Investigation Report 3182File No. ACMA2014/185

Licensee Cairns Broadcasting Pty Ltd

Station 4EL (4CA) Cairns

Type of Service Commercial Radio

Name of Program John MacKenzie Morning Show

Date of Broadcast 3 December 2013

Relevant Code Clauses 2.2(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2013

Date Finalised 26 August 2014

Decision Breach of clause 2.2(a) [accuracy]No breach of clause 5.5 [complaints handling]

ACMA Investigation Report 3182 – John McKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/13

The complaintIn February 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a segment of the John MacKenzie Morning Show, broadcast on 3 December 2013 by Cairns Broadcasting Pty Ltd, the licensee of 4EL (4CA) Cairns.

The complainant alleged that the following statement made by Mr MacKenzie, which the complainant considered was made in reference to Aboriginal communities in Cape York, was factually inaccurate:

...we’ve had an influx of people from the communities, thanks largely to the alcohol management plans, but other reasons as well, we’ve had an influx of people coming here for the party and bringing their staggering crime rates from the communities, 30 times greater than ours...

The complainant also alleged that the licensee did not respond to his complaint.

The complaint was referred to the ACMA for consideration.1

The complaint has been investigated in regard to the licensee’s compliance with clauses 2.2(a) [accuracy] and 5.5 [complaints handling] of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes).

The programThe John MacKenzie Morning Show is a talk back program broadcast on weekdays from 9am to 12pm.

On 3 December 2013, Mr MacKenzie discussed the issue of public housing with the Queensland Minister for Housing and Public Works, Tim Mander MP. This included a discussion of the new rules that were due to come into effect in 2014 restricting the amount of time a tenant can spend away from their public housing residence. Mr MacKenzie noted community concern in relation to the exception where people sentenced to ‘up to three month’s gaol’ will be able to return to their public housing home.

A transcript of the relevant segments of the discussion is 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 relevant sources have been identified where used.

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

Australian courts have considered an ‘ordinary, reasonable’ viewer or listener 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

1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in investigating complaints under codes of practice.

ACMA Investigation Report 3182 – John MacKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/132

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 and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.

Issue: Accuracy Relevant Code provisionThe program is considered by the ACMA to be a current affairs program for the purposes of clause 2.2(a).

Clause 2.2(a) of the Codes provides:

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

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

[...]

The considerations the ACMA uses in assessing whether broadcast material is factual in character are set out at Attachment B.

FindingThe ACMA finds that the licensee breached clause 2.2(a) of the Codes.

ReasonsThe accuracy requirements under clause 2.2(a) of the Codes apply to factual material. The issues to be determined are whether the material complained of was ‘factual material’; and if so, whether the licensee used reasonable efforts to ensure that, in the preparation and presentation of the program, the factual material was reasonably supportable as being accurate.

Relevant extracts from the licensee’s submissions concerning accuracy are at Attachment C.

Was the statement factual material?

As indicated above, the statement complained of was:

...we’ve had an influx of people from the communities, thanks largely to the alcohol management plans, but other reasons as well, we’ve had an influx of people coming here for the party and bringing their staggering crime rates from the communities, 30 times greater than ours...

In the context of the broadcast as a whole, the ACMA considers that most of the remarks made by Mr MacKenzie concerning public housing issues and ‘an influx’ of people from the ‘communities’ were expressions of opinion, and therefore not subject to the accuracy requirements of the Codes. They were subjective and judgemental statements in response to the new rules being implemented for public housing in the region and included contestable 2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

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and possibly exaggerated viewpoints of those living near the ‘hordes of people that have come to town’.

However, the ACMA considers that the component of the statement highlighted in bold – ‘30 times greater’ – is factual material, as it was specific, unequivocal and capable of independent verification.

Did the licensee use reasonable efforts to ensure the content was reasonably supportable as being accurate?

The complaint is that the statement made by Mr MacKenzie concerning the crime rate (30 times greater) was ‘grossly in error’. The complainant referred generally to crime rate statistics available on the Queensland Police website as evidence that this statement was not accurate3, but did not identify the relevant figures or the correct position with respect to crime rates.

For the purposes of clause 2.2(a), it is necessary to consider whether the licensee made reasonable efforts to ensure that the material was reasonably supportable as being accurate.

