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Investigation Report No. 3184File no. ACMA2014/202

Licensee Channel Seven Melbourne Pty Ltd

Station HSV - Melbourne

Type of service Commercial television

Name of program Today Tonight

Date/s of broadcast 26 September, 29 October and 30 October 2013

Relevant Code Clauses 1.9.6, 4.3.1, 4.3.10 and 4.3.11 of the Commercial Television Industry Code of Practice 2010

Date finalised 23 September 2014Decision No breach of clause 1.9.6 (perpetuating intense dislike, serious

contempt or severe ridicule against a person on the basis of age or gender)No breach of clause 4.3.1 (factual accuracy and fair representation of viewpoints)No breach of clause 4.3.10 (portrayal in a negative light by placing gratuitous emphasis on age or gender)No breach of clause 4.3.11 (correction of significant errors of fact)

ACMA Investigation Report – Today Tonight broadcast by HSV – Melbourne on 26 September, 29 October and 30 October 2013

The complaintIn March 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into complaints about three segments of Today Tonight broadcast on 26 September 2013 (segment 1), 29 October 2013 (segment 2) and 30 October 2013 (segment 3) by Channel Seven Melbourne Pty Ltd, the licensee of HSV – Melbourne (the licensee).

The complainant submitted that the licensee breached the following clauses of the Commercial Television Industry Code of Practice 2010 (the Code):

1.9.6 A licensee may not broadcast a program…which is likely, in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or groups of persons on the ground of age…[or] gender

4.3.10 In broadcasting news and current affairs programs, licensees must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age…[or] gender

4.3.1 In broadcasting news and current affairs program, licensees must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program

4.3.11 In broadcasting news and current affairs programs, licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity.

The original complaint to the licensee about segment 1 was made more than 30 days after the broadcast date and was therefore not made in accordance with clause 7.2 of the Code.

The licensee responded to the complaint about segment 1 indicating that although it was not a valid complaint, as a courtesy, it had addressed the matters raised when responding in respect of the other two segments.

The ACMA has investigated the complaint about segments 2 and 3 under section 148 of the Broadcasting Services Act 1992 (the BSA). The ACMA has investigated the complaint about segment 1 under section 170 of the BSA, as it considers that the subject matter of the complaint about segment 1 is of genuine public interest.

The programToday Tonight is a 30 minute current affairs program which, at the relevant dates, was broadcast to most cities and regional areas across Australia on weeknights on the Seven Network at 6.30pm.

All three segments dealt with the decision of the Monash City Council to seek expressions of interest in the sale of aged care facilities under its control.

Segment 1 (8 minutes) discussed the Council’s decision to seek expressions of interest in selling the aged care facilities. It featured interviews with residents of the facilities, ratepayers and Councillor Drieberg as well as footage from a Council meeting.

ACMA Investigation Report – Today Tonight broadcast by HSV – Melbourne on 26 September, 29 October and 30 October 2013 2

Segment 2 (3 minutes) was broadcast on the eve of the Council’s final decision on the sale of the facilities. It featured interviews with residents, as well as footage from segment 1.

Segment 3 (5 minutes 30 seconds) was broadcast after the Council decided to proceed with the sale of the aged care facilities. It featured interviews with residents, footage from outside the Council building prior to a Council meeting, and footage repeated from segments 1 and 2.

All three segments featured an introduction by a presenter, commentary by a reporter and numerous interviews. A transcript of each segment is reproduced at Attachment A.

AssessmentThis investigation is based on submissions on behalf of the complainant, submissions by and on behalf of the licensee, correspondence between the licensee and the complainant, and copies of the broadcasts provided by the licensee. Other relevant sources have been identified where used.

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 affairs1.

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 conveyed by the material broadcast, it then assesses compliance with the Code.

Matters not pursued Some concerns raised by the complainant relate to matters not covered by the Code, and these have not been considered by the ACMA in this investigation. These include:

allegedly defamatory imputations in the broadcasts

allegations that licensee staff engaged in bullying and inappropriate conduct at the September 2013 Council meeting, and inappropriate and provocative behaviour at the October 2013 Council meeting.

The complainant has also claimed that in segment 2 it is alleged that the Councillors ‘work for corporations, not the tax payers’ and ‘put people a distant second to money’. Although the second segment refers to the residents as ‘stalwarts’ who have paid their taxes and ‘simply

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


want a place that is not for profit’, it did not include statements to the effect claimed. Accordingly these allegations have not been investigated.

Clauses 4.3.11 and 4.4 of the CodeThe complainant alleged a breach of clause 4.3.11 of the Code, which provides that licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity. In this case, the licensee has submitted that the segments did not contain any significant errors of fact and that it came under no obligation to correct under clause 4.3.11. In all of the circumstances, the ACMA has decided not to pursue the complaint regarding this clause.

In correspondence to the ACMA, the complainant referred to a potential breach of clause 4.4 of the Code which requires the fair and impartial presentation of news. This matter was not raised with the licensee in the first instance. In any event, clause 4.4 applies only to ‘news programs’ and as Today Tonight is a current affairs program, it is not subject to the requirements in clause 4.4 of the Code. Accordingly, the ACMA has not examined the licensee’s compliance with this clause.

Issue 1: Provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person on the ground of age and/or gender

Relevant code provisions Proscribed 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.

FindingThe licensee did not breach clause 1.9.6 of the Code.

Complainant’s submissionsThe complainant submitted that in the segments, Councillor Drieberg was referred to as an ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’, in breach of clause 1.9.6.

Relevant extracts from the complainant’s submissions are at Attachment B.

Licensee’s submissionsThe licensee submitted that the expressions used in the segments did not meet the threshold for a breach clause 1.9.6 contemplated by the Code.

Relevant extracts from the licensee’s submissions are at Attachment C.

ReasonsIn determining whether the licensee has breached clause 1.9.6, consideration must be given to the following:


identification of the relevant person or group and the relevant ground; and

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

The relevant person or group of persons and the relevant ground

The complainant identified age and gender as the basis for the alleged breach of clause 1.9.6 of the Code.

The ACMA is satisfied that during each segment, Councillor Drieberg’s gender and age were referred to, including by the references cited by the complainant.

Accordingly, the ACMA is satisfied that the relevant person for the purposes of clause 1.9.6 in this instance is Councillor Drieberg and that the applicable grounds are gender and age.

Provoke or incite

The ACMA must consider whether the ordinary reasonable viewer would have understood that they were being urged, stimulated or encouraged by the content to share or maintain feelings of dislike, contempt or ridicule (on grounds of the gender or age) in relation to Councillor Drieberg.

Incitement or provocation can be achieved through comments made about a person or group and there is no requirement for those comments to include a specific call to action. Similarly, there is no need to prove actual incitement or the intention to incite.2 The question is whether the segments broadcast have the capacity or tendency to provoke or incite others, in the sense of urging or promoting the audience to experience intense dislike, serious contempt or severe ridicule. Conduct that merely conveys a person’s dislike, contempt or ridicule will not be enough to necessarily incite or provoke those same feelings in the audience.

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.3

In general, the segments were critical of the Council, and Councillor Drieberg. The use of the terms ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’ to describe her may have led the audience to question her competence and maturity. However, the ACMA considers that the requisite element of provocation was absent from each of the segments. There was no engagement with the audience urging, stirring up or stimulating it to share feelings of dislike, contempt or ridicule.

Intense dislike, serious contempt or severe ridicule

The ACMA also considers that the content did not reach the high threshold for the prohibited effects set out in clause 3.2.1. The language used in the segments was not inflammatory or sufficiently strong, extreme or vehement to arouse the strength of feeling contemplated at clause 1.9.6.

2 Kazak v John Fairfax Publications [2000] NSWADT 77 at [23-29].3 Trad v Jones & anor (No 3) [2009] NSWADT 318 at [61].


The words ‘intense’, ‘serious’ and ‘severe’ contemplate a very strong reaction to the broadcast material. A breach is not found if the broadcast material induces a mild or even strong response or reaction.4

Even if the material was capable of provoking negative feelings in the audience, the references to ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’ could not have reached the high threshold test of inciting intense dislike, serious contempt or severe ridicule of Councillor Drieberg. Nor was there a sustained or increasingly aggressive attack on the grounds of age or gender.

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

Issue 2: Portray in a negative light by placing gratuitous emphasis on age and/or genderRelevant code provisions

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

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

FindingThe licensee did not breach clause 4.3.10 of the Code.

Complainant’s submissionsThe complainant submitted that the licensee breached clause 4.3.10 of the Code as the Councillors, particularly Councillor Drieberg, were portrayed in a negative light because of their age and/or gender. The complainant submitted that in the segments, Councillors were referred to as ‘baby faced’ and that Councillor Drieberg was referred to as an ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’.

Relevant extracts from the complainant’s submissions are at Attachment B.

Licensee’s submissionsThe licensee submitted in response to the complainant that it was clear during the broadcasts that the comments were ‘merely opinions on Drieberg’s degree of experience’ and that the there was no unjustifiable or gratuitous emphasis on age or gender.

Relevant extracts from the licensee’s submissions are at Attachment C

ReasonsThe questions for the ACMA are whether the licensee portrayed the Councillors in a negative light and whether this occurred through placing gratuitous emphasis on age and/or gender.

4 The ACMA has set out this test before in relation to the consideration of these elements of the code. See for example, Investigation 1909 – 12 February 2009


Gratuitous is defined in the Macquarie Dictionary (Fifth Edition) as: ‘being without reason, cause, or justification’.

The segments refer to the age and gender of the Councillors, including by use of the statements cited by the complainant. The question is whether this was negative and whether the emphasis on age was ‘without reason, cause, or justification’.

All three segments concerned the Council’s decision to seek expressions of interest for the sale of aged care facilities and made a number of references to older people in this context. The licensee has submitted that the youth of the Councillors was used as a contrast to the age of the residents of the aged care facilities who disagreed with the Council’s decision. Therefore, the references to the relative youth of the Councillors, when compared with the elderly residents, was central to the reports. It also submitted that the single reference to ‘school girl’ was a comment on Councillor Drieberg’s lack of experience.

The ACMA accepts that this contrast was to some extent relevant to the segments. However, it considers that the main thrust of the segments were claims of an absence of a mandate and lack of consultation on the proposal for the sale of the aged care facilities, and criticisms over the procedures adopted by the Council. These were associated with the alleged incompetence and inexperience of Councillors. It was on these bases that Councillor Drieberg and the other Councillors were portrayed in a negative light.

Although the references cited by the complainant may have been unnecessary, the ACMA is not satisfied that these references alone were sufficient to find that the Councillors were portrayed in a negative light on the basis of their age or gender, rather than the Councillors’ actions on the proposed sale. The ACMA also notes that the broadcast did not build up a scenario in which negative associations accrued around the Councillors on the basis of age or gender through repetition or emphasis.

Accordingly, the licensee did not breach clause 4.3.10 of the Code.

Issue 3: AccuracyRelevant code provisions

News and Current Affairs Programs


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.

FindingThe licensee did not breach clause 4.3.1 of the Code in respect of the broadcast of factual material.

Complainant’s submissionsThe complainant claimed the licensee breached clause 4.3.1 of the Code in relation to statements broadcast by the licensee. These are listed at Attachment B.


Licensee’s submissionsThe licensee submitted that not all the statements cited by the complainant are statements of fact, but many of the statements are opinions, including opinions of interviewees. The licensee submitted that any factual material in the segments was broadcast accurately.

Relevant extracts from the licensee’s submissions are at Attachment C.

ReasonsThe first question for the ACMA to determine is whether material cited by the complainant is factual material. If the material is factual, the ACMA will consider whether it was broadcast accurately, having regard to the context of each segment in its entirety.

The considerations the ACMA uses in assessing whether broadcast material is factual are set out at Attachment D.

Category A: Statements that are not factual material

The complaint is that the following false, inaccurate and misleading allegations were made:

Segment 1

Councillors are 'cowardly', 'sneaky', ‘have reached a new low that is disgusting’, conduct themselves with 'democracy, Monash style', ‘ignore’ and 'fob' ratepayers, and are motivated by 'money', 'greed' and 'secrecy'.

