FEDERAL COURT OF AUSTRALIA

Channel Seven Brisbane Pty Limited v Australian Communications and Media Authority [2014] FCAFC 179

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J:

Introduction

1    On 4 September 2011 the appellant (“Seven”) broadcast a segment on television station BTQ Brisbane as part of a program known as “Sunday Tonight”. The segment was approximately 20 minutes long. Amongst other things, it made accusations that the Suruwaha tribe in Brazil practised infanticide.

2    A complaint was made to the respondent (“ACMA”) about various statements made during the segment. An investigation ensued and, on 6 August 2012, a delegate of ACMA found that Seven had breached cl 4.3.1 of the Commercial Television Industry Code of Practice 2010 (“the Code”) in two respects and breached cl 1.9.6 of the Code.

3    The delegate’s findings were challenged in this Court on a number of grounds. On 24 June 2014 a judge of the Court rejected each of the grounds (Channel Seven Brisbane Pty Limited v Australian Communications and Media Authority [2014] FCA 668). Seven has appealed, on grounds more limited than its initial challenge.

4    It will be necessary, however, to set the remaining challenge in a fuller context.

The Code

5    The Broadcasting Services Act 1992 (Cth) (“the Act”) provides for the development of codes of practice by participants in the broadcasting industry and for their registration (s 123). ACMA is to maintain a Register of codes of practice so registered (s 124).

6    If a complaint is made to a service provider about compliance with a registered code of practice, and there is an inadequate or delayed response, that person may complain to ACMA (s 148) which (at the time relevant to this matter) was obliged to investigate the complaint and notify the complainant of the results of the investigation. ACMA may publish a report on an investigation (s 179) but must give, to a person whose interests would be likely to be adversely affected, a reasonable opportunity to make representations (s 180). Seven has been given that opportunity. ACMA proposes to publish its report, but has delayed doing so while the current litigation is on foot.

7    The parts of the Code which were relevant before the primary judge were as follows:

Proscribed Material

1.9    A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

…

1.9.6    provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference; or

…

News and Current Affairs Programs

4.3    In broadcasting news and current affairs programs, licensees:

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

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

The impugned statements

8    The primary judge described the basis of the complaint to ACMA in the following way:

3        On 4 September 2011, Seven broadcast a segment (the segment) which ran for approximately 20 minutes as part of the Sunday Tonight program which went to air on that day. The segment reported on the Suruwaha tribe who live in the Amazon jungle in Brazil.

4        The segment featured Seven’s reporter and an author and so-called adventurer, who was identified in the segment but who later came to be referred to by the Australian Communications and Media Authority (the ACMA) as “PR”, as well as officers from Brazil’s Department of Indian Affairs, travelling through the Amazon jungle and meeting with the Suruwaha people. In the segment, the Suruwaha people were filmed hunting, conducting rituals and living their daily life. The segment included interviews with two young Suruwaha men, A and W, and a Human Rights Lawyer (referred to in the ACMA materials as “MB”). Seven also filmed a Suruwaha mother and child in Sao Paulo, Brazil, as part of the segment.

5        After the broadcast went to air, the ACMA received a complaint about the segment. The complainant alleged that Seven had made inaccurate statements in the segment and had broadcast a program which was likely, in all the circumstances, to have provoked or perpetuated intense dislike, serious contempt or severe ridicule against the Suruwaha people on the grounds of … national or ethnic origin … race [or] religion … in breach of cl 1.9.6 of the Commercial Television Industry Code of Practice 2010 (the Code).

6        The complainant alleged that:

(a)    Statements made during the segment by Seven’s reporter and PR to the effect that Brazilian law did not apply where the Suruwaha people lived were inaccurate and thus in breach of cl 4.3.1 of the Code;

(b)    Statements made during the segment to the effect that the Suruwaha people currently practise infanticide in respect of children born with birth defects or to a single mother were inaccurate and thus in breach of cl 4.3.1 of the Code; and

(c)    The same remarks taken with other remarks during the segment were likely to provoke the sentiments described in cl 1.9.6 of the Code on account of the matters proscribed by that clause.

7        The complaint was then investigated by the ACMA.

9    There were other statements made which received attention by the delegate, but the ones referred to above were identified by the delegate as Statements 4 and 5. The delegate set them out in her report as follows (the emphasis is hers):

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

…

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.

Statement 5: References to ‘Infanticide’

…

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.

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.

[The camera goes back to A and the interview with him resumes. A is a young Suruwaha male who featured in the segment.]

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.

