media/broadcasting... web viewthe acma considers that the written complaint to the licensee...

Investigation Report No. 2848

File No. ACMA2012/1025

Licensee Festival City Broadcasters Pty Ltd

Station 5AA

Type of Service Commercial Radio

Name of Program Bob Francis

Dates of Broadcasts 4 and 6 June 2012

Relevant Code Clauses 1.1(e), 1.3(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

Decision No breach of clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 4 June 2012 broadcast.

No breach of clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2011 in relation to 6 June 2012 broadcast.

Breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to 4 June 2012 broadcast.

Breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to 6 June 2012 broadcast.

Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011.

ACMA Investigation Report – Bob Francis broadcast by 5AA on 4 and 6 June 2012

The complaintOn 19 July 2012, the Australian Communications and Media Authority (the ACMA) received a complaint about material broadcast on the program, Bob Francis, by Festival City Broadcasters Pty Ltd, the licensee of 5AA (the licensee).

The complainant was concerned that certain comments made by Mr Francis in relation to asylum seekers on 4 June 2012 were ‘grotesque, inappropriate’ and ‘indefensible’; and that comments made by Mr Francis in a subsequent program (of 6 June 2012) directed at a journalist who reported on those comments, were ‘offensive’.

In relation to the complaint regarding the 6 June 2012 broadcast, the licensee questioned whether the complainant had heard the broadcast: ‘It appears that the complainant has taken the quote used in his letter from a subsequent article in [the newspaper], not from the actual broadcast. It is unclear whether the complainant ever actually heard the broadcast’.

However, clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 (the Codes) does not require that the complainant establish that he heard the broadcast in order to submit a complaint about the broadcast material. Nor is there a requirement in either the Broadcasting Services Act 1992 (the Act) or the Codes for complainants to have listened to the actual broadcast. Moreover, under sections 148 and 149 of the Act, the ACMA ‘must investigate’ all code complaints made to it:

> which have first (validly) been made to the broadcaster; and

> in respect of which the complainant either received no response from the broadcaster within 60 days, or received a response from the broadcaster that the complainant considers inadequate.

The licensee has submitted that the complaint in relation to the program of 6 June 2012 did not sufficiently identify the broadcast as it did not include the date of the broadcast. The ACMA does not accept this. The only relevant requirement specified in the Codes is that a complaint must adequately identify the material broadcast about which the complaint is made. The complainant did this by quoting the material broadcast about which he wished to complain. It would have been apparent that the comments quoted in the complaint were made in a Bob Francis program broadcast after 4 June 2012, and after an article appeared in The Australian newspaper (the newspaper) criticising the remarks in the program of that date.

The ACMA considers that the date of the later program would have been readily ascertainable by putting the quoted remarks to Mr Francis or his producer and asking when they were broadcast. The ACMA considers that the written complaint to the licensee adequately identified the material broadcast that was the subject of the complaint by quoting that material, and doing so in a context which made the date of broadcast of that material relatively easy for the licensee to ascertain.

The investigation has considered the licensee’s compliance with clauses 1.1(e) [proscribed matter], 1.3(a) [standards of decency] and 5.5 [complaints handing] of the Codes.

ACMA Investigation Report – Bob Francis broadcast by 5AA on 4 and 6 June 2012 2

The programBob Francis is a talk-back, current affairs program presented by Bob Francis and broadcast on weeknights between 8:00pm and 12:00am on 5AA in Adelaide.

Broadcast of 4 June 2012

On 4 June 2012, Mr Francis made the following comment about asylum seekers who arrive in Australia by boat:

8:50pm: What’s that got to do with the bloody people jumping over the boat people? Bugger the boat people, I say. As far as I’m concerned I hope they bloody drown out there on their way over here! They’re not welcome. In my opinion, they are not welcome here.


On 6 June 2012, an article criticising Mr Francis’s comment was written by a female journalist and published in the newspaper. Mr Francis made the following comments about the journalist, including those quoted in the letter of complaint to the licensee:

9:55pm: Yes, this is Egyptian born, Bob Francis. I make that remark because some smart-arse, dickhead woman, [name and job title of journalist], wrote me up in the paper this morning saying, ‘Egyptian born Francis’. Why the hell you said that, you dickhead, I don’t know.

[...]

11:07pm: Can you believe that bloody bitch in [the newspaper] wrote that I was ‘Egyptian born’! What the hell that had to do with the story? I’m buggered if I know. [...] But I think she was having a go at me saying, you know, Egyptian born so he was probably an immigrant himself and why does he want the people to die from coming over, the boat people.[...] In her bum!

[...]

Also in the same program the following comments of a similar character relating to the journalist’s criticism of the broadcast on 4 June 2012 were made by Mr Francis:

9:08pm: The Egyptian born Francis? What did that have to do with the whole bloody story? Are you trying to make out that I have some Egyptian background in me and I shouldn’t have been talking about the boat people? You wanker, [name of journalist]! I don’t know who the hell you are but I’d be very prepared to give you my mobile telephone number so that whenever you grab a story like that you don’t need to go to anybody else for a comment. You can take it from me and I’ll give you the mobile number. You hear me!

[...]

11:09pm: Tell her to go to buggery for me!

Relevant extracts from the broadcasts are at Attachment A.


AssessmentThe assessment is based on:

> a recording of the broadcasts provided to the ACMA by the licensee;

> the complainant’s submission (Attachment B);

> the licensee’s submission (Attachment C); and

> publicly available information, the source of which is identified where relevant.

