Investigations... · Web viewChannel Seven Brisbane Pty Ltd. Station. BTQ Brisbane

Investigation Report 2741File No. ACMA 2011/1958

Broadcaster Channel Seven Brisbane Pty Ltd

Station BTQ Brisbane

Type of service Commercial television broadcasting service

Name of program Sunday Night

Date of program 4 September 2011

Relevant Code Clauses 4.3.1, 1.5.2 and 1.9.6 of the Commercial Television Industry Code of Practice 2010

Date finalised 6 August 2012

Outcome Channel Seven Brisbane Pty Ltd:

did not breach clause 4.3.1 of the Code in relation to the reference to ‘stone age’;

did not breach clause 4.3.1 of the Code in relation to the references ‘lost tribe’ and ‘lost world’;

breached clause 4.3.1 of the Code in relation to the statement ‘Here, we’re outside the protection of Brazilian law’;

breached clause 4.3.1 of the Code in relation to the statements, ‘These lost tribes encourage the murder of disabled children’ and ‘The Suruwaha believe that children born with birth defects or born to a single mother are evil spirits and should be killed in the most gruesome way possible’;

breached clause 1.9.6 of the Code; and

in relation to the manner in which the Suruwaha tribe was depicted, the ACMA makes no finding in relation to the licensee’s compliance with clause 4.3.1

ACMA Investigation Report 2741 –Sunday Night– BTQ – 4 September 2011

The complaintThe Australian Communications and Media Authority (the ACMA) received a complaint about the program, Sunday Night, broadcast by Channel Seven Brisbane Pty Ltd, the licensee of BTQ, on 4 September 2011. The complainant submitted that the program about the Suruwaha Amazon tribe was factually inaccurate and racially offensive.

The complainant was not satisfied with the response provided by the licensee and complained to the ACMA.1

The investigation has considered the licensee’s compliance with clauses 4.3.1 [factual accuracy] and 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of ethnic origin] of the Commercial Television Industry Code of Practice 2010 (the Code).

The programSunday Night is a one hour current affairs program and is broadcast at 6.30 pm on Sundays. On 4 September 2011, the relevant segment ran for approximately 20 minutes and reported on the Suruwaha tribe in the Amazon jungle in Brazil.

The segment featured the reporter and an author and adventurer (referred to here as PR) as well as officers from Brazil’s Department of Indian Affairs travelling through the Amazon jungle and meeting the Suruwaha people. The report filmed the Suruwaha hunting, conducting rituals and living their daily life and included interviews with two young Suruwaha men, A and W, and a human rights lawyer (referred to here as MB). It also filmed a Suruwaha mother and child in São Paulo, Brazil.

A transcript of the broadcast is at Attachment A.

AssessmentThe ACMA’s assessment is based on written submissions from the complainant and the licensee and a copy of the broadcast provided by the licensee. Other sources used have been identified where relevant.

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

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

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs2.

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, 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).

1 See section 148 and subsection 149(1) of the Broadcasting Services Act 1992 in respect of the ACMA’s role in investigating complaints under codes of practice.

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

ACMA Investigation Report 2741 –Sunday Night– BTQ – 4 September 2011 2

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

Issue 1: Presentation of factual material

Relevant Code ClauseNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

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

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

Compliance with Code

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

...

1.5.2 reasonable reliance on information supplied by another person.

The considerations which the ACMA generally applies in determining whether a statement complies with the licensee’s obligation to present factual material accurately are set out at Attachment B.

SubmissionsThe key extracts from submissions from the complainant and licensee are set out at Attachments C and D respectively.

FindingsThe licensee:

did not breach clause 4.3.1 of the Code in relation to the reference to ‘stone age’;

did not breach clause 4.3.1 of the Code in relation to the references ‘lost tribe’ and ‘lost world’;

breached clause 4.3.1 of the Code in relation to the statement ‘Here, we’re outside the protection of Brazilian law’;

breached clause 4.3.1 of the Code in relation to the statements, ‘These lost tribes encourage the murder of disabled children’ and ‘The Suruwaha believe that children born with birth defects or born to a single mother are evil spirits and should be killed in the most gruesome way possible’; and

in relation to the manner in which the Suruwaha tribe was depicted, the ACMA makes no finding in relation to the licensee’s compliance with clause 4.3.1

Reasons For FindingsStatement 1: ‘Stone age’

The report made references (in bold) to ‘stone age’ in the following contexts:


Presenter:… [Reporter] is the first person to document at length the stone age existence of Brazil’s Suruwaha people…

PR: You press a button and suddenly, you’re in the stone age, you’re really there!

Reporter: … We’re being taken by officers from Brazil’s Department of Indian Affairs to one of the world’s last and most isolated stone age tribes…

Reporter: …Here, A is arming a blowpipe with poison darts. So this is one of the marvels of stone age technology.

PR: I believe this is one of the most profound questions facing the world today. What to do with these stone age tribes?

What would the references have conveyed to an ordinary reasonable viewer?

The ACMA considers that the term ‘stone age’ was used in a broad sense in line with the Dictionary definition provided by the licensee which extends to ‘pertaining to, characteristic of, or resembling (that of) the Stone Age’; fig primitive, outmoded’.

Taking into account the report in its entirety, the ACMA considers that the ordinary, reasonable viewer would have understood the references to ‘stone age’, as meaning that the Suruwaha were living an unsophisticated lifestyle, similar to the lifestyle that people would have led during the Stone Age period, as opposed to a claim that the Suruwaha people were technically or literally living a ‘stone age’ existence in terms of the absence of any metal tools. In this regard, the ACMA accepts the licensee’s submission that, having regard to the context in which the references were made, it is apparent that the term referred to the Suruwaha’s apparent unfamiliarity with modern day items such as mirrors, books and electrical equipment and the hunting rituals and tools used by the Suruwaha people.

Was the information conveyed accurate?

The issue to determine is whether the impression conveyed by the broadcast that the Suruwaha tribe are living an unsophisticated lifestyle similar to that which people would have led during the Stone Age period, albeit with the use of metal rather than stone tools, is accurate.

In considering the licensee’s colloquial use of the term “stone age” to denote the type of lifestyle the Suruwaha are living, the ACMA accepts that the Suruwaha are living a lifestyle that is different to the modern day lifestyle most people are accustomed to, in the sense that they appear to live, largely, without the routine use of modern amenities such as electricity, motorised transport and telecommunications.

To the extent that the lifestyle of the Suruwaha people can be considered to have some, if not all, of the characteristics of the lifestyle led during Stone Age period, the ACMA considers that the use of the term ‘stone age” was not inaccurate in this context.

Statement 2: ‘lost tribe’ and ‘lost world’

The report made references (in bold) to ‘lost tribe’ and ‘lost world’ in the following contexts:

Reporter: The more I got to know them, the clearer it became that there were other more disturbing practices. These lost tribes encourage the murder of disabled children.

Reporter: There is good and evil in this lost world, but there are no easy answers as to what will or should happen next.

What would the references have conveyed to an ordinary reasonable viewer?


The ACMA considers that the terms ‘lost tribe’ and ‘lost world’ would have conveyed to the ordinary, reasonable viewer that the Suruwaha tribe is relatively isolated from others and/or ‘modern day’ people. The following statement indicates that ‘few’ people are ‘allowed in’ to see the tribe, thus reinforcing the impression that the tribe has had little contact with ‘modern day’ people.

Reporter: …To protect the Amazon Indians, the government has closed off this region to the outside world. Only a few are ever allowed in…


The issue to determine is whether the impression conveyed by the broadcast is accurate.

The complainant provided advice from archaeologists indicating that the tribe has had ‘regular contact with both governmental agencies and nongovernmental organisations since the early 1980’s’ and ‘about half of all living Suruwaha’ have visited various cities. The complainant also provided media reports indicating that members of the tribe have travelled to cities for medical treatment and referred to various films taken of the tribe.

The licensee submitted that the tribe’s contact with the ‘outside world’ has been infrequent since the 1980’s, given that contact was forbidden by the National Indian Foundation, Funai, a number of years ago, and is limited to seeking medical treatment. The licensee provided translated interview transcripts with a Funai official, a Suruwaha tribe member and advice from PR supporting its submission.

Having considered the submissions provided, the ACMA accepts that Funai, the National Indian Foundation, restricts outside contact with the Suruwaha. The Brazilian magazine, Veja, published an article on 9 November 2011 regarding the licensee’s contact with the Suruwaha:

It is estimated that at least seventy tribes remain isolated in the Amazon. Funai restricts any contact with these people. Last July, Funai decided to make an exception. The organisation authorised entry of a news crew from Channel 7, Australia, into the land of the Indians Suruwaha in southern Amazonas...3

While the complainant and the licensee have provided conflicting submissions regarding the extent to which the Suruwaha have travelled outside the Amazon, the ACMA notes that it does not appear to be in dispute that the Suruwaha have travelled to South American cities on occasion to seek medical treatment. Given the isolation of the Suruwaha in the Amazon jungle and government’s restriction on contact with the tribe, the ACMA finds that the impression conveyed by the broadcast that the tribe is relatively isolated ‘from modern day’ people is not inaccurate.

Statement 3: The manner in which the Suruwaha tribe was depicted

The complainant submitted that the licensee breached clause 4.3.1 of the Code by instructing those Suruwaha who were wearing Western clothing when the film crew arrived to take that clothing off before filming commenced. Clause 4.3.1 does not require that a representation be by way of verbal statements. Accordingly, an inaccurate visual representation may contravene the provision.

