Investigation Report No. 3054File no. ACMA2013/864

Licensee Harbour Radio Pty Limited

Station 2GB

Type of service Commercial Radio

Name of program Ray Hadley Morning Show

Date of broadcast 18 February 2013

Relevant Codes Clauses 2.2(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2011

Date finalised 21 February 2014

Decision No breach of clause 2.2(a) [accuracy in current affairs programs]Breach of clause 5.5 [response to complaints]

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

The complaintThe Australian Communications and Media Authority (ACMA) received a complaint about the program, the Ray Hadley Morning Show, broadcast on 18 February 2013 by Harbour Radio Pty Limited, the licensee of 2GB Sydney (the licensee).

The complainant alleged that Mr Hadley made an inaccurate statement because he “referred to refugees as ‘illegal boat people’”.

The complainant did not receive a response from the licensee to his complaint, and complained to the ACMA.

The investigation has considered the licensee’s compliance with clauses 2.2(a) [accuracy in current affairs programs] and 5.5 [response to complaints] of the Commercial Radio Australia Codes of Practice 2011 (the Codes).

The programThe Ray Hadley Morning Show is a morning program broadcast on weekdays from 9.00 am to 12.00 pm. The program is described on 2GB’s website as follows:

The Ray Hadley Morning Show brings you the latest news, sport, traffic and weather, with hard hitting political interviews and commentary. Ray has a reputation for breaking news, and loves to hear from listeners on the open line and via email.1

It is a current affairs program for the purposes of the Codes.2

On 19 February 2013, Mr Hadley discussed budget estimates released by the Government for asylum seeker3 arrivals, comparing budgeted estimate figures with actual cost figures.

Mr Hadley commenced his discussion on the subject with the following statement:

Just going back to the cost of illegal boat people and the announcement made by the Treasurer and Deputy Prime Minister about all of this – comparison of asylum budget for 2012/2013.

A transcript of the broadcast is at Attachment A.

AssessmentThis investigation is based on submissions from the complainant, the licensee’s submissions on a similar issue in investigation 3063,4 the initial complaint made to the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources have been identified where used.

1 http://www.2gb.com/index.php?option=com_content&task=view&id=25&Itemid=39, accessed 2 December 2013. 2 The Codes define a ‘current affairs program’ to mean:

a program a substantial purpose of which is to provide interviews, analysis, commentary or discussion, including open-line discussion with listeners, about current social, economic or political issues.

3 In this report, the ACMA has used ‘asylum seekers’ to refer to persons who arrive in Australia by boat without a visa.

4 The licensee did not respond to the opportunity to make submissions in this investigation (that is, investigation 3054).

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

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

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

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.5

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn.

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether or not that material has breached the Codes.

Issue 1: Accuracy

Relevant clause of the Codes News and Current Affairs Programs

2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a) factual material is reasonably supportable as being accurate;

[...]

Complainant’s submissionsThe complainant submitted to the licensee in an online complaint form that:

Between 9.30 – 10.00 am, the broadcaster Ray Hadley referred to refugees as ‘illegal boat people’. In fact it is not illegal to seek asylum in Australia. Under Australian law, it is never illegal to apply for refugee status here, no matter how you arrive. Talk of ‘illegal’ or ‘unauthorised’ boat arrivals or ‘illegal immigrants’ is prejudicial and wrong in law. The Australian Press Council specifically recommended in 2009 that the media not use these descriptions of refugees.

Licensee’s submissionsThe licensee did not make any submissions to the ACMA on the use of ‘illegal’ in the broadcast. However, the ACMA has also considered the use of ‘illegal’ with reference to asylum seekers in the context of an investigation into another complaint about an earlier broadcast of the program6. During the course of that other investigation, the licensee submitted to the ACMA that:

[...]

5 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. 6 Investigation 3063 into a broadcast of the Ray Hadley Morning Show on 21 November 2012.

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

In essence, the presenter has described person[s] arriving by boat as illegal entrants.

[...]

The Migration Act 1958 provides unequivocal substantiation for a description of non-citizens arriving without visas in Australian waters by boat as unlawful non citizens.