Ordinary, reasonable listenerIn assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable listener’. That is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.

Australian courts have considered an ‘ordinary, reasonable' reader (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 affairs1.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn.

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 Codes.

Issue 1: Proscribed matter

Relevant Clause of the Codes Clause 1.1(e) of the Codes relevantly provides:

Proscribed matter

1.1 A licensee must not broadcast a program which, in all of the circumstances:

[...]

1.1 (e) is likely to incite hatred against, 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.

The principles applied by the ACMA in assessing content against the obligation in clause 1.1(e) of the Codes are set out at Attachment D.

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).


FindingIn relation to the broadcast of 4 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.

In relation to the broadcast of 6 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.

ReasonsIn order for a breach of clause 1.1(e) of the Codes to have occurred, the ACMA must be satisfied that Mr Francis’s comments:

1. identified a person or group of persons with an attribute referred to in clause 1.1(e) of the Codes; and

2. were, in all of the circumstances, likely to incite hatred against, serious contempt for, or severe ridicule of, the person or group of persons because of the relevant attribute.


Relevant person or group of persons

The ACMA is satisfied that Mr Francis’s comments were intended to refer to a group of persons, namely, people who arrive in Australia by boat seeking asylum.

Relevant attribute

The ACMA notes that the potential relevant attributes of this group for the purposes of clause 1.1(e) of the Codes include ethnicity, nationality and race. The persons were not identified as being of any particular nationality, race or ethnic group. However, the ordinary, reasonable listener would understand ‘boat people’ to refer to people of several nationalities, races or ethnic origins who commonly arrive in Australia by boat seeking asylum.

However, although Mr Francis referred to ‘boat people’ it is not clear that his negative comments were made on the basis of any shared attribute of ethnicity, nationality or race for the purposes of the clause. Rather, considered in context, his comments appear to be made because of a shared ‘action’ by the group - namely undertaking travel to Australia by boat in order to seek asylum.

Accordingly, in relation to the broadcast of 4 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.


Relevant person or group of persons

The ACMA is satisfied that Mr Francis’s comments were intended to refer to a specific journalist who had written a news piece about Mr Francis’s comment regarding asylum seekers. Mr Francis identified the journalist by name, job title and employer on four separate occasions.

Relevant attribute

The ACMA has reviewed the entire program of 6 June 2012, including the comments identified by the complainant and comments of a similar character arising from the


program of 4 June 2012. Mr Francis made the following remarks regarding the journalist, including those identified in the complaint:

> You wanker, [name of journalist].

> Some smart-arse, dickhead woman, [name of journalist], South Australian political reporter for [the newspaper], wrote me up in the paper this morning [...].

> Why the hell you said that, you dickhead, I don’t know.

> Can you believe that bloody bitch in [the newspaper] [...].

> In her bum.

> Well, tell her to go to buggery for me!

The ACMA notes that the potential relevant attribute for the purposes of clause 1.1(e) of the Codes is gender.

While the ACMA considers the words used by Mr Francis to be very coarse and demeaning, the ACMA does not consider that he placed an undue emphasis on female gender-specific words.

In the context of the program of 6 June 2012 as a whole, the ACMA does not consider that Mr Francis’s negative comments were made on the basis of the journalist’s gender, for the purposes of clause 1.1(e) of the Codes.

Accordingly, in relation to the broadcast of 6 June 2012, the ACMA finds that the licensee did not breach clause 1.1(e) of the Codes.

Issue 2: Generally accepted standards of decency

Relevant Clause of the Codes Program Content and Language, including Sex and Sexual Behaviour

1.3 (a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.

1.3 (b) For the purposes of determining:

(i) the audience of the relevant program; and

(ii) the demographic characteristics of that audience,

regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

FindingIn relation to the broadcast of 4 June 2012, the ACMA finds that the licensee breached clause 1.3(a) of the Codes.

In relation to the broadcast of 6 June 2012, the ACMA finds that the licensee breached clause 1.3(a) of the Codes.


ReasonsGenerally accepted standards of decency

Clause 1.3(a) requires the ACMA to consider the meaning of the phrase ‘generally accepted standards of decency’.

The objects of the Broadcasting Services Act 1992 (the BSA) include the promotion of the availability of a diverse range of radio services to audiences throughout Australia2. Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.

Diverse audiences in Australia will not have everyday tastes and standards in common. Members of the community may accept that some material that they find coarse or offensive would not be similarly judged by others. People tend to accept, up to a point, the right of others to have such material broadcast during programs to which they listen.

The ACMA considers that the term ‘generally accepted standards of decency’ refers to the current consensus of recognised present day standards of propriety. Such standards are not hard and fast either over time or across all sections of the community. Determining the current consensus of recognised present day standards of propriety is not an easy task. In this regard some guidance is provided by the courts which have said when considering whether material is indecent, regard should be had to a ‘multicultural, partly secular and largely tolerant if not permissive society’3.

Previously, where the ACMA has found breaches of the decency provisions of the code it has had regard to a number of matters including:

> the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive4;

> the tenor or tone of the broadcast: for example, was it light-hearted or threatening; matter-of-fact or salacious5;

> the language used in the broadcast: for example, was it abusive, profane, vulgar or lewd6; and

> the attitudes conveyed: for example contemptuous disregard for human life or suffering7.

Demographic characteristics of the audience of Bob Francis

Clause 1.3(a) of the Codes requires the ACMA to have regard (though not sole regard) to the demographic characteristics of the audience of the program, Bob Francis.

