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Investigation Report No. 3035File No. ACMA2013/745

Licensee Queensland Television Ltd

Station QTQ Brisbane

Type of Service Commercial television

Name of Program 60 Minutes

Date of Broadcast 8 July 2012

Relevant Legislation/Code

Section 45 of the Invasion of Privacy Act 1971 (Qld)Paragraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act 1992Clauses 1.5.1, 1.5.4, 4.3.1, 4.3.5 and 1.9.6 of the Commercial Television Code of Practice 2010

Date finalised 26 September 2013

Decision No breach of the licence condition at paragraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act 1992 [use of broadcasting service in commission of offence]

No breach of:o clause 4.3.1 [accuracy]o clause 4.3.5 [privacy]o clause 1.9.6 [provoke/perpetuate intense dislike, serious

contempt or severe ridicule on the grounds of ethnic origin/race]

of the Commercial Television Code of Practice 2010

ACMA Investigation Report 3035 – 60 Minutes broadcast by QTQ on 8/7/12

The complaintThe complainant (who will be referred to in this report as Mr N) approached the Australian Communications and Media Authority (the ACMA) directly on 25 February 2013 with several complaints about a segment entitled ‘Carbon Cowboy’ in the program 60 Minutes broadcast by Queensland Television Ltd, the licensee of QTQ, on 8 July 2012. The segment was about the complainant’s dealings with Amazonian indigenous communities over carbon projects, including a federation of four Yagua communities (the federation) which has entered into a commercial agreement (the agreement) with the complainant’s company. The complainant attached to his complaint a copy of a letter to the Australian Ambassador in Peru from the federation, dated 20 August 2012, which contained similar complaints about the broadcast.

One of the complainant’s complaints was that a conversation to which he had been a party had been secretly recorded and then broadcast in the segment without his permission. He relevantly stated that this was prohibited by State legislation. The complainant was entitled to make this complaint directly to the ACMA under section 147(b) of the Broadcasting Services Act 1992 (the BSA).1 The ACMA has investigated this complaint in relation to section 45 of Invasion of Privacy Act 1971 (Qld) (the IPA) and paragraph 7(1)(h) of Schedule 2 to the BSA.

The complainant also made complaints that the segment contained factual inaccuracies, invaded privacy, and depicted Amazonian indigenous people in an offensive and humiliating manner. Accuracy of factual material, privacy, and provocation of serious contempt on grounds of ethnic origin/race are matters covered by the Commercial Television Industry Code of Practice 2010 (the Code). As such, a person is entitled to make a complaint to the ACMA about the matters only if s/he has first made a complaint to the licensee about the broadcast, the complaint was made in accordance with the Code, and the person has either not received a response within 60 days after making the complaint, or has received a response within that period but considers that response to be inadequate.2

The complainant had not made a complaint to the licensee about the broadcast, and was, by the time he approached the ACMA, unable to do so, because one of the requirements for making a complaint to a commercial television licensee in accordance with the Code is that it be made within 30 days of the broadcast.3 The complainant submitted that the reason he was unable to make a complaint to the licensee within 30 days of the broadcast was that he had had to consult with the federation first, and, due to ‘distance and language hurdles’, the federation had not received a copy of the program and a transcript until well after the 30-day cut-off from the date the segment went to air.

Taking the above into account, the ACMA decided to commence an investigation, under section 170 of the BSA,4 into those complaints about accuracy, invasion of privacy and provocation of serious contempt that related to the depiction of the Yagua in the segment. These complaints have been investigated in relation to clauses 4.3.1, 4.3.5 and 1.9.6 of the Code.

1 Section 147(b) of the BSA provides that if a person believes that another person who is providing a broadcasting service has breached a condition of a licence, the person may make a complaint to the ACMA about the matter. Under section 149 of the BSA, the ACMA must investigate the complaint, although it need not do so if it is satisfied that the complaint is frivolous or vexatious or was not made in good faith; or the complaint does not relate to a breach of a condition of a licence.

2 Section 148 of the BSA.3 Clause 7.2.1 of the Code.4 Under section 170 of the BSA, the ACMA may conduct investigations for the purpose of the

performance or exercise of any of its broadcasting, content and datacasting functions.

ACMA Investigation Report 3035 – 60 Minutes broadcast by QTQ on 8/7/12 2

Matters not pursuedAs noted, the ACMA has opted not to investigate those of the complainant’s complaints that relate to other aspects of the broadcast, such as the licensee’s treatment in the broadcast of the complainant’s business record and personal life, and its depiction of other Amazonian indigenous communities.

In addition, the complainant complained that the broadcast had damaged his business and sense of personal security. The ACMA has no jurisdiction to make findings in relation to these matters and accordingly has not investigated them.

The complainant has been informed of the matters which the ACMA is not investigating.

The programThe program 60 Minutes is a current affairs program. The segment ‘Carbon Cowboy’ was 13 minutes 48 seconds in duration.

A transcript is at Appendix 1.

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 in the report.

Section 1: Use of broadcasting service in commission of offence

Relevant legislation Commercial television broadcasting licencees are subject to the licence condition at paragraph 7(1)(h) of Schedule 2 to the BSA:

Clause 7 Conditions of commercial television broadcasting licences

(1) Each commercial television broadcasting licence is subject to the following conditions:

[...]

(h) the licensee will not use broadcasting services in the commission of an offence against another Act or a law of a State or Territory; …

In this case, the relevant State Act is the IPA. Section 45 of the IPA relevantly provides:

45 Prohibition on communication or publication of private conversations of parties thereto(1) A person who, having been a party to a private conversation and having used a listening

device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

(2) Subsection (1) does not apply where the communication or publication:…(c) is not more than is reasonably necessary:

(i) in the public interest; …

A full extract of relevant sections of the IPA is at Appendix 2.


The ACMA’s jurisdiction and approachThe licensee has submitted that the ACMA has no power to determine that the licensee has committed an offence pursuant to the IPA. The licensee’s submission in this regard is at Appendix 3.

The ACMA’s view is that, as an administrative body, the ACMA has the power to form an opinion whether a licensee has committed a Commonwealth, State or Territory criminal offence, for the purposes of deciding whether a licensee has breached the licence condition set out at paragraph 7(1)(h) of Schedule 2 to the BSA. The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court. The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence. The ACMA particularly notes that any formation of such an opinion by it, or reliance on that opinion for the purpose of taking further action as contemplated by the BSA, does not, and could not, amount to an adjudication of criminal guilt in the manner in which a court’s decision would operate.

