyed, as fact, that the Bunubas’ motivation for spearing sheep (and other livestock) was to ‘safeguard’ the country, in particular waterholes and ‘important places’.

Further, the statement relating to 1893 was factual content and conveyed that spearing stock was a way in which the Bunuba fought back against the tightening grip of the ‘colonial world’. The ACMA concludes that the program presented, as fact, that the Bunuba speared livestock as an act of defence against the encroachment of white settlement.

Would any inaccuracy in the material have ‘materially’ misled the audience? The program omitted to say that some of the livestock the Bunuba speared were consumed by them. On the basis of the evidence provided by the complainant, the ACMA accepts that this was so, but does not regard the omission as leading to any material inaccuracy, given that it accounted for only a small percentage of the livestock speared.11

However, an inaccuracy about the Bunubas’ principal motivation for spearing livestock would have materially misled the audience, because (as outlined below) the program’s central assertion – that there was a Bunuba ‘uprising’ from 1885 to 1897 – largely depends on the notion that the Bunuba had a political motivation for spearing livestock, ie it was not ‘blood lust’ as alleged by the complainant.

The ACMA notes that there is no direct evidence, such as written or recorded statements from the stock-spearers themselves, that might settle the accuracy matter completely. Accordingly, the ACMA has examined efforts to ensure that the information it broadcast was accurate.

From the ABC’s submissions, the material is based on Bunuba oral tradition and on a research-based account in Jandamarra and the Bunuba Resistance of a confrontation sparked by an attempt by settlers to erect sheep yards or drive stock through sacred sites around Windjana Gorge.

The complainant considers the use of Jandamarra and the Bunuba Resistance to be ‘problematic’, commenting that the book ‘is not what I consider a work of historical merit’.

11 According to the complainant, ‘it was found that often after the discovery of a carcass with meat removed there then were many complete cattle carcasses over considerable distances’.


The ACMA notes that this work obtained the major award in the Western Australian Premier’s Book Awards in 1996, with the judges noting that it

represents a unique collaboration between the traditional custodian of a major episode in Aboriginal-white relations in Western Australia and an academically trained historian, and as such provides a pioneering model for Australian historians. It draws on research from many sources, and while expressing a firmly stated point of view is careful in its use of evidence.12

The complainant has suggested that the award judges ‘did not know’ and has also submitted that the work has been ‘maligned quietly/discreetly by historians as they want to avoid the risk in challenging the prevailing orthodoxy’. Even if the work has been ‘maligned’ in some quarters, this is not widely known, given that the criticism has been made ‘quietly/discreetly’. It was reasonable, therefore, in the circumstances, to take it that the work was a reputable historical account. Accordingly, reliance on it constituted ‘reasonable efforts’ to ensure accuracy for purposes of clause 2.1 of the code.

Bunuba ‘uprising’

The relevant material included the following statement by the narrator:

NARRATORThe middle of 1885 sees the beginning of a 12-year uprising by the Bunuba. [Emphasis added]

The material also included the associated terms ‘resistance’, ‘rebel’, ‘guerrilla war’ and ‘rebellion’ used in the introduction:

NARRATOROne of the greatest stories of Aboriginal resistance is playing out in the colony of Western Australia. Rebel fighters from the Bunuba nation are waging guerrilla war in the Kimberley. The leader of the rebellion is a young Bunuba warrior. [Emphases added]

The complainant submitted that there was no uprising, his more detailed points being that: there was no organised united opposition to authority, but simply various ‘gangs’; and the activities of these ‘gangs’ were criminal, comprising the ‘killing/maiming of shepherds

and boundary riders and slaughter of thousands of sheep and cattle’.

The statements quoted above were made by the narrator as unqualified assertions and an ordinary, reasonable viewer would have understood them as factual content. Such a viewer would have take it that the program conveyed, as fact, that such an uprising had taken place.

The next issue is whether an inaccuracy in this regard would have ‘materially’ misled. The existence of an uprising was a central tenet of the program and as such any inaccuracy would have materially misled.

The next issue, therefore, is whether the program misled the audience in this regard. With reference to the complainant’s submission, an ordinary, reasonable viewer, from his or her ‘general knowledge and experience of worldly affairs’, would not necessarily associate the term ‘uprising’ with unity or an absence of killing. On the contrary, such a viewer would be aware that uprisings are frequently characterised by internal rivalries and disagreements and

12 www.slwa.wa.gov.au/about_us/premiers_book_awards/past_winners/1996, accessed 20 December 2011.


http://www.slwa.wa.gov.au/about_us/premiers_book_awards/past_winners/1996

also by violence, even atrocities. However, such a viewer would associate the term ‘uprising’ with a concerted political aim, this being the characteristic that would distinguish the violence of an ‘uprising’ from criminal activity pure and simple.

In order to determine whether the program misled, therefore, it is necessary to examine whether the Bunuba had such an aim. The program did present the Bunuba as having such an aim, namely to ‘safeguard’ their country.13 Accordingly, the same applies to this issue as to the issue of the Bunubas’ motivation in spearing livestock. As outlined above, reasonable efforts were made to ensure the accuracy of the material.