3 The complainant provided a copy of the article and a translation.


In support of the submission, the complainant provided an email from the film crew’s guide, [the guide], who stated that:

When it came to clothing, [PR] and [the reporter] had an attitude of wanting to show only the 'strongest and best-looking' Suruwaha, without industrialised clothes, like caps or T-shirts (present today in the village, used mainly for fishing and hunting trips).

The licensee has strongly disputed the complainant’s claim and submitted that:

Seven was completely reliant on [the guide] to communicate with the tribe. Therefore, even if Seven’s reporter or [PR] had wanted to insist the Suruwaha remove items of clothing or act in a manner that was inconsistent with their way of life or culture (which they did not), it can only be assumed that such a request would not have been translated by [the guide] and that Seven’s reporter and [PR] would have followed any advice given by [the guide] as to what was appropriate in dealing with the Suruwaha and accurately recording their way of life.

The licensee also provided photographs of the Suruwaha taken months before the licensee’s crew arrived depicting members of the tribe naked with some wearing decorative body paint, and unedited footage of the reporter’s arrival at the Suruwaha territory.

The issue in contention is whether the licensee’s crew asked their guide and interpreter, to instruct the Suruwaha to remove Western caps and t-shirts. The guide has advised the complainant that this was the case, however, the licensee rejects that its crew made such a request.

The ACMA has been presented with conflicting information and no independent corroboration of either version. In these circumstances, the ACMA makes no finding in relation to compliance with the code.

Statement 4: ‘Here, we’re outside the protection of Brazilian law’

The statement above was made in the following context (in bold):

A female tribe member: He’s looking at me. That tall white man there [in subtitles].

Reporter: But then the mood changes.

A tribe member: Don’t touch him, don’t touch him!

Reporter: There are threats of murder.

PR: Who wants to kill me? The girl? She wants to kill me?

Department of Indian Affairs Officer: Because she’s scared.

PR: Did you hear that? The girl wants to kill me because she’s scared.

Reporter: Here, we’re outside the protection of Brazilian law.

PR: We were in Suruwaha land, their laws apply. Had we been killed on that spot, the Brazilian government would not have punished those Indians.

The ACMA considers the statement to be factual content as it was presented in a conclusive and unequivocal manner.

The question for the ACMA is what would have been conveyed by this information to the ordinary reasonable viewer who would not have had knowledge, detailed or otherwise, of the Brazilian legal system and/or its application to the peoples concerned. The ACMA considers


that the viewer would have understood that had a crime been committed, specifically had the Seven reporters been killed, Brazilian law would not apply, and accordingly the Brazillian government could not have investigated or pursued a charge of murder against the perpetrators and that therefore they would not have been punished. The key point being that Brazilian law does not apply to the Suruwaha tribe and that only Suruwaha law applies in Suruwaha land.

The complainant submitted that the relevant statement was inaccurate and, in support, referred to Article 56 of the Indian Statute which, ‘requires courts when sentencing an Indian convicted of a criminal offence to take into account of his or her degree of acculturation’. The complainant provided a translation of Article 56:

In the case of the conviction of an Indian for a penal infraction, the penalty should be reduced and in its application, the Judge should take into consideration the Indian’s level of integration.

Sole-paragraph. Penalties of detention or isolation should be observed, where possible, in a special regime of semi-liberty, in the work place of the federal organ assisting Indians, as close as possible to the residence of the convicted.

The licensee provided comments made by a Funai official and PR who said:

For people that are isolated people or recent contact, they don’t live in our laws. The laws that we live in, under [sic], we created them based on our needs and they don’t have the knowledge of this kind of laws [sic]. They live in another dimension. There is no way for us to obligate them to live under the laws we live in.

…

Funai policy is not to interfere with their traditional practices such as infanticide even when Funai is aware of such practices contravene Brazilian law [sic]. They do not investigate and call in the police if Brazilian law has been transgressed.

There was an uncontacted tribe not far from us when we trekked into Suruwaha territory. [the guide] warned us just before we left that if we were attacked and killed by this tribe then under Funai policy they would not be investigated and certainly not punished. He warned us that the same went for the Suruwaha if they wounded or killed us…

The licensee provided PR’s account of a particular incident involving members of an isolated tribe in the Amazon attacking ‘three white men’ where a magistrate agreed that they would not be tried under Brazilian law.

The licensee also relied on a segment of the US current affairs program, Nightline, titled ‘Missionaries Accuse Indians of Killing Babies’, which stated that:

The Brazilian government has tried to discourage infanticide but the Department of Indian Affairs does not have a policy that requires action to stop it from happening.

In an interview here in the Brazilian capital, [AV] of the Department of Indian Affairs says that the state is not “in favour of death” but that it would be dangerous to criminalise indigenous actions.4

The submissions put forward by the licensee indicate that anecdotal accounts suggest that in practice, authorities are disinclined to pursue criminal matters, that the Suruwaha people did

4 http://abcnews.go.com/Nightline/story?id=5861778&page=1


http://abcnews.go.com/Nightline/story?id=5861778&page=1

not live by or necessarily understand traditional Brazilian laws and that Funai policy is not to pursue relevant matters.

The ACMA does not consider that such anecdotal evidence adequately supports the impression conveyed by the broadcast that Brazilian law does not apply to the Suruwaha people. Just because there is a general practice or policy not to pursue criminal matters against the Suruwaha people, does not mean that the relevant law does not apply to them or that in certain circumstances, a Suruwaha member would not be prosecuted to the fullest extent of Brazilian law, were they to commit a crime. In fact Article 56 of the Indian Statute clearly indicates that an Indian may be convicted ‘for a penal infraction’.

In response to the Preliminary Investigation Report, the licensee submitted that:

Seven has since sought further advice from [human rights lawyer PB] about the accountability of isolated Indians of the Amazon and the way in which a judge exercises its discretion under Article 56 of the Indian Statute. [PB] has provided Seven with the following advice:

“The doctrine and jurisprudence, in Brazil, settled the understanding of art. 26 of the Criminal Code, that the isolated Indians are compared to the agent who has incomplete or retarded mental development…because he [the Indian] could not understand the illicit character of the fact.

Article 26 of the Criminal Code relevantly provides that:

“Unimputable

26 – is exempt from punishment the agent for mental illness or incomplete or retarded development, was at the time of the action or omission, entirely unable to understand the illicit character of the fact or determined in accordance with this understanding”

Seven requested copies of judgements to further substantiate Seven’s submissions – that isolated Indians are exempt from punishment under Brazilian law – to which [PB] responded:

“they are reported to the judicial system. They stop in the preliminary investigations by the police (if they are investigated, which is very rare), with the argument that they are cultural cases”.

…

Should the ACMA remain of the view that the information in the report was not presented accurately, Seven submits that a no breach finding should be made on the basis of clause 1.5.2, which allows for any failure with clause 4.3.1 of the Code if that failure to comply was due to reasonable reliance on information supplied by another person. Indeed, Seven was entirely reliant on information provided to it by experts in the area and who were from the relevant jurisdiction. It was reasonable for Seven to rely on statements independently provided by a respected Brazilian lawyer who specialises in the area and by FUNAI officials who relevantly stated:

[Lawyer]: “they don’t live in our laws…there is no way to obligate them to live under the law we live in”; and

[The guide]: “They really could kill someone who goes on their land…”

The ACMA does not consider that the existence of the exception (Article 26) to Article 56 renders the relevant statement accurate. The exception and the discretion to apply it in the


Statute, actually support the fact that Brazilian law does apply to the Suruwaha people. The fact that there may be instances where alleged crimes are not investigated or an accused is not punished because a discretion, granted under Brazilian law, is exercised in a certain way, does not detract from the fact that Brazilian law, contrary to the Seven reporter’s assertion, does apply to the Suruwaha people. As such, were a Suruwaha tribe member to kill a foreign journalist, the Brazilian Government would have the jurisdiction to investigate the murder, pursue a charge and convict and punish that member of the tribe for murder. On this basis, the ACMA reiterates its finding that the relevant statement is not accurate.

Further, the ACMA does not accept the licensee’s submission that it was ‘reasonable’ for it to rely on advice provided by FUNAI officials and experts in the area in terms of clause 1.5.2 of the Code. We note that the advice provided to the licensee consists of anecdotal evidence relating to the practice and policy of pursuing alleged crimes committed by the Suruwaha. It does not address the issue of whether Brazilian law applies to the Suruwaha people. Taking into account the gravity of the relevant statements, ‘Here, we’re outside the protection of Brazilian law…in Suruwaha land, their laws apply’, the ACMA considers that it was the licensee’s obligation to ascertain the correct legal position regarding the application of Suruwaha law over Brazilian law and whether in fact a Suruwaha tribe member could have been convicted and punished for the murder of a foreign journalist under Brazilian law.

Statement 5: References to ‘Infanticide’

The relevant statements (in bold) in relation to infanticide were made in the following context:


PR: The Suruwaha believe that children born with birth defects or born to a single mother are evil spirits and should be killed in the most gruesome way possible. They take these poor little innocent babes out into the jungle to be eaten alive by the wild beasts or jaguars or they bury them alive, this is one of the worst human rights violations in the world.

Reporter: In Brazil’s biggest city Sao Paulo, we find one little girl who survived. [I] was born with cerebral palsy. When she was a baby, her mother was forced to leave her in the jungle to be eaten by jaguars. Later, she went back.

