Investigation Report No. 3142

Investigation Report No. 3142

Background

• On 11 November 2013, the Australian Communications and Media Authority (the ACMA) received a complaint about a segment on the ABC’s Drive with Richard Dinnen program, broadcast by 4QY – ABC Radio (Far North QLD) (the ABC) on 23 September 2013.
• Drive with Richard Dinnen is broadcast between 4:00pm and 6:00pm in Far North Queensland. Hosted by Mr Richard Dinnen, it contains a mixture of news, current affairs, music and talkback, primarily with a focus on local events. The program is described on its website as follows:

Tune in to the sound of Far North Queensland. The day's news, the best music, lively conversations.[1]

• On 23 September 2013, Mr Dinnen interviewed a spokesperson (the interviewee) for the Kuranda District Residents’ Association (the Association) about a recently failed attemptby the residents of Kuranda to separate from the soon-to-be-formed Mareeba Shire Council.The latter is to be de-amalgamated from the larger Tablelands Regional Council in early 2014.
• The interview covered the Association’s disappointment that Kuranda had been unable to separate from the Mareeba Council Shire and what steps the Association would take to ensure its interests were best represented under the new structure.
• The interview had a duration of approximately six minutes, and a transcript of it can be found at Attachment A.
• During the interview, the interviewee stated the following:

• ...we’ve got to identify the best possible candidates and support their campaigns. The last thing we need is that any of the proponents of the de-amalgamation, the people who’ve got us into this situation, this precarious financial situation, are going to be given the chance to try to regain their old glory. We need prudent and responsible financial management; that’s what we must be looking for.
• ...we need to get the most prudent and responsible financial managers in a position to be running the show, rather than people who want to return to their glory days and who really weren’t making a good job of it anyway, when they were in charge.

• The complainant, who was previously involved with the Mareeba Shire Council, submitted to the ABC that he was ‘denied a response to derogatory comments made on ABC Radio Monday 23 September’ and that ‘the statements made are untrue’.

• The ABC’s response to the complainant can be found at Attachment B.

• The investigation has considered the ABC’s compliance with standards 2.1 and 5.3 of the ABC Code of Practice 2011 (the Code):

Accuracy

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

Fair and honest dealing

Opportunity to respond

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

Assessment

• In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material that was broadcast. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.
• Australian courts have considered an ‘ordinary, reasonable’ reader (or 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]

• In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn.
• Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether that material has breachedtheCode.

Issue 1: Accuracy

Finding

The ABC did not breach standard2.1of the Code.

Reasons

• In applying standard 2.1 of the Code, the ACMA generally adopts the following approach:
• Was the particular content (the subject of the complaint) 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?
• As the accuracy obligations in standard 2.1 apply only to factual content, the first consideration for the ACMA is whether the relevant statements are statements of fact or expressions of opinion. Standard 2.1 does not apply to the latter.
• The considerations the ACMA uses for determining whether material is factual in character are set out at Attachment C.
• The ACMA considers that the statements made by the interviewee identified by the complainant as being inaccurate were expressions of the interviewee’s opinion, rather than statements of fact.
• By describing the Council’s financial situation as ‘precarious’ and the previous administration as not having ‘[made] a good job of it anyway’, the ACMA’s view is that the interviewee was presenting his own personal viewpoint on the subject. The use of colourful language such as ‘regain their old glory’ and ‘glory days’, as well as referring to what ‘we’ve got to’ do and what ‘we need’, further characterises the statements as ones of opinion, rather than fact.
• The ACMA is satisfied that the ordinary, reasonable viewer would have interpreted the statements as being in the nature of opinion.
• As statements of opinion are not subject to the factual accuracy obligations outlined in the Code, the ABC accordingly did not breach standard 2.1.

Issue 2: Opportunity to respond

Finding

The ABC did not breach standard 5.3 of the Code.

Reasons

• The complainant submitted that he should have been afforded an opportunity to respond to allegations made against him.
• In order to determine whether the ABC has complied with the requirements of standard 5.3, the ACMA must determine:

• 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 ACMA notes that the Macquarie Dictionary (Online) defines an allegation as ‘a mere assertion made without proof’.

• The ABC has published a Guidance Note dealing specifically with the interpretation of standard 5.3 of the Code (the Guidance Note).[3]
• The Guidance Note refers to material that will attract the operation of clause 5.3, namely allegations referring to ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial.’
• The ACMA does not consider that the broadcast contained any allegations that were specific or grave enough to trigger the operation of standard 5.3. In this case, the ACMA considers that the interviewee’s references to a previous administration who ‘weren’t making a good job of it anyway’ and ‘got us into this... precarious financial situation’did not attract the operation of standard 5.3. It was unclear who the comments were directed at and the ACMA notes that the complainant was not named in the broadcast, nor was there any reference to the position that he formerly held.
• Accordingly, the broadcast did not trigger the ABC’s obligation to provide a fair opportunity to respond and the ABC did not breach standard 5.3 of the Code.

