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Investigation Report No. 3318File no. ACMA2015/101

Broadcaster TCN Channel Nine Pty Ltd

Station TCN-9 [Sydney]

Type of service Commercial Television

Name of program A Current Affair

Date of broadcast 11 August 2014

Relevant legislation/code

Commercial Television Industry Code of Practice 2010

Date finalised 16 April 2015

Decision No breach of clause 1.9.6 [proscribed matter]No breach of clause 4.3.1 [accuracy]

ACMA Investigation Report – A Current Affair broadcast by Nine on 11 August 2014

BackgroundIn February 2015 the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment on A Current Affair broadcast by TCN Channel Nine Pty Ltd (the licensee) on 11 August 2014.

The investigation was commenced in response to a joint complaint, made by lawyers on behalf of the Plymouth Brethren Christian Church (the Church)1 and a family that belongs to the Church (the family). The complaint alleged that the segment ‘contained false and inaccurate material, and incited religious intolerance’.

The segment has been assessed in accordance with clauses 1.9.6 [proscribed matter] and 4.3.1 [accuracy] of the Commercial Television Industry Code of Practice 2010 (the code).

The programA Current Affair is a 30 minute current affairs program hosted by Tracy Grimshaw and broadcast at 7 pm on weeknights on the Nine Network2.

On 11 August 2014, the program included a segment on the relationship between the Church and a former member, following the former member’s estrangement from the Church and his family. In particular, the segment focused on the former member’s claims that he had been prevented from attending his mother’s funeral by the Church. The segment included interviews with the former member, Senator Nick Xenophon and a former Uniting Church Minister (and friend of the former member).

A transcript of the segment is at Attachment A.

SubmissionsThe complainant’s submissions are at Attachment B and the licensee’s submissions are at Attachment C.

AssessmentThis investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

In assessing content against the code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian courts have considered an ‘ordinary reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.3

1 The Plymouth Brethren Christian Church is also known as the Exclusive Brethren and was referred to as such in the segment.2 See http://aca.ninemsn.com.au/ (accessed 10 April 2015)3 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

ACMA Investigation Report – A Current Affair broadcast by Nine on 11 August 2014 2

http://aca.ninemsn.com.au/

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the code.

Issue 1: Proscribed material

Relevant code provision 1.9 A licensee may not broadcast a program, program promotion, station identification or

community service announcement which is likely, in all the circumstances, to:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

Finding The licensee did not breach clause 1.9.6 of the code.

ReasonsIn determining whether the licensee has breached clause 1.9.6, the ACMA must consider the following:

identification of the relevant person or group and the relevant ground

whether the broadcast was likely to have provoked intense dislike, serious contempt or severe ridicule against the relevant individual/group on that ground.

The complaint is that the segment ‘incited religious hatred by virtue of its inaccurate and “sensationalist” reporting of the Church’.

The ACMA notes that the complainant also submitted to the licensee that ‘the Church and its members have been the subject of a number of “hate crimes” which more often than not coincide with stories broadcast by A Current Affair concerning the Church’.

The licensee submitted that:

[it] denies that the [segment] provoked or perpetuated dislike, contempt or ridicule against any person or group of persons (including members of the Church or the Church itself) on the basis of religion (or any of the other specified grounds) let alone meet[s] the high benchmark set by the code and ACMA.

The relevant person or group of persons and the relevant ground

The Church describes itself as a ‘“Brethren” – a community of families held together by our common Christian belief.’4

4 See http://www.plymouthbrethrenchristianchurch.org/about/who-we-are/ (accessed 4 March 2015)


http://www.plymouthbrethrenchristianchurch.org/about/who-we-are/

The segment referred repeatedly to the Church and the beliefs of its members. It was made clear in the segment that the community was by its nature a religious one. Further, the segment predominantly comprised claims by a former member of the Church, often against the Brethren leader, and it was central to the segment that the former member’s estranged family remained members of the Church.

Therefore, the ACMA is satisfied that the relevant group is the Church and the relevant ground is religion for the purposes of clause 1.9.6 of the code. The Brethren leader, as a clearly-identified member of the Church, was also a relevant person for the purposes of the clause.

Provoke or perpetuate

Incitement or provocation can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action. There is no need for proof of intention to incite or that anyone was in fact incited.5 The relevant conduct must have the capacity or tendency to incite others, in the sense of urging or promoting the audience to experience the relevant reaction. Conduct that merely conveys a person’s hatred of, intense dislike, serious contempt or severe ridicule towards a person is not unlawful.

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.6

In deciding whether there has been a breach of clause 1.9.6 of the code, the ACMA considers whether an ordinary reasonable viewer would regard the programs as ‘likely, in all the circumstances’ to stir up, arouse, or call forth or to incite or stimulate serious contempt or severe ridicule.

The Macquarie Dictionary (Fifth Edition) includes the following relevant definitions:

serious adjective 5. weighty or important; 6. giving cause for apprehension; critical

contempt noun 1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless

severe adj 1. harsh, harshly extreme

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

The ACMA considers that the requisite element of provocation or incitement was absent from the segment as there were no explicit terms of condemnation or engagement with the audience appealing to it to respond to the Church, its leader or members of the Church, with hatred, contempt or ridicule on the basis of their religion or religious practices. Further, the segment included a statement made by Senator Nick Xenophon that ‘the Exclusive Brethren are free to believe in whatever they want’, conveying to the ordinary reasonable viewer that religious beliefs alone were not a basis for criticism.