MB (human rights lawyer): She came back to her because she loved her daughter so much.

Reporter: They made their way through the jungle and eventually to safety. A Brazilian health official took them in.

Reporter: Do you believe that infanticide still occurs in the Suruwaha?

MB: I wish they didn’t but I think that they still do.

A: We haven’t killed babies for a long time. Even though we kill some, some we don’t kill, we let them grow up.

The ACMA considers that an ordinary, reasonable viewer would have understood the key statements to be factual material given that they were presented in an unequivocal and unquestioning manner.

What would the statements have conveyed to an ordinary reasonable viewer?


The complainant submitted that the broadcast indicated that infanticide ‘is invariably adopted where a child is born with a defect or to a single mother’.

The licensee contended that the report ‘simply describes the practice of infanticide and states that it is a practice that occurs within the Suruwaha in some instances.’

The ACMA makes the following observations:

the language used by the reporter and PR was assertive and does not contain any references to the practice being occasional or sporadic or occurring in “some instances”; and

the use of the words, ‘believe that children…should be killed’ and ‘encourage the murder of disabled children’ all framed in the present tense indicate currently held beliefs and actions by the tribe with no exception.

The only other reference to the practice of infanticide is found in A’s comment:

We haven’t killed babies for a long time. Even though we kill some, some we don’t kill, we let them grow up.

There was nothing in the broadcast to indicate that the topic of infanticide and/or associated beliefs is not without dispute, debate and qualification. A’s comment is brief, ambiguous and confusing. Its inclusion does not negate or meaningfully qualify the assertive and unequivocal statements made by the reporter and PR.

Accordingly, the ACMA finds that, the ordinary, reasonable viewer would have taken from the relevant statements that it is an uncontroverted, undisputed and established fact that the Suruwaha currently believe that children born with birth defects or to a single mother are evil and should be killed.


Seven remains of the view that its report did not convey information about the prevalence of infanticide among the Suruwaha…the only material in the report relating to the frequency was the statement of [A] that “we haven’t killed babies for a long time. Even though we kill some, some we don’t kill, we let them grow up”. This statement makes it clear that the practice is not invariably adopted ... and Seven submits that viewers would understand, by this statement, that while infanticide does occur there is no ‘rule’ or definite ‘practice’ as such…

As noted above, the ACMA does not accept that A’s comment would have served the purpose claimed by the licensee.


The issue for the ACMA to determine is whether the impression conveyed by the broadcast is accurate.

The complainant provided advice from various anthropologists indicating that the instances of infanticide are ‘isolated, ‘insignificant’, ‘extremely rare’, ‘very low’ and ‘occasional’. The complainant also provided translated statements from the Suruwaha tribe indicating that the practice of infanticide does not occur.

The licensee provided documentation indicating that the practice is widespread, including:


A report broadcast on Globo television which states, ‘the culture of the tribe [the Suruwaha] determines that they should die because they were born sick’;

Transcripts of an interview with human rights lawyer, MB, which states, ‘Sometimes they bury them alive, children, just after they are born. Sometimes they leave them in the jungle to be eaten, there are more cases like this. [M] has told us that she knew 28 cases of children being murdered because of disability or other reason’; and

A report of US program Nightline, which states, ‘The missionaries say Hakani’s story is not an isolated case. They say infanticide is common among Brazil’s more than 200 indigenous tribes, which they say sometimes kill babies because they are deformed or are born to a single mother’.5

The complainant and the licensee have provided conflicting submissions regarding the extent of the practice of infanticide in the Suruwaha and other indigenous Amazonian tribes. The ACMA notes that the issue of infanticide among indigenous tribes in the Amazon is evidently a controversial and highly debated topic in Brazil. Documentation provided and sourced by the ACMA6 indicates polarised views concerning the issue.

The ACMA understands that the issue is currently being considered by the Brazilian Congress in the form of Muwaji’s law 1057/2007 which proposes the compulsory notification of cases where children are at risk of infanticide7. The ACMA also notes the licensee’s submission8 that a number of claims made in the broadcast under consideration in this investigation are included in this inquiry.

The ACMA considers that the licensee would have been aware of the controversy and range of opinion and debate about this issue. In short, the ACMA finds that information conveyed in the statements was inaccurate because it conveyed as an established, uncontroverted and undisputed fact something which is, in fact, a matter of significant dispute. Factual material was thereby presented inaccurately.

In these circumstances the licensee’s presentation of this issue and its associated details as an uncontroverted fact does not amount to compliance with the Code provision.


the information relied upon by the ACMA does not support a conclusion that the report was inaccurate; and

the ACMA gives undue weight to the submissions and sources provided by the complainant.

In particular, the licensee stated that:

The complainant has provided the ACMA with advices from various anthropologists indicating that instances of infanticide are “isolated”, “extremely rare”, “very low” and “occasional”. However, none of these advices actually go so far as to say that the practice does not exist. Clearly with such isolated tribes there is never going to be perfect, documented information to

5 http://abcnews.go.com/Nightline/story?id=5861778&page=16 http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CDUQFjAC&url=http

%3A%2F%2Fworks.bepress.com%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1000%26context%3Daquila_alvarenga&ei=Ft6UT4zyJYKUiQfs5NiPBA&usg=AFQjCNGm_AcQG1X6ne0h62RqjAtvHR4O0A&sig2=5r6XUmK5txZj2XvthiNrXg

7 ibid8 See Attachment D


http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CDUQFjAC&url=http%3A%2F%2Fworks.bepress.com%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1000%26context%3Daquila_alvarenga&ei=Ft6UT4zyJYKUiQfs5NiPBA&usg=AFQjCNGm_AcQG1X6ne0h62RqjAtvHR4O0A&sig2=5r6XUmK5txZj2XvthiNrXg




rely on so the precise number of cases of infanticide can never be known. However the actual number of tribes people is small, the number of babies born with birth defects in any particular year, within such a small population is also going to be extremely low, and the number of cases of infanticide that are actually publicly brought to light will be smaller still. Therefore, the fact that the number of known cases of infanticide occurring is small may simply be because there are only very few children born into the Suruwaha with a disability.

…

Seven submits that, for the purpose of assessing accuracy, the advice of [the] anthropologists [provided by the complainant to the ACMA] should not override the personal accounts presented in the report or those of Seven’s reporter and [PR], as they obtained their information just weeks before the broadcast. Nor should the advice of these anthropologists override the first-hand accounts presented in the documentary Breaking the Silence referred to in our previous submissions, particularly given this documentary was made only a few years ago in 2009 whereas the anthropologists’ advice is based on experiences from some time ago.

The licensee also submitted that:

... Seven has submitted that a number of compelling and reliable sources which independently confirm the information in the Sunday Night report was accurate. On this basis, Seven considers that its report was presented accurately, or at most, Seven submits the ACMA should make a “no-finding” on the basis that the ACMA is not in a position to adjudicate between the competing accounts and there is no obligation in the Code requiring current affairs programs to be impartial or to present opposing views.

The mere existence of an opposing opinion is not enough to found a breach for inaccuracy. In our view, to interpret the Code in the manner the ACMA has in its preliminary report, is anathema to free speech, as it would require that a matter could not reported as fact, no matter how compelling the evidence, if there existed any individual or group that denied the truth of the statement. This would be like restricting reports about global warming and the holocaust to only conveying material in an unequivocal way, due to the existence of groups that deny the reality of such matters, regardless of the fact the reports have been properly researched and confirm the information about global warming and the holocaust existing.

Alternatively, should the ACMA remain of the view that Seven has not presented the information in its report accurately, a no breach finding should be made on the basis of clause 1.5.2 which allows for any failure to comply with clause 4.3.1 of the Code if that failure was due to the reasonable reliance on information supplied by another person, as set out in our earlier submission.

The ACMA does not agree that the interpretation of the licensee’s obligations under the Code would have the effect suggested by the licensee. The ACMA assesses compliance with this code provision on the basis of the particular facts and information before it. In these circumstances there is a substantial body of information indicating that the matters presented as undisputed fact, are, in fact disputed. In these circumstances, whilst the licensee did not have an obligation to present the opposing view or be impartial, it did have an obligation to make it clear that the issue was disputed, rather than being an uncontroverted fact.

The ACMA does not accept that clause 1.5.2 of the Code applies in this case.


Given that the licensee would have been aware of the opposing views and debate regarding the prevalence of infanticide, the ACMA does not consider that the licensee’s reliance on the material it obtained regarding the existence of infanticide amounts to ‘reasonable’ reliance on information supplied by another person.

In conclusion, the ACMA does not purport to make any findings about the existence of infanticide or the credibility of sources either way. As outlined above, the issue on which the ACMA has ruled is that a proposition, about which there is significant dispute and debate, was presented, in the broadcast, as fact.

Issue 2: Provoke or perpetuate intense dislike, serious contempt or severe ridicule against a group of persons on the grounds of ethnic origin

Relevant Code of practiceProscribed 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…

Clause 1.10 of the Code provides for a series of exceptions to clause 1.9:

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

1.10.1 said or done reasonably and in good faith in broadcasting an artistic work (including comedy or satire); or

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

1.10.3 said or done in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest.

The general approach adopted by the ACMA when assessing broadcast material against clause 1.9.6 of the Code is set out at Attachment E.

SubmissionsThe submissions from the complainant and licensee are set out at Attachments C and D respectively.