Councillor Drieberg cannot give 'a straight answer' to reporters and has 'her head firmly in the sand'.

Segment 2

Councillors are 'heartless', ‘form policy on the run’, ‘engage in shameful treatment of the elderly', are 'frightfully incompetent and a dismal excuse for a democracy', ‘are incompetent’, ‘conduct themselves with Monash style democracy’, 'betrayed the voters’, and are 'dishonest'.

Segment 3

Councillors ‘are jokers whose political careers are over’.

The ACMA considers that, in the context of the relevant segment in its entirety, each of the statements quoted above were not factual material. The statements are variously:

emotive, inherently subjective and judgemental (for example, ‘cowardly’, ‘dishonest’ and ‘incompetent’)

contain imprecise and hyperbolic claims (for example, ‘frightfully incompetent and a dismal excuse for a democracy')

not capable of independent verification (for example ‘Councillor’s careers are over’)

create an impression of rhetorical pronouncements rather than factual material (for example, ‘form policy on the run’)

While these statements may have been hurtful and sarcastic, given the context, language, tenor and tone of the segment, the ACMA considers that the ordinary reasonable viewer would not have understood the above statements made by the program presenter and reporter as the presentation of factual material.


As such, they are not subject to the accuracy requirements of the Code.

Category B: Statements that are factual material

The complaint is that each of the segments:

1. create the impression that aged care facilities would be shut down after the sale and residents relocated;

and that the following false, inaccurate and misleading allegations are made:

2. the Council formed a ‘secret agreement to take expressions of interest’

3. a particular Councillor’s ‘only contribution to public life was an X-rated rant against a disabled woman’

4. at Council meetings ‘if you want to ask a question, you put it in writing, in advance for approval, then, if you’re lucky, you can read it out’

5. a particular Councillor was ‘distracted by playing with iPads during Council meetings’

6. the Councillors ‘fled’ their chambers and were scared off by a bunch of octogenarians

7. a Council staff member pushed a gentleman so that he fell, outside a Council meeting

Each of these are dealt with separately below.

1. The aged care facilities would be shut down after the sale and residents relocated

The relevant statements in the broadcasts include:

‘We begin tonight with the brave senior citizens taking on the cowardly Council threatening to take their homes and sell them to the highest bidder’ (statement by presenter in segment 1)

‘Why on Earth would the owners, the Monash City Council, even contemplate selling these magnificent facilities out from under the feet of our most vulnerable senior citizens?’ (statement by reporter in segment 1)

‘Well now, last month, we went in to bat for a group of older Australians whose retirement homes may be sold out from under them by their local Council’ (statement by presenter in segment 2)

‘But the owners, Monash City Council, smell a profit. With no consultation, they started taking expressions of interest with a view to selling them out from under the residents’ (statement by reporter in segment 2)

‘So did the Council stick up for the most vulnerable rate payers or sell them out?’(statement by presenter in segment 3)

‘Her first thought was for the nurses and staff. The meeting was told they’ll probably be allowed to re-apply for their jobs under a new owner’ (statement by reporter in segment 3)

‘They didn’t mention selling of aged care facilities when they were elected last year…’ (statement by reporter in segment 3).

The ACMA considers that in the context of each segment in its entirety, these statements included factual material that was specific, unequivocal and capable of independent


verification. The relevant factual assertions in segment 1 and 2 were that the Council had proposed to sell the facilities to new owners, and in segment 3 that the proposal had been carried.

In addition to the above factual statements, each segment included statements by residents, their families, and ratepayers expressing concerns that residents would have to be relocated following any sale of the facilities. Some of these statements were repeated in the segments. Examples include the following:

‘Well, they’re not going to kick me out – I’m going to sit on that chair and I’m staying here til the rest of my life’ (segment 1)

‘There are other ways to get money without sacrificing the elderly citizens – let them have their last few years in peace. Leave us alone’ (segment 1)

‘Her mother might be old one [day] and want somewhere to go – her father might!’ (segment 1)

‘Please give us a go, and leave the place open so we can enjoy it’ (segment 1)

‘Now, if I have to travel an hour, or half an hour, or even two hours, to another place, I’m not going to be able to spend that quality time with my wife anymore’ (segment 1)

‘There are other ways to get money without sacrificing the elderly citizens’ (segment 2)

‘Well, they’re not going to kick me out – I’m going to sit on that chair and I’m staying here til the rest of my life’ (segment 2)

‘The Principal of [school name], which borders Monash Gardens, told protestors his students learn as much from their elderly neighbours as they do in any classroom’ (segment 3).

The complainant alleged that it was inaccurate to say that the facilities would be shut down and residents relocated, as the aged care facilities will continue operating, despite the sale.

The licensee submitted on this point that:

To the extent that shut down or relocation is mentioned, it is either positioned as a potential outcome only, or clearly limited to the opinion of concerned residents or stakeholders who feel they were not adequately consulted and therefore, understandably, fear the worst…

It is clear from these statements that the closure and/or relocation of the facilities was something the residents were concerned about and that this was a potential result of the sale of the facilities to a private owner. No statement was made that the facilities were in fact going to be shut down or relocated.

…we consider it entirely appropriate to include the legitimate concerns of the above interviewees on this matter and we consider that the broadcasts were factually accurate, having regard to the information available to Seven at the time of preparing and broadcasting them.

It is not in dispute that the Council was contemplating selling the facilities and that a resolution was taken effecting this.


Words in the statement identified on pages 9 and 10 such ‘selling out from under’ and ‘sell to the highest bidder’ are somewhat ambiguous and derive meaning from their context.

One possible interpretation of these words is that the aged care facilities would be closed down after the sale and the residents forced to move. In this regard, the ACMA notes the juxtaposition of expressions of concern by residents with factual assertions by the presenter and reporter concerning the sale. However, the only mention of the facilities closing, or the residents being required to move, came in interviews with residents and their families which, in the context of each segment in its entirety, would have been understood as each interviewee’s own view of events.

The ACMA considers that a more compelling interpretation of these words is that the Council was contemplating the sale without consulting the residents or without the residents having a say in the decision to sell the facilities. On that interpretation, the factual material was presented accurately because the Council’s decision to seek expressions of interest was a ‘confidential’ decision (see discussion below).

This interpretation is consistent with the context of the segments which focussed on the Council’s decision to seek expressions of interest in the sale of the facilities.

In segments 2 and 3, it is also consistent with statements to the effect that transferring ownership of the facilities would result in change but not in the facilities being shut down.

In segment 2 an interview with a representative of the Nurses Union included the following statements:

There is no guarantee that even a private provider will keep these beds in the local community area…

The nursing standards will drop, because when a private provider comes in, what they will do is they will cut the nursing numbers in order to increase their margin.

In segment 3, the reporter said when referring to one resident:

Her first thought was for the nurses and staff. The meeting was told they’ll probably be allowed to re-apply for their jobs under a new owner.

For these reasons, the ACMA considers that in the context of each segment in its entirety, the ordinary reasonable viewer would not have understood that the facilities would be closed and residents relocated.

Accordingly, the ACMA is satisfied that the licensee did not breach clause 4.3.1 of the Code in relation to this matter.

2. The Council formed a ‘secret agreement to take expressions of interest’

The ACMA has identified the following three factual statements from the segments relevant to the ‘secrecy’ of the Council’s decision:

the Councillors ‘secretly agreed to take expressions of interest’ (statement by reporter in segment 1)

‘there was no consultation – none at all, before the event. Consultation after the event, but not before’ (statement by an interviewee in segment 1)

‘with no consultation, they started taking expressions of interest…’ (statement by reporter in segment 2)


‘say what you want about this Council – they may be dishonest, but they’re clever, They didn’t mention selling of aged care facilities when they were elected last year, and have two years to run on this term’ (statement by reporter in segment 3)

The complainant submitted that it was factually inaccurate to say that the Council’s decision to seek expressions of interest in the sale of the aged care facilities was ‘secret’ because:

…Council pursued a full and robust public process. The initial confidential business decision to proceed with a sale process was made by Council…The subsequent expressions of interest campaign was performed with broad public consultation and was publically advertised and transparent.

In respect of this particular matter, the licensee submitted that the broadcasts accurately portrayed the Council because:

It is clear from the broadcasts that ratepayers were upset that the Council had made a decision to call for expressions of interest from prospective buyers before consulting with the residents and in circumstances where it had not referred to or campaigned in relation to a potential sale in the previous Council election.

There were also references in the segments to the sale not being on the agenda at the time of the Council elections. The ACMA does not consider that the absence of a reference to the sale of the facilities in Council elections means that its decision was ‘secret’. To the extent that the proposal was required to be disclosed as an election platform, it would have been clear to the ordinary reasonable viewer the decision was taken after the election. This was clarified in the interview with Councillor Drieberg.

In the context of each segment in its entirety, the ACMA considers the reference to a ‘secret’ decision is meant to imply the decision was a secret from the ratepayers of the area and residents of the facilities. The complainant’s submission was that the decision was made initially as a ‘confidential business decision’ of the Council. The definition of ‘confidential’ in the Macquarie Dictionary (Fifth Edition) relevantly provides:

confidential adjective 1. spoken or written in confidence; secret.

To an ordinary, reasonable viewer a ‘confidential’ decision of the Council and a decision that was not publicly consulted on would be consistent with being ‘secret’. Accordingly, the ACMA considers the factual material regarding the Council’s decision to seek expressions of interest in the sale of the facilities in ‘secret’ was accurate in the context of each segment in its entirety.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to this material.

3. Councillor Geoff Lake’s only contribution to public life was an X-rated rant against a disabled woman’

The ACMA has identified the following statements from segment 1 as relevant to this complaint:

The Council which includes… Geoff Lake, the man Keven Rudd booted off the ALP ticket at the last election for his foul mouthed abuse of a disabled woman.

In segment 3, the presenter said:

…along with Geoff Lake whose only other contribution to public life was an X-rated rant against a disabled woman. Lovely chap.’


The licensee has submitted that the reference to the ‘only other contribution to public life’ was ‘tongue in cheek’ as it is obvious that the Councillor has made other contributions to public office as he is a city Councillor.

In respect of the underlying incident involving Councillor Lake and a disabled woman, the licensee has provided an internet reference dealing with news reports on the exchange. The ACMA has verified this reference which confirms that in 2002 Councillor Lake was involved in such an incident for which he apologised.5 The Councillor was also dis-endorsed as a candidate for a federal seat of parliament in the 2013 elections.6

The ACMA accepts that the remark about Councillor Lake’s ‘only’ contribution to public life was hyperbolic and rhetorical and would not have been understood as a factual statement, while the reference to the underlying incident is factually accurate.


4. At Council meetings ‘if you want to ask a question, you put it in writing, in advance for approval, then, if you’re lucky, you can read it out’

The ACMA has identified the following factual statement from segment 1:

Reporter: This is democracy, Monash style. If you want to ask a question, you put it in writing, in advance for approval, then, if you’re lucky, you can read it out.

The complainant submitted that the practice of putting questions to Council meetings in writing prior is ‘in accordance with section 15 of City of Monash Local Law No. 1 Meeting Procedures, which has been operative since December 2007’.

The licensee submitted that:

Even if such a process is sanctioned in the Council’s own Meeting Procedures…that does not mean that the process is immune from criticism…

The ACMA is satisfied that the statement was accurate, as it reflects the Council’s meeting procedures. The segment did not indicate that the practice was new, novel or in contravention of the meeting procedures for the Council. As noted above, the words ‘this is democracy, Monash style’ are not factual material. The ACMA considers that this expression of opinion does not detract from the accuracy of the rest of the statement.


5. A particular Councillor was ‘distracted by playing with iPads during Council meetings’

The ACMA has identified the following factual statement from segment 1 as relevant to the complaint:

Reporter: Despite residents’ best intentions, question after question was batted down while some Councillors fiddled with their iPads.

The complaint is that the broadcast alleged that a particular Councillor was ‘distracted by playing with iPads during the meetings’ whereas he was referring to the business papers for the meeting on his iPad, and the Council has provided iPads to Councillors for this purpose.

