Investigation Report No. 3321
File no. / ACMA2015/120Broadcaster / Orange Super AM 1089 Pty Ltd
Station / 2EL (Radio 2EL)
Type of service / Commercial Radio
Name of program / Early Morning Breakfast Show
Dates of broadcast / 30 and 31 December 2014
Relevant legislation/code / Clause 1.1(e) of the Commercial Radio Australia Codes of Practice and Guidelines 2013
Date finalised / 29 April 2015
Decision / No breach of clause 1.1(e) [proscribed matter]
The complaint
In February 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation into the program Early Morning Breakfast Show broadcast on 30and 31 December 2014 by Orange Super AM 1089 Pty Ltd (the licensee).
The complaint is that comments made by the presenter, Grant Goldman, were likely to incite hatred, serious contempt or severe ridicule of people from the Islamic religion.
The investigation has considered the licensee’s compliance with clause 1.1(e) of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes).
The program
The Early Morning Breakfast Show is a morning program described by the licensee as follows:
[A] radio program which provides news, information, entertainment and talkback discussion covering a range of news or caller driven topics. The show is hosted by Grant Goldman and broadcast on weekdays between 6am and midday.[1]
On 30 and 31 December 2014, the program included numerous comments by both the presenter and various callers associated with the issue of Halal certification in Australia. The issue appears to have been originally raised for discussion by a caller and wasthen subsequently raised numerous times by various other callers and the presenter.
A transcript of the relevant parts of the program referring to Halal certification is at AttachmentA.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.
In assessing content against the Codes, 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’ listenerto 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]
The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).
Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.
Issue: Proscribed material
Relevant code provision
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.
1.2Nothing in sub-class 1.1 prevents a licensee from broadcasting a program of the kind or kinds referred to in those sub-clauses if the program:
(a)is presented reasonably and in good faith for academic, artistic(including comedy or satire), religious instruction, scientific or research purposes or for any other purposes in the public interest, including discussion or debate about any act or matter.
Submissions
The complainant’s submissions are set out at Attachment B.
The licensee’s submissions are set out at Attachment C.
Finding
The licensee did not breach clause 1.1(e) of the Codes.
Reasons
In determining whether the licensee has breached clause 1.9.6, the ACMA must consider the following:
identification of the relevant person or group and the relevant ground; and
whether the broadcast was likely to incite hatred, serious contempt or severe ridicule against the relevant individual/group on that ground.
The talk-back discussion of 30 and 31 December 2014 opened with the presenter’s ‘explanation of Halal’ and the requirements for Halalcertification of meat products. His main pointsconcerned the costs to the community of Halal certification, which he described as a Jizya tax or‘religious tax’, and the method of slaughter of animals which he described as ‘murder’ because the beast’s throat is cut and it is bled to death in pain.
Contributions from callers were broadcast and the presenter referred to off-air emails and telephone discussions which included a call to boycott Halal certified products. The presenter also described Islam as ‘a cult’ not a religion.
The presenter and callers may have misunderstood the nature of Halal slaughter in Australia. The Australian Government Department of Agriculture guidelines for Halal slaughter of livestock which apply to meat produced for export and to Islamic organisations supervising Halal certification, requires that the animal be stunned prior to slaughter. The guidelines state ‘the welfare of the animal takes precedence over any other aspect of the slaughtering process’[3].
The characterisation of certification costs as a ‘tax’, and questions as to its legality also appear to be misguided because the costs referred to are not imposed by the government to fund public expenditure.Therefore, the cost of Halal certification is not a tax. Historically, aJizya tax is a tax levied on non-Muslim subjects in Islamic stateswhereas Australian abattoirs which comply with the above guidelines for Halal slaughter are operated and regulated under Australian law. Any costs of Halal certification to the community are also likely to be balanced by the benefits from increased exports to countries that have a preference for Halal food.
Relevant person or group of persons and the relevant ground
Given that Halal is a term often used in reference to food that is permissible for Muslims to eat or drink under Islamic law,the ACMA is satisfied that the relevant person or group of persons identified for the purposes of clause 1.1(e) is people who belong to the Islamic religion.
As there were references made by the presenter and callersassociating Halalwith the Islamic religion and practices, the relevant ground is religion.
