media/broadc web view · 2016-09-27thursday marks the 20. th. ... that somehow...

Investigation report no. BI-211Summary

File no. BI-211

Licensee Network Ten (Melbourne) Pty Ltd

Station Ten

Type of service Commercial broadcasting—television

Name of program The Project

Date of broadcast 25 April 2016

Relevant code Clause 3.3.1 of the Commercial Television Industry Code of Practice 2015 [representation of viewpoints]

Date finalised 24 August 2016

Decision No breach of clause 3.3.1

BackgroundIn July 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into The Project broadcast on Ten by Network Ten (Melbourne) Pty Ltd (the licensee) on25 April 2016 at 6.30 pm.

The ACMA received a complaint alleging:

An interview was conducted under false pretenses [sic] and was drastically cut and rearranged to omit accurate information, misrepresent the interviewee and the subject matter of the interview.

The broadcast interview has been investigated for the licensee’s compliance with clause 3.3.1 of the Commercial Television Industry Code of Practice 2015 (the Code).

The programThe Project is a panel-based, current affairs program, where viewers:

[j]oin the [h]osts and our guest panellists for all the daily news, events and hottest topics. It's news delivered differently. 1

During the episode on 25 April 2016 (the program), an interview was broadcast with Paul Moder, a film writer and producer of a feature film about the 1996 Port Arthur massacre (the segment). The interview was pre-recorded and involved the hosts of The Project, located in a studio in Australia, talking with Mr Moder in a studio in Los Angeles, California.

A transcript of the segment is at Attachment A.

Assessment and submissionsWhen assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary reasonable’ 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.2

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.

The investigation takes into account the complaint (at Attachment B) and submissions from the broadcaster (at Attachment C), including a copy of the broadcast interview and the full pre-recorded, un-edited interview (transcripts at Attachment A). Other sources are identified below.

1 http://tenplay.com.au/tv-guide, accessed on 1 August 2016.2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

ACMA Investigation report—The Project broadcast on Ten on 25 April 2016. 2 of 18

http://tenplay.com.au/tv-guide

Relevant Code provision 3.3 Accuracy and fairness

3.3.1 In broadcasting a news or Current Affairs Program, a Licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

3.3.2 Clause 3.3.1 applies to material facts and material misrepresentations of viewpoints only.

An Interpretation clause is also applied:

3.1.2 Compliance with this Section 3 must be assessed talking into account all of the circumstances at the time of preparing and broadcasting the material, including:

a) the facts known, or reasonably ascertainable, at that time;

b) the context of the segment (or Program promotion) in its entirety; and

c) the time pressures associated with the preparation and broadcast of such programming.

FindingThe licensee did not breach clause 3.3.1 of the Code.

ReasonsIn assessing compliance with the Code, the ACMA considers the complaints against the material broadcast in the segment and the representation of viewpoints (e.g. opinions or perspectives) during the segment.

In determining whether or not a licensee has materially misrepresented a viewpoint, the ACMA takes into account that the Code does not require a licensee to obtain all salient viewpoints, nor is it required to present all material it obtains (having regard to the circumstances at the time of preparing and broadcasting the program). The ACMA accepts that extended duration material will be edited in order to fit into limited broadcast time.

The overriding requirement of the Code is that, where a viewpoint is included, it must be not misrepresented. A program may omit material and its makers may choose not to obtain viewpoints, but in so doing must not misrepresent a viewpoint.

The original complaint to the licensee stated:

[…] approximately 80% of what was said and been cut out, leaving only a few minutes of the conspiracy focused dialogue, and that this was radically rearranged, both contextually and chronologically.

An interview of approximately ten minutes, was cut to virtual irrelevance and used to portray [Mr Moder] in an unfair, heavily biased and inaccurate light. Subsequent press and social media comment follow up has now taken this on face value and totally misrepresented [Mr Moder’s] intentions, [his] viewpoint and prior press about the balanced nature of the film.

I will not accept that this editing was undertaken for time restraints. It was an obvious and calculated process of misrepresentation, censorship, heavy bias, hidden agenda and in my opinion, personal character assassination.

The licensee submitted:

TEN submits the interview broadcast did not misrepresent Mr Moder’s material viewpoint.


[…]

The Project recorded an interview of over fourteen minutes duration with Mr Moder. As previously expressed to the complainant, it is not possible to broadcast the entire interview in the program due to time constraints. Over three minutes of interview footage was edited and broadcast so as to represent Mr Moder’s viewpoint fairly.

The interview was preceded by a segment of 01:30 minutes which did not refer to “conspiracy theories.” Rather, this segment questioned the appropriateness of the film proceeding despite not having the approval of victims' families or survivors.