Broadly speaking, the licensee’s submissions with respect to clause 2.2(a) involved:

> providing information and source material which it considered supported Mr MacKenzie’s ‘broad statement [regarding] people from the communities’

> a statement that Mr MacKenzie would not make such comments without first consulting with ‘the right people’

> a statement that Mr MacKenzie had a precise recollection of receiving information that the relevant rate of crime was 30 times greater than comparable rates in the general community, but is now unable to locate the relevant source.

In relation to the subject of Mr MacKenzie’s statement, the licensee also submitted that:

... Mr MacKenzie was not only referring to the Indigenous communities, but any community outside Cairns. Therefore, the indigenous population figures quoted in the attached information is but part of Mr MacKenzie’s statement, however, being the majority.

While the licensee has indicated that Mr MacKenzie’s remark was in reference to ‘any community outside Cairns’ and not just to Indigenous communities, the ACMA considers that the ordinary, reasonable listener would have understood the reference to ‘the communities’ to mean Indigenous communities of Far North Queensland. In particular, the ACMA notes that:

> the term ‘communities’ is often associated with Indigenous communities4

> Mr MacKenzie’s surrounding comment that ‘we’ve had an influx of people from the communities, thanks largely to the alcohol management plans’ would have also established for the listener that his remarks were in reference to Indigenous communities, as alcohol management plans relate to these communities5

3 http://www.police.qld.gov.au/forms/CrimeStatsDesktop.asp - accessed 29 April 2014.

4 http://www.dss.gov.au/our-responsibilities/indigenous-australians/programs-services/communities-regions - accessed 23 May 2014 and http://www.austlii.edu.au/au/legis/qld/consol_act/aatsiclaoma1984762/ - accessed 5 August 2014.

ACMA Investigation Report 3182 – John MacKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/134

> the 4CA radio station services the Cairns area and Mr MacKenzie’s comment that ‘they’re [people from the communities] moving into housing down here’, would also suggest that his comments were in reference to the Indigenous communities of Far North Queensland.

The licensee referred to the following information in support of the quoted crime rates:

> An article published in the Cairns Post on 11 January 2014 which referenced a report by the Commission for Children and Young People and Child Guardian (the CCYPCG)6. The article notes that the report ‘shows a continuing over-representation of indigenous youth in correctional services’ and found, amongst other things, that Indigenous youths were ‘33 times more likely to be sentenced to jail time’.

> Material published on the Australian Institute of Criminology website, which states that ‘Indigenous Australians are very much over-represented in Australian prison populations, [...] with a 10-17 year old Indigenous person being around 24 times more likely to be in detention than a non-Indigenous person of the same age’.7

> A document reportedly prepared in response to a Senate Enquiry which indicates that for the period of 2003 to 2008, hospital separation rates for assault for Indigenous Australians in the Aurukun area were 21 times higher than the rate for other Australians nationally and in the 2008-09 period, hospital separation rates for Indigenous Australians in the Douglas (S) statistical area (SLA) (where Mossman Gorge is located) were 27 times higher following an assault than the national average.

In further submissions, the licensee has also provided the ACMA with a copy of correspondence from the Queensland Assistant Minister for Aboriginal and Torres Strait Islander Affairs, dated 22 July 2014, which it considers supports the view that Mr MacKenzie’s statement was accurate in substance.

The source material submitted by the licensee is at Attachment D.

The licensee has not stated that Mr MacKenzie did in fact have regard to those materials before broadcasting the statement in issue. Indeed, it is not possible for Mr Mackenzie to have had regard to:

the article in the Cairns Post which was published on 11 January 2014; or

the Assistant Minister’s correspondence which is dated 22 July 2014;

as neither were available to the licensee at the time of broadcast (3 December 2013). The above information provided by the licensee, therefore, does not assist in establishing whether the licensee made ‘reasonable efforts’ for the purposes of clause 2.2(a).

Further, to the extent that the licensee seeks to submit that the above information provided to the ACMA demonstrates that Mr MacKenzie’s statement was reasonably supportable as being accurate, the ACMA notes that:

5 http://www.dss.gov.au/our-responsibilities/indigenous-australians/programs-services/alcohol-management-plan-minimum-standards-frequently-asked-questions - accessed 23 May 2014.