‘Bunuba nation’

The relevant material was the following statement by the narrator in the introduction:

NARRATORRebel fighters from the Bunuba nation are waging guerrilla war in the Kimberley. [Emphasis added]

Mr Pedersen also used the term when referring to the situation after the clash at Windjana Gorge:

HOWARD PEDERSENBasically, the whole Bunuba nation was outlawed. [Emphasis added]

The complainant submitted that the Bunuba were not a nation ‘as generally accepted’, they were ‘different family groups within a determined linguistic area loosely defined as a tribe’. Further, the complainant submitted that the program would be seen in due course in many countries whose people would assume that the term referred to a nation-state.

The first issue is what an ordinary, reasonable viewer would have understood the material to have conveyed. The ACMA is investigating the program as broadcast on ABW on 12 May 2011, not a hypothetical broadcast overseas. An ordinary, reasonable viewer of this broadcast would have been aware, from his or her ‘general knowledge and experience of worldly affairs’, that when speaking of indigenous peoples ‘nation’ is often used as a synonym for ‘tribe’. Such a viewer would have understood that that was what was meant in this context.

Accordingly, the program did not present this content in a way that would have misled the audience.

‘Invasion’

The relevant material was the following statement by the narrator in the introduction:

NARRATORThe leader of the rebellion is a young Bunuba warrior … who has risen up to stop the invasion of his country. [Emphasis added]

The complainant submitted that there was no ‘invasion’ in the ‘accepted sense’, which he submitted was ‘when an army or country uses force to enter and take control of another country’. The complainant noted that the non-Aboriginal population of the area in question at

13 The program also presented that Aboriginal station workers were ‘often mistreated’:NARRATORFloggings are an almost daily event. Runaways are hunted down and imprisoned while for Bunuba who offer resistance the punishment is often far worse.

However, this was presented as a situation that obtained after 1885, ie it was not an initial trigger for the ‘uprising’.


the relevant time was no more than approximately 165 persons, mostly in Derby; the settlers’ leases were ‘lawfully acquired’; there was ‘acceptance’ of the white settlers by the Bunuba; and the settlers were ‘benign’ until ‘the Aborigines killed them, their employees and stock and they then retaliated’.

The first issue is what an ordinary, reasonable viewer would have understood the program to have conveyed. It is not accepted that an ordinary, reasonable viewer would have understood the term ‘invasion’ in this context as referring to the military action of one nation-state against another.14 The term ‘invasion’, as commonly used, regularly encompasses the meanings of ‘entrance or advent of anything troublesome or harmful’, ‘entrance as if to take possession or overrun’ and ‘infringement’.15 The white settlers arrived without the permission of the Bunuba and were accompanied by large numbers of livestock. While the term ‘invasion’ has negative connotations and offends some for that reason, insofar as it has factual content, this content was not presented in a way that would have materially misled the audience.

Number of Aboriginal prisoners sent from Derby who died at Rottnest

The relevant material was the following statement by the narrator, made after a sequence recounting the imprisonment of Ellemarra and Jandamarra in Derby gaol for spearing sheep:

NARRATORMany of the prisoners sent to Derby will never come home. Their final destination is thousands of kilometres away, in a prison camp on Rottnest Island near Perth. There, more than 300 will die, and be buried far from their people and their country.

The complainant submitted to the ABC that only a few Aborigines from the Kimberley were sent to Rottnest, and that ‘it is doubted’ that the number of deaths ‘would have exceeded twenty’. The complainant further submitted that the figure of ‘more than 300’ applied to the total number of deaths of Aboriginal prisoners at Rottnest.

The ABC submitted that:

the script had not intended to suggest that more than 300 people from the Kimberley had died at Rottnest—the intention had been to convey that a total of more than 300 Aboriginal prisoners had died at Rottnest;

the wording was ‘potentially ambiguous rather than factually incorrect’;

in any case, the material would not have materially misled; and

it is likely that the number of Kimberley Aborigines who died at Rottnest would have been ‘more than the approximately twenty conceded by the complainant’.

The first issue is: Was the material ‘factual content’? The ACMA considers that it would have been understood as factual content. It was spoken by the narrator and was an unqualified assertion.

The next issue is what the material would have conveyed. The ACMA accepts that the statement was somewhat ambiguous. While it is quite possible that some viewers would have understood the statement as conveying what the script intended, namely that a total of more

14 See also the discussion of the use of the term ‘Bunuba nation’, above.15 See Macquarie Dictionary (5th edition), meanings 2-4. The complainant states, in a different context,

that he prefers the English Collins and Oxford Dictionaries. Australian courts, and the ACMA, prefer the Macquarie Dictionary. In this case, in any event, the ACMA is satisfied that the Macquarie Dictionary definitions correspond to ordinary usage.


than 300 Aboriginal prisoners had died at Rottnest, others would have understood that more than 300 prisoners from the Kimberley, alone, had died there. On this second understanding, the material conveyed information that was inaccurate. Given this, the ACMA has examined whether the inaccurate understanding would have materially misled those viewers.

The ACMA notes that the mention of Rottnest was an aside to the main events related in the program. The program did not purport to be a history of Rottnest. The protagonist Jandamarra was not sent to Rottnest, nor was any other of the individuated Bunuba figures who featured (Ellemarra and Lillimarra). Nor did the material state, even on the inaccurate second understanding, that more than 300 Bunuba prisoners had died at Rottnest. Accordingly, those viewers who were misled by the ambiguity in the statement were not ‘materially’ misled.