The interview commenced with the question, “Paul, can you tell the story of Port Arthur fairly and accurately without the cooperation of the survivors?”, Mr Moder responded by stating, “Well, it's very, very difficult, I've written a few scripts in my time, but I have to say writing this was the most torturous thing I've ever done and principally because there is so much misinformation, so much controversy, conspiracy and spurious agenda that it was very hard to separate the wheat from the chaff...”

The reference to misinformation, controversy, conspiracy and spurious agenda naturally lead to follow-up questions exploring these matters which became the focus on the interview. The broadcast reflected this focus, featuring Mr Moder expressing his views on alleged “discrepancies” in the trial of Martin Bryant and distinguishing such points from “conspiracies”.

[…]

The interview broadcast concluded with Mr Moder stating, “I just think that my intention is to hold the victims and their families and the survivors in the utmost respect.” This statement is representative of Mr Moder’s concern for the victims, survivors and families expressed during the interview.

TEN submits there was no misleading editing or inappropriate juxtaposition of material in the representation of Mr Moder’s viewpoint. The material broadcast did not provided [sic] an incorrect impression or emphasis of his views in response to the questions and opinions expressed by the hosts.

Viewpoints represented during the program

As the complainant has noted, the focus in the broadcast interview was weighted toward Mr Moder’s references to gaps or ‘discrepancies’ in the evidentiary record concerning the Port Arthur massacre.

The broadcast interview included Mr Moder talking about:

> the difficulty he had writing the script

> the lack of publicly disclosed evidence that resulted from Martin Bryant’s guilty plea

> questions that ‘a lot of people’ had about the massacre because of the absence of publicly available evidence that would normally be disclosed in an open criminal trial

> his wish not to label ‘discrepancies’ as ‘conspiracy theories’

> his belief that there is a lack of willingness to discuss these matters publicly – a desire ‘to push everything under rug’

> his desire to respect the victims and their families, and the survivors.


Were the viewpoints misrepresented?

The segment included only part of the pre-recorded interview between The Project’s hosts and Mr Moder. Mr Moder’s viewpoints on a number of matters were omitted from the segment. There was no obligation for the licensee to have to broadcast the whole interview or to present all of the viewpoints expressed by Mr Moder.

The obligation was to present Mr Moder’s viewpoints about the matters discussed in the interview accurately. The matters discussed in the interview were:

whether the story of Port Arthur could be told fairly and accurately without the cooperation of the survivors

Mr Bryant’s guilty plea and there being no open trial for the murders.

The segment included five responses from Mr Moder. All of the questions and answers were broadcast in their original chronological order. Four of Mr Moder’s five responses were broadcast in direct reply to the questions asked in the original interview. The one exception was Mr Moder’s response that:

Well I guess if you want to look at it, I’ll call them discrepancies because I don’t want to label them necessarily with calling them conspiracy theories but there are things like because there was no open trial there were never any fingerprints taken from the scene that proves that Martin was there, there were never any ballistic evidence matching the firearms to the crime scene or Bryant to the firearms.

In the original interview, this was a response to a question from Anthony Lehmann, who had asked:

So what’s the most prominent of those facts, that you claim to be a fact, that brings into doubt the story as we know it now?

In the broadcast interview, Mr Moder’s response was presented as an answer to Waleed Aly, who had asked:

Can I get you to expand on that because I note that you wrote on Facebook that Martin Bryant, quote, allegedly committed the crime. What is that meant to mean? I mean he’s convicted, there’s no allegedly about it.

Both questions from Mr Lehmann and Mr Aly concerned the issue of whether there was evidence to doubt that Mr Byrant had committed the murders. Both the questions were asked in the same part of the interview that involved an extended exchange about factual ‘anomolies’ and ‘discrepancies’ about the events at Port Arthur.

Though Mr Moder’s response was broadcast as being in answer to the question asked by Mr Aly earlier in the discussion, it was part of the same discussion about the same issues.

In the ACMA’s view, the broadcast interview was not edited in such a way as to materially misrepresent Mr Moder’s viewpoints about the ‘anomolies’ and ‘discrepancies’ concerning these events.

The material broadcast did not provide an incorrect impression or emphasis of Mr Moder’s views in response to the questions and opinions expressed by the hosts. The omissions did not result in a material misrepresentation of the viewpoints broadcast. The footage was not edited for false effect.

Accordingly, the licensee did not breach clause 3.3.1 of the Code.


Attachment ATranscript of interview with Paul Moder on The Project, broadcast on Ten on 25 April 2016.

Carrie Bickmore Thursday marks the 20th anniversary of the Port Arthur massacre and today comes news of a film based on the tragedy which will apparently go ahead despite objections from the survivors.