The ACMA’s opinion is to be formed on the civil standard of proof, that is, to the reasonable satisfaction of the ACMA (on the balance of probabilities). However, the ACMA is mindful that formation of an opinion about the commission of an offence is a serious matter and of the general rule that as the gravity of the consequences of a finding increase, so too does the weight of proof which should be required: see Briginshaw v Briginshaw (1938) 60 CLR 336.

Relevant materialThe relevant material is highlighted in the transcript at Appendix 1.

Licensee’s submissionsThe licensee’s submissions are at Appendix 3.

FindingThe licensee did not use a broadcasting service in the commission of an offence against subsection 45(1) of the IPA and therefore did not breach the licence condition at paragraph 7(1)(h) of Schedule 2 to the BSA.

ReasonsIn order to determine that the licensee has committed an offence against subsection 45(1) of the IPA, and thereby breached paragraph 7(1)(h) of Schedule 2 to the BSA, the ACMA must be satisfied, on the balance of probabilities, that:

there was a ‘private conversation’;

the licensee, through its employee or agent, was a ‘party to a private conversation’;

the licensee, through its employee or agent, ‘used a listening device to…record …that conversation’; and

the licensee subsequently communicated a record of the conversation made by the use of the listening device.

Then, if all of the above criteria are met, the ACMA must also be satisfied, on the balance of probabilities, that the exception provided for in subparagraph 45(2)(c)(i) of the IPA does not apply. That is, that the communication or publication of the record of the private conversation was not more than was reasonably necessary in the public interest.


For reasons outlined below, the ACMA is satisfied that:

there was a ‘private conversation’;

the licensee, through its employee or agent, was a ‘party to a private conversation’;

the licensee, through its employee or agent, ‘used a listening device to…record …that conversation’; and

the licensee subsequently communicated a record of the conversation made directly by the use of the listening device.

The ACMA is also satisfied, on the balance of probabilities, that the exception provided for in subparagraph 45(2)(c)(i) of the IPA does apply because the communication or publication of the conversation by the licensee was not more than was reasonably necessary in the public interest.

The licensee therefore did not use a broadcasting service in the commission of an offence under subsection 45(1) of the IPA and hence did not breach the licence condition set out at paragraph 7(1)(h) of Schedule 2 to the BSA.

Was there a ‘private conversation’?

A ‘private conversation’ is defined in section 4 of the IPA as:

… any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.

The relevant test depends on what the circumstances indicate about:

the desire of the participants to have their conversation heard only by themselves, and;

whether the participants ought reasonably to expect that their conversation may be heard or recorded by others, without their consent.

This requires an objective evaluation of what is indicated by the circumstances in which the relevant conversation occurred. The circumstances relevant to that evaluation would normally include the nature of the relationship between the parties to the conversation, the nature of the subject matter of the conversation and especially any sensitivities attaching to it, and any steps or measures the participants have taken to choose or modify a location or physical environment for the conversation to eliminate or minimise the chances of it being overheard or listened to by someone else.

The conversation in question was between two people, the complainant and a person who was ostensibly a potential investor, but who was in fact an employee/agent of the licensee working on the segment for 60 Minutes. The words of both parties can be heard and understood.

The desire that the conversation be heard only by the participantsThe ACMA considers that the relevant circumstances indicate that one of the participants, namely the complainant, desired that the conversation be heard only by the two participants. The complainant was obviously not aware that the conversation was being recorded.


The complainant was clearly under the impression that the conversation was in relation to a genuine enquiry about a possible investment in the complainant’s carbon project in the Amazon Basin. For commercial reasons, it is reasonable to assume that the complainant would have wanted a conversation of this sensitive nature to be conducted in private and not heard by others, either at the time that the conversation took place or at a later date.

The reasonable expectation that the conversation would not be heard or recorded by othersThe ACMA is of the view that one of the participants, namely the complainant, ought reasonably to have expected that the conversation would not be heard or recorded by others. The ACMA notes in this regard that:

the relevant conversation took place in a private enclosed space, i.e. a hotel room;

the conversation took place between two people;

there did not appear to be anyone in the room other than the two participants and no-one else was apparent who would have been within earshot; and

participants in a (genuine) one-on-one conversation about a possible commercial investment would have reasonable expectations both that the conversation would be private and that it would not be heard or recorded by others.

Accordingly, the relevant conversation was a ‘private conversation’ within the meaning of the IPA.

Was the licensee a party to the relevant conversation?

The IPA at subsection 42(2)5 provides that a reference to a ‘party to a private conversation’ is a reference to:

(a) a person by or to whom words are spoken in the course of a private conversation; and

(b) a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words.

Subsection 49(2)6 of the IPA expressly contemplates that a corporation may be a ‘person’ who commits an offence against the IPA. This could only occur through the conduct of individuals who were employees or agents of the corporation and who were acting on its behalf. The ACMA is satisfied that a commercial television licensee can be a ‘person’ for the purposes of the definition of ‘party to a private conversation’ in subsection 42(2) of the IPA.

It is apparent from the segment that one of the parties to the relevant conversation was either an employee or an agent of the licensee of QTQ, acting on its behalf.

5 See Appendix 2.6 See Appendix 2.


Therefore, the licensee was a ‘party to the private conversation’, in accordance with subsection 42(2)(a) of the IPA.

Was a listening device used?

A listening device is defined in section 4 of the IPA as:

any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place.

While the licensee ‘makes no admissions’ in relation to any element of section 45(1) of the IPA, the ACMA is satisfied, on the balance of probabilities, that the licensee made a recording of the conversation, and used a ‘listening device’, as defined for the purposes of the IPA, for this purpose. The broadcast itself showed the reporter monitoring the recording:

Did the licensee communicate or publish a record of the conversation?

The ACMA is satisfied that, via the inclusion of the conversation as part of the 60 Minutes segment ‘Carbon Cowboy’, broadcast on QTQ, the licensee subsequently communicated to other persons, namely the viewing public, a record of the conversation with the complainant, made directly by the use of a listening device.

Was the communication or publication more than was reasonably necessary in the public interest?

Notwithstanding that the elements of the offence under subsection 45(1) of the IPA have been established, the ACMA must consider whether the communication that occurred in the present case, falls within the exception in subparagraph 45(2)(c)(i) of the IPA which provides that “Subsection (1) does not apply where the communication or publication … is not more than is reasonably necessary … in the public interest”.

