Investigation Report No. 2641
File No. / ACMA2011/1410Licensee / Victorian Radio Network Pty Ltd
Station / 3AK (SEN)
Type of Service / Commercial radio
Name of Program / Harf Time
Date of Broadcast / 9/4/10
Relevant Code / Commercial Radio Australia Codes of Practice 2010
Clause 1.1(e)
Date Finalised / 19 September 2011
Decision / No breach of clause 1.1(e) (serious contempt or severe ridicule on grounds of disability)
The complaint
The complaint is that Victorian Radio Network Pty Ltd, the licensee of 3AK, during the program Harf Time on 9 April 2010, broadcast an offensive reference to people living with a disability.
The complaint has been examined in relation to clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2010.
Matters not pursued
The complainant also alleged that a presenter on the program had denigrated people living in a particular Melbourne suburb, which will be referred to in this report as Suburb X North, on the basis of where they live. Thisis not a matter covered by the code, as neither geographical locality, nor the socio-economic characteristics which may be associated with a particular locality, constitutes a ground specified in clause 1.1(e). Accordingly, this aspect of the complaint has not been investigated.
The program
According to the station website, Harf Time is the station’s afternoon program and on Fridays, there is a regular segment (‘Casual Fridays’) with a guest presenter who ‘brings her acerbic social commentary’ to the segment.[1]
On 9 April 2010, the following exchange was broadcast between the guest presenter and the two male presenters:
WOMAN PRESENTER: There’s a [Suburb X] copper who’s facing Ethical Standards Department, which is very serious when you’re a police officer, about as serious as it gets, so, you know. And guess what his crime is?
MALE PRESENTER: What is it?
WOMAN PRESENTER: He sent this email and – with – technology age – sometimes the email goes to the wrong person.
MALE PRESENTER: Yes.
WOMAN PRESENTER: And he sent this email and this is what the email contained that went to the wrong person. This is to one of his mates. ‘Stop parking in [Restaurant Y][2],’ the email reads. ‘You’re taking up the parking space of some fat smelly lower-class f-wit from [Suburb X]North who needs to survive on 20,000 calories a day to maintain the disability support payments from Centrelink. So stop it.’ Now, it’s judgemental, but if you’ve been to [Suburb X] North, you can see there is a lot of truth in that email –
MALE PRESENTER: [Yells incoherently]
WOMAN PRESENTER: -- and why is this person now, you know, facing the prospect of losing their job, or facing a heavy sanction, for sending this email? This is outrageous. He should be applauded for his judgement. And for his frankness, I say. So I – I can’t believe our police force go through this sort of scrutiny, where that email gets you, you know, gets you before the Ethical Standards Tribunal.
MALE PRESENTER: Right.
WOMAN PRESENTER: Why are you looking at me so weird?
MALE PRESENTER: Well, I would’ve thought it’s fairly straightforward.
WOMAN PRESENTER: Well, you think what? Do you think that’s grounds for facing Ethical Standards?
MALE PRESENTER: What are the grounds for facing Ethical Standards?
WOMAN PRESENTER: Well, if you steal, if you bash someone, if you racially – I don’t know, if you’re racist, or sexist, or, you know, if there’s something that you’ve actually done that’s wrong, or criminal; not sending a bloody email which just expresses some opinions. In a comical fashion. Which are, incidentally, correct.
MALE PRESENTER: Can you just read through the email again for me?
RITA: OK. This is to his mate: ‘Stop parking in [Restaurant Y].’
MALE PRESENTER: Who’s he talking to?
RITA: He sent this email to someone who works at the – umm – at the Prosecution Office, but it went to someone else at the Prosecution Office.
MALE PRESENTER: Right. Stop parking at [Restaurant Y]. OK.
WOMAN PRESENTER: So he’s seen his car at [Restaurant Y]: ‘Stop parking at [Restaurant Y]. You’re taking up the parking space of some smelly, lower-class f-wit from [Suburb X]North who needs to survive on 20,000 calories a day to maintain a disability support pension.’ So I think that is just – umm – comical.
MALE PRESENTER: Fairly judgemental from this man?
WOMAN PRESENTER: What? Police aren’t allowed to be judgemental? They’re not allowed to hold opinions? They’re not allowed to send comical emails to their mates?
MALE PRESENTER: Do you know it’s comical?
WOMAN PRESENTER: I think it’s comical.
MALE PRESENTER: You think it’s comical.
OTHER MALE PRESENTER: Aha! Therein lies the issue.
The program then took a call from Caller Frank:
CALLER FRANK: How do you make comments like that?
WOMAN PRESENTER: What do you mean, how do I make comments like that?
CALLER FRANK: You’re a disgrace!
WOMAN PRESENTER: Why am I a disgrace? I’m reading out the email that was sent, and to me it’s quite comical. And factual. Because I’ve driven through [SuburbX] and he couldn’t be more right.