10    The delegate said of Statement 4:

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

and said of Statement 5:

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.

11    Each of the statements was found to have breached cl 4.3.1 of the Code.

12    The delegate then considered whether the second group (Statement 5) also breached cl 1.9.6 of the Code. This is the issue which remains relevant for the present appeal.

13    After making the finding about Statement 5 which I have set out above, the delegate went on to make the following further finding:

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 report 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.

(Emphasis added.)

14    The report had asserted that there were 155 members of the Suruwaha tribe. The findings above were to the effect that it had been represented that as a matter of current practice and belief the tribe and its members, without exception, subscribed to infanticide of children born with birth defects or to a single mother.

15    When the delegate turned to the question of whether there had been a breach of cl 1.9.6 of the Code, she first identified “the general approach adopted by the ACMA” in such cases. ACMA’s interpretation of cl 1.9.6 of the Code was set out in an attachment. It included the statement:

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.

16    The interpretation statement also referred to the following adoption by Neave JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 (“Catch the Fire Ministries”) (at [143]) of a statement by the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal (in Kazak v John Fairfax Publications Ltd [2000] NSWADT 77) (at [70] and [69]) that:

143    …

… 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 is not relevant, it is the ground on which the reader was incited to hatred etc which is relevant.

(Footnotes omitted.)

17    No issue was taken on the present appeal with the propositions there distilled.

18    The delegate’s finding and reasons on this issue were then stated, as follows:

Finding

[Seven] breached clause 1.9.6 of the Code.

Reasons

In determining whether [Seven] 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 [sic] children who are born with birth defects or born to a single mother, was based on the tribes’ [sic] 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.

(Emphasis in ordinary italics by delegate.) (My emphasis in bold and bold italics, except for headings.)

19    The submissions of the appellant, to which I will refer again later, sought to emphasise that the findings made by the delegate were focussed upon a cultural or cultural/ethnic practice, rather than upon the ground of ethnic origin or race. However, it is convenient to state at this point that the passages I have emphasised appear to me, upon a fair and neutral evaluation of them, to state conclusions to the effect that the statements would be likely to provoke or perpetuate intense dislike and serious contempt of and for the Suruwaha tribe and its members on account of their practices and beliefs. In light of the earlier findings to the effect that the practice and belief in infanticide was represented by the program to be subscribed to by the members of the tribe without exception so that (as the respondent argued) they were identified as “core” attributes of the tribe and its members, any attempt to divorce or distinguish cultural practice from notions of ethnic origin or race appears to me to be, in the circumstances of the present case at least, artificial.

20    Moreover, early in this section of the report, the delegate plainly stated that the likely viewer response would be directed against the Suruwaha tribe on both the ground of ethnic origin and the ground of race. The specific finding that both grounds were engaged appears to me to disclose an active consideration by the delegate at that point, and in the discussion which followed, of the specific grounds referred to in cl 1.9.6 of the Code.

The proceedings below

21    Seven brought proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) relying upon s 5(1)(e) and (f), which provide:

5    Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

22    The primary judge found that Seven had not made out any of the grounds upon which it challenged the delegate’s findings that it had breached cl 4.3.1 of the Code. Those conclusions are not the subject of any ground of appeal.

23    The grounds concerning cl 1.9.6 of the Code, which were considered by the primary judge, included the following:

8.    The third breach finding involved an error of law in the interpretation and application of clause 1.9.6 of the Code because, rather than asking itself whether the program was likely to provoke or perpetuate dislike, serious contempt or severe ridicule against the Suruwaha “on the grounds of ... ethnic origin [or] race” the respondent asked itself whether the program was likely to provoke or perpetuate such emotions on the ground of the alleged cultural practice of the Suruwaha tribe.

24    Although there were other grounds pressed, and rejected, in connection with the finding of breach of cl 1.9.6 of the Code, it is only the substance of Ground 8 which has been pursued on the appeal.

25    Ground 8 asserted, in effect, that the delegate had not examined the connection between the statements about infanticide and ethnic origin or race but rather had concentrated on, and been diverted by, alleged cultural practice. In effect, the charge was that the delegate had examined the wrong question.

26    The primary judge rejected the contention, saying:

67        Ultimately, the ACMA found that a practice based on the tribe’s beliefs (infanticide) was part of the tribe’s ethnicity and that negative reactions to it would be on the ground of ethnic origin or race. These conclusions were clearly open to it and are not vitiated by reviewable error.

