Investigation Report No. 2605File No. ACMA2011/1064

Licensee TCN Channel Nine Sydney Pty Ltd

Station TCN

Type of Service Commercial Television

Name of Program A Current Affair

Date of Broadcast 25 October 2010

Relevant Code Clause 4.3.1, 2.13.1 and 7.11 of the Commercial Television Industry Code of Practice 2010.

Date Finalised 8 December 2011

Decision Breach of clause 4.3.1 [presentation of factual material]

No breach of clause 4.3.1 [representation of viewpoints]

No breach of clause 2.13.1 [exercise care in G classification zone]

No breach of clause 7.11 [complaint handling]

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010

The complaintOn 6 June 2011, the Australian Communications and Media Authority (the ACMA) received a complaint about a segment of A Current Affair broadcast on 25 October 2010 by TCN Channel Nine Pty Ltd, the licensee of TCN.

The complainant alleges that the segment unfairly and inaccurately presented information relating to the effectiveness of speed cameras on road tolls.

The complainant did not receive a response from the licensee and referred the matter to the ACMA for consideration.1

The complaint has been investigated in accordance with clauses 4.3.1, 2.13.1 and 7.11 of the Commercial Television Industry Code of Practice 2010 (the Code).

The programA Current Affair is a half hour current affairs program broadcast weekdays at 6.30 pm on the Nine Network.

The segment complained about ran for 5 minutes and reported on speed cameras in Victoria and the debate on whether they contribute to road safety in Australia. The segment included interviews with A, introduced as a former senior member of Vic Roads; B, introduced as the head of road safety cameras at Victoria Police; and C, introduced as a ‘motoring writer’. The segment was critical of the effectiveness of speed cameras on road safety.

A full transcript of the segment is set out at Attachment A.

AssessmentThe investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee.

Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ viewer test

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

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

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

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

1 Section 149(1) of the Broadcasting Services Act 1992 refers to the ACMA’s role in investigating complaints under codes of practice.

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

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 2

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

Issue 1: present factual material accurately and represent viewpoints fairlyRelevant code

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

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

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

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately are set out at Attachment B.

Complainant’s submissionsThe complainant raised issues of accuracy in relation to the following statements in the broadcast:

1: [A] was manager of road safety research at Vic Roads.

2: [A] has spent 40 years researching car accidents.

3: [A] was the head of Victoria’s road safety body when speed cameras were introduced

4: Victorians are fined 10 times more than England. ...

In relation to statement 1, the complainant submitted:

[The segment] do[es] not say when he was employed and that it was over 15 years ago when he worked for Vicroads...[LinkedIn reference provided]

In relation to statement 2, the complainant submitted:

When you look at his CV it becomes clear he was likely investigating car accidents at best since 1986, i.e. only 25 years ago. Prior to that he was a farmer and plant manager.

In relation to statement 3, the complainant submitted:

...[A] was Manager of Road Safety Research at Vicroads from March 1990 to Nov 1994. [Name of person] was at the time Head of Road Safety...

[...]

In relation to statement 4, the complainant submitted:

[The Reporter] claims that Victorians are the most heavily fined in the world by a factor of about 10 and fined 10 times more than England. England has 5498 speed cameras compared to Australia’s 1232. A total of over 87 million pounds was paid in speeding fines across the UK last year. $500 million (i.e. half a billion) is not ten times 87 million pounds, it is about 3.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 3

[...]

The complainant added the following submissions in relation to statement 4:3

England is a part of the United Kingdom. The population of England is 51.5 million.  They said England – not the UK.

It is absurd that ACA expects viewers to have understood that the 'ten times' figure took into account relative population size differences. So why didn’t they say this and state ‘on a per capita basis’. Why didn’t they elaborate this point.

If we accept that they referred to the UK, the number of cars on UK roads is around 31 million. Victoria has 4 million vehicles. The money collected from infringements on Victorian roads was around $200 million – not $500 million as claimed by ACA. Again the facts are wrong by ACA. (See: http://www.camerassavelives.vic.gov.au/home/statistics/fines+by+camera/fines+by+camera+and+system/csl+-+fines+%28%24%29+by+camera+and+system+-+home

The exchange rate for 1 pound was 1.6 Australia dollars in October 2010. Thus AUD$139 million for the UK vs AUD$244 million for Victoria. The difference would be $4.5/vehicle for the UK vs $61/vehicle in Victoria. On the basis of ‘per vehicle’, Victorians are paying more than ten times averaged over all registered vehicles. I would hence concede the point. However, I believe this is more fortuitous that the numbers come out like this rather than any citation of someone’s calculations. Where have they in their report discussed how they (or [A]) reached the conclusion on the 10 fold number? Where is the evidence where these numbers have been crunched by the journalist or reference to publications or reports.

