Investigation Report No. BI-257

Investigation report no. BI-257

Summary
Broadcaster / Australian Broadcasting Corporation
Station / ABC
Type of service / National broadcasting—television
Name of program / 7.30
Date of broadcast / 27 July 2016
Relevant code / ABC Code of Practice 2011 (revised in 2016)
Date finalised / 27 October 2016
Decision / No breachof Standard 2.1 [accuracy]
No breach of Standard 4.1 [due impartiality]
No breach of Standard 4.5 [unduly favour one perspective]

Background

In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section151of the Broadcasting Services Act 1992 (the BSA) into7.30 (the program).

Theprogram was broadcast on ABC by the Australian Broadcasting Corporation (ABC) on
27 July 2016 at 7.30pm.

The ACMA two received complaints allegingthe material was not presented accuratelyand lacked impartiality.

The ACMA hasinvestigatedthe ABC’scompliance with Standard 2.1, 4.1 and 4.5 of the ABC Code of Practice 2011 (revised in 2016) (the Code).

The program

7.30 is a current affairs program:

7.30 provides the best analysis of local, national and international events from an Australian perspective[1].

The programconcerned allegations of child sexual abuse against Cardinal George Pell.

A transcript of theprogramis at Attachment A.

Assessmentand submissions

When 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.

This investigation has taken into account the complaints (Attachment B) and submissions from the broadcaster (Attachment C). Other sources are identified as relevant.

Issue 1: Accuracy

Relevant Codeprovision

2. Accuracy

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

Principles: The ABC has a statutory duty to ensure that the gathering and presentation of news and information is accurate according to the recognised standards of objective journalism. Credibility depends heavily on factual accuracy.

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. 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 accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

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 passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

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 breachStandard 2.1 of the Code.

Reasons

To assess compliance the ACMA has considered the following questions:

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 ABCmake reasonable efforts to ensure that the material fact was accurate and presented incontext?

The considerations the ACMA uses in assessing whether or not broadcast material is factual in character are set out at Attachment D.

The complaint to the ABC stated:

7:30 has plumbed a new low with its [sic] special on Pell. There is not even an allegation of sexual abuse. At most allegations of possible inappropriateness or imputed sordid interest. Allegations of touching by very doubtful witnesses with histories of amphetamine addiction, crime, alcoholism, partner violence.

The broadcaster submitted to the ACMA:

The body of the report included interviews with Lyndon Monument and Damian Dignan, who both told 7.30 that, when they were children, George Pell would touch their penis, testicles and anus during play at the Eureka pool in Ballarat. A number of people interviewed for the report spoke of George Pell’s conduct in changing rooms at Eureka pool and at Torquay Beach surf club. Other allegations of abuse said to have occurred at St Patrick’s Cathedral and at a camp on Victoria’s Phillip Island were also noted.

The body of the report accurately stated that ‘[s]ome of the complaints made to 7.30 and police amount to criminal allegations’. The elements of the offence of sexual assault are set out in s 40 of the Crimes Act 1958 (Vic).

Was the particular content complained about factual in character?

The program examined a number of allegations made against Cardinal George Pell.

The allegations were described in the introduction and during the program as allegations of sexual abuse:

[t]he Cardinal has issued a statement saying he emphatically and unequivocally rejects any allegations of sexual abuse against him

[…]

the pool manager’s wife says she never saw any behaviour by George Pell that concerned her. […] Her statement is one of many made to Victoria Police’s Taskforce Sano, which investigates claims of sexual abuse coming out of the royal commission.

Discussionduring the programincluded statements about allegedphysical contactbetween George Pell and young boys and George Pell’s behaviour in changing rooms:

[…]

… the priest would unclasp his hands and use his free hand to molest him.

[…]

Lyndon Monument told police and 7.30 George Pell would touch his penis, testicles and anus before throwing him in the air.

[…]

… “I look back on it now and think that he only wanted to perv on us when he was naked.”

[…]

It makes me very suspicious that he was exposing himself to those three young boys. He made sure that at no time was I given the opportunity to see the front of him.

The description of these allegations as allegations of sexual abuse is specific, unequivocal and capable of independent verification. The description is therefore factual in character.

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

The program examined a number of allegations made against Cardinal Pell. Within this context, the nature of those allegations was amaterial fact.

If so, was the material fact accurate?

The material fact is that the allegations examined in the program constitutedallegations of sexual abuse.

As the allegations concerned incidents that were said to have occurred in Victoria, the definition of sexual offences against children inthe Crimes Act 1958(Vic)[3] is relevant to the accuracy of their description as allegations of sexual abuse:

(8C) Sexual offences against children

47 Indecent act with child under the age of 16

(1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16.

The Macquarie Dictionary Online (Sixth Edition) defines indecent as:

1. offending against recognised standards of propriety or good taste

2. not decent; unbecoming or unseemly[4]

The ACMA agrees with the ABC’s submissions that the touching or holding of genitals or anus of a child or the deliberate exposing by an adult of one’s genitals to a child conforms to the relevant definition of a sexual offence against a child, in Victoria.

The ACMA considers thatprogram accurately presented the allegations against Cardinal Pell as being allegations of sexual abuse.

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

Issue 2: Impartiality and diversity of perspectives

Relevant Code provisions

4.1 Gather and present news and information with due impartiality.

[…]

4.5 Do not unduly favour one perspective over another.

Principles: The ABC has a statutory duty to ensure that the gathering and presentation of news and information is impartial according to the recognised standards of objective journalism.

Aiming to equip audiences to make up their own minds is consistent with the public service character of the ABC. A democratic society depends on diverse sources of reliable information and contending opinions. A broadcaster operating under statute with public funds is legitimately expected to contribute in ways that may differ from commercial media, which are free to be partial to private interests.