The grounds of appeal

27    The grounds of appeal are:

1.    The trial judge erred in finding that the respondent had, in applying clause 1.9.6 of the Commercial Television Industry Code of Practice (Code), asked itself whether the program was likely to provoke or perpetuate dislike, serious contempt or severe ridicule against the Suruwaha “on the grounds of ... ethnic origin [or] race”.

2.    Further or in the alternative to 1, the trial judge erred in finding that it was sufficient for the respondent, in applying clause 1.9.6 of the Code, to ask itself whether the program was likely to provoke or perpetuate dislike, serious contempt or severe ridicule against the Suruwaha on the ground of the alleged cultural practice of the Suruwaha tribe, rather than asking itself whether the program was likely to provoke or perpetuate such emotions “on the grounds of ... ethnic origin [or] race”.

28    Those grounds put aside as irrelevant the statements of the delegate that indicate plainly that she understood the matters for her attention, and the delegate’s conclusions which were stated in a way which also identified the correct matters for attention.

29    The appellant’s submissions sought to emphasise the distinction for which it contended, and the proposition that statements about cultural practice said nothing necessarily about ethnic origin or race, by reference to the judgment of Nettle JA in Catch the Fire Ministries.

30    The statutory context in that case was different from cl 1.9.6 of the Code and care is needed for that reason alone in too readily transposing the discussion in that case to the present case. Moreover, the passages relied on were not adopted by the other two judges (Ashley JA and Neave JA) and one judge (Neave JA) expressed reservations about them.

31    Nettle JA said (at [30]-[33]):

30        With respect, there are several aspects of that reasoning which I take leave to doubt. The first of them arises out of the adoption of the Bropho test and, consequently, the tribunal’s conclusion that the words “on the ground of [religious beliefs]” imply a causal connection between religious beliefs and impugned conduct. In effect the tribunal decided that the seminar contravened s 8 because the tribunal was satisfied that Pastor Scot was moved or caused by the religious beliefs of Muslims to make the statements which he did at the seminar, and that an ordinary reasonable person who was not malevolently inclined or free from susceptibility to prejudice would be inclined by Pastor Scot’s statements to hate Muslims. But, for the reasons which I have given, I do not consider that that was the question which needed to be decided. In my view the question was whether, having regard to the content of the statements in the context of the whole of the seminar, and to the nature of the audience in the sense that I have described, the natural and ordinary effect of what was stated was to encourage the hatred of Muslims based on their religious beliefs.

31        It is true that the tribunal stated that it was satisfied that the seminar as a whole “incites hatred, contempt and revulsion, because of their religious beliefs”. But given that the tribunal’s reasoning was expressly based on the Bropho test, it is to be assumed that the tribunal was there using the expression “because of their religious beliefs” in the same way that it had used it when defining the meaning of the words “on the ground of”. That is to say, as representing a causal connection between the religious beliefs and the conduct.

32        The second difficulty, as I see it, is that, because the tribunal adopted the Bropho test instead of directing itself to the question of whether the seminar as a whole incited hatred of Muslims based on their religious beliefs, it did not give a great deal of consideration to the distinction between hatred of the religious beliefs of Muslims and hatred of Muslims because of their religious beliefs. The tribunal appears to me to have assumed that the two conceptions are identical or at least that hatred or other relevant emotion of or towards the religious beliefs of Muslims must invariably result in hatred or other relevant emotion of or towards Muslims. In my view, that is not so.

33        I do not overlook that Muslims are defined by their religious beliefs — as persons who profess Islam — and therefore that to incite hatred or other relevant emotion of or towards the religious beliefs of a Muslim may result in hatred or other relevant emotion of or towards the Muslim. But it is surely not to be assumed that it must do so. Muslims are not the only class of persons who are defined by their religious beliefs. So are adherents to other faiths, including Judaism and Christianity. And there are any number of persons who may despise each other’s faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions.

(Emphasis added.) (Footnotes omitted.)

32    I have emphasised two passages in the extract. The first passage makes it clear that, in the view of Nettle JA, the proper enquiry was whether there was likely hatred of a group because of the religious beliefs of its members. Equally, in the present case, there could be no point usefully made about identifying intense dislike or serious contempt of the Suruwaha because of their practices and beliefs. That was, in my view, what the delegate found. Upon that understanding of the delegate’s report, the appellant’s arguments should not be accepted.