5 http://www.presscouncil.org.au/document-search/adj-1604/6 http://www.theaustralian.com.au/national-affairs/election-2013/revolt-over-dumping-of-labor-

candidate-in-hotham/story-fn9qr68y-1226695194983


The licensee has submitted that having reviewed its footage, this was an accurate observation of what occurred at the meeting, and that the Councillor was looking down at his iPad rather than making eye contact or giving the impression he was paying attention to the ratepayers who were asking questions at the meeting.

The ACMA notes that the broadcast did not refer to the particular Councillor by name and did not assert that Councillors were ‘distracted’ or for what purpose their iPads were being used. The accompanying footage included a pan of the Council meeting at which questions were being asked and which featured a number of Councillors including one who was focusing on his iPad. The ACMA considers, in the context of the segment in its entirety, the ordinary reasonable viewer would have understood that, as is usual in business meetings, Councillors were using iPads. This was factually accurate.


6. The Councillors ‘fled’ their chambers and were scared off by a bunch of octogenarians

The ACMA has identified the following factual statement from segment 1 as relevant:

Reporter: When a rate payer moved a no-confidence motion, these big, brave Councillors upped and fled their own chamber, scared off by a bunch of octogenarians.

In segment 3 (referring to the meeting that featured in segment 1)

Reporter: ..in the end, the Council fled their own chamber.

The licensee has submitted that these statements were not inaccurate because it is clear from the footage that when a no-confidence motion was moved, the Councillors quickly packed up and left the chamber.

The statement followed the description of the meeting at which ratepayers and residents persistently questioned the Councillors. The meeting was crowded and Councillors did appear to pack up and leave the chamber in a hurry, while being heckled. There is no denial that a no-confidence motion was moved.

While the terms ‘fled’ and ‘scared off’ are emotive, the ACMA considers that the footage supports the factual assertion that the Councillors vacated the chamber in response to the actions of those in attendance at the meeting. In the context of the segment in its entirety, the ACMA considers that the factual assertion was accurate.

7. A Council staff member pushed a gentleman so that he fell, outside a Council meeting

The ACMA has identified the following factual statements from segment 3 as relevant to involvement of a Council employee in a fall by a member of the public outside a Council meeting:

‘Sadly, as [reporter] reports, things turned nasty’ (statement by presenter)

‘Seventy-one year old [interviewee name] symbolises the way the Monash City Council treats its elderly rate payers’ (statement by reporter)

‘Police are reviewing our pictures to assess whether an assault charge will be laid’ (statement by reporter).


The complainant has submitted that the licensee implied that a fall by a member of the public outside a Council meeting was an assault by a Council employee. The complainant advises that ‘Victoria Police reviewed the Today Tonight footage in the course of their investigation, and found that no assault was committed’.

In respect of this particular matter, the licensee submitted that segment 3 did not convey that the Council employee intentionally pushed the elderly man:

The broadcast certainly did indicate that a claim had been made to this effect but it was clear from the report that the matter was being investigated by police and no determination had yet been made.

…As the details of the altercation were not entirely clear and the injured gentleman alleged he was pushed at the time of preparing the material for broadcast, we consider it was responsible and accurate for our report to state, ‘police are reviewing our pictures to assess whether an assault charge will be laid’. The police did investigate, and eventually cleared [the Council employee] of any assault charges, but this was nearly a month after the third broadcast went to air.

The statements were accompanied by footage of the incident, in which it appears that in a scuffle a Council employee made physical contact with an elderly man but, as he was obscured at the point of the fall, it is not clear whether he was pushed or tripped. This is followed by footage of the man saying, ‘I feel a bit shaken up. I didn’t expect people to be pushed around like has been going on tonight’ and that he would be attending the hospital. The ACMA considers that the audience would have understood that this was his subjective account of the incident.

The reporter’s statement which followed, ‘police are reviewing our pictures to assess whether an assault charge will be laid’ made it clear that an accusation had been made against the Council, which had not been proven.

Although the reporter and presenter used emotive terms (‘things turned nasty’ and by the reporter that ‘[this] symbolises the way the Monash City Council treats its elderly ratepayers’), neither the reporter nor the presenter independently asserted that the member of the public was pushed by the Council employee. The relevant factual assertion was that the Council had been accused of doing so. The ACMA considers therefore that the broadcast of this factual material was accurate at the time of preparing the broadcast.


Issue 4: Fair representation of viewpoints

Relevant code provisions News and Current Affairs Programs


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.

Finding


The licensee did not breach clause 4.3.1 of the Code in respect of the representation of viewpoints.

Complainant’s submissionsThe complainant alleged that ‘by failing to present factual material accurately, [the licensee] has represented the issue unfairly’. In further particulars to the ACMA on 21 May 2014, the complainant referred to numerous statements broadcast by the licensee that failed to represent viewpoints fairly.

For ease of the reference, the ACMA has grouped these into the following areas:

1. viewpoints on the future of the aged care facilities after the proposed sale

2. viewpoints on the conduct of the Council, including:

Councillors conduct themselves with ‘democracy, Monash style’, they ‘ignore’ and ‘fob’ ratepayers and are motivated by ‘money’ ‘greed’ and ‘secrecy’

Councillors engage in ‘shameful treatment of the elderly’, are ‘incompetent’, betrayed the voters

The Council formed a ‘secret’ agreement to take expressions of interest.

3. viewpoints in segment 3 on the incident involving a Council staff member

4. particular viewpoints of Councillor Drieberg and/or the Council

Licensee’s submissionsThe licensee noted that the obligation at clause 4.3.1 does not import an obligation on the licensee to include all points of view in relation to an issue in debate. The licensee submitted that, in respect to some matters, the Council’s or Councillor Drieberg’s viewpoint was not presented in the segments. Accordingly the viewpoints could not have been presented unfairly. The licensee submitted that where the Council’s or Councillor Drieberg’s viewpoints were broadcast, they were represented fairly.

Reasons The obligation on the licensee is to ensure that when particular viewpoints are represented, this is done fairly so that the particular viewpoint is not misrepresented. Importantly, the Code does not require a licensee to broadcast all material it obtains and the licensee can edit material so long as a viewpoint is not misrepresented.

The particular circumstances at the time of preparing and broadcasting the program are also relevant.

1. Viewpoints on the future of the aged care facilities after the proposed sale

The complainant submitted that each of the segments created the impression that the aged care facilities would be shut down and the residents relocated after the sale. The complainant alleged this was not fair representation of viewpoints because it was made clear to the licensee in numerous communications with the Council, in the interview conducted with Councillor Drieberg, and in the Council meeting on 29 October 2013 that the aged care facilities would continue operating despite the sale. The complainant also submitted that the licensee ‘did not seek any additional comment on the decision to proceed with the sale prior to broadcasting the segments’.


In relation to this particular matter, the licensee submitted that:

the Council meeting on 29 October 2013 was not filmed and therefore the licensee could not present any viewpoints expressed by the Council during the course of that meeting

it was not obliged, by clause 4.3.1, to seek additional comments from the Council on the decision to proceed with the sale.

As noted above at issue 3, the presenter and reporter did not assert that the facilities would be shut down and residents relocated. The broadcast footage from Councillor Drieberg’s interview and the Council meeting focussed on the initial decision to seek expressions of interest for the sale rather than on the future of the facilities.

The viewpoints broadcast on the future of the facilities came from interviews with ratepayers, residents and a representative from the Nurses Union.

The licensee did not broadcast correspondence from the Council, material from the interview with Councillor Drieberg or material from the Council meeting on 29 October 2013 relevant to the future of the facilities after the proposed sale.

The Code does not require all viewpoints to be broadcast in a current affairs program. The licensee did not misrepresent the Council’s viewpoint on the future of the facilities after the proposed sale, because the Council’s viewpoint on the future of the facilities was not presented in the segments.

The ACMA is therefore satisfied that the licensee did not breach clause 4.3.1 of the Code in relation to this matter.

2. Viewpoints on the conduct of the Council

The complainant submitted that the licensee did not represent viewpoints fairly because the segments suggested impropriety or secrecy on behalf of the Council. The complainant said:

…the Council pursued a full and robust public process. The initial confidential business decision to proceed with a sale process was made by Council within the realm of its objectives and was decided in the best social and financial interests of the community. The subsequent expressions of interest campaign was performed with broad public consultation and was publically advertised and transparent.

The licensee submitted on this point that:

Councillor Drieberg’s viewpoint that the Council engaged appropriately with stakeholders was fairly represented by the licensee in segments 1 and 2, because the licensee broadcast excerpts from the interview with the Councillor.

In segment 3, members of the Council did not provide any viewpoints on the consultation process and the licensee did not purport to present any viewpoints of the Council. Accordingly, the licensee did not misrepresent any viewpoints of the Council in that broadcast.

Both segments 1 and 2 include edited excerpts from the interview with Councillor Drieberg. In those excerpts, the Councillor repeatedly referred to the consultation process and answered questions about the Council’s conduct. It would have been clear to the reasonable viewer that the Councillor believed the Council’s consultation process was adequate. The ACMA is not


satisfied that the broadcast of the interview with Councillor Drieberg misrepresented her viewpoint about the consultation process.

In respect of segment 3, the ACMA does not see any instance where the Council’s viewpoint was provided on the conduct of the Council.


3. Viewpoints on the incident involving a Council employee

The complainant submitted that segment 3 failed to represent fairly the Council’s viewpoint on the incident involving a Council employee and the fall of an elderly man.

The licensee submitted that neither the Council nor the individual Council employee involved in the incident provided any viewpoint in the broadcast on the incident. Accordingly, the licensee did not misrepresent any such viewpoints.

As noted at issue 3 above, a subjective account was presented by the person who accused the Council employee of pushing him. The Council’s viewpoint, or the viewpoint of the particular employee were not provided on the incident.

The Code does not require all viewpoints to be broadcast in a current affairs program. The licensee did not misrepresent the Council’s viewpoint or the individual employee’s viewpoint on the incident, because their viewpoints were not presented in the segment.


4. Particular viewpoints of Councillor Drieberg and/or the Council

The complainant alleged that the segments were edited so as not to represent Councillor Drieberg’s or the Council’s viewpoints fairly, for example:

the segments were edited to place gratuitous emphasis on the Councillor Drieberg’s measured pauses prior to answering questions

the segments used highly inflammatory and inaccurate words to insult the Council and its Councillors, and did not seek any additional comment from the Council outside of the interviews broadcast.

In response, the licensee submitted that:

Although the interview with Councillor Drieberg was edited, the broadcasts did not misrepresent her viewpoint, the Councillor’s answers are not taken out of context, nor was her viewpoint misrepresented. The only viewpoint expressed by the Councillor was the one viewpoint broadcast.

Councillor Drieberg, as Mayor, could be considered to speak on behalf of the Council and therefore there was no need for the licensee to seek additional comments from the Council. In addition, as there is no obligation in the code to represent all viewpoint in a current affairs story, the licensee was not required to seek additional comment.

While the interview with Councillor Drieberg and accompanying commentary were not flattering, there is no evidence that the footage was edited for false effect to alter the Councillor’s position on the expressions of interest or the consultation process being


discussed. The ACMA is not satisfied that the broadcast of the interview with Councillor Drieberg misrepresented her viewpoint.

As stated above, the licensee is not required to seek comment on, nor broadcast all viewpoints on an issue. Therefore, this does not lead to a breach of clause 4.3.1 of the Code.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to this matter.


Attachment ATranscript of the segmentsSegment 1 broadcast on 26 September 2013

Presenter, Helen Kapalos – Hello, and welcome to the program. We begin tonight with the brave senior citizens taking on the cowardly Council threatening to take their homes and sell them to the highest bidder. Glenn Connley joined the grey army in the trenches and discovered that while they fight clean, they fight tough. Those Councillors didn’t know what hit them.

Interviewee 1 – I’ve come in here and I’ve thoroughly enjoyed every minute.

Reporter, Glenn Connley – By any measure, Monash Gardens and Elizabeth Gardens in Melbourne’s leafy east are among the best aged care facilities in the country.

Interviewee 1 – We’re all just one big happy family, we help each other—

Interviewee 2 – I couldn’t speak more highly of the way they look after you—

Glenn Connley – In this beautiful, friendly place, you hear it over and over.