The licensee submitted that the ‘target and predominant audience [of the Bob Francis program] is that of people aged over forty...’ A Nielsen Survey for the period 6 May to 9 June 2012 indicates only that the majority of the licensee’s listeners are aged 55 years and over.

2 See section 3(1)(a) of the BSA3 Pell v Council of the National Gallery of Victoria [1998] 2 VR 3914 Refer, for example, ABA Investigation 1270, and ACMA Investigations 1628 and 2266.5 Refer, for example, ACMA Investigation 2751.6 Refer, for example, ACMA Investigations 1628 and 1717.7 Refer, for example, ABA Investigation 1270 and ACMA Investigation 2598.


The licensee further submitted that Mr Francis is ‘a passionate, opinionated announcer who is renowned in Adelaide for his strong views and passionate opinions’. The licensee submitted, ‘[Mr Francis’s] listeners understand his mannerisms and expect (and often demand) strong reactions and passionate debate when listening to his show’. While one of the relevant characteristics of the audience of a program would be the likely expectations of that audience, the demographic characteristics (including the fact that the audience is over 55) are not determinative of their attitudes.

Public reactions to the broadcasts

Both the 4 June and 6 June broadcasts generated a strong reaction in the public arena. While these responses are not determinative of any breach of clause 1.3(a) of the Codes, they illustrate some reactions to the broadcasts.

The broadcast of 4 June 2012 received the following responses:

> a spokesperson for Immigration Minister, Chris Bowen, condemned Mr Francis’s comment stating:

Regardless of your views on asylum seeker policy, that sort of statement is to be condemned.8

> South Australian Multicultural Affairs Minister, Jennifer Rankine, condemned Mr Francis’s comment stating:

I find Bob Francis’s comments to be inflammatory and not representative of the community’s views or Australian values.9

> Amanda Blair, the then presenter of 5AA’s afternoon program and a colleague of Mr Francis, stated:

You can say any of those hideous, racist, uninformed, cruel, disrespectful thoughts in your house, but not as a broadcaster. You have a responsibility to refrain from such hate-filled vitriol.10

> Keith Conlon, presenter of 5AA’s breakfast program and a colleague of Mr Francis, stated:

Personally, it’s sad that it happens – it’s difficult for me that somehow it’s an acceptable thing to say.11

The broadcast of 6 June 2012 received the following responses:

> Amanda Blair, the then presenter of 5AA’s afternoon program and a colleague of Mr Francis, stated:

No broadcaster should be allowed on a public commercial radio station to say things like that. Kyle Sandilands gets in trouble for

8 The Australian, ‘Radio ‘king’ slammed over boatpeople tirade’, http://www.theaustralian.com.au/national-affairs/immigration/radio-king-slammed-over-boatpeople-tirade/story-fn9hm1gu-1226388100400 accessed by ACMA staff on 19 August 2012.

9 The Australian, ‘Radio ‘king’ slammed over boatpeople tirade’, http://www.theaustralian.com.au/national-affairs/immigration/radio-king-slammed-over-boatpeople-tirade/story-fn9hm1gu-1226388100400 accessed by ACMA staff on 19 August 2012.

10 Ibid.11 Ibid.


http://www.theaustralian.com.au/national-affairs/immigration/radio-king-slammed-over-boatpeople-tirade/story-fn9hm1gu-1226388100400




saying someone is fat, for god's sake. It is time for station management to have a good hard talk to Bob.12

> Peter van Onselen, the presenter of The Contrarians on Sky News and columnist for The Australian called for Mr Francis ‘to be kicked off the airwaves immediately’:

If Kyle Sandilands is going to get in trouble for a few inappropriate jokes and stupid comments, that kind of offensive rhetoric from Bob Francis should see him [...] conducting radio nowhere. Retire Bob, you're a disgrace. [...] The only good news to come out of this is that at his radio station senior individuals [...] have reprimanded him and done so strongly. What we have to hope is radio management have the guts to do the same.13

Assessment of the content against the Code provision


The ACMA makes the following observations about the 4 June 2012 broadcast:

> Mr Francis’s comment was made in response to a caller’s questions about the broader issue of equitable access to crisis assistance for Australian citizens and refugees;

> Mr Francis used the context of that discussion to convey an unrelated and extremely insensitive view about asylum seekers, namely that he hopes that they drown while en route to Australia; and

> Mr Francis’s comment was made in an aggressive and malevolent tone with a raised voice and conveyed a contemptuous disregard for the numerous fatalities that have occurred at sea.

It is likely that the Australian community would have an awareness of asylum seeker issues, including the high number of recent asylum seeker fatalities at sea. Consequently, general and even heated discussion of the issue in the context of a contemporary broader debate relevant to Australians would have been acceptable on a talk-back radio program. It is important to distinguish an exchange of ideas and disagreement on talk-back radio from speech which may offend generally accepted standards of decency. In the course of inquiry and argument, a talk-back radio presenter may well introduce material or comments that are challenging and confronting. The discomfort this may give rise to among listeners and the wider community does not in and of itself constitute the offending of generally accepted standards of decency.

While agreeing that the comments were ‘distasteful’, ‘highly inappropriate’ and ‘that comments of this kind should not be broadcast on air’, the licensee also submitted that the Bob Francis audience would ‘understand when [Mr Francis] is to be taken seriously and when he is simply having a “vent” or showing frustration at a listener or around an issue of concern to him’. In relation to Mr Francis’s comments about asylum seekers, the licensee submitted that the program’s audience would be ‘likely to understand [Mr

12 http://www.mediaspy.org/2012/06/09/fiveaas-francis-off-air-after-boat-people-tirade/ accessed by ACMA staff on 19 September 2012.