Waleed Aly Writer-producer Paul Moder describes his script for Bryant: The Port Arthur Massacre as an in-depth character evaluation of the killer from childhood to the shooting. Moder admits he doesn’t have the blessing of victims’ families or survivors but says a film-maker’s job is to document life.

Dr Clare Wright The historian’s number one priority is to stay within the bounds of the known evidence. At the same time, if there are people who lived through that event, I think you bear a really strong responsibility to make sure you get the story right.

Waleed Aly Moder’s not a historian, and his film is not a documentary but he claims the movie will help Australians reach an understanding of the event. Now, there’s an argument that movies are meant to tell our story and Port Arthur is definitely a major chapter in that story. But we also know that this will give the killer more of the attention that he craves.

It’s not the first controversial film inspired by real life murders. There’s Snowtown, Gus Van Sant’s Elephant, which fictionalised the Columbine shootings, and the Wolf Creek franchise.

Dr Clare Wright All story-tellers, whether they’re historians or film-makers, have to really empathise with the characters in their story and ultimately there needs to be more truth than fiction.

Waleed Aly So should any parts of history be off limits to story-tellers? Or does it depend on who’s telling the story …. and how?

Carrie Bickmore Well, the film’s writer and producer, Paul Moder, joins us now from L.A., Paul, can you tell the story of Port Arthur fairly and accurately without the cooperation of the survivors?

Paul Moder Ah, well, it’s very, very difficult. I’ve written a few scripts in my time but I have to say writing this script was the most tortuous thing I’ve ever done, and principally because there is so much misinformation, so much controversy, conspiracy and spurious agenda that it was very hard to separate the wheat from the chaff.

Waleed Aly So Paul, can I get you to expand on that because I note that you wrote on Facebook that Martin Bryant, quote, allegedly committed the crime. What is that meant to mean? I mean he’s convicted, there’s no allegedly about it.


Paul Moder Well I guess if you want to look at it, I’ll call them discrepancies because I don’t want to label them necessarily with calling them conspiracy theories but there are things like because there was no open trial there were never any fingerprints taken from the scene that proves that Martin was there, there were never any ballistic evidence matching the firearms to the crime scene or Bryant to the firearms.

Waleed Aly There’s not going to be ballistics evidence because there was a confession. Like, that’s not going to be presented in front of court because there was a confession.

Paul Moder Yeah, that’s my understanding as well. Once somebody pleads guilty you don’t have to provide evidence, and do all that stuff ….

Waleed Aly So there’s nothing to be made of the fact ….

Paul Moder … but I guess people have to understand that

Waleed Aly … that this hasn’t been presented publicly. Of course it hasn’t been presented publicly, that’s the way the system works. If there was a defensible case, in this case, it would’ve run to trial, that’s what would’ve happened, and those discrepancies, if they even exist would be discussed and judges would rule on them. But the fact that someone can just say, in a case where there was conviction, and really no debate about who did this, oh look there was a discrepancy over here, that’s the stuff of conspiracy theories, that’s how you build a conspiracy theory, you try and inject doubt where there just isn’t any.

Paul Moder A lot of people out there just don’t agree with you, who think look there’s just not enough evidence. There are people out there and I’m not saying I’m one of them ….

Waleed Aly They’re in no position to say that Paul, they’re in absolutely no position to say that …..

Paul Moder I’m just saying there’s not enough evidence that he was …

Waleed Aly Paul, they can’t say that, because it didn’t go to trial, we didn’t see the evidence, because there was a confession. So, this absolutely unremarkable as a legal proceeding from what I can tell and it sounds like when you say, oh there’s all this stuff out there that might make it remarkable, that’s what leads me to believe that there’s something really weird going on here and I can completely understand why survivors and their families would say, no, we don’t want this made.

Paul Moder Look I think that’s one of my issues is, I’m getting the distinct impression that there’s quite an agenda here, to sort of repress all this stuff, to push everything under rug, we don’t want to talk about it, we don’t want to examine it, it’s done and dead and buried.

Carrie Bickmore Is now the time? It feels like a particularly distasteful time to be having this conversation. We’re about to mark the twentieth anniversary of our country’s worst massacre, you have victims’ families in utter distress anyway, is now the time for this conversation?


Paul Moder Is there any time for it? I just think that my intention has always been to hold the victims and their families and the survivors in the utmost respect.

Carrie Bickmore Well I think the jury might be out on this one Paul, but yeah, we appreciate your time tonight.

Paul Moder Thank you

Carrie Bickmore I think there’s two separate conversations. Should a movie be made about the tragedy and that has happened in the past and marking historical events and should a conspiracy theory movie be made about this tragedy?