Photograph of men and horses

The relevant material was a photograph of an Aboriginal man and a white man attending horses, which was on screen while the narrator said, in reference to Jandamarra’s time in Derby:

NARRATORHe becomes well-known to Derby residents. The police use him as a mascot and he gets to look after their horses.

The complainant submitted that this was ‘false’ as it is a photograph from the 1940s.

Viewers may have gained the impression that the photograph was from the 1890s but even if this was the case they would not have been ‘materially’ misled, as no matter of substantial import hung off the image.

‘Walked away’

The relevant material was the following statement from Mr Marr:

DANNY MARROne day they confronted him about all the mucking around with the women. They were going to give him a hiding. But he wouldn’t give up to get like a tribal punishment. That’s when he walked away from all his group. The Bunuba.


To suggest Pigeon16 walked away indicates that he did not flee but simply decided to leave of his own free will. He did not. He ran.

The program made clear that the Bunuba intended to give Jandamarra a ‘hiding’ and that his action in cutting himself off from the Bunuba was in order to avoid this punishment. The content would not have materially misled viewers.

Whipping of Ellemarra

The relevant material was a dramatisation in which Lukin was shown whipping Ellemarra after his arrest in early 1894, while Richardson and Jandamarra looked on. Accompanying audio was:

DILLON ANDREWSWhen they captured Ellemarra, he suffered severe punishment.

16 The complainant referred to Jandamarra as ‘Pigeon’ throughout his submissions.


The complainant submitted that ‘there is no argument that the Aborigines suffered corporal punishment’, but ‘the whipping depicted in Jandamarra’s War was so extreme as to cause a long period of recovery. It would not have been accepted either by the Magistrate, Police or Gaoler at Derby. It can only be a fabrication’.

An ordinary, reasonable viewer would have taken the material to be factual content.

Would any inaccuracy have materially misled the audience? The ACMA considers that it would have, because the event was depicted as contributing to a growing internal conflict within Jandamarra that would lead to Jandamarra’s eventual decision to side with Ellemarra and the other Bunuba prisoners:

DILLON ANDREWS‘In my heart I feel different,’ he says. ‘I feel sorry for my people.’ Jandamarra said to himself, ‘I’m broken-hearted for my uncle and my mob.’

Was there any inaccuracy in the material? The ACMA does not have sufficient evidence to show that the information conveyed by the program was inaccurate, and has accordingly examined the efforts to ensure accuracy.

The ABC has submitted that the program relied on the following from Jandamarra and the Bunuba Resistance:

At Lennard River Station Lukin, now a Justice of the Peace, awaited revenge. The warrant cited Ellemarra’s killing of two sheep although Lukin wrote later ‘that he could have pressed at least one thousand separate charges’. He sentenced the brooding Ellemarra to three years and sent him to Derby, his back lacerated from the flogging of a gruesome rawhide whip. [Emphasis added]

The information conveyed by the program coincides with that conveyed by Jandamarra and the Bunuba Resistance. As outlined above,17 the ACMA regards reliance on this work as constituting ‘reasonable efforts’ for purposes of clause 2.1.

Photograph of Constable Pilmer

The relevant material was a group photograph showing Constable Richard Pilmer. This photograph was shown twice in the program. The first time was during a description of police preparations for the cattle drive of late 1894:

HOWARD PEDERSENRichardson was directed by the head of the Derby police force – Drewry his name was – to go back to Lillimoolooroo in advance of the cattle coming through. And to meet another police patrol led by Richard Pilmer. So the two patrols would go right round the ranges and capture as many Aboriginal people as possible.

The second time was during the narration of developments in early 1897:

NARRATORWhile Micki approaches Jandamarra from the west, a posse of white troopers commanded by the notorious Richard Pilmer is approaching from the east.18

17 See ‘ “Safeguard” country’, above.18 Use of italics in these excerpts shows the audio accompanying the vision of the photograph of

Pilmer.


The complainant submitted that this photograph was taken on the Canning Stock Route in 1912 and that Pilmer would have changed in the intervening years.

The photograph provided viewers with a visual impression of Pilmer, an important figure in the program. The fact that it was taken some years after the events depicted in the program was not material. The fact that it was used twice in the program, for events that took place three years apart, would have alerted viewers that it did not purport to be a photograph taken at the exact time or place of the event related in the accompanying audio.

Omission of Danmarra and Wondaria

The relevant material was the account of the arrest of Ellemarra in late 1894.

The complainant submitted that the program omitted Danmarra and Wondaria, whom he described as ‘prime characters that precipitated the events that followed’. As submitted by the complainant, Ellemarra had ‘stolen’ Danmarra’s wife Wondaria, and in revenge Danmarra told Jandamarra Ellemarra’s whereabouts so that the latter could be arrested.

The important fact, for purposes of the program, was that Ellemarra was captured by Jandamarra and Richardson in late 1894. How Jandamarra became aware of Ellemarra’s whereabouts is not material.

Omission of Captain

The relevant material was the account of Jandamarra’s and Richardson’s activities in 1894 and Jandamarra’s subsequent activities over the period late 1894 until his death in April 1897.

