2gb investigation report nos 2952, 2953 and 2954/media/broadcasting investig… · web viewit...

ACMAFile No. ACMA2013/114

Licensee Harbour Radio Pty Limited

Station 2GB Sydney

Type of Service Commercial Radio

Name of Program Alan Jones Breakfast Show

Dates of Broadcast 18 October 2012, 23 October 2012, 24 October 2012 and 29 October 2012

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

Date Finalised 19 September 2013

DecisionBreach of Code 2.2(a) of the Commercial Radio Australia Codes of Practice and Guidelines September 2011 in relation to the broadcast dated 23 October 2010;

No breach of Code 2.2(a) of the Commercial Radio Australia Codes of Practice and Guidelines September 2011 in relation to the broadcasts dated 18, 24 and 29 October 2012; and

Breach of Code 5.5 of the Commercial Radio Australia Codes of Practice and Guidelines September 2011 in relation to each of the 4 separate complaints lodged.

ACMA Investigations Report 2952, 2953 & 2954 – Alan Jones Breakfast Show broadcast by 2GB on 18/10/12, 23/10/12, 24/10/12 & 29/10/12

The complaintsThis investigation relates to four complaints by the same complainant about material broadcast during the Alan Jones Breakfast Show by Harbour Radio Pty Limited on 18, 23, 24 and 29 October 2012 respectively (the broadcasts). The complaints concern the accuracy of factual material in each broadcast.

The complainant did not receive a response to any of the complaints made to the licensee and referred the matter to the ACMA.1

The complaints have been investigated under Codes 2.2(a) [accuracy] and 5.5 [respond to complaints] of the Commercial Radio Australia Codes of Practice and Guidelines September 2011 (the Codes).

The programThe Alan Jones Breakfast Show is broadcast weekdays on 2GB from 5:30 am to 9:00 am. The program typically comprises news and commentary by the presenter, Alan Jones (Mr Jones) as well as discussions, interviews and talk-back relating to current events.2 The Alan Jones Breakfast Show is a current affairs program for the purposes of Code 2 of the Codes.

The broadcasts dealt with the following topics:

DATE OF BROADCAST TOPIC

18/10/12 Mine approval (Department of Planning)

23/10/12 Government expenditure (public service salaries)

24/10/12 US economy

29/10/12 Government expenditure (campaign for UN Security Council seat)

Transcripts of the relevant broadcast material are at Attachments 1 - 4 respectively.

AssessmentThis investigation is based on submissions from the complainant and the licensee and copies of the broadcasts provided to the ACMA by the licensee.

Other relevant sources consulted are identified in the report.

‘Ordinary reasonable’ listener testIn assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ listener.

1 Under Section 148 of the Broadcasting Services Act 1992 (BSA), a person who has complained to a broadcaster about program content or compliance with a code of practice, may make a complaint to the ACMA where the person has not received a response within 60 days, or has received a response which the person considers to be inadequate. Under section 149 of the BSA the ACMA must investigate the complaint, unless it is satisfied that the complaint is frivolous or vexatious or was not made in good faith.

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

ACMA Investigations Report 2952, 2953 & 2954 – Alan Jones Breakfast Show broadcast by 2GB on 18/10/12, 23/10/12, 24/10/12 and 29/10/12 2

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

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.3

The ACMA asks what the ‘ordinary reasonable’ listener would have understood the broadcast to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone, 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 Codes have been breached.

Issue 1: Reasonable efforts to ensure factual material is reasonably supportable as being accurate

Relevant ProvisionCode of Practice 2: News and Current Affairs Programs

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

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

...

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

The relevant considerations to which the ACMA has regard in assessing whether or not the broadcast material complained about is factual in character are at Attachment 5.

The ACMA notes that the talk-back format is a common feature of current affairs programs providing analysis, commentary and discussion with listeners about current social, economic or political issues.

As such, it frequently approaches matters from a strong viewpoint and the ACMA acknowledges that this is part of the appeal or value of such programs to their listeners and in the broader context of public discourse. In this context, much of what is said in talk-back radio will be in the nature of opinion.

However, care must be taken where factual material forms the basis of the opinion expressed in a current affairs broadcast.