FindingThe licensee breached clause 1.9.6 of the Code.


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

identification of the relevant individual/group and the ground on which the individual/group was targeted; and

whether the broadcast provoked intense dislike, serious contempt or severe ridicule against the relevant individual/group on a particular ground.

The relevant person or group of persons and the relevant grounds

The ACMA is satisfied that the alleged actions were directed towards the Suruwaha tribe as a group on the grounds of both ethnic origin and race for the purposes of clause 1.9.6 of the Code.

‘intense dislike, serious contempt or severe ridicule’

Clause 1.9.6 sets a high threshold for the likely effect of prohibited material. The definitions of ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’ set out below indicate that the Code contemplates a very strong reaction to the prohibited behaviours. It is not sufficient that the behaviours induce a mild or even strong response. In this case, based on the complaint and the material of concern, the ACMA considers that the relevant matters to consider are whether intense dislike and serious contempt were likely to have been invoked by the material broadcast.

‘Infanticide’

The ACMA is satisfied that the references to infanticide would have conveyed emotions of intense dislike and serious contempt in the minds of an ordinary, reasonable viewer on the ground of the alleged cultural practice of the Suruwaha tribe.

The practice of infanticide would have been repugnant to an ordinary, reasonable viewer particularly in light of the description provided in the report of the manner in which the babies are killed: ‘They take these poor little innocent babes out into the jungle to be eaten alive by the wild beasts or jaguars or they bury them alive’ and the comment made by the reporter, ‘These lost tribes encourage the murder of disabled children’. The ACMA considers that the high threshold test of ‘intense’ dislike and ‘serious’ contempt has been met given the highly descriptive language used in the report and the general abhorrence in society to infanticide.

The complainant also referred to the Advisory Note relating to the Portrayal of Cultural Diversity in the Code, in particular:

generally avoid outdated representations of how people from non-English speaking backgrounds … behave’; and

any reports on race-related issues should be well researched and not based solely on the claims of particular groups’.

The Advisory Note is not, of itself, enforceable. Rather, it is ‘intended to help and encourage reporters and program producers to produce programs which treat all people with equal respect, regardless of their national, ethnic or linguistic background’.

The ACMA is satisfied that the broadcast has met the first threshold in terms of the broadcast eliciting the required level of intensity specified in the Code.


Material which conveys negative reactions towards a person or group is not ‘provocation’. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others. In this regard, it is noted that PR condemned the practice of infanticide by stating:

…this is one of the worst human rights violations in the world.

The reporter also stated:

The more I got to know them, the clearer it became that there were other more disturbing practices.

The ACMA is satisfied that given the highly evocative language used in the report to describe the killing of babies and the judgmental tone used by PR and the reporter condemning the alleged practice, it is likely that in all the circumstances these contributory factors would have perpetuated and provoked an intense dislike and serious contempt for the Suruwaha. The ACMA is of the view that the negative reactions would be on the grounds of the cultural/ethnic practice of the tribe given that the report conveyed the impression that the practice of kill children who are born with birth defects or born to a single mother, was based on the tribes’ beliefs.

For these reasons, the ACMA considers that, in the circumstances of this broadcast, the material complained about has breached clause 1.9.6 of the Code.

In response to the Preliminary Investigation Report, the licensee relevantly submitted that:

Seven submits that the reference to a “a program” in clause 1.9.6 – as opposed to “material” or “a statement” – requires an assessment of the report as a whole. Seven submits that it is an incorrect application of clause 1.9.6 to only assess the impact of the statements in isolation, or even in the limited context in which they were presented…

…

Seven submits that it accurately reported on the information available about the manner in which the babies are killed. For the reporter to add emotive language in his description of the manner in which the babies are killed, cannot reasonably be deemed to ‘incite’ the intensely negative emotions about infanticide. The tone of [PR’s] voice clearly conveys the notion of compassion for the victims, rather than provocation of hatred against the Suruwaha.

In addition, Seven does not believe that the report, in this documentary-type context, would provoke or perpetuate such intensely negative feelings against the Suruwaha as required by clause 1.9.6 simply because a somewhat disturbing practice of the tribe was described.

The segment in the report which included information about the practice of infanticide was only 2 minutes in duration, out of the 15 minute report. Therefore, in determining whether the material has created such intensely negative feelings against the Suruwaha, Seven submits the references to infanticide must be considered in the context of the various positive statements made in the report and the fact the primary focus in the report was on the the more idyllic side of the Suruwaha life…

The ACMA is not persuaded by the licensee’s arguments regarding the interpretation of clause 1.9.6 of the Code. Clause 1.1.1 of the Code provides that one of the objectives of the Code is to ‘regulate the content of commercial television in accordance with current community standards’. On this basis, the ACMA considers that the reference to a ‘program’ in


clause 1.9.6 covers any content included in that program. Even a segment of minimal duration in a program can have a significant impact depending on its content.

Further, the ACMA does not accept that the tone used by PR conveyed the notion of compassion rather than provocation. The ACMA is satisfied that the use of such language as ‘poor, little innocent babes’ and ‘worst human rights violations in the world’ provoked the required feelings of intense dislike and serious contempt for the Suruwaha in terms of clause 1.9.6 of the Code.

‘Stone age’

The ACMA considers that the combination of the term ‘stone age’ with references to ‘a time way beyond historical memory’, ‘thousands of years ago’, ‘we’re about to time travel back 10,000 years’ and ‘they live caught in some kind of bubble thousands of years ago’ suggest that the Suruwaha people are primitive and uncivilised in terms of living without modern day amenities. However, applying the threshold test outlined above — including the requirement to consider ‘all the circumstances’ of the broadcast—the ACMA considers that it is unlikely that the references to ‘stone age’, in and of themselves, were so harsh, forceful or extreme that they would have been likely to have provoked intense dislike, serious contempt or severe ridicule towards the Suruwaha tribe on the ground of ethnic origin and/or race.

As indicated above, the ACMA considers that the references would have conveyed to the ordinary, reasonable viewer, that the Suruwaha are living a lifestyle similar to the lifestyle that people would have led during the Stone Age period. The report did not contain any negative comments regarding the tribe’s intelligence, rather the comments conveyed astonishment that the reporter and his team were travelling ‘back in time’.

Given that the references to ‘stone age’ have not met the first threshold test outlined in the Code, the ACMA finds that the licensee has complied with the Code in relation to this particular issue.

Were the statements concerning ‘infanticide’ said or done in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest?

Clause 1.10 provides that a licensee will not be in breach of clause 1.9 if one of the exceptions in clause 1.10 apply. The exception in clause 1.10.3 refers to statements said or done in broadcasting a fair report or, or a fair comment on, any event or matter of identifiable public interest.

The ACMA considers that the report did not contain a fair comment on a matter in the public interest. Given that this is a controversial and emotive issue and taking into account the licensee’s knowledge that opposing views exist on the issue, the ACMA finds that the unequivocal statements on the existence of this practice from the reporter and PR were not fair comments in this regard.

Accordingly, the ACMA does not consider that the broadcast falls within the exception in 1.10.3 of the Code.

In response to the Preliminary Investigation Report, the licensee relevantly submitted that:

Seven submits that current affairs programs are not obliged to present all or even opposing viewpoints on a matter being reported on. Accordingly, Seven does not believe that [PR’s]


comment should be considered as ‘unfair’ due to the fact there were no other comments presented at the time which rejected the statement that infanticide occurs…

The ACMA does not accept the licensee’s submissions on this issue. The ACMA has found, in relation to accuracy, that the licensee failed to include reference to the fact that there was a significant level of dispute and controversy about this topic, which it presented as factually uncontroversial. In these circumstances the ACMA is not satisfied that the relevant comments can be regarded as fair comment.


Attachment ATranscript – Sunday Night – 4/9/11Presenter: But first tonight, our world exclusive. Sunday Night video journalist, [Reporter] is the first person to document at length the stone age existence of Brazil’s Surawaha people. In a remote corner of the Amazon, the Surawaha remain lost in time. They believe they are the most perfect race on earth. Their strange beliefs and rituals will amaze you…

Reporter: Deep in the Amazon Jungle is a place of wonder, a place of danger.

PR: You press a button and suddenly, you’re in the stone age, you’re really there!

Reporter: It’s taken seven months of negotiations to join this expedition. We’re being taken by officers from Brazil’s Department of Indian Affairs to one of the world’s last and most isolated stone age tribes. We’re in the far north-west of Brazil, near the border with Peru. We’re heading to the home of Suruwaha. A three day boat ride will be followed by two weeks in quarantine to make sure we bring in no diseases. Then, another two days by canoe. With us is author and adventurer, [PR].

PR: These are some of the last survivors of a time way beyond historical memory, thousands of years ago.

Reporter: The waterways here are a labyrinth and as the jungle closes in on us we’ve left the steamer behind to go deep into the heart of one of the Amazon’s forbidden zones. To protect the Amazon Indians, the government has closed off this region to the outside world. Only a few are ever allowed in. The final leg is a tough trek through the dense jungle. It’s taken us nearly a month to get to this point. Then, our guide makes the sound of a jaguar, he’s telling the Surwaha that outsiders are near. We’re finally here, we’re literally about to time-travel back 10,000 years.

[Members of the tribe are filmed speaking their own language]

A female tribe member: He’s looking at me. That tall white man there [in subtitles].

Reporter: But then the mood changes.