Steve Price This bloke says, there’s no fingerprints to prove that Martin Bryant was there. I went to Port Arthur the day after, covering it, and I stood in front of the tree where Walter Mikac lost Madeline and Alannah, his two children, they ran behind the tree and Martin Bryant chased them and shot them. There’s no argument about that, that happened, and this bloke wants to muddy the waters about there’s some gun conspiracy here. I think that that movie should never be made, that sort of movie should never be made. If you want to make a documentary about Port Arthur, dealing in the facts, fine – but if the people who were there that day and saw their families slaughtered don’t want it then don’t make it.

Transcript of un-edited interview with Paul Moder, recorded for The Project on 25 April 2016.

Carrie Bickmore And the film’s writer and producer, Paul Moder, joins us now from L.A., Paul, can you tell the story of Port Arthur fairly and accurately without the cooperation of the survivors?

Paul Moder Ah, well, it’s very, very difficult. I’ve written a few scripts in my time but I have to say writing this script was the most tortuous thing I’ve ever done, and principally because there is so much misinformation, so much controversy, conspiracy and spurious agenda that it was very hard to separate the wheat from the chaff. And of course, tantamount to all of that was treating victims’ relatives and families with the utmost respect and treating the project with maturity and respect as well.

Waleed Aly So Paul, can I get you to expand on that because I note that you wrote on Facebook that Martin Bryant, quote, allegedly committed the crime. What is that meant to mean? I mean he’s convicted, there’s no allegedly about it.

Paul Moder Well I guess when you say convicted, he pled guilty and as a result of that there was no open trial. I saw the program that was on Sunday night where John Avery, who was his defence lawyer at the time, who basically talked about the fact that Martin had pleaded guilty but he didn’t mention that the guilty plea was brought about because he went and told his mother Carleen, Martin’s mother Carleen, that he to try and get Martin to change his plea, so Carleen went to Risdon Prison with John and basically confronted Martin and said look if you don’t change your plea to guilty you’ll never see me or your sister


again and she confessed this in her book, My Story, which she’s just released. And that was the tantamount reason that he changed his plea to guilty.

So when I say allegedly, it’s not necessarily something that I believe, it’s more that that was never brought up and there’s a lot of questions why he changed his plea when he was pleading not guilty all the way up to that time.

Steve Price Paul, there’s a whole bunch of conspiracy theories around what happened in Port Arthur, most of which I think are rubbish but there is a suggestion that Bryant didn’t act alone, that there were other gunmen, are you of the view that that is possible, are you addressing that in the movie? Is this a conspiracy movie or this the story of what happened at Port Arthur as we know through the court case.

Paul Moder Definitely not the story as you know through the court case because the mainstream story didn’t give the general public the full story. And I think that’s one of the problems.

Steve Price So you’re going to allow to go to air here these wacky conspiracy theories that have been floating around the gun lobby in Australia since this happened, it spread out to the National Rifle Association in the US, that somehow there were other people involved and this was all about trying to toughen up the gun laws, without murdering these people we couldn’t do it. Surely you’re not going to do that?

Paul Moder No I’m not. I think that’s a pretty big jump.

Steve Price Thank god for that.

Paul Moder What I am going to do is take a very balanced approach to this and one of my main concerns was that everything I put in this script has to be as factually-based as possible, so anything in there that you would allude to being, if you want to call them the grassy knoll moments that the conspiracy theorists have suggested, are only ever a part of this script as a factual depiction of what actually happened. It doesn’t suggest anything else, it doesn’t allude to anything else, but as it was a fact it was important to include those as well as all the other stuff that I’ve uncovered during the research.

Steve Price Such as what though. Hang on. There was an incident, I was in Port Arthur the day after this happened, I saw the dead bodies on the ground and I don’t know if you were there and what happened was that Martin Bryant went berserk with three automatic weapons and slaughtered a whole lot of people in what was the biggest mass killing in history for a long time. There was no conspiracy theories around then, they came later, much later.

Paul Moder Well I guess, yeah, as I said I don’t want to get caught up in the conspiracy theory because that’s not what I’m pushing with this film.

Steve Price Well, you are.

Paul Moder I don’t think so, you’d have to read the script to see that. What I am suggesting is that there are certain anomalies, discrepancies and certain legal improprieties which are factual and I think as a matter of course in a document with this film have to be included. That doesn’t


negate the fact that Martin Bryant is the shooter, but they are factual things that, nevertheless, have to be included because otherwise I am only presenting one side and I not providing a balanced factual and fair account.

Anthony Lehmann So what’s the most prominent of those facts, that you claim to be a fact, that brings into doubt the story as we know it now?