Interviewee 3 – It is one, big happy family. And I’ll always remember when [name], the manageress there, took us around, she said ‘We want you to treat this as a home from home’. And that is exactly what it is: a home from home.

Glenn Connley – So, with our ageing population, why on Earth would the owners, the Monash City Council, even contemplate selling these magnificent facilities out from under the feet of our most vulnerable senior citizens?

Interviewee 1 – Well, they’re not going to kick me out – I’m going to sit on that chair I’m staying here til the rest of my life.

Interviewee 4 (to her husband) – I love that one there, the old Holden—

Glenn Connley – 85-year-old [Interviewee 4] and 89-year-old [Interviewee 5] are original residents of the independent living units at Monash Gardens.

Interviewee 5 – It’s not their money, they’ve got no right to do this.

Glenn Connley – 81-year-old [Interviewee 6] has volunteered here for years – after a fall here last year, his dear wife [name] moved in.

Interviewee 6 – There are other ways to get money without sacrificing the elderly citizens – let them have their last few years in peace. Leave us alone.

Glenn Connley – What really stinks about this is the sneaky way the Council went about announcing it was thinking of selling. At the end of their June Council meeting, they closed the doors and secretly agreed to take expressions of interest. A sale would net them a fortune.

Jack Davis – There was no consultation – none at all, before the event. Consultation after the event, but not before the event.

Glenn Connley – Jack Davis heads Rate Payers Victoria. He was once a Monash Councillor himself. He thought he’d seen it all. But he reckons this is a new low.


Jack Davis – That’s disgusting. But it’s aged care, and you must not sell aged care. It belongs to the people.

Glenn Connley – The Council, which includes inexperienced Mayor Micaela Drieberg and [name], the man Kevin Rudd booted off the ALP ticket at the last election for his foul-mouthed abuse of a disabled woman, probably expected the oldies to just lie down and cop it. The last thing they expected was to go to war.

Protestors – What do we want? No sale!

Glenn Connley – But war is exactly what they got.

Protestors – What do we want? No sale!

Glenn Connley – And here’s the first lesson these baby-faced Councillors learned the hard way: pick a fight with Australia’s grey army at your peril.

Protestors – Shame Council, shame!

Glenn Connley – I tell you what Jack, this Council might’ve thought these oldies would roll over – they probably weren’t expecting a fight like this, were they?

Jack Davis – No, no, they’ve taken on a good army here! If they don’t win today, there won’t be a Council survives the next Council election.

Glenn Connley – Speaking of elections, they had one last year. Des Olin heads the local rate-payers association.

Des Olin – Elections were last October, there was no mandate that this was even thought about, and if it was, they would have been booted out in October.

Glenn Connley (to Mayor Drieberg) – When you ran for election, did you run on a platform of selling off aged care facilities?

Mayor Drieberg – Potentially seeking expressions of interest for Monash Gardens and Elizabeth Gardens wasn’t on the agenda in 2012, it’s something that we’re considering here and now.

Glenn Connley – Mayor Micaela and I played a little game. It’s called: let’s give a straight answer. She lost.

Glenn Connley (to Mayor Drieberg) – Would you go to the people? Go to an election on this?

Mayor Drieberg – We’ve been communicating that we are in the middle of an expression of interest process—

Glenn Connley – I’m not sure what you’re answering there, but my question was: would you go to the people on this?

Mayor Drieberg – We’ve been speaking and communicating—

Glenn Connley – Would you wait for an election to get a mandate on this issue?

[The mayor pauses and shrugs]

Glenn Connley – Why not wait and put it to the people? Let the rate payers decide.

Mayor Drieberg – We’re in the middle of an expression of interest—


Glenn Connley – This is a democratic process, people vote for you based on what you will and won’t do for them.

Mayor Drieberg – We’re in the middle of—

Glenn Connley (narrated) – Ok, I give up!

[Mayor Drieberg’s answers are rewound at very high speed].

Glenn Connley – Micaela’s rate payers could certainly teach her a thing or two about throwing away the script and speaking from the heart.

Speaker 1 - ...and I’m fairly disgusted with what the Council are doing!

Glenn Connley – Before the Council meeting, concerned residents, families, rate-payers, nurses and local businesspeople gathered outside the Civic Centre.

Speaker 2 – Look, I’m here to support my mother [name], who moved into Monash independent living units just before my father died on the understanding that—

Speaker 3 – My father-in-law is 103 not out!

Glenn Connley – Each had a personal story about Monash or Elizabeth Gardens.

Speaker 4 – It’s not good for Alzheimer patients. She’s so confused, she doesn’t know what’s going on and she—

Speaker 5 – She’s now been at Elizabeth Gardens for two years. Her level of care and her general health has increased tremendously.

Glenn Connley – After the rally, protestors marched on the Council Chamber, where emotion gave way to anger.

Protestors – No sale! No sale! No sale!

Glenn Connley – When the rate payers invited us into the meeting, one of the Mayor’s minions tried to kick us out.

Council employee 1 – So you know you can’t go in there.

Glenn Connley – Why is that?

Council employee 1 – Because it’ll be too disruptive.

Glenn Connley – The acting CEO had a crack too.

Acting Council CEO – That is the decision that has been taken.

Glenn Connley – But people power won the day. We stayed.

Acting Council CEO – I allow the cameraman and the audio guy to stay here, and you will not move from this position while you are in this room.

Glenn Connley – I feel like a naughty school boy, but yes sir, I promise!

Glenn Connley (narrated) – And what we witnessed was bizarre, to say the least.

Protestors – Shame Council, shame! Shame Council, shame!

Glenn Connley – This is democracy, Monash style. If you want to ask a question, you put it in writing, in advance for approval, then, if you’re lucky, you can read it out.


Speaker – Would the Mayor and the Councillors please explain—

Glenn Connley – Despite residents’ best intentions, question after question was batted down. While some Councillors fiddled with their iPads, rate-payers were ignored and fobbed off one by one – supposedly in the name of commercial in-confidence. Mayor Micaela ploughed on like a school girl reading a bad essay, and then, the bombshell.

[General clamouring and shouting from the gallery]

Glenn Connley – When a rate-payer moved a no-confidence motion, these big, brave Councillors upped and fled their own chamber, scared off by a bunch of octogenarians. Next day, the Mayor’s head was still firmly in the sand.

Mayor Drieberg– It’s understandable that some of our residents and their families are concerned, and we’re doing what we can every step of the way to support them.

Glenn Connley – You took them by surprise!

Mayor Drieberg – In what way?

Glenn Connley – Well, they didn’t know it was happening, next thing they’re taking expressions of interest!

Mayor Drieberg – We’ve been communicating with our residents—

Glenn Connley – They say you haven’t!

Mayor Drieberg – And their families.

Glenn Connley – You can stand there and repeat yourself 25,000 times – they say the first they knew about it was your taking expressions of interest on the place they’re living in!

Interviewee 1 – Her mother might be old one [day] and want somewhere to go – her father might!

Glenn Connley – So, Monash City Council, what’s it to be? Money, or care? Greed, or common sense? Honesty, or secrecy? Perhaps a good place to start would be listening to the people who put you there.

Glenn Connley (to interviewee 9) – If the CEO, if the Mayor is watching this now, what would you like to say to them?

Interviewee 9 – Please give us a go, and leave the place open so we can enjoy it—

Interviewee 4 – Now, if I have to travel an hour, or half an hour, or even two hours, to another place, I’m not going to be able to spend that quality time with my wife any more.

Interviewee 9 – They’re all going to reach our age eventually, and they’ll realise what they’ve done.

Helen Kapalos – And the Monash Council will announce their decision on the sale of those retirement homes at the end of next month – let’s hope they see sense. Glenn Connley reporting there.

Segment 2 broadcast on 29 October 2013

Helen Kapalos – Well now, last month, we went in to bat for a group of older Australians whose retirement homes may be sold out from under them by their local Council. Well, the


Monash City Council is meeting in just under an hour to announce whether they’ve seen sense or have decided to press ahead with that incredibly unpopular sale.

Protestors – No sale! What do we want? No sale!

State Opposition Leader Daniel Andrews MP – These are very passionate people, they know the local area, they’ve lived there, and they’ve built the local area! They’ve paid their rates, they’ve paid their taxes, they’ve been the stalwarts of our local community, and now they simply want a place that’s not for profit – a place that can be a loving and caring environment that they can call their home, or can be home for one of their loved ones.

Protestors – No sale!

Glenn Connley – They’re the aged care facilities no-one wants sold – Monash Gardens and Elizabeth Gardens.

State Opposition Leader Daniel Andrews – The process has been bad, the decision is bad, it’s not one I can support, because my local community won’t cop this.

Glenn Connley – Not the residents—

Interviewee 5 – It’s not their money, they’ve got no right to do this!

Glenn Connley – Not their families—

Interviewee 6 – There are other ways to get money without sacrificing the elderly citizens—

Glenn Connley – Not the local member Daniel Andrews, who’s also the Victorian Opposition Leader.

State Opposition Leader Daniel Andrews – The City of Monash Councillors should listen to the community – no-one’s in favour of this, they’re out of step, they’ve got this wrong.

Lisa Fitzpatrick – There is no guarantee that even a private provider will keep these beds in the local community area

Glenn Connley – And not the nurses who work there. Lisa Fitzpatrick from the Nurses’ Union.

Lisa Fitzpatrick – The nursing standards will drop, because when a private provider comes in, what they will do is they will cut the nursing numbers in order to increase their margin.

Glenn Connley – But the owners, Monash City Council, smell a profit. With no consultation, they started taking expressions of interest with a view to selling them out from under the residents.

Mayor Drieberg– It’s understandable that some of our residents and their families are concerned, and we’re doing what we can every step of the way to support them.

Glenn Connley – You took them by surprise!

Mayor Drieberg – In what way?

Glenn Connley – Remember Mayor Micaela? She’s the one who takes a while to form a sentence when you ask her a question.

Glenn Connley (to Mayor Drieberg) – When you ran for election, did you run on a platform of selling off aged care facilities?


Mayor Drieberg – Potentially seeking expressions of interest for Monash Gardens and Elizabeth Gardens wasn’t on the agenda in 2012, it’s something that we’re considering here and now.

State Opposition Leader Daniel Andrews – These are assets that belong to everybody. They don’t belong to a group of Councillors or a group of Council Officers who see this as an entry on a balance sheet. It’s much more than that.

Glenn Connley – Tonight, we’ll see whether this is a democracy or a dictatorship. But one thing’s for sure: if common sense does not prevail, this battle will not be over. Unlike the political careers of these jokers.

Protestors – Shame Council, shame! Shame Council, shame!

Interviewee 1 – Well, they’re not going to kick me out, I’m going to sit on that chair and I’m staying here til the rest of my life.

Helen Kapalos – And we’ll let you know how that vote goes tomorrow night. [Reporter’s name] reporting there.

Segment 3 broadcast on 30 October 2013

Helen Kapalos – Now, for the past couple of months, we’ve been fighting for a group of elderly Australians in two of the country’s best-run aged care facilities. And last night, Monash City Council decided their fate. So, did the Council stick up for their most vulnerable rate payers or sell them out? Sadly, as Glenn Connley reports, things turned nasty.

Interviewee 10 – Give us the placard back! Give us it back!

Unknown voice – Hey! Stop that now!

[General shouting]

Glenn Connley – 71-year-old [name] symbolises the way the Monash City Council treats its elderly rate payers.

Interviewee 10 – I feel a bit shaken up. I didn’t expect people to be pushed around like has been going on tonight.

Glenn Connley – Like hundreds of others, he showed up to last night’s Council meeting to protest the heartless sell-off of aged care homes.

Interviewee 10 - There’s a bit of blood on the elbow, ummm, and it’s ummm, I’m heading off to the Alfred hospital.

Glenn Connley – Police are reviewing our pictures to assess whether an assault charge will be laid. The signs were ominous from the beginning – a hefty police presence and those hired goons.

Interviewee 11 – Well, I noticed that the police had their guns and the capsicum sprays in case one of these poor old people got out of hand.