The complainant also raised the following issue in relation to the statistical charts featured in the broadcast:

[The Reporter] highlights a square on the road toll chart from 2002 to 2010 showing the road toll. What he neglected to do was to show ... 2001 figure was at a high of 444 fatalities. It was around this time that speed camera enforcement hours were raised.

The complainant made the following submissions which raise issues of fair representation of viewpoints under clause 4.3.1 of the Code:

During the time [A] was Manager of Road Safety Research at Vic Roads, the Victorian road toll dropped from a high of around 780 to a low of 390 by the time he left. ... They effectively halved the road toll through road safety initiatives. ... [D]uring this time [A] was working he was supporting all of these initiatives – which worked quite stunningly. ACA didn’t bother researching this and checking this and asking [A] – how it was that initiatives involving introducing around 30 mobile speed cameras at that time, worked ...

[...]

When the program cited a report that was based on scientific research and published in a peer-reviewed journal, it was quickly dismissed as written by someone with a public health background ... Road trauma is one of the biggest public health threats in the world [references provided]. Also what about the other co-authors and the general scientific community. Why didn’t they provide an opportunity for the research team to respond to ACA’s allegation and dismissal of Ms Wilson. Why did ACA deny her natural justice in accusing her of not being qualified to conduct road safety research.

3 Submissions received on 5 August 2011

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 4

The other members of the team from the ‘peer-reviewed’ CONROD scientific report were: Dr Charlene Willis, NHMRC Australian Biomedical Fellow, Ms Hendrikz – an accredited statistician – essential skill for any report looking at the effect of speed cameras on injuries and fatalities, Dr. Brocque – an NHMRC Research Fellow with expertise in Research Methodology, and Professor Bellamy who is the Director of the Queensland Trauma Registry and has considerable expertise in trauma research [reference provided].

... [R]egardless of the qualifications of the authors of this report, and despite the paper pointing to twenty eight studies that measured the effect of speed cameras on crashes, and that all 28 studies found a lower number of crashes in the speed camera areas after implementation of the program, [the Reporter] and the ACA team decided all these other studies must be wrong [reference provided].

Cochrane is one of the most respected scientific reviewers in road safety and injury prevention in the world. It is clear that [the Reporter’s] opinions are out of step with all of these 28 scientific studies. I understand that the scrutiny is intense by Cochrane. You don’t get published in the Cochrane Library if your findings are in any way unsupportable by solid scientific evidence.

[...]

The complainant further submitted on 5 August 2011 in relation to this issue:

The other members of the team [authors of the Cochrane report] were not mentioned. Only an image was shown of the co-authors on the report.

Only Ms Wilson’s qualifications were provided as aging community health and osteoarthritis, implying that her qualifications are not directly in the area of road safety and speed cameras. While this may well be ‘accurate’ it misrepresents the investigation carried out by Ms Wilson’s team and does not represent a ‘fair viewpoint’.

... ACA have not presented Ms Wilson, the other members of her team, in a manner that was a ‘fair viewpoint’ regarding their findings.

[...]

Licensee’s submissionsThe licensee submitted to the ACMA on 4 July 2011:

[...]

The inclusion of clause 4.3.1.1 in the recent Code review requires that an assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety. ...

The Report was part of a series of stories on the effectiveness of speed cameras. A Current Affair was approached by [A], a former senior member of Vic Roads who questioned the effectiveness of speed cameras in lowering the road death toll. The Report principally conveyed the viewpoint of [A], as well as the viewpoints of [C] and [B]. Nine maintains that the viewer would have understood the Report to be about conflicting viewpoints in relation to the effectiveness of speed cameras. Nine believes that the viewer would have clearly understood the viewpoints presented as being the opinion of those interviewed.

Nine notes that Clause 4.3.1 of the Code does not preclude current affairs programs from taking a particular editorial stance and does not require a program to represent all viewpoints on an issue. In

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 5

this instance, Nine chose to convey the viewpoints of those interviewed and for these reasons, we maintain we complied with the provisions of clause 4.3.1 of the Code.

Specifically, in relation to the complainant’s relevant assertions ... Nine notes:

[Statement 1] [A] was manager of road safety research at Vic Roads.

The report states during the introduction that [A] “...was Manager of Road Safety Research at Vic Roads”. Further the report advises that he was head of the road safety body at the time when speed cameras were introduced.

Nine maintains that both these statements are accurate and when taken together as provided for by clause 4.3.1.1, the viewer would have understood that [A] held the role in Road Safety Research at Vic Roads at the time speed cameras were introduced. Nine maintains the statements comply with the Code and rejects the complainant’s assertion that we do not state when [A] was employed.

[Statement 2]: [A] has spent 40 years researching car accidents.