Paul Moder Well I guess if you want to look at it, I’ll call them discrepancies because I don’t want to label them necessarily with calling them conspiracy theories but there are things like because there was no open trial there were never any fingerprints taken from the scene that proves that Martin was there, there were never any ballistic evidence matching the firearms to the crime scene or Bryant to the firearms. Ah, there were some legal improprieties where Bryant was put on a guardianship order back in 1993, which makes him, by the letter of the law incapable of entering a plea in the first instance, ah, so that was kind of overlooked. Um, I guess there’s also a lot of debate that there has been no coronial inquest, and a lot of the survivors themselves have been calling for this, purely from a safety, occ health point of view, and yet that was superseded by John Howard, and on my understanding that’s outside his jurisdiction, federal jurisdiction can’t override state law when it comes to something like a coronial inquest. So this was the biggest mass killing, you’re right, in the world at the time and we didn’t have a coronial inquest and if everything had been clear cut and locked down, no problem, but there are some unresolved questions that the survivors have and a lot of people have.

Waleed Aly I suspect that when you say the survivors have those questions you might be overegging it, given there are a lot survivors and families who don’t want you to make this, it sounds a bit strange to me but nonetheless, all of those things you put, just out at first blush, you’re right, I haven’t read your script, but they sound at first blush like things you say when the fact there wasn’t a trial is irking you but there wasn’t a trial because there was a conviction. Like there are all sorts of things going on here that actually sound very, very conspiratorial, even the way you just depicted them then.

Paul Moder Perhaps it’s the way you’re reading it? I mean I can only present the facts as I have researched them and portrayed them in this film and until that comes out there’s not going to be and they can make up their own minds.

Waleed Aly But Paul, there’s not going to be ballistics evidence because there was a confession. Like, that’s not going to be presented in front of court because there was a confession.

Paul Moder Yeah, that’s my understanding as well. Once somebody pleads guilty you don’t have to provide evidence, and do all that stuff ….

Waleed Aly So there’s nothing to be made of the fact ….

Paul Moder … but I guess people have to understand that

Waleed Aly … that this hasn’t been presented publicly. Of course it hasn’t been presented publicly, that’s the way the system works. That’s why this sounds very conspiratorial to me.


Paul Moder Well then I guess everyone has to accept the fact that there will be people out there saying look I kind of need to see the proof and the evidence. And you know there’s been a lot of things that people have latched upon saying oh you know there were witness statements that didn’t add up and you know there was reports where they published his photo in the paper the day after he was arrested saying this is the man – um, and look, I guess I don’t want to get too hung up on this because I don’t want you to think this is a conspiracy theory film, it is not. This film is an in-depth of Martin Bryant …

Waleed Aly I’m just saying it sounds a lot like one and the way you’ve described it – people are talking about witness statements that weren’t, there was no discrepancy, I tell you what, if there was a defensible case, in this case, it would’ve run to trial, that’s what would’ve happened, and those discrepancies, if they even exist would be discussed and judges would rule on them. But the fact that someone can just say, in a case where there was conviction, and really no debate about who did this, oh look there was a discrepancy over here, that’s the stuff of conspiracy theories, that’s how you build a conspiracy theory, you try and inject doubt where there just isn’t any.

Paul Moder Well I guess you could also look at it and say that in a case, in any kind of criminal case, I guess the thing is guilty beyond reasonable doubt and there will be a lot of people out here don’t agree with you who just think that, look there’s just not enough evidence, there are people out there, and I’m not saying I’m one of them ...

Waleed Aly They’re in no position to say that Paul, they’re in absolutely no position to say that …..

Paul Moder …. I’m just saying there’s not enough evidence that he was …

Waleed Aly Paul, they can’t say that, because it didn’t go to trial, we didn’t see the evidence, because there was a confession. So, this absolutely unremarkable as a legal proceeding from what I can tell and it sounds like when you say, oh there’s all this stuff out there that might make it remarkable, that’s what leads me to believe that there’s something really weird going on here and I completely understand why survivors and their families would say, no, we don’t want this made.

Paul Moder Look I think that’s one of my issues is, I’m getting the distinct impression that there’s quite an agenda here, to sort of repress all this stuff, to push everything under rug we don’t want to talk about it, we don’t want to examine it, it’s done and dead and buried. One of my things is that I’ve discovered is that in the twenty years since this happened the distress the frustration and the anger is still acute and I found that out first-hand by talking to a lot of the police officers that were directly involved in the tragedy and a lot of the victims and people as well, not all of them, but some of them and that said to me that it hasn’t been resolved or wrapped up us nicely as you’d like to think it would be, there are still many questions out there, too many things unresolved, and that’s the only thing that’s fuelling this constant need for people to get more information ...

