IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1348 of 2012
CHANNEL SEVEN BRISBANE PTY LIMITED
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
DATE OF ORDER:
24 JUNE 2014
THE COURT ORDERS THAT:
2. The applicant pay the respondent’s costs of and incidental to the Application as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1348 of 2012
CHANNEL SEVEN BRISBANE PTY LIMITED
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
24 JUNE 2014
REASONS FOR JUDGMENT
1 In 2011, Channel Seven Brisbane Pty Limited (Seven) operated the commercial television station known as BTQ Brisbane.
2 For some years prior to late 2011, the Seven network had broadcast a one hour current affairs program at 6.30 pm on Sunday evenings known as Sunday Tonight.
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.
8 Prior to finalising its Investigation Report, the ACMA provided a Preliminary Investigation Report to Seven and sought comments from Seven in relation to that Preliminary Investigation Report.
9 By Investigation Report 2741 dated 6 August 2012 (the Report), a delegate of the ACMA determined that Seven, in relation to the segment:
(i) Had breached cl 4.3.1 of the Code in relation to the statement:
“Here, we’re outside the protection of Brazilian law”;
(ii) Had breached cl 4.3.1 of the Code in relation to the statements:
“These lost tribes encourage the murder of disabled children”.
“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.”
(iii) Had breached cl 1.9.6 of the Code by including within the segment the remarks to which I have referred at subpar (ii) above concerning infanticide.
10 Seven was dissatisfied with the three determinations which I have extracted at  above.
11 On 7 September 2012, Seven filed an application in this Court for judicial review of the ACMA’s determinations in the Report to which I have referred at  above.
12 In broad terms, Seven contended that the ACMA had committed errors of law in making those determinations, had failed to take account of a mandatory relevant consideration in the form of its own policy in relation to presenting factual material accurately and had undertaken an improper exercise of power. Seven also contended that the decisions were perverse, irrational, illogical and not reasonably open.
13 This proceeding was heard immediately after proceeding NSD 1347 of 2012 between Channel Seven Adelaide Pty Limited and the ACMA (the Adelaide proceeding). Judgment in that matter is to be delivered at the same time as judgment in this matter. Some issues of principle are common to both matters. To the extent that it may be necessary or desirable, those who read and wish to understand these Reasons for Judgment should also have regard to the Reasons for Judgment to be published this day in the Adelaide proceeding (Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority  FCA 667) (the Adelaide judgment).
14 On pp 2–3 of the Report, the delegate set out the same text as was set out on pp 2–3 of the Report in the Adelaide proceeding under the heading “Assessment” and under the heading “Ordinary, reasonable viewer test”.
15 The delegate who authored the Report in this case is the same delegate who wrote the ACMA’s Report which was challenged in the Adelaide proceeding. At p 3 of the Report, the delegate commenced her consideration of Issue 1: Presentation of Factual Material. She set out cl 4.3.1 of the Code and cl 1.5.2 of the Code. She also referred to the fact that, as had been the case in the Report under review in the Adelaide proceeding, Attachment B contains the considerations which the ACMA generally applies in determining whether a statement complies with the licensee’s obligation to present factual material accurately. Attachment B to the Report is in identical terms to Attachment B to the Adelaide Report. I will not set out that document again but simply observe that the text of the document can be found at  in the Adelaide judgment.
16 At pp 4–6 of the Report, the delegate then addressed three particular statements which are no longer in contention.
17 Then, at p 6, the delegate addressed Statement 4: “Here, we’re outside the protection of Brazilian law.”
18 Under that heading, the delegate said (at pp 6–7):
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 Brazilian 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.
19 The delegate then moved to consider the submissions made on behalf of each of the complainant and Seven. At this point of the Report, the delegate noted Seven’s submission that it was Funai (the Brazilian government agency dealing with indigenous tribes in Brazil) policy not to interfere with traditional practices such as infanticide even when Funai is aware that such practices contravene Brazilian law.