That is, subsection 45(1) of the IPA and consequently paragraph 7(1)(h) of Schedule 2 to the BSA, will not be breached if the broadcast of a private conversation is reasonably necessary to contribute to the public’s knowledge and understanding of an issue that concerns the public interest or is reasonably necessary for the protection of the public, or for some other genuine reason that furthers the public interest.

In the present case, the ACMA considers that it furthers the public interest to increase the public’s knowledge and understanding of:

potentially unfair exploitation, allegedly by Mr N, in sites of global environmental significance such as the Amazonian region, of the commercial opportunities that are emerging as a result of the adoption by governments of emission trading schemes and similar measures;


Mr N’s conduct in being prepared to give allegedly incorrect, exaggerated and speculative information to potential Australian investors;

Mr N’s plans after exploiting carbon offsets for 25 years, to log the rainforests to the potential detriment of the environment and the Amazonian indigenous communities.

In this context, the broadcast of the private conversation was necessary to contribute to the public’s knowledge of how the complainant was marketing his product to potential investors, and the value he placed on rainforest conservation within this framework. The ACMA considers it unlikely that this information could have been obtained through other means, e.g. an interview. Further, the ACMA does not consider that more material was broadcast than was reasonably necessary in order to achieve this end.

Section 2: Code issuesIn assessing content against a code of practice, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable listener/viewer’.

Australian courts have considered an ‘ordinary, reasonable reader (or listener or viewer)’ to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.7

The ACMA considers what the ‘ordinary reasonable listener/viewer’ would have understood the program to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Code has been breached.

Issue 2(a): Accuracy

Relevant Code clausesNews and Current Affairs Programs

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.

Compliance with Code

1.5 Licensees must seek to comply fully with the Code, but a failure to comply will not be a breach of the Code if that failure was due to:

1.5.1 a reasonable mistake; …

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


1.5.4 an act or failure to act which, in all the circumstances, was clearly peripheral or incidental, and unlikely to offend or materially mislead viewers.

Considerations generally applied by the ACMA in assessing whether particular broadcast material is factual in character are set out at Appendix 4.

Relevant materialThe ACMA has examined the accuracy of three parts of the segment:

(i) the identity and actions of an interviewee who said in the broadcast that he could not read (the interviewee);

(ii) the role of a lawyer (W); and

(iii)Yagua knowledge of Mr N’s past business record.

FindingThe licensee did not breach clause 4.3.1 of the Code in respect of the matters examined.

Reasons(i) The identity and actions of the interviewee

The segment included:THE REPORTER: [Mr N] has already convinced some tribes to sign away their rights, and [D]8 is taking me deeper into the Amazon to visit one such community. They’re called the Yagua. They’re dirt-poor, many can’t read or write, and they’ve handed [Mr N] half of all the carbon that’s in their forests.

THE REPORTER (to the interviewee, in village): Can you read this for me, please?

THE REPORTER (voiceover): [‘Name’ of interviewee] signed the document put in front of him.

INTERVIEWEE: [Speaks in Spanish]

TRANSLATOR: He’s saying he signed it, but he can’t read.

THE REPORTER: He can’t read? At all?


TRANSLATOR: He says he can’t read.

Interviewee’s identity

8 D is a former business associate of Mr N’s. See transcript at Appendix 1.


The complainant submitted that the interviewee does not belong to the Yagua community. The federation’s letter to the Australian Ambassador in Peru, provided to the ACMA by the complainant, also included:

We would like to indicate that [name of interviewee] doesn’t even belong to the ethnic grouping of the Yaguas much less to one of the Yagua communities who signed and ratified the agreement with the company [name] represented by [Mr N].

[Translation into English provided by the complainant]

The licensee submitted documentation to show that a person with a slightly different name from that given in the broadcast is a member of one of the communities which comprise the federation. The documentation comprised the interviewee’s Peruvian identity card, including a photograph of the interviewee; an extract from the relevant community register listing the interviewee; and a notarised statement from the interviewee’s brother, Mr A, who featured in the broadcast.9

The licensee further submitted that the difference in names was due to the reporter’s use of a phonetic transcription of the name, which the producer had taken down during filming because the interviewee was unable to write or spell out his name.10

The ACMA accepts that the person interviewed in this part of the broadcast is a member of one of the Yagua communities that comprise the federation. The ACMA notes that his name was given incorrectly in the broadcast. However, the ACMA considers that this was due to a reasonable mistake under the circumstances, and did not materially mislead viewers. Under clauses 1.5.1 and 1.5.4 of the Code, a failure to comply with the Code is not a breach of the Code if that failure was due to a reasonable mistake (clause 1.5.1) and/or an act or failure to act which, in all the circumstances, was clearly peripheral or incidental, and unlikely to materially mislead viewers (clause 1.5.4). The ACMA considers that clauses 1.5.1 and 1.5.4 apply in this case.

Interviewee’s actions The complainant submitted that the interviewee did not sign any document; and that the document displayed in the broadcast ‘is a fraud’.

The licensee relevantly submitted that:

the interviewee confirmed to the segment producer ‘that he had signed a document given to him by Mr [N] or someone on his behalf’; and

the document shown to the interviewee in the segment is a true and correct copy of a document that was provided to the licensee, and originated from a member of the Yagua community.

The licensee provided a copy of the document which appeared in the segment. It has Mr N’s name at the end of it, but does not have any signatures.

The ACMA notes that the document which appeared on screen does not bear the interviewee’s signature (or any other); that the licensee has not sighted any document signed by the interviewee; and that the licensee made a factual assertion in this regard solely on the basis of the interviewee’s word. However, the ACMA is unable to rule out that the interviewee did sign a document ‘put in front of him’ without being able to read it.

9 Mr A was described in the broadcast as a ‘young leader’ and one of ‘only a handful of Yagua’ who ‘refused to go along with [Mr N]’s plan’. See transcript at Appendix 1.

10 The ACMA assumes that the second letter of the interviewee’s surname was misread, miswritten or mistyped as ‘s’ instead of ‘a’.


In deciding whether factual material has been presented accurately, the ACMA does not necessarily discern the ultimate truth. In this case, having considered all the material and submissions before it, the ACMA regards none of it as conclusive and it is not able to determine which material or submissions should be preferred. Therefore the ACMA is of the view that there is insufficient evidence available for it to be satisfied that the licensee breached clause 4.3.1 of the Code.

(ii) The role of the lawyer W

The segment included:

THE REPORTER: These are desperately poor people, who are easily manipulated, unaware that the supposedly independent lawyer advising them is actually [Mr N]’s lawyer.