‘intense dislike, serious contempt or severe ridicule’

Clause 1.9.6 sets a high threshold for the likely effect of proscribed material. The definitions of ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’, set out above, indicate that the code contemplates a very strong reaction to the impugned material. It is not sufficient that the behaviour induces a mild or even strong response or reaction. 5 Kazak v John Fairfax Publications [2000] NSWADT 77 at [23-29].6 Trad v Jones & anor (No 3) [2009] NSWADT 318 at [61].


The segment was critical of the Church’s treatment of the former member, and those interviewed during the segment sought to present the Church and its leader in a negative light. However, the ACMA does not consider that critical reporting of the Church and its treatment of the former member reached the high bar of ‘provoking’ ‘intense’ dislike or ‘serious’ contempt or severe ridicule on the grounds of religion.

The segment presented a personal angle on the Church with its focus on the former member, in particular, his views on the Church leader and his perception of the role the Church and Church leader played in his estrangement from his family. Any criticism of the Church or the Church leader in the segment was directed at their alleged treatment of the former member, rather than for the Church’s religious beliefs.

The ACMA is not satisfied that the segment was likely to have provoked intense dislike, serious contempt or severe ridicule against members of the Church or Church leader on the basis of religion. Therefore, the ACMA finds that the licensee did not breach clause 1.9.6 of the code.

Issue 2: Accuracy

Relevant code provision 4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must broadcast 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 accuracy requirements under clause 4.3.1 of the code apply to factual material.

Finding The licensee did not breach clause 4.3.1 of the code.

ReasonsIn assessing material against clause 4.3.1 of the code, the ACMA must first consider whether relevant broadcast material is factual in nature. Some considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in nature are set out at Attachment D.

If the material is factual in nature, the ACMA then assesses whether the factual material is accurate in the context of the segment in its entirety.

The ACMA has assessed the complaints about the accuracy of two representations in the segment to the effect that:

1. the former member was not allowed to attend his mother’s funeral

2. the former member was not allowed to view his mother’s body.

Representation that the former member was not allowed to attend his mother’s funeral


The complaint is that the former member’s statement that ‘they told me I’m not allowed to go to the funeral service, that I’m not allowed to go to the cemetery’:

implies that the Church, or the Family, or both, deliberately prevented [the former member] from attending his mother’s funeral. The Church and the Family refute this claim and state that [the former member]'s father invited [the former member] to the burial service, but [the former member] chose not to attend.

The segment also relevantly included the following statements:

by the former member:

o He's cancelled the funeral. And they haven't said when it's going to be,

because they're determined to hold it when I don't know that it's being held, so that I can't attend my mother's funeral.

by the former Minister:

o I think it's sad when somebody in a Christian church can't attend their mother's

funeral.

by the presenter (at the end of the segment):

o A statement from the church is on our website. The church doesn't deny keeping the

details of [the former member]'s mother's funeral from him. [The former member] maintains he was told he was banned from attending.

by the reporter:

o And today, he's been banned from attending his own mother's funeral.

o What sort of an organisation stops a son attending his own mother's funeral?

o He plans to follow the coffin to the church because he's been told he won't be allowed

to attend his own mother's funeral.

o A week later, we return to the cemetery to find that [former member]'s mother has

been buried. He wasn't told.

by Senator Xenophon:

o How can a religion prevent a son from going to his mother's funeral?

The licensee submitted that:

[the former member]’s claims in respect of the circumstances relating to his mother’s funeral were reported from his viewpoint. As at the time of broadcasting the Report, [the former member] maintained that he was told he was banned from attending the funeral. The presentation of [the former member]’s opinions and claims in the Report were easily and readily distinguishable to the ordinary reasonable viewer from the factual material presented in the Report.

As noted at Attachment D, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

Under the code, current affairs programs may adopt a particular stance on an issue, so long as any factual material included is accurate. In this case the segment took a critical stance in relation to the Church’s treatment of the former member.


In the context of the segment in its entirety, the ordinary reasonable viewer would have understood that the former member’s statement was a very personal and subjective account of events surrounding his mother’s funeral. In this regard:

the statement included the phrase ‘they told me…’, language which tends to indicate that content is contestable and presented as subjective account or personal judgement

the segment gave context to the estrangement between the former member and the Church which included the breakdown of the former member’s marriage and a family business in which the former member was no longer involved

the presenter’s reference to the Church’s statement at the conclusion of the segment reinforced that the former member’s account of events was subjective and contestable

statements made by the reporter and other interviewees in the segment were referable to views expressed by the former member during the segment.

The ACMA concludes that the comments by the former Minister and Senator Xenophon were expressions of opinion. They were framed as rhetorical questions or used language indicating they were observations on the former member’s claims and not assertions of incontrovertible fact. The presenter’s and reporter’s statements reflected the former member’s account but made it clear that it was disputed. They did not separately assert or reinforce the former member’s account to the extent that they would have been understood as separate factual assertions, or proof of his claims.

On this basis, the former member’s statement about not being allowed to attend his mother’s funeral was not a factual assertion to which the obligations in clause 4.3.1 of the code apply,

Accordingly, the licensee did not breach clause 4.3.1 in respect of the statement.