A tribe member: Don’t touch him, don’t touch him!

Reporter: There are threats of murder.

PR: Who wants to kill me? The girl? She wants to kill me?

Department of Indian Affairs Officer: Because she’s scared.

PR: Did you hear that? The girl wants to kill me because she’s scared.

Reporter: Here, we’re outside the protection of Brazilian law.

PR: We were in Suruwaha land, their laws apply. Had we been killed on that spot, the Brazilian government would not have punished those Indians.

Reporter: Then a brave girl offers her hand to [PR] and the threat is gone.

Reporter: Oh, what a trek! Simple items we’ve brought intrigue them, books, boots and modern technology. Over the next week I learn how important physical appearance is to the Suruwaha. The body paint made from ground berries is one way of enhancing their beauty. Another is grooming each other. Yep, they don’t have any hair but I do.


Reporter: There are only 155 Suruwaha but they believe they are the perfect race and their existence appears idyllic. They marry for life, but not A.

A: I will not get married. Girls are very annoying and talk too much. They complain about everything!

Reporter: The strength of the young warriors is tested in a wrestling match called the Woolly Monkey Ritual. A is barely out of his teens and eager to prove himself as a man. The Suruwaha have no chiefs, the men earn respect by becoming good hunters. Here, A is arming a blowpipe with poison darts.

Reporter: So this is one of the marvels of stone age technology.

PR: You’re seeing almost like the most wonderful movie you could ever see in your life. They live caught in some kind of bubble of thousands of years ago.

Reporter: The men from the Surwaha fan out across the dense jungle hunting for monkeys, birds and wild pigs. Finding prey in this jungle is tough enough but keeping up with these guys is even harder. We’ve been walking all day, probably five hours, they’ve got to be the fittest men in the world. The fresh food makes them among the healthiest people on earth. There are very few diseases, but I also notice that there are very few old people. Well the average life expectancy here is just thirty-five, but it’s not because of bad health, I’ve just found out this is home to one of the most extreme and bizarre euthanasia practices on the planet.

Reporter: A confesses that he plans to commit suicide before he reaches thirty.

A: I don’t want to be here for a long time. I will never be an adult, I will take the poison before that and I will die.

Reporter: He’ll kill himself by taking a deadly poison made from a ground up root called Timbo.

PR: This is a true suicide cult and I wondered what is the reason for this.

Reporter: Why do so many people take the poison?

W: A lot of Suruwaha take the poison because they miss each other.

Reporter: W explains why they kill themselves. To be reunited with their relatives in the afterlife. His brother and sister have already taken the poison.

W: And this one, then this one take the poison and it goes on forever.

Reporter: Right now I’m being painted by Urucum, it is vibrantly red and it’s because the Suruwaha believe it’s the most beautiful colour in the world. It’s not this I’m worried about, it’s the initiation that comes next. Every night they inhale a potent drug called Kumadi, made from a tree bark, even the children take it. I wasn’t given a choice

Reporter: Oh man, my head is spinning now. The Suruwaha believe it opens the door to the spiritual world, I can’t ... I don’t know if you can see but I’m starting to sweat, my feet are tingling and numb and my hands are equally as numb.


PR: The Suruwaha believe that children born with birth defects or born to a single mother are evil spirits and should be killed in the most gruesome way possible. They take these poor little


innocent babes out into the jungle to be eaten alive by the wild beasts or jaguars or they bury them alive, this is one of the worst human rights violations in the world.

Reporter: In Brazil’s biggest city Sao Paulo, we find one little girl who survived, [I] was born with cerebral palsy. When she was a baby, her mother was forced to leave her in the jungle to be eaten by jaguars. Later, she went back.

MB (Human Rights Lawyer): She came back to her because she loved her daughter so much.

Reporter: They made their way through the jungle and eventually to safety. A Brazilian Health Official took them in.

Reporter: Do you believe that infanticide still occurs in the Suruwaha?

MB: I wish they didn’t but I think that they still do.

A: We haven’t killed babies for a long time. Even though we kill some, some we don’t kill, we let them grow up.

PR: I believe this is one of the most profound questions facing the world today. What to do with these stone age tribes? To let them live as they have for thousands of years protected from outside or to let them come out into our modern world?

Reporter: A is already wondering what lies outside the jungle.

A: Is there and end to the land? Do the oceans go forever? We don’t know.

Reporter: There is good and evil in this lost world, but there are no easy answers as to what will or should happen next.


Attachment BIn determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

The assessment of factual accuracy is determined in the context of the segment in its entirety.

The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.9

The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.

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.

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.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that might amount to a breach of the clause.

In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately which will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

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

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


Attachment C

Complainant’s submissions


Statement 1: ‘Stone age’

The complainant submitted that the reference to ‘stone age’ was factually inaccurate and provided the following advice it received from Dr MAS, in an email of 8 November 2011 in support of its submission:

a) The reports based on traditional oral histories, the kinship and genealogy information, and the research into territoriality and memory that we have developed demonstrate that the Suruwaha maintained relations with the ‘white’ rubber-tapper world since the first cycle of the rubber boom. In other words, at least since the last decade of the 19th century there has been an interaction with the whites (the jara, in Suruwaha terminology), consisting of trade for metal tools. This means that at least six or seven generations have used these types of tools. Obviously, the period of contact and missionary activity from the 1980s onwards facilitated access to tools, and they became widespread. The recent abundance of axes and machetes probably has facilitated agricultural activity, and may have helped with the expansion of crop fields (developing from the traditional slash-and-burn system practiced by the Suruwaha).

b) The Suruwaha were only in extreme isolation from the end of the 1920s (as a result of the massacres they suffered) until 1980. Suruwaha narratives and research based on oral and territorial memory provide clear evidence of the intensity of trade circuits with the societies along the Cunuiá, Tapauá, and Purus rivers. They had longterm relations with the Paumari, the Katukina of the Coatá tributary, the currently isolated Hi Merimã, and other indigenous population in the Purus river basin, referred to with native ethnonyms in the oral histories. Ritual exchanges of tools, utensils, and even wedding rings were frequent among the Suruwaha subgroups and their neighboring populations, principally those from the Arawa linguistic family. Naturally, this trade route would have allowed the Suruwaha access to metal tools. There are not, to my knowledge, stone tools preserved among the Suruwaha today, but it is reasonable to assume that they would have used them in the past.

The complainant also provided a copy of film footage released in 1992 by media outlet Globo10, which depicts a member of the Suruwaha tribe holding a metal knife.


The complainant submitted that the references to ‘lost tribe’ and ‘lost world’ were factually inaccurate and stated in its letter of complaint to the licensee of 3 October 2011 that:

The true position is that the Suruwaha have had regular contact with both governmental agencies and nongovernmental organizations since the early 1980s. They have had axes and machetes, torches and other equipment for years. [A], who features prominently in the film, has flown in aeroplanes, as have many others. About half of all living Suruwaha have at one time or another visited cities like Labrea, Manaus, Brasilia and Rio de Janiero.

The complainant provided copies of advices it received from an anthropologist AH in emails of 15 December 2008, 27 September 2011 and 30 September 2011 in support of its submission:

10 http://g1.globo.com/natureza/videos/v/abc-amazonia-indios-zuruaha/1228026/


http://g1.globo.com/natureza/videos/v/abc-amazonia-indios-zuruaha/1228026/

In fact, four Suruwaha were taken to participate in the film Hakani without being notified that they would be participating in a film. [U]([M]) (in the film [B]), her daughter [I] (playing the part of Hakani), [B] (no role in the film: she appears bathing) and [A] (who only appears for a fragment of a second passing behind another person). As for [U], I did not have a chance to speak with her personally regarding that subject. After she was removed from the village last year under the care of FUNASA, JOCUM took her to their house and never returned her to the village (upon leaving her home, [U]/[M] said that she only wanted to stay for one month in the city, and she has already been there for a year and five months: her relatives lament her absence). [B] told me that JOCUM brought him to Porto Velho “for dental treatment”. When he arrived at the airport, the film crew and “many Indians that had arrived by bus from Mato Grosso to see him” were waiting. He said that he was told that the Americans wanted him to imitate the dances of the Suruwaha because they and their clothing… were beautiful. On the second day of filming (he says that they filmed for the entire day), [B] was fed up and did not want to be filmed any more.

…

The Suruwaha have had regular contact with different governments and NGOs since 1980. There are some manufactured goods they nowadays wouldn't want to or could not live without (knives, axes, machetes, flashlights, fish hooks, etc.). More than half of them know cities like Lábrea, Manaus, Brasília and Rio de Janeiro, have travelled by plane, know electricity, film cameras and all other 'Western technology'. They have visited these cities when seeking medical treatment. Therefore it is simply ridiculous for the reporter to say that the Suruwaha 'don't know our world'. In his statement, quoted here, [A] only says that he doesn't know what 'the other side of the Atlantic Ocean looks like' (which also applies to many other Brazilians). [A] has travelled by plane and has an extensive knowledge of geography.

…

Besides the Australians’ film, there have been SIX (6) other documentaries made about the Suruwaha: one in 1991, by [MS], one in 1995, a Spanish TV production called “From the other side of the silence”, one by [RD] (year?), “The Zuruwaha”, one by CIMI called “The Poison People”, one by the Adveniat organization, made by [GS] in 2005, called “Suruwaha– The priest and the unknown people"), and one by [RG] (made in 2005?). Besides these, once, the Brazilian TV company GLOBO invaded a Suruwaha village by helicopter and made a report called "Globo Reporter" (a series on TV every Friday), also in 2005.