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

• a balance that follows the weight of evidence;

• fair treatment;

• open-mindedness; and

• opportunities over time for principal relevant perspectives on matters of contention to be expressed.

The ABC aims to present, over time, content that addresses a broad range of subjects from a diversity of perspectives reflecting a diversity of experiences, presented in a diversity of ways from a diversity of sources, including content created by ABC staff, generated by audiences and commissioned or acquired from external content-makers.

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

• the type, subject and nature of the content;

• the circumstances in which the content is made and presented;

• the likely audience expectations of the content;

• the degree to which the matter to which the content relates is contentious;

• the range of principal relevant perspectives on the matter of contention; and

• the timeframe within which it would be appropriate for the ABC to provide opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.

Finding

The ABC did not breach Standards 4.1 or 4.5 of the Code.

Reasons

To assess compliance, the ACMA has considered the following:

contextual factors

the ABC’s hallmarks for impartiality:

• a balance that follows the weight of evidence;
• fair treatment;
• open-mindedness; and
• opportunities over time for principal relevant perspectives on matters of contention to be expressed.

Complainant#1 submitted:

[…] my question to the ABC was about their obligation to presume Pell is innocent. I believe their evasion of this question confirms that they decided to cover themselves legally by including that statement during the airing of the program, then proceeded to pay token regard to it by strongly questioning his innocence. Hence the key message of the ABC program was that it does not presume Pell is innocent.

Complainant #2 submitted:

There are alternative lines of enquiry that the ABC might have explored about the 'allegations' about Pell, for example that the negative publicity he has received through the ABC and others has sparked fanciful memories from people with diverse motives. It has chosen not to present any plausible alternatives.

The broadcaster submitted:

The report was preceded by a lengthy introduction which acknowledged both that complaints had been made about George Pell and that he had ‘issued a statement saying he emphatically and unequivocally rejects any allegation of sexual abuse against him’. The introduction explicitly acknowledged that Cardinal Pell was entitled to the presumption of innocence and that the allegations were yet to be tested by a court. The story was thus carefully framed as presenting allegations which were unproven and which Cardinal Pell strenuously denied.

[…]

The program indicated that it had spoken to ‘scores of witnesses and other sources’ over several months in order to gather information and test claims prior to the material being broadcast. The program noted that it had contacted many other people who went to the Eureka Pool at the time the assaults were alleged to have occurred and ‘[a]ll remember George Pell playing the throwing game with the boys in the water. Many remembered seeing the priest going into the change rooms’. The program made clear that some of the people it had spoken to had not observed any inappropriate behaviour. In particular, the family who owned the Eureka pool at the time – who would have been under a special obligation to monitor behaviour at the pool – recalled George Pell as ‘a constant fixture … always surrounded by children, but they said they never saw anything untoward’. It was reported that the pool manager’s wife had told Victoria Police that ‘she never saw any behaviour by George Pell that concerned her’.

The relevant standards require the ABC to ‘gather and present news and information with dueimpartiality’ and to ‘not unduly favour one perspective over another.’ Inclusion of the words ‘due’ and ‘unduly’ indicate an element of flexibility depending on theparticular context.

The context in this program is the examination of allegations that Cardinal Pell committed acts of sexual abuse against children. In such a context it would be expected that the allegations would be covered in some detail. It would also be expected thatthe broadcaster would provide an opportunity to the accused to provide a response for inclusion in the program.

The program provided detailed accounts of a number of alleged incidents of abuse through interviews with the individuals making the allegations. Linking statements by the reporter provided contextualisation.

The program also featured a number of formal responses from Cardinal Pell. These were provided in spoken form by the program’s host at the beginning of the program:

The Cardinal has issued a statement saying he emphatically and unequivocally rejects any allegations of sexual abuse against him.

and by the reporter during the program:

but in statement, his office said he “emphatically and unequivocally rejects any allegations of sexual abuse against him.” He says he, “regrets that sensationalist attention to these unfounded and untrue claims might cause distress to genuine victims and he encourages anyone with a legitimate complaint to pursue it through the correct channels.

[…]

7.30 sent questions to Cardinal Pell. He did not address specific allegations, but said, "The Cardinal does not wish to cause any distress to any victim of abuse. However, claims that he sexually abused anyone, in any place, at any time in his life are totally untrue and completely wrong. He denies the allegations absolutely and says that they, and any acceptance of them by the ABC, are nothing more than a scandalous smear campaign which appears to be championed by the ABC. If there was any credibility in any of these claims, they would have been pursued by the royal commission by now."

At certain times during the program, Cardinal Pell’s responses to questions put to him by the program were prominently displayed by the use of superimposed text. The program also stated that Cardinal Pell had been offered an opportunity to record an interview for the program but had declined.

Included as counterpoints to the detailed descriptions provided by Cardinal Pell’s accusers regarding alleged incidents at the Eureka pool in Ballarat, were statements from the then owners of the poolthat brought the allegations into doubt.These statements were referred to verbally:

The family who owned the pool at that time have confirmed to 7.30 that they never saw anything untoward [..]

and displayed in written form,on screen.

The ABC’s hallmarks of impartiality require that broadcasts provide a balance that follows the weight of evidence, give fair treatment to subjects that may be contentious, maintain an open-mindedness that does not preclude particular outcomes, and provide opportunities over time for principal relevant perspectives on matters of contention to be expressed.

The program looked at contentious allegations involving a high-profile public figure. The program provided alternative perspectives with respect to the allegations, maintained a neutral tone throughout, and reminded viewers that the allegations had not been tested in court and that Cardinal Pell was entitled to a presumption of innocence.