13 http://www.theaustralian.com.au/media/talkback-shock-jock-off-air-for-a-month/story-e6frg996-1226389512266, accessed by ACMA staff on 20 September 2012.


http://www.theaustralian.com.au/media/talkback-shock-jock-off-air-for-a-month/story-e6frg996-1226389512266

http://www.theaustralian.com.au/media/talkback-shock-jock-off-air-for-a-month/story-e6frg996-1226389512266

http://www.mediaspy.org/2012/06/09/fiveaas-francis-off-air-after-boat-people-tirade/

Francis’s] remark to be ridiculous, ill-conceived and in poor taste rather than as offending generally accepted standards of decency’.

The ACMA is not persuaded by this argument. The ACMA considers that, in light of the abovementioned observations it made about the 4 June 2012 broadcast, and regardless of their views about the acceptance of asylum seekers, the general community and the audience of the Bob Francis program would consider remarks hoping that asylum seekers drown on their way to Australia, especially in the context of recent fatalities under such circumstances, to be deeply offensive.

Accordingly, the ACMA finds that the comment offended generally accepted standards of decency, having regard to the demographic characteristics of the audience of the Bob Francis program.

The ACMA notes that Mr Francis apologised on 2 July 2012 for his comment. The ACMA does not consider that the apology was made in a reasonable timeframe or that it remediates the breach.


The ACMA makes the following observations about the 6 June 2012 broadcast, including those identified in the complaint:

> Mr Francis used very coarse language and made disparaging and derogatory comments to describe the journalist, such as ‘bitch’, ‘wanker’, ‘dickhead woman’ and ‘smart-arse’;

> Mr Francis expressed his comments in an aggressive and belligerent manner conveying his dislike of and contempt for the journalist;

> the comments were sustained throughout the four hour program with Mr Francis verbally attacking the journalist at approximately 9pm, 10pm and 11pm;

> Mr Francis purposefully identified the journalist by name and job title on four separate occasions; and

> Mr Francis made vulgar remarks saying, ‘in her bum’ and ‘tell her to go to buggery’.

The ACMA notes that Mr Francis launched an on-air, sustained and deeply personal verbal attack against the journalist, which was broadcast repetitively throughout the four hour duration of the program. In this regard, Mr Francis’s voluntary and very direct attack on the journalist appeared to be calculated.

Mr Francis disparaged the journalist by making derogatory comments which appeared to be for no other purpose but to intimidate, offend, degrade and humiliate the journalist. In this regard, the ACMA notes Mr Francis made the following comments, including those identified in the complaint:

> Why the hell you wrote that story, I have no idea. I don’t think anybody reads your bloody paper, [Journalist’s first name] [...];

> You wanker, [name of journalist]. I don’t know who the hell you are but I’d be very prepared to give you my mobile telephone number so that whenever you grab a story like that you don’t need to go to anybody else for a comment. You can take it from me and I’ll give you the mobile number. You hear me!


> [S]ome smart-arse, dickhead woman, [name of journalist], South Australian political reporter for [the newspaper], wrote me up in the paper this morning [...].

> Why the hell you said that, you dickhead, I don’t know.

> I don’t think anyone reads the bloody [Name of newspaper] in Adelaide.

> Can you believe that bloody bitch in [the newspaper] [...].

> In her bum.

> Tell her to go to buggery for me!

Mr Francis’s comments became increasingly crude, disrespectful and aggressive with each comment more derogatory than the preceding one, culminating in him calling the journalist a ‘bloody bitch’. On their own each of the comments were vulgar and, in the context of the program as a whole, the ACMA considers that together they had a strong cumulative effect.

Having regard to the repeated and persistent nature of Mr Francis’s comments of a similar character and in light of the abovementioned observations it made about the 6 June 2012 broadcast, the ACMA considers that the comments offended the code requirements. Having regard to the demographic characteristics of the Bob Francis audience, the ACMA holds the view that listeners would not expect to hear a sustained, vitriolic attack on an individual broadcast on the radio or consider it acceptable or appropriate. Accordingly, the ACMA finds that Mr Francis’s comments about the journalist over the four hour program offended generally accepted standards of decency.

Issue 3: Complaints handling

Relevant Clause of the CodeAdvice in writing

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

FindingThe licensee breached clause 5.5 of the Codes.

ReasonsLicensees are required to respond substantively to complaints about matters covered by the Code.

The ACMA has reviewed the letter of complaint to the licensee dated 20 June 2012 and notes the introductory paragraph of the complaint:

I am writing to register an official complaint against material broadcast by Mr Robert Francis on your radio station on Monday night June 4th 2012, namely the remark, “Bugger the boatpeople I say. As far as I’m concerned, I hope


they bloody drown out there on their way over here – in my opinion they are not welcome here. And further remarks later made attacking the journalist who rightly raised the issues around such an inhuman, vicious and cruel comment in [the newspaper] - [emphasis added by the ACMA].

Although he did not provide a date, the complainant quoted the ‘further remarks’ in his complaint:

Can you believe that bloody bitch in [the newspaper]...some smart-arse, dickhead woman...wrote me up in the paper this morning [...] But I think she was having a go at me saying, you know, Egyptian born, so he was probably an immigrant himself and why does he want the people to die from coming over, the boatpeople”

He clearly identifies two sets of comments made by Mr Francis, which are of concern to him:

(i) ‘the remark bugger the boat people [...]’; and

(ii) ‘remarks later made attacking the journalist [...].