Representation that the former member was not allowed to view his mother’s body

The complaint is that the reporter’s statement, ‘right now, the body of [the former member]’s mother is in there, his father’s house, but [the former member] is being made to wait outside in his car’ is misleading:

The Church and the Family refutes this claim and state that the first time [the former member] arrived at his father's house he was granted immediate access. He had unrestricted freedom to view his mother's body. The Nine Network chose to ignore that fact and/or failed to ascertain the truth of the situation.

The segment also relevantly included the following statements by the reporter, which preceded the statement complained about:

When [the former member] arrives at his father's house to view his mother's body, he's met by security.

He's eventually escorted inside and returns a short time later.

The licensee submitted:

b. Nine firstly denies the complainants’ allegation that this statement by [the reporter] implied that the Church, or the Family, or both, refused [the former member] seeing or spending time with his dead mother’s body. The Report made it clear that when [the former member] arrived at his father’s house, he was met by security and escorted inside


to see his mother. Therefore, Nine does not accept that the Report conveyed the imputations contained in the complainants’ allegation.

[The reporter] reported that [the former member] returned from his father’s house a short time later. It was then that [the reporter] made the statement, while [the former member] waited in the car to attend the funeral. [The reporter] gave context by adding that [the former member] said that he planned to follow the coffin to the church because he was told he wouldn’t be allowed to attend the funeral.

The ACMA considers that the reporter’s statement is factual material as it was specific (as to time and place) and unequivocal in that it was expressed in an unqualified manner.

However, in the context of the segment in its entirety, it would have been clear to viewers that the former member did view his mother’s body from the reporter’s statement that ‘[the former member] is eventually escorted inside and returns a short time later’ and the accompanying footage of the former member walking into the house where his mother lay. In addition, at the end of the segment, the presenter directed viewers to a statement by the Church on the program’s website.7

The ACMA considers that it would have been apparent to viewers that the reporter’s comment about the former member being made to wait outside in his car was made in connection with his reported plans to follow his mother’s coffin to the church and referable to events following the former member’s viewing of his mother’s body.

Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 in respect of the statement.

Attachment ATranscript

TRACY GRIMSHAW (PRESENTER): Hello, I'm Tracy Grimshaw. Welcome to A Current Affair. First tonight, exposing the secret cult known as the Exclusive Brethren. It's rich, powerful, and controlling. It's accused of breaking up families, while making millions tax-free as a registered charity. Reporter Ben McCormack joins us. And, Ben, now an insider is speaking out.

BEN MCCORMACK (REPORTER): Yes, Tracy. [The former member] was born into the Brethren. He's fifth generation. But five years ago, he was withdrawn from, basically kicked out, after he says he had a dispute with the church's world leader. He's kept his silence until now, because he feels they're punishing him in the cruellest possible way.

7 The statement by the Church indicates that ‘[Former member] attended his father’s home to view his mother’s body after she passed away’.


FORMER MEMBER: The determination from the top to destroy me. I have no option but to take it on.

[Excerpt of ritual]

BRETHREN REENACTORS: The dragon stood on the shore of the sea [inaudible chanting]...

[Excerpt ends]

FORMER MEMBER: You're telling me you'll call the police if I don't go?

UNIDENTIFIED SPEAKER: Yes.

FORMER MEMBER: Well, you better call the police.

They told me I'm not allowed to go to the funeral service that I'm not allowed to go to the cemetery.

SENATOR NICK XENOPHON: How can a religion prevent a son from going to his mother's funeral?

FORMER MEMBER: [Crying] [Inaudible].

SENATOR NICK XENOPHON: In the name of god, it just seems really quite sick.

UNIDENTIFIED SPEAKER: Nothing to take photos of.

FORMER MINISTER: I think it's sad when somebody in a Christian church can't attend their mother's funeral.

FORMER MEMBER: He wants me gone and this is part of the psychological warfare.

REPORTER: You're [the interviewee]'s son?

FORMER MEMBER’S SON: Yes. I don't have anything to say. But please don't come on the property.

SENATOR NICK XENOPHON: People should not be under total control or subject to this sort of behaviour where people's lives are being destroyed in the name of religion.

FORMER MEMBER: A lot of things [Brethren leader] tries to say, oh, but that was in the past. He is more brutal than ever.

REPORTER: [To the former member] How much does it hurt you? [The former member] is a broken man.

FORMER MEMBER: At first they were hoping they would force me to - to use [Brethren leader’s] words - have a total collapse.

REPORTER: He was out to destroy you?

FORMER MEMBER: Definitely.

REPORTER: [The former member] has been cut off from his family, his church, his business. And today, he's been banned from attending his own mother's funeral.

FORMER MEMBER: Yes, well I'm here to see my mother's body. Why would you be intervening [indistinct]?


REPORTER: What sort of an organisation stops a son attending his own mother's funeral?

FORMER MEMBER: It's one that has lost its way, because the essence of Christianity should be compassion.

REPORTER: The organisation we're talking about is the cult which now calls itself the Plymouth Brethren Christian Church, or as it's more commonly known, the Exclusive Brethren.

FORMER MEMBER: I believe there is a need for an inquiry into the [Brethren leader] Exclusive Brethren's activities in Australia.

