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Investigation Report 2742File Nos. ACMA 2012/72

Broadcaster Channel Seven Melbourne Pty Ltd

Station HSV Melbourne

Type of service Commercial television broadcasting service

Name of program Today Tonight

Date of program 5 October 2011

Relevant Code Clauses 4.3.1, 4.3.2 and 4.3.10 of the Commercial Television Industry Code of Practice 2010

Decision Breach of clause 4.3.1 No breach of clause 4.3.1 No breach of clause 4.3.2 No breach of clause 4.3.10

ACMA Investigation Report 2742 –Today Tonight– HSV – 5 October 2011

The complaintThe Australian Communications and Media Authority (the ACMA) received a complaint about the program, Today Tonight, broadcast by Channel Seven Melbourne Pty Ltd, the licensee of HSV, on 5 October 2011. The complainant submitted that the program was factually inaccurate, created public panic regarding the Muslim community and placed gratuitous emphasis on the Islamic faith and practices.

The complainant was not satisfied with the response provided by the licensee and complained to the ACMA.1

The investigation has considered the licensee’s compliance with clauses 4.3.1 [factual accuracy], 4.3.2 [create public panic] and 4.3.10 [portray in a negative light] of the Commercial Television Industry Code of Practice 2010 (the Code).

The programToday Tonight is a half hour current affairs program broadcast weeknights on the Seven Network at 6:30 pm.

On 5 October 2011, the relevant segment reported on a Council in Melbourne (referred to here as the D Council – the complainant) which used a grant from the Federal Government’s Counter-Violent Extremism Fund to advertise for an Outreach Project Officer to work with the local Muslim community. The words ‘Muslim Council’, ‘Spreading Sharia Law’ and ‘Community Crusade’ were displayed onscreen during the following introduction to the segment:

Now the Council spending ratepayers’ money to make Muslims feel more at home and to spread their faith. [Reporter] reports a public crusade has started opposing the plan and a Council, which is no stranger to controversy, when it comes to supporting its Islamic community.

The segment featured interviews with JG and PG, from the Q Society, a group concerned with the ‘Islamification of Australia’; JA, a student; JD, President of the Ratepayers Association; and HH, spokesman for the Islamic Council of Victoria.

A transcript of the broadcast is at Attachment A.

AssessmentThe ACMA’s assessment is based on a letter of complaint and further correspondence from the complainant to the ACMA, correspondence between the licensee and the complainant, submissions from the licensee to the ACMA and a copy of the broadcast provided by the licensee. Other sources used have been identified where relevant.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. 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:

1 See section 148 and subsection 149(1) of the Broadcasting Services Act 1992 in respect of the ACMA’s role in investigating complaints under codes of practice.

ACMA Investigation Report 2742 –Today Tonight– HSV – 5 October 2011 2

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 affairs2.

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

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 Code.

Issue 1: Presentation of factual material and representation of viewpoints fairly

Relevant Code ClauseNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

The considerations which the ACMA generally applies in determining whether a statement complies with the licensee’s obligation to present factual material accurately are set out at Attachment B.

FindingsThe licensee:

1. did not breach clause 4.3.1 of the Code in relation to the statement, ‘…but should the ratepayers be footing the bill?’;

2. did not breach clause 4.3.1 of the Code in relation to the statement, ‘A public crusade has started opposing the plan…’;

3. breached clause 4.3.1 of the Code in relation to the reference to a ‘limited job description’ of the Outreach Project Officer;

4. breached clause 4.3.1 of the Code in relation to the statement ‘the [D] Council has form when it comes to implementing Sharia customs…’; and

5. breached clause 4.3.1 of the Code in relation to statement, ‘…no-one, including the Mayor, were prepared to speak to us’.

Statement 1: ‘…but should the ratepayers be footing the bill?’

Complainant’s submissionThe complainant submitted to the licensee in a letter of 14 October 2011 that:

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


On 28 April 2011, [D] submitted its written application to the Federal Government for $100,000 to fund the position of Outreach Project Officer. The application was made under the Federal Government’s Building Community Resilience Grants Program. This program is aimed at building resilience to violent extremism and forms part of the Federal Government’s $9.7 million investment in counter-radicalisation initiatives.

On 4 July 2011 the Federal Attorney-General Robert McClelland approved the Application as part of $1.7 million funding for 22 projects aimed at reducing the risk of radicalisation within Islamic communities throughout Australia.

It is manifestly incorrect to state, as the report does, that [D]’s ratepayers are “footing the bill” for the Outreach Program Officer.

Indeed the report contradicts itself, stating “[D] Council in Melbourne’s north is doing the hiring, using a grant from the Federal Attorney-General Robert McClelland’s counter violent extremism fund”.

Licensee’s submissionThe licensee submitted to the complainant in a letter of 21 November 2011 that:

The report did not state, or in any other way suggest, that Darebin’s ratepayers were the sole source of funding for the Outreach Project Officers. Indeed, the report canvassed more generally on the Federal Government’s grants and, as you have correctly highlighted, that these grants provide the funds to councils for the Outreach Officers. In this context, we consider it was accurate to state that the Outreach Project Officers were funded by ratepayers, that is, Australian tax payers.