33    As to the second passage (upon which the appellant relied in particular), the present is not a case where there is a distinction to be made between hatred of a belief or practice and those who subscribe to the belief or practice. Although there may be no basis for the mere assumption that hatred of the religious beliefs of Muslims means hatred of Muslims (because one does not necessarily follow from the other) that does not falsify the finding in the present case that the Suruwaha were exposed to intense dislike and serious contempt on the ground of their ethnic origin and their race because of their asserted practices and beliefs. In my respectful view, therefore, the views expressed by Nettle JA in Catch the Fire Ministries do not assist the appellant’s case.

34    Moreover, in terms of potential application to the facts of the present case I think, with respect, that the observations of Neave JA in Catch the Fire Ministries (at [176]-[177]) are more pertinent:

176    … Attributing characteristics to people on the basis of their group membership is the essence of racial and religious prejudice and the discrimination which flows from it.

177    I have said that the question whether statements criticising a religion incite hatred or other relevant emotion against persons, or only against their beliefs, is a question of fact, which must be considered in the social and historical context in which the remarks are made. In my view it was open to the tribunal to regard statements attacking Muslim religious belief as capable of inciting reactions of severe contempt, revulsion or serious ridicule of Muslim persons, in an ordinary member of the audience to which those remarks were directed.

35    Equally, in my respectful view, it was open to the delegate to conclude that the statements about the practices and beliefs of the Suruwaha breached cl 1.9.6 of the Code on the ground of their ethnic origin and their race.

Conclusion

36    In my view, neither the delegate, nor the primary judge, made any apparent error of understanding or reasoning which disclosed that either of them overlooked the need for connection with ethnic origin or race. The suggested distinction between those concepts (in the minds of the target audience) and the supposedly different matter of cultural (or ethnic) practice is, in my respectful view, without substance in the present case.

37    I would dismiss the appeal with costs.

Associate:

Dated:    19 December 2014

REASONS FOR JUDGMENT

PERRAM J:

38    I agree with the reasons of Buchanan J.

Associate:

Dated:    19 December 2014

REASONS FOR JUDGMENT

MORTIMER J:

39    I have had the advantage of reading the reasons for judgment of Buchanan J. I respectfully agree with his Honour’s opinion on the outcome of this appeal, and I agree with the orders he proposes. I wish to add some observations of my own on the construction of cl 1.9.6 of the Commercial Television Industry Code of Practice 2010 (the Code), the appellant’s reliance on parts of the judgment of Nettle JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207; [2006] VSCA 284 and the delegate’s reasoning in the ACMA report.

40    The relevant facts, the general legislative scheme in the Broadcasting Services Act 1992 (Cth) (Broadcasting Act) and the Code, the content of the ACMA delegate’s report, the course of the proceeding before the primary judge and his Honour’s reasons for decision are all set out in Buchanan J’s reasons for judgment and I need not repeat them.

Approach to construction of the Code

41    By s 123 of the Broadcasting Act various stakeholders are authorised to develop, in consultation with the ACMA, industry codes of practice relating to categories of subject matter set out in s 123(2) of the Act, including matters related to program content, promoting accuracy and fairness in news and current affairs programs and preventing the broadcasting of material adjudged not to be reflective of “community standards”.

42    Section 123(3) provides:

In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:

(a)    the portrayal in programs of physical and psychological violence;

(b)    the portrayal in programs of sexual conduct and nudity;

(c)    the use in programs of offensive language;

(d)    the portrayal in programs of the use of drugs, including alcohol and tobacco;

(e)    the portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;

(f)    such other matters relating to program content as are of concern to the community

43    It is to be noted that the subject matter in cl 1.9.6 of the Code is expressly contemplated by s 123(3)(e), although the language is not the same. The Court was informed that s 123(3) has been in this form since the enactment of the Broadcasting Act. Not all of the matters dealt with in s 123(3) are matters which necessarily involve contraventions of Australian law. It would misconceive the function of the provision to read s 123(3)(e) as directly importing, or intending to mirror, any statutory prohibition. Rather, the provision’s focus on “community attitudes” as the basis for the standards set out in codes of practice, together with the breadth of the subject matter covered by subs (3), means in my opinion it is not appropriate to approach the meaning of Code provisions made under s 123 as if they were provisions imposing civil or criminal liability.

44    Compliance with the Code is not a condition attaching to Channel 7’s broadcasting licence (cf s 44(2)(a)), although through an exercise of discretion the ACMA can add a licence condition requiring compliance with a specific code: see s 43.

45    Sections 141(6)-(7) empower the ACMA to take remedial action in relation to a breach of a registered code of practice. They provide:

Codes of practice

(6)   If the ACMA is satisfied that a person who provides:

(a)   a subscription radio broadcasting service; or

(b)   a subscription narrowcasting service; or

(c)   an open narrowcasting service;

has breached, or is breaching, a registered code of practice that applies to the service, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that code of practice, or is unlikely to breach that code of practice, in the future.