Carrie Bickmore But Paul, speaking of distressing …

Paul Moder … they just want to put it to bed.


Carrie Bickmore … is now the time? It feels like a particularly distasteful time to be having this conversation. We’re about to mark the twentieth anniversary of our country’s worst massacre, you have victims’ families in utter distress anyway, is now the time for this conversation?

Paul Moder Is there any time for it? I just think that my intention has always been to hold the victims and their families and the survivors in the utmost respect and I know I’m going to have to front up to them and talk to them and try and convince them of the worth of what I am trying to do and I don’t think I’m going to have much luck there but it’s important that what I am trying to do is to, it may sound strange, but to alleviate that pain by trying to put this to rest and basically deal with it in the utmost respect and maturity that I can and hopefully that will be with the blessing of the people of Tasmania and the people that were affected by this tragedy. I don’t have high hopes but I will certainly try.

Waleed Aly Paul, if you’re going to be a truth teller in this sort of thing and try to provide facts on a case that it seems the facts aren’t really in dispute, shouldn’t you really be making a documentary that is subject to all the rigours and standards of documentary film-making rather than a feature film which doesn’t have those same standards in place?

Paul Moder I did think about that and when I first, one of the first drafts of the script was more like a docu-drama and I felt that it sort of got in the way of the, I guess the best way to put it is the emotional side to this story and that’s what started to affect me when I talked to a lot of the witnesses and the police, was that it was more important to convey the personal viewpoints, the feelings, the emotions and the pain behind this event as a drama and that in some ways to just give it a clinical, documentary-style approach would not be appropriate.

Waleed Aly But Paul, you’ve just spoken about how the important thing here is to establishing facts. That’s a complete, that’s a 180 degree turnaround from I want to convey the emotion in dramatic sense on something like this, particularly when, as you’ve agreed, we’re talking about something highly emotional that will possibly eviscerate the feelings of people who are connected to this story somehow, don’t you, if you’re going to …

Paul Moder Why are the two anathema, why is the search for truth and a drama, a dramatisation anathema to each other?

Waleed Aly Because you have to take dramatic licence in a feature film of the kind you’re making that is simply not compatible with saying I need to get certain key facts out, if you’re trying to allege a cover up of some sort or the suppression of evidence or for some reason it hasn’t reached the public you need to present that in a way that is sober and factual and journalistic, not in a way that is dramatic and emotive, surely.

Paul Moder Well thanks, I’d hopefully like to make the kind of film that I want to make, um I’ve had a lot of people basically criticising what I am doing, pre-judging the film without even seen a script and …..

Waleed Aly I’m basing only on your description


Paul Moder …. certainly a lot of those are conspiracy theorists as well and my response to them is, look I’m going to do what I’m going to do and make the film but if you don’t agree with what you think I’m going to do then by all means go out and make your own film or your own documentary. I cannot guarantee that I’m going to give definitive answers as to why this happened, you know what was all behind it. I can only do the best I can, I can’t lock down every factual answer to the tragedy because, for a start, there’s a thirty year embargo on all the evidence, so as a result of that guilty plea I can’t follow through a lot of the factual stuff but I certainly am very, very careful with taking cinematic licence with the drama because believe me I’m aware of the minefield that I am stepping into with this movie and as I said my highest concern with this is to treat it with respect and maturity and that means the victims, the survivors and their families.

Waleed Aly It will be fascinating to see what you come up with – the evidence isn’t fully there, it’s a documentary sort-of film that it’s not and it’s a drama film and …

Paul Moder It’s a minefield, it’s a very mixed up case.

Waleed Aly Yep. I will confess, I’m glad it’s not me stepping through that minefield, thank you very much for talking to us tonight.

Paul Moder Thank you


Attachment B

Complaint

Complaint to the licensee (undated):

On the 25th April, 2016, at approximately 12.00 midnight, [Mr Moder] conducted a pre-recorded interview in Los Angeles, California on request from [The Project].

[…]

[Mr Moder] attended the interview and upon commencement, was immediately subjected to what I would describe as a sustained, vicious and bullying, verbal attack by the panelists (Mr Waleed Aly, Ms Carrie Bickmore, Mr Steve Price and Mr Lehmo) The questioning was concerned primarily with [him] espousing conspiracy theories about the tragedy at Port Arthur and the effect this would have on the victims.

It was pointed out by Mr Aly, that on a Facebook page, [Mr Moder] had mentioned that the perpetrator had ‘allegedly’ committed the crimes. This posting is factual.

[Mr Moder] answered the questions in relation to this line of questioning, stressing that the film would be a balanced, in depth study of the perpetrator (Martin Bryant) the people and event based on the facts as far as they could be determined.