In any event, it is true that [D’s] ratepayers do contribute to the public grants which fund the Outreach Project Officer.

ReasonsThe relevant statement (in bold) was made in the following context:

Reporter: However, the limited job description paints a different picture, where the officer’s role will be to strengthen the Islamic Society of Victoria and implement strategies to assist the Society to dispel myths and misconceptions about Islam and Muslims. An honourable pursuit, but should ratepayers be footing the bill? Ratepayers Association President, [JD].

JD: Are we going to subsidise all these other religions for the same thing?

The ACMA considers that the question posed, followed by the reference to, and comment from, the President of the Ratepayers Association, contains a clear inference that ratepayers are in fact funding the Outreach Project Officer position. The question as to whether the position should be so funded by ratepayers followed the strong opening comments by the presenter in the introduction to the segment:

Presenter: Now the Council spending ratepayers money to make Muslims feel more at home and to spread their faith…


In this case, the ACMA is satisfied that the statement, the subject of the complaint, amounts to factual content as it was presented as an unqualified assertion. Taking into account the context in which it was made, the ordinary, reasonable viewer would have understood the statement to mean that the D Council was spending ‘ratepayers’ money to fund the position of Outreach Project Officer.

Clause 4.3.1.1 of the Code provides that an assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

The ACMA notes that the presenter’s introduction was followed by the reporter’s further statements and a question about the source of funding for the position:

Reporter: Australia, a multi-cultural, multi-faith society. But is the Federal Government playing favourites by funding council workers to spread the word of Islam to Muslims?

This was followed by a comment from a student that the community was not consulted and further references in the segment to the position being funded by the Federal Government:

Reporter: [D] Council in Melbourne’s north is doing the hiring using a grant from the Federal Attorney-General Robert McClelland’s counter-violent extremism fund.

JA: My message to the Federal Government is plain and simple. Do not fund religious activities…

Reporter: The Attorney-General declined to be interviewed, but in a statement revealed that the Gillard Government has spent more than $9.7 million on similar initiatives to counter radicalisation in our communities…

Although it was suggested that ratepayers funded the position, it was made clear that the source of funding was the Federal Government and that ratepayers had concerns about the establishment of the position. The ACMA considers that in the context of the segment in its entirety, the ordinary reasonable viewer would have understood that the position was funded by the Federal Government.

Given that the position was funded by the Federal Government3, the ACMA finds that the licensee presented factual material accurately.

Statement 2: ‘A public crusade has started opposing the plan…’


At the time the Report was broadcast, there was no organised public opposition or campaign against the Outreach Project Officer.

We are instructed there was only one occasion on which a person has spoken publicly to the Council against the implementation of the Outreach Project Officer. The only other material received by the Council in relation to the Outreach Project Officer was a random series of often anonymous, racist, intimidatory emails and phone messages…

3 http://www.ag.gov.au/Publications/Budgets/Budget2010/Mediareleases/Pages/CounteringViolentExtremisminourCommunity.aspx


Licensee’s submissionThe licensee wrote to the complainant in a letter of 21 November 2011 that:

Seven believes that it is clear in the context of the report in its entirety that the “public crusade” referred to generally by the Today Tonight host in her introduction to the report referred to the publicly expressed viewpoints which were included in the report. These viewpoints clearly opposed the government grants, and one viewpoint of a local university student also specifically and publicly objected to both the government grants and the implementation of the Outreach Project Officer by the [D] Council…

The licensee submitted to the ACMA in a letter of 28 March 2012 that:

This comment is made by the program’s host in the introduction to the report. At the time of broadcast, the following information was available which supports the accuracy of the statement:

1. A media release published by the Q Society on 30 September 2011 (Attachment 1). By way of background, the Q Society is a not-for-profit organisation which objects to racial and gender discrimination, as well as “favouritism based on ethnicity, gender or cultural/religious identification”.

2. An article written by Mr Andrew Bolt which was published on Melbourne’s Herald Sun, Sydney’s Daily Telegraph, Adelaide’s Advertiser and on Mr Bolt’s political blog on 28 September 2012 (Attachment 2) This article extracts the particular points of the job description for [D] Council’s Outreach Project Officer that were discussed in Seven’s report. Mr Bolt’s article also questions the government and council’s involvement in “proselytis[ing] for a faith”.

3. 77 comments published on the Herald Sun website in relation to the matters raised in Mr Bolt’s article referred to in point 1 above, 65 of which oppose [D] Council’s proposed Outreach Project Officer (http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/tazpayers_pay_for_a_muslim_missionary/) (Attachment 3).

4. An article written by Mr [BM] which opposed [D] Council’s proposed Outreach Project Officer and was published … and linked to via Mr [BM’s] Twitter page which is followed by over 500 people …

In addition, the following viewpoints opposing the Federal Government scheme and [D] Council’s proposed Outreach Project Officer were presented in the report:

1. At 1.00 into the report, the viewpoint of [VJ], Duty President of the Q Society is presented…

2. At 1.17 into the report, university student, [JA]’s viewpoint is presented…

3. At 1.36 into the report the viewpoint of [PA], a Q Society member, is presented…

For these reasons, Seven submits it was accurate to report that a public crusade had commenced in relation to the [D] Council’s proposed Muslim Outreach Project Officer under the Federal Government initiative.