[...]

The Macquarie Dictionary includes the following definition of unlawful:

1. not lawful; contrary to law; illegal; not sanctioned by law

Clearly the terms ‘unlawful’ and ‘illegal’ are proximate, if not identical, in meaning – both from an ordinary usage and a legal perspective.

Mr Hadley’s description of non-citizens arriving without visas in Australian waters by boat as illegal is expressly supported by the Migration Act.

[...]

In our view, Mr Hadley’s use of the description ‘illegal’ is substantiated by Commonwealth legislation.

FindingThe licensee did not breach clause 2.2(a) of the Codes.

ReasonsIs the statement ‘factual material’?Clause 2.2(a) of the Codes applies to the presentation of factual material in current affairs programs. Accordingly, the ACMA must first determine whether the relevant material amounts to factual material or the expression of an opinion. The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment B.

The ACMA notes that the talk-back format is a common feature of current affairs programs providing analysis, commentary and discussion with listeners about current social, economic or political issues. Such programs frequently approach matters from a strong viewpoint and the ACMA acknowledges that this is part of their appeal or value to listeners and in the broader context of public discourse.

In this context, much of what is said on talk-back radio will be in the nature of opinion. However, care must be taken where factual material forms the basis of the opinion expressed in a current affairs broadcast.

Where a current affairs talk-back program, such as the Ray Hadley Morning Show, includes factual material, clause 2.2(a) of the Codes requires that the licensee must use reasonable efforts to ensure that it is reasonably supportable as being accurate.

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

Mr Hadley’s reference to asylum seeker arrivals as ‘illegal’ (in bold) was made in the following context:

Just going back to the cost of illegal boat people and the announcement made by the Treasurer and Deputy Prime Minister about all of this – comparison of asylum budget 2012/2013. The budget for 2011/2012 was $1.1 billion; the actual cost was $1.4 billion. 2012/2013 the budget was, would you believe, less than the budget for 2011/2012 – I don’t know how they figured that out but anyway – it was $1.1 billion; the actual cost will be $2.2 billion. And this is where it gets stupid. Wayne Swan has budgeted for 2013/2014 of $950 million; he says the actual will be $1.3 billion. He says 2014/2015 he’s budgeted $871 million; the actual will be $451 [million]. And then 2015/2016 he’s budgeted for $833 million; he says the actual will be $338 [million].

The ACMA considers that the statement, with references to both ‘illegal boat people’ and ‘asylum budget’, would have conveyed to an ordinary, reasonable listener that the Government had released its budget for the costs of asylum seekers, being persons who have entered Australia without authorisation by a particular mode of transport – by boat.

The ACMA is satisfied that the relevant statement is factual material – it was made unequivocally, in the context of a discussion that included reference to specific figures and timeframes, and was capable of independent verification (in that it was made with reference to a Government budget announcement concerning asylum seekers).

Did the licensee use reasonable efforts to ensure the statement was ‘reasonably supportable as being accurate’?As factual material, the ACMA’s next consideration is whether or not reasonable efforts were made to ensure that the statement was ‘reasonably supportable as being accurate’ at the time of broadcast.

What efforts are reasonable in a given situation will depend on all the relevant circumstances. Clause 2.2(a) does not impose an absolute or best efforts obligation to ensure factual material is reasonably supportable as being accurate, however the material relied upon to support the accuracy of a fact should be commensurate with the nature and context of the subject matter.

Use of ‘illegal’ with respect to asylum seekers generally

Potential to mislead

At the outset, the ACMA notes that the use of ‘illegal’ with reference to asylum seekers has the potential to be misleading. It may, depending on the context in which it is used, give listeners the false impression that asylum seekers have committed a crime by coming to Australia, that their presence in Australia is illegal, or even that their claim for asylum lacks validity.

As explained below, it is not illegal for a person to seek asylum in Australia. Australia is a signatory to the Refugee Convention,7 and the Refugee Convention permits a person arriving in the territory of a signatory nation without authorisation to nonetheless seek asylum in certain specified circumstances.8 7 The United Nation’s 1951 Convention Relating to the Status of Refugees, text available at

http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed 2 December 2013.8 Set out in Articles 1 and 31 of the Refugee Convention.