(7)   The following are examples of the kinds of direction that may be given to a person under subsection (6):

(a)   a direction that the person implement effective administrative systems for monitoring compliance with a registered code of practice that applies to the service concerned;

(b)   a direction that the person implement a system designed to give the person’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a registered code of practice that applies to the service concerned, in so far as those requirements affect the employees, agents or contractors concerned.

46    Contravention by a commercial broadcasting licence holder of a remedial direction under s 141(6) is an offence and a breach of a civil penalty provision: see ss 142-142A.

47    Part 11 deals with complaints to the ACMA, and s 148 deals with complaints under a Code. Subject to some exceptions which are not presently material, the ACMA is required to investigate a complaint: s 149(1). It may conduct investigations (see s 170), and those investigations must be conducted in accordance with provisions of Div 2 of Part 13. A report of any investigation may (and if the Minister has directed the investigation, must) be produced (s 178). If the investigation relates to conduct which may constitute an offence against the Broadcasting Act, the ACMA may give a copy of the investigation report to the Director of Public Prosecutions (s 178(2)). Subject to giving those affected an opportunity to be heard (see s 180), the ACMA may also publish the report of its own initiative or at the direction of the Minister (s 179).

48    Therefore, as senior counsel for Channel 7 conceded, the principal consequence of a report under Div 2 of Part 13 is reputational, through publication. The Court was informed that no publication of this report had occurred to date, because of this proceeding. Senior counsel for the ACMA informed the Court that, subject to the outcome of this proceeding, the ACMA did intend to publish the report in issue.

49    The parties agreed the Code does not have the status of a legislative instrument, nor obviously could it be seen as a form of delegated legislation. The appellant’s arguments proceeded on the assumption that established principles of statutory construction not only could, but should, be applied to the provisions of the Code.

50    The Code is not drafted by the ACMA, but rather by the stakeholders referred to in s 123. The ACMA’s role is to be satisfied about the matters set out in s 123(4)(b): if satisfied, the ACMA has an obligation to register the Code. In particular, it must be satisfied the code of practice “provides appropriate community safeguards for the matters covered by the code”. A code of practice is intended to be the first mechanism through which “appropriate community safeguards” are imposed on broadcasters. It is only if the ACMA is satisfied that a code is not “operating to provide appropriate community safeguards for a matter referred to in subsection 123(2) in a particular section of the broadcasting industry” that the ACMA is empowered under s 125(1) to determine a standard in relation to that matter.

51    Although a code of practice has no status as subordinate legislation, it can be amended on a resolution of either House of Parliament: s 128 of the Broadcasting Act. I respectfully agree with Griffiths J in Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525; [2012] FCA 614 at [100] that this provision is an indicator of Parliament’s role in determining appropriate community standards for broadcasters. It also confirms the legislative character of a Code, consistently with the factors set out in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615.

52    The Code’s legislative character, and the fact that the source of its authority is the Broadcasting Act, means that analogies with contractual principles (including principles of contractual interpretation) may be inapposite: see the discussion of this distinction in the context of an industrial agreement in Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152; [2014] FCAFC 84 at [86]-[90] per Jessup, Tracey and Perram JJ. The role of the Code has some similarities to the role of documents such as Statements of Principles under veterans’ entitlement legislation: see generally Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419.

53    Accordingly, there is a principled basis on which to construe the Code consistently with the Broadcasting Act, and to apply at least the general principles of construction applicable to documents of a legislative character. It remains important, however, to approach the task of interpretation of a Code by giving principal effect to its character as a document drafted by stakeholders and community representatives which is intended to reflect community attitudes and standards, as members of the Australian community might express them. It is not to be over-parsed, as the appellant’s submissions sometimes tended to do.

54    The objectives of the Code are set out in cl 1.1:

1.1 The Code is intended to:

1.1.1 regulate the content of commercial television in accordance with current community standards;

1.1.2 ensure that viewers are assisted in making informed choices about their own and their children’s television viewing;

1.1.3 provide uniform, speedy and effective procedures for the handling of viewer complaints about matters covered by the Code;

1.1.4 be subject to periodic public review of its relevance and effectiveness.

55    Licensees must seek to comply fully with the Code (cl 1.5) although there are some specified circumstances which will excuse compliance.

