Investigation Report No. BI-49

Investigation Report No. BI-49

Summary
File no. / ACMA – BI-49
Broadcaster / Australian Broadcasting Corporation
Station / Radio National
Type of service / National broadcasting service (radio)
Name of program / AM
Date of broadcast / 27 January 2015
Relevant legislation/ standard/code / ABC Code of Practice 2011 (revised in 2014)
Standard 2.1 [accuracy]
Standard 3.1 [corrections and clarifications]
Standard 5.3 [opportunity to respond]
Date finalised / 25 September 2015
Decision / No breach of standard 2.1 [accuracy]
No breach of standard 3.1 [corrections and clarifications]
No breach of standard 5.3 [opportunity to respond]

Background

In August 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment onthe AMprogramabout private vocational education and training providers (VET providers). It wasbroadcaston ABC Radio National by the Australian Broadcasting Corporation (the ABC)on 27 January2015.

A complaint was received, allegingthat:

the segmentrelied on incorrect statistics concerning the number of students that have enrolled and graduated from Evocca College (Evocca)

the ABC failed tobroadcast a correction

the ABC did not provide Evocca with a fair opportunity to respond to the issues raised in the lead-up to the broadcast.

The segment has been assessed in accordance with standards 2.1 [accuracy], 3.1 [corrections and clarifications] and 5.3 [opportunity to respond] of the ABC Code of Practice 2011 (revised in 2014) (the Code).

The program

AMis a 30 minute current affairs program broadcast Monday to Saturday from 8.00 am on ABC local radio and 7.10 am on Radio National. The program is described on the ABC websiteas:

AM is ABC Radio’s flagship current affairs program. For 40 years AM has been setting the day’s news agenda with concise reports and analysis from journalists around Australia and the world.[1]

The segment reported on ongoing concerns aboutVET providers, noting that the use of the VET FEE – HELPscheme (a government student loan scheme) by this industry prompted a Senate Inquiry. Itfocused on Evoccaas one of the ‘biggest players in the market’, and referred tostatistics concerning the number of students whohave enrolled and graduated from Evocca. It also included an interview with a former studentofthat college.

A transcript of the segmentis at Attachment A.

Submissions

The complainant’s submissions are at Attachment Band theABC’s submissions are at Attachment C.

Assessment

This investigation is based on submissions from the complainant and the ABC, as well as a copy of the broadcast. Other relevant sources used have been identified in the report.

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

Australian courts have considered an ‘ordinary reasonable’ viewer(or 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.[2]

In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

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

Issue 1: Accuracy

Relevant standard

2. Accuracy

2.1Make reasonable efforts to ensure that material facts are accurate and presented in context.

The Code requires that standards are interpreted and applied in accordance with relevant Principles, including:

The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

• the type, subject and nature of the content;
• the likely audience expectations of the content;
• the likely impact of reliance by the audience on the accuracy of the content; and
• the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can.

[…]

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts.

[…]

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example, by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

Finding

The ABCdid not breach standard 2.1 of the Code.

Reasons

The complaint is that the segment ‘contained a number of inaccuracies and misleading statements, most notably around statistics regarding the number of enrolments and graduates that Evocca had in a specific year’.

The relevant statements (in bold) are:

Michael Brissenden (presenter):Government data shows one of the biggest players in the training market, Evocca College, had only 19 students graduate in a single year - figures the company rejects.

Alison Branley (reporter):[…]Almost 14,000 signed up for its courses in 2012. But data released on the MySkills website shows just 19 graduated. […]

In assessing compliance withstandard 2.1 of the Code, the ACMA considers the following issues:

Was the particular content complained about factual in character?

Did it convey a material fact or facts in the context of the relevant segment?

If so, were those facts accurate?

If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the material fact was accurate and presented in context?

Was the particular content complained about factual in character?

The considerations theACMA generally uses in assessing whether broadcast material is factual in character are set out at Attachment D.

The presenter and reporter cited a specific figure for the number of students who have graduated (19) in a single year (2012).The ACMA considers that thismaterial is factual in character, as it is specific, unequivocal and capable of independent verification.

Did it convey a material fact or facts in the context of the relevant segment?

The broadcast focused on concerns about the practices of some private vocational training colleges and fears that many students are dropping out. The number of students who have graduated in a single year was a ‘material’ fact in the context of the relevant segment.

Were the material facts accurate?