The complainant submitted that the program omitted Captain, whom he described as ‘a most important Aborigine, apart from Pigeon, in this saga’. As submitted by the complainant, Captain was from around Esperance; was a native assistant to Constable Richardson; actively participated, along with Jandamarra, in the killing of Richardson; and subsequently became ‘2nd in command’ in Jandamarra’s band. The complainant further submitted that ‘Captain was eliminated from the story simply because he was not a Bunuba man’.

An actor playing Captain19 was shown in the scenes of bringing the Bunuba prisoners in to Lillimoolooroo, guarding them once there, participating in the release of the prisoners and fleeing with them, rifle in hand. However there was no audio reference to him, he was not named and there was no indication that he was not Bunuba.

The ACMA does not regard these omissions as material. The events related took place in Bunuba country and the participants were overwhelmingly Bunuba people. Accordingly, the omission of information about Captain did not ‘materially’ mislead the audience.

19 The actor was named as having played Captain in the cast list in the program end credits.


Richardson’s pocketing of ‘extra ration allowance’

The relevant material was the following information given about Richardson and the prisoners at Lillimoolooroo Station:

NARRATORFor every day that he keeps them there, he gets extra ration allowance, which he pockets.

The complainant submitted:The Crown Law Department did not pay out sums of money without full verification.

An ordinary, reasonable viewer would have understood the statement broadcast to be factual content, and to have conveyed that Richardson received money to feed the Aboriginal prisoners, and that he took possession of this money for himself, rather than spending it on food for the prisoners.

The issue of contention here is around the phrase ‘which he pockets’.

The ACMA considers that the use Richardson made (or habitually made)20 of this money was ‘material’, because the killing of Richardson was a key event in the narrative, and the circumstances surrounding it were therefore important.

The complainant has referred to magistrates’ oversight of reimbursements to police officers of such monies, and provided two examples of this from the Kimberley in the 1880s-1890s. Despite this, the ACMA considers that there is not enough information to determine that there was an inaccuracy in respect of the phrase ‘which he pockets’, and has accordingly examined efforts to ensure accuracy.

From the ABC’s submissions, the material was based on the following passage in Jandamarra and the Bunuba Resistance:

Richardson kept all seventeen prisoners chained at Lillimoolooroo for the following seven days. As each day passed he calculated the financial reward he would receive in prisoner ration allowances. This corrupt practice was tolerated by Drewry as a means of recruiting and then retaining bush troopers so long as it was done discreetly.

As previously outlined, the ACMA accepts that reliance on Jandamarra and the Bunuba Resistance constituted ‘reasonable efforts’ for purposes of clause 2.1 of the code.

No food to Aboriginal prisoners at Lillimoolooroo

The relevant material was the following narration of events in late 1894, after the arrest of Ellemarra, Lillimarra and others:

NARRATORThey march them to Lillimoolooroo Station, where Richardson keeps them chained up under a tree with no food or shelter for seven days.

20 The complainant has submitted that police officers ‘received reimbursement’ for meals supplied to prisoners. If this is so, Richardson’s habitual practice is the matter of relevance, since he would not have had any opportunity to apply for reimbursement of real or claimed expenses for the Lillimoolooroo prisoners before he was killed.


The complainant submitted that starving prisoners on a chain would not have been tolerated by the Derby magistrate or police sub-inspector. He further submitted:

The starving of prisoners by Richardson is a malevolent lie designed to elicit disdain and hatred of the police by the viewers

and

Prisoners were kept well fed as unacceptable difficulties would confront a lone police constable and his Assistant if prisoners could not walk due to lack of nourishment.

The first issue is whether the material was ‘factual content’. The ABC submitted that reasonable viewers

would have understood that what was portrayed was an account of events from the Bunuba point of view

and that

This statement conveyed the Bunuba story that the prisoners were kept in chains under a tree for seven days with no food or shelter. [Emphasis added by the ACMA]

However, the ACMA considers that an ordinary, reasonable viewer would have taken this material to be factual content rather than a particular version of events (ie opinion). The ACMA has already stated its position on the genre of the program in general; and, in relation to this particular material, it is noted that the statement was made by the narrator and was unqualified. In terms of what the material conveyed, the ACMA considers that it conveyed that Constable Richardson kept Bunuba prisoners without food for seven days.

Would any inaccuracy in this material have ‘materially’ misled viewers? As noted above, the killing of Richardson was a key event in the narrative, and the circumstances surrounding it were therefore important.

Was there any inaccuracy in the material? While there was, as outlined above, a reasonable basis for the proposition that the prisoners did not receive any rations at Lillimoolooroo, the sources cited by the ABC are divided on the matter of whether they were fed at all. On the basis of the ABC’s submissions, some Bunuba sources maintain that the prisoners received no food whatsoever, while other Bunuba sources, and Mr Pedersen, maintain that Jandamarra and Captain hunted game to feed the prisoners.

While the basis for the assertion in the broadcast is not strong, it is taken into account that the main points to which this statement contributed were that the Bunuba prisoners were mistreated at Lillimoolooroo, and that intense psychological pressure was accordingly brought to bear upon Jandamarra. These points are not in dispute; in particular, it is not disputed that the prisoners were kept in chains for seven days during the month of October, a hot month in the Kimberley. Taking this into account, any inaccuracy in the statement was not so material as to warrant a breach of the code.