THE REPORTER (to translator, in village): Can he tell me the lawyer’s name, please?

TRANSLATOR: [Speaks in Spanish]

MAN OFF SCREEN: [W].

UNNAMED MAN: [W].

TRANSLATOR: [W].

UNNAMED MAN: Uh-huh.

TRANSLATOR: That’s [Mr N]’s lawyer.

The complainant submitted that:

W acted only for him (i.e. Mr N);

The federation had its own lawyer;

The licensee knew this because the reporter had sighted a letter from the federation’s lawyer on the occasion of the interview in the hotel suite.

The complainant provided a copy of a letter from the lawyer to the federation.

The licensee submitted that it asked a Peru-based researcher to contact the relevant individual. The researcher advised the licensee that the individual denied having worked for the Yagua or having given legal advice to any native community regarding forest carbon.

Again, having considered all the material and submissions before it, the ACMA regards none of it as conclusive and it is not able to determine which material or submissions should be preferred. Therefore the ACMA is of the view that there is insufficient evidence available for it to be satisfied that the licensee breached clause 4.3.1 of the Code.

(iii) Yagua knowledge of Mr N’s business record

The segment included:

THE REPORTER (to Mr N in hotel suite): We want some answers about the Amazon tribes that you’ve been dealing with.

MR N: I’ve got nothing to say.

THE REPORTER (voice-over): What these Amazon tribes didn’t know – couldn’t know – was the long trail of people who’ve trusted [Mr N] and lost money.

The reporter then referred to a project involving Mr N at Clairview in North Queensland in the early 1990s, about which a statement was made in the Queensland Parliament.

The segment referred to two ‘Amazon tribes’ with whom Mr N has had dealings: the Matsés and the Yagua. This investigation is examining the statement only as it applied to the Yagua.


The complainant relevantly submitted that the Yagua knew about this matter11 because it had been the subject of an article in an Iquitos newspaper on 4 April 2011.12

The complainant provided a partial print-out13 of the website version of a Spanish-language article in the newspaper La Región, ‘Piden que Defensoría del Pueblo investigue a presunto estafador de nacionalidad australiana’. The article reports that a leader of the Matsés indigenous community had asked the Iquitos Office of the People’s Defender to investigate Mr N’s past business record and to provide legal assistance for the Matsés’ dealings with him. The headline of the article describes Mr N as a ‘suspected con-man’ and refers to allegations that he has a record of being involved in scams in other countries and then fleeing, with Nauru and Malaysia being mentioned specifically.

‘... didn’t know ...’The ACMA considers that the evidence is inconclusive in respect of the statement that the Yagua ‘didn’t know’ about Mr N’s past business record. The ACMA notes that there is no direct evidence from the Yagua themselves to show they were aware of the allegations against Mr N at the time they signed the agreement. Accordingly it is not possible for the ACMA to determine what the Yagua ‘didn’t know’. Therefore the ACMA is of the view that there is insufficient evidence available for it to be satisfied that the licensee breached clause 4.3.1 of the Code in this respect.

‘...couldn’t know ...’In this particular case, the ACMA considers that the statement that the Yagua ‘couldn’t know’ about Mr N’s past business record was an inference of a judgmental kind; as such it was not factual material and accordingly was not subject to the accuracy requirements of clause 4.3.1 of the Code.

In the alternative, if the statement is regarded as ‘factual material’, the ACMA considers, again, that the evidence is inconclusive. The ACMA is not able to satisfy itself that it was possible for the Yagua to have had access to the La Región article.

Issue 2(b): Privacy

Threshold considerationThe licensee submitted that ‘privacy is not a right that can be claimed by an unrelated third party’, noting that the complainant ‘appears to be making this claim on behalf of the Yagua people’.14 The ACMA considers that it has the power to investigate and make findings in relation to complaints from third parties that a licensee has breached clause 4.3.5 of the Code. There is nothing in clause 4.3.5, or in the Code as a whole, that would prevent a third party from making a complaint that a licensee had breached clause 4.3.5 of the Code. In any case, the ACMA’s investigation is conducted under s170 of the BSA.

Relevant Code clauseNews and Current Affairs Programs

11 The phrase used by the complainant is ‘knew all about these lies’.12 According to the federation letter, the agreement was signed on 31 October 2011, i.e. six months

after the article was published.13 The ACMA has downloaded the full article from diariolaregion.com/web.

[Date accessed: 8 August 2013]14 The licensee’s submissions are at Appendix 5.


http://diariolaregion.com/web/

4.3 In broadcasting news and current affairs programs, licensees:

4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.

In assessing compliance with clause 4.3.5 of the Code, the ACMA takes into account the ACMA’s Privacy guidelines for broadcasters 2011 (the Privacy Guidelines).

Relevant materialThe relevant material comprised footage filmed in a Yagua community.

Complainant’s submissionsThe complainant submitted that the licensee’s film crew had arrived uninvited and invaded the privacy of the community. He mentioned in particular footage of ‘a topless indigenous mother with a naked child in her arms’.

The federation’s letter referred to the 60 Minutes crew as having ‘entered our lands without authorisation’.

Licensee’s submissionsAs noted, the licensee’s submissions are at Appendix 5.

FindingThe licensee did not breach clause 4.3.5 of the Code.

ReasonsIn considering whether the licensee complied with clause 4.3.5 of the Code, the ACMA considers:

Was a person identifiable from the broadcast material?

Did the broadcast use material disclosing personal information or intrude upon a person’s seclusion in more than a fleeting way?15

If the answer to both of the above questions is yes, a breach of clause 4.3.5 of the Code has occurred, unless there was an identifiable public interest reason for the material to be broadcast.

Was a person identifiable from the broadcast material?

As explained in the privacy guidelines, a person is identifiable from a broadcast (including audio or visual material) if the person’s identity is apparent or can reasonably be ascertained.

The ACMA is satisfied that several members of the Yagua community were identifiable from the broadcast, as their faces were clearly shown.

Was there an invasion of a person’s privacy?

Clause 4.3.5 of the Code protects against the broadcast of material that relates to a person’s personal or private affairs, or which invades an individual’s privacy. The complaint under

15 Privacy Guidelines, p2.


investigation is about invasion of privacy rather than the use of material relating to a person’s personal or private affairs.

The ACMA considers that the licensee did not use material which invaded the privacy of members of the Yagua community.