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


Where a current affairs talk-back program, such as the Alan Jones Breakfast Show, includes factual material, Code 2.2(a) of the Codes requires that the licensee must use reasonable efforts to ensure that it is reasonably supportable as being accurate.

1) Broadcast of 18/10/12 – Mine approval (Department of Planning)

Complainant’s submissionsIn his complaint to the licensee the complainant asserted a breach of the Codes using the licensee’s on-line complaint form,4 giving the following details:

During a discussion about coal seam gas,5 [Mr Jones] alleged gross corruption by the Department of Planning and suggested that there were illegal practices involved in how planning rights are managed. I would like to see the evidence Mr Jones has for these allegations.

Licensee’s submissionsThe licensee provided the ACMA with the following submissions:

In our view, with the exception of the presenter’s comment made in the broadcast on 29 October 2012 concerning the cost of securing a Security Council seat, the complaints concern statements by the presenter that are properly characterized [sic] as the presenter’s opinion or comment, and are not factual material for the purposes of Code 2.2(a). Code 2.2(a) is concerned only with factual material and not with comment and opinion.

Finding The licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast of 18 October 2012.

ReasonsThe relevant material (see Attachment 1) was the following statement made by Mr Jones:

Why would they override water and health concerns and review-reverse their own previous position, which was to reject it? Someone is interfering in the process. This is corruption with a capital C.

Was the relevant statement factual material?

Using the principles set out at Attachment 5, the first issue to determine is whether the statement made by Mr Jones was ‘factual material’. As outlined at Attachment 5, this is assessed in accordance with contextual indications including the language, tenor and tone of the statement and the rest of the broadcast.

4 2GB’s on-line complaint form has a field entitled ‘Complaint type’, which requires a complainant to choose either ‘General complaint’ or ‘Breach of the Commercial Radio Australia Codes of Practice’. The complainant chose the latter option.

5 An early part of the broadcast was a discussion of coal seam gas; the presenter then went on to discuss a recently-approved open-cut coal mine. It was during the discussion of the mine approval that the material impugned was broadcast.


The ACMA notes that the context of the statement was a discussion between the interviewee and Mr Jones referring to: the approval of an open-cut coal mine in the Hunter region by the NSW Government; the continuing opposition from the Department of Health; and the reversal of initial opposition by the NSW Office of Water and of the initial position of the Planning Assessment Commission.

The ACMA considers that the statements concerning the approval process for the coal mine were factual in nature. The remarks about the positions of the Department of Health, NSW Office of Water and the Planning Assessment Commission were specific and expressed unequivocally and this material was capable of independent verification.

However, the statement ‘this is corruption with a capital C’ was made following a series of rhetorical questions posed by Mr Jones and, in the context of the broadcast, the ordinary reasonable listener would have understood that the statement was an expression of opinion.

For these reasons, the ACMA is satisfied that, for the purposes of the Codes, the statement complained about was an expression of opinion rather than fact.

Accordingly, the licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast of 18 October 2012.

2) Broadcast of 23/10/12 – Government expenditure (public service salaries in Department of Climate Change)

Complainant’s submissionsIn his complaint to the licensee the complainant asserted a breach of the Codes using the licensee’s on-line complaint form, giving the following details:

Mr Jones stated that the minimum wage in the Department of Climate Change was $130,000. This is not correct and I would like [Mr Jones] to provide evidence to support his claim.

Licensee’s submissionAs outlined above, the licensee has submitted that this statement was not factual material for the purposes of Code 2.2(a) of the Codes.

The ACMA sought further comment from the licensee on 21 March 2013, noting that the ACMA may take a different view to the licensee on the character of the material.

On15 April 2013 the licensee submitted:

With the assistance of the presenter, we have been searching for the media article that supports the statement referred to in your email below.

In spite of our best efforts, we have not been able to locate the media article among the production records for the program.

To assist, we will shortly lodge an FOI application with the Department of Climate Change to obtain the information directly from the Department.

Of course, if the statement turns out to be materially incorrect, then the presenter is very willing to broadcast a correction.


We will keep you up to date on the progress of the FOI application.We do appreciate that you may wish to finalise the [preliminary investigation report] in the meantime.

To date, the ACMA has not received any additional communications from the licensee in this regard.