Jandamarra’s motivations

The relevant material, in terms of Jandamarra’s motivations, first occurred in the introductory narration, which, as noted above, described him as rising up ‘to stop the invasion of his country’.


Later, the program depicted Jandamarra as adopting this aim from the killing of Richardson onwards:

NARRATORFor Jandamarra, the actions of this night [ie the night of Richardson’s killing] are a declaration of war against every white person in the colony of Western Australia.

Further, in a dramatised scene after the capture of the cattle drive dray, Jandamarra was shown addressing his followers in this wise:

ACTOR PLAYING JANDAMARRAWe must stand strong now! If not, we will always be in chains! The white man will take our stories and songs, our sacred springs, our country. We will stand up for our country with this gun!

The complainant submitted that ‘Pigeon’s gang was criminal in both actions and intent’.

The first issue is whether the material about Jandamarra’s motivations was ‘factual content’. In addition to the material referred to above, the introduction also contained the following:

NARRATORTo the white man, he is an outlaw. To the Bunuba, he is jalangurru, a man of mystical power, a protector, a saviour, a freedom fighter.

Further, commentary following the killing of Constable Richardson included the following:

DILLON ANDREWSJandamarra, they say, was never the same after that. His whole attitude was changed. And he took on a new role; he was a new leader. [Emphasis added]

Accordingly, an ordinary. reasonable viewer would have understood that the material about Jandamarra’s motivations was not ‘factual content’ but one version of the matter, to which there is at least one competing view.

Jandamarra’s chase of Fred Edgar

The relevant material was the following, which related to the aftermath of the killing of Frank Burke and Billy Gibbs at Windjana Gorge:

HOWARD PEDERSENHe chased Edgar, standing tall in the stirrups, firing his Winchester rifle repeatedly. But the horse fell just as Edgar arrived at Lukin station.

The complainant submitted that this passage was a ‘concoction to enhance the story and show Pigeon in good light’:

If such an incident had occurred of ‘Pigeon standing high on his horse shooting at Edgar as he rode’, it would not have been left out by [Sub-Inspector] Drewry in his long and detailed report21 as it would further show the desperate and dangerous character that was Pigeon.

21 Sub-Inspector Drewry was the officer in charge of the police station at Derby. The report referred to was made in January 1895, covering events from November 1894 to January 1895.


Jandamarra’s good horsemanship is not in dispute, whether or not it was displayed in this particular way on this particular occasion. Accordingly the ACMA does not consider the matter material for purposes of clause 2.2 of the code. As such, the ACMA has not examined the matter further.

Photograph of police in dark uniforms

The relevant material was a photograph of a group of police in dark uniforms. The accompanying audio, which related to the immediate aftermath of the stand at Windjana Gorge, was:

NARRATORThe police think they have won the battle.

The complainant submitted that the photograph is of members of the Police Camp Coolgardie.

Viewers may have gained the impression that the photograph was of Kimberley region police but even if this was the case they would not have been ‘materially’ misled, as no matter of substantial import hung off the image.

‘War of extermination’

The relevant material, in context, was the following, which referred to the aftermath of the stand at Windjana Gorge:

NARRATORIn the two and a half month military operation, police record killing 27 Aboriginal people. But according to Bunuba, many more were murdered.

HOWARD PEDERSENThe government was very sensitive that the settlement of Western Australia, in the Kimberley particularly, was not seen to be one of war, that this was civilised society, extending its influence over Aboriginal people. They didn’t want to portray this as serious bloodshed, but that’s in fact what it was. There was clearly a war of extermination being fought in the Kimberley [Emphasis added].

The complainant submitted that the evidence indicates no genocide intentions on the part of the British establishment, and that the Government and Police had not adopted a policy (open or otherwise) of exterminating Aborigines.

The first issue is whether the material was ‘factual content’. It is noted that the program presented that there was a discrepancy between police records and the Bunuba account. Accordingly, an ordinary, reasonable viewer would have understood the phrase impugned as Mr Pedersen’s analysis or interpretation (ie his opinion). As such it is not subject to the requirements of clause 2.2 or 2.1.

Nature of Jandamarra’s band

The narration stated, following the killing of Richardson:

NARRATORIn the days following the stand at Lillimoolooroo, the word of Jandamarra’s declaration of war quickly spreads in Bunuba country, and many Bunuba men and women make their way to Windjana to join him.


Following that point in the program, there were several scenes where Jandamarra was shown in company of a band of followers.


The indication of a cohesive membership of Pigeon’s gang is blatantly wrong. The members fought violently over the women accompanying them.

There was no, or little, depiction of the internal dynamics between the male members of Jandamarra’s band. An ordinary, reasonable viewer would not have gained much impression on the matter, either way. The ACMA has therefore considered the matter as an issue of omission. The program focused very much on Jandamarra rather than on his band as such. Accordingly, the internal dynamics of the band was a matter of secondary importance, and the omission of this was not ‘material’.

Omission of attack on Oscar Range

The relevant material was the account of events in early 1897:

NARRATORSo by early 1897, the police are hunting Jandamarra with renewed vigour. While Micki approaches Jandamarra from the west, a posse of white troopers commanded by the notorious Richard Pilmer is approaching from the west.

HOWARD PEDERSENSo Pilmer, who was head of the Fitzroy police force, who everyone remembers now as a murdering, cruel policeman, he immediately moves into Oscar Range and attacks a number of Bunuba people.