ReasonsThe reference to the relevant statement (in bold) was made in the following context:

Presenter: Now the Council spending ratepayers money to make Muslims feel more at home and to spread their faith. [Reporter] reports a public crusade has started opposing the plan and a Council, which is no stranger to controversy, when it comes to supporting its Islamic community.


The ACMA considers the statement to be factual content as it was presented in a conclusive and unequivocal manner. Taking into account the context in which it was made, the ACMA is of the view that the ordinary, reasonable viewer would have understood the reference to ‘public crusade’ to mean that there was strong, widespread opposition by the public to the Council’s Outreach Project Officer position.

The licensee submitted that, in addition to the viewpoints expressed in the segment, the phrase ‘public crusade’ referred a media release published by the Q Society, an article written by Mr Andrew Bolt published in various newspapers and 65 comments published in response to Mr Bolt’s article, an article written by Mr BM and comments on the article.

The ACMA has examined the material provided by the licensee and notes that the opinions expressed were critical of the D Council’s Outreach Project Officer position to work with the Muslim community, in particular, the government funding of a religious position. Such comments included:

Islamic propaganda officer. Dumb infidels pick up the tab.

It is not just ‘funding’ it is deliberate propaganda aimed at encouraging a specific religion.

I’m outraged at this lack of separation of church and state.

What a disgraceful way of spending public money.

In this regard, the ACMA considers that the numerous public comments opposing the Council’s plan may be regarded as a ‘public crusade’. Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 of the Code in this instance.

Statement 3: ‘…the limited job description …’


[D] Council had prepared detailed role descriptions for the Outreach Project Officer, both as part of the Application and published advertisements for the role.

The description of the role of the Outreach Project Officer is inaccurate, incomplete and, in the context of the report, portrayed in a different context.

Far from simply strengthening the Islamic Society of Victoria (ISV) and assisting it to dispel myths and misconceptions about Islam and Muslims, the Outreach Project Officer’s role is to:

(a) work with the Islamic Society of Victoria to strengthen its role and effectiveness in organising events, dealing with the media, resolving conflicts and managing stakeholders;

(b) develop and implement activities that assist the ISV to dispel myths and misconceptions about Islam and Muslims;

(c) organise a series of seminars and events around interfaith and intercultural dialogue targeting community members to learn about Islam and its practices;

(d) organise activities that engage the Muslim community in broader community events such as festivals and celebrations taking place across [D].


The Outreach Project Officer role was developed in consultation with a steering committee made up of representatives from community groups including the [D] Interfaith Council, the [D] Ethnic Communities Council, the Northern Interfaith Intercultural Network and the [D] Intercultural Centre.

As is clear from this job description, the role of the Outreach Project Officer is not intended to favour the Muslim Community, but rather to provide benefits to the wider community by facilitating greater interaction from the Muslim community itself.

The complainant provided a copy of the job advertisement for the position.

Licensee’s submissionThe licensee submitted to the ACMA in a letter of 28 March 2012 that:

The term ‘limited’ is a statement of opinion that the position advertised by [D] Council is narrower in scope than the program funded by the Australian Government from which funding for the position was obtained. This program was announced by the Attorney-General on 11 May 2011 and a copy of the press release is attached (Attachment 6A). The Federal Government announcement refers to a “comprehensive government strategy to counter violent extremism”.

The Federal Government program is a broad one and it does not focus specifically on Muslims. By contrast the [D] Council position is specifically focused on working with the Islamic Society of Victoria and engaging with the Muslim community.

Focusing on relationships with the Muslim Community may be consistent with the aims of the Attorney-General’s funding program but it is clearly a sub-set of the overall broad aim of that program which is not limited to Muslim focused activities. As a result Seven submits that it is entirely reasonable to describe the [D] Council position as more limited than the scope of the Federal Government program.

ReasonsThe relevant statement was made in the following context (in bold):

Reporter: While the Attorney-General sells it as a way of building a strong and cohesive society and building resilience in the community against extremism, read into that possible terrorist attacks.

Quote shown onscreen: “The grants programs have specific criteria which ensure that the grants only go to those organisations that are genuinely committed to, and have capacity to build, the resilience of their communities against extremism”.

However, the limited job description paints a different picture, where the officer’s role will be to strengthen the Islamic Society of Victoria and implement strategies to assist the Society to dispel myths and misconceptions about Islam and Muslims.

The following quotes were shown onscreen with the MyCareer website in the background, while the above statement was made:

Working in partnership with the Islamic Society of Victoria to strengthen its role and effectiveness in organising events, dealing with the media, resolving conflicts, and managing stakeholders.

Developing and implementing activities that assist the Islamic Society of Victoria to dispel myths and misconceptions about Islam and Muslims.


The licensee’s submitted that the term ‘limited’ amounts to a statement of opinion on the basis ‘that the position advertised by D Council is narrower in scope than the program funded by the Australian Government from which funding for the position was obtained.’ The ACMA does not accept the licensee’s argument in this regard. The ACMA considers the reference to ‘limited job description’ to be factual content as it was presented as an unqualified assertion. The statement did not allude to any opinion or viewpoint held by the reporter.