The licensee provided the complainant with a substantive response in relation to Mr Francis’s comments about asylum seekers of 4 June 2012 but did not address Mr Francis’s comments about the journalist of 6 June 2012.

The licensee submitted that it had ‘addressed the complainant’s concerns and responded appropriately based on the information provided’. In support of this, the licensee submitted:

The complainant does not identify the time and/or date of the broadcast of [the 6 June] comments. [...] it is difficult from the complainant’s letter to ascertain exactly what was reported in print and what was broadcast’.

As discussed above, the complainant adequately identified a complaint about comments broadcast on 6 June which he quoted.

As such, the licensee was required to address the broadcast of 6 June in a substantive response to the complainant. The licensee failed to do so, in breach of clause 5.5 of the Codes.


ATTACHMENT A

Transcript, Bob Francis, 4 June 2012

Approximately 8:50pm

[...]

Mr Francis: Hello, [caller 1].

Caller 1: Hi. How are you?

Mr Francis: I’m fine thanks.

Caller 1: That’s good. I was just thinking about, you know, the refugees when they come over. A lot of the people say, you know, like, they’ve got to get in the country because they want to come here to survive. And, I’m just wondering about the word ‘survival’. In what sense are we talking about survival? Now, they come here and they flee their countries and they want to come and live in Australia. A lot of the people say, you know how they get, like, a lot of things, live in a [inaudible] and Centrelink payments or whatever.

Mr Francis: After a long period of time of hanging around those camps.

Caller 1: Yeah.

Mr Francis: If they get allowed into the country.

Caller 1: Yeah, and also, Bob, when there are people who are in Australia, there are a lot of women who, you know, they’ve been in the floods, they’ve had flooding in their houses, they don’t get crisis accommodation. They go to Tony Abbott and they ask him and he doesn’t help them. So, I’m just wondering, well, they’ve got to survive.

Mr Francis: Hang on. You’re a bit around all over the place here. You’re talking about the people coming from overseas.

Caller 1: Yeah.

Mr Francis: And what’s Tony Abbott got to do with it?

Caller 1: I don’t know, just some people went to see him about, what about giving...

Mr Francis: Hang on. Tony Abbott’s not the bloody Government. The woman’s the bloody Government. Gillard’s the bloody Government.

Caller 1: Yeah, well, they went to see him and they told him that...

Mr Francis: No, that’s a woman. They went to see her.

Caller 1: Yeah, I don’t know, some went to see her but some have spoke to Tony Abbott, saying that, you know, there’s floods about and they don’t get crisis help at all. But then they went to Catholic Church and they get a bit of help there.

Mr Francis: [Caller 1], you’re all over the place. I don’t even understand what you’re talking about.

Caller 1: I’m just trying to work out, like, everybody’s got to survive.

Mr Francis: What’s that got to do with the bloody people jumping over the boat people? Bugger the boat people, I say. As far as I’m concerned I hope they bloody


drown out there on their way over here. They’re not welcome! In my opinion, they are not welcome here.

Caller 1: Yeah, you know the survival, Bob?

Mr Francis: Yeah.

Caller 1: Everybody’s got to survive, so they should look after the people here first. I do believe that.

Mr Francis: The ones that are here, who live here, who are the legal Australians, I agree with that. And most people are looked after, who are the legal people, who live in this country.

Caller 1: But a lot are in crisis and, you know, they’ve got nowhere to go and they don’t know what to do. They say everybody, the refugees, a lot of them, they come here, they get crisis, they totally get everything.

Mr Francis: No, well, that’s not true. That’s not true.

Caller 1: A lot of people are talking...

Mr Francis: Once they get in, they’ve gone through the proper processes, they get just like everybody else gets. Nobody gets any special treatment. Once they get in they get the same things that everybody else has who can come to live in this country. I’ll have to leave you there [caller 1]. Thank you.

[...]

Transcript, Bob Francis, 6 June 2012


[...]

Mr Francis: Now my boss rang me last night and said, ‘there’s going to be a story in [the newspaper] paper this morning’. And he was concerned about what I said on the air last Monday night. Apparently, well not apparently, I did say, ‘Bugger the boat people, I say. As far as I’m concerned I hope they bloody drown out there on their way over here. In my opinion, they are not welcome here’.

Now, that little line was picked up by a woman called [name of journalist] who apparently is the South Australian political reporter for [the newspaper]. Why the hell you wrote that story, I have no idea. I don’t think anybody reads your bloody paper, [Journalist’s first name] because nobody has made any comment to me about that, nothing has been said. And what got me was she wrote a two column story and in the story she puts, ‘top radio presenter has told listeners asylum seekers should drown before they arrive here by boat. The Egyptian born Francis, 73’.

The Egyptian born Francis? What did that have to do with the whole bloody story? Are you trying to make out that I have some Egyptian background in me and I shouldn’t have been talking about the boat people? You wanker, [name of journalist]! I don’t know who the hell you are but I’d be very prepared to give you my mobile telephone number so that whenever you grab a story like that you don’t need to go to anybody else for a comment. You can take it from me and I’ll give you the mobile number. You hear me!


[...]


[...]

Mr Francis: Yes, this is Egyptian born, Bob Francis. I make that remark because some smart-arse, dickhead woman, [name of journalist] South Australian political reporter for [the newspaper], wrote me up in the paper this morning saying, ‘Egyptian born Francis’. Why the hell you said that, you dickhead? I don’t know.