The complainant also provided:

a copy of a media release11 from the Brazilian Public Ministry dated 30 March 2010 stating that four Suruwaha had been taken to the city of Manaus for medical treatment:

The Public Ministry of the State of Amazonas (MPF/AM) recommended to the Health Secretary (SUSAM) that it is assuring swift priority treatment for four recently contacted Suruwahá Indians, who were brought to Manaus for medical treatment.

copies of two media reports12 of September 2005 stating that a Suruwaha baby had been taken to São Paulo by missionary organization JOCUM:

The Public Ministry (MPF) and the National Health Foundation (FUNASA) authorised yesterday the surgery of a 7 month old infant from the Suruahá group, who was brought

11 http://www.pram.mpf.gov.br/news/mpf-am-quer-atendimento-prioritario-de-saude-para-indios-suruwaha 12 http://ti.socioambiental.org/#!/noticia/36798 and http://ti.socioambiental.org/#!/noticia/16790


http://ti.socioambiental.org/#!/noticia/16790

http://ti.socioambiental.org/#!/noticia/36798

http://www.pram.mpf.gov.br/news/mpf-am-quer-atendimento-prioritario-de-saude-para-indios-suruwaha

to São Paulo without authorisation from the National Indian Foundation (FUNAI) in May by the evangelical group …

The Suruwahá are monolingual and do not understand Portuguese. This is the first time that these four patients and their two indigenous companions have come to the city of Manaus, as they have difficulties in the urban context. The limited contact of this indigenous group with the population at large means they have low immunity to many of the diseases found in Brazilian society. On 15 March 2010, the patients contracted flu while waiting three hours for medical attention in SPA Monte das Oliveiras. The absence of the Suruwaha who are in Manaus for medical treatment for a prolonged period of time exposes their relatives to social vulnerability, as they are responsible for nourishment and subsistence by means of hunting.


The complainant submitted to the licensee in a letter of 3 October 2011 that:

The manner in which the Suruwaha are visually portrayed in the film constitutes another breach of section 4.3.1. Those Suruwaha who were wearing Western clothing when the film crew were told to take it off before filming started. The intention was to show the Suruwaha as the programme makers imagined they might once have appeared rather than as they appear now. Viewers have been deceived into thinking that what they see on their screens reflects the current reality. It does not.

The complainant also provided an excerpt from an email of 6 December 2011 sent by the Funai official , who accompanied the licensee’s crew to meet the Suruwaha, to the complainant. The email stated:

When it came to clothing, [PR] and [the reporter] had an attitude of wanting to show only the 'strongest and best-looking' Suruwaha, without industrialised clothes, like caps or T-shirts (present today in the village, used mainly for fishing and hunting trips). The young people really like caps and the few Suruwaha who have caps also wear them in the village...The Suruwaha asked to be filmed as they really are, not as actors. They ignored the Australians' insistence that they paint and decorate themselves before a hunting scene, for example... One example was [A] who appears in the film... 'The Suruwaha don't paint or decorate themselves to go hunting' he said smiling, ridiculing the idea. After much insistence by [the reporter], [A] agreed to go to the forest with a blow-pipe to show how the Suruwaha use it. However, there were various moments when the film crew asked the Suruwaha to take off their caps or to paint themselves before the filming began.


The complainant submitted to the licensee in a letter of 3 October 2011 that the statement made by the reporter that they ‘were outside the protection of Brazilian law’ was inaccurate:

The true position is set out in Article 56 of the Indian Statute, which requires courts when they sentence an Indian convicted of a criminal offence to take into account [of] sic his or her degree of acculturation. This provision was necessary precisely because the indigenous peoples of Brazil are subject to the same laws as everyone else.




The [infanticide] claims are also in breach of clause 4.3.1 because they are presented as indisputable fact. They purport to describe a practice that is invariably adopted where a child is born with a defect or to a single mother.

This also is false, as it perhaps demonstrated by the programme’s ability to cite only one alleged attempt at infanticide. We have not been able to verify [I]’s story, but can confirm that every expert to whom we have spoken about the issue has said that infanticide is rare among the tribes of the Amazon, including the Suruwaha, and is declining.

…

The assertion that the Suruwaha kill their children as a matter of routine came originally from evangelical missionaries and their supporters. These missionaries have sponsored a bill currently before Brazilian Congress which, if passed, would not only allow the authorities forcibly to remove any indigenous child deemed to be ‘at risk’ but require any Suruwaha, or anyone else for that matter, who believed an indigenous child to be ‘at risk’ to report that fact or face imprisonment.

The wisdom of these proposals has been fiercely debated in Brazil. Some believe that the proponents of the bill have sought deliberately to denigrate and destabilize tribal communities in order to justify the removal of their children, and that this is the real aim of the bill. They believe that the scandal of the stolen generations in Australia is about to be repeated in Brazil.

…

But where there are different viewpoints on an issue, as there most certainly are here, [the licensee was] duty bound by section 4.3.1 to represent these viewpoints fairly. The programme ought therefore to have made clear that the extent to which infanticide is still practised among the Suruwaha (if at all) is a matter of great controversy, and that there is no evidence – no evidence – that it is practised as a matter of course. The programme did not attempt to do this.

In response to the licensee’s letter, the complainant submitted to the licensee in a letter of 12 December 2011 that:

You say that these claims were based on the “personal accounts of the Suruwaha people” but the programme makers were able to come up with only two. The account given by [A] cannot possibly bear the weight that you now try to place on it. He said that the Suruwaha haven’t killed babies for a long time, but that is not what [the reporter] and [PR] had said. Their claims had been expressed entirely in the present tense and were plainly directed to the here and now.

If his words have been correctly translated, [A] went on to contradict himself in the next sentence: “Even though we kill some, some we don’t kill, we let them grow up”. So any claim of infanticide based on [A]’s account would have had to explain that it was entirely unclear whether the Suruwaha still killed children or not; and if they did, when or how often they decided to do so,

[The reporter and PR] apparently took the view that such subtleties did not make good television. They opted instead for the sweeping and wholly unjustified claims that we have quoted. Some viewers may have contrasted those claims with what [A] said a few minutes later, but many others will have taken the reporters at their word. Speculation masquerading as fact does not comply with Section 4.3.1 of the Code.


The only other “account” offered to the viewer is that of [I], the girl suffering from cerebral palsy whom [the reporter] claims to have “found” in Sao Paulo. In fact her story has already been widely reported. […]

[The reporter and PR] did not think it necessary to explain that this is the only reported case of attempted infanticide among the Suruwaha for many years. Even if the report is taken at face value and it has been questioned by some), it does not begin to show that all – or even any – Suruwaha “believe that children born with birth defects…are evil spirits and should be killed in the most gruesome way possible”. No responsible journalist would use one incident to accuse an entire community of “one of the worst human rights violations in the world”.

The complainant provided copies to the ACMA of the following advices in support of its submission:

Dr [JDP], anthropologist from the Federal University, Juiz Da Fora:

Among the Suruwaha, infanticide corresponds merely to isolated occurrences, to which different factors have contributed. There is nothing like a “law” condemning or a “custom” obliging them to eliminate newborns who are unwanted for any reason. This is pure opportunistic delirium of the JOCUM missionaries, a generalised accusation whose immediate result is the defamation of an entire people, in favor of their proselytising cause. This has provoked fanatical, prejudiced responses the whole world over, especially given the advent of the internet!

Dr [MAS], anthropologist, ‘Infanticide among the Suruwaha is of insignificant proportions…’;

Dr [NF], medical doctor from the United Nations Association International Service:

Through my direct contact with indigenous people, and from working with indigenists [sic] and state health services, my strong opinion is that infanticide is an extremely rare practice in indigenous cultures. It most commonly appears as a consequence of the profound disruption caused to the health and social fabric of native cultures, through contact with the outside world.

[SF], Vice-President of the Indigenous Council, Saulo Feitosa:

All the historical records I know show that cases of infanticide among indigenous peoples are very low. We …knew of isolated cases…but we have no recent reports about babies being abandoned in the forest.

A teacher [AH] who worked with the Suruwaha for five years:

The last case of infanticide (of which I am personally aware) was in 2000.

Professor [TT], an anthropologist, University of Chicago and Cornell University:

As far as the Kayapo are concerned... there are very occasional infanticides. They occur at birth, almost always involving babies with serious defects that would render their survival problematical.

The complainant also provided quotes from members of the Suruwaha tribe who were interviewed after the footage was filmed by the licensee, regarding their views on claims that they still practice infanticide:

o W: ‘The Suruwaha don’t kill children nowadays. A long time ago, there were cases of infanticide, but nowadays, the Suruwaha don’t kill children.’


o X: ‘Our people do not kill children any more. People look after each other. Our ancestors used to do that. But nowadays, people can’t bring themselves to kill children.’

o Y: ‘People don’t kill children anymore and they never will. We don’t plan on killing children in the future.’

o Z: ‘In the past, sometimes people mistreated fatherless children. The last cases of infanticide happened when I was single [teenager]. That was a long time ago. Now, I’m getting old. They’re lying about us because we don’t kill children.’

