Investigation Report No. 3087

File no. ACMA2013/1239

Broadcaster Regional Television Pty Ltd

Station TNQ

Type of service Commercial Television

Name of program Ten News at Five

Date of broadcast 19 July 2013

Relevant code Clause 4.4.1 of the Commercial Television Industry Code of Practice 2010

Date finalised 3 October 2013

Decision No breach of clause 4.4.1 [present news fairly and impartially]

ACMA Investigation Report 3087 – Ten News at Five broadcast by TNQ on 19 July 2013 1

Background On 29 July 2013, the Australian Communications and Media Authority (the ACMA)

received a complaint about a segment of the program Ten News at Five broadcast by Regional Television Pty Ltd (the licensee) on 19 July 2013.

The program is broadcast from 5pm to 6pm every evening and provides coverage of local, national and overseas news, including sport and weather reports.

On 19 July 2013, the program broadcast a segment outlining a recent policy announcement made by the then Prime Minister the Hon Kevin Rudd MP (Mr Rudd) concerning the arrival of asylum-seekers to Australia by boat. The segment ran for approximately 2 minutes, and included details of the policy and reactions from politicians and community leaders.

The segment included a news headline at the start of the program introducing the story, in which the program’s presenter referred to Mr Rudd’s announcement as the Prime Minister’s ‘solution to the asylum-seeker invasion’.

A transcript of the segment can be found at Attachment A.

The complainant’s concern is that:

[The presenter] referred to asylum-seekers as an invasion; this is outrageous [as] they are fleeing persecution, not invaders [sic]. This terminology can only inflame the public’s response and demonise these poor people. Invaders are armed and want to control or subdue a country...

and that:

...I thought that news reporting was supposed to be balanced and impartial; obviously Ten network and Ten news isn’t [as] this terminology is highly emotive.

The licensee has submitted that ‘the overall presentation, tone and range of views conveyed in the heading and substantive story in their entirety ensured the news was presented fairly and impartially’. The licensee’s full submissions can be found at Attachment B.

The investigation has considered the licensee’s compliance with clause 4.4.1 of the Commercial Television Industry Code of Practice 2010 (the Code):

News and Current Affairs Programs

4.4 In broadcasting news programs (including news flashes) licensees:

4.4.1 must present news fairly and impartially.

Assessment This investigation is based on submissions from the complainant and the licensee,

correspondence between the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources have been identified where relevant.

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In assessing content for compliance with the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian courts have considered an ‘ordinary, reasonable’ 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.1

The ACMA examines what the ‘ordinary, reasonable’ viewer would have understood the relevant material to have conveyed, in the context of the relevant program segment. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Code has been breached.

In addition, the ACMA has considerations it generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligations in clause 4.4.1 of the Code. These are set out at Attachment C.

Issue: Whether the licensee presented news fairly and impartiallyFindingThe licensee did not breach clause 4.4.1 of the Code.

Reasons The Code requires commercial television licensees to present news programs fairly and

impartially.

The news segment in this case dealt with a topical subject being the ongoing asylum-seeker debate, which is a subject of public and political importance.

Based on the complainant’s concerns, the ACMA has assessed whether the introductory statement ‘solution to the asylum-seeker invasion’ amounted to unfair and partial reporting of the segment.

The Macquarie Dictionary (Fifth Edition) defines the term ‘invasion’ as:

Invasion noun

1. the act of invading or entering as an enemy.

2. the entrance or advent of anything troublesome or harmful, as disease.

3. entrance as if to take possession or overrun.

[...]

1 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167

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The ACMA considers that the ordinary reasonable viewer would have understood the introductory statement as suggesting that Australia is being overrun by asylum- seekers.

The ACMA acknowledges the complainant’s submission that the term ‘invasion’ can carry with it negative associations and connotations, including the underlying implication that asylum-seekers are undesirable.

It also acknowledges that the asylum-seeker issue is a controversial one, and requires careful treatment.

In this case the word was emotive and its use was ill-considered.