Mr Francis: And I’m Bob Francis, Egyptian born, four minutes to ten. Hi there.

Caller 2: Hi Bob. Have you invited the lady to ring you up or not?

Mr Francis: I said she’s quite welcome to call me and I’d be quite happy to give her my mobile number so if she ever wants a quote from me she doesn’t have to necessarily ring the station manager. I’d be quite happy to give her a quote and tell her exactly what I said was what I said and I like what I said.

Caller 2: And I think they’re in [inaudible]. There has apparently been a boat every day coming.

Mr Francis: Unbelievable! I reckon 99 per cent of the people would agree with everything I said in that story.

Caller 2: What paper was it in?

Mr Francis: In [the newspaper] this morning. I don’t think anyone reads The bloody [Name of newspaper] in Adelaide.

Caller 2: I do but I don’t buy it because it’s too expensive. And do you know there’s Australian Navy patrolling that area in case they might find someone to save. And that cost Australian government a lot of money to...

Mr Francis: The point is, those boats would be patrolling anyway, so it doesn’t matter, but we’re trying to be nice people, to make sure these people are looked after properly because the Indonesians don’t give a damn about them. But personally, I really couldn’t give a stuff.

Caller 2: I work with someone from Indonesia. She’s a very lovely lady and she said, ‘I complained about the asylum seekers in the early 90s and I was told to be quiet and not to...’

Mr Francis: There’s too many bloody do-gooders up there in the situation. If the ABC were able to find those people who are the official bringers of people from overseas, they’re living here, they’ve got housing trusts, homes to live in, they found them to have a chat with them the other day and he disappeared the following day. They are living here in Australia. They could be bringing people over from Indonesia, from anywhere in the world, and they could be just sitting here slowly just organising little terror plots and we don’t know about it.

Caller 2: Sleepers.

Mr Francis: Unbelievable! That’s right.

[...]



[...]

Caller 3: Hello Bob. [Inaudible]. I’m just trying to be funny. I’m just wondering where do you park your camel when you go to work?

Mr Francis: Oh darling, occasionally I try to put it out in Hindmarsh Square but the Lord Mayor keeps on putting big boxes out there for bicycles so I never get a chance to put it anywhere.

Caller 3: I hope you take your shovel with you then.

Mr Francis: Can you believe that bloody bitch in [the newspaper] wrote that I was ‘Egyptian born’! What the hell that had to do the story? I’m buggered if I know.

Caller 3: I agree with you Bob, whole heartedly.

Mr Francis: But I think she was having a go at me saying, you know, Egyptian born so he was probably an immigrant himself and why does he want the people to die from coming over, the boat people

Caller 3: She won’t contact you though.

Mr Francis: No! In her bum.

Caller 3: Ok, Bob. Have a lovely holiday.

Mr Francis: Thanks.

Caller 3: Goodnight.

Mr Francis: Hello [Caller 4].

Caller 4: Hello. Who was the bitch?

Mr Francis: Oh, there was, I can’t remember her name. Hang on, I’ve got it here. Her name is [The journalist’s full name]. Do you know her?

Caller 4: I’ve had lunch with her.

Mr Francis: Have you? South Australian political reporter for [the newspaper].

Caller 4: Oh yeah, yeah, she’s a constituent of mine.

Mr Francis: Is she really? Well, tell her to go to buggery for me!

Caller 4: I’ll tell her that next time I see her

Mr Francis: Beautiful.

Caller 4: She owes me lunch.

Mr Francis: You buy the lunch and good luck to you.

[...]


ATTACHMENT B

Complainant’s submission

On 20 June 2012, the complainant submitted to the licensee:

[...]

I am writing to register an official complaint against material broadcast by Mr Robert Francis on your radio station on Monday night June 4th 2012 namely the remark, “Bugger the boat people, I say. As far as I’m concerned, I hope they bloody drown out there on their way over here – in my opinion they are not welcome here.” And further remarks later made attacking the journalist who quite rightly raised the issues around such an inhuman, vicious and cruel comment in “[the newspaper]”.

I believe the remark is grotesque, inappropriate across any bush front bar, but utterly inappropriate and indefensible over Radio Australia airwaves and in breach of [the Codes]. As if that wasn’t enough, Francis followed in another programme with an abusive tirade against the female reporter who wrote an article about the appalling comment, which further breaches [the Codes].

“Can you believe that bloody bitch in ‘[the newspaper]’... some smart-arse dickhead woman... wrote me up in the paper this morning.” Francis said. “But I think she was having a go at me, saying, you know, Egyptian born, so he was probably an immigrant himself and why does he want the people to die from coming over, the boatpeople.”

The extent to which the remarks are found to be offensive, in spite of [the licensee’s] “demographic” and Bob Francis ratings, is shown by the opinions of two of your other announcers, top rating breakfast presenter Keith Conlon and afternoon show host Amanda Blair, one of Adelaide’s most popular radio personalities, who both criticised Francis.

“You can say any of those hideous, racist, uninformed, cruel, disrespectful thoughts in your house, but not as a broadcaster. You have a responsibility to refrain from such hate-filled vitriol,” Ms Blair commented. More damningly she added, “No broadcaster should be allowed on a public commercial radio station to say things like that. Kyle Sandilands gets in trouble for saying someone is fat, for god’s sake. It is time for station management to have a good hard talk to Bob.”