Security guard – Sorry mate, no camera crews.

Glenn Connley – No, it’s open to the public.


Council employee 2 – We don’t have a Council resolution for it to be recorded, so unfortunately—

Glenn Connley – But we were allowed in last time.

Council employee 2 – Unfortunately—

Glenn Connley – What have you got to hide?

Glenn Connley (narrated) – Despite allowing us into their last meeting, this time the goons were ready. Led by a Council lackey relishing his 15 minutes of foolishness.

Council employee 2 – I’m sorry, Sir.

Glenn Connley – Who are you?

Council employee 2 – I’m sorry, Sir.

Glenn Connley – I’m sure you’re very sorry, I would be too. Who are you?

Protestors – No sale! No sale! No sale!

Glenn Connley – Just like their shameful treatment of the oldies, this was policy on the run. We were allowed in last time and exposed a frightfully incompetent Council and a dismal excuse for democracy. In the end, the Council fled their own chamber. Clearly, this time, they were determined to hide their incompetence. The night began with a rallying cry from the State Opposition Leader and local member Daniel Andrews.

Victorian Opposition leader Daniel Andrews – The Monash Gardens and Elizabeth Gardens aged care facilities are not the Monash Council’s to sell, and they ought not be for sale.

Glenn Connley – [Interviewee 6], who we met with wife [name] delivered a 10,000 signature petition. [Name], the Principal of [school name], which borders Monash Gardens, told protestors his students learn as much from their elderly neighbours as they do in any classroom.

School Principal – Tonight, we see who the Council work for. Do they work for Corporations, and do they work for money, or do they work for us, who elected them?

Glenn Connley – Within the hour, [name] had his answer. In the City of Monash, people come a distant second to money. Before the vote, Councillor Katrina Nolan left the chamber citing an aged care conflict, and Councillor Stephen Dimopoulos didn’t even show up. Councillor Rebecca Paterson, due to give birth any day, made the effort to be there. She spoke passionately about the stupidity of selling, as did Councillor Robert Davies. Councillor Theo Zographos revealed they were selling on the cheap and would lose a fortune to consultants. Councillor Bill Pontikis said the numbers just didn’t add up. All four voted against the sale. But this is Monash-style democracy. In this Council of 11, five constitutes a majority. Predictably, baby Mayor Micaela Drieberg led the betrayal of the elderly, along with Geoff Lake, whose only other contribution to public life was an X-rated rant against a disabled woman. Lovely chap. As well as Councillors Little, Lo and Klisaris. Five votes out of 11, and that was that.

Interviewee 12 – It was a rip off! And it’s not going to happen, I can assure you.


Glenn Connley – Outside, there was anger and heartbreak. [Interviewee 6] had to work out how to break the news to his lovely wife [name].

Interviewee 6 – My wife said to me, wife [name] said to me, if it’s not too late, ring me. I haven’t got the guts to ring her!

Glenn Connley – Dear old [interviewee 13] is 76 and has been in high care at Monash for six years. Her first thought was for the nurses and staff. The meeting was told they’ll probably be allowed to reapply for their jobs under a new owner.

Interviewee 13 – Oh, they’re marvellous. There’s never an impatient word out of them, they can’t do enough for you—

Glenn Connley – Jack Davis, former Monash Councillor, now President of Ratepayers Victoria.

Interviewee 7 – Ratepayers Victoria is appalled at the decision made here tonight. It was orchestrated, it was planned, and it was controlled.

Interviewee 14 – They haven’t got the mandate, they’re arguing that 80% of the community wants the sale – well, I haven’t seen more than two or three people tell me that yet.

Glenn Connley – [Name], like so many, had put hundreds of hours of work into the fight, which she says is far from over.

Interviewee 14 – We are going to continue fighting, we’ve already scheduled the next meeting dates for next week—

Glenn Connley – Say what you want about this Council – they may be dishonest, but they’re clever. They didn’t mention selling of aged care facilities when they were elected last year, and have two years left to run on this term. They’ll be praying the voters of Monash have forgotten their betrayal if they’re silly enough to stand for re-election.

Helen Kapalos – And our passionate, elderly protestors will take their fight to the Victorian Ministers for Health and Local Government, citing gross incompetence on the part of the Council. We’ll keep on the case.


Attachment B

Complainant’s submissions Original complaint to the licensee – 28 November 2013

[…]

This correspondence is a complaint within the meaning of Sections 7.2 and 7.5 of the Commercial Television Industry Code of Practice (Code of Practice).

1. Identification of material broadcast

1.1 We refer to the following segments broadcast by Seven Network (Melbourne) Pty Limited (Channel 7) on the Today Tonight program which airs at 6.30 pm nightly:

(a) 'Seniors versus Council' – broadcast 26 September 2013 (the first segment) (which can be viewed online at the following link: http://au.news.yahoo.com/todaytonight/lifestyle/article/-/19122603/seniors-versus-council/)

(b) 'Aged Care Conflict' – broadcast on 30 October 2013 (the second segment) (which can be viewed online at the following link: http://au.news.yahoo.com/todaytonight/video/watch/19609708/aged-care-conflict/); and

(c) 'Council Versus Elderly'- broadcast on 29 October 2013 (the third segment) (which can be viewed on line at the following link: http://au.news.yahoo.com/today-tonight/lifestyle/article/-/19592630/council-versus-elderly/)

1.2 We are aware that this correspondence is sent more than 30 days after the first segment was broadcast, however, the compounded effect of the second and third broadcast persuaded [the complainant] to pursue this matter.

[…]

2. Identification of the nature of the complaint

2.1 The segments breach the following Sections of the Code of Practice:

(a) Section 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.

(b) Section 4.3.11: In broadcasting news and current affairs programs, licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity.

(c) Section 4.3.10: In broadcasting news and current affairs programs, licensees must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age.

(d) Section 1.9.6: A licensee may not broadcast a program ... which is likely, in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the ground of age... [or] gender.


http://au.news.yahoo.com/today-tonight/lifestyle/article/-/19592630/council-versus-elderly/

http://au.news.yahoo.com/today-tonight/lifestyle/article/-/19592630/council-versus-elderly/

http://au.news.yahoo.com/todaytonight/video/watch/19609708/aged-care-conflict/

http://au.news.yahoo.com/todaytonight/lifestyle/article/-/19122603/seniors-versus-council/

http://au.news.yahoo.com/todaytonight/lifestyle/article/-/19122603/seniors-versus-council/

(e) Advisory Note 'The Portrayal of Women and Men': Avoid implying that a person is inferior because of his or her gender. (together, the breaches)

2.2 The breaches arise out of multiple reckless allegations against the Mayor, Councillors and staff which are false, inaccurate, misleading and defamatory, including:

(a) in respect of the first segment, that

(i) the Councillors:

(A) are 'cowardly' (breach of Section 4.3.1);

(B) are 'sneaky' (breach of Section 4.3.1);

(C) formed a 'secret' agreement to take expressions of interest (breach of Section 4.3.1);

(D) have reached 'a new low that is disgusting' (breach of Section 4.3.1);

(E) are 'baby faced' (breach of Section 4.3.10);

(F) conduct themselves with 'democracy, Monash style' (breach of Section 4.3.1);

(G) 'ignore' and 'fob' rate payers (breach of Section 4.3.1);

(H) 'fled' their chambers and were 'scared off by a bunch of octogenarians' (breach of Section 4.3.1); and

(I) are motivated by 'money', 'greed' and 'secrecy' (breach of Section 4.3.1).

(ii) Cr Drieberg:

(A) is an 'inexperienced' Mayor (breach of Section 4.3.10 and 1.9.6);

(B) is 'a school girl' (breach of Section 4.3.10 and 1.9.6);

(C) cannot give 'a straight answer' to reporters (breach of Section 4.3.1); and

(D) has 'her head firmly in the sand' (breach of Section 4.3.1).

(iii) [Councillor name]:

(A) is distracted by playing with iPads during council meetings (when all he is doing is referring to the business papers for the meeting on his iPad and Council has provided iPads to councillors for this purpose) (breach of Section 4.3.1).

(b) in respect of the second segment, that

(i) the Councillors:

(A) are 'heartless' (breach of Section 4.3.1);

(B) form 'policy on the run' (breach of Section 4.3.1);

(C) engage in 'shameful treatment of the elderly' (breach of Section 4.3.1);

(D) are 'frightfully incompetent and a dismal excuse for a democracy' (breach of Section 4.3.1);

(E) 'fled' their chambers (breach of Section 4.3.1);

(F) are 'incompetent' (breach of Section 4.3.1);


(G) work for corporations, not the tax payers (breach of Section 4.3.1);

(H) put 'people a distant second to money' (breach of Section 4.3.1);

(I) conduct themselves with 'Monash style democracy' (breach of Section 4.3.1);

(J) 'betrayed' the voters (breach of Section 4.3.1); and

(K) are 'dishonest' (breach of Section 4.3.1).

(ii) Cr Drieberg is a 'baby Mayor' (breach of Section 4.3.10 and 1.9.6).

(iii) Cr Geoff Lake's 'only contribution to public life was an X-rated rant against a disabled woman' (breach of Section 4.3.1).

(iv) Council staff member […] is 'nasty' and would intentionally push an elderly man (breach of Section 4.3.1).

(c) in respect of the third segment, that the Councillors:

(i) are 'jokers' whose political careers are over (breach of Section 4.3.1). (together, the allegations)

2.3 In addition to the breaches, given their natural and ordinary meaning, the allegations are defamatory and convey the following defamatory imputations, amongst others:

(a) the Councillors conduct themselves improperly and/or corruptly;

(b) the Councillors are not capable of performing the duties and responsibilities required by their positions;

(c) the Councillors are juvenile, inexperienced, distracted and incompetent;

(d) Cr Drieberg is an inexperienced, immature, incompetent and unqualified Mayor because she is a young woman; and

(e) Cr Lake is incompetent, a bully and is unfocused.

3. Additional breaches of Section 4.3.1

3.1 Each of the segments create the impression that the aged care facilities are going to be shut down and the residents will be relocated. In fact, the Monash Gardens and Elizabeth Gardens aged care facilities will continue operating from their existing locations for many years to come, despite the sale. This was a key requirement for Council in determining to proceed with the sale – a point made clear in numerous communications by Council, in the interview conducted by Today Tonight with Cr Drieberg, and in the debate which took place at the 29 October 2013 meeting which was observed by the reporter. The decision to proceed with a sale process for the facilities was ultimately made in the best social and financial interests of the community. Each of the specialist aged care providers shortlisted from an Expressions of Interest campaign demonstrated a capacity to meet or exceed required care standards, and have experience in the operation of retirement living. The three segments have not presented the facts clearly or reasonably and Channel 7 failed to represent the viewpoints fairly.

3.2 In relation to the first segment, Today Tonight made a request for permission to film the September 2013 council meeting. In accordance with Council's discretion under the


Council Meeting Procedures and Public Question Time Procedure, this request was declined. Nevertheless, a Today Tonight camera crew and journalist turned up at the September 2013 council meeting, and engaged in bullying and inappropriate conduct. In accordance with the above Procedures, Council staff repeatedly requested that the Today Tonight team leave the meeting, but the reporter and crew rudely refused to do so. This conduct was designed to provoke a reaction.

3.3 In relation to the second segment, the reporter engaged in inappropriate and provocative behaviour at the October Council 2013 meeting. The journalist repeatedly, and in an insulting and highly inflammatory manner, told the Council officers at the door of the meeting that they were ‘fools’ and were ‘foolish’. This conduct persisted for approximately 15 minutes and was again designed to provoke a reaction […]

3.4 We note that the incident of a gentleman falling off a step was in fact an accidental trip caused by the gentleman himself. The Council was required to provide a statement to Victoria Police in relation to the incident, and was informed by Victoria Police, that Glen Connolly (Channel Seven investigative reporter), had stated to them that he was aware the elderly gentleman had tripped.

3.5 Nevertheless, the report states that 'things turned nasty' and implies that staff member […] pushed the gentleman in what 'symbolises how Monash City Council treats its rate payers'. We are instructed that Victoria Police reviewed the Today Tonight footage in the course of their investigation, and found that no assault was committed. Further, in breach of Section 4.3.11, Channel 7 has failed to broadcast a clarification of the incident or the Victoria Police findings.