The complainant submitted that the program omitted Jandamarra’s attack on Oscar Range station and the murder of Tom Jasper as he slept. The complainant described the shooting of Tom Jasper as ‘cowardly’ and the attack on Oscar Range station as ‘bungled’, and submitted that to have told of these matters

would show Pigeon and his gang members acting in a cowardly and far from heroic manner. These situations were therefore avoided, as the nature of these actions would also make the claim of an uprising very dubious.

The program narration described Jandamarra as waging ‘a war of terror against the settlers and white police’. It also showed him killing Richardson while he slept, and shooting Frank Burke in the back. These features, therefore, were presented in general terms and the omission of this one particular incident was not ‘material’.

Further, an ordinary, reasonable viewer, from his or her ‘general knowledge and experience of worldly affairs’, would not necessarily consider bungling to be incompatible with an uprising. Accordingly, the omission of bungling by Jandamarra and his band on this occasion was not material.

‘Fitzroy police force’

The relevant material was the statement by Mr Pedersen:

HOWARD PEDERSENSo Pilmer, who was head of the Fitzroy police force …


The complainant submitted that there was no ‘Fitzroy police force’:

Two constables and four trackers is not a Police Force only a small force.

An ordinary, reasonable viewer would have understood the term ‘force’ as referring to a body of armed men, regardless of size. As such, the term was not inaccurate.

Encounter with Pilmer

The relevant material was the following:

HOWARD PEDERSENSuddenly Jandamarra appeared. And Jandamarra said to him:

ACTOR PLAYING JANDAMARRADo you want your life?

HOWARD PEDERSENAnd Pilmer – this is the story of the Bunuba oral tradition – Pilmer pleaded for his life, and with that Jandamarra took aim and shot his hat off. And Pilmer rode back in fear back to Fitzroy Crossing.


Did not happen. Another storyteller’s story for effect.

The first issue is whether the material constituted ‘factual content’. Given that Mr Pedersen’s narration included the information that ‘this is the story of the Bunuba oral tradition’, an ordinary, reasonable viewer would have understood the material as such. Accordingly, that material was not ‘factual content’ for purposes of clause 2.2 of the code.

It is noted that it is not in dispute that such a story does exist in the Bunuba oral tradition.

Blythe incident


HOWARD PEDERSENMicki hits Jandamarra a number of times, and finally Jandamarra falls, apparently dead. And Micki comes up to Jandamarra to kill him, to finish him off. And Joe Blythe orders him to stop.

NARRATORJoe Blythe, a station owner and member of the police posse, wants the pleasure of killing Jandamarra himself.

[Vision shows dramatised sequence in which Blythe reaches Jandamarra, who is lying face-down on the ground. Jandamarra rolls over and fires, hitting Blythe, then gets up and runs]

HOWARD PEDERSENJandamarra’s shot in the groin and Blythe is shot in the hand and loses his thumb. But with that, though, Jandamarra escapes into the long grass.


The complainant submitted that the scene was ‘falsified’ in a way that ‘does change the situation under question dramatically and thereby compounds the ill-favoured view of the whites depicted in the story’, in that:

Pigeon was shown prone and still face down with his back fully exposed to Blythe, who in the scene was obviously going to shoot Pigeon in the back, a contrived way to indicate cowardice used by film makers … The depiction of Pigeon likely to be shot in the back appears a manufactured circumstance to present spinelessness of Blythe – whites.

Jandamarra was obviously the protagonist in the program whereas Blythe appeared only in this scene. Accordingly, an ordinary, reasonable viewer’s focus would have been on Jandamarra rather than Blythe in this scene, and would have taken it that the main point was to display Jandamarra’s intrepidity in escaping from such a precarious situation. Such a viewer was unlikely to have reached any conclusion about Blythe, other than that he wanted ‘the pleasure’ of killing Jandamarra himself (something which the complainant does not dispute). Further, there was no audio stating, or implying, that Blythe was cowardly or spineless. Accordingly, such a viewer would not have gained the impression that Blythe had these characteristics. As such, it was not ‘material’ whether Jandamarra was lying face-down when Blythe approached him.

While, therefore, it is not strictly necessary to assess whether the material was inaccurate or not, it is worth noting that the dramatised depiction is at least consistent with the report provided by Constable Chisholm, a police officer present on the occasion.22 According to Constable Chisholm:

Pigeon ran up the creek and Mick running after him, when Pigeon fired on him. Mick returned the fire, when I saw Pigeon fall.

I said, ‘Well done Mick’.

Just then Mr Blythe galloped down on Pigeon in the Creek, when Pigeon fired at him, shooting him in the hand and knocking the revolver he held out of his hand.

Mr Blythe called to me to look out and I got under cover.

I saw Pigeon running up the creek when I fired on him but without taking effect.

Pigeon managed to escape us in the long grass.

Constable Chisholm states that he ‘saw Pigeon fall’, and that the latter was ‘in the Creek’ when he fired at Blythe. Further, Chisholm does not record seeing Jandamarra running until after the shot at Blythe.23

22 Excerpts from Constable Chisholm’s report were provided by the complainant.23 The ABC’s response to the complainant stated, in part:

The essential differences between the version that you quote and that portrayed in the documentary are that the film depicts Jandamarra on the ground when he shot Blythe while Chisholm’s account says he was running away.