Nine maintains that the statement [that A has spent 40 years researching car accidents] is accurate and [A] has experience in investigating car accidents in addition to his professional employment at Vic Roads.

In response to the ACMA’s request for further information in relation to statement 2,4 the licensee submitted:5

...We are unable to provide comment on the inaccuracy of the CV on the website LinkedIn.

[Statement 3]: [A] was the head of Victoria’s road safety body when speed cameras were introduced.

In relation to Statement 3, as stated previously, the inclusion of clause 4.3.1.1 in the recent Code review requires that an assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety. The reference to [A] being ‘head of the road safety body at the time when speed cameras were introduced’ was an attempt to condense the information previously provided in relation to his role and not to mislead viewers about the nature of the position he held. While Nine accepts that the statement in isolation may be inaccurate, when taken together with the previous statement (as provided for by clause 4.3.1.1) Nine believes viewers would have understood that [A] held a relevant role at Vic Roads at the time speed cameras were introduced.

[Statement 4]: Victorians are fined 10 times more than England. ...

We note that when assessed on the basis of relevant population sizes, Victorians are fined more than 10 times more than English residents [sic]. The Victorian Population as at 30 June 2009 was 5.44M people compared to 612.8M in the United Kingdom. While not expressly stated to be on a population basis Nine maintains that the viewer would have understood that the ‘ten times’ figure took into account relative population size differences.

The licensee submitted in relation the presentation of the charts in the broadcast:

4 ACMA letter dated 21 July 20115 Licensee response dated 12 August 2011

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 6

Nine maintains that [the chart] accurately conveyed the information in the graph. Initially Nine showed a graph representing the Victorian Road toll for the last 60 years. As stated in the Report, the graphic is enlarged to focus on the most recent 5 year period. The only figures expressly referred to during the report were the 2009 and 2010 figures to illustrate the increase in road deaths between these two years.

Nine again maintains that it accurately conveyed the information in the graph.6

The reference to the road toll not really changing is a reference to it not ‘really’ changing over the most recent 5 year period. Nine maintains this was clearly evident to the viewer for the following two reasons:

1. The statement expressly confined the period in question to the last five years by stating ‘Despite the explosion in speed cameras in the past five years, it is clear the road toll hasn’t really changed’, and

2. The graph is enlarged to cover only the five year period in question.

As would have been evident to any viewer who watched the Report, there were large declines in the road toll over the entire 60 year period. Nine maintains that this was self-evident and does not affect the accuracy of the statement that the road toll had not changed substantially over the five year period since the number of speed cameras had dramatically increased.

[...]

In relation to the complainant’s concern about the licensee’s failure to mention A’s opinion changing over time, the licensee submitted:

Nine notes that only relevant assessment is whether [A]’s viewpoint was fairly represented. Nine maintains it was. Further, we note that [A’s] opinions have changed over time. Nine acknowledges that the road toll did drop during [A’s] time at Vic Roads and that this did coincide with the introduction of speed cameras. [A] did, at the time, draw the conclusion that speed cameras had had an effect on this reduction. However, in the years since he has taken into consideration the fact that the road toll dropped in exactly the same fashion, at exactly the same time, in dozens of countries where authorities had not introduced speed cameras. He now believes, on the basis of such evidence, that the decline in road toll was due to safety improvements in cars such as crumple zones and air bags. These developments were present in all countries where the road toll dropped at that time, unlike speed cameras.

6 Submissions dated 12 August 2011.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 7

FindingIn relation to the broadcast of A Current Affair on 25 October 2011, the licensee:

breached clause 4.3.1 of the Code for the presentation of statements 2, 3 and 4;

did not breach clause 4.3.1 of the Code for the presentation of statement 1, and the presentation of the statistical graphs; and

did not breach clause 4.3.1 of the Code in relation to the representation of viewpoints.

ReasonsPresentation of factual material

The accuracy requirements under clause 4.3.1 of the Code apply to factual material.

The ACMA has considered clause 4.3.1 in relation to the statements complained about, and the presentation of the statistical graphs.

The first question for the ACMA is whether the relevant statements amounted to factual content:

1: [A] was manager of road safety research at Vic Roads.

2: [A] has spent 40 years researching car accidents.

3: [A] was the head of Victoria’s road safety body when speed cameras were introduced.

4: Victorians are fined 10 times more than England. ...

The ACMA is satisfied that each statement is presented in an unequivocal and unquestioning manner without allusion to individual opinion and without any use of qualification or comparison. Accordingly, the statements amounted to statements of fact, and are subject to the accuracy requirements of clause 4.3.1 of the Code.

The ACMA has assessed the relevant meaning of each statement, and whether they were presented accurately, having regard to the circumstances at the time of preparing and broadcasting the segment.