3.6 In relation to the third segment, Today Tonight made no attempt to provide a balanced story, having made no request to the Council for an interview or comment on the decision to proceed with a sale prior to broadcasting the story.[…]

Complaint to the ACMA – 21 February 2014

I enclose the following documents:(a) Complaint lodged with Free TV Australia on 28 November 2013 (the Complaint);(b) Response letter from Seven Network dated 17 December 2013 (the Response); and(c) ACMA broadcasting complaint form.

2. I adopt the numbering as it appears throughout the correspondences.

3. I am not satisfied with the licensee's response and request that ACMA investigate the matter pursuant to section 148 of Broadcasting Services Act 1992 (Cth).

4. I note that the Response simply denies allegations without proper consideration. It also does not address many of the concerns raised in my letter (for example, 2.2(a)(i)(EL 2.2(b)(i)(DL 2.2(b)(i) (1), and 2.2(c)(i)).

5. The Response also states that 'the Code requires news programs to broadcast material fairly and impartially. However, no such impartiality requirement exists for current affairs programs like Today Tonight. Whilst section 4.4 of the Act does not require current affairs programs to present news fairly and impartially, section 4.3 requires news and current affairs programs to broadcast factual material accurately and represent viewpoints fairly.


In conducting this investigation, I request that ACMA have regard to the following further comments:

2.2(a)(i) the Councillors (A) are 'cowardly'; (B) are 'sneaky'; (D) have reached 'a new low that is disgusting'

2.2(b)(i) the Councillors (A) are 'heartless'; (K) are 'dishonest'6.1 As no clear distinction is made between the reporting of factual material from

commentary and analysis (breach of section 4.4 of the Code of Practice), the ordinary reasonable person would consider the allegations to be statements of fact, and not the opinions of Today Tonight. The substantial nature of the messages conveyed present the comments as statements of fact, when in fact they are untrue, malicious and defamatory. The program used these highly inflammatory and inaccurate words to insult the Monash City Council and its councillors. By failing to present factual material accurately, Seven Network has represented the issue unfairly (breach of section 4.3.1of the Code of Practice).

2.2(a)(i) the Councillors (F) conduct themselves with 'democracy, Monash style; (G) 'ignore' and 'fob' ratepayers; (I) are motivated by 'money', 'greed' and 'secrecy'

2.2(b)(i)the Councillors (C) engage in 'shameful treatment of the elderly'; (F) are 'incompetent'; (G) work for corporations, not tax payers; (H) put people a distant second to money; (J)' betrayed' the voters; (I) conduct themselves with 'Monash style democracy'

2.2(c)(i) the Councillors are 'jokers' whose political careers are over6.2 I refer to and repeat my comments above at paragraph 6.1.

6.3 Monash City Council is committed to listening, responding and engaging with rate payers, and each of the above allegations incorrectly portrays that the Council is not open and transparent in its intentions, community engagement and outcomes.

6.4 Each of the segments create the impression that the aged care facilities are going to be shut down and the residents will be relocated. In fact, the Monash Gardens and Elizabeth Gardens aged care facilities were at the time of the broadcasts expected to continue operating from their existing locations for many years to come, despite the sale. This has since been confirmed in Council's final resolution of this matter on 28 January 2014. As noted in my comments at paragraph 3.1of the Complaint, the decision to proceed with a sale process for the facilities was ultimately made in the best social and financial interests of the community. Each of the specialist aged care providers shortlisted from the expressions of interest campaign demonstrated a capacity to meet or exceed required care standards, and have experience in the operation of retirement living. The three segments have not presented the facts clearly or reasonably and Seven Network failed to represent the viewpoints fairly

2.2(a)(i) Council (C) formed a 'secret' agreement to take expressions of interest6.5 I refer to and repeat my comments above at paragraph 6.1.

6.6 Monash City Council objects to any suggestion of impropriety or secrecy, when in fact Council pursued a full and robust public process. The initial confidential business decision to proceed with a sale process was made by Council within the realm of its objectives, and was decided in the best social and financial interests of the community.


The subsequent expressions of interest campaign was performed with broad public consultation and was publically advertised and transparent.

2.2(a)(i) (E) the Councillors are 'baby faced';

2.2(a)(ii) (A) Councillor Drieberg is an 'inexperienced' 'schoolgirl';

2.2(b)(ii) Cr Drieberg is a 'baby Mayor'6.7 I refer to and repeat my comments above at paragraph 6.1.

6.8 It is clear that the ordinary reasonable person would consider these allegation to be statements of fact, and not the opinions of Today Tonight. These comments are sexist, inappropriate and gratuitous. They portray Councillor Drieberg and other councillors in a negative light because of their age and gender (breach of section 4.3.10 of the Code of Practice and Advisory Note 'The Portrayal of Women and Men'). I strongly disagree with the comment in the Response, that referring to a Councillor as an inexperienced schoolgirl is 'a common colloquialism for a person lacking experience'. It is clear that the term carries the ordinary meaning that the Councillor is inferior because of her age and/or gender.

2.2(a)(ii) Councillor Drieberg (C) cannot give 'straight answers'; (D) has 'her head firmly in the sand'6.9 I refer to and repeat my comments above at paragraph 6.1.

6.10 The segments are edited to place gratuitous emphasis on Councillor Drieberg's considered pauses prior to answering (repeated) questions.

2.2(b)(i) the Councillors (B) form 'policy on the run'; (E) 'fled their Chambers'

2.2(b)(i) (H) 'fled their Chambers' and 'were scared off by a bunch of octogenarians'6.11 I refer to and repeat my comments above at paragraph 6.1 and paragraphs 3.2 and 3.3

of my Complaint.

6.12 Further, I note Seven Network's comment on page 3 of their letter, that 'during subsequent council meetings open to the public, rate payers expressed their frustration that their questions for council had to be approved in advance and in some cases were edited by staff members before they could be read in the public forum'.

This practice is in accordance with section 15 of City of Monash Local Law No. 1Meeting Procedures which has been operative since December 2007. This Local Law can be accessed at the following link: http://www.monash.vic.gov.au/couneil/pdftext/local-law1.pdf

2.2(a)(iii) (A) Councillor [name] is distracted by playing with iPads during council meetings6.13 I refer to and repeat my comments above at paragraph 6.1.

6.14 Councillor [name] was using his Council issued iPad for business purposes to review the meeting minutes and annotated documents. This is in line with the purposes for which the iPads were provided to councillors by the Council. By calling Councillor [name] 'distracted', the segment coveys as a statement of fact, that he is incompetent and unfocused.


http://www.monash.vic.gov.au/couneil/pdftext/local-law1.pdf

2.2(b)(iv) 'Council Staff member […] is 'nasty' and would intentionally push an elderly man

3.6 Council was not contacted to provide their comments6.15 The Response states that 'we believe that having regard to the circumstances at the

time of preparing the broadcast, (the incident between [a Council employee] and the elderly gentleman) was accurate and did not misrepresent the situation'. Section 4.3.11of the Code requires Seven Network to make reasonable efforts to correct significant errors of fact at the earliest opportunity. No clarification has since been made, despite Victoria Police finding that no assault had been committed.[…]

Additional information to the ACMA – 22 May 2014

[…]Further particulars 2.1 Your email invites further submissions regarding the individual viewpoints that I consider

have not been fairly represented. In particular, I refer to the following statements:

2.2 (a) (i) the Councillors (F) conduct themselves with 'democracy, Monash style; (G) 'ignore' and fob ratepayers; (l) are motivated by 'money' 'greed' and 'secrecy'

2.2 (b)(i) the Councillors (C) engage in 'shameful treatment of the elderly'; (F) are 'incompetent'; (G) work for corporations, not tax payers; (H) put people a distant second to money; (J) betrayed' the voters; (I) conduct themselves with 'Monash style democracy’

2.2(a)(i) Council (C) formed a 'secret' agreement to take expressions of interest 2.2 Each of the three segments create the impression that the aged care facilities are going

to be shut down and the residents will be relocated. In fact, the Monash Gardens and Elizabeth Gardens aged care facilities were at the time of the broadcasts, expected to continue operating, despite the sale. The three segments have not presented the facts clearly or reasonably and Seven Network failed to represent the viewpoints fairly or accurately. Today Tonight did not seek any additional comment on the decision to proceed with a sale prior to broadcasting the segments. In this regard I refer to and repeat my previous comments which state:

(a) Paragraph 3.1 of the Complaint lodged with Free TV Australia on 28 November 2013: ln fact, the Monash Gardens and Elizabeth Gardens aged care facilities will continue operating from their existing locations for many years to come despite the sale. This was a key requirement for Council in determining to proceed with the sale - a point made clear […] in the debate which took place at the 29 October 2013 meeting which was observed by the reporter. The decision to proceed with a sale process for the facilities was ultimately made in the best social and financial interests of the community. Each of the specialist aged care providers shortlisted from an Expressions of Interest campaign demonstrated a capacity to meet or exceed required care standards, and have experience in the operation of retirement living. The three segments have not presented the facts clearly or reasonably and Channel 7 failed to represent the viewpoints fairly.

(b) Paragraph 6.4 of my letter dated 21 February 2014: Each of the segments create the impression that the aged care facilities are going to be shut down and the


residents will be relocated. In fact, the Monash Gardens and Elizabeth Gardens aged care facilities were at the time of the broadcasts expected to continue operating from their existing locations for many years to come despite the sale. This has since been confirmed in Council's final resolution of this matter on 28 January 2014. As noted in my comments at paragraph 3.1 of the Complaint, the decision to proceed with a sale process for the facilities was ultimately made in the best social and financial interests of the community. Each of the specialist aged care providers shortlisted from the expressions of interest campaign demonstrated a capacity to meet or exceed required care standards, and have experience in the operation of retirement living. The three segments have not presented the facts clearly or reasonably and Seven Network failed to represent the viewpoints fairly.

(c) Paragraph 6.6 of my letter dated 21 February 2014: […] Council pursued a full and robust public process. The initial confidential business decision to proceed with a sale process was made by Council within the realm of its objectives and was decided in the best social and financial interests of the community. The subsequent expressions of interest campaign was performed with broad public consultation and was publically advertised and transparent.

2.2(a)(ii) Councillor Drieberg (C) cannot give 'straight answers'; (D) has ‘her head firmly in the sand'

2.2(a)(i) (E) the Councillors are 'babyfaced'

2.2(a)(ii)(A) Councillor Drieberg is an 'inexperienced' 'schoolgirl'

2.2(b)(ii) Cr Drieberg is a 'baby Mayor'

2.2(a)(i) the Councillors (A) are 'cowardly'; (B) are 'sneaky'; (D) have reached 'a new low that is disgusting'

2.2(b)(i) the Councillors (A) are 'heartless': (K) are 'dishonest'

2.2(b)(i) the Councillors (B) form 'policy on the run’; (E) ‘fled their Chambers'

2.2(b)(i)(H) 'fled their Chambers' and 'were scared off by a hunch of octogenarians'

2.2(c)(i) the Councillors are 'jokers' whose political careers are over 2.3 These comments are sexist, inappropriate and gratuitous. They portray Councillor

Drieberg and other councillors in a negative light because of their age and gender. The segments are edited to place gratuitous emphasis on Councillor Drieberg's measured pauses prior to answering (repeated and belligerent) questioning. The segments used highly inflammatory and inaccurate words to insult the Monash City Council and its councillors, and did not seek any additional Comment from the Council outside of the interviews broadcast. In this way, they have been edited so as not to represent viewpoints fairly.

2.2(b)(iv) 'Council Staff member […] is 'nasty and would intentionally push an elderly man 2.4 The investigative reporter involved in preparing the segments was aware that the

gentleman had tripped and not been pushed. Further, the incident was investigated by Victoria Police, who found that no assault had been committed. Nevertheless, the program did not represent the viewpoints fairly, and did not make reasonable efforts to


provide a clarification. In this regard, I refer to and repeat my previous comments which State:

(a) Paragraph 3.4 and 3.5 of the Complaint lodged with Free TV Australia on 28 November 2013: We note that the incident of a gentleman falling off a step was in fact an accidental trip caused by the gentleman himself […] Nevertheless the report states that 'things turned nasty' and implies staff member […] pushed the gentleman in what 'symbolises how Monash City Council treats its rate payers'. […] Victoria police reviewed the Today Tonight footage in the course of their investigation, and found that no assault was committed.