Incitement
Incitement or provocation can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action. There is no need for proof of intention to incite or that any one was in fact incited.[4]
The relevant conduct must have the capacity or tendency to incite others, in the sense of urging, promoting the audience to experience the relevant reaction. Conduct that merely conveys a person’s hatred of, intense dislike, serious contempt or severe ridicule towards a person is not unlawful.
There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[5]
In this case, the ACMA must consider whether the ordinary reasonable listener would have understood that they were being urged, stimulated or encouraged by the content to share or maintain feelings of hatred, contempt or ridicule against Islamic people on the grounds of their religion.
Hatred, serious contempt or severe ridicule
The clause establishes a high threshold test. The words ‘serious’ and ‘severe’ contemplate a very strong reaction to the broadcast material. A breach is not found if the broadcast material induces a mild or even strong response or reaction.
Discussion
The issue for examination is whether the relevant material was likely, in all the circumstances, to have incited hatred against, or serious contempt for, a person or people on the basis of their identification with, or practise of, the Islamic religion.
The complainant alleges that the presenter’s disparaging references to Halal certification in Australia were designed to enable a broader and more inflammatory denigration of the religion of Islam.
The complainant referred to the following comments made by the presenter:
- that animals slaughtered in accordance with the requirements of Halal ‘bleed to death in absolute pain’
- that Halal certification is ‘a religious tax’ as companies who obtain Halal certification pass on the added cost to consumers
- that if Muslims want to eat Halal food purchased from the supermarket ‘all they’ve got to do is look at the ingredients’
- that Islam is ‘not a religion, but a cult’.
The licensee responded to the complainant that the comments made by the presenter were topical of the day, typical of a talk-back program and not likely to incite hatred or serious contempt.
The ACMA notes that as well as comments from the presenter, numerous callers expressed opinions on, and were critical of, Halal certification and related issues.
The ACMA accepts that the presenter and callers expressed a negative or criticalview onHalal certification in Australia, companies who provide Halal-certified food in Australia, and the treatment of animals slaughtered in accordance with Halal requirements.
While the program contained strong criticisms of a practice required under Islamic law, the ACMA is of the view that the program contained no language or material that would have been understood by the ordinary reasonable listener as urging, stimulating or encouraging them to share or maintain feelings of hatred or serious contempt towards Muslims, on the grounds of religion.
The majority of comments and negative opinions were associated with the cost of Halal certification being passed on to consumers; the prevalence of Halal-certified product in supermarkets; and the Halal slaughter process; which were considered inhumane.
Although Halal certification relates to foods and products permitted under Islamic law, the discussion did not focus on religious elements. For example, while there was a call to boycott Halal certified food such as Nestle products and vegemite, the audience would recognise that these are not supplied by Islamic groups and that an economic boycott was not a call to violence or action against Islamic people.
Opinions were expressed reflecting a dislike of Halal practices which are a requirement of Islam. However, there was no language engaging the audience to share, or stimulating the audience to, feelings of hatred, contempt or ridicule of people on the grounds of their religion.
Although the program contained criticisms of the costs of Halal certification and methods of slaughter (which may have been misguided) and this discussion continued over two days, the requisite element of provocation or incitement was absent.
While the presenter’s reference to Islam being a ‘cult’ could be considered offensive to some segments of the community, the statement was not an invitation to listeners to hate or hold in serious contempt people who identify with the Islamic religion.
There were also a number of statements from callers and the presenter which balanced or diluted any language that might have been taken to be a prompt to dislike Islamic people because of their religion.The presenter expressed the thought it was ‘fair enough’when a Muslim caller asserted his right (off-the-air) to have Halal food because of his beliefs, andhe also referred to having Muslim friends.
It is also noted that the program contained a range of opinions on the issue of Halal certification, including a caller who questioned why people were not objecting in the same manner to food being marked Kosher; a caller who asserted that the Halal method of preparing meat in an abattoir saves money rather than costs money; and several references by the presenter to off-the-air comments from a Muslim asserting his right to eat Halal food. The inclusion of a range of views further mitigated the impact of the content.
These comments contributed to creating an overall impression for the listener that the presenter’s criticisms were related to Halal certification and his understanding of the slaughter process, rather than relating to a certain person or group of people on the grounds of their religion.