REPORTER: Tonight, this Brethren insider speaks out, as we ask why this controlling cult receives millions of dollars in tax benefits from the Australian people, while it continues to break apart families and destroy lives.

SENATOR NICK XENOPHON: Why should we be subsidising an organisation that is involved in this sort of appalling behaviour?

REPORTER: All under the leadership of its mega-wealthy world leader, the mysterious Sydney accountant [Brethren leader].

FORMER MEMBER: He has intervened and disrupted my family and my business. And I just sometimes feel like going around and knocking on his door and just say to him, [Brethren leader], you're surrounded by your children and your grandchildren. You have totally deprived me of that. How can you justify it?

REPORTER: What has he taken from you?

FORMER MEMBER: Well, he basically took my life. For quite a while I didn't want to live.

REPORTER: Like most Brethren, [the former member] was born into it. He's fifth generation.

FORMER MEMBER: There's a lot of advantages, providing you don't buck the system. Things are cared for both personally and financially and whatever, but it's very controlled.

REPORTER: [The former member] grew up here in Sydney's Blue Mountains and built a successful waste removal business with his five sons. Life was good, until one day, [the former member] claims, [Brethren leader] ordered him to sell his business.

FORMER MEMBER: It was a stupid thing to do. I went ahead to action what he said, because I just thought, well, it must be right.

REPORTER: [Brethren leader] is the world leader of the Exclusive Brethren. We recently reported on his extreme wealth, living in this mansion in suburban Sydney, his rock star lifestyle flying around the world in a private jet, and the millions he receives in tax-free donations from his followers in white envelopes, a claim Brethren lawyers later described as totally false.

FORMER MEMBER: I worked out that ten years ago the white envelopes would have produced about - at least $2.4 million a year, and that comes tax free, literally in white envelopes.

REPORTER: But they deny it.

FORMER MEMBER: The fact is, the white envelopes and the fact there is millions involved has been the case for as long as I can remember. That's how it works.

REPORTER: But the Brethren tell us it's not true.


FORMER MEMBER: It is totally true.

REPORTER: The mysterious [Brethren leader] goes to extraordinary lengths to never be filmed or photographed.

FORMER MEMBER: He calls himself a mainstream church. What other leader of a mainstream church will not even have their photo - their current photo - in the public domain?

FORMER MEMBER: I'm the owner of the premises. My name's [the former member]. What's your name, please [indistinct]?

REPORTER: [The ormer member] claims [Brethren leader] ordered him to sell his business. The sale fell through. Now the waste management company is controlled by his sons, who remain in the sect. They run it through a family trust that helps minimise tax.

FORMER MEMBER: It caused great trouble, and in due course, I went to him privately with my wife, and said to him, [Brethren leader], I don't agree with what you've done in your intervention in my business and my family and you've come between me and my sons and I can't hack it.

REPORTER: According to [the former member], this was his big mistake, because anyone who dares question the almighty [Brethren leader] is a marked man.

FORMER MEMBER: If you've disagreed with [Brethren leader] - which is very rare, because of the consequences - you will be withdrawn from in due course.

REPORTER: They'll find a reason.

FORMER MEMBER: Oh, you will go.

REPORTER: Withdrawn from is the Brethren term for being excommunicated. [The former member] says it happened to him soon after he confronted [Brethren leader] here at the Brethren leader's Sydney office. Overnight, [the former member] says he was cut off from his family, his friends, and the only life he ever knew.

FORMER MEMBER: Every day I would see members of my family in the distance who now had to regard me, and did, as a pariah. Members of my Brethren staff, ditto.

REPORTER: What was that like?

FORMER MEMBER: It was unspeakably painful. I had a nervous breakdown, which took some time to recover from.

REPORTER: It's been years since he's seen family.

FORMER MEMBER: I've got about five photos of my grandchildren as they were before I left. That's all I've got of photos of anything. Nothing else. But I have repeatedly asked for current photos of my grandchildren. They will not give me anything.

REPORTER: When's the last...

FORMER MEMBER: I'm not even sure how many grandchildren I've got.

REPORTER: You're not sure how many you've got?

FORMER MEMBER: Well, my youngest son got married without me knowing anything about it. I discovered later they had a baby without me knowing anything about it. That made five. I suspect I might


have six or seven, but I don't know.

REPORTER: That must break your heart.

FORMER MEMBER: I miss my grandchildren more than anything.

REPORTER: [The former member] also hadn't seen his mother in a long time. Did you know your mum was close to dying?

FORMER MEMBER: No.

REPORTER: You never got to say goodbye?

FORMER MEMBER: No. It's my mother. You don't have a closer bond in the natural sense than you do with your mother. She's brought you into the world.

REPORTER: Today is the day of her funeral. When [the former member] arrives at his father's house to view his mother's body, he's met by security.

FORMER MEMBER: Watch out, this is a Brethren person, too, in that car.

REPORTER: He's eventually escorted inside and returns a short time later.

FORMER MEMBER: I think she was down to 36 kilograms and they wouldn't let me do anything to help to care for her.

REPORTER: If you had any doubt about just how awful the Exclusive Brethren can be, consider this. Right now, the body of ‘[the former member]'s mother is in there, his father's house, but [the former member] is being made to wait outside in his car. He plans to follow the coffin to the church because he's been told he won't be allowed to attend his own mother's funeral.