1: [A] was manager of road safety research at Vic Roads.

The complainant’s concern is that the licensee failed to mention that A held the role of manager of road safety research at Vic Roads ‘15 years ago’. The principles outlined at Attachment B state that while licensee’s are not required to present all factual material available to them, if the omission of some factual material means that the factual material presented is not presented accurately, that would amount to a breach of the clause. The message conveyed by this statement to the ordinary, reasonable viewer is that A, at some point in his previous career, held the role of manager of road safety research at Vic Roads. There is no dispute that this is accurate. The inclusion later in the report that he was employed at Vic Roads ‘when speed cameras were introduced’ contextualises the first statement in relation to the time when this occurred. On balance, the ACMA does not consider that omitting information about the precise period when A was employed at Vic

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 8

Roads would have misled the ordinary, reasonable viewer to understand that this was necessarily recently, or that it amounted to an inaccurate presentation of factual material.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to Statement 1.

2: [A] has spent 40 years researching car accidents.

The ordinary, reasonable viewer would have understood by this statement that a significant proportion of A’s career (amounting to 40 years) involved researching car accidents. The complainant has submitted that A’s CV, available on the website LinkedIn, does not support this:

When you look at his CV it becomes clear he was likely investigating car accidents at best since 1986, i.e. only 25 years ago. Prior to that he was a farmer and plant manager.

The licensee submitted:

Nine maintains that the statement is accurate and [A] has experience in investigating car accidents in addition to his professional employment at Vic Roads. ...

We are unable to provide comment on the inaccuracy of the CV on the website LinkedIn.

The fact that A was employed at Vic Roads, and has a history of researching car accidents, is not in dispute. The complainant’s concern is that information pertaining to A’s CV obtained via the website LinkedIn suggests that A was working in the relevant industry for less than 25 years, and not 40 years. The licensee submitted that ‘[A] had experience in investigating accidents in addition to his professional employment at Vic Roads’, however has not provided any material to substantiate the statement about A’s experience nor has it provided any comment in relation to the ‘inaccuracy of the CV on the website...’.

The ACMA is not persuaded by the information provided by the licensee, that, at the time of preparing and broadcasting the segment, it relied on sufficient corroborative evidence to unequivocally state that A had been researching car accidents for 40 years.

The licensee presented A’s qualifications in the segment for the purpose of qualifying A to make his argument about speed cameras. In these circumstances, it would have been prudent to substantiate his qualifications.

Accordingly, the licensee breached clause 4.3.1 of the Code in relation to the presentation of statement 2.

3: [A] was the head of Victoria’s road safety body when speed cameras were introduced.

The ordinary, reasonable viewer would have understood the message of this statement to be that A was CEO of Vic Roads, in other words, was at some stage more than just the ‘head of research’ at Vic roads.

The licensee has conceded this is inaccurate, however, has argued that clause 4.3.1.1 applies which requires factual accuracy to be determined in the context of the segment in its entirety. It argued that when taken with Statement 1 (above), Statement 3 was not inaccurate.

The ACMA does not agree that the statement ‘A was manager of road safety research at Vic Roads’ necessarily contextualises the subsequent statement that A ‘was the head of

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 9

Victoria’s road safety body when speed cameras were introduced’. Rather, it is left open to a viewer to infer that A, when speed cameras were introduced, held a different position at Vic Roads than when he was head of safety research. This is not accurate and the licensee does not dispute this.

Accordingly, the ACMA is of the view that the licensee breached clause 4.3.1 of the Code for the presentation of Statement 3.

4: Victorians are fined 10 times more than England.

The full context of this statement is as follows:

Reporter: ... Here they’re projecting half a billion dollars in fines.

A: Victoria stands out worldwide in that its drivers are the most heavily fined drivers in the world, by a factor of about 10.

Reporter: Victorians are fined 10 times more than England.

The first question for the ACMA is what the ordinary, reasonable viewer would have understood by this statement.

The complaint is that it is factually incorrect to say that Victorian drivers are fined 10 times more than English drivers.

It is not clear whether the statement ‘Victorians are fined 10 times more than England’ is intended to compare the total monetary figures each area received from fines, or to compare the total rate per population at which fines are imposed in each area. The licensee has not provided any material to substantiate either of the two interpretations of the statement that ‘Victorian’s are fined 10 times more than England’, or the figures on which the comparison was based.

In total monetary terms, the inference is that Victorians are being fined $500 million dollars and that English drivers are being fined $50 million dollars.

The licensee has submitted that:

We note that when assessed on the basis of relevant population sizes, Victorians are fined more than 10 times more than English residents. The Victorian Population as at 30 June 2009 was 5.44M people compared to 612.8M in the United Kingdom. While not expressly stated to be on a population basis Nine maintains that the viewer would have understood that the ‘ten times’ figure took into account relative population size differences.