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

The ACMA is aware that a number of prominent publications caution against using the term ‘illegal’ in reference to asylum seekers. These publications include advisory guidelines issued by the Australian Press Council9 and a research paper from the Department of Parliamentary Services10, which both caution against the use of ‘illegal’ as it may, in some contexts, imply a criminal offence.

In addition, the United Nations High Commissioner for Refugees does not use or encourage the use of the term ‘illegal’ in relation to asylum seekers, and the then Department of Immigration and Citizenship11, at the date of broadcast, used the terms ‘irregular maritime arrivals’ and ‘unauthorised maritime arrivals’ in its publicly available information.12

The Migration Act

Under the Migration Act, persons who arrive in Australia without a visa are ‘unlawful non-citizens’ until such time as a visa is granted, whether the entry into Australia is for asylum reasons or otherwise. 

Subsection 14(1) of the Migration Act defines ‘unlawful non-citizen’:

A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

Also, section 42 of the Migration Act provides that, subject to certain limited exceptions, ‘a non-citizen must not travel to Australia without a visa that is in effect’. As a result, it is contrary to section 42 of the Migration Act for a non-citizen to come to Australia without a valid visa.

The operation of the Migration Act means that the entry of non-citizens into Australia without a visa is not legally authorised.

Common usage

The on-line Macquarie Dictionary defines:

‘illegal’ as ‘not legal; unauthorised’

‘unlawful’ as ‘not lawful; contrary to law; illegal; not sanctioned by law’ [emphasis added].13

While the ACMA notes that the Migration Act uses the term ‘unlawful’, the dictionary definitions indicate that ‘illegal’ and ‘unlawful’ are proximate in meaning and can be used interchangeably, and that ‘illegal’ does not necessarily impute criminality but can, depending on the context, also mean the absence of authorisation.

The on-line Macquarie Dictionary cites the term ‘illegal immigrant’ under its entry for ‘illegal’ as an example of colloquial Australian usage.

The ACMA notes that this suggests that the use of ‘illegal’ with respect to unauthorised immigrants has entered the Australian vernacular.

9 http://www.presscouncil.org.au/document-search/asylum-seekers/, accessed 2 December 2013.10http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library/prspub/HGNW6%22 , accessed 2 December 2013.  11 From October 2013, the Department of Immigration and Citizenship became the Department of Immigration and

Border Protection. 12 The Department recently reviewed its terminology and now uses ‘illegal maritime arrivals’:

http://www.immi.gov.au/ima/en/arrived/, accessed 2 December 2013.13 From the Macquarie Dictionary Online at http://www.macquariedictionary.com.au/, accessed 2 December 2013

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

Although the on-line Macquarie Dictionary cites ‘illegal immigrant’ as an example of colloquial usage, it is not interchangeable with phrases such as ‘illegal boat people’ or ‘illegal’ asylum seekers. In particular, ‘illegal immigrant’ is broader in meaning and includes people who enter Australia lawfully (that is, with a visa) but overstay their visa:

an immigrant to a country who is deemed to be illegal because they have arrived without prior authority from the government of that country, as in the form of a visa, or because they have stayed beyond the time allowed by their visa.14

Refugee Convention

The Refugee Convention is ‘the key legal document in defining who is a refugee, their rights and the legal obligations of states’15 and specifically refers to the ‘illegal entry’ of refugees who enter a territory without authorisation.

Article 31 of the Refugee Convention provides:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

[...]

While the Codes do not contain guidelines on the portrayal of asylum seekers, the ACMA considers licensees should exercise care when broadcasting factual material about this complex and sensitive topic.

Use of ‘illegal’ in the broadcast

The complainant submitted that the reference to ‘illegal’ boat people was factually inaccurate because ‘it is not illegal to seek asylum in Australia’.