Taking into account the context in which it was made, the ACMA considers that the ordinary, reasonable viewer would have understood the statement to mean that while the grants program was publicised by the Attorney-General as ‘building a strong and cohesive society and building resilience in the community against extremism’, the job description advertised by the D Council was ‘limited’ to ‘strengthen[ing] the Islamic Society of Victoria and implement[ing] strategies to assist the Society to dispel myths and misconceptions about Islam and Muslims.’ The issue to determine is whether this impression conveyed by the broadcast is accurate.

The licensee contended that ‘the Federal Government program is a broad one and it does not focus specifically on Muslims. By contrast the D Council position is specifically focused on working with the Islamic Society of Victoria and engaging with the Muslim community.’

It is noted that the report included footage on the MyCareer website of only two of the position’s five responsibilities which were advertised by the D Council. The remaining three are as follows:

(a) organise a series of seminars and events around interfaith and intercultural dialogue targeting community members to learn about Islam and its practices;

(b) organise activities that engage the Muslim community in broader community events such as festivals and celebrations taking place across [D]; and

(c) provide timely reports to Council and the funding body.

The broadcast focused solely on the duties of working and assisting the Islamic Society.

While the ACMA accepts that the intention of the reference to ‘limited job description’ was to contrast the Government’s broader grants program with the position advertised by the D Council in regard to the Muslim Outreach Officer, the ACMA considers that it was misleading to solely focus on the position’s work with the Islamic Society and omit the remaining responsibilities of the role which do not involve working with the Society.

On this basis, the ACMA considers that the licensee’s statement that the job description was ‘limited’ to ‘strengthen[ing] the Islamic Society of Victoria and implement[ing] strategies to assist the Society to dispel myths and misconceptions about Islam and Muslims’ is inaccurate.

Accordingly, the ACMA finds that the licensee breached clause 4.3.1 of the Code.

In response to the preliminary report, the licensee submitted to the ACMA in a letter of 25 June 2012 that:

Seven submits that the report was not in any way focused on the Islamic Society of Victoria, and that viewers would not have focused on this aspect of the job description which was referred to in the report. Rather, Seven submits that, having regard to the report in its entirety, viewers would have understood that the reference was made in relation to the Muslim- specific duties required of the Outreach Officer, which was more


“limited” than the scope of the Federal Government program. Indeed, it is clear throughout the report that the community concern with [D] Council’s proposed Project Officer which was the focus of the report, was that the role of Muslim-specific, appearing to favour and give ‘special treatment’ to one religion. The following statements were presented in the report with support this:

‘…but is the Council playing favourites by funding Council works to spread the word of Islam to Muslims” (at 30 second)

‘[A] university student…says it’s clear the Council is offering Muslims in the area special treatment”. (at 01.22)

‘My greatest concern is the Islamisation of Australia’. (at 01.43)

‘We tried to contact the [D] Council to work out exactly what the role of the Muslim Outreach Project Officer will play in the local community and to also try to establish whether the Council has also applied for funding for project officers to represent other religions’. (at 02.30)

‘No program like this for any other religious group has ever been run before’ (at 04.20)

In light of this focus which was clearly presented throughout the entirety of the report, Seven submits that viewers would understand that the reference made in the report to the ‘limited job description’ of the Outreach Project Officer, as compared to the Federal Government’s program, was a reference to the fact it was Muslim-specific. Seven further submits that it would be an unnatural conclusion by viewers to focus on the specific references to the Islamic Society of Victoria, when this organisation was in no way focused on or otherwise referred to in the report.

The ACMA does not accept the licensee’s submissions in this regard. Whilst the broadcast focused on the Muslim-specific role of the position as opposed to other religions, the ACMA considers that the sole reference to the Islamic Society of Victoria distorts the position’s role and misleads viewers into understanding that the Project Officer works only with the peak Muslim body in Victoria as opposed to also working with the local community such as organising seminars and events around interfaith and intercultural dialogue.

On this basis, the ACMA reiterates its finding that the licensee has breached clause 4.3.1 in this instance.

Statement 4: ‘…the [D] Council has form when it comes to implementing Sharia customs…’


It is manifestly incorrect to characterise the Events as being an implementation by [D] Council of Sharia custom.

The events in question during September and December 2010 (Events) were targeted at supporting young women (of any religious backgrounds) within the [D] community who, due to religious and cultural backgrounds, wouldn’t otherwise have the opportunity to attend mixed gender events. It was not a project solely directed to those of the Islamic faith.

The events aimed to give attendees the opportunity to socialise and celebrate within a safe, supportive and culturally and religiously appropriate environment.


The events fall squarely within the range of programs offered by [D] Council to support community activities, which necessarily include activities sensitive to specific cultural and religious needs.

The complainant submitted to the ACMA in a letter of 21 December 2011 that:

[D] Council has not, nor has it ever, implemented Sharia customs…


The words Sharia and Muslim are often used interchangeably in common parlance as synonyms for each other. The word Sharia refers to the moral and legal code of Islam. Seven submits it is accurate to suggest that [D] Council previously took steps to satisfy Sharia (or Muslim) customs when it banned boys from mixing with girls at a Council DJing event. Information about “Sharia law” and the custom of gender segregation are set out at Attachment 7.