6 The CCYPCG ceased operation on 30 June 2014. The report: ‘Youth Justice System 2011-12’ is available at: https://members.youthcoalition.net/articleexternal/child-guardian-report-youth-justice-system-queensland-2011-12 - accessed 5 August 2014.

7 http://www.aic.gov.au/crime_types/in_focus/indigenousjustice.html - accessed 29 April 2014.

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> The article in the Cairns Post and the CCYPCG report it cites is primarily about the over-representation of indigenous youth across Queensland in correctional services. The statistics provided in the article go to this issue, making a comparison in terms of how much more likely it is that offences committed by Indigenous youth will result in a detention order, for example, as opposed to offences committed by non-Indigenous youth. The article does not deal with crime rates, as referred to by Mr MacKenzie.

> The statistics provided on the Australian Institute of Criminology website also concern the issue of over-representation of Indigenous Australians in prison populations, rather than crime rates in the communities referred to in the broadcast. While the statistics also show that a large proportion of all violent incidents involving Indigenous Australians (as much as 90%) are not reported to police, they do not disclose overall crime rates.

> The figures cited by the licensee in the document prepared in response to a Senate Enquiry appear to relate to hospital separation rates, where such rates for Indigenous people admitted to hospital following an assault in the areas of Aurukun and Mossman Gorge were higher than the national average. Separation rates refer to instances where a patient ceases to be admitted to a hospital, and record the numbers of people who required hospital admission stemming from an assault. The statistics do not disclose overall crime rates, or other behaviours mentioned by Mr MacKenzie in the context of the discussion, such as ‘breaking into houses’. Further, Aurukun and Mossman Gorge are just two of several Indigenous communities that Mr MacKenzie was referring to, meaning that the figures for those areas are of limited use.

> While the Assistant Minister has expressed his view that ‘I don’t think the figure quoted by Mr MacKenzie whether completely accurate or not would have either misrepresented the true position or caused surprise’, his correspondence does not seek to confirm the figure quoted by Mr MacKenzie in comparing the crime rate in the ‘communities’ to that of Cairns.

> The licensee has not provided any information that allows for a comparison to be made between the crime rate in Cairns and that in ‘the communities’.

The licensee also submitted that:

John MacKenzie would not comment on a serious situation as the Crime happening in our region without gaining knowledge and credence from the right people on such a matter.

[…]

Mr MacKenzie does have a precise recollection of receiving information that the relevant rate of crime was 30 times greater than comparable rates in the general community, but is now unable to locate the relevant source.

The ACMA understands this to be a submission that the ‘reasonable efforts’ undertaken to ensure accuracy included consultation by Mr MacKenzie with persons who could provide authoritative information about crime rates in ‘the communities’ compared to those in Cairns, and that information was provided to Mr Mackenzie at some stage prior to the broadcast concerning this statistic. However, the licensee has not provided the ACMA with any information about those sources used, or the information provided, in this instance. The

ACMA Investigation Report 3182 – John MacKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/136

licensee’s broad assertion is not sufficient evidence of ‘reasonable efforts’ having been made in this particular case.

In summary, while the licensee considers that there ‘are strong indicators of much higher crime rates in the relevant indigenous communities than the general community’, it has not provided sufficient information about the steps actually taken prior to the broadcast to ensure accuracy. Therefore, the ACMA does not consider that the licensee has demonstrated that in the preparation and presentation of the program the licensee used reasonable efforts to ensure that factual material (the crime rate for indigenous communities was ‘30 times greater’ than that of the Cairns community) was reasonably supportable as being accurate.

Accordingly, the licensee breached clause 2.2(a) of the Codes in relation to the presentation of this statement.

Issue: Complaints handlingRelevant Code provisionClause 5.5 of the Codes provides:

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

FindingThe ACMA finds that the licensee did not breach clause 5.5 of the Codes.

ReasonsLicensees are required to respond substantively to complaints about matters covered by the Codes and must inform the complainant that he or she has the right to refer the complaint to the ACMA if the complainant is not satisfied with the response of the licensee. The licensee must use its best endeavours to respond substantively in writing within 30 business days of receipt of the complaint.

The complainant stated that he lodged his complaint by facsimile and by email on 3 December 2013 and did not receive a response from the licensee.

The licensee has provided the ACMA with a signed copy of the response to the complainant dated 3 December 2013 and has indicated that the letter was sent by post on 4 December 2013. The ACMA notes that the postal address on the letter is correct.