20 At p 8, the delegate said:
The submissions put forward by [Seven] indicate that anecdotal accounts suggest that in practice, authorities are disinclined to pursue criminal matters, that the Suruwaha people did 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’.
21 The delegate then noted that, in response to her Preliminary Investigation Report, Seven had submitted that Art 26 of the Brazilian Criminal Code exempted from punishment those who were entirely unable to understand the unlawful or criminal character of their actions. Seven submitted that the Suruwaha people would have been entitled to pray in aid Art 26 in order to absolve themselves from punishment had, for example, they killed the reporter and PR during the course of those persons’ visitation with them.
22 At p 9 of the Report, the delegate said:
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 [Seven’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 [Seven] 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 [Seven’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.
23 The delegate then moved to consider the statements made in respect of infanticide. At pp 9–10, the delegate said:
Statement 5: References to ‘Infanticide’
The relevant statements (in bold) In relation to infanticide were made in the following context:
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 lime. 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’.
[Seven] 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.
In response to the Preliminary Investigation Report, [Seven] submitted that:
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 [Seven].
24 After making the remarks which I have extracted at  above, the delegate went on to consider whether the information which had been conveyed was accurate. She embarked upon a detailed consideration of certain research and other materials. In particular, she noted Seven’s assertion that the practice of infanticide was clearly established and the sources which Seven cited in support of that assertion. However, the delegate did not accept Seven’s submissions.
25 At p 13 of the Report, the delegate said:
The ACMA does not agree that the interpretation of [Seven’s] obligations under the Code would have the effect suggested by [Seven]. 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 [Seven] 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 [Seven] would have been aware of the opposing views and debate regarding the prevalence of infanticide, the ACMA does not consider that [Seven’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.
26 The delegate then moved to consider cl 1.9.6 of the Code.
27 After extracting the terms of cl 1.9.6, the delegate also set out cl 1.10 of the Code which provides for a series of exceptions to cl 1.9. At the relevant time, cl 1.10 was in the following terms:
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.
28 At p 14 of the Report, the delegate then said:
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.
29 Attachment E to the Report is in the following terms:
Interpretation of clause 1.9.6 of the Code
The 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 test (Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356–357 ) and implies a real and not a remote possibility; something which is probable (See the discussion in Re Vulcan Australia Pty Ltd end Comptroller-General of Customs (1994) 34 ALD 773 at 778).
‘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 at 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.
Neave J in the Victorian Court of Appeal case Catch the Fires Ministry & Ors v Islamic Council of Victoria Inc ( VSCA 284) 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.
30 The delegate found that Seven had breached cl 1.9.6 of the Code and was not able to avail itself of the exceptions in cl 1.10 of the Code. At pp 14–15, the delegate gave her reasons for these conclusions. She said:
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.
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.
31 At pp 15–16, the delegate extracted submissions made by Seven in response to her Preliminary Investigation Report to the effect that it would be an incorrect application of cl 1.9.6 only to assess the impact of the relevant statements in isolation or in a limited context.
32 At p 16 of the Report, the delegate said:
The ACMA is not persuaded by [Seven’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.
33 The delegate then considered whether Seven could rely upon the exemption in cl 1.10.3. At p 17 of the Report, the delegate said:
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 [Seven’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, [Seven] 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 [Seven’s] submissions on this issue. The ACMA has found, in relation to accuracy, that [Seven] 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.
The Regulatory Framework
34 I set out in the Adelaide judgment (at –) the relevant provisions of the regulatory framework in which Seven’s complaints about the ACMA’s decisions must be considered. I adopt and incorporate those paragraphs into these Reasons for Judgment.
35 In its Amended Originating Application for Judicial Review, Seven relies upon s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), s 5(1)(f) of that Act and s 39B of the Judiciary Act 1903 (Cth).