CALLER FRANK: You’re condoning, you’re a disgrace, you’re an absolute pig.
RITA: Oh, so now it’s OK to call me a pig, there’s nothing wrong with that, but for him to send this email, he should be brought up before the Ethical Standards. Explain that, Frank. Aren’t you a huge hypocrite?
There was no response from Frank, and one of the male presenters said that he had hung up. The woman presenter said, ‘Oh, Frank, you are a coward!’ and went on:
WOMAN PRESENTER: Do you know who I think Frank is? I reckon Frank is one of the fat, smelly, lower-class people surviving on 20,000 calories a day.
The program then took two calls on different topics, after which a call from Caller Francis was put to air:
MALE PRESENTER: Francis is in [Suburb X] North. Good afternoon, Francis.
CALLER FRANCIS: Gah! Good afternoon. How we doing?
MALE PRESENTER: Doing well, pal.
OTHER MALE PRESENTER: Very good, Francis.
CALLER FRANCIS: That little slim chickie beside you there –
MALE PRESENTER: Yes?
CALLER FRANCIS: She’s right on the money. Sometimes I need actually two parking spaces.
WOMAN PRESENTER: [Laughs]
CALLER FRANCIS: Because I gotta get the missus out of the car and we’ve got a little forklift for her. And we just sidle up next to the car and just lift her out there and straight into [Restaurant Y]. So I understand what they’re saying about that.
This was followed by discussion amongst the presenters, during which SMSes on the topic were read out:
WOMAN PRESENTER: It’s just – he’s just talking facts. I mean, people get so upset when people are factual. Because, you know, we’re so politically correct these days that if you actually say something that’s – that’s got a bit of truth to it and is a bit harsh –
MALE PRESENTER: I just think –
WOMAN PRESENTER: -- people get hysterical.
MALE PRESENTER: I just think it’s a bit harsh you actually speaking of everyone in [Suburb X] that way, [woman presenter’s name].
WOMAN PRESENTER: Not everybody. And we’re talking [Suburb X] North.
MALE PRESENTER: It’s a very general comment. I thought it was very general and I thought that was a slur on a lot of –
WOMAN PRESENTER: Well, that’s what generalisations are, [male presenter’s name]. That’s what generalisations are. That’s part of it.
MALE PRESENTER: Well –
WOMAN PRESENTER: That’s part of the ’umour.
MALE PRESENTER: ’Umour.
WOMAN PRESENTER: ’Umour.
MALE PRESENTER: Bloody hell.
OTHER MALE PRESENTER: A bit of love for you off the SMS.
WOMAN PRESENTER: The SMSes are agreeing with me, because they know that I’m right.
OTHER MALE PRESENTER: Would you shut up!
MALE PRESENTER: A lot of [Suburb X] haters out there.
OTHER MALE PRESENTER: ‘Put a border [indistinct] to keep them all out,’ says Mark from Eltham. ‘Go, [woman presenter’s name], take them on, in my mind you’re a legend.’
WOMAN PRESENTER: Go the [Suburb X] bypass! I’ll never have to drive through that hole again.
OTHER MALE PRESENTER: Would you shut up!
WOMAN PRESENTER: I can’t shut up.
OTHER MALE PRESENTER: I’m trying to support you here. And you keep chipping in. Then there’s John in Hadfield, who’s going to slap you: ‘This is like the time when [woman presenter’s name] said that every person living in the western suburbs that doesn’t live in Williamstown is scum. You are a disgrace, you are ignorant, and Frank is right.’
MALE PRESENTER: I’m happy with that.
OTHER MALE PRESENTER: How about the backing with the SMS here: ‘Bogans are fair game, they’re not a race or religion, just a disgusting subculture.’ Thank you, Rocco.
WOMAN PRESENTER: Onya, Rocco.
The program then moved on to other topics.
Ordinary reasonable listener
In assessing content against the code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable listener’.
Australian courts have considered an ‘ordinary, reasonable listener’ 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 would the ‘ordinary reasonable listener’ have understood this program 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 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.
Assessment
This investigation is based on submissions from the complainant and a copy of the broadcast obtained by the ACMA from an independent media company.[4] Other sources used have been identified where relevant.
Relevant code clause
Proscribed Matter
1.1A licensee must not broadcast a program which, in all of the circumstances:
[...]
(e) is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.
Interpretation
Code 1.1(e) … shall be interpreted according to the principles in case law that apply to the interpretation of corresponding legislation.
Complainant’s submissions
The complaint to the licensee relevantly included:
I was extremely disturbed, when I tuned in on Friday 9 April 2010, to hear the comments by one of the presenters on [Harf Time] … This presenter made completely inappropriate comments …
She applauded the sending of an email by a police officer which … made an offensive reference to people living with a disability. The sending of that email was condemned by the Commissioner of Victoria Police quite rightly …
An apparently elderly caller phoned in complaining about the tenor of the comments made and was treated with disdain by [the woman presenter].