According to the Privacy Guidelines, an individual’s privacy is invaded where his or her seclusion is intruded upon in more than a fleeting way.16 This may occur where:

he or she would have a reasonable expectation that his or her activities would not be observed or overheard by others; and

a person of ordinary sensibilities would consider the broadcast of these activities to be highly offensive.17

The invasion must be more than fleeting and may occur in a public space.18

The footage used was almost entirely filmed out-of-doors, where those filmed would have been aware that their activities could be observed or overheard by others, including the 60 Minutes crew. This includes the ‘topless indigenous mother’ referred to by the complainant, the footage of whom, in any case, was fleeting and taken from a distance. Further, the activities in which the people were engaged in the footage broadcast were everyday activities (walking, jumping into a pool or river, preparing food, sitting at a table and on a veranda).

The one indoor scene was of what appeared to be a Yagua community meeting, where, again, the participants were engaged in activities observed by others (namely, the other participants in the meeting, and the 60 Minutes crew). The activities in which the people were engaged in the footage broadcast were those of listening and talking at the meeting.

Accordingly, the ACMA considers that:

the individuals whose images were shown would not have had a reasonable expectation that their activities would not be observed or overheard by others; and

a person of ordinary sensibilities would not have considered the broadcast of any of the activities shown to be highly offensive.

In conclusion, the material broadcast did not intrude upon any person’s seclusion in more than a fleeting way.

Issue 2(c): Intense dislike, serious contempt or severe ridicule

Relevant Code clauseProscribed material

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.

16 Privacy Guidelines, p2.17 Privacy Guidelines, p4.18 Privacy Guidelines, p 4.


‘likely, in all the circumstances’

The phrase ‘likely in all the circumstances’ imposes an objective test19 that requires a real and not remote chance or possibility.20 Something which is probable would satisfy this test.

‘intense’, ‘serious’ and ‘severe’

The use of the words ‘intense’, ‘serious’ and ‘severe’ indicates that the Code contemplates a very strong reaction. It is not sufficient that the broadcast be likely to induce a moderately negative response or reaction.

‘provoke’

Provocation can be achieved through material about a person or group; there is no requirement that the material include a specific call to action against that person or group or to establish that there was a specific intention to provoke intense dislike, serious contempt or severe ridicule; or to prove that anyone was actually provoked.21 However, the material must include something more than the use of words that merely convey intense dislike, serious contempt or severe ridicule towards a person:

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.22

‘on the grounds of’

The phrase ‘on the grounds of’ requires that there be a causal link between the intense dislike/serious contempt/severe ridicule provoked and a specified attribute (e.g. ethnic origin).

Complainant’s submissionsThe complainant submitted that the program was ‘racist’ and ‘perpetuate[d] deeply ingrained notions that isolated tribes are primitive, that they somehow lag behind the rest of us in their evolutionary development and that they are our inferiors’.

Relevant excerpts of the complainant’s submissions and the letter from the federation are at Appendix 6.

Licensee’s submissionsThe licensee’s submissions are at Appendix 7.

FindingThe licensee did not breach clause 1.9.6 of the Code.

ReasonsClause 1.9.6 refers to three effects: dislike, contempt and ridicule. From the complaint, the relevant effect is contempt.

19 Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12.20 See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD

773 at 778-779.21 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23-29].22 Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].


Clause 1.9.6 relevantly refers to those effects being provoked against ‘a person or group of persons’. From the complaint, the relevant target is a group of persons rather than an individual person, namely the signatories to the agreement.

Clause 1.9.6 also refers to a number of grounds. From the complaint, the relevant ground is ethnic origin.

Accordingly, the key issue for examination is whether the segment ‘Carbon Cowboy’, broadcast on QTQ on 8 July 2012, was likely, in all the circumstances, to have provoked serious contempt against the signatories to the agreement on the grounds of their ethnic origin (Yagua).

The ACMA accepts, in addition, that the federation considers the segment to have been offensive, humiliating and insulting. The ACMA also accepts that the segment interpolated, in its depiction of signatory communities, footage of Yaguas belonging to a community which is not a signatory to the agreement, and is a community that caters to tourists, dressed in ceremonial or traditional attire (grass skirts, headdresses, painted faces):

The ACMA accepts that this likely had the effect of conveying to the viewing audience that the signatories to the agreement are less conversant with contemporary modern society than they actually are.

The ACMA accepts, in addition, that the licensee may have exaggerated the degree of isolation in which the signatories live, and may have erred in its account of the activities of the illiterate interviewee.

However, as noted, the use of the term ‘serious’ sets a high threshold for the prohibited behaviour. In the present case, the ACMA considers that the likely effect of the broadcast was not strong enough to amount to ‘serious contempt’. In that respect, the ACMA notes the absence of any strong or explicit terms of condemnation or expressions of contempt on the reporter’s part in relation to either the signatories to the agreement or the Yagua in general.


The strongest negative statement made was that the signatories are ‘easily manipulated’, a comment more linked to the signatories’ poverty than to their ethnicity:

THE REPORTERThese are desperately poor people, who are easily manipulated ...

The ACMA does not regard the expression ‘desperately poor’ as conveying contempt. The ACMA notes in this regard that the federation itself referred to the ‘extreme poverty in which we find ourselves’.23 Likewise, the ACMA does not regard as conveying contempt the reporter’s statement, referring to the Yagua, that ‘many can’t read or write’. This is factual, based on the figures from the 2007 Peruvian census: the illiteracy rate amongst the Yagua is 17.6%, i.e. those who cannot read or write form a sizeable minority within the community.24

As regards the visual depiction of the Yagua, the ACMA notes that, despite the interpolations referred to above, the segment did include a variety of people from signatory communities, most in western dress or some variant thereof, for example:

Accordingly, the visual depiction of the Yagua would not have provoked contempt, even in viewers who might consider the use of traditional non-western attire a sign of inferiority.

The ACMA comments as follows on other matters raised by the complainant and/or the federation:

The complainant and the federation alleged that the program called the Yagua ‘dirty’. This term was not used in the broadcast. The reporter referred at one point to the Yagua as ‘dirt-poor’: An ordinary, reasonable viewer would have understood this term as conveying that the Yagua are very poor, rather than as a reference to their personal hygiene. In that respect, the ACMA notes that the Macquarie Dictionary (5th edition)

23 Federation to the Australian Ambassador to Peru, 20 August 2012. Translation into English provided by the complainant. The phrase in the Spanish-language original (also provided by the complainant) is ‘la extrema pobreza en la cual estamos sumergidos’.

