Investigation Report No. 2854File No. ACMA2012/1065

Broadcaster Queensland Television Ltd

Station QTQ Brisbane

Type of Service Commercial Television

Name of Program A Current Affair

Date of Broadcast 21 June 2012

Relevant Code Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010

Date Finalised 2 October 2012

Decision No breach of clause 1.9.6 (dislike, contempt or ridicule)

ACMA Investigation Report 2854 – A Current Affair – QTQ – 21 June 2012

Background On 13 July 2012, the Australian Communications and Media Authority (the ACMA)

received a complaint concerning the program A Current Affair that had been broadcast on 21 June 2012 by Queensland Television Ltd, licensee of QTQ Brisbane (the Licensee).

A Current Affair is a current affairs program that is broadcast across Australia on the Nine Network on weeknights from 6:30pm to 7:00pm. It features a number of short segments on a wide range of issues.

On 21 June 2012, one of the items on the program (the Segment) was entitled “Older Drivers”. The Segment dealt with a proposed move for elderly drivers to compulsorily display “S” (an abbreviation for “Senior”) plates on their vehicles as they drive (the Proposal). It featured archive footage of accidents and accident scenes involving elderly drivers, interviews with ER and PL (advocates of the Proposal) and with VF (a critic of the Proposal and a member of Older People Speak Out), as well as various interviews with members of the public (the Street Interviews) and a mock driving test involving IL (a road safety expert), G and A.

The Segment had a duration of approximately nine minutes. A transcript of it is reproduced below in the Appendix.

The complainant submitted that the Segment was:...discriminatory to [older drivers], inasmuch as it inferred [sic] that a majority of drivers in this age were all of a similar standard, by including the inference [sic] that all drivers over a certain age should be forced to display ‘S’ Plates ... I am concerned that Channel 7 [sic] through it’s [sic] apparent avoidance of all the Guidelines under the Act, appears to have deliberately become involved in such act, [sic] that through interpretation could create an antagonistic attitude toward elderly drivers, by some other sections of the Community”

The complainant also stated that the segment was “discriminatory in the extreme, and could, again in my opinion provoke certain sections of the community to become aggressive to older drivers under certain circumstances”.

The investigation has considered the Licensee’s compliance with clause 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of disability] of the Commercial Television Industry Code of Practice 2010 (the Code):

Proscribed Material

1.9 A licensee may not broadcast a program ... 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.

This assessment is based on a recording of the Segment supplied to the ACMA by the Licensee, submissions from the complainant and correspondence between the Licensee and the complainant. Other sources have been identified where relevant.

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Issue: Was the Program Likely to Provoke or Perpetuate Intense Dislike, Serious Contempt or Severe Ridicule against a Group of Persons on the Grounds of Age?FindingThe Licensee did not breach clause 1.9.6 of the Code.

Reasons Clause 1.9.6 of the Code is to be assessed according to what the “ordinary

reasonable” viewer would have understood the relevant material to have conveyed. Courts have defined an “ordinary, reasonable” reader (listener or viewer) as:

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.1

The clause establishes a high threshold for proscribed material, in that the content of the broadcast must be likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule (emphasis added). The inclusion of the adjectives ‘serious’, ‘intense’ and ‘severe’ contemplates a very strong reaction to the prohibited behaviours. It is not sufficient that the broadcast induce a mild or even strong response.

Material which merely conveys negative reactions towards a person or group is not ‘provocation’. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.

The word “likely” is taken to mean something that is a real and not remote possibility, or something which is probable.2

The ACMA considers that the contents of the Segment were not sufficient to constitute a breach of clause 1.9.6 of the Code (clause 1.9.6).

The Segment was delivered in an objective, even-handed and fair manner that did not serve to paint a negative picture of the elderly.

It is acknowledged that some of the content, and indeed the nature of the Proposal itself, would be offensive to some members of the elderly community. In this regard, it is noted that the Segment included the following quotes:

o “Just as young drivers are required to display L and P plates, there’s now a call for everyone over the age of 65 to display S plates; to warn other road users that an older person is behind the wheel.”

o “The research shows that of the people over 85 who are involved in accidents, they are at fault in 80% of the cases.”

o “The population is ageing and I think unless something is done about it, we’re going to see more and more of these incidents.”

o “Seniors need to be identified on the road just for the main fact that they don’t have the same motor skills, vision, reflexes as the younger generations.”

1 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at pp 164-1672 See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778.