While it is not incorrect that England’s population is roughly 10 times more than that of Victoria, the licensee did not make it clear in the program that the figure took into account relative population size differences.

Whether or not the ordinary reasonable viewer took this into account the complainant has submitted that even on the assumption that it was based on population size, the statement cannot be accurate.

The complainant submitted that ‘a total of over £87 million was paid in speeding fines across the UK last year’ and has provided a reference in support. The complainant has also submitted that last year, ‘the money collected from infringements on Victorian roads was around $200 million – not $500 million as claimed by ACA’, and has provided a

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 10

reference in support. The ACMA has assessed these articles and confirms that they corroborate the figures provided by the complainant. On the complainant’s assertion (and using the complainant’s conversion rate),7 Victorians are fined less than twice than the UK (Victorians at $200 million; and UK at $139.2 million). Adjusting on the basis that England’s population is 84% of the total population for the UK,8 England would be fined roughly £75.7 million, which amounts to $121.1 million. On this basis Victorian drivers are still fined less than twice than drivers in England

The ACMA considers that each of the following inferences are factually incorrect:

1. that Victorian drivers are fined $500 million;

2. that they are fined 10 times that of English drivers, in total monetary terms; and

3. that they are fined 10 times that of English drivers when adjusted for population.

In these circumstances, the ACMA cannot be satisfied that the relevant statement has been presented accurately.

Accordingly, the ACMA is of the view that the licensee breached clause 4.3.1 of the Code in relation to Statement 4.

Presentation of Statistical Charts

The complainant was concerned about the presentation of the statistical charts in the segment as follows:

[Reporter] highlights a square on the road toll chart from 2002 to 2010 showing the road toll. What he neglected to do was to show ... 2001 figure was at a high of 444 fatalities. It was around this time that speed camera enforcement hours were raised.

The complainant’s concern is that the licensee failed to emphasise a spike in the charts in the period when ‘speed camera enforcement hours were raised’, which suggests that speed cameras did have an impact on the reduction in death tolls.

The segment showed three screen shots of a particular graph as follows:

1. A graph showing Victoria’s road toll for the past 60 years (from 1950 to 2010); 2. A closer screen shot of the chart showing the results between 2002 and 2010; 3. A still closer screen shot of the chart showing from 2006 to 2010.

While the graphs were being shown, the reporter made the following comments:

Reporter: This is Victoria’s road toll for the past 60 years. Despite the explosion in speed cameras in the past five years, it’s clear the road toll hasn’t really changed. In fact this year it’s up 14%. Why? [A] says the fundamental presumption behind speed cameras is false. Being a few km’s over or below the speed limit doesn’t cause accidents. Being distracted does.

The reporter did not address the trends from the earlier years, but elected to emphasize the trends between 2002 and 2010, and 2006 and 2010. While the complainant’s concern in this regard is acknowledged, this omission did not necessarily amount to a breach of the Code. The ACMA notes that the initial graph presented the trends for the past 60 years (between 7 http://www.exchangerates.org.uk/ as at 1/9/11 was 1.6. The complainant asserted that the

conversion rate was 1.6 at the time of broadcast. 8 http://en.wikipedia.org/wiki/England

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1950 and 2010). Nevertheless, it is clear from the commentary of the reporter ‘[d]espite the explosion in speed cameras in the past five years’ that the purpose of presenting the graph was to show the trends in the recent five years. The ACMA is not satisfied that the information presented was inaccurate.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to the presentation of the statistical graphs.

Representation of viewpoints

Clause 4.3.1 of the Code requires the fair representation of viewpoints (having regard to the circumstances at the time of preparing and broadcasting the program).

There are two aspects of the complaint relevant for consideration under ‘fair representation of viewpoints’ – the representation of A’s viewpoint, and the representation of the Cochrane study.

In relation the former, the ACMA notes the following submission of the complainant:

During the time [A] was Manager of Road Safety Research at Vic Roads, the Victorian road toll dropped from a high of around 780 to a low of 390 by the time he left. ... They effectively halved the road toll through road safety initiatives. ... [D]uring this time [A] was working he was supporting all of these initiatives – which worked quite stunningly. ACA didn’t bother researching this and checking this and asking [A] – how it was that initiatives involving introducing around 30 mobile speed cameras at that time, worked ...

[...]

The complainant is concerned that the licensee did not specify that the interviewee previously held a different opinion to the one he was expressing in the segment. However, there is no evidence before the ACMA to suggest that the viewpoint being expressed in the segment was edited out of context, or was not the entire viewpoint that the interviewee had intended to present, or that it was not fairly represented. The licensee was not, in these circumstances, obliged to report on all previously held views of the interviewee. Accordingly, the ACMA does not consider that A’s viewpoint was unfairly represented.