However, the ACMA considers that this was not, of itself, conclusive evidence of unfairness or a lack of impartiality on the part of the licensee.

The use of particular terms should be considered in the context of a segment in its entirety. In this regard, the ACMA considers that, overall, the segment was balanced, fair and impartial, noting in particular the following:

o A number of alternative viewpoints on both the policy announcement and, more broadly, the asylum-seeker debate were offered during the segment. These included an excerpt of an interview with a refugee activist highlighting the importance of asylum-seeker wellbeing;

o The language used by the reporter during the remainder of the segment was of a neutral and objective nature. The segment did not use highly-charged language and did not disparage or incite fear of asylum-seekers;

o Any suggestion of prejudgement conveyed through the initial headline was absent in the rest of the segment, which was a balanced, fair and impartial report on a topical and controversial policy - providing a broader context for the use of the term.

The ACMA finds that, on balance, the licensee did not breach of Clause 4.4.1 of the Code.

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Attachment ATranscript of the segmentPresenter– Tonight, stopping the boats - Kevin Rudd’s solution to the asylum-seeker invasion.

[Unrelated news headlines].

Presenter – Good evening. It could be his most important policy of the election - Kevin Rudd’s plans to stop the illegal smuggling of refugees into Australia. In the past few minutes, he’s outlined his package to stop asylum-seekers before they can even board a boat and told us what he’ll do with them if they do. [Reporter’s name] has more.

[Images of female asylum-seeker violently wailing].

Reporter – The prospect of death at sea hasn’t stopped thousands making the journey to Australia. Now Kevin Rudd’s adding more reasons for asylum-seekers to think again.

Kevin Rudd (former Prime Minister) – From now on, any asylum-seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.

Reporter – Under Mr Rudd’s plan, people trying to get to Australia will be permanently resettled in Papua New Guinea.

Mr Rudd – I understand that different groups in Australia and around the world will see this decision in different ways.

Tony Abbott (former Opposition Leader) – The guy that started the problem is not the man to fix it.

Reporter – PNG’s Manus Island Detention Facility will undergo a huge expansion.

Scott Morrison (former Shadow Immigration Minister) – It’s always somebody else’s problem, and on this occasion it will be left to those in Papua New Guinea or Indonesia.

Reporter – Indonesia has also agreed to stop Iranians getting visas on arrival. This year alone, around 6,000 were issued one; an estimated 5,000 then boarded a boat to Australia.

Mr Morrison – Well, I welcome that initiative.

Reporter – Kevin Rudd terminated the carbon tax and revealed reforms to Labor’s leadership rules. This overhaul of asylum-seeker policy was the other major change he wanted to make before calling the election.

Refugee Advocate – The whole refugee debate is about politicking for the election. There aren’t policies in place which are actually about, you know, concern for the refugees themselves.

Reporter – Tony Abbott’s ride to the Lodge has been made a lot less certain by a Rudd revival.

Presenter – [Reporter’s name] there with that report.

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Attachment BLicensee’s submissionsThe licensee sent the following to the complainant:

News at times is confronting and often tackles controversial issues including the Asylum Seeker crisis.

The issue is one that has shaped out political landscape for many years and continues to do so as we head towards another election.

We take on board your comments and concerns which have been raised with our senior production team.

The licensee then submitted the following to the ACMA on 10 September 2013:

The Program

The segment in question concerned the brief introductory headlines of the top stories in the program. The news program commenced with the presenter stating, “Tonight: Stopping the boats. Kevin Rudd’s solution to the asylum seeker invasion.” The text “RUDD’S SOLUTION” appeared onscreen accompanying footage of boats carrying asylum seekers being intercepted by the Australian Navy. Following the brief headlines, the news story regarding asylum seeker policy changes was broadcast.

Compliance with Clause 4.4.1 of the Code

The relevant clause prescribes:

4.4 In broadcasting news programs (including news flashes) licensees:

4.4.1 must present news fairly and impartially;

The Australian Communications & Media Authority (ACMA) has previously expressed that in assessing compliance with the obligation to present news fairly and impartially, the ACMA considers a range of factors, including the theme of the news story, the range of perspectives that were presented or sought to be presented in relation to that theme, and the overall presentation of the story.

