Investigation Report Nos2487 & 2494

File No. / ACMA2010/1802 and ACMA2010/1945
Licensee / Channel Seven Sydney Pty Ltd
Station / ATN
Type of Service / Commercial Television
Name of Program / Weekend Sunrise
Date of Broadcast / 11 July 2010
Relevant Code / Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 24 December 2010
Decision / No breach of clause1.9.6 [proscribed material]

The complaints

The Australian Communications and Media Authority (the ACMA) received twoseparate complaints[1]concerningthe programWeekend Sunrise broadcast on 11 July 2010 by Channel Seven Sydney Pty Ltd, the licensee of ATN (the licensee).

The complainantswere that comments made during a discussion about children withspecial needs in the Australian education system were derogatory and demeaning.

The complainantswere not satisfied with the response of the licensee and referred the matter to the ACMA for investigation.[2]

The complaints have been investigated against clause 1.9.6 [proscribed matter] of the Commercial Television Industry Code of Practice 2010 (the Code).

The program

Weekend Sunrise is a breakfast program broadcast nationally at 7:00am on Saturdays and Sundays by the Seven Network. The programis hosted by Andrew O’Keefe and Samantha Armytage and features guest panellists. On11 July 2010, the hostsand panellists,Prue MacSween and Paul Murray, discussed a lawsuit brought by a teacher against the government for damageto her larynx allegedly sustained from shouting at her students. The dialogue complained of relevantly included:

[...]

Andrew O’Keefe:[The teacher] is claiming she damaged her larynx screaming at Kids. Some of the children in her class had special needs and she claims she wasn’t given proper assistance. The 39 year old woman is now seeking more than $400,000 – did she have training as an opera singer? Anyway, does that sound reasonable? [turns toMs MacSween]

Hang on [turns away from Ms MacSween and turns toMr Murray].

I’ll start with Paul. I never know what Prue is going to say on these things.

Prue MacSween:Are you saying that I’m unreasonable?

Paul Murray:Nine times out of ten, these things are ridiculous. I don’t know how we got to $400,000 but bloody oath – why not? Why is it the assumption that, and too many people have this assumption, when you drop your kids off to school that somehow the teacher is going to be like a mechanic, fix it, just do it on my behalf. It’s a tough gig. If she’s not getting the help, if she went and asked somebody and they didn’t do it, well, I’m sorry kiddies, she gets the cash.

Andrew O’Keefe: It would be cheaper to buy her a megaphone.

Paul Murray:Well, I don’t mind. $400,000 is obviously a stupid number but if she goes to her superiors and says, “My voice, what do I do?”. And they say, “I don’t know, yell louder”.

PrueMacSween: There’s a number of issues. I mean the woman is put into this room with all these special needs kids – so many of them. She should have, for a start, it’s a reflection of the system. These special needs kids should not be in that class with kids that don’t have special needs, for a start. We need to throw more money at the education system, make sure that these kids are properly administered to because they almost need one-on-one help

Paul Murray:I disagree with you.

PrueMacSween:I know all you intelligentsia.

Paul Murray:They should make sure there are two teachers in the room to make sure there’s one that can cover the gap.

PrueMacSween:No, I’m sorry, I don’t agree with you.

Paul Murray:It’s about socialising.

PrueMacSween:What about the kids who are quite normal, adequately able to understand, they’re being held back. It’s like girls going into school rooms with bloody boys - boys are so retarded, they keep them back. I honestly think we need to make sure we have these special needs kids put somewhere where they are properly trained and then slowly, once they are in the capacity to, then they are...

Andrew O’Keefe:That’s next week’s topic. We look forward to getting your views on that.

[...]

Assessment

The assessment is based on:

a DVD recording of Weekend Sunrise broadcast on 11 July 2010, provided by the licensee;

the complainant’s submissions;

the licensee’s submission; and

publicly available information, the source of which is identified where relevant.

Issue: Proscribed matter

Relevant clause of the Code

Clause 1.9.6 of the Code relevantly provides:

Proscribed Material

1.9A licensee may not broadcast a program [...] which is likely, in all the circumstances, to:

[...]

1.9.6provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of [...] disability.

Interpretation of clause 1.9.6 of the Code

The ACMA adopts the general approach set out below in applying clause 1.9.6 of the Code.

‘Ordinary, reasonable viewer’

In assessing the relevant clause under the Code, the ACMA has considered what the ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. 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.[3]

‘Likely, in all the circumstances’

Use of the words, ‘likely in all the circumstances’ imposes an objective test[4] and implies a real and not remote possibility; something which is probable.[5]

‘Intense dislike, serious contempt and severe ridicule’

As the Code does not include definitions of the terms used in clause 1.9.6 of the Code, they have been given their ordinary English language meanings. The Macquarie Dictionary (5th edition) includes the following definitions:

provokeverb2. to stir up, arouse or call forth; 3. to incite or stimulate.

perpetuateverb1. to make perpetual; preserve from oblivion.

intense adj1. existing or occurring in a high or extreme degree.

dislikeverb1. not to like; regard with displeasure or aversion.

seriousadj5. weighty or important.