Nor did Keith Conlon shy away from criticism of his colleague, “Personally, it’s sad that it happens – it’s difficult for me that somehow it’s an acceptable thing to say.”

Bob Francis is obviously paid a great deal to be provocative and no doubt draws in vast revenue, but deliberately attempting to polarise listeners is no defence when you’re wishing death on fellow human beings. The man and his comments are utterly contemptible. He has no place on Australia Radio if ACMA rightly applies [the Codes].

[...]


ATTACHMENT C

Licensee’s submission

On 4 July 2012, the licensee submitted to the complainant:

[...]

Thank you for your listener complaint form dated 20 June 2012 regarding a remark made by Bob Francis at approximately 8:50pm on 4 June 2012 (the “Remark’).

[...]

Summary of FIVEaa’s response to your complaint

At the outset, I would like to express our regret that the Remark has caused offence to you. This is unfortunate and not something intended by FIVEaa.

We have given full and detailed consideration to the concerns you have raised in your complaint and have listened to the Remark in lights of those concerns.

As a matter of corporate policy and broadcasting practice, FIVEaa believes that the Remark was highly inappropriate. Accordingly, FIVEaa believes that comments of this kind should not be broadcast on-air by any of its announcers.

However, in light of the context in which the Remark was made, FIVEaa does not believe that the broadcast of the Remark breached [the Codes].

Action taken by FIVEaa

After the Remark was broadcast and prior to receiving your complaint, I have personally discussed this matter at length with Bob Francis. Bob recognises that the Remark was highly inappropriate and not consistent with the high standards that FIVEaa expects of its announcers. Bob has acknowledged his misjudgement in this instance and will be more sensitive towards this in future.

In addition, Bob issued a public apology in respect of the Remark in [the newspaper] on 2 July 2012.

The Remark the subject of your complaint

The Bob Francis show is broadcast on FIVEaa each weeknight between 8pm and midnight (the Show). It is an often highly-charged, highly interactive show discussing topics of general interest ranging from social issues, sports, politics and light hearted entertainment. Bob is a passionate, opinionated announcer who is renowned in Adelaide for his strong views and passionate opinions.

During the broadcast on 4 June 2012, Bob took a call from [Caller 1] who raised an issue about immigrants and refugees to Australia and, more specifically, the definition of the word “survival”. She then went on to assert that refugees receive a lot of benefits over other Australians, at which point Bob interjected and disagreed with her statement. [The caller’s] further arguments are difficult to understand, as Bob points out – at one point she refers to Tony Abbott as the Prime Minister, which Bob corrects as he becomes increasingly agitated with the caller, stating that she ‘isn’t making any sense’. Finally, Bob appears to lose his temper with the caller, stating: “bugger the boat people I say! As far as I’m concerned I hope they bloody drown out there on their way over here!”


Immediately after this, the tone of the conversation quietened and the call was terminated. The show then moves onto the news.

Your complaint

FIVEaa has considered your complaint as set out in the complaint form against [the Codes].

FIVEaa believes that your complaint is properly characterised as being a complaint under subclause 1.3(a) of the Code. Subclause 1.1(e) may also be considered relevant. Sub-clause 1.1(e) provides:

“A licensee must not broadcast a program which... is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of... ethnicity, nationality or race”.

The relevant enquiry in determining whether FIVEaa breached [clause 1.1(e) of] the Code in broadcasting the Remark is therefore: was the remark likely to incite hatred against, serious contempt for, or severe ridicule of boat people on the basis of ethnicity, nationality or race?

In addition, sub-clause 1.3(a) provides that:

“Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program”.

Sub-clause 1.1(e) of the Code

Before analysing the principles set out in Code 1.1(e), it is worth noting that the Remark relates to refugees into Australia who arrive by boat (more commonly known as ‘boat people’). At no point during the Remark is a specific race, ethnicity or nationality of people mentioned. To the best of FIVEaa’s knowledge, boat people into Australia come from a number of different nationalities, races and religions. They are not limited to one specific race or nationality of people. Because of this, we do not feel that sub-clause 1.1(e) of the Code is applicable to the Remark.

[...]

Does the Remark breach sub-clause 1.1(e)?

When considered in context, FIVEaa does not believe that it is probable that the Remark would cause an ordinary reasonable listener to either:

a) regard boat people with strong or passionate dislike; or

b) speak evil of, defame or traduce boat people.

We must also again point out that not even insult or offence is alone enough to give rise to a breach of sub-clause 1.1(e). Rather, what is required is the use of language that is so strong that hatred or serious contempt or serious ridicule is likely. We believe strongly that that is not the case here.

In considering whether the remark breached the Code, the FIVEaa also believes that is it important to recognise that:

the Remark was an isolated “off-the-cuff” comment’


notwithstanding that we consider the Remark to be distasteful and inappropriate, the Remark is so extreme and ridiculous that it is extremely unlikely that listeners would consider Bob to be serious about his comment;

the Remark is very inconsistent and contradictory to Bob’s prior comments regarding the caller’s views on immigration – from the relevant audio, Bob appears to ‘snap’ in frustration to the caller when the Remark was made (which doesn’t excuse the Remark, but which indicates that it was an off the cuff, ridiculous comment out of context of the rest of the call and segment generally);

Bob himself is an immigrant to Australia and has made many comments over the years (including during the call with [caller’s name]) defending the rights of immigrants; and

The remark was not the focus or central element of the broadcast.