Turning to the complainant’s concern in regards to the Cochrane study, the relevant excerpt of the broadcast is as follows:

Reporter: Police have pointed us to a report by the Cochrane collaboration. It examined the results of various studies on speed cameras.

B: The average speed of driving reduced somewhere in the vicinity between 10 or 35%, and more importantly is what it did show [sic], is that fatalities and serious injuries reduced in the vicinity of between 11 to 40%.

[image of study title – Speed cameras for the prevention of road traffic injuries and deaths (Review) Wilson C, Willis C, Hendrikz JK, Le Brocque R, Bellamy N)]

That study was headed by a woman called Cecilia Wilson, who lists her expertise as aging community health and Osteoarthritis, and it doesn’t explain why more speed cameras hasn’t meant a lower road toll.

The complainant submitted:

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 12

The other members of the team [authors of the Cochrane report] were not mentioned. Only an image was shown of the co-authors on the report.

Only Ms Wilson’s qualifications were provided as aging community health and osteoarthritis, implying that her qualifications are not directly in the area of road safety and speed cameras. While this may well be ‘accurate’ it misrepresents the investigation carried out by Ms Wilson’s team and does not represent a ‘fair viewpoint’.

... ACA have not presented Ms Wilson, the other members of her team, in a manner that was a ‘fair viewpoint’ regarding their findings.

The relevant viewpoints are those of the authors expressed via the study. The excerpt of the ‘study’ represented was:

The average speed of driving reduced somewhere in the vicinity between 10 or 35%, and more importantly is what it did show [sic], is that fatalities and serious injuries reduced in the vicinity of between 11 to 40%.

The reporter also stated:

...[the study] doesn’t explain why more speed cameras hasn’t meant a lower road toll.

The ACMA has not been presented with any information to suggest that the findings of the study were edited out of context, or unfairly represented.

The licensee has elected to nominate Ms Wilson’s expertise as Aging, Community Health and Osteoarthritis. The ACMA’s independent research indicates that this information is not inaccurate,9 and the complainant has submitted also that ‘this may well be accurate’. It is noted also that the study relating to road traffic injuries is not unrelated to health and community rehabilitation.

The licensee has adopted a critical stance in relation to the material being reported on and in particular, the relevant study in the context of the debate in relation to speed cameras. However, this is not prohibited by the Code in relation to the broadcast of current affairs programs.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to the fair representation of viewpoints.

Issue 2: Special care - G classification.Relevant Code provisions

Clause 2.13 states:

2.13 Material may only be broadcast in the classification zone corresponding to its classification, except in the following circumstances:

2.13.1 News, current affairs and broadcast of sporting events: While not required to be classified, may be broadcast in the G classification zone, provided that care is exercised in the selection and broadcast of all material.

2.13.1.1 News material broadcast in the G classification zone outside regular bulletins must be compiled with special care.

9 http://www.uq.edu.au/conrod/index.html?page=20977&pid=0

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Complainant’s submissionsThe complainant submitted:

The reporter when seated in the back of the car was not wearing his seatbelt properly, something which he claims led to a large drop in road fatalities. He was not wearing the sash part of the belt properly – it was hanging below his shoulder – he was violating the Australian Road Law 265(2)(c) – The passenger must wear the seatbelt properly adjusted and fastened. http://www.ntc.gov.au/filemedia/Reports/ARR_February_2009_final.pdf. This image of his not wearing his seat belt properly also presents an example that encourages people to break the law.

Licensee’s submissionsThe licensee submitted (in response to the ACMA’s request for further information):

Nine denies that the complaint raises matters under clause 2.13.1 which requires licensees to exercise care when selecting and broadcasting all news, current affairs and sporting material in G periods. This provision relates to program classification (as evidenced by the fact it is included in the Classification section of the Code). Nine denies that the position of the ‘shoulder sash’ of a fastened ‘lap sash’ seatbelt’, can be reasonably found to fall within the provision.

Regardless, Nine also notes that the current Australian Road Rules do not contain any specific information as to what constitutes a ‘properly adjusted seatbelt’. The VicRoads website provides some further guidance on “How to adjust your Seatbelt”, however this is not a mandatory requirement:

How to adjust your seatbelt

Adjust your seatbelt so that:

the lap belt fits snugly across your pelvis, under your stomach and above your thighs

the sash crosses your chest diagonally, sits across your shoulder and does not rub against your neck or upper arm. Many cars allow you to adjust the shoulder strap height.

the buckle is at the side of the seat, not resting against your leg.

Also make sure that:

no part of the seatbelt is twisted.