FindingThe licensee breached Code 2.2(a) of the Codes in relation to the broadcast of 23 October 2012.

ReasonsThe following statement was made by Mr Jones:

Fifteen hundred people in the Department of Climate Change earning a minimum of 135,000 dollars a year.

That statement was made in the context of a broadcast that included a number of precise statements about expenditure by the federal government and which also included the words, ‘You want facts? I’ll give you facts.’


Applying the considerations set out at Attachment 5, the ACMA considers that this statement was one of fact. The language, tenor and tone used in presenting the statement were unequivocal, and the figure was specific and capable of independent verification.

Did the licensee use reasonable efforts to ensure that the statement was reasonably supportable as being accurate?

The Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education Annual Report for 2011/12 reported that as at June 2012 it had 803 staff members and that as at 30 June 2012 the salary range was $42,593 to $333,034.6 On this information Mr Jones’ statement was inaccurate.

However, the wording of Code 2.2(a) makes it clear that the licensee’s obligation is to make reasonable efforts to ensure that factual material broadcast is reasonably supportable as being accurate. This requires consideration of the evidence provided by the licensee as to its efforts at the time the material was broadcast.

Here, the licensee has not provided evidence of either:

the accuracy of the factual material; or

the steps that it took to ensure that the factual material was reasonably supportable as being accurate.

On the basis of the information before it the ACMA finds that the licensee did not use reasonable efforts to ensure that the factual material presented was reasonably supportable as being accurate.

6 http://www.climatechange.gov.au/about-us/annual-reports/annual-report-2011-12


http://www.climatechange.gov.au/about-us/annual-reports/annual-report-2011-12

Accordingly, the ACMA finds that the licensee breached Code 2.2(a) of the Codes in relation to the broadcast of 23 October 2012.

3) Broadcast of 24/10/12 – US economy

Complainant’s submissionsIn his complaint to the licensee the complainant asserted a breach of the Codes using the licensee’s on-line complaint form, giving the following details:

Mr Jones was factually incorrect when he stated that all Americans are worse off than they were two years ago. Mr Jones made this comment in the discussion about the US presidential debate. This is obviously factually incorrect as many Americans have improved their financial position in the last two years.

FindingThe licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast of 24 October 2012.

ReasonsThe relevant material (see Attachment 3) was the following statement made by Mr Jones:

Every American worse off than they were four years ago.

Immediately preceding this statement Mr Jones stated:

Another presidential debate...Sixteen trillion dollars in debt. Nine million fewer people in work than President Obama said he’d get into work four years ago. 45 million people on food stamps. Every American worse off than they were four years ago. And with two weeks to go, forget anything else – the economy’s the issue [emphasis added by the ACMA].


Applying the considerations set out at Attachment 5, the ACMA considers that this was a statement of opinion. Although the impugned statement was surrounded by factual material concerning the American economy, the conclusion that ‘every American is worse off’ is hyperbolic and not a matter capable of independent verification. Any assessment of whether Americans are ‘worse off’ is inherently subjective.

The ACMA considers that from the language, tenor and tone of the statement, including Mr Jones’ own assertion, the inference made by him from the facts he had just referred to would not have been construed by the ordinary reasonable listener as a statement of fact.

Accordingly, the licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast of 24 October 2012.


4) Broadcast of 29/10/12 – Security Council

Complainant’s submissionsIn his complaint to the licensee the complainant asserted a breach of the Codes, giving the following details in the online complaint form:

In the discussion about the Labor Government’s performance, [Mr Jones] stated that the cost of winning a Security Council seat had been ‘billions’ when in fact it has been regularly reported that this cost is 25 million.

Licensee’s submissions

The licensee indicated that the material in question was:

... sourced from and substantiated by an article published by news.com dated 20 October 2012 which may be located at the following URL:

http://www.news.com.au/national/chocolate-koalas-mints-and-a-book-help-seal-australia-a-seat-on-the-un-security-council/story-fndo4eg9-1226499644373

...

Most relevantly, that article contains the following information:

‘Australia spent $24 million directly on the bid but it also increased aid spending by $3 billion in Africa, the Caribbean, South East Asia and the Pacific since the bid began’.

FindingThe licensee did not breach Code 2.2(a) of the Codes in relation to the broadcast of 29 October 2012.