6. giving cause for apprehension; critical.

contemptnoun1. the act of scorning or despising.

2. the feeling with which one regards anything considered mean, vile or worthless.

severe adj1. harsh, harshly extreme.

ridiculenoun1. words or actions intended to excite contemptuous laughter at a person or thing, derision.

‘On the grounds of’

The phrase ‘on the grounds of’ requires that there be an identifiable causal link between the actions complained ofand at least one of the prohibited grounds, for example, disability.

The portrayal of people with disabilities

Section 1.2.3 of the Code refers to Advisory Notes which are designed to help and encourage industry employees to understand and be responsive to community concerns about, among other things, people with disabilities.

The Advisory Note of the Code, The Portrayal of People with Disabilities, provides the following guidelines to broadcasters:

General Approach

  1. Try to depict people with disabilities in ways which do not stereotype them, or stigmatise them as quite different from the community at large. Common stereotypes to avoid include:
  2. disability is a monumental tragedy;
  3. people with a disability are objects of pity or charity;

[...]

  1. Choose phrases and words that individuals with disabilities will not find demeaning.
  2. Present people with disabilities as individuals, not just as the sum of their disabilities, nor as necessarily representative of all people with disabilities.
  3. Recognise that disabilities affect people in different ways, depending on a host of different factors. Having a disability is for many an unavoidable fact of life, not something to be dramatised. [...]
  1. Don’t overlook the views of people with disabilities in stories dealing with general interest issues such as public transport, the environment and child care. [...]

The advisory note also includes a Guide to Appropriate Language, listing ‘words to watch’ and providing generally acceptable alternatives. This list suggests that ‘mentally retarded’ be replaced with ‘intellectually disabled’, ‘has an intellectual disability’.

The Advisory note operates alongside, and does not form part of, the Code.

Complainant’s submissions

Complainant 1 submitted that:

Ms Macsween [sic]has offended the special needs community which accounts for millions of Australians by asserting that special needs children should be separated from non-special needs children in the class room and therefore damaged the significant developments in helping special needs population get better education. She has also violated the NSW Anti-Discrimination Act and possibly the Human Rights Act. The male host is also guilty as he laughed at Prue’s comment about ‘retards’ which is also offensive and inappropriate.

[...]

[Ms MacSween’s] apology the following Sunday was insufficient and insincere. Despite [the] view that Seven believes the broadcast [has not] breached clause 1.9.6 of the “TV Code”, I disagree emphatically and am quite sure it has been breached.

[...]

Prue has caused immeasurable damage to the special needs movement. [...]

Complainant 2 listed their complaints as relating to:

Comments made by Prue MacSween during the All Stars segment on Weekend Sunrise.

Use of the word “retard” to describe children.

Derogatory and demeaning statements about children on national television.

Prue MacSween’s comments regarding children with special needs were completely offensive, inappropriate and archaic.

Her comment that special needs children need to be trained before entering mainstream classrooms.

We believe that these comments constitute vilification of children with special needs.

[...]

Licensee’s submission

The licensee provided the following response to the complainants:

We understand you are upset about certain comments made by Prue MacSween on Weekend Sunrise. The comments were made as part of a segment during which a range of issues were canvassed and opinions were expressed in good faith by the panellists. On this occasion the segment included a brief discussion of a case involving a teacher who has sued the government for $400,000 alleging she damaged her larynx from shouting at her students. The teacher claimed she did not receive proper assistance in a class that included some special needs children.

We have reviewed the episode of Weekend Sunrise in light of the concerns you have raised and acknowledge that Ms MacSween’s selection of words was an error of judgement. We believe her comments were typically opinionated, but not intended to be malicious or hurtful. Nevertheless, we appreciate in hindsight that the comments were not in good taste and not treated with the sensitivity such a topic requires.

As a result of the feedback we received about the segment, a subsequent follow-up discussion on the topic was broadcast on 24 July 2010. The discussion included several opinions of parents who have special needs children and we believe it provided a more balanced and serious look at the issue at hand.

While we concede that Ms MacSween’s comment were ill-advised, under strict interpretation of the Code we do not believe that the broadcast was in breach of clause 1.9.6 as it was not “likely in all the circumstance to provoke intense dislike, serious contempt or severe ridicule on the grounds of disability or gender”.

Nevertheless, we regret if Ms MacSween’s comments caused you any offence and to the extent that this has occurred we sincerely apologise. It was certainly not the intention of the Seven Network or Ms MacSween to offend or to encourage the perpetuation of stereotypes of any kind.

Finding

The licensee did not breach clause 1.9.6 of the Code for the broadcast of Weekend Sunriseon11 July 2010.