24 Características sociodemográficas de los grupos étnicos de la Amazonía peruana y del espacio geográfico en el que residen, p 230. Publication of the Peruvian Instituto Nacional de Estadística e Informática, www.inei.gob.pe [Date accessed: 9 August 2013].


http://www.inei.gob.pe/

defines ‘dirt-poor’ as ‘extremely poor’. As already noted, this is the federation’s own appraisal of their communities’ situation.

The complainant commented that the Yagua ‘do not go around like savages with bones in their noses and using blowpipes’. The broadcast contained footage of an Amazonian indigenous people with bones in their septums and using blowpipes; however, an ordinary, reasonable viewer would have understood, from the audio accompanying the footage, that this was a different group from the Yagua.

The complainant and the federation objected to the reporter’s description of Iquitos as a ‘wild-west town, if ever there was one’. The complainant submitted that Iquitos is ‘the indigenous people’s Peruvian capital city’ and that the reporter’s description was a ‘racially discriminatory statement’. The federation also considered that the description of Iquitos reflected negatively on the Yagua. However, the broadcast did not make any explicit association between Iquitos and the Yagua, or between Iquitos and Amazonian indigenous groups. Accordingly, the link between this material and a clause 1.9.6 ground is not made out.

The complainant submitted that the description of the signatures to the agreement as ‘dodgy’ was ‘culturally insensitive’. Again, however, the ACMA considers that a link between this material and a clause 1.9.6 is not made out. An ordinary, reasonable viewer would take it that the ‘dodginess’ of the signatures was linked to the circumstances in which the signatures were obtained (as depicted in the broadcast), not to the ethnic origin of the signatories.

Accordingly, the licensee did not breach clause 1.9.6 of the Code.

DecisionI, Kathleen Silleri, Executive Manager, Content & Consumer Branch, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee, Queensland Television Ltd, in relation to the matters examined in the broadcast of the program 60 Minutes on 8 July 2013:

did not use a broadcasting service in the commission of an offence against subsection 45(1) of the IPA and therefore did not breach the licence condition at paragraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act 1992 [use of broadcasting service in commission of offence]; and

did not breach clauses 4.3.1 [accuracy], 4.3.5 [privacy] or 1.9.6 [intense dislike, serious contempt or severe ridicule on grounds including ethnic origin/race] of the Commercial Television Industry Code of Practice 2010.


APPENDIX 1Transcript of segment ‘Carbon Cowboy’ broadcast on QTQ on 8/7/12

Duration: 13:48 minutes

Note: Text highlighted below denotes material recorded during the hotel suite scene. See Section 1.

THE REPORTER: If there’s a place in the world that time forgot, this is it - Peru, birthplace of the mighty Inca civilisation, land of lost cities and remote tribes. So how on earth did an Australian property developer end up here, promising billion-dollar carbon deals to some of the poorest people on the planet?

[D]: They completely trusted him, and now they’re left with nothing.

THE REPORTER (to Mr N in hotel scene): [Mr N]?

MR N: Yep.

THE REPORTER: [The reporter’s name], 60 Minutes.

THE REPORTER: His name is [Mr N]. He’s from Queensland, and says he’s just here to help.

THE REPORTER (to Mr N in hotel scene): They’re putting their livelihoods, their tribes, their rainforests on the line, and you get 50 percent of all that. Not a bad deal for you, but not too good for them, is it?

MR N: Well, what else are they getting? Who else is giving them a better deal in the world?

THE REPORTER: You’ve got to wonder what Peru has done to deserve this latest invasion. 500 years ago, it was the Spanish conquistadors who came here in search of gold and silver. Later came the rubber barons, and then the loggers. But there’s a new breed of treasure hunter. They’re called ‘carbon cowboys’, and what they’re after is down there, in the vast rainforests of the Amazon. These immense jungles store a large part of the earth’s carbon dioxide, and, in the new world of carbon trading, whoever gets the rights to this captured carbon could make himself a very rich man indeed.

MR N (home video footage): Howdy, it’s the ‘carbon cowboy’ again, heading home after a great couple of days in the jungle.

THE REPORTER: [Mr N] is out hunting, roaming the Amazon in search of native tribes willing to sign over the rights to the carbon in their rainforests.

MR N (home video footage): We’ve had a good trip, everything’s signed up. Mission’s accomplished.

THE REPORTER: [Mr N]’s carbon contracts give his company, [name], power of attorney, handing him effective control of the rainforest for 200 years - and half of all profits.

[D]: He told me that he was a part-Aborigine from Australia, and that he came from extreme poverty and he wanted to help the indigenous people here.

THE REPORTER (to D, in village): They’ve been here for a while?

THE REPORTER: [D] is an American scientist who has spent years in the Amazon working with native tribes. When [Mr N] arrived in Peru two years ago, he hired [D] to introduce him to a remote tribe called the Matsés, some of whom still live and hunt as their ancestors did.

D: He saw that they own a lot of land. They own about 450,000 hectares.

THE REPORTER: When you first met him, how did he describe his project?

D: Basically, he calculated how many billions of dollars [laughs] the Matsés are going to get from carbon credits. He actually had his calculator handy, and the numbers he was showing for the Matsés, he was showing billions of dollars.

THE REPORTER: Mature trees like this are what carbon trading is all about. Over its lifetime, this will absorb about a ton of carbon dioxide, so big companies are happy to pay to protect these in order to release a ton of their own pollution into the atmosphere. They offset a ton of their pollution for the ton of carbon dioxide that’s absorbed by that tree. It’s called a carbon credit. So when the Australian Government says carbon is worth about $23 a ton, and you start counting the number of trees in this jungle, well, the maths is mind-boggling. [Mr N] has been chasing this carbon fortune for years - from


Papua New Guinea to the Philippines. Now, this self-professed ‘carbon cowboy’ has set up base in Peru's jungle city of Iquitos, a wild-west town if ever there was one. He’s got a good lawyer, a young Peruvian girlfriend, and boasts about his past as a successful property developer in Australia.

MR N (home video footage): That means there’s water.

THE REPORTER: [Mr N] even boasts that he can divine underground water. But his real gift, it turns out, is divining ordinary human weakness.

D: He told me I was going to be a millionaire within a year. [Laughs]

THE REPORTER: So what exactly was he after here?

D: The contract would be giving him virtually total control over their natural resources, not only their carbon, but their forest, and virtually everything.