36 Section 5(1)(e) and s 5(1)(f) of the ADJR Act 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;
Grounds 1–4 – Breach of Clause 4.3.1 of the Code in relation to the Statement: “Here we’re outside the protection of Brazilian law”
37 By way of introduction to its more detailed submissions, Seven submitted that there is a clear distinction between:
(a) The proposition that Brazilian law does not apply at all to the actions of the Suruwaha on Suruwaha land with the consequence that the Brazilian Government could not have taken action (even if it had wanted to) if a Suruwaha man or woman had killed the visitors; and
(b) The proposition that, as a matter of policy and practice, Brazilian law is unlikely to be applied to the actions of the Suruwaha on Suruwaha land. That is, the Brazilian Government would not have taken action against the Suruwaha if one of them had killed the visitors (even if it had the power to take such action).
38 The critical statements made during the segment were extracted by the ACMA at pp 6–7 of the Report. I have set them out at  above.
39 The proposition summarised at [37(b)] above was claimed by Seven to accurately reflect current government policy in Brazil, at least in respect of some actions that might be undertaken by the Suruwaha on Suruwaha land.
40 The ACMA found a breach of cl 4.3.1 because it characterised the relevant statement as being an assertion of fact as to the position under Brazilian law rather than an assertion of fact concerning current policy and practice on the part of the Brazilian Government and its agencies.
41 Seven submitted that the ACMA’s conclusion on this point is affected by a number of errors and that the true characterisation of the relevant statement was that it was nothing more than a statement of opinion as to what would likely happen in the event that murder had been committed.
Ground 1 – Reliance on Inferences rather than the Material Broadcast
42 The first error identified by Seven was that the ACMA failed to consider the material that was in fact broadcast in its proper context but rather impermissibly drew inferences from what was said.
43 Seven submitted that the relevant statement addressed the protection of the law as a practical matter rather than as a jurisprudential matter. It argued that the very last remark made by PR in the extract set out at  above demonstrates that the statements were only ever about the policy and practice of the Brazilian Government rather than the strict legal position according to Brazilian law.
44 Seven submitted that the ACMA ought not to have approached the matter by using the test which it posed for itself as the “ordinary reasonable viewer” test. Adopting that test by reference to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 (Marsden) at 164–167 was likely to introduce all manner of technicalities from the law of defamation which would only serve to cloud the true task. In particular, the concept of teasing out imputations from express statements which is so popular in the law of defamation has no place in the proper characterisation of statements made in current affairs programs for the purposes of applying the Code. Seven went so far as to submit that the use of the test which the ACMA posed for itself based, as it was, upon Marsden was an error of law and amounted to the ACMA misdirecting itself on the critical question.
45 Seven went on to submit that the ACMA had taken an unduly restrictive approach based upon a wrong and inappropriate analogue. According to Seven, it failed to identify and assess the material broadcast because it failed to assess the material in its proper context.
46 Seven also submitted that the ACMA had failed to apply its own guidelines set out in Attachment B because it failed to pay due regard to the fact that, whatever else could be said, the relevant statement was a statement as to the future and thus a statement of opinion. Seven submitted that, in those circumstances, the ACMA had to consider its own guidelines in relation to statements of opinion and statements in respect of future matters and that it had simply failed to do so.
47 I do not agree with the submissions made on behalf of Seven. In reality, they overwork the problem. All that the ACMA really did was to ascertain what the ordinary reasonable viewer would have understood the program to have conveyed by reference to the entire segment. The ACMA assessed what it was that was actually being broadcast. Looked at in that way, the ACMA came to the view that the meaning conveyed by the relevant statement in the context in which it was said was that, had a murder been committed by a Suruwaha person on Suruwaha land, Brazilian law would not have applied to the perpetrators. This characterisation was clearly open to the ACMA and cannot be gainsaid in the manner now contended for on behalf of Seven.
48 Whether or not Brazilian law applied to the postulated murder was a question of fact. The dialogue constituted by the statement itself and the other relevant remarks extracted by the ACMA at pp 6–7 of the Report demonstrate that the relevant statement was made in absolute and unqualified terms. As I have already said, it was clearly open to the ACMA to characterise the statement as one of fact and as an unqualified statement of fact.