In making its statement, Seven relied on newspaper articles about the Council’s ban which were available at the time of broadcast (Attachment 8). In these articles, [D] Mayor, [DA], is quoted to have said the events were aimed at women who, ‘due to their cultural and religious backgrounds, cannot attend events where men and women both attend’. We understand Ms [DA]’s statement directly refers to Muslim women who, due to their religious custom and gender segregation, cannot attend events where men and women both attend. Ms [DA] is also quoted to have said that “[D]’s approach is to always identify barriers to community participation and address them”. In this regard, we note that the Council’s previous approach to accommodate particular religious customs (in this case, Muslim customs) is not criticised or commented on in the report, rather it is merely referred to by the reporter.

For these reasons, Seven submits it is accurate to describe [D] Council’s recent ban to make an event “culturally and religiously appropriate” as a measure that implements Sharia customs, namely the custom of gender segregation. As such, Seven submits it is accurate to state that [D] Council “has form” (a colloquial expression meaning “has done it before”) when it comes to implementing or supporting Sharia customs.

ReasonsThe relevant statement was made in the following context (in bold):

Reporter: And the [D] Council has form when it comes to implementing Sharia customs. Recently, boys were banned from mixing with girls at a Council DJ’ing event. There’s the $45,000 pool curtain installed by the [M] Council pool to shield Muslim women from public view while they swim.

The ACMA considers the statement to be factual content as it was presented in a conclusive and unequivocal manner. The ordinary, reasonable viewer would have understood from the statement that the D Council has previous experience in implementing Sharia4 customs by banning boys from mixing with girls at a Council event.

The complainant submitted that the D Council has never implemented Sharia customs and that the events ‘fall squarely within the range of programs offered by [D] Council to support community activities, which necessarily include activities sensitive to specific cultural and religious needs’.

4 Sharia is defined in the Macquarie Dictionary (Fifth Edition) as ‘Islamic law’.


The licensee indicated that it relied on newspaper articles in which the Mayor of D Council stated that ‘the events were aimed at women who, ‘due to their cultural and religious backgrounds, cannot attend events where men and women both attend’ and ‘[D]’s approach is to always identify barriers in community participation and address them’. The licensee contended that this was ‘a measure that implements Sharia customs, namely the custom of gender segregation’.

The ACMA does not consider that the Council’s event amounts to ‘implementing’ Sharia customs. In this regard, the Macquarie Dictionary (Fifth Edition) relevantly defines ‘implement’ as:

implement –verb (t) 5.to put (a plan, proposal, etc.) into effect.

The ACMA is of the view that while conducting a female-only DJ’ing event may be regarded as a Muslim custom of gender segregation in particular circumstances and falls within the Council’s community activities to be ‘sensitive to specific cultural and religious needs’, it does not necessarily mean that the Council has a specific plan in place to execute Sharia customs. Accordingly, the ACMA finds that the licensee breached clause 4.3.1 of the Code in this instance.

In response to the preliminary report, the licensee submitted to the ACMA in a letter of 25 June 2012 that:

Seven notes the definition of ‘implement’ provided by the ACMA in its preliminary report and refers to an additional element of the definition of ‘implement’ which is set out in The New Shorter Oxford English Dictionary:

‘…put (a decision or plan) into effect. B Satisfy or fulfil (a condition).’

Seven submits that it was not incorrect to state that the Council ‘has form’ when it comes to ‘implementing Sharia customs’ when describing the gender segregated DJ’ing event created by the Council. Indeed, by the Council’s own admission, the event was gender segregated to satisfy or fulfil the ‘specific cultural and religious needs’ of the Muslim community.

In addition, Seven does not believe viewers would have understood the statement to mean that customs were formally ‘implemented’ in the sense that a law is implemented due to the colloquial manner in which the term was used, and the broader context of the report which focused on the apparent ‘special treatment’ of the religious needs of Muslim’s by [D] Council.

The ACMA does not accept the licensee’s submission and is satisfied that the term ‘implement’ suggests a formal process of executing Sharia customs, particularly in reference to a decision made by a local government Council in respect of a religious practice.

Statement 5: ‘…no-one, including the Mayor, were prepared to speak to us’


(a) at approximately 9am, Today Tonight producer [SK] rang [D] requesting an interview with [D]’s Mayor, Councillor [DA];

(b) [D] left a message on Ms [DA]’s phone advising her of the [SK]’s request;


(c) following the initial request at 9am, [SK] made a further 10-12 calls to [D] Council over the course of approximately 3 hours repeating her request for an interview with Ms [DA] and/or an update as to Ms [DA]’s availability;

(d) at approximately 1.45pm, [D] phone Ms [SK] to advise her that Ms [DA] was unavailable to speak on that day but was willing to talk to Ms [SK] the following day. Ms [SK] stated that the Report was to be aired that night, so tomorrow would be too late;

(e) at approximately 3.15pm, [D] left a message with Ms [SK]’s mobile phone that Ms [DA] had altered her prior commitments and would be available to talk prior to the report being aired. [SK] failed to respond or return [D]’s call;

(f) at 4.12pm, [D] made a further call and sent an email to Ms [SK] asking what was happening to the Report and when Ms [SK] would like to interview the Mayor prior to the report being aired;

(g) at approximately 4.45pm, after not having heard a response from Ms [SK], [D] phoned Today Tonight’s chief of staff [JB] asking why Ms [SK] had not returned any calls and when an interview with the Mayor could take place. [JB] advised that Ms [SK] was ‘caught up with other things’ and requested that [D] send a written media statement; and

(h) at approximately 5.23pm, [D] sent an official media statement to Today Tonight providing its response to the matters the subject of the Report.