ReasonsThe relevant material was the following statement made by Mr Jones:

And then you look at where the money’s spent – school halls, useless green schemes, pink batts, billions to buy the Security Council vote.


Applying the considerations set out at Attachment 5, the ACMA considers that Mr Jones’ remark concerning the Security Council vote was part of a longer expression of opinion about alleged Government expenditure. The excerpt opened with a strong judgemental statement about Labor having run out of money, which set the tenor and tone of the impugned statement:

Labor’s run out of money. It’s spent money it doesn’t have. It’s still gotta find about 20 billion a year. We don’t know where that’s going to come from because it keeps talking about a national disability scheme, a dental scheme, education schemes, and then you look at where the money’s spent, school halls, useless greens scheme, pink batts, billions to buy the Security Council vote.


These are inherently polemical and emotive statements giving contextual indications of opinion rather than fact.

The line between fact and opinion is often not clear. However, on balance, given the context, language, tenor and tone of the segment broadcast, the ordinary reasonable listener would not have understood the relevant statement made by Mr Jones as the presentation of factual material for the purposes of Code 2.2 of the Codes.

Accordingly, the licensee did not breach Code 2.2(a) of the Codes in relation to this statement.

Issue 2: Complaint handling

Relevant ProvisionCode of Practice 5: Complaints

Advice in Writing

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

Unwarranted Complaints or Anonymous Material

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

BackgroundThe complainant made 4 separate complaints to the licensee on 18, 23, 24 and 29 October 2012, using the licensee’s online complaint form.

The complaint indicated that the ‘Complaint type’ was a ‘Breach of the Commercial Radio Australia Codes of Practice’. The entries made in the ‘Complaint details’ fields included:

On 18 October 2012:

During a discussion about coal seam gas, Alan Jones alleged gross corruption by the Department of Planning and suggested that there were illegal practices involved in how planning rights are managed. I would like to see the evidence Mr Jones has for these allegations.

On 23 October 2012:

Mr Jones stated that the minimum wage in the Department of Climate Change was $130,000. This is not correct and I would like Mr Jones to provide evidence to support his claim.

On 24 October 2012:


Mr Jones was factually incorrect when he stated that all Americans are worse off than they were two years ago. Mr Jones made this comment in the discussion about the US presidential debate. This is obviously factually incorrect as many Americans have improved their financial position in the last two years.

On 29 October 2012:

Mr Jones made two statements that were both factually incorrect. In the discussion about the Labor government’s performance he stated that the cost of winning a security council seat had been "billions" when in fact it has been regularly reported that this cost is 25 million. Additionally, when reporting on the NBN, clearly a controversial issue of public importance, Mr Jones stated that "Wireless is clearly the future technology". This is a highly disputed area, with many experts agreeing that fibre is the best solution and Mr Jones has made no effort to present both sides of this argument to his listeners.

It is noted that the substantive aspect of the complaint about the NBN discussion has been dealt with in a separate investigation (see Investigation Report 2947 and 2960).

The licensee did not respond to any of the complaints. The licensee acknowledged that it received the complaints but the licensee also submitted to the ACMA that:

2GB has formed the opinion, on reasonable grounds, that the complaints received by 2GB were frivolous, vexatious or an abuse of the complaint process for the purposes of Code 5.8.

In further submissions to the ACMA, the licensee said:

Code 5.8 provides an exception to a licensee’s obligations under Code 5.5 in circumstances in which a complaint is, in the licensee’s reasonable opinion, frivolous, vexatious or an abuse of the complaint process under the [Codes].

The ACMA customarily relies on the Macquarie Dictionary in defining expressions contained in the Codes.

The Macquarie Dictionary provides the following assistance in interpreting the expressions frivolous, vexatious and abuse:

abuse to use wrongly or improperly; misuse

frivolous of little or no weight, worth, or importance

vexatious causing vexation; vexing; annoying

On receipt of the complainant’s complaints, 2GB formed the view that the complaints fall within the exception in Code 5.8 on the following reasonable grounds.

1. The complainant made a series of multiple complaints close in succession on 19, 23, 25 and 29 October 2012. The repeated and successive lodgement of multiple complaints reasonably caused vexation and annoyance.