ACMA Investigation Report 2854 – A Current Affair – QTQ – 21 June 2012 3

The Segment also included footage of accidents caused by elderly drivers and interviews with advocates of the Proposal.

However, this material was not sufficiently strong to elicit the powerful reactions contemplated in clause 1.9.6. The interviewees spoke in a composed and measured manner, narrating their experiences and citing objective data rationally and dispassionately.

The ordinary, reasonable viewer would not have considered the language and terminology used in relation to the elderly to be provocative, extreme or insulting; nor as stirring up, inciting or simulating viewers against the elderly.

In addition, the ACMA notes the inclusion of a lengthy interview with VF in the Segment, which served to present the viewpoint that the Proposal was misguided and that it would have a negative impact on the elderly community. The portion of the Segment showing G and A participating in and passing a driving test (as well as IL’s light-hearted and affable treatment of them) cast the elderly in a further positive light. The Street Interviews were also unanimous in their condemnation of the Proposal.

The ACMA accordingly considers that the Segment fell considerably short of being likely to incite the powerful emotions outlined in clause 1.9.6. The Licensee’s even-handed approach, willingness to explore viewpoints that were critical of the Proposal and the absence of any provocative language from those interviewed resulted in the Segment not meeting the high threshold imposed by clause 1.9.6.

The ACMA appreciates that the complainant was offended by the broadcast. However, for the reasons outlined above, the ACMA is of the view that in the circumstances of this broadcast, the material complained about has not breached clause 1.9.6.

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Appendix – Transcript of the Segment

Presenter – We begin with the radical proposal that’s upsetting many older drivers. After a number of serious crashes involving older Australians, there’s a push to make seniors display “S” plates on their cars.

PL - He completely lost control of the vehicle, he panicked...

IL - I believe there are some older people who shouldn’t have a driver’s licence

VF – Why should we be penalised by people who are too impatient to drive properly?

ER – It’s a potential danger, it’s a potential accident waiting to happen

Reporter – It’s the controversial proposal that’s outraged older drivers.

ER – I’d like to see our senior drivers over the age of 65 display an S plate for seniors... ahh, just so we have visibility on our roads.

VF – What, silly plates, are they?

Reporter – Senior’s! Senior’s plates.

VF – You said S plates. And I think it’s as silly as it sounds.

Reporter – Just as young drivers are required to display L and P plates, there’s now a call for everyone over the age of 65 to display S plates; to warn other road users that an older person is behind the wheel.

Interviewee – Oh, what’s it going to achieve? That’s really rude!

Interviewee – I don’t think they should be put on the spot by having an S plate put on.

Interviewee – It’s a discriminatory act! I don’t think it’s right.

ER – This isn’t about discrimination, it’s about road safety.

Voiceover from archive footage – An 88 year-old driver trying to park lost control and crashed...

PL – She was waiting for a lift... when a vehicle that was out of control, driven by an elderly gentleman ran them over essentially...

Reporter – In an instant, [AF’s] life was turned upside down. Waiting in a shopping centre carpark with her four year-old son [X], she was mowed down by an out-of-control car. The driver was 88 years old.

PL – The car took [AF] and rammed her against another car; pinned her to another car, umm, and she was very badly injured and umm, you know, it was life-threatening injuries...

Reporter (narrated) – The young mother had her leg amputated above the knee. Thankfully, little [X] escaped with minor injuries. The driver escaped a jail term.

Reporter – In your view, should he have been behind the wheel of a car?

PL – Absolutely not. As [AF] kept saying to me, even in hospital in intensive care, dad, he just shouldn’t have been on the road. He shouldn’t have been driving.

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Reporter – Since the crash that’s devastated [AF’s] life, her dad and former Queensland MP [PL] has been campaigning to get dangerous older drivers off our roads.

PL – I mean the research shows that of the people over 85 who are involved in accidents, they are at fault in 80% of the cases.

Reporter – This horrific crash, caught on CCTV, shows the moment a car careers into a shopping strip and hits a father holding a baby and the child’s grandparents. It was a miracle they all survived. The out of control car was driven by an 82-year-old woman. In this crash, an 88 year-old driver confused reverse and forward and mowed down two people on a footpath before smashing into a chemist. A young man was pinned under this car with a broken leg after the 90 year-old driver crashed into this bookshop. In this crash, two pedestrians were hit while walking down a footpath. The 75 year-old driver lost control and mounted the kerb. And, who could forget [SD]. Run over in her childcare centre by an out-of-control car driven by an elderly man only to be run over again just a few years later by another elderly driver.