The statement in the Report that “no-one at [D], including the Mayor, was prepared to speak to Channel Seven” is manifestly incorrect. The failure of the Report to include any comment by [D] was entirely the fault of Today Tonight.

The complainant provided the ACMA with written records supporting its submission, including:

a call history report indicating telephone calls made from the Council to SK at 3.13pm, 3.14pm and 4.21pm, and a call made to Today Tonight’s chief-of-staff, JB, at 4.45pm;

a copy of an email sent from MD from the Council to SK at 4.29pm, stating:

Hi [SK], I left a message on your mobile at 3.20pm and another just now to let you know that the Mayor is available this afternoon. The Attorney General’s office has advised that your crew is on the way but I’m unsure whether to tell the Mayor to get to the office now or not as I haven’t heard from you.

a copy of an email sent from MD the Council to SK at 5.23pm, copying in JB, stating:

Hi [SK], I left a couple of messages on your mobile earlier this afternoon to let you know that the Mayor is available for interview. As I haven’t heard back, please find a media statement below from the Mayor for your use…

copies of email correspondence between the Council and the Attorney General’s Office stating:

From SF from the Attorney General’s office to MD of the Council at 4.12pm:

[MD] Just got onto someone at TT they are about to call you they now know you’re ready to go – [SK] is apparently out your way with a crew right now.

From MD of the Council to SF from the Attorney General’s Office at 4.32pm:

Thanks [SF] – this is news to me. I’ve left another message for [SK] now – they’re not contacting me!


From SF from the Attorney General’s office to MD of the Council at 4.35pm:

I called her desk phone and the guy who picked it up said he would call you asap.

Licensee’s submissionThe licensee submitted in a letter to the complainant of 1 November 2011 that:

After a number of failed attempts throughout the day, Seven finally received a call advising that the Mayor would provide her comments for the report. However, to Seven’s disappointment, when Seven contacted the Mayor’s office to arrange a meeting time, Seven was advised that they would not in fact be able to speak with the Mayor before the broadcast.

In such circumstances, and not having received the Mayor’s written statement at the time of preparing the material for broadcast, Seven reported that the Council, including the Mayor, were not prepared to speak to Seven’s reporter. This statement is accurate in all the circumstances. We note that as soon as Seven received [D]’s media statement, it immediately uploaded the statement to the Today Tonight website where the report was posted.

The licensee provided the ACMA with a copy of an email from SK, the producer of the program, outlining the efforts she made to contact the Council:

I only kept very rough notes pertaining to the story with [D] Council. I have noted that:

- I called over a dozen times from 9am to 4pm.

- I kept insisting that the story was for the same night and time was of the essence.

- I tried repeatedly to find the Mayor at the lunch function she was attending to no avail. I tried calling other councillors to seek comment and was denied it.

- It was the eleventh hour and despite numerous attempts, the Mayor was simply unavailable.

- Eventually an email landed in my inbox suggesting that the Mayor could be interviewed in late afternoon.

- By the time I received this email and called the media advisor back to suggest that we would come out to speak with the Mayor immediately, we were told that the “window of opportunity” had now closed.

ReasonsThe relevant statement was made in the following context:

Reporter: Now we contacted the [D] Council on numerous occasions today to work out exactly what role the Muslim Outreach Project Officer will play in the local community. And to also try and establish whether the Council has also applied for funding for project officers to represent other religions. Well pretty much as expected, no-one, including the Mayor, were prepared to speak to us.

The ACMA considers the statement to be factual content which would have been understood by the ordinary reasonable viewer to mean that no-one at the D Council, including the Mayor, were willing to talk to the reporter.


It does not appear to be in dispute that the Council initially advised the program’s producer that the Mayor was unavailable to speak. The complainant and licensee have, however, provided conflicting versions of events regarding the contact between the Council and the licensee later in the day.

The licensee provided an email from the program’s producer who stated that ‘eventually an email landed in my inbox suggesting that the Mayor could be interviewed in late afternoon’ and ‘by the time I received this email and called the media advisor back to suggest that we would come out to speak with the Mayor immediately, we were told that the “window of opportunity” had now closed.’

This latter claim made by the producer appears to contradict the complainant’s submissions which indicate that after the Council contacted the producer at 3.13pm and left a message to advise that the Mayor was now available, it followed up that call with calls at 3.14pm and 4.21pm, and emails at 4.29pm and 5.23pm, and a phone call to the program’s chief-of-staff at 4.45pm. It is noted that in the email of 4.29pm, the Council indicated that it had been advised by the Attorney-General’s Office that the licensee’s crew was on the way. Copies of email correspondence with the Attorney-General’s Office corroborate this claim.