2. Unlike most complaints received by 2GB in relation to the application of Code 2.2(a):

the complainant did not express any grievance with the segments which provide the context for the comments that were the subject of the complaints; and

the complainant did not set out any contrary facts in support of his allegation that the comments made by the presenter were inaccurate.

Instead, the complainant simply asserted that factual statements were broadcast and that these factual statements were incorrect. In the absence of any further contextual or factual detail, the complaints were clearly intended to vex and annoy.

3. In certain of the complaints, the complainant demands that 2GB provide evidence of the comments made by the presenter. Code 2.2(a) and Code 5.5 does not require a


licensee to provide evidence to complainants on demand. The complainant’s demands are:

high-handed – and therefore reasonably vexing and annoying; and

beyond the scope of the requirements of the Codes – and therefore an improper use of the complaints process.

On the question of the separate obligations under Code 5.5 and 5.8, on 30 July 2013, the licensee submitted:

As a matter of construction, if Code 5.8 is obligatory in nature, then the obligation must be different in nature from the other complaint resolution obligations in Codes 5.2, 5.4, 5.5, 5.6, 5.10 and 5.11. It is unclear how the ACMA expects licensees to ‘resolve’ complaints other than under the receipt, recording and substantive response requirements already contained in Codes 5.2, 5.4, 5.5, 5.6, 5.10 and 5.11. What additional obligations does Code 5.8 add to those other Codes?

...It is unclear that such a further expansion provides any identifiable community safeguard.

The ACMA’s construction of Code 5.8 is not supported by any other provision of Code 5.

The preamble to Code 5 provides that one of the purposes of the Code is to prescribe the method of handling complaints made by members of the public to licensees regarding compliance with these Codes (emphasis added by licensee). The stated purposes of Code 5 do not include resolution of complaints. Under Code 5.10, a licensee is required to record the substance of a complaint and the substance and date of the licensee’s response. There is no requirement to record any resolution of a complaint. If Code 5 were intended to provide a mechanism for resolution of complaints that extends beyond the provision of substantive and timely responses, the record keeping obligations would sensibly extend to a record of that resolution.

If the ACMA’s construction of Code 5.8 were correct, the effect would be that licensees are required under Code 5.5 to provide timely substantive responses to complaints that are, indeed, frivolous, vexatious or an abuse of the complaint process under the Code. We suggest that this outcome is both practically absurd and inconsistent with the ACMA’s corollary power (under section 149(2) of the BSA) to decline to investigate a complaint if the ACMA is satisfied that the complaint is frivolous or vexatious or was not made in good faith.

On the question of whether the complaint was vexatious, frivolous or an abuse of process, the licensee further submitted:

The relevant scope of the licensee’s opinion under Code 5.8 extends both to an appropriate definition of the terms vexatious, frivolous and abuse of process as well as to the application of those concepts to a particular complaint. In our view, 2GB’s definitions of vexatious and frivolous must necessarily be reasonable as we have used the same definitional approach that the ACMA customarily uses to interpret many other provisions of the Codes, namely, the Macquarie Dictionary definitions of those terms...

It also appears to us that the ACMA does not extend any practical operation or effect to the exceptions in Code 5.8...[T]he ACMA proposes to shortly dismiss the complainant’s complaints regarding broadcasts made on 18, 24 and 29 October 2012 on the basis that the ordinary reasonable listener would have assessed the statements to be statements of opinion rather than statements of fact. There are clearly no grounds under Code 2.2(a) for complaints concerning statements of opinion. On application of the ACMA’s own text [sic] of vexation (based on complaints made without sufficient grounds), the complaints concerning the broadcast on those dates would fall within the ACMA’s test.


FindingThe licensee breached Code 5.5 of the Codes in relation to each of the 4 complaints made by the complainant.

ReasonsOperation of Codes 5.5 and 5.8

The ACMA does not accept the licensee’s submission that Code 5.8 provides an exception to the licensee’s obligations under Code 5.5. Code 5.8 creates a completely separate obligation to the obligation under Code 5.5.