THE REPORTER: Incredibly, [Mr N] has already convinced some tribes to sign away their rights, and [D] is taking me deeper into the Amazon to visit one such community. They’re called the Yagua. They’re dirt-poor, many can’t read or write, and they’ve handed [Mr N] half of all the carbon that’s in their forests.

THE REPORTER (to interviewee in village): Can you read this for me, please?

THE REPORTER (voiceover): [name] signed the document put in front of him.


TRANSLATOR: He’s saying he signed it, but he can’t read.

THE REPORTER: He can’t read? At all?


TRANSLATOR: He says he can’t read.

THE REPORTER: Only a handful of Yagua refused to go along with [Mr N]’s plan. One of them is a young leader, [A].

THE REPORTER: Did you sign that contract?

A: No.

TRANSLATOR: No.

THE REPORTER: Why not?

A: [Speaks in Spanish]

TRANSLATOR: Because I knew it was a scam.

THE REPORTER: It is a scam - a monumental double-cross, and an environmental travesty. We’ve obtained an executive summary of the agreement, and incredibly, the main focus is actually logging. As part of the carbon deal, [Mr N]’s company effectively owns the trees - and plans to eventually log them. Even worse, he’ll replace them with environmentally disastrous palm oil plantations. Already, the colossal scale of logging by others is shockingly clear.

UNNAMED MAN (in village): [Speaks in Spanish].

THE REPORTER: But these are desperately poor people, who are easily manipulated, unaware that the supposedly independent lawyer advising them is actually [Mr N]’s lawyer.

THE REPORTER (to translator, in village): Can he tell me the lawyer’s name, please?

TRANSLATOR: [Speaks in Spanish]

MAN OFF SCREEN: [W].

UNNAMED MAN: [W].

TRANSLATOR: [W].

UNNAMED MAN: Uh-huh.

TRANSLATOR: That’s [Mr N]’s lawyer.

MR N: What do you want to know?

‘INVESTOR’: I want to know everything.


THE REPORTER: [Mr N] is now back in Australia, hunting for investors to pay big money for his slice of the Amazon.

MR N: So I’ve mapped all this here. All these villages here weren’t mapped.

THE REPORTER: What he doesn’t realise at this pitch is that the would-be investor is a 60 Minutes producer - and we’re in the room next door.

MR N: Okay, I’ve got these three million hectares.

‘INVESTOR’: Right. How did you come across - sorry, say again?

MR N: Nearly three million hectares.

THE REPORTER: [Mr N] does not have three million hectares of rainforest, or anything like it.

MR N: Just about the biggest [inaudible] project in the world.

THE REPORTER: But that doesn’t stop him from promising a fortune for would-be investors.

MR N: It’s going to be billions.

‘INVESTOR’: Beg your pardon?

MR N: Billions. I just - I’m scared to quote it, because it’s fucking huge, put it that way.

THE REPORTER: And [Mr N] all but brags about plans to ultimately cut down the rainforests, once the 25-year carbon deal expires.

MR N: My contracts are 200-year contracts, etched in stone, so when the carbon’s gone, people can come through and harvest the rainforest there. We’ll have a forest management plan that they can reforest, they can plant palm oil, they can cut all the timber. No-one can stop ’em. No-one can stop them.

‘INVESTOR’: But by doing this carbon plan, you’re stopping that happening?

MR N: Yeah, but the carbon plan only goes for 25 years. The contracts still run and there’s enough timber there to supply the world down there. China will love it.

THE REPORTER: Time, we decide, to have a word with Mr [N].

THE REPORTER (to Mr N, in hotel scene): [Mr N]?

MR N: Yep.

THE REPORTER: [The reporter’s name], 60 Minutes.

MR N: G’day mate, how are you doing?

THE REPORTER: No, not your day, is it?

MR N: No, mate, not my day; nope.

THE REPORTER: Telling some more tall stories, trying to get someone to part with their money.

MR N: No, mate, no. No, I’m not mate, no. It’s no scam.

THE REPORTER: It’s no scam?

MR N: No. The person that started the scam, [D], we’ve taken legal proceedings against him.

THE REPORTER: We know all about [D].

MR N: And hang on, and he’s under house arrest.

THE REPORTER: No, he’s not under house arrest, that’s a lie. That’s your first lie to me, but you’ve told plenty in the last hour, haven’t you?

MR N: Well, this is what I’ve been doing.

THE REPORTER: Running around telling lies?

MR N: No. Interview finished. Please turn that camera off.

THE REPORTER: Well, it’s not going off, because we want some answers about the Amazon tribes that you’ve been dealing with.

MR N: I’ve got nothing more to say.


THE REPORTER: What these Amazon tribes didn’t know - couldn’t know - was the long trail of people who’ve trusted [Mr N] and lost money. Just ask the investors who put money into one of his projects here at Clairview, in North Queensland, in the early 90s. It’s a beautiful spot, and it seemed a great investment. [Mr N] was selling five-acre lots, up here in the ridge, here for $70,000 apiece, and there were plenty of takers. But one buyer from Nauru became suspicious when she failed to receive a rates notice from the local council. That’s when the penny dropped. As the Queensland Parliament was later told, those lots didn’t exist, never had. But [Mr N] banked the money anyway - and the investors never saw it again.

K: He’s very convincing. Very, very convincing.

THE REPORTER: [K] is a senior barrister from Nauru. He was one of the investors who thought he was buying land at [Mr N]’s Clairview development. What did you end up with?

K: I end up with nothing. A lot of us, all of us, end up with nothing. So really, he’s a conniving scum.

THE REPORTER: [Mr N] has done well for himself, and hopes to do very well out of his carbon deals with the Amazon tribes who have trusted in him. At this formal signing ceremony, the audience is told their agreement is supposedly with ‘a company of the United Nations’.

MAN AT MEETING: [Speaks in Spanish]

THE REPORTER: So, you’ve got to ask, do they really know who or what they’re dealing with, or that [Mr N] actually plans to log their forests?

THE REPORTER (to Mr N in hotel scene): You’re tying this forest up for 200 years. 200 years! And you plan to log it.

MR N: No, I don’t.

THE REPORTER: Plant palm oil plantations on it.

MR N: No, I don’t.

THE REPORTER: You’ve just told – sir, your own words. We have you on tape.

MR N: Well –

THE REPORTER: After 25 years, when the carbon’s finished, you’re going to log the whole lot. I mean, have you no shame?

MR N: Oh, mate.

THE REPORTER: Have you no shame?