Having examined the material provided by the complainant, the ACMA is satisfied that the reporter’s statement,‘… no-one, including the Mayor, were prepared to speak to us’ was inaccurate. The information provided indicates that the Council advised the program’s producer that the Mayor was available to speak to the reporter and continued to be available after 3.13pm. There is no evidence to suggest that the Mayor withdrew her offer to speak to the producer after that time.

Accordingly, the ACMA finds that the licensee breached clause 4.3.1 in this instance.

Issue 2: Present material in a manner that creates public panicRelevant Code Clause

4.3.2: In broadcasting news and current affairs programs, licensees must not present material in a manner that creates public panic

Complainant’s submissionThe complainant submitted to the licensee in a letter of 14 October 2011 that the licensee has breached its obligations under the Code, including broadcasting material that was:

…presented in a manner that was apt to create anxiety and/or panic regarding the Muslim community and/or the treatment by D Council of that community.


Seven does not believe that the Today Tonight report was presented in a manner that would reasonably have created terror and panic in the general population. Indeed, the report merely discussed the [D] Council’s application for a publicly funded Muslim Outreach Project Officer and canvassed the varying viewpoints available at the time, including those which supported the scheme. In particular, the Today Tonight report included a number of interview excerpts with the spokesman of the Islamic Council of Victoria, who reassures viewers that the initiative is about “educating Anglo-Australians, not recruiting for the Islamic faith”.


For these reasons, Seven submits the report was not presented in such a way as to elicit in viewers the type of public panic that is contemplated by the Code.

FindingThe licensee did not breach clause 4.3.2 of the Code.

ReasonsIt is considered that the intention of clause 4.3.2 is to prevent licensees from presenting material that would have the result of causing relatively widespread fear and terror in the general community In this regard, the definition of the word ‘panic’ in the Macquarie Dictionary (Fifth Edition) is noted:

panic noun 1. a sudden demoralising terror, with or without clear cause, often as affecting a group of persons or animals.

2. an instance, outbreak, or period of such fear.

As outlined above, the segment reported on the D Council implementing a new Outreach Project Officer position to work with the local Muslim community. It is noted that the reporter made a number of negative comments regarding whether the Government was favouring the Muslim community by funding such a position and whether ‘ratepayers’ should be paying for the position:

Australia, a multi-cultural, multi-faith society. But is the Federal Government playing favourites by funding council workers to spread the word of Islam to Muslims?

An honourable pursuit, but should ratepayers be footing the bill?

How many Christian outreach officers has this council employed?

How many Buddhist outreach officers has this council employed?

How many Jewish outreach officers has this council employed?

…No program like this for any other religious group has ever been run before. So the question that remains unanswered is why now?

Other interviewees also expressed concern about the position and the Government’s funding of the role.

Whilst such negative comments were made in the segment, the ACMA considers that, when viewed in the context of the overall presentation of the program, the comments were not presented in a manner that would reasonably have created public panic. An ordinary, reasonable viewer would not perceive that there was any threat to the public at large.

Furthermore, the inclusion of an alternative viewpoint by HH from the Islamic Council of Victoria, who was quoted on five occasions during the broadcast, is considered to have provided an alternative perspective to the views presented by the reporter and other interviewees.

Accordingly, the licensee did not breach clause 4.3.2 of the Code.

c


Issue 3: Portray Muslims in a negative light by placing gratuitous emphasis on religionRelevant Code Clause

4.3 In broadcasting news and current affairs programs, licensees:

[…]

4.3.10 must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference. Nevertheless, where it is in the public interest, licensees may report events and broadcast comments in which such matters are raised.

Complainant’s submissionThe complainant submitted to the licensee in a letter of 14 October 2011 that the licensee has breached its obligations under the Code, including broadcasting material that:

…placed gratuitous emphasis on the Islamic faith and practices.


Seven submits that the report does not present the Muslim faith or Islamic practices in a negative light as the report does not delve into or comment on the religion or its particular customs. Rather, the report focuses on the use of Federal Government funding and the actions of the [D] Council, which appear to give preferential treatment ot a particular religious group. In this context, the report is primarily concerned with [D] Council’s decision to implement and educate the community about the customs and practices of the Muslim faith, rather than any other religion. As such, information about these practices or customs of the Muslim faith were peripheral to the substance of the report and were not discussed.

…

FindingThe licensee did not breach clause 4.3.10 of the Code.

ReasonsClause 4.3.10 establishes a two-part test to determine whether material broadcast is in breach. First, it must be established that the licensee portrayed a person or group of persons in a negative light by placing gratuitous emphasis on, for example, religion. If this is established then the next question is whether the content was broadcast in the public interest.

The test in clause 4.3.10 is an objective test under which the material is judged from the perspective of an ordinary, reasonable viewer.

In applying the first part of the test in clause 4.3.10 of the Code, the ACMA has assessed whether the broadcast portrayed Muslim people in a negative light, and if so, whether that negative portrayal was a result of the program placing gratuitous emphasis on religion.