[…]


Attachment C

Licensee’s submissions

Licensee response to original compliant – 17 December 2013

[…]According to clause 7.3.1 of the Code, the portion of your complaint which relates to the report broadcast on 26 September 2013, is not a valid complaint under the Code as it was received more than 30 days after its broadcast. Nevertheless, as a courtesy to you, we have responded to your concerns regarding that report, along with your concerns regarding the two subsequent reports.

As you may not be aware, the Code sets out a number of provisions regarding the way in which material is presented in a news or current affairs program. The Code requires news programs to broadcast material fairly and impartially. However, no such impartiality requirement exists for current affairs programs like Today Tonight. In fact, the ACMA has noted that 'the Code does not prohibit current affairs programs from taking a critical stance on issues’ and that these programs are ‘not required to present all or even opposing viewpoints on a matter being reported on.’ Therefore, to the extent that your complaint is that Today Tonight took a biased or critical approach to the actions of Monash City Council (MCC), we note that this is not prohibited under the Code.

In responding to your assertions below, we have adopted the numbering as it appears in your correspondence.

The First Segment (Seniors versus Council) 2.2 (a) (i) (A)

You have raised concerns that the words and/or phrases listed at 2.2(a)(i)(A) - (l) of your complaint are ‘false, inaccurate, misleading and defamatory’. Insofar as these allegations relate to clause 4.3.1 of the Code, we consider that any comments that could be considered a statement of fact were accurate and that the segment represented all viewpoints fairly.

2.2 Councillors are (A) 'cowardly'; (B) ‘sneaky'; (D) have reached 'a new low that is disgusting'; (F) conduct themselves with 'democracy, Monash Style' (G) ignore' and fob' rate payers;

With regards to your concerns of the above comments, we do not consider that the ordinary reasonable person would consider these to be statements of fact, but rather the opinions of Today Tonight forming part of their political critique of the Monash City Council's handling of the aged care facilities.

(C) Council formed a 'secret' agreement to take expressions of interest We consider that it was accurate to state the council secretly agreed to take expressions of interests for the sale of the aged care facilities, as the council had begun taking expressions of interests from potential buyers before consulting with the residents.

(H) 'Council fled their chambers' and ‘were scared off by a bunch of octogenarians' We have reviewed this portion of the segment and it is clear from the footage that after a resident moved a 'No Confidence' motion at the council meeting, the councillors quickly packed up and left the chambers. Therefore, we believe this was an accurate assessment of what our reporter observed during the council meeting.


(l) Council is motivated by money, greed and secrecy Having reviewed the footage, the reporter asks ‘So Monash council, what's it to be? Money or care? Greed or common sense? Honesty or Secrecy?’ We consider that the ordinary reasonable viewer would understand these to be rhetorical questions, with the intention of criticizing the council for making decisions that were not in the best interest of the residents.

(ii) (A), (B) Cr Drieberg is an ‘inexperienced' 'schoolgirl' You have raised concerns that the comments put gratuitous emphasis on Drieberg's age and gender (clause 4.3.10) and that they provoke or perpetuate intense dislike, serious contempt or serious ridicule on the grounds of her age or gender (clause 1.9.6).

With regards to 4.3.10, we consider that it is quite clear that the above comments are merely opinions on Drieberg's degree of experience as a council mayor. The phrase ‘school girl’ (or ‘school boy’) is a common colloquialism for a person lacking experience and therefore there is no unjustifiable or ‘gratuitous emphasis’ on her age or gender.

With regards to clause 1.9.6, the Code provides that licensees must not broadcast material that is likely in all the circumstances to ‘provoke or perpetuate intense dislike, serious contempt or severe ridicule’ against a person or group of persons on the grounds of their age or gender’. The ACMA has stated that this clause sets a high threshold for the likely effect of prohibited material ‘the Code contemplates a very strong reaction to the prohibited behaviours land) it is not sufficient that the behaviours induce a mild or even strong response’. That is, the broadcast must in all the circumstances provoke or perpetuate intense, serious or severe feelings against the person or group on the basis of their age or gender.

We do not consider the comments 'inexperienced' and 'schoolgirl' to remotely approach the threshold of contempt or ridicule contemplated by clause 1.9.6.

(ii) Cr Drieberg (C) cannot give 'straight answers'; (D) has 'her head firmly in the sand' With regards to (ii)(C) we have reviewed the footage and our observation is that during the interview Cr Drieberg is not able to give sufficient or direct answers to our reporter regarding the sale of the facilities; therefore we believe this is an accurate observation of the circumstances. Regarding (ii)(D), this again is a political opinion forming part of the critique on the way Cr Drieberg was handling the aged care facility dispute.

(iii) Cr [name] is distracted by his 'pad during the council meetings You have raised concerns that this statement inaccurate because Cr [name] is using his iPad to refer to business papers during the council meeting. Having reviewed the footage and after consulting with our reporter we believe this is an accurate observation of what occurred at the council meeting. According to our reporter, Cr [name] was looking down at his iPad rather than making eye contact or giving the impression he was paying attention the ratepayers who were asking the council their (pre-approved) questions about the sale of their facilities.

The Second Segment (Aged Care Conflict) (i) the Councillors are (A) heartless, (C) engage in shameful treatment of the elderly, (F) are 'incompetent, (G) work for corporations, not tax payers, (H) put people a distant second to money, (J) betrayed the voters, (l) conduct themselves with 'Monash style democracy', (K) are dishonest

As we have explained earlier, we do not consider that the ordinary reasonable person would consider these to be statements of fact, but rather the opinions of Today Tonight forming part of their political critique Of the Monash City Council's handling of the aged care facility


situation. We have consulted with our reporter who has followed the development of this saga very carefully. According to our reporter, the council did not mention the private sale of aged care facilities during its election platform: then the following year the council began taking expressions of interest before consulting with residents of the facility, During subsequent council meetings open to the public, rate payers expressed their frustration that their questions for council had to be approved in advanced and in some cases were edited by staff members before they could be read in the public forum. Given the circumstances, we believe the comments above are a fair political critique.

We should also clarify that there is a distinct difference between a statement of fact and an opinion, particularly opinions that are the basis of political discussion. […] councillors are members of public office, there is an expectation that [they] will be scrutinized and that scrutiny and criticism can be particularly harsh when [they] are making policy decisions that are unpopular.

(B) Form policy on the run This statement is in response to the fact that our camera crew was allowed inside for the first council meeting and then barred from the subsequent meeting. Given this change of heart by the council, we believe the above statement is an accurate assessment of the situation.

(E) 'Fled' their chambers: Please refer to our comments at 2.2(a) (i) (H)

(ii) Cr Drieberg is a baby mayor' Please refer to our comments at 2.2 (a) (ii) (A), (B)

(iii) Cr Lake's ‘only contribution to public life was an X-rated rant against a disabled woman'

This is clearly a 'tongue-in-cheek' remark, and an ordinary reasonable viewer would understand it to be such. Obviously Cr Lake has made other contributions to public office as he is currently a city councillor. Again, we believe this is a political comment on Cr Lake's previous behaviour in public office.

[…]

(iv) Council Staff member […] is 'nasty' and would intentionally push an elderly man After reviewing the footage the presenter states, ‘Sadly, as Glenn Connley reports, things turned nasty'. In this respect, the presenter is referring to the tense situation outside of the council building between the protesters and the security staff, rather than making a direct accusation that [the Council employee] is nasty. We do not believe the report refers to him as ‘nasty’ in any way, whether it is in an explicit or an implied manner. Additionally, we do not consider the report suggests that [the Council employee] would intentionally push the elderly man. In fact, the reporter explicitly mentions that police were reviewing our pictures at the time the story went to air.

(c)(i) Councillors are 'jokers' whose political careers are over Again, this is a political opinion regarding the likelihood of the councillor's voting for the sale to be re-elected.

[…]

Additional Breaches of Clause 4.3.1


3.1 The report creates the impression that aged care facilities will be shut down and residents relocated

We do not consider any of the segments unfairly created the impression that the aged care facilities would be shut down or that the residents would be relocated. The primary focus of these segments was that council took expressions of interest without consulting the residents and the residents protested this approach and cited concerns that the level of care would decrease under a private provider. There were two instances where a family member and [a representative] from the nurses union raised concerns that the beds were not guaranteed to remain in the local community. These are not statements of fact, but clearly opinions of concerned stakeholders. Therefore we do not believe the report was inaccurate or misrepresented viewpoints.

3.2 and 3.3 The conduct of the reporter was provocative and inflammatory […] these circumstances is not covered by the Code. […]

3.4 and 3.5 The incident between [Council employee] and the elderly gentleman You have raised concerns that the report implies that [a Council employee] pushed the gentleman and over the statement by the presenter 'Things turned nasty’. After reviewing the footage, the statement by the presenter is referring to the standoff between protesters and hired security outside of the council building. It was also in reference to the fact that [the Council employee] appeared to take the protest sign out of the hands of the elderly gentleman who then had to rip it back out of [the Council employee’s] hands.

With regards to your concerns that the report implied [the Council employee] pushed the gentleman, the reporter states, ‘police are reviewing our pictures to assess whether an assault charge will be laid.’ At the time this report went to broadcast, the police were still investigating the matter. Clause 4.3.1 explicitly provides that current affair programs must ‘broadcast factual material accurately and represent viewpoints fairly having regard to the circumstances at the time of preparing and broadcasting the program.’ Therefore, we believe that having regard to the circumstances at the time of preparing the broadcast, this part of the segment was accurate and did not misrepresent the situation.

On the basis that we consider the reporting of this incident to be accurate, we do not believe that there are any ‘significant errors of fact’ to correct. Therefore, we do not consider clause 4.3.11 is applicable to any of the three reports.

3.6 Council was not contacted to provide their comments As we have stated earlier, the Code does not require current affair programs to present all or even opposing viewpoints on a matter being reported on.

To conclude, we believe the report was broadcast in accordance with clause 4.3.1, as well as 4.3.10 and 1.9.6. We trust this letter has adequately addressed your concerns.

[…]

Licensee submission to the ACMA – 16 June 2014

[…]

The ACMA has requested comments from Seven in relation to the Broadcasts' compliance with clause 4.3.1 (broadcast factual material accurately and represent viewpoints fairly), clause (reasonable efforts to correct significant errors of fact) and clause 4.3.10 (must not


portray any person...in a negative light by placing gratuitous emphasis on age...gender) of the Commercial Television Industry Code of Practice (Code).

As a threshold matter we would point out that the portion of the [complainant's] complaint dealing with the first broadcast (on 26 September 2013) is not a valid Code complaint as it was received over 30 days after the date of that first broadcast (clause 7.3-7.19). Accordingly we would respectfully argue that Seven should not be required to address the complaint insofar as it takes issue with the first broadcast. Nevertheless, given the ACMA has requested comments on the complaint which include the first broadcast, Seven has provided those comments.

1. Whether the broadcasts conveyed that the aged care facilities were going to be shut down and the residents relocated — first & second broadcasts

Clause 4.3.1 of the Code provides that 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’. Clause 4.3.1.1 also relevantly states that ‘An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety’.

1.1 Accuracy Seven does not accept the [complainant’s] argument that the Broadcasts convey that the aged care facilities (facilities) will be shut down and the residents relocated. Rather, the focus of the Broadcasts was that the residents and other stakeholders were upset with the consultation process (or lack thereof) taken by the council and were concerned that the facilities would no longer be operated with the care of the residents in mind, but rather for financial gain by a private company.

To the extent that shut down or relocation is mentioned, it is either positioned as a potential outcome only, or clearly limited to the opinion of concerned residents or stakeholders who feel they were not adequately consulted and therefore, understandably, fear the worst.