The figures were sourced from publicly available data published on the MySkills website,aimed at enabling prospective students to search for, and compare, VET courses and training providers. The figures cited are no longer available on the MySkills website, however, an extract from the site has been reproduced on the ABC website.[3]

The complainant has submitted thatthe data on the MySkills website was inaccurate and the ABC proceeded to use the graduation figure despite:

a disclaimer on the MySkills website indicatingitsfigures wereinaccurate

Evocca advising the ABC prior to the broadcast that the figures were inaccurate.

The basis of the complaint is that the MySkills figure of 19 was quoted incorrectly as it represented only government funded graduations and not total graduation figures.The complainant also submitted that the graduation figure of 19 was presented out of context, as it was used against a total 2013 enrolment figure.

According to the complainant:

MySkills currently receivesits datafrom the National Centrefor Vocational EducationResearch(NCVER). Priorto 2015, Registered Training Organisations suchas Evocca Collegewerenotrequired to reportonthenumber of qualifications to the NCVER,unlessitwasfor informationpertainingtoqualificationsthatweretotally government funded.

In its response to the complainant, the ABC submitted:

We are satisfied this is a statement of fact, accurately identifying the publicly available data published on the government’s MySkills website, then making it clear that data is contested by Evocca.

[…] the reporter relied on MySkills as a reliable source, given it was established by the government to improve transparency in the vocational training sector, and notes the disclaimer on its website did not confirm the figures were inaccurate.

ABC News advise that Evocca has still made no attempt to provide its complete and specific graduation figures, despite much public discussion on them in the context of the use of VET-FEE-HELP. Given the information provided to AM by Evocca about its graduation rates was not conclusive, we are satisfied that it was relevant and appropriate for the reporting to note the full context of both the published MySkills data - that was publicly available to any person looking for information about the company’s graduation rates - and the fact that Evocca disputes that data.

The MySkills webpage (as reproduced on the ABC website) included the following information:

Statistics on this page relate to all vocational training reported by this provider in 2013. Please note that these statistics only represent that activity reported to NCVER and may under-represent the provider’s total training activity portfolio.

A subsequent report published in the Australianon 29 January 2015 (two days after the broadcast) stated:

[…] Evocca said the real figures for 2012 were 2772 enrolments, of whom 661 had graduated so far, with more scheduled to complete this year.

Sources confirmed that the data in MySkills was incomplete. Assistant Training Minister Simon Birmingham said the government was addressing “data deficiencies” through the application of a unique student identifier and other reforms.[4]

In an article from Campus Review dated 1 February 2015 (five days after the broadcast) an ABC reporter acknowledged that the graduation figure of 19 was incorrect but said that it was the only figure available from the government:

ABC reporter Josie Taylor said the broadcaster stood by its reporting on Evocca and its graduation numbers.

Taylor said that whilst the figure of 19 graduates was incorrect, it was the only figure publicly available from the government.In addition, she said the ABC had qualified the use of the figures it reported and included a response from Evocca that cast doubt over accuracy of the data available via the MySkills site.[5]

While there appears to be some discrepancy with the data that was published on the MySkills website, the ABC reported on the number of students who graduated in 2012 as presented on the MySkills website page and conveyed that this figure was contested by Evocca.While the segment did not refer to the disclaimer, published on the website, the broadcast included Evocca’s position on the matter—that the MySkills figures were wrong and ‘many hundreds of students’ graduated in 2012. In the context of the entire segment, the ordinary reasonable listener would have understood that the figures provided on the MySkills website were in dispute.

The ACMA considers that, based on the information provided on the MySkills website at the time of broadcast, it was reasonable for the reporter to adopt the interpretation that the data related to ‘all vocational training’, and not just a subset of qualifications that were fully funded by the government. It is noted thatin correspondence to the ABC in the lead up to this broadcast, Evocca did not clarify this information. The complainant disputed the graduation figure, but did not provide the correct figure.

It was also reasonable for the reporter to adopt the interpretation that other data in the table, including the number of students who had enrolled in a single year, concerned 2012 statistics that were reported in 2013.

If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the material fact was accurate and presented in context?

Ms Taylor’s statement in the above Campus Review article is not an admission that the ABC knew that the graduation figure was incorrect at the time of broadcast. The Code requirement is not for absolute accuracy but that reasonable efforts are made to ensure accuracy at the time of broadcast.

To the extent thatthe ABC relied on data that was incomplete or inaccurate, the ACMA is satisfied that these were the only government figures available at the time of broadcast and, in using them,the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.