The sash is not slack; remove any slack by pulling firmly on the sash after the buckle has been fastened. (http://www.vicroads.vic.gov.au/Home/SafetyAndRules/SaferVehicles/BuyingASafeCar/SeatBelts.htm)

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 14

FindingThe licensee did not breach clause 2.13.1 of the Code in relation to the broadcast of A Current Affair on 25 October 2011.

ReasonsBroadcasts of news, current affairs and sporting events are exempt from classification. As the interview with A was presented within a current affairs program it was not subject to the classification requirements of the Code. However, the selection and broadcast of material for news and current affairs programs during the G classification zone must be made with care, as it is a zone during which children may view programs unsupervised.

The ACMA makes the following observations:

the excerpt was brief, amounting to 2 seconds of the 5 minute broadcast

the seatbelt appeared to be fastened and, while the sash was not sitting over the shoulder of the passenger, it was sitting across the shoulder of the passenger

the focus of the footage was the dialogue taking place and not on the wearing of seatbelts or the actions taking place in the vehicle.

The ACMA considers the incident complained of was relatively fleeting and the licensee has complied with the Code in selecting and broadcasting the material.

Accordingly, the licensee did not breach clause 2.13.1 of the Code for the broadcast of A Current Affair on 25 October 2010.

Issue 3: Provide substantive written response to complaintRelevant Code

Time Limits on Responses to Code Complaints

7.11 Subject to clause 7.15, a licensee must provide a substantive written response to a complaint that satisfies the requirements in clause 7.2.

Complainant’s submissionsThe complainant alleges that he submitted his complaint on 8 November 2010, and did not receive a response from the licensee.

Licensee’s submissionsLicensee’s submissions:

Nine believes it complied with the provisions of clause 7.11 of the Code. Nine received the complaint on 8 November 2010. In early December 2010, the Executive Producer of A Current Affair contacted the complaint and had a lengthy phone conversation with him. On 7 December 2010, the Executive Producer emailed the attached draft response to Nine’s Compliance Manager .... The Executive Producer advises that he would have subsequently instructed his staff to print the draft on letterhead to be signed by him. The Executive Producer believes that the letter was sent to the complainant on or around 7 December 2010. Unfortunately, this response was sent before Nine’s

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 15

new procedures of registering all complaint responses was in place and the writer cannot confirm that the letter was sent. However, we note that the contemporaneous evidence showing that a draft was prepared within the required period strongly suggests that the response was sent at this time.

In response to the ACMA’s request for further information, the licensee attached ‘an extract of the relevant entry of the Complaints log which indicates the response was sent within 30 days’.

FindingThe licensee did not breach clause 7.11 of the Code.

ReasonsThe complainant submitted that he did not receive a response from the licensee to his complaint.

The licensee submitted that it sent a response to the complainant, and provided an email draft copy of the letter sent. The licensee provided a copy of its log entry that indicates that it responded to the complaint on 7 November 2010.

The ACMA notes the complainant’s submission that he did not receive a response from the licensee. The delegate also notes the copy of the log provided by the licensee together with the copy of the draft response. On balance, in the absence of further contemporaneous information, the ACMA cannot be satisfied that the licensee failed to comply with its obligation to provide a written response to the complainant.

Accordingly, the licensee did not breach clause 7.11 of the Code.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 16

Attachment A

Promotion

Title: Speed Camera Fury

Presenter: Speed Camera Backlash now a former head of road safety claims they do nothing to reduce the road toll.

Segment

Title: Camera Insider

Presenter: Well now to the government whistleblower who says speed cameras do nothing to save lives. [A] knows what he’s talking about. He was manager of road safety research at Vic Roads. He approached ACA after watching our series of speed camera investigations. He has evidence that we’re all being taken for a ride.

A: (driving) 50. ... and I’m travelling under 50 at the moment...

Reporter: [A] has spent 40 years researching car accidents. He was the head of Victoria’s road safety body when speed cameras were introduced.

A: ... are very very inexact...

Reporter: you know it’s worth listening when he says something like this:

A: Speed cameras I would argue have had virtually no effect on the road toll.

Reporter (interviewing Superintendent B, of Victoria Police): Speed cameras cut the road toll.

B: Absolutely.

A: There’s no research that I know of anywhere in the world that proves speed cameras achieve anything.

Ad: Dr Ian Johnston – Monash University Accident Research

“What you’re about to see will change your mind about speeding”

Reporter: There’s no doubt speed cameras are an unrivalled cash cow. All the states are in on it, but Victoria is the unrivalled champion. Here they’re projecting half a billion dollars in fines.

A: Victoria stands out worldwide in that its drivers are the most heavily fined drivers in the world, by a factor of about 10.

Reporter: Victorians are fined 10 times more than England. Long considered the world’s speed camera capital.