[Mr Moder] also repeatedly stressed that [he] would be undertaking the film with the utmost respect for the victims, their families and relatives. [He] was pressed on what the conspiracy theories were and replied that the film would only deal with factual anomalies, discrepancies and legal improprieties that were a matter of public record.

[Mr Moder] outlined a number of these and debated the legality and legitimacy of these with Mr Waleed (principally)

The interview went on for approximately ten minutes and [Mr Moder] steered the conversation away from the conspiracy angle as that is not the primary focus of the film. but [the panel] was pushing the conspiracy angle and were attempting to portray [Mr Moder] as a ‘conspiracy nut. At one point, [he] clearly stated unequivocally, that if they (the panel) were trying to portray this film as a conspiracy focused film that it was not.

On multiple occasion, [Mr Moder] had to forcefully direct subsequent questioning away from this line towards more relevant and pre discussed topics. [He] was constantly interrupted, talked over and forced to defend [his] intention to dramatise the film, at one point, asking the panel why drama and factual depiction of an event are anathema to each other, as the panel questioned the incompatibility of the two.

Mr Price, particularly was aggressive and dictatorial in his approach, stating his experiences covering the tragedy and my right to make a film about the event and his belief that there was no reason to question any aspects of the case, nor that there was any question as to the guilt of Martin Bryant.

[Mr Moder] defended [himself] against what can only be described as a sustained, verbal attack and felt at the interview’s cessation, that [he] had adequately, assertively and effectively, outlined my stance, justified [his position and covered all bases in a fair, reasonable and balanced fashion, despite the biased nature of the questioning.


The interview ceased at this point.

[…]

When I viewed the final interview, I discovered that approximately 80% of what was said and been cut out, leaving only a few minutes of the conspiracy focused dialogue, and that this was radically rearranged, both contextually and chronologically.

An interview of approximately ten minutes, was cut to virtual irrelevance and used to portray [Mr Moder] in an unfair, heavily biased and inaccurate light. Subsequent press and social media comment follow up has now taken this on face value and totally misrepresented [his] intentions, [his] viewpoint and prior press about the balanced nature of the film.

I will not accept that this editing was undertaken for time restraints. It was an obvious and calculated process of misrepresentation, censorship, heavy bias, hidden agenda and in my opinion, personal character assassination.

According to the Television Industry Code of Practice, this equates to a breach of the Broadcasting Services Act, particularly in relation to fairness and balance.

If viewed in the context of the original, unedited recording, the drastic, reconstructive nature of the editing is further supporting evidence of this breach.

Complaint to the ACMA dated 26 June 2016:

Gross inaccuracy and misrepresentation of interviewee

An interview was conducted under false pretenses and was drastically cut and rearranged to omit accurate information, misrepresent the interviewee and the subject matter of the interview.

[…]


Attachment C

Licensee’s response and submissions

Licensee response to the complainant dated 2 June 2016:

I write in relation to your complaint regarding The Project broadcast on 25 April 2016. We regret that you are dissatisfied with the presentation of the interview broadcast.

As you are aware, the material broadcast on commercial free-to-air television is regulated by the Commercial Television Industry Code of Practice (the Code). The Code has been registered with the Australian Communications and Media Authority and has been formulated after extensive consultation with government advisory bodies, community interest groups and the public generally.

The Code includes specific requirements for news and current affairs programs covering, amongst other things, that factual material must be presented accurately and viewpoints included in the program are not misrepresented. This applies to material facts and material misrepresentations of viewpoints only.

The Code also requires news programs to be presented fairly and impartially. Current affairs programs, such as The Project, are not subject to this requirement, nor are they required to present all viewpoints within a report. Current affairs programs may take a particular stance on stories.

While we appreciate that you are dissatisfied with [Mr Moder’s] interview, upon review we consider the program complied with the Code and [his] viewpoint was not misrepresented.

As you must appreciate, it is not possible to broadcast the entire interview of over fourteen minutes in duration due to time constraints. Over three minutes of the interview was broadcast which is a substantial amount for the program and we consider the material was a fair representation of [Mr Moder’s] viewpoint and the interview as a whole.

You allege The Project ambushed [Mr Moder] on the topic of conspiracy theories and misrepresented [him]. However, in response to the opening question, ‘Can you tell the story of Port Arthur fairly and accurately without the cooperation of the survivors?’, [Mr Moder] responded by saying ‘…there is so much misinformation, so much controversy, conspiracy and spurious agenda that it was very hard to separate the wheat from the chaff.’ [Mr Moder’s] response naturally took the interview in this direction which became the focus in the interview.