49 I reject ground 1.
Grounds 2 and 2A – The Distinction between Fact and Opinion
50 To some extent, the submissions made in support of these grounds repeated submissions made in respect of ground 1.
51 Seven submitted that the expression in cl 4.3.1 of the Code “factual material” did not cover statements of opinion. It went on to submit that Attachment B itself acknowledged that there was a distinction between statements of fact and statements of opinion. It then argued that the statements made by the reporter and PR as to the applicability of Brazilian law were statements of opinion and that it was an error of law to characterise them as statements of fact. Seven emphasised that the ACMA had not undertaken any analysis of the difference between fact and opinion when characterising the statements in question here. According to Seven, having created the policy set out in Attachment B, the ACMA was bound at least to have regard to that policy when considering the present complaint.
52 The ACMA considered that the relevant statement was not a statement of opinion but rather a statement of fact. It had been made as a voice over and formulated in the past tense. Even if the ACMA was bound at least to consider its own policy in Attachment B, there was no basis for concluding that it did not do so in the present case.
53 Grounds 2 and 2A are rejected.
Grounds 3 and 4 – No Evidence Ground and Perversity
54 These grounds relied upon by Seven constitute yet another way of endeavouring to attack the conclusion reached by the ACMA that the relevant statement to the effect that Brazilian law did not apply to the Suruwaha on Suruwaha land was properly characterised as a statement of fact. In its Written Submissions in support of these grounds, Seven said that there was no probative evidence to support the proposition that the segment included factual material to the effect that Brazilian law simply did not apply to the actions of the Suruwaha on Suruwaha land. To characterise the broadcast material in this fashion is to beg the question. The answer to this proposition depends upon what interpretation one places on the broadcast and, in particular, how one characterises the relevant statement.
55 In the present case, the ACMA characterised the relevant statement as a statement of fact. That characterisation was reasonably open to the ACMA. That is the end of the matter. I reject grounds 3 and 4.
Ground 5 – Error of Law in Identifying the Factual Material in the Broadcast Re Infanticide
56 Seven submitted that the ACMA’s finding that the statements in the broadcast concerning infanticide constituted factual material within the meaning of cl 4.3.1 is legally flawed.
57 Seven submitted that the ACMA failed to consider the relevant statements in context. In particular, it was submitted that the ACMA failed to consider A’s observations in respect of infanticide. Seven also contended that there was no good reason for the ACMA to ignore A’s comments. Seven also complained about the ACMA’s treatment of the remarks made by MB (the Human Rights Lawyer).
58 But the delegate did consider A’s comments. She specifically referred to them and described them as brief, ambiguous and confusing. That was a fair description of those comments. In my judgment, it was open to the ACMA to reach the conclusion which it did in terms of the characterisation of the broadcast material concerning infanticide.
59 I reject ground 5.
Grounds 6 and 7 – Characterisation of Factual Material Perverse and Not Supported by the Evidence
60 Senior Counsel who appeared for Seven accepted that, fairly understood, the segment did convey the message that infanticide was still being carried out by the Suruwaha, at least from time to time. Nonetheless, he took issue with the proposition that the segment also conveyed the notion that the question of whether infanticide was currently practised by the Suruwaha was not a matter of dispute when, in fact, it was a matter of considerable dispute according to a significant amount of relevant literature.
61 As I have already said, it was clearly open to the ACMA to characterise the broadcast material in the way that it did. Seven has failed to make out grounds 6 and 7.