Chisholm’s account, however, did not say that Jandamarra was running away when he shot at Blythe. Rather, as indicated above, Chisholm’s account indicates that Jandamarra was ‘in the Creek’ when he shot at Blythe. There is no discrepancy on this point between Chisholm’s account and the reconstruction in the program, nor did the complainant allege that there was one.


Omission of killing of Wisego

The relevant material is the account of the immediate aftermath of the Blythe incident referred to above:

NARRATORFor three long days, Jandamarra crawls, claws and stumbles his way towards his spirit country and the refuge of Tunnel Creek.

The complainant submitted that the program omitted to say that the morning after the clash with Micki and Blythe Jandamarra shot dead Blythe’s ‘native boy’, a Fitzroy River Aborigine.

As noted above, the program conveyed that Jandamarra was waging a ‘war of terror’ against settlers and police. The program also conveyed that some Aborigines participated in police posses, thereby becoming targets of Jandamarra’s actions. For example, the program stated that the force sent to Windjana Gorge consisted of ‘four or five constables and six black troopers’. In these circumstances, the omission of this particular killing did not ‘materially’ mislead the audience.

Killing of Jandamarra


NARRATORHe is now completely alone. His mother killed, Mayannie captured, most of his countrymen dead or in chains. And down below is Micki.

GEORGE BROOKINGWe called him Maban, a witch doctor. A man of power. He went there and he threw all his power into finding Jandamarra, who was waiting in the cave with only one bullet left.

[Vision shows Jandamarra, lying injured, loading his rifle, then Micki, down below the cliff, loading his. Jandamarra and Micki then fire at each other.]

GEORGE BROOKINGHe had his power in his hand, that’s where his magic power lived.

[Vision accompanying the above audio shows Jandamarra with hand outstretched, palm outwards. Micki fires at Jandamarra. Jandamarra drops his hand and turns.]

DILLON ANDREWSHe fell down finished and that white man then came. Pilmer came and cut his head off and took it to Derby to show the world that he had conquered Jandamarra.


The claim that another Aboriginal (Mick) shot Pigeon is not provable and on [Constable Chisholm’s report] it could have been anyone in the party or the effects of cumulative wounding by all the party.

The scripting had Mick out in front alone and confronted Pigeon single-handedly with the obvious purpose of having an Aboriginal being the undoing of Pigeon rather than the detested whites.


The complainant further submitted that, according to Constable Chisholm’s account, Jandamarra had dropped his rifle the day before, while climbing rocks to get away from the police posse pursuing him.

It is noted that the narration included preternatural elements (Micki as a ‘Maban, a witch doctor, a man of power’ and Jandamarra as having ‘magic power’ in his hand). It is also noted that the main narrator for the incident was Mr Brooking, who had been identified near the beginning of the program as the teller of the traditional Bunuba story:

GEORGE BROOKINGThis is the story I carry. This is the story that was told to me by my old people.

Accordingly, an ordinary, reasonable viewer would likely have understood that the account contained non-rational or subjective aspects. In the alternative, the inaccuracies amounted to singling out Micki as the sole killer, and portraying Jandamarra as still possessing a rifle and one last bullet. These inaccuracies – if that is what they were – would not have materially misled the audience. It is noted that, in any case, Micki was present on the occasion and that Jandamarra was shot after he ran out of ammunition.

The ACMA does not agree that it was ‘material’ that the program deprived whites of the credit for killing Jandamarra, if that was the case. Micki was, in any event, a member of a colonial (ie white) police posse.

Didgeridoo

The relevant material was vision of an Aboriginal musician playing the didgeridoo while Aboriginal men danced. The complainant submitted that this was a ‘prop error’ as ‘it is doubted that the didgeridoo was in the West Kimberley at that time’.

The program was not about the musicology of the Bunuba and accordingly any inaccuracy in this respect would not have ‘materially’ misled the audience.

The complainant submitted that the significance of the matter was that it casts doubt on the reliability of the Bunuba informants for the program:

If they do not know this simple matter, it evidences the Pigeon story they tell is also doubtful.

The ACMA does not accept that a mistake about Bunuba musicology (assuming there was one) necessarily throws doubt on the reliability of Bunuba oral tradition about the events of 1894-1897. The tradition about these events would have had no reason to include details about Bunuba musical practices of the time.

Hand-thrown spears

The relevant material was vision of Aboriginal men throwing spears in a dramatisation of a clash between Bunuba and white settlers in the period before 1894. The accompanying audio was:

HOWARD PEDERSENThe Bunuba reacted as though they can only react, which is to safeguard those places, and to chase those sheep away, and to spear those sheep. And this was something that the settlers reacted with violently.

The complainant submitted that this was another ‘prop error’, in that Kimberley Aborigines used woomeras and never the thick hand-thrown spears shown in the program.


The program was not about the Bunubas’ material culture and accordingly any inaccuracy in this respect would not have ‘materially’ misled the audience.

The complainant submitted that, like the didgeridoo matter addressed above, the significance of the matter is that it casts doubt on the reliability of the Bunuba informants for the program. For similar reasons to those outlined above, the ACMA does not accept that this is a matter of significance.