DIFFERENT MAN AT DIFFERENT MEETING: [Speaks in Spanish]

WOMAN AT MEETING: [Speaks in Spanish]

THE REPORTER: It’s clear many Yagua now bitterly regret signing this toxic deal, but feel powerless to undo it.

D: They opened up their homes to him. He slept in their homes, and trusted him. They completely trusted him. And now, this hurts them permanently. We’re talking about permanent damage here.

THE REPORTER: Meanwhile, the other tribe in [Mr N]’s sights, the Matsés, have held out against his grand plans. They won’t sign, at least for now.

MR N: I’m not ripping ’em off.

THE REPORTER: But it seems nothing will stop [Mr N] trying to sell his dodgy bundle of signatures to the highest bidder.

THE REPORTER (to Mr N in hotel scene): You were just boasting that you’ve got control for 200 years.

MR N: No, no, I said – Listen, goodbye; thank you very much, gentlemen.


APPENDIX 2Relevant sections of the Invasion of Privacy Act 1971 (Qld) (IPA)

45 Prohibition on communication or publication of private conversations by parties thereto

(1) A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

(2) Subsection (1) does not apply where the communication or publication—(a) is made to another party to the private conversation or with the consent,

express or implied, of all other parties to the private conversation, being parties referred to in subsection 42(2)(a); or

(b) is made in the course of legal proceedings; or(c) is not more than is reasonably necessary—

(i) in the public interest; or(ii) in the performance of a duty of the person making the communication or

publication; or(iii) for the protection of the lawful interests of that person; or

(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to overhear, record, monitor, or listen to the private conversation under subsection 43(2)(c) or (d).

(3) In subsection (2)—legal proceedings includes—(a) proceedings (whether civil or criminal) in or before any court; and(b) proceedings before justices; and(c) proceedings before any court, tribunal or person (including any inquiry,

examination or arbitration) in which evidence is or may be given; and

(d) any part of legal proceedings.

42 Reference to listening devices and private conversations

(1) A reference in this part to a listening device does not include a reference to a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and to permit the person only to hear sounds ordinarily audible to the human ear.

(2) A reference in this part to a party to a private conversation is a reference—(a) to a person by or to whom words are spoken in the course of a private

conversation; and

(b) to a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words.


49 Offences and penalty

(1) A person who contravenes or fails to comply with any provision of this Act is guilty of an offence against this Act and, where no penalty is expressly provided, is liable to a penalty not exceeding 10 penalty units.

(2) Where a person, being a corporation, is guilty of an offence against this Act, any director, manager, secretary or other officer of the corporation who knowingly authorises or permits the same or is a party to the offence is guilty of that offence and is liable on conviction to the pecuniary penalty or imprisonment provided by this Act for such offence.

(3) Any offence against this Act which is expressed to be punishable upon conviction on indictment is a misdemeanour.

(4) Except where this Act otherwise provides, offences against this Act shall be punishable on summary conviction.


APPENDIX 3Licensee’s submission for Section 1 (Use of broadcasting service in commission of offence) (de-identified)


APPENDIX 4Considerations which the ACMA has regard to in assessing whether or not broadcast material is factual in character 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.

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

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.

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.


APPENDIX 5Licensee’s submission for Issue 2(b) (Invasion of privacy) (de-identified)


APPENDIX 6(a) Excerpts of complainant’s submission relevant to Issue 2(c)

(Intense dislike, serious contempt or severe ridicule)

... Nine’s 60 Minutes called the indigenous custodians of the jungle (the traditional land owners) primitive people, dirty, poor, the poorest of the poor, illiterate and easy to manipulate. They were like lost tribes stuck in a time and place the world had forgotten. This was racial discrimination of indigenous people ... The world hasn’t forgotten Peru. It’s an emerging market-oriented economy, characterised by a high level of foreign trade.

Nine reported that the indigenous people’s Peruvian capital city of Iquitos was like a Wild West town. The definition of this is ‘The western US in a time of lawlessness in its early history’ ... Iquitos is not a lawless town. This is yet another misleading, racially discriminatory statement ... Iquitos is the largest city in the Peruvian rainforest. It’s the capital of Loreto region and Maynas Province and is the seat of government.

The Yagua Indians of Peru are civilised and have clothes on ...

Nine reported that the indigenous leaders’ signatures and my own signatures on a private agreement are dodgy. The definition of dodgy is: 1) of uncertain outcome; especially fraught with risk; 2) marked by skill in deception. This statement is ... culturally insensitive ...

Nine [showed] a painted Indian dressed up in an orange grass headdress for the TV cameras. This is not how they dress in daily life. They do this for money from the tourists and reality TV ... This was to deceive the viewers ... into believing the Yagua are primitive illiterate savages ...

The Yagua people in Peru are not primitive savages ... [Their communities] have schools, water, transport, electricity, street lights and satellite communication. They are well organised ... The Yagua indigenous people of Peru do not go around like savages with bones in their noses and using blowpipes ...

[The reporter] [said]; ‘They’re dirt-poor; many can’t read or write and they’ve handed [Mr N] half of all the carbon that’s in their forests’. Language of this sort perpetuates deeply ingrained notions that isolated tribes are primitive, that they somehow lag behind the rest of us in their evolutionary development and that they are our inferiors ... Nine, you just can’t help putting people down ...

(b) Excerpts of the federation’s letter relevant to Issue 2(c)25

... [The program included] images and recordings which depict our ethnic group in a partial, offensive and humiliating manner for having subscribed an agreement with the company [name] ...

[The program] present[ed] us as a backward, illiterate, dirty and desperate people incapable of developing ourselves economically and living in a place ‘forgotten in time’ (considering it as amongst the poorest on the planet) when it refers to Peru and Iquitos as a ‘wild-west’ type city where laws do not exist ...

25 Translation into English provided by the complainant.


The report also explicitly affirms that we are: ‘savages’, ‘ignorant’, illiterate and ‘easily taken advantage of’ Indians who ‘cannot even keep ourselves clean’ for having signed the [agreement] with [name of company] represented by the international businessman [Mr N].

We are not ignorant, illiterate or ingenuous. We are men of work and we know when someone is taking advantage of us ...

[The 60 Minutes team] ... pretend[s] to protect us from ourselves which is insulting at both a personal and an [ethnic] level. It reminds us that we are still living as in the times of the conquest 500 years ago. Today, the white man continues to find reasons to tell us what we can do and how. These criteria are absurd and have no place in our territories ...


APPENDIX 7Licensee’s submission for Issue 2(c) (Serious contempt on grounds of ethnic origin) (de-identified)


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