The ACMA accepts the ABC’s submission that given the information about graduation numbers provided by Evocca to the ABC was not conclusive, it was relevant to quote the MySkills data and to note that it was disputed by Evocca.It was appropriate to consider the federal government’s MySkills website as a reliable source of information, despite the disclaimer, which was framed in general terms.

As the segment occurred in the broader context of a Senate Inquiry into the operation, regulation and funding of VET providers (which commenced in November 2014), it was also appropriate for the segment to refer to the data on the government’s MySkills website.[6]

Further, the ABC sought Evocca’s comments on these figures before the broadcast and included in the segment its broad response that the data from the MySkills website was not accurate and that ‘many hundreds of students graduated in 2012’.

Accordingly, the ABC did not breach standard 2.1 of the Code.

Issue 2: Corrections and clarifications

Relevant standard

3. Corrections and clarifications

3.1Acknowledge and correct or clarify, in an appropriate manner as soon as reasonably practicable:
a. significant material errors that are readily apparent or have been demonstrated; or
b. information that is likely to significantly and materially mislead.

In the case of corrections and clarifications, the relevant Principles provide:

A commitment to accuracy includes a willingness to correct errors and clarify ambiguous or otherwise misleading information. Swift correction can reduce harmful reliance on inaccurate information, especially given content can be quickly, widely and permanently disseminated. Corrections and clarifications can contribute to achieving fairness and impartiality.

Finding

The ABCdid not breach standard 3.1 of the Code.

Reasons

The complaint is thatthe AM segment‘was notsubsequently qualified or corrected in any way. No correction or explanation was made on any later AM program in the days that followed’.

In applying standard 3.1 of the Code, the ACMA considers the following issues:

Was there a significant material error that was readily apparent or had been demonstrated?

Was the information likely to significantly and materially mislead?

If the answer to either question is yes, then the ACMA considers:

Was a correction or clarification made in an appropriate manner as soon as reasonably practicable?

Was there a significant material error or was the information likely to significantly and materially mislead?

As indicated above, the segment accurately reported on the data published on the MySkills website. It was also clearly established in the segment that Evocca rejected the graduation figure of 19 and that, according to Evocca,‘many hundreds of students’ graduated in 2012.

The ordinary reasonable listener would have understood that the statistics provided on the MySkills website were disputed and, accordingly, any reliance on inaccurate or incomplete data in the segment would not have significantly and materially misled the listener.

Was a correction or clarification made in an appropriate manner as soon as reasonably practicable?

Whether or not there was a significant material error, it is noted that the ABC published a more detailed explanation from Evocca in a subsequent report that evening on ABC News online.[7]It is understood that this was based on astatement issued by Evoccafollowing the AM broadcast, whichfurther clarified Evocca’s position on the figures provided on the MySkills website.

The complainant has submitted that:

[…] the ABC NEWS Online publication was made to a different audience – or the very least, could not be guaranteed to reach the same audience as the AM program, as was inadequate to correct the misleading of the AM audience.

In previous investigations concerning the ABC’s compliance with standard 3.1, the ACMA has consideredthatonline corrections and clarificationswereappropriate.[8]

Accordingly, the ABC did not breach standard 3.1 of the Code.

Issue 3: Opportunity to respond

Relevant standard

5.Fair and honest dealing

Opportunity to respond

5.3Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond.

In the case of fair and honest dealing, the relevant Principles provide:

Fair and honest dealing is essential to maintaining trust with audiences and with those who participate in or are otherwise directly affected by ABC content. […]

Finding

The ABCdid not breach standard 5.3 of the Code.

Reasons

The complaint is that the ‘ABC left any approach for comment in relation to a story that went on air on the morning of Tuesday 27 January 2015 until the Australia day weekend had commenced’ and ‘the out of hours, last minute, nature was unfair’.

In applying standard 5.3, the ACMA considers:

Was an allegation made about a person or organisation?

Were reasonable efforts made in the circumstances to provide a fair opportunity for that person or organisation to respond?

The ABC has published a Guidance Note dealing specifically with the interpretation of standard 5.3 of the Code (the Guidance Note).[9]

The focus of the Guidance Note is on the ‘provision of a fair opportunity to respond prior to disclosure of allegations’ and refers to material that will attract the operation of standard 5.3, namely allegations referring to ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial’.

Was an allegation made about a person or organisation?

The complainant’s concernis that the segment quoted inaccurate figures sourced from the MySkills website, which suggestedlow graduating rates (19 for 2012) in comparison to a high yearly enrolment number (about 14,000).