In a related investigation, the licensee submitted that it discharged its reasonable efforts obligation with respect to clause 2.2(a) by relying on the Migration Act and the Macquarie Dictionary.

The ACMA makes these observations about the use of ‘illegal’ in the context of the broadcast:

the overall subject matter of the broadcast was the budget for asylum seeker arrivals in Australia, and the difference between the Government’s projected figures and the actual asylum seeker budget; and

there was no discussion of why people seek asylum or the validity of their claims for asylum.

In this instance, the ACMA considers that ‘illegal’ was used to describe the manner in which the asylum seekers arrived in Australia, and the ordinary reasonable listener would have understood the broadcast to convey that their arrival into Australia was without authorisation.

The ACMA considers that, based on the Migration Act, Refugee Convention and common usage, the use of ‘illegal’ with respect to asylum seekers is reasonably supportable as 14 From the Macquarie Dictionary Online at http://www.macquariedictionary.com.au/, accessed 2 December 2013.15 http://www.unhcr.org/pages/49da0e466.html, accessed 2 December 2013.

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

accurate where it is used to convey that their arrival or entry into Australia was without authorisation.16

Accordingly, the licensee discharged its reasonable efforts obligation by relying on the Macquarie Dictionary and the Migration Act and did not breach clause 2.2(a) of the Code. Nevertheless, the ACMA considers that the term ‘illegal’ with reference to asylum seekers should be used only with great care, due to its dependence on context.

Issue 2: Complaints handling

Relevant Code clause

Complaints

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.[...]

FindingThe licensee breached clause 5.5 of the Codes.

ReasonsClause 5.5 requires, inter alia, that the licensee respond substantively to complaints within 30 business days of receipt. Where a substantive response is not possible within the timeframe, licensees must acknowledge receipt of the complaint within 30 business days and then provide a substantive reply within 45 business days.

The complainant sent his complaint to the licensee on 18 February 2013. The licensee confirmed to the ACMA that it received the complaint and that it did not respond. The licensee has not made any specific submission as to why it did not respond to the complainant in this case.

Accordingly, by failing to acknowledge receipt of the complaint and provide a substantive response to the complaint within the required timeframe, the licensee breached clause 5.5 of the Codes.

16 The ACMA notes that the ABC’s Fact Check recently came to the same conclusion – see http://www.abc.net.au/news/2013-09-06/morrison-correct-illegal-entry-people/4935372 .

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

Attachment ATranscript – Ray Hadley Morning Show – Broadcast 18 February 2013

Ray Hadley: One of my listeners on 2CC in Canberra, Mark said ‘Ray, if you want to hear an apologist from the Government don’t wait for Messrs Bradbury and Emerson. Andrew Leigh, the ALP member down here on 2CC today said the polls were flawed! Have a listen as he says the polls are truly at 50/50 – what a joke. This guy is in la-la land, he must be delusional.’

Just going back to the cost of illegal boat people and the announcement made by the Treasurer and Deputy Prime Minister about all of this – comparison of asylum budget 2012/2013. The budget for 2011/2012 was $1.1 billion; the actual cost was $1.4 billion. 2012/2013 the budget was, would you believe, less than the budget for 2011/2012 – I don’t know how they figured that out but anyway – it was $1.1 billion; the actual cost will be $2.2 billion. And this is where it gets stupid. Wayne Swan has budgeted for 2013/2014 of $950 million; he says the actual will be $1.3 billion. He says 2014/2015 he’s budgeted $871 million; the actual will be $451 [million]. And then 2015/2016 he’s budgeted for $833 million; he says the actual will be $338 [million].

Bill phoned through from the M2, for people in Sydney, four cars involved in an accident under the Pennant Hills road fly over, west bound on the M2 ...

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013

Attachment BConsiderations to which the ACMA has regard in assessing whether or not broadcast material is factual in character The primary consideration is whether, according to the natural and ordinary meaning of

the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion. In that regard, the relevant statement must be evaluated in its context, i.e. contextual

indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

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

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

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ACMA Investigation Report 3054 – Ray Hadley Morning Show broadcast by 2GB on 18 February 2013