PL - The population is ageing and I think unless something is done about it, we’re going to see more and more of these incidents.

VF – Younger people are far more dangerous on the road than older people, so do you want to get rid of all the young people off the road too?

It’s not too late, you can go back if you want to!

Reporter (narrated) – She might be 85 but don’t tall [VF] she’s not allowed to drive.

Reporter – Now, how important is it for older people to be able to drive?

VF – Look, you’ve got no idea. If you lose your licence, you’ve virtually lost your life, to a large extent.

Reporter – [VF] is from Older People Speak Out, and believes driving gives older people independence.

VF – I think we should be doing whatever we can to keep older people on the road. The trouble is that if you get to the stage where you can’t stay on the road, many, many older people become socially isolated, and this leads to all sorts of illnesses, and, you know, loneliness...

IL – Look, I think community safety has to be number one.

Reporter – Meet [G] and [A]. They’re in their 70’s and have agreed to undergo a basic driving skills test, set up by advanced safe driving expert [IL]

IL – Come on, [G]! It’s not a Sunday drive! Look for the gap! You’ve gotta use your vision to avoid the collision.

Reporter – Reverse parking...

G – Whoops!

IL – Had the wrong gear!

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Reporter – Driving around obstacles...

IL – Yeah, we’re doing probably less than 20 at the moment.

A – Yeah, well, this is what I feel comfortable at.

IL – Ok, that’s ok, keep going.

Reporter - ... and, a reflex reaction test.

IL – Brake!

A – Jesus Christ!

IL – Ooooh...

G – I’ve been driving for probably... ahh... 59 years. Not quite 60.

Reporter – When’s the last time you’ve done a driving test?

A – [Grimaces]. Oooh. I was 17, probably.

Reporter – Is it fair that we test older people?

IL – The roads are getting much busier, and if we’re serious in addressing road carnage, which is a multi-billion dollar problem in this country, we have to go back to that word: skill.

Reporter – But when you look at the rules for older drivers, they’re inconsistent and ineffective. In Queensland, there’s no practical driving test. Drivers 75 and over only have to get a medical certificate from a GP. In New South Wales, drivers over the age of 85 must sit a practical test, but there’s a loophole: if they refuse the test, they’re given a restricted licence that allows them to drive up to 10km from their home. Road safety experts agree that’s a joke.

PL – The danger is still there. When these type of people get into a vehicle, it doesn’t matter if they’re driving 100 metres or 100 miles.

Reporter - In Victoria, there’s no age-related tests for licence holders. In South Australia, from the age of 70, you need a medical certificate, and from 85, you do need to do a practical test every year. And, in Western Australia, from 85, you also do have to sit an annual driving test.

PL - Do we wait until they kill someone, and then say oh, well, no more driving for you?

Reporter – With so many inadequate laws, that’s where S plates come in.

ER – Something needs to be done about it. I think the S-plates will give visibility.

Reporter - Road safety advocate [ER] believes older drivers are dangerous and is launching a campaign for S-plates to be used.

Interviewee - Seniors need to be identified on the road just for the main fact that they don’t have the same motor skills, vision, reflexes as the younger generations.

VF – I think that is an insult! An absolute insult. Because if you’re going to do that, you’re going to have to make sure young people keep their plates on for much longer than they do, because after all, they are causing far greater, umm havoc on the road than we older people are.

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Reporter – You wouldn’t drive with S-plates on your car?

VF – No way!

Reporter – Back at the track, [G and A] are still being tested. Both collect witch’s hats here, and the reverse parking took a couple of goes. But, they both passed the reaction test with flying colours.

A – Hooray!

Reporter – From a safety point of view, would you be happy to get into a car being driven by [A or G]?

IL – Look, I wouldn’t have any problem at all, ummm... not sure about the reverse parking, cos it probably took a little longer than planned! [Laughter].

Reporter – As for older drivers who are a danger on the road, [PL] says it’s up to families to intervene.

PL – My brothers and I had to get the police to take my father’s licence from him about 10 years ago, well before this accident, because he was a danger. Maybe to himself, but certainly a danger.

IL – If you’ve got a family member that you’re terrified going in the vehicle with, do something about it. Get them off the roads.

Presenter – It’s an important that one but there are no simple solutions, now in our Facebook poll tonight, we’re asking “Should older drivers be forced to display ‘S’ plates?”. Results for you tomorrow night.

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