This doesn’t reflect well on SEN and surely SEN doesn’t want to be known as a broadcaster that denigrates sections of the community …especially on the basis of suffering from a disability.
Finding
The licensee did not breach clause 1.1(e) of the code.
Reasons
Identification of the relevant reaction/s, focus and ground
Reaction/s: The complainant referred to denigration. On this basis, contempt is regarded as a relevant reaction. In addition, ridicule is regarded as a relevant reaction, given that the woman presenter referred to the police officer’s email as ‘comical’ and to her own comments as ‘’umour’.
Focus: The complainant referred to ‘people living with a disability’ and ‘sections of the community’. On this basis, the relevant focus is considered to be a ‘group of persons’ rather than a ‘person’. On the basis of the material broadcast, the relevant group is considered to be disability pensioners.
Ground: From the complaint and the broadcast, the relevant ground is disability.
The issue for investigation is therefore whether the program was, in all of the circumstances, likely to incite serious contempt for, or severe ridicule of, disability pensioners.
Likelihood of incitement
Material relevant to the complaint occurred in the police officer’s email which the guest presenter raised for discussion:
WOMAN PRESENTER: ‘Stop parking in [Restaurant Y],’ the email reads. ‘You’re taking up the parking space of some fat smelly lower-class f-wit from [Suburb X] North who needs to survive on 20,000 calories a day to maintain the disability support payments from Centrelink.’
The guest presenter read the email text out a second time, in response to a request from one of the male presenters, and this second reading also included material relevant to the complaint:
WOMAN PRESENTER:‘Stop parking at [Restaurant Y]. You’re taking up the parking space of some smelly, lower-class f-wit from [Suburb X]North who needs to survive on 20,000 calories a day to maintain a disability support pension.’
Accordingly, material in the broadcast associated being a disability pensioner with a range of characteristics which were presented as negative, including overweight (‘fat’), poor grooming (‘smelly’), disadvantaged socio-economic status (‘lower-class’), stupidity (‘f-wit’) and poor eating habits (‘20,000 calories a day’). Further, this specific material was praised by a presenter of the program:
WOMAN PRESENTER: [The police officer] should be applauded for his judgment. And for his frankness, I say.
However, clause 1.1(e) sets a high threshold for the likely effect of prohibited material, in that the program must be likely to incite serious contempt or severe ridicule. It is not sufficient that the program be likely to induce a moderately negative reaction. In this regard, it is necessary to consider the relevant program, and its surrounding context, as a whole.
Having considered the program in this way, the delegate is of the view that the impugned material lacked the seriousness of contempt, or severity of ridicule, necessary to constitute a breach of clause 1.1(e). The delegate notes that the impugned material occurred in a reference to patrons of Restaurant Y in Suburb X North. The rest of the program focused on residents of Suburb X North more generally, a direction in the discussion that was facilitated by the guest presenter’s statements ‘If you’ve been to [Suburb X] North, you can see there is a lot of truth in that email’ and ‘I’ve driven through [Suburb X] and he couldn’t be more right’. In this subsequent discussion, there were no further references to people with a disability or disability pensioners. For example, in suggesting that Caller Frank belonged to the group the police officer’s email referred to, the guest presenter repeated several of the same characteristics but did not include disability:
WOMAN PRESENTER: I reckon Frank is one of the fat, smelly, lower-class people surviving on 20,000 calories a day.
In addition, callers (both in favour of, and against, the guest presenter’s view) and one of the male presenters made statements that demonstrated that they viewed the focus of discussion as being some entity other than people with a disability or disability pensioners. The male presenter sawthe focus of discussion as being ‘everyone in [Suburb X]’ and SMSer John in Hadfield also saw the issue as geographically-based (‘This is like the time when [woman presenter’s name] said that every person living in the western suburbs that doesn’t live in Williamstown is scum’). SMSer Rocco saw the focus of discussion as being ‘bogans’, defined in the Macquarie Dictionary (5th edition) as people ‘generally from an outer suburb of a city or town and from a lower socio-economic background, viewed as uncultured’ – ie a group unrelated to disability. An ordinary, reasonable listener was likely to have shared these views of the focus of discussion.
Accordingly, the references to people with disability and/or disability pensioners in the program were not intense or sustained enough to incite the relevant reactions.
ACMA Investigation Report 2641– Harf Time broadcast by 3AK on 9/4/101
[1] accessed by the ACMA on 3 August 2011.
[2] The broadcast used the name of a well-known chain of fast food restaurants.
[3]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167.
[4]The licensee advised, on 26 July 2011, that it no longer held a copy of the broadcast.