So you're saying right now, the Brethren hierarchy...

FORMER MEMBER: [Brethren leader] will be saying what's to happen.

REPORTER: [Brethren leader] himself will know what is going on here today?

FORMER MEMBER: He will know what's going on and he will be saying whether it goes ahead or not.

REPORTER: As the day goes on, [the former member] decides to drive to the cemetery.

FORMER MEMBER: What's happened is that a church member, [church member’s name], has unofficially rung the foreman here, who is a very helpful gentleman, and cancelled the funeral. He hasn't told the office staff so far.

REPORTER: So they've cancelled the funeral?

FORMER MEMBER: He's cancelled the funeral. And they haven't said when it's going to be, because they're determined to hold it when I don't know that it's being held, so that I can't attend my mother's funeral.

FORMER MINISTER: Dreadful. Disgraceful, really, that - I mean, I wouldn't let my Church bar me from my mother's funeral, I mean [indistinct]...

REPORTER: Former Uniting Church minister [former Minister’s name] has come along to support [the former member].


FORMER MINISTER: I don't think it's Christian at all. They may have good reasons, but goodness knows this is a very special occasion when your mum dies, to pay your last respects, and I respect [the former member] for trying to do that, and I think it's very sad. It's a sad day.

REPORTER: So how is it that an organisation with such an appalling track record of breaking up families is still considered a charity? You see, despite the way the Exclusive Brethren treats its former members like [the former member], it still enjoys enormous support from the Federal Government and from you and me, the taxpayer, in the form of generous government grants and charitable tax-free status. John Howard used to be the best friend the Brethren had here in Canberra. Now it's Tony Abbott, because he's decided to abolish the Charities Commission, a body set up to specifically keep an eye on groups like the Brethren.

SENATOR NICK XENOPHON: Effectively, every Australian taxpayer is subsidising the activities of these cults, and the Government wants to take away even some minimal level of accountability.

REPORTER: Senator Nick Xenophon has long taken on the Brethren and other cults, and says the move to abolish the Charities Commission is outrageous.

SENATOR NICK XENOPHON: Tearing down an independent watch dog doesn't make sense. It means that organisations such as this can run amok without any level of transparency, no level of accountability.

REPORTER: There are now over 1000 businesses in Australia with links to the Brethren.

FORMER MEMBER: Their businesses are growing exponentially and their charitable fundraising businesses are harvesting money for purposes that I don't think would normally be able to be classed as charitable, and all of it vests back to the control of [Brethren leader].

SENATOR NICK XENOPHON: The Exclusive Brethren are free to believe in whatever they want, but whether they should be getting a tax-free status that means, effectively, every other Australian taxpayer is subsidising their activities is another thing.

REPORTER: There should be an inquiry which should include the use of charitable status. [Brethren leader] has gone to extraordinary lengths to retain their charitable status in England. The reason for that is that it's vital to the huge amounts of money that he's stockpiling. And he is stockpiling, by the way.

REPORTER: A week later, we return to the cemetery to find that [the former member]'s mother has been buried. He wasn't told.

FORMER MEMBER: The whole thing needs the light of day and [Brethren leader] needs to be prepared to face the light of day himself.

PRESENTER: A statement from the church is on our website. The church doesn't deny keeping the details of [the former member]'s mother's funeral from him. [The former member] maintains he was told he was banned from attending.


Attachment BComplainant’s submissions - extracts

The complainant submitted to the licensee on 4 September 2014:

…

What you and your colleagues perhaps fail to appreciate is that the Broadcast and those like it cause considerable distress to the Church and its members. Further, the Church and its members have been the subject of a number of "hate crimes" which more often than not coincide with stories broadcast by A Current Affair concerning the Church.

For example, the Church has been the subject of:

serious arson attacks; destruction of Church property; attacks on Church property; aggravated trespass; vandalism; and hate speech directed to Church members.

These serious and destructive crimes have been referred to Victoria Police who, we areinstructed, are continuing to investigate the same.

The Church has also asked Victoria Police to investigate whether the perpetrators of these crimes are in breach of the Racial and Religious Tolerance Act 2001 (Vic) (Act), and whether the Nine Network has incited religious hatred by virtue of its inaccurate and "sensationalist" reporting of the Church.

Further, following the Broadcast, the Church has been the subject of a number of vile, abusive and threatening comments posted on its own social media pages by members of the public which reference the Broadcast. Those postings have caused considerable distress to the Church and have also been referred to Victoria Police. We suspect that similar posts have appeared on the Nine Network's soclal media pages, which should also be referred to Victoria Police.

…


…


…


…

Senator Xenophon's assertion that religion or our church prevented our father attending our grandmother's funeral is baseless. Our Grandfather invited him to the burial service, without reference to anyone outside the family, on the understanding that he show respect. We have correspondence to prove that our father chose not to attend.

Our grandmother was bedridden and had been suffering from dementia for more than 12 months prior to her death. Our father was well aware of this because of his visits to see her during that time. At the end she passed away somewhat unexpectedly with only our grandfather present. Our Grandfather rang to inform [former member] within an hour of her death. He invited [former member] to come and view her body at an agreed time and on the understanding that he show respect, however [former member] was very angry and came the next morning unannounced. He was not kept waiting — our Grandfather let him into the house immediately to pay his last respects to his mother, and allowed one of his friends to accompany him. Our Grandfather was completely unaware that [former member] was accompanied by Channel 9 TV crew, who were waiting at the front gate.