56    The standards imposed by the Code range over wide subject matter, from closed captioning for hearing impaired or deaf people, to classification of programs, to placement and classification of commercials and community service announcements, gambling and betting promotions during live sporting events and handling of complaints.

57    At the start of the Code, in cll 1.9 and 1.10 is a section headed “Proscribed material”. It provides:

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:

1.9.1 simulate news or events in such a way as to mislead or alarm viewers;

1.9.2 depict the actual process of putting a subject into a hypnotic state;

1.9.3 be designed to induce a hypnotic state in viewers;

1.9.4 use or involve any technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness;

1.9.5 seriously offend the cultural sensitivities of Aboriginal and Torres Strait Islander people or of ethnic groups or racial groups in the Australian community;

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; or

1.9.7 present participants in reality television programs in a highly demeaning or highly exploitative manner.

Demeaning: A depiction or description, sexual in nature, which is a serious debasement of persons, or a group of persons, within a program.

Exploitative: Clearly appearing to purposefully debase or abuse a person, or group of persons, for the enjoyment of others, and lacking moral, artistic or other values.

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.

58    Whichever subclause of cl 1.9 is examined, and bearing in mind their purpose of reflecting “community attitudes” about standards to which commercial broadcasters should adhere, and providing “community standards” to which broadcasters should adhere, it is clear all subclauses call for assessments about the effect of a program. Those assessments will be of a qualitative kind, on matters about which views may reasonably differ to a considerable extent. One aspect of the purpose of proscribing broadcasters from creating the kind of effects referred to in cl 1.9.6 is, comparably with anti-vilification legislation, a protective one: see Neave JA in Catch the Fire Ministries 15 VR 207; [2006] VSCA 284 at [173]. This also suggests no particularly technical approach should be taken to the language used in a clause such as this.

59    Other parts of the Code in issue before the primary judge call for similar qualitative judgments to be made by the ACMA, as the regulator. Clause 4.3.10 of the Code, dealing with news and current affairs programs, provides that a licensee

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

60    The appellant’s contention is that the delegate decided only that the specified reactions, or effect, of “intense dislike, serious contempt or severe ridicule” would be provoked against the Suruwaha “on the ground of” their alleged cultural practice of infanticide, rather than “on the ground of” the ethnic origin or race of the Suruwaha.

61    It may be accepted, as Attachment E to the delegate’s report set out, that using a phrase such as “on the grounds of” connotes the existence of a causal link between the reactions of “intense dislike, serious contempt or severe ridicule” and the ethnic origin or race of the Suruwaha. In a document such as the Code, I see no basis to distinguish the phrase “on the grounds of” from other phrases with a causal flavour such as “because of” or “by reason of”, noting that there may be a distinction between those phrases and one such as “based on”, which has been held to import a broader notion of connection, not necessarily of a causal kind: see Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 24-30 per Weinberg J and the authorities to which his Honour refers.

62    Determining that the ACMA must be satisfied a given program has the effect of provoking or promoting “intense dislike, serious contempt or severe ridicule” for a group of people because of one of the attributes set out in cl 1.9.6 does not mean it is appropriate to import into that analysis cases from anti-discrimination law about ascertaining the “real reason” for the conduct of the alleged discriminator, such as Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62, University of Ballarat v Bridges [1995] 2 VR 418 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32. In anti-discrimination law, there is an identified person, or persons, who are said to be the ones responsible for the alleged unlawful discrimination. It is the conduct of those persons which is examined by the Court, in accordance with the well-established tests set out in those authorities, to determine the reason for the conduct.

63    In cl 1.9.6, as with the Racial and Religious Tolerance Act 2001 (Vic) (cf the federal provisions in the Racial Discrimination Act 1975 (Cth) and cf Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103) the Code does not contemplate identification of a particular person or persons in whom the specified reactions occur. The people contemplated by the terms of cl 1.9 of the Code are the likely viewers — those likely to be watching the broadcast of the program. Unlike anti-discrimination statutes, which require the Court forensically to inquire into the reason for the conduct of an identified discriminator, in the case of the Code the task for the ACMA is to examine the likely effect of the program on people who remain unidentified other than by reference to the activity of having watched the program. Any approach based on the “real reasons” such a group might have for the reactions mentioned in the Code will cause the inquiry set out by cl 1.9.6 to miscarry.

64    The reaction set out in the Code must be a reaction against a person or group of persons. There must be a link between the reaction and one of the specified attributes. What it is in the program, or what is said and done in the program, which provokes that reaction may be limited only by human imagination. Referring to the religious beliefs of a person or group, to a cultural practice, to the way people dress, the language they use, making comparisons with animals — all such things are just as capable of being the trigger for the specified reactions as is a direct attack on a person’s or group’s ethnicity.