The Third Breach – Group Vilification
Ground 8 – The ACMA asked itself the Wrong Question in Applying Clause 1.9.6 of the Code
62 In support of this ground, Seven correctly submitted that, for the purposes of cl 1.9.6 of the Code, there must be some connection between the emotions provoked or perpetuated as described in the clause and the attributes of age, colour etc described in the latter part of the clause. Seven submitted that the relevant enquiries must be directed to the reason why the emotions described in the first part of cl 1.9.6 are provoked or perpetuated. In endeavouring to support its case in respect of cl 1.9.6, Seven relied upon various cases dealing with the law of discrimination. Seven went on to submit that hostility to a particular set of beliefs cannot be equated to hostility to a group who holds such beliefs. Nor can hostility to a group on the ground of a particular belief or practice be equated to hostility to that group on ethnic grounds. Seven submitted that the ACMA undertook the wrong kind of assessment when looking at the alleged breach of cl 1.9.6.
63 Senior Counsel for the ACMA referred to the ACMA’s reliance upon Attachment E to the Report when interpreting cl 1.9.6. He submitted that Attachment E includes a correct statement of the manner in which the phrase “on the grounds of” has been construed, namely, “… as requiring that there be an identifiable causal link between the prohibited ground and the action complained of”. In addition, in reliance upon the reasons of Neave JA in Catch the Fires Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, the ACMA noted in the Report that 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.
64 It was submitted on behalf of the ACMA that, at the commencement of its reasons, it again set out the correct test, indicating (at p 14) that it had to:
(a) Identify the relevant individual or group and the ground upon which that individual or group was targeted; and
(b) Consider whether the broadcast provoked intense dislike, serious contempt or ridicule against the relevant individual or group “on that ground”.
65 It was then submitted on behalf of the ACMA that, having twice identified the applicable test with precision, the ACMA considered whether the alleged actions were directed towards to the Suruwaha tribe as a group, on the grounds of both ethnic origin and race. It was ultimately satisfied that they were so directed. That finding was reasonably open in the context of the segment, the entire focus of which was the tribe itself.
66 It was submitted on behalf of the ACMA that the language deployed in the broadcast was highly evocative and designed to provoke strong emotions. These conclusions were arrived at by not only considering what was said but the tone of and context in which it was said.
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.
68 I reject ground 8.
69 In support of this ground, Seven submitted that the ACMA asked itself the wrong question by focussing on portions of the segment rather than on the entire segment.
70 In my judgment, the ACMA did not do this. It focussed upon the entire segment but recognised, as was clearly the case, that even a small portion of the segment might have the necessary consequences for the purposes of cl 1.9.6 if it was couched in highly inflammatory language.
71 The ACMA did not ask itself the wrong question. I reject ground 8A.
Grounds 9 and 10 – Alleged Fair Comment in the Public Interest
72 These grounds rely upon cl 1.10.3 of the Code.
73 Seven submitted that the question that the ACMA should have asked itself was whether the critical tone deployed by the reporter and PR in the segment was fair comment on a matter of identifiable public interest and not allowed itself to be distracted by the dispute as to the extent of the practice of infanticide.
74 It was submitted on behalf of the ACMA that, in submissions made to the ACMA, Seven had argued that the comments made by PR should not have been considered as unfair because of the fact that there were no other comments presented at the time which rejected the statement that infanticide occurred. Before me, the ACMA went on to submit that, in summary, in response to that submission, it found that:
(a) The issue of infanticide was controversial and emotive and Seven knew that there were opposing views in relation to it;
(b) Notwithstanding this knowledge, Seven presented the topic as factually uncontroversial without including any reference to the fact that there was a significant level of dispute and controversy about the topics; and
(c) In that context, the unequivocal statements in the segment on the existence of this practice made by both the reporter and PR were not fair comments.
75 The question of whether the actions which would otherwise constitute a breach cl 1.9.6 were said or done in broadcasting a fair report of, or fair comment on, any event or matter of identifiable public interest is a question of fact. The ACMA considered all relevant matters, including the submissions made to it by Seven, and concluded that Seven could not rely on cl 1.10.3. In doing so, the ACMA did not commit any reviewable error.
76 I reject grounds 9 and 10.
77 Seven has failed to make out any of the grounds relied upon by it in support of its claims for relief. Accordingly, its Application must be dismissed with costs.
78 There will be orders accordingly.