In addition, the complainant provided quotes from Indians which are contained in a UNICEF report resulting from a series of meetings in November and December 2009 between ‘experts, Christian organisations and Indians’. The quotes relate to a draft Brazilian law, ‘Muwaji’s Law’ which proposes the compulsory notification of cases where children are at risk of infanticide.13 The quotes indicate that the draft bill and allegations of infanticide committed by Indians are ‘political’, ‘unofficial’, ‘biased’, ‘propaganda’ and ‘racist’.



The report …claim[s] that the Suruwaha are a stone age people and that to visit them is “literally to time-travel back 10,000 years”. The Suruwaha are, apparently, “some of the last survivors of a time way beyond historical memory, thousands of years ago”. They live “caught in some kind of bubble of thousands of years ago”.

Language of this sort perpetuates deeply ingrained notions that isolated tribes are primitive, that they somehow lag behind the rest of us in their evolutionary development, and that they are our inferiors.

This may be good for audience ratings but is dangerous nonsense. It stokes the fires of prejudice that still pose a major threat – perhaps the major threat – to the welfare of forest dwelling Indians across South America. In the language of section 1.9.6 of the Code it “perpetuates intense dislike, serious contempt or severe ridicule against a group of persons on the grounds of …ethnic origin.”

That the program appears to have had precisely this effect at least in some quarters is clear from the response of one commentator on YouTube that all the Suruwaha should be ‘slaughtered’. ‘It must be done’, he considers. Many more have been highly critical of the programme, but others are likely to have been left the impression that the Suruwaha are a backward people deserving of our dislike and contempt.

…

13 http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CDUQFjAC&url=http%3A%2F%2Fworks.bepress.com%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1000%26context%3Daquila_alvarenga&ei=Ft6UT4zyJYKUiQfs5NiPBA&usg=AFQjCNGm_AcQG1X6ne0h62RqjAtvHR4O0A&sig2=5r6XUmK5txZj2XvthiNrXg at page 10; and http://www.hakani.org/en/faq.asp


http://www.hakani.org/en/faq.asp




The complainant also submitted that the references to infanticide in the report breached clause 1.9.6 of the Code and referred to the Advisory Note in the Code relating to the Portrayal of Cultural Diversity14, in particular:

avoid outdated representations of how people form non-English speaking backgrounds … behave’; and

any reports on race-related issues should be well researched and not based solely on the claims of particular groups’.

14 The complainant also referred to the Advisory Note relating to the Portrayal of Aboriginals and Torres Strait Islander Peoples, which is not applicable in this case given that the Advisory Note refers to treating the Aboriginal and Torres Strait Island peoples as ‘an integral and important part of contemporary Australia’.


Attachment DLicensee’s submissionsGeneral submissions in relation to the broadcast

The licensee submitted to the ACMA in a letter of 23 March 2012 that:

Seven would like to bring to the Authority’s attention that our report was carefully researched and put together over an 11 month period. Much as the information contained in the report was compiled with the permission and assistance of the relevant government officials. The National Indian Foundation, Funai, is the Brazilian governmental protection agency responsible for mapping out and controlling access to the “forbidden zone” in which the Suruwaha are located. Funai is also responsible for managing matters affecting Indian interests and culture.

It took approximately seven months of negotiations with Funai before the Director of Funai’s Isolated Indian Department, granted Seven permission to enter Suruwaha territory.

When finally permitted to proceed by boat to the small remote Funai base in the Purus River Region, Seven’s reporter and accompanying individuals were met by their designated Funai official, […] and were required to remain in quarantine for two weeks before entering the “forbidden zone” where the Suruwaha territory is located.

The Funai Official was Seven’s primary source of information at the time of filming. Seven submits it was reasonable to rely on this Funai representative given his official role for the governmental Indian Agency and the fact the Funai is the trusted governmental agency who are not just responsible for Seven’s access to and interviews with the Suruwaha, but also for the management of issues to Brazilian Indian tribes and territories. Seven also relied on first- hand accounts of the Suruwaha who were interviewed by Seven’s reporter at the time.

We would also note that a number of the claims made in our report are currently the subject of an Inquiry being conducted by the Brazilian Senate into the existence of infanticide and consideration of Muwaji’s Law 1057/2007 to ban this practice.

In addition, Seven relied on a number of secondary resources to support various statements made in its report. There are as follows:

1. A publication in the Smithsonian Magazine titled Out of Time (April 2005).

2. A report broadcast in the current affairs program Fantastico by the fourth largest public television network in the world, Globo.15

3. A documentary created by an indigenous film-maker, [ST], titled Breaking the Silence which concerns infanticide in Amazonian tribes.16

4. A report broadcast in the current affairs program Nightline in the United States in 2008, the transcript which is available online.17

5. Representations made by Human Rights lawyer and legal advisor to the Brazilian Senate on matters relating to tribal infanticide, [MdPB].

6. Representations made by experienced journalist and respected author [PR] whose recognised expertise in the area is set out in Annexure 1.

15 http://www.fantastico.globo.com/Jornalismo/FANT/0,,MUL695084-15605,00-O+DRAMA+DE+DUAS+INDIAZINHAS+ZURUAHA.html

16 http://www.youtube.com/watch?v=lKFpcQB-qzo 17 http://abcnews.go.com/Nightline/story?id=5861778&page=1



http://www.youtube.com/watch?v=lKFpcQB-qzo

http://www.fantastico.globo.com/Jornalismo/FANT/0,,MUL695084-15605,00-O+DRAMA+DE+DUAS+INDIAZINHAS+ZURUAHA.html

http://www.fantastico.globo.com/Jornalismo/FANT/0,,MUL695084-15605,00-O+DRAMA+DE+DUAS+INDIAZINHAS+ZURUAHA.html


Statement 1: ‘Stone age’


The term “stone-age” was used in the report to refer to a way of life, which is different to that of people who live in so called “contemporary” societies. In this sense, the term is comparable to descriptions like “Bronze Age”, “Iron Age”, “Industrial Age” and “Computer Age”. Such references in no way reflect any lack of intelligence or aptitude among the people, as the complainant has suggested.

In addition, Seven submits it was clear from the context in which the reference was made that the term directly referred to the Suruwaha’s fascination with everyday items like mirrors, shoes, books and electronic equipment (presented at approximately 5 minutes into the report). The references was also used when describing the Suruwaha’s use of hand-made blow pipes and bows and arrows to hunt, virtually naked and barefoot (presented at approximately 7 minutes and 45 seconds into the report).

In this context, we consider the reference is justified, Its use is also consistent with the dictionary definition of “stone-age” when means “of, pertaining to, characteristic of, or resembling (that of) the Stone Age; fig primitive, outmoded” (The New Shorter Oxford English Dictionary).



Seven considers it was clear in the report that the references to “lost tribes” and “lost world” concerned the isolated location of the tribe and the tribe’s lack of involvement with “contemporary” societies. These descriptions were based on the following representations:

1. Mr [PR’s] informed description of the restricted and isolated “forbidden zone” in which the Suruwaha live (Annexure 2).

2. Comments made by [A] which showed a clear lack of knowledge of the world “outside” to their territory (translated interview excerpts set out in Annexure 3).

3. Comments made by the Funai official who accompanied Seven’s crew to visit the Suruwaha territory (“Funai Official”) about how curious the Suruwaha are of the “outside” world (translated interview excerpts set out in Annexure 4).

4. Seclusion of tribe as demonstrated by Funai quarantine procedures and controlled transportation to the Suruwaha territory.

Seven rejects the complainant’s submission that the Suruwaha people “have regular contact with both governmental and non-governmental organisations since the early 1980s”. Whilst Brazilian missionaries did work with the Suruwaha in the 1980s, this contact was forbidden by Funai a number of years ago and is not the current state of affairs. [PR] has confirmed the following regarding the Suruwaha’s contact with the outside world:

At present, the Suruwaha have occasional contact with a handful of Funai officials as well as infrequent inspections by health officials. Brazilian missionaries did work with the Suruwaha (1980s) but were forbidden any more contact with the Suruwaha some years ago by Funai. [the guide], the Funai official we were told us [sic] (on film) that Funai wishes as much as possible to isolate the Suruwaha from the outside world and Funai’s behaviour proves that.


Translated interview extracts from a conversation with the Funai Official set out in Annexure 4 also supports the fact the Suruwaha have had little contact with the outside world.

Seven also rejects the complainant’s claim that “about half of all living Suruwaha” have visited cities like Labrea, Manaus, Brasilia and Rio de Janiero on the basis of the following comments provided to Seven by [PR]:

While we were in quarantine, [the guide] mentioned that occasionally Suruwaha suffering from serious illness were taken to outside places such as Labrea to be treated in hospitals. He added that Funai encouraged them to see the outside world as harmful to them and to return to their territory as soon as possible.

The licensee submitted to the ACMA in a letter of 11 July 2012 that:

…the terms ‘lost tribes’ and ‘lost world’ do not convey any implication that members of the tribe have had no contact with the modern world – but instead relay a sense of wonderment regarding the unchanged way of life of the tribe, which has been protected and preserved as if the outside world did not exist.

…


The licensee submitted to the ACMA in a letter of 5 June 2012 that:

You have asked for Seven’s comments about the accuracy of the material presented in the report, as the complainant has received information from Seven’s guide, that Seven instructed members of the Suruwaha to remove any Western clothing before filming commenced,

Seven’s reporter and [PR] strongly reject the complainant’s claim. They confirm the following:

They did not on any occasion request that a member of the Suruwaha remove any garments they may have been wearing; and

They did not selectively film members of the Suruwaha on the basis of their appearance in a way that would inaccurately convey the true circumstances at the time of filming.