In these circumstances, the ACMA finds that the licensee did not breach clause 5.5.

Attachment ATranscript

ACMA Investigation Report 3182 – John MacKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/137

John MacKenzie: Now I just looked up and I see the name Tim Mander and I think ‘what’s that about?’ Then I realised that yesterday, let me read briefly from the Post, I had it listed down for yesterday, and we missed it, but we can have a look at it now.

Public housing tenants will have their holidays cut short from next year on a new plan to crack down on absentee tenants. The Housing Minister has revealed new rules will come into effect in the new year, restricting the amount of time a tenant can spend away from their tax funded home. This is what Tim said. In the past people could take up to 12 month’s absence from their social housing tenancy. From now on, he said, any absence over four weeks, will have to be justified and there will be no absences longer than three months. Now Tim Mander said there will be exceptions to ensure the sick and vulnerable are not disadvantaged. That’s obviously good.

This is the tricky bit, tenants sentenced to up to three month’s gaol will also get to keep their homes. Tim said, I quote, ‘we accept the fact if people are incarcerated, it would be better for everyone if they can go back into a house’. Well I have to say, people living next to these hordes of people that have come into town with their staggering crime rates from the communities. They move into some of these houses, public housing or access housing, and you have people cursing and swearing for a kilometre radius, because they’ve got prowlers every second night. People rattling their locks trying to get in and it’s just driving them potty. So, you ask those people, is it better that people that have served three months in gaol would be better going back to the house? Ask them, ask the neighbours. Tim, I’ve got to say to you they’re not going to be all that enthusiastic. He’s with me on the line, the Housing Minister. Hello Tim.

Tim Mander: Good morning John.

John MacKenzie: We’ve got to look at this plan of yours, there’s seemingly good and bad in it. I think anybody will agree anybody in public housing that shoots through for 12 months, is gaming the system.

[...]

John MacKenzie: Tim, we appreciate, a lot of people have called us at the program are so happy about the three strikes and you’re out, and already, according to Gavin King, there’s been a real improvement. A reduction in the numbers of reports of appalling behaviour, which is the brawling, and the bottles thrown over the back fence, and the all-night parties and deafening music, all of that sort of stuff, which is dreadful. But I tell you what people hate even more here, we’ve had an influx of people from the communities, thanks largely to the alcohol management plans, but other reasons as well, we’ve had an influx of people coming here for the party and bringing their staggering crime rates from the communities, 30 times greater than ours. They’re moving into housing down here. They’re breaking into houses or prowling in a one kilometre radius when they arrive and people are fed up to the teeth with it. They see that as a far greater threat to their peace of mind, even than the all night parties, etc. So when we hear, that yes three strikes you’re out is great, but people who go to gaol for three months for this sort of thing, house breaking in a radius around their new digs, that they can come back and within a few months they’ll be wreaking the same sort of behaviour again. They’re not particularly happy with that [...]

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Attachment BSome considerations to which the ACMA has regard in assessing whether or not particular content is factual material for the purposes of the code

> In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

> The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

> The ACMA will first look to the natural and ordinary meaning of the language used.

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

> The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

> Statements in the nature of predictions as to future events will rarely be characterised as factual material.

> Statements containing hyperbole will rarely be characterised as factual material.

> The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.

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Attachment CLicensee’s submissions

The licensee’s initial submission is reproduced below:

Please find enclosed relevant material to substantiate Mr MacKenzie’s comments as stated in your e mail below.

The Source of this information we make available is from The Cairns Weekend Post, Australian Institute of Criminology and the Senate Report re Aurukun.

There are quite a few statements contained within the information supplied which back up Mr MacKenzie and his broad statement re people from the communities.

I have left the quoted information in the source it originated so as to substantiate its correctness.

In fact Mr MacKenzie was not only referring to the Indigenous Communities but any community outside Cairns.

Therefore the indigenous population figures quoted in the attached information is but a part of Mr MacKenzie’s statement, however, being the majority.

John MacKenzie has been a respected part of the Far North QLD air waves on 4CA for over 30 years. He is in touch with many Community leaders Politicians, (Federal, State and Local) plus Local Council, Police, many clubs, groups and organisations.

John MacKenzie would not comment on a serious situation as the Crime happening in our region without gaining knowledge and credence from the right people on such a matter.