Code 5.5 requires, inter alia, that the licensee respond substantively to complaints within 30 business days of receipt. In contrast, Code 5.8 creates a separate obligation requiring the licensee to make every effort to resolve complaints, except where the licensee is of the reasonable opinion that the complaint is frivolous, vexatious or an abuse of the complaint process. The exceptions apply to the licensee’s obligation to resolve complaints in Code 5.8, not to the licensee’s obligation to respond to complaints in Code 5.5.

In other words, Code 5.5 creates an unqualified obligation on licensees to respond substantively to a complaint made in accordance with Code 5.1. Even if the licensee forms the reasonable opinion that a complaint is frivolous or vexatious, Code 5.5 still requires the licensee to respond to the complainant which, in this particular circumstance, would require the licensee to set out the opinion it has formed (i.e. that the complaint is frivolous or vexatious) and, importantly, that the complainant can refer their complaint to the ACMA if they are not satisfied with the response.

Accordingly, by failing to acknowledge receipt of the complaints and respond substantively to the complainant within the timeframe, the licensee breached Code 5.5 of the Code.

Frivolous, vexatious or an abuse of process

The ACMA’s view of Code 5.5 means that it does not need to determine whether the licensee could have reasonably formed the opinion that a complaint was frivolous, vexatious or an abuse of the complaints process. However, given the licensee’s extensive submissions on the subject, the ACMA has given the matter careful consideration.

In earlier decisions, the ACMA has reflected on the meanings of the relevant terms.

Frivolous refers to a complaint that is not worthy of serious attention, either because it is made for purposes of amusement or levity (and is not meant to be taken seriously) or, if made with serious intent, because the complaint deals with mere trifles (ie. it raises matters of little or no weight, worth or importance). Vexatious refers to complaints made without sufficient grounds, for the purpose of causing trouble or annoyance to the subject of the complaint. The term ‘abuse of process’ refers to pursuing a complaint for an improper or ulterior purpose.

In its submissions, the licensee referred to the successive lodgement of a series of complaints by the complainant to demonstrate that the complaints could reasonably be considered to be frivolous, vexatious or an abuse of the complaints process under the Code. However, Code 5.8 requires an assessment of the particular complaint rather than the complainant’s history (ie. the mere fact that a complainant has made previous complaints, whether or not these relate to similar subject matter, does not mean that the most recent complaints are frivolous, vexatious, or an abuse of the complaints process).


In this matter, the complaints were made with serious intent and raised an issue that could not reasonably be dismissed as trifling or of no importance. The ACMA does not consider that there was any evidence upon which the licensee could reasonably conclude that the complaint was ‘clearly frivolous’.

The ACMA also considers that the complaints had sufficient grounds or merit and, notwithstanding the history of correspondence from the complainant, does not consider that there was any evidence upon which the licensee could reasonably conclude that the complaints were made only to cause annoyance.

The ACMA has considered the licensee’s submission regarding the ACMA’s finding that a number of the statements complained about were opinion (and therefore accuracy provisions do not apply, resulting in non breaches of Code 2.2). The licensee in effect considers that a finding of ‘no breach’ inherently suggests that a complaint is without substance. The ACMA does not accept this argument. The assessment that a matter is opinion rather than fact is one to be made only after a valid code complaint has been received and all of the circumstances of a particular broadcast have been considered. In this case, (particularly as illustrated by the breach finding in relation to Code 2.2), the complaints were not obviously or manifestly groundless and there was no evidence upon which the licensee could reasonably conclude that the complaints lacked substance.

Finally, the ACMA does not consider that there was any evidence upon which the licensee could have reasonably formed the view that the complaints were made for an improper or ulterior purpose, and that therefore they were an abuse of the complaints process under the Codes.


Attachment 1Broadcast 18 October 2012 – Mine approval (Department of Planning)

Transcript of relevant excerptMr Jones: [...] the Department of Health has opposed it7 and continues to oppose it. As it did – the Department of Health. They made a submission in June this year to the Planning Assessment Commission, arguing that there had been 11 air pollution breaches at Camberwell over a nine-month period. The Department of Health said continued exposure increased the risk of death and disease. The Department of Health said another mine could increase that risk further, particularly in dry years. And as recently as June the NSW Office of Water opposed the new mine; it talked about the potential risk to Glennies Creek and local water users including the Hunter Valley’s many wine-makers. Then the Ashton Coal, the Chinese people, went into meltdown, and made all sorts of undertakings, and the Department of Water reversed their view. But, I mean, all of this advice has been ignored by Hartcher, whoever has given approval for all this in the O’Farrell Government.