Attachment A

Transcript of the interview

Presenter – As we heard in the local news at half past six, a petition by residents of Kuranda and surrounding areas to separate from the new Mareeba Shire Council has been rejected. The petition had the sponsorship of the Varon River MP Michael Trout, over 1,000 signatures I think finally appended to that petition, but we understand that yesterday, the local government Minister [name] wrote to the clerk of the Parliament in response to the petition having been delivered to him saying that the regulations that gave rise to this de-amalgamation process were that if the vote succeeded, as it did in relation to Mareeba, the boundaries would go back to as they were prior to the amalgamation all those years ago. That is the position of [name] and therefore Kuranda will go with Mareeba despite the fact that a majority of residents in Kuranda and the district don’t want to go there. [The interviewee] is with the Kuranda District Residents’ Association, [name], good morning to you.

The interviewee – Good morning, Richard.

Presenter – This would be disappointing, but not unexpected news, I guess.

The interviewee - Yes, that’s it in a nutshell; we spent a lot of money investigating our chances, but we’ve come to the conclusion that the Minister’s pockets are much deeper than ours and unfortunately, of course, the Minister’s pockets are also the rate payers’ pockets so we were, in effect, paying for our own precarious position. We accept that de-amalgamation is going to occur. Our focus has shifted now though. We must ensure that the very best possible team is going to be managing our Shire’s finances from now on.

Presenter – How will you go about doing that?

The interviewee – Well, we’ve got to identify the best possible candidates and support their campaigns. The last thing we need is that any of the proponents of the de-amalgamation, the people who’ve got us into this situation, this precarious financial situation, are going to be given the chance to try to regain their old glory. We need prudent and responsible financial management; that’s what we must be looking for.

Presenter – Are there no further options to prevent the move into the new Mareeba Council? Are there legal options you might consider? You talked about the depth of the pockets; is it beyond the means now?

The interviewee – The... the legal options we... which were available to us are all extremely expensive, and there’s a 50/50 chance of them coming off. If they... even if they did come off, all that would happen is the Minister would get a slap on the wrist with a wet bus ticket and be told to go back... probably be told to go back and review his original decision. Of course, he has a vested interest in making the same decision over again. So that, really, has closed it off as far as we’re concerned.

Presenter – Does it close it off beyond the term of the first Council? I know when this petition got started, there was some discussion with [name] in which he is quoted as saying he’s unwilling to consider any boundary changes until 2016. Would it be something that you’d look at beyond that, though?

The interviewee – It depends how... really, how our position unfolds. If we find ourselves broke... that is, if the Shire finds itself broke, all bets are off and we may have to revisit. But if we’re able to struggle through and even, perhaps, find some happier way of moving forward, then, who knows. The future’s another country, Richard, really.

Presenter – Mmm. And it’s often hard to see from a distance, isn’t it?

The interviewee – Yeah.

Presenter – The principal objection to this was always, I think, based on the fact that the government’s own expert did say that the prospect of Mareeba succeeding financially was remote; did that remain the principle concern or did other things creep into this?

The interviewee – No, that was always the principal concern; the best financial information we had at the time was that the new Mareeba Shire would be a financial basket case, basically.

Presenter – And obviously now you... you’re... you’ve got to look at the idea of getting your side of this argument represented in that new Council, so... campaigning, I guess, has to start pretty soon.

The interviewee – Absolutely. Yeah, the... as I said before, we need to get the most prudent and responsible financial managers in a position to be running the show, rather than people who want to return to their glory days and who really weren’t making a good job of it anyway, when they were in charge.

Presenter – The case for this petition did state that the ummm... approach now adopted by the state was at odds with an interpretation of the LNP’s election policy, which was to give local people a say in the future direction of their community, do you feel a bit disenchanted with that now?

The interviewee – We’re disenchanted with the whole... the whole scenario as it played out. Quite clearly, it was a political move; a promise had been made, the promise has now been paid back, and I hope we can move forward into reality rather than remain in the realms of fantasy and hope.

Presenter – All right [name of interviewee], good to talk to you, thanks for making time this morning.

The interviewee – Ok thank you, good bye.

Presenter – Thank you, bye-bye. That’s [name of interviewee], with the Kuranda District Residents’ Association, it is 18 past 7, ABC Far North.

Attachment B

ABC’s submissions

The ABC sent the following to the complainant:

The accuracy standard applies to factual material presented on the ABC. The standard in relation to fair opportunity to respond (section 5.3) refers to situations where an unproven factual allegation has been made in relation to a person or organisation. Neither standard applies to the expression of opinion.

In this case, the comments made by [the interviewee] were expressions of his opinion about the financial management of Mareeba Council prior to amalgamation. They were clearly his views and not those of the ABC. They did not constitute factual statements and there was no obligation on ABC Far North or the Drive program to offer you an opportunity to respond.

Radio advise they have presented a number of perspectives on this issue in the past. If it develops into an ongoing political controversy in the district we would expect ABC Far North to continue to cover the story from a variety of angles.

Accordingly, while noting your concerns, Audience and Consumer Affairs are satisfied the broadcast was in keeping with the ABC’s editorial standards.

Attachment C

Considerations to which the ACMA has regard in assessing whether or not broadcast material is factual in character

• The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.

In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

• Factual material will usually be specific, unequivocal and capable of independent verification.
• Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.
• The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.
• Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

ACMA Investigation Report 3142—Drive with Richard Dinnen—4QY – ABC Radio (Far North QLD) – 23 September 2013

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[2]Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167.

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