In this context the ordinary reasonable listener would have understood that any calls to share negative attitudes towards Islamic people over Halal certification were on grounds other than religion.
In any event the clause establishes a high threshold for the proscribed material. To the extent that any negative feelings were aroused towards Islamic people on the basis of their religion, such expressions did not reach the high threshold of hatred, serious dislike, or severe ridicule (emphasis added).
Accordingly, the licensee did not breach clause 1.1(e) of the Codes.
The ACMA notes the licensee’s submission that it is the nature of talk-back programs to initiate debate and encourage callers to express their own opinion along with the presenter. The discussions of Halal certification took place within the broader context of several hours of talk-back discussion about a wide variety of unrelated topics, and also in the context of a much broader debate in the community over Halal certificationwhich has culminated in controversial proposals by a Member of Parliament to reform Halal labelling laws[6].
To the extent that any feelings of hatred, contempt or ridicule were aroused by the presenter’s and callers’ comments,the ACMA accepts that debate on the subject matter was justified in the public interest pursuant to clause 1.2(a) of the Codes.
Attachment A
Relevant excerpts of the transcript
30 December 2014
[…]
Grand Goldman (Presenter): We go to [S] in Bathurst, Good Morning [S].
S: Good Morning Grant, I feel that new year is such a shemozzle, all you have to do is flip-out your old calendar and turn the page. We don’t need all the hullabaloo of celebrating. Now, I’m asking you please Grant, can you explain clearly, because I am writing letters to the pollies to have it removed, can you explain Halal?
PRESENTER: Can I explain Halal?
S: Yes. Who is the corporation? Where are they? And how much money do they make?
PRESENTER: Well look, okay, I know for a fact many Australian food manufactures seek Halal certification of their facilities, right, and their processes in order to label their products as Halal and this is to ensure they’re able to be enjoyed by Muslim consumers particularly overseas because there are big markets. And I’ll give you two of them: Malaysia and Indonesia. Now I know in the same way that food labelled as vegan or gluten free is suitable for consumption by a broad range of consumers, for a product to be Halal, it must be as a whole and in part free from any substance taken or extracted from a Haram animal or ingredient and that would mean pigs, dogs, carnivorous animals, animals not slaughtered in compliance with Islamic rights. You understand that much?
S: Yes, yes.
PRESENTER: So, and also made, processed, manufactured and/or stored by using utensils, equipment and/or machinery that has been cleaned according to Islamic Law, and not cleaned with alcohol, etcetera. So, there’s a lot of things they have to do to get the Halal certification.
S: What’s that?
PRESENTER: There’s a lot of things they have to do to gain the Halal certification.
S: And who pays the money?
PRESENTER: Well we do eventually.
S: How come?
PRESENTER: Well because, I mean, if they, if you’re in business, and you’ve got this extra tax, and that’s what it is, that’s worth billions and billions of dollars to Islamic councils all over the world, billions and billions of dollars, then they’re going to pass that onto you and me in increased prices, aren’t they?
S: Well that’s quite ridiculous. How do we stop all this?
PRESENTER: Well it is a good question, how do we stop it? It is a recent phenomenon and in my humble opinion Halal certification is a scam, and it’s a scam to make a lot of money. In the old days, if you were Muslim you simply went to the supermarket and you looked at the ingredients on the back of the packet and said ‘oh good I can have this’. Now they’ve found a way to make money out of it. Halal certification. And it is interesting a lot of companies in Australia are asking for the certification because they like to get into the export markets particularly to the countries I mentioned, maybe even to the Middle East as well as Indonesia and Malaysia.
S: I’ve got it, yeah, thank you so much.
PRESENTER: Alright darling thank you bye-bye. Yeah we are being told bodies such as the Islamic Coordinating Council and what’s the other mob? The Australian Federation of Islamic Councils, charge fees for checking the products don’t contain alcohol or that any meat used comes from animals properly slaughtered and they are slaughtered in the most horrendous way. And that’s another part that I don’t like. Oh yeah, bleed to death, in absolute pain. They don’t care, it’s believed that AFIC, the nation’s peak Muslim body earns up to one million dollars a year from Halal certification. I have it as far more than that.
[…]
X: Now, as far as Halal is concerned, if someone is imposing an illegal tax, wouldn’t they be breaking the law?