65    The appellant submits the effect of the ACMA’s decision (and, by implication, the primary judge’s failure to agree the decision was legally erroneous) is that “no intensely critical report can be made of a particular practice if the people engaging in that practice are delineated by ethnic origin”. There is no merit in this submission. The cultural practice of female circumcision is the subject of much negative comment, and criticism, in public debates and often in the context of identifying that practice with particular ethnic or racial groups. As I have noted above, cl 1.9.6 poses a factual question about the content of a program, and its likely effect. Intense criticism of a cultural practice, or even direct, intense criticism of an ethnic group, might conceivably occur in a program without any contravention of cl 1.9.6. These matters are always fact dependent.

Reliance on obiter reasoning in Catch the Fire Ministries

66    The appellant submits its posited distinction (between cultural practice and ethnicity or race) is supported by the reasoning of Nettle JA in Catch the Fire Ministries 15 VR 207; [2006] VSCA 284 at [30]-[33], extracted in Buchanan J’s reasons for judgment. In those passages Nettle JA sought to distinguish the incitement of serious contempt (or other nominated reactions) of the religious beliefs of Muslims from hatred of Muslims, saying amongst other things “there are any number of persons who may despise each other’s faiths and yet bear each other no ill will”. The appellant submits that “hostility to a particular set of beliefs cannot be assumed to equate to hostility to a group who hold such beliefs”.

67    If Nettle JA’s analysis of the Racial and Religious Tolerance Act is said to be the source from which such a distinction can be imported into cl 1.9.6 of the Code, I do not accept the premise of the submission. It is not apparent to me that the posited distinction arises on the terms of s 8(1) of the Racial and Religious Tolerance Act itself.

68    Section 8(1) of the Racial and Religious Tolerance Act provides:

A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

69    The provision requires there to be serious contempt (or other nominated reactions) against people, with the cause of those reactions being the religious beliefs (or activities) of the people concerned. The provision does not ask if serious contempt for religious beliefs is incited. Unlike the Code, s 8(1) takes as its starting point the use of only one subject matter (religious belief or activity) as the basis for incitement. For example, inciting serious contempt against Muslims by asserting that many of them come from Iraq is not covered at all by s 8(1). The person who engages in the incitement must do so on the basis of the religious beliefs or activities of another person. Thus, being a factual assessment (as Neave JA pointed out in Catch The Fire Ministries 15 VR 207; [2006] VSCA 284 at [177]), the only question for the decision-maker under s 8(1) is whether the alleged inciter, by what is said about another person’s religious beliefs or activities, has incited the reactions referred to in s 8(1). That being the statutory task, I do not see, with great respect to Nettle JA, that there is room for the distinction his Honour puts forward. It is only the use of a person’s religious beliefs which on the terms of s 8(1) is capable of causing the incitement to which the provision is directed. If serious contempt (or other specified reactions) against a person is not caused by what is said about religious beliefs, then s 8(1) will not be contravened. There is in my respectful opinion no need for the posited distinction, even on the terms of s 8(1).

70    When the terms of the Code are examined, there is in my opinion no place at all for the importation of such a distinction in cl 1.9.6. Unlike s 8(1) of the Racial and Religious Tolerance Act, the subject matter which can cause the specified reaction in cl 1.9.6 is wide and not particularised. The subject matter is simply “the program” — how the content of the program may or may not have the effect prohibited by cl 1.9.6 is not confined. Thus, whether the content of the program may or may not have the effect prohibited by cl 1.9.6 will depend on the qualitative and factual assessment undertaken by the ACMA, as both parties accepted, in the context of the whole of the program. The prohibited effect might be achieved through program content about a group’s appearance, its language, its practices or beliefs. The prohibited effect might be achieved through program content that is not information about the group at all, but rather opinions of others about the group. Clause 1.9.6 is not confined at all about how the effect might occur through the program.

71    Program content about cultural practices might have the prohibited effect, or it might not. The observations of Neave JA in Catch the Fire Ministries 15 VR 207; [2006] VSCA 284 at [176] provide an example (but no more than an example) of why the prohibited effect might occur:

Where a person comes from a racial or religious background which differs from that of the majority of the population, the ways in which they differ are often regarded by others as having greater significance than the ways in which they are similar. To put it another way, differences of religion or race may define minorities in ways in which they are not seen as defining those who belong to the majority. In the Australian context, for example, the fact that an Anglo-Celtic person is Protestant or Roman Catholic is no longer regarded as an essential point of difference. By contrast, in the current social context, the fact that a person is a Muslim may be portrayed by some and seen by others as a characteristic which determines their identity. Attributing characteristics to people on the basis of their group membership is the essence of racial and religious prejudice and the discrimination which flows from it.