Omission of ‘darker side’ of Bunuba culture

The aspects of Bunuba culture that were depicted were:

the relationship to the land (‘ceremonies and relationships and obligations to country’), including beliefs about particular sites (‘For the Bunuba, these ancient ranges are a place of deeply religious significance. They are the physical manifestation of the living law that has continued from Creation times’);

a process of male initiation;

the existence of rules around sexual relationships, and a system of tribal punishment for offenders; and

a belief in magical powers held by ‘special’ men.

The complainant submitted that the program omitted the ‘darker side’ of Bunuba culture, which, according to his submission, included cruelty to women; constant revenge killings; ‘disembowelling and other mutilations of bodies’; ‘sometimes horrific’ initiation and funeral rites; and ‘the cannibalism which was practised by members of Pigeon’s gang’.

The program did not purport to be an ethnographic study of the Bunuba. It is clear that it included only those aspects of Bunuba culture which were necessary for the depiction of Bunuba ‘uprising’ of 1885-1897, with particular emphasis on the figure of Jandamarra. Accordingly, the omission of the elements submitted by the complainant did not cause the audience to be materially misled.

Issue 2: Prejudice

Relevant code clause7 Harm and offence

7.7 Avoid the unjustified use of stereotypes or discriminatory content that could reasonably be interpreted as condoning or encouraging prejudice.

FindingThe ABC did not breach clause 7.7 of the code.

ReasonsThe complainant submitted that the program ‘promoted contempt of the settlers and police that was then visited upon the present population’. He stated that it was an example of an ABC approach which ‘causes attitudes to harden in Aboriginal communities against fellow Australians’ and that on internet sites related to the program ‘you will find hatred and loathing expressed of the white people, including those from Australian contemporary society’.


As outlined above, the program may have exaggerated the mistreatment of Bunuba prisoners at Lillimoolooroo. However, clause 7.7 is concerned with the effect of programs on contemporary groups. The issue is therefore whether the program could reasonably be interpreted as condoning or encouraging prejudice against present-day white Australians.

The program included material relating to the relevance of Jandamarra for the present:

NARRATORToday the story of Jandamarra belongs not only to the Bunuba, but to all Australians, as an enduring reminder of the price of freedom and the ongoing need for justice.

DILLON ANDREWSIt’s been a long time ago, but we still feel hurt for Jandamarra.

DANNY MARRJandamarra, what he did is what is still happening today. People are still trying to get back their country. And even when people talk at meetings, you think about Jandamarra and he’ll give you courage to say what you’ve got to say.

JUNE OSCARWhen you stand up for your country and your people, people today aren’t termed outlaws in our opinion. He was a freedom fighter.

An ordinary, reasonable viewer would not have understood these comments as inciting hatred against white Australians. Rather, white Australians were invited to identify with the Jandamarra story as an endeavour for freedom and justice, and Aboriginal Australians were invited to see Jandamarra as an example of courage in standing up for ‘your country and your people’, rather than of antagonism towards white people.

The complainant mentioned websites related to the program which showed ‘hatred and loathing expressed of the white people, including those from Australian contemporary society’ and provided details in response to a request from the ACMA. After considering the material provided, the ACMA is not satisfied that it demonstrates that the program provoked hatred of white people. Some of the material was promotional material for the program (eg the description of Jandamarra’s death as ‘brutal retribution’); as such it is irrelevant as demonstrating what viewers’ reactions were. Among the viewer reactions, some were aimed at the depiction of the 1880s-1890s, with no reference to contemporary conditions (eg ‘what a courageous group of people living under inhumane zeitgeist conditions’ and ‘How could we ever understand what the Bunuba people had to put up with’) and others praised the program, including for being ‘not entirely lacking in subtlety’.


There was one comment that could be reasonably interpreted as demonstrating hatred of whites:

F-CKEN MY LAND YOU WHITE C-NTS!!!

and another from a viewer who probably thought the program was promoting hatred, since s/he commented:

Exactly the attitude that’s been holding this country back and fuelling the hatred.24

However these comments were not typical of comments from either indigenous or non-indigenous viewers, and in view of the material that was included in the program about the contemporary relevance of the events depicted, it is considered unlikely that the program had the effect of provoking hatred of white people, or condoning or encouraging prejudice against white people, to any significant degree.

24 http://www.africanmusicforum.com/video/youtube/Video-Clips-Mini-Site/video/cXejE5DXR9E/JANDAMARRA-S-WAR-TV-documentary-on-ABC1-12-MAY-2011-8-30PM.html


http://www.africanmusicforum.com/video/youtube/Video-Clips-Mini-Site/video/cXejE5DXR9E/JANDAMARRA-S-WAR-TV-documentary-on-ABC1-12-MAY-2011-8-30PM.html

http://www.africanmusicforum.com/video/youtube/Video-Clips-Mini-Site/video/cXejE5DXR9E/JANDAMARRA-S-WAR-TV-documentary-on-ABC1-12-MAY-2011-8-30PM.html

Appendix 1Considerations which the ACMA has regard to in assessing compliance with the ABC Code of Practice The assessment of factual accuracy is determined in the context of the segment in its

entirety. The meaning conveyed by the relevant statement is assessed according to what an

‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed.

The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.

The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion. In that regard, the relevant statement must be evaluated in its context , i.e. contextual

indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that would amount to a breach of the clause.

In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.


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