The following information supports their account:

1. Attachment 1: A DVD of the unedited footage of the reporter’s arrival to the Suruwaha territory. This documented encounter was the first contact Seven had with the Suruwaha village and therefore depicts the tribe at a time before Seven would have had any opportunity to ask Suruwaha to remove any clothing. This footage is filmed from a video camera attached to the helmet of the reporter’s porter and depicts the following:

a. The reporter prepares his camera for filming, after his guide alerts him to the fact they are approaching a Suruwaha hut. A female junior Funai official is also briefly shown at 11.54 in the footage;

b. [The guide], the reporter and the reporter’s porter walk down a trail towards an opening;

c. A Suruwaha man walks out from a large hut (naked) to greet the men after he hears the sound of a jaguar made by [the guide] (audio recorded from a different camera which is audible in Seven’s report);


d. Several other members of the Suruwaha tribe (also naked) come out of the hut to greet/see the visitors.

2. Attachment 2: An email from an intermediary for communications between [PR] and [an anthropologist] and senior Funai official show is the co-directors of the region which includes the Suruwaha territory. We note that an intermediary was necessary because [the anthropologist] does not speak English. This email attaches various photographs of the Suruwaha tribe which were taken by [the anthropologist] several months before Seven’s reporter and [PR] arrived. It is clear in these images that the Suruwaha do not wear western clothing (in fact it shows they go naked at all times) and, in some instances, show decorative body and face paint. This is identical to the way in which they appear in Seven’s report.

3. The only communication Seven’s reporter and [PR] had with the tribe was through [the guide]’s translations. There were occasions where [the guide] refused to translate Seven’s full communication with the Suruwaha or forbade them from giving gifts which were in conflict with the Suruwaha’s lifestyle….

[…]

Seven was completely reliant on [the guide] to communicate with the tribe. Therefore, even if Seven’s reporter or [PR] had wanted to insist the Suruwaha remove items of clothing or act in a manner that was inconsistent with their way of life or culture (which they did not), it can only be assumed that such a request would not have been translated by [the guide] and that Seven’s reporter and [PR] would have followed any advice given by [the guide] as to what was appropriate in dealing with the Suruwaha and accurately recording their way of life.



Seven’s comments in relation to the fact isolated tribes live by their own laws were based on the representations made by the Funai Official and by, another Funai official. Translated transcripts of their comments are set out in Annexure 5.

Human Rights Lawyer, [MdPB] and former Funai Director [SP] also advised that Funai’s “non-interference” policy is illustrated by the fact serious claims of tribal killings and infanticide amongst the isolated tribes, including that of [M], have never been investigated.

Additional sources relied on by Seven which support the claim that isolated tribes, including the Suruwaha, are permitted to live by their own laws are as follows:

1. [PB] provided Seven with information about the way isolated tribes of the Amazon are left to live by their own laws. Mr [PB] has provided this information to Seven again in writing, also including an example of an incident which substantiates this point. This information is set out in Annexure 6; and

2. The US current affairs program, Nightline, which was broadcast in September 2008. A copy of the transcript from the report is attached (Annexure 7), the relevant extracts from which are set out in Annexure 8.




Seven rejects the complainant’s view that the report presented infanticide as a practice that is “invariably adopted” by the Suruwaha. The report simply describes the practice of infanticide and states that it is a practice that occurs within the Suruwaha in some instances. In this context, two personal accounts are presented which support the assertion that infanticide has occurred in the Suruwaha, but at no time is it stated or suggested in the report that infanticide is a practice that invariably occurs.

The first personal account shown in the report is that of a Suruwaha man, [A], who states “we haven’t killed babies for a long time, even though we kill some, some we don’t kill. We let them grow up”…The second account is that of a Suruwaha woman, [M], who had been told to kill her child who had cerebral palsy, but instead had left the tribe. Relevant transcript excerpts of Seven’s interview with [M] are set out at Annexure 10.

In addition to the personal account of Surwaha tribe members, Seven relied on information provided to it by respected Human Rights lawyer [MB]. Relevant transcript excerpts of Seven’s interview with [MB] are set out in Annexure 11. When discussing [M]’s account, [MB] also advised Seven that [M] had told her she “has witnessed 28 cases…of children being murdered because of disability or other reasons”. We have included the transcript excerpts of [MB]’s comments about [M]’s account in Annexure 10.

Additional instances of infanticide have also been discussed in a report broadcast on Globo television, the transcript for which is available on their website http://www.fantastico.globo.com/Jornalismo/FANT/0,,MUL695084-15605,00 O+DRAMA+DE+DUAS+INDIAZINHAS+ZURUAHA.html. A translation of this transcript is set out in Annexure 12.

Finally, Seven’s reporter and [PR] confirm that the Funai Official stated on a number of occasions words to the effect of “I’m not denying infanticide occurs, but it’s not a rule”…


The licensee submitted to the ACMA in a letter of 5 June 2012 that:

Stone age

[…]

Seven submits that its use of the term “stone age” was simply an observational comment used to describe the Suruwaha’s way of life and that the mere use of the term, in the context of a truly primitive tribe such as the Suruwaha, is insufficient to fall within the prohibition in clause 1.9.6.

The description was not uttered using a negative tone, nor was it presented in a negative context within the report. There was no suggestion that the Suruwaha were in any way inferior or should be subject to ridicule or contempt. Indeed, the report does present some aspects of the Suruwaha lifestyle as being idyllic. As such, Seven considers the description was accurate and presented in accordance with the Code.

Whilst we consider the description of the Suruwaha way of life was presented appropriately in all the circumstances, should the ACMA consider that the description is likely, in all the circumstances, to constitute a breach of clause 1.9.6, Seven submits that its broadcast of the material falls within the exception set out in clause 1.10.3 which relevantly provides that the


matters will not be contrary to this Section if “said or done in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest”. Indeed, the description was, in Seven’s view, a fair and accurate comment on the circumstances at the time of preparing and broadcasting the report.

Infanticide

Seven does not believe the complainant has raised a valid ground for complaint under clause 1.9.6 of the Code, as any unfavourable opinions created by the descriptions of the practice of infanticide are based on these practices rather than on the grounds of the ethnic origin of the Suruwaha.

In addition, Seven submits that the descriptions of infanticide referred to in the complainant’s letter of 2 October 2011 merely conveys negative information about the Suruwaha, which Seven does not consider amounts to “provoking” or “perpetuating” that reaction in others, as is required by the Code provision.

The above notwithstanding, should the ACMA consider the material constitutes a breach of clause 1.9.6, Seven submits that its broadcast of the material falls within the clause 1.10.3 exception to the application of clause 1.9.6 as the material was “said or done in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest”.

The complainant does not dispute the fact infanticide does occur among the Suruwaha, stating in his letter dated 2 October that “infanticide is rare among the tribes of the Amazon, including the Suruwaha”. Accordingly, Seven submits that an accurate description of the existence of infanticide, regardless of its prevalence, is undoubtedly a matter of public interest, as it raises important questions about the extent to which such practices should be allowed to continue. This public interest concern was emphasised in the report by Human Rights lawyer and legal advisor to the Brazilian Senate on matters to tribal infanticide, [MB].


Attachment EInterpretation of clause 1.9.6 of the CodeThe ACMA adopts the general approach set-out below, when assessing broadcast material against clause 1.9.6 of the Code.

‘Likely, in all the circumstances’

The phrase, ‘likely, in all the circumstances’, imposes an objective test18 and implies a real and not a remote possibility; something which is probable.19

‘provoke’, ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’

When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.

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

provoke verb 2. to stir up, arouse or call forth;

3. to incite or stimulate (a person etc to action)

perpetuate verb 1. to make perpetual

intense adjective 1. existing or occurring in a high or extreme degree

2. acute, strong, or vehement, as sensations, feelings, or emotions

dislike noun 2. the feeling of disliking; distaste:

serious adjective 5. weighty or important;

contempt noun 1. the act of scorning or despising;

2. the feeling with which one regards anything considered mean, vile or worthless

severe adjective 1. harsh, harshly extreme

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

‘On the grounds of’

The phrase ‘on the grounds of’ is interpreted as requiring that there be an identifiable causal link between the prohibited ground and the action complained of. In informing its interpretation of the Code provision, the ACMA notes that there is a great deal of judicial interpretation in relation to the words ‘on the grounds of’ in the context of discrimination law. The phrase is expressed, variously, in other legislation as ‘by reason of’, ‘on the basis of’ and ‘because of’. The Victorian Racial and Religious Tolerance Act uses the same words as the Code, i.e. that the reaction must be ‘on the grounds of’ the personal characteristic.

18 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 [16].19 See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD

773 at 778.


Neave J in the Victorian Court of Appeal case Catch the Fires Ministry & Ors v Islamic Council of Victoria Inc20 case cited with approval the decision in Kazak v John Fairfax Publications Ltd where the New South Wales Administrative Decisions Tribunal said:

There must be a causal connection between the race of the person or group of persons concerned and the feelings of hatred, serious contempt or severe ridicule which are incited by the public act…The grounds on which the public act was performed are not relevant, it is the ground on which the reader was incited to hatred etc which is relevant.

20 [2006] VSCA 284


Documents

Investigations... · Web viewChannel Seven Brisbane Pty Ltd. Station. BTQ Brisbane