72    There is no place in the text, context or purpose of cl 1.9.6, read in a beneficial and non-technical way as befits a document of this kind, for the distinction erected by the appellants. I do not consider any such distinction inheres in s 8(1) of the Racial and Religious Tolerance Act. However, even if it did, I do not consider it should be imported into cl 1.9.6. Indeed, any such distinction is likely to encourage the miscarriage of the ACMA’s statutory investigation and recommendation task on receipt of a complaint concerning cl 1.9.6.

The ACMA delegate’s reasoning in the report

73    While it may be accepted that the articulation of the admittedly correct approach to a provision in a report or reasons will not insulate such a report or reasons if, in fact, the decision-maker (or reporter) has not undertaken that approach when applied to the facts (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 per Brennan CJ, Toohey, McHugh and Gummow JJ), I do not consider that is what occurred in relation to the ACMA.

74    While the appellant is correct that on p 14 the delegate records her satisfaction 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” and that this sentence draws a link between the provocation of the specified reaction and the cultural practice rather than ethnicity or race, that sentence is neither the beginning nor the end of the delegate’s analysis.

75    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [14], Gleeson CJ said:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

76    As the respondent submitted, the beginning of the analysis is at pp 9-10 of the report. There the delegate finds that the relevant part of the program would have been understood by viewers as factual material about the practice of infanticide by the Suruwaha. On p 10, the delegate then rejected the appellant’s submissions that the program presented a more nuanced view, and she found that there “was nothing in the broadcast to indicate the topic of infanticide and/or associated beliefs is not without dispute, debate or qualification”. That is the basis for her finding, a few paragraphs later, that viewers would have taken the program as conveying “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”.

77    As the respondent correctly submitted, the delegate has made findings of fact that the program represented these are beliefs currently held by the Suruwaha and practiced without exception. As the respondent submits, this informs the subsequent findings by the delegate at pp 14-15, because the delegate has already found as a fact that the program entirely equates the practice (of infanticide) with the Suruwaha as a whole.

78    She then proceeds to examine the language used in the program. She characterises it as “highly descriptive” and notes the language is used in the context of the existing “general abhorrence” to infanticide. I understand here the delegate to be expressing the view that the particular language used has to be seen in the context of a subject matter already clearly abhorrent to most viewers. That was a view plainly open to the delegate.

79    The delegate then rightly pointed out (at p 15) that material which conveys negative reactions towards a group is not “provocation” for the purposes of cl 1.9.6, and there must be “something more” which is “positively stimulatory” of such a reaction. She saw this positive stimulation as present in two comments in the program, the first being “this is one of the worst human rights violations in the world” and the second being “The more I got to know them, the clearer it became that there were other more disturbing practices”. The delegate describes the program as having a “judgmental tone”, and refers to the language in the program about killing of babies as “highly evocative”. Again, these characterisations are open on the material, and were a matter for the delegate.

80    Later, on p 16 of the report, the delegate returned to make a further finding about the tone of the program. She referred to language such as “poor, little innocent babies” and “worst human rights violations in the world” as examples of the provocation of feelings of intense dislike and serious contempt for the Suruwaha.

81    The delegate said (at p 15):

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 [sic] who are born with birth defects or born to a single mother was based on the tribes’ beliefs.

82    Here the group towards which the reaction is provoked is the ethnic group, the Suruwaha: the group and its ethnicity are one and the same. In my opinion this is what it was open to the delegate to recognise when she concluded that the program conveyed that infanticide was based on the beliefs of the Suruwaha as a whole. In the particular circumstances of the content of this program, there is no legal error exposed by the way the reasons are expressed.

83    Reading the report fairly, and in context, the delegate formed the view that the program associated the practice of infanticide with the Suruwaha tribe as a whole, and the program’s content suggested infanticide was practiced without remorse and in horrific circumstances, describing what the Suruwaha did in highly emotive language. The delegate explained how she reached the conclusion she did, and her explanation correctly identified the reason for the reaction described by the Code as being membership of the Suruwaha tribe, which is another way of describing the ethnicity of the people concerned.

84    I would dismiss the appeal with costs.

Associate:

Dated:    19 December 2014