Reasons

Relevant person or group

On the basis of the complaint and the material broadcastthe delegate considers the relevant group to be children with special needs, and possibly boys in the education system.

Relevant ground

The complainantshave suggested that thecomments were offensive to the special needs community.

‘Special needs’is defined as ‘the special educational requirements of those with learning difficulties, emotional or behavioural problems, or physical disabilities’.[6]

The Macquarie Dictionary (5th Edition) defines ‘disability’ as:

disability1. lack of competent power, strength, or physical or mental ability; incapacity.
2.a particular physical or mental weakness or incapacity.

The nature and range of the requirements of the special needs group referred to in the program were not specified, but from the context of the discussion the delegate considers it likely that it included children with physical, intellectual or learning disabilities.

Taking into account the above definitions, it is accepted thatthe relevant ground for consideration is ‘disability’.

‘Ordinary reasonable viewer’

The complainants are that the segment ‘offended’and ‘vilified’children with special needs.In assessing the content, the delegate will first consider what the ordinary, reasonable viewer would have understood the segment to have conveyed.This requires consideration of the natural, ordinary meaning of the language used.

The ACMA also considers the broadcast’s context, tenor, tone, inferences that may be drawn, and in the case of the presentation of factual material, any relevant omissions. Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

The delegate considers that the ordinary reasonable viewer would have understood that the program was abouta lawsuit brought by a teacher against the government for damage to her larynx allegedly sustained from shouting at her students which included some who had special needs. This led to a debate among panellists about whether children with special needs should be separated in the Australian education system, and comments on the learning abilities of boys compared with girls.

In this context, Ms MacSween implied that all children with special needs have the same disabilities, and that they are unable to learn. In sayingthat special needs children in a class room would hold back ‘normal’ children, she suggested that they would be a detriment to others and inferred they should not be entitled to a mainstream education, regardless of their abilities. She also used the term ‘retarded’ to describe boys in classrooms, as part of her argument that separating special needs children will also result in improved academic performance.

‘Retarded’ is a term associated with the medical description of people with an Intelligence Quotient of less than 70; ‘mental retardation’ has been replaced as medical term by ‘intellectual disability’ in Australia and other parts of the world because it is regarded as pejorative. This is reflected in theCode Advisory Note, The Portrayal of People with Disabilities, referred to above. The term ‘retard’ is regarded as an insult and a term of abuse[7].

The delegate considers that Ms MacSween‘s opinion on the resources available to support staff and all children in the education system, including those who are slower to learn, was part of a valid debate on which different viewpoints may be held. However,her language stereotyped and stigmatised special needs children. Ms MacSween’s use of the word ‘retarded’, was clearly intended as an insult to boys in the education system. The earlier comments combined with this term resulted in the program being capable of conveying negative associations against people with a disability and was derogatory and demeaning of children with special needs.

On this basis the delegate finds that the Code Advisory Note, The Portrayal of People with Disabilitieswas not followed in the program. As the Advisory Note does not form part of the Code this finding does not mean the Code was breached.

‘Intense dislike, serious contempt and severe ridicule’

Clause 1.9.6 of the Code requires that the licensee not broadcast a program which is likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or a group of persons on specified grounds.However, the Code does not prohibit programs from taking a critical stance on subject matter being discussed.

The definitions set out above indicate that the Code contemplates a high threshold for the likely effect of the prohibited material. It is not sufficient that the broadcast be likely to provoke or perpetuate a moderately negative response. Rather the content must be capable of provoking or perpetuating intense dislike, serious contempt or severe ridicule.

In this case the discussion about special needs children took a critical stance on aspects of the education system. However, the use of the word ‘retarded’ within the context of a discussion about special needs children, and the other panellist’s laughter in response, was demeaning and ill-fitting. Thedelegate notes in this regard the licensee’s concession that ‘the selection of words was an error of judgment’.

The delegate acknowledges that Ms MacSween’s language would have offended some viewers. As noted above it resulted in negative associations against people with a disability. However, her statement of opinion that children with special needs should not be in mainstream education appeared to be based on a view that they require additional attention from teachers, rather than explicit or inflammatory expressions of dislike, contempt or ridicule on the basis of disability per se.

Given the high threshold set by the Code, the delegate is not satisfied that the broadcastwas capable of provoking or perpetuating intensedislike, seriouscontempt or severeridiculeof children with special needs on the grounds of their disability. In coming to this conclusion, the delegate noted the following, which served to dilute the tone of Ms MacSween’s comments:

Apart from the offensive reference to the word ‘retarded’ in relation to boys, Ms MacSween did not use words that were explicitly contemptuous of special needs children;

the viewers were not encouraged or invited to share Ms MacSween’s attitude that children with special needs should be separated in the Australian education system;

Ms MacSween’s commentswere not sustained throughout the program. In the context of the broadcast as a whole, the comments were not given undue prominence;