[…]

It is clear from these statements that the closure and/or relocation of the facilities was something the residents were concerned about and that this was a potential result of the sale of the facilities to a private operator. No statement was made that the facilities were in fact going to be shut down or relocated.

In any event, at no stage during the course of preparing and broadcasting the story, including the interview with Cr Drieberg, the September council meeting featured in the first broadcast, and the council meeting of 29 October 2013 referred to in the third broadcast (which our reporter was allowed to attend but not film), was any firm guarantee given by Council that beds would remain in their existing locations if a sale were to proceed. Therefore, we consider it entirely appropriate to include the legitimate concerns of the above interviewees on this matter and we consider that the Broadcasts were factually accurate, having regard to the information available to Seven at the time of preparing and broadcasting them.

It was accurate and legitimate for the Broadcasts to report the concerns of residents at the time that once the facilities were no longer publicly owned, there were no guarantees concerning a range of issues, including continuing standards of care or ongoing operation in the same location.


[…] the Council could never guarantee the way in which the facilities would be run, or how long they would remain operative, once they had passed into private hands […] there was no guarantee concerning future standards of care at the time of the Broadcast […]

1.2 Fair representation of viewpointsThe complainant has also raised concerns that the Broadcasts did not represent viewpoints fairly because ‘Today Tonight did not seek any additional comment on the decision to proceed with the sale prior to broadcasting the segments’.

Seven notes that the obligation of clause 4.3.1 does not import an obligation on the licensee to include all points of view in relation to an issue in debate. In fact, the ACMA has noted that ‘the Code does not prohibit current affairs programs from taking a critical stance on issues’ and that these programs are ‘not required to present all or even opposing viewpoints on a matter being reported on.’

Rather, the clause requires that, to the extent that viewpoints are broadcast, they must be broadcast fairy and not be misrepresented or misquoted. Therefore, to the extent the complaint is that Seven did not seek additional comments from the Council on its decision to proceed with the sale (including regarding the possible closure or relocation of residents), we note that this is not a requirement of clause 4.3.1 of the Code.

Despite the above, we would point out that: (a) Seven was prevented by the Council from filming the 29 October 2013 council meeting

and therefore could not present any viewpoints expressed by Council during the course of that meeting;

(b) our reporter contacted two councillors following that council meeting, but neither returned his call.

2. Whether the Council conducts itself undemocratically, secretively and without proper consultation — first, second and third broadcasts

2.1 Accuracy — Council is undemocratic With respect to the complainants' allegations that Seven inaccurately portrayed the Council as undemocratic, Seven considers this was fair comment or opinion expressed by the reporter based on what he observed during a public council meeting.

In the first broadcast, the reporter states that the Council conducts council meetings with ‘Monash style democracy’. In the second broadcast, the reporter states ‘tonight we see whether this is a democracy or a dictatorship’. Finally, in the third broadcast, ‘We were allowed in (to the council meeting) last time and we exposed a frightfully incompetent council and dismal excuse for democracy'.

These comments were made with reference to the impending decision by the Council to sell the facilities, a decision which was fiercely opposed by the electorate. We do not consider an ordinary reasonable viewer would understand these comments to suggest that the Council is generally undemocratic or dictatorial, but rather is a comment on it pursuing a highly unpopular policy that is opposed by a large proportion of the electorate. These comments were made in the context of our reporter's observed frustration of the public with the Council during the council meeting in September 2013 (filmed in the first broadcast). At that meeting, the Council limited questions to those that had been pre-approved, and in some cases, edited by Council, before they could be read aloud, and a prepared answer, sometimes bearing little resemblance to the question, was then read out. Even if such a process is sanctioned in the


Council's own Meeting Procedures […] that does not mean that the process is immune from criticism or that it should not be pointed out to viewers as an example of poor management by elected officials of a public consultation on a controversial issue.

Therefore we submit that the Broadcasts were accurate observations of the Council's processes and decision making regarding the proposed sale of the facilities.

2.2 Accuracy — Council conducts itself secretly and without proper consultation While Seven does not dispute that Monash City Council claims to be ‘committed to listening, responding and engaging with rate payers’, Seven considers that the Broadcasts accurately portray that the Council conducted the sale process for this particular project without proper consultation. It is clear from the Broadcasts that ratepayers were upset that the Council had made a decision to call for expressions of interest from prospective buyers before consulting with the residents and in circumstances where it had not referred to or campaigned in relation to a potential sale in the previous council election.

The residents' frustration with the process is communicated by the President for Victoria Rate Payers, Jack Davis in the first broadcast: […]

Criticism of the council's consultation process is also expressed by the local MP, Daniel Andrews in the second broadcast: […]

Additionally our reporter was told by the residents that the first notice of the Council taking expressions of interest was communicated to the residents via a flyer that the process was already underway. Therefore, having regard to the information available to our reporter at the time preparing the report, we submit that the Broadcasts accurately portrayed the Council's poor consultation process, however Seven rejects the allegation that the Broadcasts suggest that Council conducts itself in secrecy.

2.3 Fair representation of viewpoints In the first broadcast, when asked ‘Would you go to the people, go to the election on this?’ Cr Drieberg says ‘We’ve been communicating that we’re in the middle of an expression of interest process.’ And later, ‘It's understandable that some of our residents and our families are concerned and we're doing what we can every step of the way to support them.’ (the latter comment repeated in the second broadcast).

The above adequately conveys Cr Drieberg's viewpoint that the Council has engaged appropriately with stakeholders. In light of the above, Seven submits that it has represented the Council's viewpoint fairly on the democratic process & open community consultation.

As to the third broadcast, as members of the Council did not provide any viewpoints on the open community consultation process, and Seven did not purport to present any viewpoints of Council on the consultation process, Seven did not misrepresent any viewpoints of Council in that broadcast. Therefore, Seven submits that clause 4.3.1 in respect of viewpoints was not engaged by the third broadcast.

3. Whether the broadcast conveyed that a Council staff member would intentionally push an elderly man — third broadcast

3.1 Accuracy Seven maintains its position that the third broadcast does not convey that staff member […] intentionally pushed the elderly man on the council steps. The broadcast certainly did indicate that a claim had been made to this effect but it was clear from the report that the matter was


being investigated by police and no determination had yet been made. The broadcast shows a brief altercation between the protesting elderly man and a security officer which resulted in the elderly man falling to the ground and the reporter indicates that police were examining the footage to determine if an assault had taken place.

Seven rejects the allegation that the reporter 'was aware that the gentleman had tripped and not been pushed’. As the details of the altercation were not entirely clear and the injured gentleman alleged he was pushed at the time of preparing the material for broadcast, we consider it was responsible and accurate for our report to state, ‘police are reviewing our pictures to assess whether an assault charge will be laid’. The police did investigate, and eventually cleared [the Council employee] of any assault charges, but this was nearly a month after the third broadcast went to air.

Therefore Seven considers that the third broadcast was accurate, given the information available to Today Tonight at the time of preparing and broadcasting the program.

3.2 Fair representation of viewpoints As noted above, Seven is not required to include all points of view in relation to an issue in debate. In this instance, neither [the Council employee], nor the Council generally, provided any viewpoint on the altercation outside council chambers. Accordingly Seven did not misrepresent any such viewpoints and clause 4.3.1 was therefore not engaged by the third broadcast.

3.3 Correction of significant errors of fact (clause 4.3.11) Given Seven's submission that the third broadcast was accurate at the time of broadcast, in compliance with its obligations under clause 4.3.1, we submit that clause 4.3.11 is not applicable here.

4. Fair representation of viewpoints of Councillor Drieberg and/or the viewpoints of the Council — first and second broadcasts

4.1 Mayor Drieberg's interview Seven acknowledges that the interview between the reporter and Cr Drieberg has been edited, as is standard and common practice with television interviews. However, Seven submits the editing did not misrepresent Cr Drieberg's viewpoint, nor does it place gratuitous emphasis on her pauses.

Throughout the interview, the reporter repeatedly asks Cr Drieberg the same question (posed in slightly different ways each time) and Cr Drieberg responds to each question with what appears to be a scripted answer in very similar terms each time, occasionally preceded by an uncomfortable pause: […]

It is clear from Cr Drieberg's multiple similar answers that her (and the Council's) viewpoint is that they are in the middle of an expression of interest process. Although the piece is edited, Cr Drieberg's answers are not taken out of context, nor is her viewpoint misrepresented. The only viewpoint which Cr Drieberg expressed was the one broadcast by Seven.

With regards to Cr Drieberg's pauses, an ordinary reasonable viewer would understand that Cr Drieberg is being posed some challenging questions and her numerous pauses indicate her struggle to answer those questions. Therefore we do not consider the focus on her pauses was gratuitous, indeed those pauses highlighted her inability to provide meaningful answers.


Those questions were put to Cr Drieberg based on interviews with concerned residents about the lack of consultation on the proposed sell-off of aged care facilities by the Council, and Cr Drieberg, as the head elected official of that Council, should have been in a position to answer those questions articulately.

4.2 Inflammatory and inaccurate words about Monash Council / Failure to seek additional comments from Council

Seven has already adequately addressed the numerous, individual words that the [complainant] set out at length in [the] complaint. To re-iterate, Seven considers the Broadcasts were fair and accurate political critiques of the Council's decision to sell the facilities.

Seven submits that the critique of political decisions is not prohibited by the Code. Indeed, there is an overwhelming public interest in such stories, as a primary function of the media is to scrutinize the decisions of our public officials. Sometimes this may include inflammatory or even insulting language in cases of highly unpopular policies, such as in this instance. This does not mean the story is one that should not be told.

With regards to the complaint that Seven failed to seek additional comments from the Council, we do not believe this was necessary under the Code. The broadcasts contained numerous comments from Cr Drieberg who as mayor, could be considered to more than adequately speak on the Council's behalf. In addition, as previously noted, our reporter did contact two other councillors following the council meeting referred to in the third broadcast, but neither returned his call.

There is no obligation to represent all viewpoints in a current affairs story. In these Broadcasts, those viewpoints that were represented, were presented accurately and fairly.

5. Whether there was gratuitous emphasis on age and gender — first and second broadcasts

Clause 4.3.10 of the Code provides that in broadcasting a news program, licensees ‘must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference’. The ACMA has stated that this clause ‘aims to prevent treatment that is so out of proportion with the matter reported on, that without justification, a person or group from those categories is cast in a negative light’.

Seven understands that the [complainant] takes issue with the following statements (emphasis added):

First broadcast — Reporter: ‘the Council, which includes inexperienced mayor Michaela Drieberg…probably expected the oldies to just lie down and cop it...’

First broadcast — Reporter: ‘Despite residents' best intentions…question after question was batted down, While some councillors fiddled with their iPads rate payers were ignored and fobbed off, one by one…supposedly in the name of commercial confidence. Mayor Michaela ploughed on like a school-girl reading a bad essay.’

First broadcast — Reporter: ‘And here's the first lesson these baby-faced councillors learnt the hard way pick a fight with Australia's grey army at your peril.’


Third broadcast — Reporter: ‘Predictably, baby Mayor Micaela Drieberg led the betrayal of the elderly.’

We would make the following comments about the above four statements When viewed in the context of the broadcasts.

The references to ‘school-girl’ ‘baby mayor' and ‘baby-faced councillors’ is clearly aimed at contrasting the relative youth of the council members making important decisions on aged care policy, with the elderly ratepayers who will be most affected by those decisions (see emphasis above). To this extent, we would submit that any reference to age was not gratuitous but a central part of the report.

Seven submits that it is the critique of the policy decisions and the lack of community consultation that places Cr Drieberg and the Council in a negative light rather than through a disproportionate emphasis being placed on their age or gender. Seven submits that an ordinary reasonable viewer would not consider Cr Drieberg or other members of the Council unpopular because of their age or gender, but rather their policy decisions. Therefore, Seven submits that the broadcasts comply with clause 4.3.10 of the Code.

Conclusion In summary, this was a robust piece of campaign journalism […] elected public officials should expect to be scrutinised on their policy decisions and Seven respectfully submits that the Broadcasts did just that, in compliance with the Code.

[…]


Attachment D

Some considerations to which the ACMA has regard in assessing whether or not particular content is factual material for the purposes of the Code 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.


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