He says that [Brethren leader] gave directions regarding arrangements for our Grandmother's funeral. This is a scurrilous assertion — our Grandfather and the family made their own decisions in regard to all funeral arrangements.

The funeral was not cancelled — our Grandfather was unable to finalise a time for the burial service of our Grandmother on the appointed day due to the interruptions of our father, Mr McCormack and the TV crew from A Current Affair, as he understandably did not wish TV media to be present. Our father subsequently sent correspondence that he was declining to attend and he wished the burial to go ahead -- as our Grandfather had planned, and asked to be notified when it had been completed. He was notified as he requested.

The program has edited out footage where [former member’s son] advised Mr McCormack that [former member] was in our Grandfather's house paying his last respects to his mother, and asked for the TV crew to show respect for the family in grief.

...


…


Ours is a small and conservative Christian sect. We understand that for some we are a curiosity and that may make us newsworthy. However, it is unfair that an isolated family breakup (we have a divorce rate far below the national average) is generalised across an entire community. Further, when allegations are made that impact an entire community, it is unethical that we should be denied an opportunity to respond well ahead of broadcast.

…

The complainant submitted to the ACMA on 11 November 2014:

…

"They told me I'm not allowed to go to the funeral service, that I'm not allowed to go to the cemetery."

This aspect of the Broadcast implies that the Church, or the Family, or both, deliberately prevented [former member] from attending his mother's funeral. The Church and the Family refute this claim and state that [former member]'s father invited [former member] to the burial service, but [former member] chose not to attend. Further, other than sending the Church's public relations firm an email a short time before the Broadcast (i.e. at 11.34am on the day of the Broadcast) - which gave the Church an unreasonable amount of time to properly consider the matter - the Nine Network made no or no reasonable attempt to ascertain the truth of [former member]'s allegations, or the Church and the Family's response to this most hurtful allegation prior to the Broadcast.

"Right now, the body of [former member]’s mother is in there, his father's house, but [former member] is being made to wait outside in his car."

This aspect of the broadcast implies that the Church, or the Family, or both, refused [former member] seeing or spending time with his dead mother's body. The Church and the Family refutes this claim and state that the first time [former member] arrived at his father's house he was granted immediate access. He had unrestricted freedom to view his mother's body. The Nine Network chose to ignore that fact and/or failed to ascertain the truth of the situation.

…


Attachment CLicensee’s submissions - extracts

The licensee submitted to the complainant on 8 October 2014:

…

To the extent your letter relates to matters covered by the Commercial Television IndustryCode of Practice (the Code), Nine is obliged to respond to those matters. Your letter raises issues pursuant to:

clause 4.3.1 of the Code which provides that, in broadcasting news and currentaffairs programs, licensees:

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

clause 1.9.6 of the Code which provides that a licensee may not broadcast aprogram which is likely, in all the circumstances, to:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridiculeagainst a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

In respect of 4.3.1, the Code does not require that current affairs programs present allpotentially relevant viewpoints on a topic, but where a program does elect to represent aviewpoint it must do so fairly. In the same way, the Code does not require current affairsprograms to present all factual material relating to an issue, provided that factual materialthat is presented is accurate in the circumstances at the time of broadcast.

[Former member]'s claims in respect of the circumstances relating to his mother's funeral, his feelings about his dealings with [Brethren leader], and the manner in which he feels the Plymouth Brethren and its beliefs have affected his relationship with his family, were reported as [former member]'s claims and opinions. To the extent the Segment reported statements of [former member]'s opinion, the Segment fairly represented his viewpoint. To the extent the Segment presented factual material about those matters, Nine maintains that material was presented accurately in the circumstances at the time of broadcast. The Segment gave context to [former member]'s relationship with the Plymouth Brethren - being a former member, who was now at odds with the group and its leader - and it was made clear in the Segment that your client and [former member]'s family disagreed with, his claims. Nine notes that your client was given the opportunity to respond to the allegation that [former member] was prevented from attending his mother's funeral, by email to your client's public relations representative (as the reporter was directed, after making phone enquiries of your client). The statement from your client provided in response was included on Nine's website and viewers of the Segment were directed to it.


Nine is informed by [former member] that he disagrees with the matters set out in the media release issued by your client and stands by his- claims as reported in the Segment.In respect of clause 1.9.6, Nine maintains that the Segment did not provoke or perpetuateintense dislike, serious contempt or severe ridicule against a person Or group of persons on the grounds of religion. We also note clause 1.10 of the Code which provides:

1.10 Except for Clause 1.9.3, none of the matters in Clause 1.9 will be contrary to this Section if:

1.10.2 Said or done reasonably and in good faith in the course of any broadcast of a statement, discussion or debate made or held for an academic; artistic orscientific purpose or any other identifiable public interest purpose; or1.10.3 said or done in broadcasting a fair report Of, or a fair comment on, anyevent or matter pf identifiable public interest.

Nine maintains that even if any Material in the Segment failed to comply with clause 1.9.6(which is certainly not conceded), both Clauses, 1.10.2 and 1.10.3 apply, in relation toallegations by former Members about their dealings With your client and the effect they claim this has had on their lives and wellbeing, noting that the activities of religious organisations that receive government grants and/or tax-exempt status are clearly matters about which the public has a right to debate and be informed.