In light of the above, when considered in context, FIVEaa is confident that an ordinary, reasonable listener would not understand the Remark to be inciting hatred against, severe ridicule of, or serious contempt of boat people or any particular race or ethnic group of people. FIVEaa therefore does not believe that the Remark breached sub-clause 1.1(e) of the Code.

Sub-clause 1.3(a) of the Code

[...]

FIVEaa’s target and predominant audience is that of people aged over forty. The predominant audience of the Bob Francis show are adults over 55.

As can be seen from the 70 consecutive ratings wins Bob has enjoyed on FIVEaa in his timeslot, Bob’s listeners understand his mannerisms and expect (and often demand) strong reactions and passionate debate when listening to his show.

The target and predominant audience also understand when Bob is to be taken seriously and when he is simply having a ‘vent’ or showing frustration at a listener or around an issue of concern to him. After listening to the Remark several times and speaking at length with Bob, we are confident that the Remark was an (ill-considered) reaction to a difficult listener and never intended to be taken seriously. The fact that the Remark is so out of context and extreme in comparison to the rest of the discussion supports this. Whilst this does not excuse the Remark, we are confident that it was an isolated incident and was never intended to be purposefully malicious towards a person or group of people.

Bob himself is an immigrant and had discussed immigration on-air several times over the years. Knowing Bob and having listened to his show many times, and after discussing this incident with him, I do not believe that Bob wishes harm on anyone, I do not believe that Bob disagrees with immigration to Australia but was frustrated with a caller who was quite incomprehensible and (as it appears from recent media coverage that many Australians are) with current policy with regard to refugees coming to Australia by boat. Whilst the Remark was absolutely not the appropriate way to address this concern (as acknowledged by FIVEaa and by Bob personally) it does at least serve as some explanation of, in particular, the intentions behind the Remark.


In our view, for the reasons set out above, when considered in context, this core demographic is more likely to understand the Remark to be ridiculous, ill-conceived and in poor taste than as offending generally accepted standards of decency.

Notwithstanding the above, FIVEaa accepts that some of its listeners may consider that the Remark was made in poor taste and we sincerely apologise for any offence or distress caused.

Accordingly, in response to your complaint, FIVEaa has taken the steps outlined above under the heading “Action taken by FIVEaa”.

On 16 August 2012, the licensee submitted to the ACMA:

[...]

With regard to FIVEaa’s compliance with Code 5.5 we strongly believe that the response sent to the complainant on 4 July 2012 fully complies with this Code.

The only piece of audio which was identified by (approximate) time and date in the complainant’s letter was the remark by Bob Francis regarding Boat people (the Code Remark), which became the focus of the very substantive response to the complainant from FIVEaa. The references made to any other comments/pieces of audio in the complainant’s letter all stem from the Core Remark made by Bob Francis.

As you are aware, the complainant makes reference to another comment regarding an article written about Bob Francis in [the newspaper] and the author of this article. The complainant does not identify the time and/or date of the broadcast of this comment. We have, since receiving your letter, taken considerable time to search our records and have located this material, which is attached for your reference. It appears that the complainant has taken the quote used in his letter from a subsequent article in [the newspaper], not from the actual broadcast. It is unclear whether the complainant ever actually heard the broadcast or not.

In addition, the complainant made reference to two comments by other FIVEaa announcer (without references to time or date of broadcast) which appear to relate to or comment on the Core Remark made by Bob Francis. Again, we have spent time trying to find this content, but were unable to locate any broadcast material. It appears that these comments were made in an article published in [the newspaper] on 6 June 2012 (a copy of which we attached to this letter). As far as we are aware these comments were not broadcast on FIVEaa.

I am sure you will agree that it is difficult from the complainant’s letter to ascertain exactly what was reported in print and what was broadcast. Notwithstanding this, FIVEaa has addressed the complainant’s concerns and responded appropriately based on the information provided and in accordance with the Codes.

[...]


ATTACHMENT D

Interpretation of clause 1.1(e) of the Codes

The ACMA adopts the general approach set out below, when assessing whether broadcast material breaches clause 1.1(e) of the Codes.

‘In all of the circumstances, is likely to’

Use of the words, ‘in all of the circumstances, is likely to’ imposes an objective test14 and implies a real and not remote possibility; something which is probable.15

‘Incite hatred against, serious contempt for or severe ridicule of’

When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.

The Macquarie Dictionary (online edition) includes the following definitions:

Incite verb to urge on; stimulate or prompt to action.

Hatred noun the feeling of someone who hates; intense dislike; detestation.

Serious adj 1. of grave or solemn disposition or character.

Contempt noun 1. the act of scorning or despising.

2. the feeling with which one regards anything considered mean, vile, or worthless.

Severe verb 1. harsh; harshly extreme.

Ridicule noun 1. words or action intended to excite contemptuous laughter at a person or thing; derision.

Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group. There is no need to establish that there was a specific intention to incite or to prove that anyone was actually incited.16 However, the material must include something more than the use of words that merely convey hatred, serious contempt or severe ridicule towards a person. ‘There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others’.17

‘Because of’

The incitement of serious contempt or severe ridicule must occur on a basis specified in clause 1.1(e) of the Codes, including nationality or ethnicity of the person or group of persons. This means there must be a causal connection between the relevant basis, such as nationality or ethnicity of the person or group of persons, and the feelings of contempt or ridicule that are likely to be incited by the broadcast material.18

14 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at p.12.15 Re Vulcan Australian Pty Ltd v Controller-General of Customs (1994) 34 ALD 773 at p.778-779.16 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23-29]. 17 Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].18 Kazak v John Fairfax Publications Limited at [72].


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