Network Ten submits that news of the Government’s changes to asylum seeker policies was broadcast fairly and impartially. The 5 second headline was broadcast at 17:00:10. Immediately following the news headlines, the actual news story regarding the Prime Minister’s announcement was broadcast at 17:00:42. The news story itself was approximately 2 minutes 18 seconds in length. The story began with the presenter stating, “Good evening. It could be his most important policy of the election. Kevin Rudd’s plans to stop the illegal smuggling of refugees into Australia. In the past few minutes he’s outlined his package to stop asylum seekers before they can even board a boat and told us what he’ll do with them if they do. [Name of reporter] has more.”

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The following report outlined details of Prime Minister Rudd’s announcement of the Regional Resettlement Arrangement with Papua New Guinea and other initiatives to address people smuggling and asylum seeker policy. These measures were expressed in the joint press conference held by Prime Minister Rudd and Papua New Guinea Prime Minister O’Neill on 19 July 2013. The report featured comments from the Prime Minister, Leader of the Opposition, the Shadow Minister for Immigration & Citizenship and Ian Rintoul, a refugee advocate, concerning the issue of asylum seekers. The report noted the political implications to the changes to asylum seeker policy.

The news story included views from both major political parties as well as a spokesperson for the Refugee Action Coalition. The language used by the reporter was objective, direct and expressed without obvious emotion and the tone was relatively neutral throughout the report. The language used by the presenter to introduce the story conveyed the significance of the Prime Minister’s announcement which was widely reported that evening and in the following days. The term in question was not used in the news report by the presenter or reporter.

We consider the overall presentation, tone and range of views conveyed in the headline and substantive story in their entirety ensured the news was presented fairly and impartially. We note the complaint in question was the only Code complaint received by either Southern Cross TEN or Network Ten.

Hence we submit the news program complied with Clause 4.4.1 of the Code.

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Attachment C

Considerations which the ACMA has regard to in assessing the licensee’s compliance with clause 4.4.1 of the Commercial Television Industry Code of Practice 2010The Code imposes on commercial television licensees the requirement that news programs be presented fairly and impartially. The ACMA applies the ordinary English language meaning of the words, ‘fairly’ and ‘impartially’ in interpreting the Code. The Macquarie Dictionary (Fifth Edition) relevantly defines the words, ‘fairly’ and ‘impartially’ and related terms as:

Fairly verb 1.in a fair manner; justly; impartially.

Fair adjective 1. free from bias, dishonesty, or injustice: a fair decision; a fair judge.

Impartial adjective not partial; unbiased; just.

Partial adjective 5. biased or prejudiced in favour of a person, group, side, etc

Bias noun 2.a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question.

In relation to fairness and impartiality, ABA Investigation 12622 provided the following guidance:

Matters that could lead to a consideration that material has been presented unfairly or partially may include an unfair selection of material from the range of material available, an undue emphasis on certain material, or the unfair juxtaposition of material taken out of context.

In relation to the concept of impartiality, the ACMA Investigation 19133 provided additional guidance to this effect:

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, or giving effect to the affectations or enmities of the presenter or reporter in respect of what is broadcast.

In assessing compliance with the obligation to present news fairly and impartially, the ACMA considers a range of factors, including the theme of the news story, the range of perspectives that were presented or sought to be presented in relation to that theme, and the overall presentation of the story.

It should be noted that nothing in the Code prevents a licensee from making a thorough examination of the public words and actions of those in public life, or from making comment on them. It is legitimate for licensees to investigate and report on matters of public interest and concern, including situations which present individuals or events in a negative light. However, the ACMA considers that care in framing is important.4 The licensee must be fair, unbiased and avoid conveying pre-judgement.

2 September 20033 July 20084 This is consistent with the approach taken in the ACMA Investigation 1943, decision dated 1/10/09.

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