For the reasons above, Nine maintains that the Segment complied with the Code. However, we do acknowledge the points you make in your letter and will take your client's position into consideration in relation to any future reports of matters relating to the Plymouth Brethren.

…

The licensee submitted to the complainant on 8 October 2014:

Your letters raise issues pursuant to clause 4.3.1 of the Code which provides that, inbroadcasting news and current affairs programs, licensees:

4,3.1 must broadcast factual material accurately and represent viewpoints fairly,having regard to the circumstances at the time of preparing and broadcasting the program;

The Code does not require that current affairs programs present all potentially relevantviewpoints on a topic, but where a program does elect to represent a viewpoint it must do so fairly. In the same way, the Code does not require current affairs programs to present all factual material relating to an issue, provided that factual material that is presented is accurate in the circumstances at the time of broadcast.

…

Your letter of 5 September alleges that "[former member]'s version of events surrounding his departure from the Church and his dispute with his family is incorrect." As noted, thosematters were presented as [former member]'s version of events, in the context of him being a former member of the Plymouth Brethren. To the extent that included matters of opinion, the Segment fairly represented [former member]'s viewpoint on those topics. To the extent the Segment presented factual material about those matters, Nine maintains that material was presented accurately in the circumstances at the time of broadcast In particular, [former member]'s claims were reported as claims, and it was made clear in the Segment that Plymouth Brethren and [former member]'s family disagree with those claims. We note that [former member] has also informed Nine that he disagrees with the matters set out in the Response Document, and stands by his claims as reported in the Segment.

Nine notes that the Plymouth Brethren were given the opportunity to respond to theallegation that [former member] was prevented from attending his mother's funeral, by email directed to the Plymouth Brethren's public relations representative (to whom the


reporter was directed after making phone enquiries to the Plymouth Brethren). The statement from the Plymouth Brethren provided in response was included on Nine's website and viewers of the Segment were directed to it

For the reasons above, Nine maintains that the Segment complied with the Code. However, we do acknowledge the points you make in your letters and will take your position into consideration in relation to any future reports of matters relating to the Plymouth Brethren.

The licensee submitted to the ACMA on 11 March 2015:

…

4.3.1

5. Nine maintains that in broadcasting the Report, it broadcast factual material accurately and represented viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the Report, for the reasons below.

6. In [the ACMA]’s email of 27 February 2015, the ACMA indicated that the Code complaint being considered by the ACMA under clause 4.3.1 is in relation to the following aspects of the complainants’ complaint:

a. in relation to [former member]’s comment in the Report that “[t]hey told me I’m not allowed to go to the funeral service, that I’m not allowed to go to the cemetery”, the complainants’ have alleged:

‘This aspect of the broadcast implies that the Church, or the Family, or both, deliberately prevented [former member] from attending his mother’s funeral. The Church and Family refute this claim and state that [former member]’s father invited [former member] to the burial service, but [former member] chose not to attend. Further, other than sending the Church’s public relations firm an email a short time before the Broadcast (ie at 11.34am on the day of the Broadcast) – which gave the Church an unreasonable amount of time to properly consider the matter – the Nine network made no or no reasonable attempt to ascertain the truth of [former member]’s allegations, or the Church and the Family’s response to this most hurtful allegation prior to the Broadcast.’

b. in relation to the reporter, Ben McCormack’s, statement in the Report that “[r]ight now, the body of [former member]’s mother is in there, his father’s house, but [former member] is being made to wait outside in his car”, the complainants’ have alleged that:

‘This aspect of the broadcast implies that the Church, or the Family, or both, refused [former member] seeing or spending time with his dead mother’s body. The Church and family refutes this claim and state that the first time [former member] arrived at his father’s house he was granted immediate access. He had unrestricted freedom to view his mother’s body. The Nine Network chose to ignore that fact and/or failed to ascertain the truth of the situation.’

7. Clause 4.3.1 of the Code provides:

4.3.1 In broadcasting news and current affairs programs, licensees must broadcast 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 factual material is accurate is to be determined in the context of the segment in its entirety.

8. In prior investigations, the ACMA has acknowledged that clause 4.3.1 of the Code does not prohibit current affairs programs from taking an editorial stance on matters upon which it reports. That is, the Code does not require current affairs programs to present all potentially relevant viewpoints on a topic, but where a program does elect to represent a viewpoint it must do so fairly.

9. This clause also does not require broadcasters to include all factual details in relation to the subject matter, as long as the omission of that material does not impede the accuracy of factual material that is included. Provided the factual information that a licensee presents is accurate in the circumstances at the time of broadcast, failure to include all factual details on the subject presented does not amount to a breach of the Code.

10. Further, current affairs programs are perfectly entitled under the Code to present the opinions of people, as long as these people’s viewpoints are presented fairly and distinguishable from factual material, which itself must be presented accurately.

11. In this context, Nine responds to the complainants’ allegations in paragraph 6 above as follows:

a. [Former member]’s claims in respect of the circumstances relating to his mother’s funeral were reported from his viewpoint. As at the time of broadcasting the Report, [former member] maintained that he was told he was banned from attending the funeral. The presentation of [former member]’s opinions and claims in the Report were easily and readily distinguishable to the ordinary reasonable viewer from the factual material presented in the Report. Accordingly, Nine maintains that the Report represented [former member]’s viewpoint fairly, having regard to the circumstances at the time of preparing and broadcasting the Report.