In further submissions, the licensee stated:

[…]

The licensee accepts that, although there is a body of evidence indicating that crime rates associated with indigenous communities and populations are significantly higher than the national average, it cannot be stated with absolute certainty that crime rates associated with indigenous communities in Far North Queensland are 30 times greater than the national average or the average in communities such as Cairns. It appears that statistical and interpretive limitations in relation to reported data prevent a conclusion regarding comparative crime rates being stated with that degree of certainty.

[…]

At the same time, […] the following points need to noted:

“Reasonable efforts” depend on the circumstances. In a dynamic environment it is inevitable that there will be some cut-and-thrust between presenter and interviewee in which a presenter relies on his background knowledge. Mr MacKenzie does have a

ACMA Investigation Report 3182 – John MacKenzie Morning Show broadcast by Cairns Broadcasting Pty Ltd on 3/12/1310

precise recollection of receiving information that the relevant rate of crime was 30 times greater than comparable rates in the general community, but is now unable to locate the relevant source. However, this does not detract from the general point, that there are strong indicators of much higher crime rates in the relevant indigenous communities than the general community.

[…]

The report [information on the Australian Institute of Criminology website] also states that as much as 90% of the violence experienced in indigenous communities is not reported (with the implication that the rate of incarceration most likely reflects only a proportion of all crime, because of this problem of under-reporting). Taking this factor into account, it is likely that the levels of actual crime are much greater than the levels of arrest and incarceration. This is a very clear implication of the paragraph headed “Seeking Help”.

[…] Mr MacKenzie was expressing concern on behalf of affected neighbourhoods about housing policies which permitted serious offenders to return to housing located in those neighbourhoods after serving prison sentences. The context is a focus on serious crimes to the person or property and the examples of behaviour he gives as being of concern to those neighbourhoods are assault (brawling), burglary and public affray (throwing bottles and similar behaviour). No reasonable listener would consider that Mr Mackenzie’s comments were intended to apply to all crime, including minor or victim-less offences such as traffic infringements. The category of crime, in context, to which his comments are directed are obviously serious crime which results in a custodial sentence. Although this category of crime is not restricted to assault and crimes of violence, they form a large proportion of that crime. Statistics which reflect rates of violent crime therefore do have a correlation with the context in which Mr MacKenzie made his reference.

[…]The whole basis of the discipline of statistics is to use available data to reasonably support a general proposition (as is now accepted with smoking). Statistics for two of the larger and better known communities are therefore indicators that provide reasonable support, which is what the standard requires, not absolute proof. Moreover, the communities of Mosman [sic] and Arukun [sic] are two of the best known communities north of Cairns. Mossman in particular is only 75 kilometres north of Cairns, in the context that the Cape York peninsula extends 1,050 kilometres north of Cairns, and is the community north of Cairns which has the most contact with Cairns (by simple dint of proximity). The use of Mossman statistics as an indicator is therefore reasonable.

For reasons already articulated, the Cairns and Mossman statistics also have a direct correlation with the context of Mr MacKenzie’s discussion, which was of serious crime resulting in a custodial sentence.

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Attachment D

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[...]

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Extract from an email from the Assistant Minister for Aboriginal Affairs and Torres Strait Islander Affairs to the General Manager, 4CA Radio – 22 July 2014

[…]

The complainant alleged that the following statement made by Mr MacKenzie, which the complainant considered was made in reference to Aboriginal communities in Cape York, was factually inaccurate:

...we’ve had an influx of people from the communities, thanks largely to the alcohol management plans, but other reasons as well, we’ve had an influx of people coming here for the party and bringing their staggering crime rates from the communities, 30 times greater than ours...

This statement whilst in expressed in graphic terms does refer to what has become a very unfortunate reality of the imposition of Alcohol Management Plans on Indigenous communities in my electorate over 10 years ago.

It is very difficult to say that the figure Mr MacKenzie quoted is inaccurate as alleged. There are many figures quoted from a variety of sources which vary considerably depending upon the community, who collects the data for what purpose and the age of the data.

In general terms however the statistics and data around many dysfunctional aspects of community life are very concerning. I don’t think the figure quoted by Mr MacKenzie whether completely accurate or not would have either misrepresented the true position or caused any surprise.

[…]

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