The ACMA considers that the ordinary reasonable viewer would not have perceived a negative portrayal of Muslim people. The report was critical of the Government’s funding of the position and the Council’s implementation of the position, rather than of the Muslim community.


It is noted that even if the ACMA found that a negative portrayal of Muslims was depicted, the ACMA is not satisfied that any negative portrayal was a result of the program placing gratuitous emphasis on religion. In coming to this conclusion, the ACMA has considered the ordinary English language meaning of the word ‘gratuitous’, as defined in the Macquarie Dictionary (Fifth Edition):

gratuitous adjective 2. being without reason, cause, or justification

The segment’s topic, on the whole, related to the Federal Government’s funding of a position which works with the local Muslim community and the D Council’s implementation of this role. In this context, it is considered that referring to religion and Muslim people during the broadcast is justified. The views of the interviewees, presenter and reporter, were relevant to the issue reported and could not be conveyed without some reference to religion.

Accordingly, the licensee did not breach clause 4.3.10 of the Code and it is not necessary to consider whether the material was broadcast in the public interest.

Attachment A


Transcript – Today Tonight – 5/10/11Presenter: Now the Council spending ratepayers money to make Muslims feel more at home and to spread their faith. [Reporter] reports a public crusade has started opposing the plan and a Council, which is no stranger to controversy, when it comes to supporting its Islamic community.

VJ: This is discrimination all over the country.

Reporter: Australia, a multi-cultural, multi-faith society. But is the Federal Government playing favourites by funding council workers to spread the word of Islam to Muslims?

HH: I think that there’s a general lack of understanding.

Reporter: [D] Council in Melbourne’s north is doing the hiring using a grant from the Federal Attorney-General Robert McClelland’s counter-violent extremism fund. The successful applicant will be paid $66,000 a year.

HH: Anyone that fits the position’s description is eligible to apply for this role.

Reporter: As a ratepayer, [VJ], says that the community was never consulted. As the deputy president of the Q Society – a group concerned with the Islamification of Australia – she’s outraged.

VJ: We’re for integration not segregation.

Reporter: University student, [JA], may only be 18, but he says it’s clear that the council is offering Muslims in the area special treatment.

JA: My message to the Federal Government is plain and simple. Do not fund religious activities, keep your nose out of religion, keep your nose out of the private lives of citizens.

Reporter: [PG], another Q Society member, fears that other councils will soon follow suit.

PG: My greatest concern in the Islamisation of Australia.

Reporter: While the Attorney-General sells it as a way of building a strong and cohesive society and building resilience in the community against extremism, read into that possible terrorist attacks.

Quote: “The grants programs have specific criteria which ensure that the grants only go to those organisations that are genuinely committed to, and have capacity to build, the resilience of their communities against extremism”.

However, the limited job description paints a different picture, where the officer’s role will be to strengthen the Islamic Society of Victoria and implement strategies to assist the Society to dispel myths and misconceptions about Islam and Muslims.

Quote: “Working in partnership with the Islamic Society of Victoria to strengthen its role and effectiveness in organising events, dealing with the media, resolving conflicts, and managing stakeholders.”

Quote: “Developing and implementing activities that assist the Islamic Society of Victoria to dispel myths and misconceptions about Islam and Muslims”

An honourable pursuit, but should ratepayers be footing the bill? RatePayers Association President, [JD].


JD: Are we going to subsidise all these other religions for the same thing?

Reporter: Now we contacted the Darebin Council on numerous occasions today to work out exactly what role the Muslim Outreach Project Officer will play in the local community. And to also try and establish whether the Council has also applied for funding for project officers to represent other religions. Well pretty much as expected, no-one, including the Mayor, were prepared to speak to us.

How many Christian outreach officers has this council employed?

VJ: None that I know of.

Reporter: How many Buddhist outreach officers has this council employed?

VJ: Again, none that I know of.

Reporter: How many Jewish outreach officers has this council employed?

VJ: Well, none that I know of.

Reporter: [HH] is spokesman for the Islamic Council of Victoria and he says that the initiative is all about educating Anglo Australians, not recruiting for the Islamic faith.

HH: I think Australian need to perhaps step out and understand people who aren’t from an Ango-Saxon background.

Reporter: And the [D] Council has form when it comes to implementing Sharia customs. Recently, boys were banned from mixing with girls at a Council DJ’ing event. There’s the $45,000 pool curtain installed by the [M] Council pool to shield Muslim women from public view while they swim.

HH: I think a lot of the critics have that fear or that lack of understanding about what it means to be Muslim, and these sorts of people would actually be natural participants in this program.

Reporter: The Attorney-General declined to be interviewed, but in a statement revealed that the Gillard Government has spent more than $9.7 million on similar initiatives to counter radicalisation in our communities, from sporting clubs to Islamic associations and Arabic social services. No program like this for any other religious group has ever been run before. So the question that remains unanswered is why now?

HH: This is specifically targeted at the entire community so we need to keep that in mind.

PG: More than wasted money, it’s actually quite devisive.

Attachment B


In determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

The assessment of factual accuracy is determined in the context of the segment in its entirety.

The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener 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.5

The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.

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.

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.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that might amount to a breach of the clause.

In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

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

5 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167.


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