Nine also believes the following material in the Report adds support to [former member]’s view:

i. when [former member] arrived at the cemetery, he related to Mr McCormack that he was told by the foreman that his mother’s funeral had been cancelled; and

ii. when [former member] and Mr McCormack returned to the cemetery the following week, his mother had since been buried, which [former member] said he wasn’t told about.

Nine further maintains that it gave the Church the opportunity to respond to the allegation that [former member] was prevented from attending his mother’s funeral. The Church’s statement, which did not deny keeping the details of [former member]’s mother’s funeral from him, was included on the A Current Affair website, as reported by Tracy Grimshaw at the end of the Report. [Former member] has informed Nine that he disagrees with the matters set out in the statement, and stands by his claims as reported in the Report.

b. Nine firstly denies the complainants’ allegation that this statement by Mr McCormack implied that the Church, or the Family, or both, refused [former member] seeing or spending time with his dead mother’s body. The Report made it clear that when [former member] arrived at his father’s house, he was met by security and escorted inside to see


his mother. Therefore, Nine does not accept that the Report conveyed the imputations contained in the complainants’ allegation.

Mr McCormack reported that [former member] returned from his father’s house a short time later. It was then that Mr McCormack made the statement, while [former member] waited in the car to attend the funeral. Mr McCormack gave context by adding that [former member] said that he planned to follow the coffin to the church because he was told he wouldn’t be allowed to attend the funeral. Again, his claims in respect of the circumstances relating to his mother’s funeral were reported from his viewpoint and in this regard Nine repeats its submissions in paragraph 11a above.

12. Nine otherwise maintains that factual material broadcast in the Report was presented accurately and viewpoints were represented fairly having regard to the circumstances at the time of preparing and broadcasting the program. Accordingly, Nine maintains that in broadcasting the Report, it did not breach clause 4.3.1 of the Code.

1.9.6

13. In [the ACMA]’s email of 27 February 2015, the ACMA indicated that the Code complaint being considered by the ACMA under clause 1.9.6 is in the terms put to Nine in the complainants’ correspondence of September 2014, to which Nine responded on 8 October 2014.

14. In the letter dated 4 September 2014 from [lawyer’s name] of [complainant’s lawyers], he alleged that Nine “incited religious hatred by virtue of its inaccurate and ‘sensationalist’ reporting of the Church”.

15. The letter dated 5 September 2014 from [Church representative] of the Plymouth Brethren Christian Church, and the letter dated 6 September 2014 from [former member]’s son on behalf of the [former member]’s family, did not raise issues under clause 1.9.6 of the Code.

16. These allegations raise issues under clause 1.9.6 of the Code, which provides that a broadcaster must not:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

17. In previous investigations, the ACMA has held that the above provision contemplates a strong reaction and sets a high test for the prohibited behaviour and therefore that content must be strong to meet the benchmark of ‘intense, serious or severe.’ There are also a range of exceptions to this requirement, including:

c. matters said or done reasonably and in good faith in the course of any broadcast of a statement, discussion or debate made or held for an academic, artistic or scientific purpose or any other identifiable public interest (in clause 1.10.2 of the Code); and

d. matters said or done in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest (in clause 1.10.3 of the Code).

18. Nine denies that the Report provoked or perpetuated dislike, contempt or ridicule against any person or group of persons (including members of the Church or the Church


itself) on the basis of religion (or any of the other specified grounds) let alone meet the high benchmark set by the Code and ACMA.

19. In any event, we believe the public interest exceptions in clauses 1.10.2 and 1.10.3 are relevant as the Report presented the viewpoints of a former member of the Church with his dealings with the Church and the effect he claimed this had on his life and wellbeing. The Church is a religious organisation that receives government grants and tax exemptions, and therefore reports concerning the activities of the Church are clearly matters about which the public has a legitimate interest in being informed.

…

Attachment DSome considerations to which the ACMA has regard in assessing whether or not particular content is factual material for the purposes of broadcasting codes of practice

In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

The ACMA will first look to the natural and ordinary meaning of the language used.

Factual material will usually be specific, unequivocal and capable of independent verification.

The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

Statements in the nature of predictions as to future events will rarely be characterised as factual material.

Statements containing hyperbole will rarely be characterised as factual material.

The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.

Where it is clear in the broadcast that an interviewee’s account is subjective and contestable, and it is not endorsed or corroborated, their allegations will not be considered as factual assertions.

Where an interviewee’s stance is separately asserted or reinforced by the reporter or presenter, or proof of an allegation is offered so that it becomes the foundation on which a program or a critical element of the program is built, it may be considered a factual assertion.8

8 See investigation 2712; Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667.


Sources with expertise may be relied on more heavily than those without, in determining whether material is factual, but this will depend on:

o whether the statements are merely corroborative of ‘lay’ accounts given by other interviewees,

o the qualifications of the expert,

o whether their statements are described as opinion,

o whether their statements concern past or future events9 and

o whether they are simply comments made on another person’s account of events or a separate assertion about matters within their expertise.

9 See investigations 3066, 2961.


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