Hunter region landowner: Exactly. And I think that the Planning Assessment Commission – in the first session they had, they said definitely no; we had a second hearing, and, and, waited and waited and waited for months, and all of a sudden it’s ‘Oh yes, it can go ahead’. Well, I believe it was a political push.

Mr Jones: But the Planning Assessment Commission – let’s be clear: there were two people on the Planning Assessment Commission: a [name], who’s a wonderful planner, knows nothing about coal seam gas or open-cut coal mining; and [name]. Now neither of them is an environmental scientist; they ignored the precautionary principle – ‘Hey, hey, there could be problems here’. Why would they override water and health concerns and review—reverse their own previous position, which was to reject it? Someone is interfering in the process.

Hunter region landowner: Exactly. They are not – have not been allowed to be independent.

Mr Jones: Someone is interfering in the process. This is corruption with a capital C.

Hunter region landowner: Look, Alan, the corruption in the Department of Planning is appalling, and the corruption in the Office of Water in Parramatta, where the problem is, has got to be looked at.

Mr Jones: No doubt. No doubt. This expansion was always opposed by local health officials, their position hasn’t changed.

7 A reference to an open cut mine approved for construction in the region about a week before the broadcast.


Attachment 2Broadcast 23 October 2012 – Government expenditure (public service salaries in Department of Climate Change)

Transcript of relevant excerpt

Mr Jones: [...] remember one thing: 50 billion plus for a broadband network. A billion on pink batts home insulation. Another billion to repair the damage. Digital set-top boxes which were cheaper at Harvey Norman. The cost of the livestock ban to Indonesia. A half a billion dollar blow-out in the solar homes program. A 1.4 billion dollar blow-out in the computers and schools program, less than half delivered. Twenty four thousand more public servants than when Mr Rudd came to power. A carbon tax and a mining tax. We’re giving 20 billion dollars to the IMF to prop up Greece, so the Greek people can retire at 50. Fifteen hundred people in the Department of Climate Change earning a minimum of 135,000 dollars a year. Two hundred and thirty Federal bureaucrats earning more than the Prime Minister. Six new federal agencies supporting carbon tax legislation. One thousand and twenty seven staff on the Climate Change Authority. Green agencies around Australia recruiting new staff at the rate of a thousand a year. You want facts? I’ll give you facts! Environmental agencies in Canberra with 4,000 permanent staff. And to keep Windsor on side, 700 million dollars spent in his electorate alone. The Federal Member for Parkes is a bloke called Mark Coulton. He says his electorate is the largest region of NSW – they haven’t received a single cent! And Kevin Rudd and Julia Gillard inherited a surplus which they turned into the four largest deficits in history, and a fifth one coming up.


Attachment 3Broadcast 24 October 2012 – US economy

Transcript of relevant excerpt

Mr Jones: Another Presidential debate, and all the left-wing apologists for Barack Obama seem to think he won it. I don’t know what debate they were watching. Whether Romney wins or loses, he is, in my view, the most outstanding Republican candidate in a long, long time. He was dignified, presidential, controlled, right on top of detail, and continues to shift the focus back to the economy. Sixteen trillion dollars in debt. Nine million fewer people in work than President Obama said he’d get into work, four years ago. 45 million people on food stamps. Every American worse off than they were four years ago. And with two weeks to go, forget anything else – the economy’s the issue.


Attachment 4Broadcast of 29 October 2013 – Government expenditure (campaign for UN Security Council seat)

Mr Jones: Spending 100 billion a year more than they spent five years ago. Labor’s run out of money. It’s spent money it doesn’t have. It’s still gotta find about 20 billion a year. We don’t know where that’s going to come from because it keeps talking about a national disability scheme, a dental scheme, education schemes, and then you look at where the money’s spent, school halls, useless greens scheme, pink batts, billions to buy the Security Council vote.


Attachment 5Considerations which the ACMA has regard to in assessing whether broadcast material is fact or 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.

Factual material will usually be specific, unequivocal and capable of independent verification.

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

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

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


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