Reporter (to A): Obviously our road toll would be ten times less than this.

A: No, there’s no correlation.

Reporter: This is Victoria’s road toll for the past 60 years. Despite the explosion in speed cameras in the past five years, it’s clear the road toll hasn’t really changed. In fact this year it’s up 14%. Why? [A] says the fundamental presumption behind speed cameras is false. Being a few km’s over or below the speed limit doesn’t cause accidents. Being distracted does.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 17

A: We’ve all seen those ads where they’ve got one car doing 60 which just hits the girl pedestrian.

[Ad extract]

“this time he hits her at only 5 km per hour. She’d just have a bruised leg.”

A: Then you have a guy that hits her at 65 km p/h.

[Ad extract]

“and the impact here - we can work out she was hit an only 32 km p/h”.

A: If I had another driver doing 55 who was distracted for two seconds, that’s, that long, at the time the girl stepped on the thing, that driver who’s doing 55 will hit that girl at 55, wouldn’t even apply the brakes, and would probably kill her.

Reporter: The graphs police show us usually look like this. The faster the car is travelling the more likely it is to kill. Look what happens when you take distraction into consideration. A distracted driver travelling at 55 has a 60% chance of killing the pedestrian. The driver who is travelling at 80, but paying attention, is 10 times less likely to kill her. And yes, looking constantly down at your speedo[meter] is a distraction.

A: They’ve only got to look down there for a second, and they could kill someone.

Reporter: [A] says the best evidence shows the safest speed to drive is with the flow of the traffic. There’s nothing magic in the numbers 60 or 100, the human brain is very good at judging the safest speed for itself, and it is constantly changing with the environment.

A: Now I’m travelling at under 50 at the moment, I’ve just sped up because there’s a reasonable straight section there and I’m slowing down for the corner.

Reporter: It’s the same way our brains steer us through crowds without crashing. Even at a run, we only have accidents when going much faster or slower than the crowd. So, fining drivers 20 km’s over the limit makes sense, but not small time speeders just 5 or 10 over.

Reporter (interviewing B): How do speed cameras save lives?

B: Speed cameras save lives because it alters driver behaviour.

Reporter: Superintendent [B] heads the Victoria police speed camera operations.

Reporter: How can we take 10 times as much in fines, and have no significant reduction in the road toll, if it works?

B: Absolutely the research is that speed is a contributing factor for 30% of fatalities.

Reporter: Speed, or speeding?

B: Speed.

Reporter: So not speeding?

B: Well, speed speeding.

Reporter: They’re very different.

B: do you think?

Reporter: Yeah if my car’s going 30 km and hour in a 40 km zone and I have a crash and I could’ve avoided it at 20, that’s speed was a factor. But speeding wasn’t.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 18

B: That’s your interpretation.

Reporter: Police have pointed us to a report by the Cochrane collaboration. It examined the results of various studies on speed cameras.

B: The average speed of driving reduced somewhere in the vicinity between 10 or 35%, and more importantly is what it did show [sic], is that fatalities and serious injuries reduced in the vicinity of between 11 to 40%.

Reporter: (image of study title – Speed cameras for the prevention of road traffic injuries and deaths (Review) Wilson C, Willis C, Hendrikz JK, Le Brocque R, Bellamy N): That study was headed by a woman called Cecilia Wilson, who lists her expertise as aging community health and Osteoarthritis, and it doesn’t explain why more speed cameras hasn’t meant a lower road toll.

C: The fact of the matter is speed cameras don’t save lives and there’s absolutely no credible evidence out there that suggests that speed cameras do save lives.

Reporter: [C] is a motoring writer we met when he outted speed cameras catching motorists on downhill slopes.

C: It’s obvious to anyone that bothers looking into this that car safety has improved absolutely dramatically since the 90’s and that can be accounted for when you look at the road toll.

Reporter: The two biggest drops in the road toll came after the introduction of seatbelts in the 70’s, and airbags and crumple zones in the 90’s. We know technology saves lives, but speed cameras?

A: Fabulous for state revenue, does nothing for road safety.

Presenter: [Reporter] reporting there on a valid debate that isn’t going away.

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 19

Attachment BThe following principles are applied by the ACMA in assessing content against the obligation in clause 4.3.1 of the Code:

The ACMA must assess whether the relevant statement would have been understood by the ordinary, reasonable viewer as a statement of fact or an expression of opinion. A definition of the ‘ordinary, reasonable viewer’ is set out at the commencement of this report.

The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.

o In that regard, the relevant statement must be evaluated in its context, i.e. contextual

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

o The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate

that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable viewer, and the form of words introducing the relevant statement is not conclusive.

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

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

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

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

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

ACMA Investigation Report – A Current Affair broadcast by TCN on 25 October 2010 20