Although the interview was robust at times, we consider that [Mr Moder was] provided the opportunity to express [his] views, as were the hosts. The interview broadcast discussed the merits of the ‘discrepancies’ that [he] noted. The interview concluded with [Mr Moder] stating, ‘I just think that my intention is to hold the victims and their families and the survivors in the utmost respect.’ This statement is representative of [his] concern for the victims, survivors and families expressed during the interview.

The Code does not require The Project to present all material which it obtains (that is, the entire interview). The overriding requirement is that the material broadcast must represent viewpoints fairly. A program may omit material, but must not materially misrepresent viewpoints in doing so. We do not consider the content broadcast was unfairly selected from the interview or unfairly juxtaposed and out of context.


We do appreciate your concerns and the matter has been reviewed and discussed with The Project producers. To the extent your complaint falls within the scope of the Code, if you are not satisfied with our response, you may refer the matter to the Australian Communications and Media Authority.

Licensee submission to the ACMA dated 28 July 2016:

[…]

The program

The Project is a current affairs program that features a mix of current affairs and entertainment. The format and tone of the program is conversational, opinion-based, and at times, humorous. It usually features a variety of guests, ranging from journalists to comedians, who provide a broad range of views and opinions.

The program broadcast on 25 April 2016 included an interview with Mr Paul Moder, the writer/producer of a forthcoming film about the Port Arthur massacre.

Issue: Representation of material viewpoints

Relevant Code provision

3. News and Current Affairs

[…]

3.3 Accuracy and fairness

3.3.1 In broadcasting a news or Current Affairs Program, a Licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

3.3.2 Clause 3.3.1 applies to material facts and material misrepresentations ofviewpoints only.

TEN submits the interview broadcast did not misrepresent Mr Moder’s material viewpoint.

As the ACMA stated in its paper, Investigation concepts—Fairness, impartiality andviewpoints, April 2015:

“The overriding requirement is that the program in its entirety must representviewpoints fairly. Circumstances including misleading editing or inappropriatejuxtaposition of material in the representation of a viewpoint can contribute to a representation being rendered unfair.”

The ACMA has also previously expressed that a licensee is not required to include allviewpoints or to broadcast all material it obtains and licensees can omit or edit material so long as included viewpoints are not misrepresented.

The Project recorded an interview of over fourteen minutes duration with Mr Moder. As previously expressed to the complainant, it is not possible to broadcast the entire interview in the program due to time constraints. Over three minutes of interview footage was edited and broadcast so as to represent Mr Moder’s viewpoint fairly.


The interview was preceded by a segment of 01:30 minutes which did not refer to “conspiracy theories.” Rather, this segment questioned the appropriateness of the film proceeding despite not having the approval of victims' families or survivors.The interview commenced with the question, “Paul, can you tell the story of Port Arthur fairly and accurately without the cooperation of the survivors?”, Mr Moder responded by stating, “Well, it's very, very difficult, I've written a few scripts in my time, but I have to say writing this was the most torturous thing I've ever done and principally because there is so much misinformation, so much controversy, conspiracy and spurious agenda that it was very hard to separate the wheat from the chaff...”

The reference to misinformation, controversy, conspiracy and spurious agenda naturally lead to follow-up questions exploring these matters which became the focus on the interview. The broadcast reflected this focus, featuring Mr Moder expressing his views on alleged “discrepancies” in the trial of Martin Bryant and distinguishing such points from “conspiracies”.

An ordinary reasonable viewer would have understood the interview broadcast to be primarily concerned with this line of questioning and Mr Moder’s views were expressed in response to the questions and opinions posed to him, particularly following his answer to the first question.

As [the complainant] acknowledged in [their] letter of complaint, “It was pointed out by Mr Aly, that on a Facebook page, [Mr Moder] had mentioned that the perpetrator had ‘allegedly’ committed the crimes. This posting is factual.” The film’s official Facebook page refers to ‘controversy’, ‘conspiracy’, ‘conjecture’ and ‘contradictory facts’ which also made this a legitimate line of questioning.

The interview broadcast concluded with Mr Moder stating, “I just think that my intention is to hold the victims and their families and the survivors in the utmost respect.” This statement is representative of Mr Moder’s concern for the victims, survivors and families expressed during the interview.

TEN submits there was no misleading editing or inappropriate juxtaposition of material in the representation of Mr Moder’s viewpoint. The material broadcast did not provided an incorrect impression or emphasis of his views in response to the questions and opinions expressed by the hosts.

Mr Moder has acknowledged that the proposed film is controversial in nature and while the interview was robust at times, we submit that Mr Moder’s material viewpoint was not misrepresented.

Hence, TEN contends the broadcast complied with all relevant provisions of the Codeincluding Clause 3.3.1.


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